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2014 DIGILAW 664 (DEL)

Ashish Pandit v. State (NCT) of Delhi

2014-02-25

V.P.VAISH

body2014
JUDGMENT V.P. Vaish, J. 1. By way of this petition under Section 438 Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), the petitioner Ashish Pandit seeks anticipatory bail in case FIR No. 175/2012 under Sections 420/406/409 read with Section 120B IPC registered at P.S. Economic Offences Wing, Mandir Marg, New Delhi. Reply to the application has been filed on behalf of the State. 2. Arguments on the application on behalf of the petitioner and the State have bee heard. 3. Learned counsel for the petitioner submits that the case was registered in the year 2012, the name of the petitioner has not been named in the FIR. He also submits that there is no allegation of representation by the petitioner and no amount was given to the petitioner. 4. Counsel for the petitioner also alleges that the petitioner landed at Mumbai airport and his passport was seized by Immigration Authority. The petitioner moved an application for transit bail bearing B.A. No. 915/2013 before High Court of Judicature at Bombay which was dismissed vide order 29.8.2013. 5. Counsel for the petitioner further submits that the complainant had filed a complaint case under Section 138 of the Negotiable Instruments Act bearing CC No. 1269/1/2011 in respect of dishonour of cheque worth Rs. 4.40 crores (Rupees four crores and forty lakhs) against the accused Pankaj Madan, Saurav Sikar and M/s. Genntax Tremix Pvt. Ltd. One of the accused namely Saurav Sikdar filed petition under Section 482 Cr.P.C being Crl.M.C. No. 2769/2011 before this Court and vide order dated 6.8.2012 this Court directed the Serious Fraud Investigation Office (SFIO) under the Ministry of Corporate Affairs to investigate the affairs of the company and determine who was in management and control of the company. SFIO will also determine whether there is any merit in the petitioner's allegations. 6. The petitioner co-operated with the Serious Fraud Investigation Office. SFIO submitted a report that accused Pankaj Madan, his wife Shikha Sinha and Saurav Sikar were running the company but there was gross violation of provisions of the Companies Act, 1956 and they had taken money from the complainant. 7. According to the counsel for the petitioner, allegations against the petitioner is that he knew Saurav Sikdar from before and Pankaj Madan approached the petitioner through him for project management. 7. According to the counsel for the petitioner, allegations against the petitioner is that he knew Saurav Sikdar from before and Pankaj Madan approached the petitioner through him for project management. The petitioner referred them to Shailesh Hiranandani and thereafter Pankaj Madan used to interact with Shailesh Hiranandani directly. The petitioner referred to a chartered accountant for appraisal of a loan project. Narender Bajaj prepared a visit report in July, 2009 and according to him the petitioner was not involved with the said loan proposal in any manner at all. 8. Counsel for the petitioner also submits that the I.O. sent an e-mail on 13.3.2013 raising certain queries and the petitioner replied the same. Thereafter the I.O. did not sent any e-mail or made further inquiry. 9. The application has been opposed by learned APP for the State on the ground that there are serious allegations against the petitioner and the petitioner cheated the complainant for worth Rs. 5.90crores (Rupees five crores and ninety lakhs). Learned APP for the State has pointed out that the petitioner has been declared proclaimed offender vide order dated 17.1.2014 and the petitioner is not entitled to anticipatory bail. 10. In the reply to the application for bail filed on behalf of the State, it is mentioned that the complainant Rajvir Singh lodged a complaint that he came into contract with Pankaj Madan and Saurav Sikdar through one Manoj Mishra and both of them represented as M.D. and Vice President of M/s. M/s. Genntax Tremix Pvt. Ltd., a company which was in the business of trade and merchandise of metals across the glove. They informed the complainant of having imported 500 MT Copper Cathode Plates and the same were lying at Nava Seva Port, Mumbai for sale. They induced the complainant to purchase the copper cathode plates and the complainant paid Rs. 90.00 lakhs (Rupees ninety lakhs) by cheque and agreed to deliver the goods to the complainant at Delhi. Later on, the said persons informed the complainant that custom authorities have confiscated the consignment as the same was containing the contraband goods. They induced the complainant to purchase the copper cathode plates and the complainant paid Rs. 90.00 lakhs (Rupees ninety lakhs) by cheque and agreed to deliver the goods to the complainant at Delhi. Later on, the said persons informed the complainant that custom authorities have confiscated the consignment as the same was containing the contraband goods. They further represented that they have another company in the name of M/s. Gennext Promoters Pvt. Ltd. which deals in the business of housing and they are launching a project at Shimla and they have already executed agreements with the foreigners and submitted a project report to a foreign investor for investment in the project and the loan was likely to be sanctioned. They also introduced one Shailesh Hiranandani as representative of the foreign investor in Bangkok and arranged a meeting of the complainant with him. 11. The complainant was made to agree to meet the routine expenses of the company till the final disbursement of loan by the foreign investor. The complainant lent a sum of Rs. 2.50 crores as loan by cash as well as by cheque. In July -August, 2009, it was informed that Shailesh Hiranandani had a cardiac arrest and Mr. Dinesh Gandhi would look after the project finance. The complainant became sceptical and asked them to secure the amount and an agreement was executed wherein he admitted the liability of Rs. 4.40 crores as loan and issued three cheques from the account of the company for Rs. 4.40 crores. 12. The complainant has also alleged that the accused persons took another sum of Rs. 2.50 crores in cash on 26.10.2010 on the pretext that a sum of Rs. 129.00 crores was approved for the project by the foreign investor and the aforesaid amount was towards processing fee and other charges. The cheques handed over by the accused persons for Rs. 4.40 crores were dishonoured. 13. In the status report it is also mentioned that during the course of investigation, the following facts were revealed: (i) Negligible revenue was generated by M/s. GPPL and M/s. GTSPL from their operations since inception year 2007. (ii) Examination of contract and MOU entered between M/s. Tennessee Investment & Trading Corporation Inc USA and M/s. GTSPL on 30.07.2008 for supply of 500 MT Copper Cathode Plates revealed that several clauses of the agreement like clause 5.2, 5.3, 6.2 and 15.1 are incomplete.. (ii) Examination of contract and MOU entered between M/s. Tennessee Investment & Trading Corporation Inc USA and M/s. GTSPL on 30.07.2008 for supply of 500 MT Copper Cathode Plates revealed that several clauses of the agreement like clause 5.2, 5.3, 6.2 and 15.1 are incomplete.. These clauses are vital clauses and agreement cannot be enforced in the absence of these clauses. (iii) Neither the Copper Cathode Plate was delivered nor the money to the tune of Rs. 90 lacs was refunded to the complainant. (iv) After failing in supply of Copper Cathode Plates, M/s. GPPL conceived a project at Kandaghat Shimla and the complainant was allured to participate in said project by misrepresenting that their company will receive huge sum of FDI. To convince the complainant, an agreement for foreign funding with M/s. Trace Investment Limited Cayman Islands was shown in which Foreign Investor agreed to invest the aforesaid amount for the project. However, on internet surfing it was revealed that M/s. Trace Investment Limited, Cayman Island is not registered in Cayman Island although there is one private company of the same name registered in London UK and this company was involved in Management Consultancy (except Financial Management). Further, as per the information available on the internet, accounts of the company were dormant since 21.11.2007 and it was dissolved on 20.04.10. Thus, it seems just a ploy to induce the complainant to advance loan for this said project. (v) As per agreement dated 30.06.2010 executed between complainant and Pankaj Madan, a loan of Rs. 4.40 crores has been taken by Pankaj Madan for the purpose of business expenses for taking FDI Loan. Pankaj Madan and Sourav Sikdar in connivance with petitioner Ashis Pandit, Shailesh Hiranandani and Dinesh Gandhi induced the complainant to invest his money in M/s. GTSPL on false promises of receipt of huge FDI for Kandaghat Project at Shimla. (vi) As per reply of FRRO, accused Pankaj Madan and Sourav Sikdar and petitioner Ashis Pandit visited many times with the complainant. (vii) As per reply of Mohinder Chauhan, he never entered into a collaboration agreement with Pankaj Madan. Further no resolution in this regard was also passed by his company. Further he has denied his signature on the collaboration agreement. It is pertinent to mention that payment of Rs. (vii) As per reply of Mohinder Chauhan, he never entered into a collaboration agreement with Pankaj Madan. Further no resolution in this regard was also passed by his company. Further he has denied his signature on the collaboration agreement. It is pertinent to mention that payment of Rs. 50 lacs by way of cheque in above collaboration agreement to above Mohinder Chouhan is also not supported with investigation made with ICICI Bank. The address of only single witness Dharampal, R/o Shimla mentioned in above collaboration agreement was also found not existence. (viii) As per reply of Town and Country Planner, neither any proposal nor any approval for the project at Shimla was given. (ix) Two accused persons i.e. Pankaj Madan and Saurav Sikdar have already been arrested and are running in judicial custody. Main chargesheet has been filed and is now fixed for 11.3.14. (x) During PC remand of accused Pankaj Madan, email dated 16.06.2009, addressed to him by petitioner Ashis Pandit was retrieved and scrutiny of the same revealed that petitioner Ashis Pandit was to be appointed as Consultant for arranging FDI Loan Funding to the tune of Rs. 125 crores. Further, as per other email dated 26.05.2009 addressed to petitioner Ashis Pandit, Pankaj Madan paid Rs. 21 lacs for opening seven offshore company to get fund transferred and Rs. 50 lacs for getting demand draft Rs. 125 crores. (xi) During PC remand of accused Saurav Sikdar, one email dated 25.5.10 addressed to petitioner, Ashis Kaku, was found and scrutiny of same revealed that an amount of Rs. 92 lacs+12 lacs have been given to petitioner Ashis Pandit by Sourav/Pankaj. (xii) LOC of the petitioner was got opened. On the intervening night of 6/7.08.13, petitioner Ashis Pandit was intercepted at International Sahar Airport, Mumbai when he arrived from Hong Kong by flight No. 9W-75. However, the petitioner escaped from immigration area and also left his passport and baggage at Immigration Office. The matter was also reported to Sahar Police Station vide DD No. 13, dated 07.08.13. Subsequently, his NBWs were got issued and raids were conducted, but he was found at large. Presently, the petitioner has been declared absconder vide order dated 17.01.14 of trial court. (xiii) Transit bail of the petitioner has been dismissed by Hon'ble Mumbai High Court, vide order dated 29.08.13. Subsequently, his NBWs were got issued and raids were conducted, but he was found at large. Presently, the petitioner has been declared absconder vide order dated 17.01.14 of trial court. (xiii) Transit bail of the petitioner has been dismissed by Hon'ble Mumbai High Court, vide order dated 29.08.13. (xiv) The other accused persons at the instance of this petitioner are yet to be arrested and cheated money is also to be recovered from him. 14. Counsel for the petitioner relied on judgment in Jagdish Nautiyal v. State 2013 I AD (Delhi) 475 and Yogender Pratap Singh v. State 2009(2) JCC 1314. These judgments are not applicable to the facts and circumstances of the present case. 15. The Serious Fraud Investigation Office submitted a report in Crl.M.C. No. 2769/2011 and in the report it was stated that M/s. GPPL and M/s. GTSPL are not functioning as per the provisions of Companies Act, 1956 under which the companies have been registered. Multiple default under Sections 147, 150, 163, 193, 209, 211, 227, 303, 307 and 628 of the Companies Act, 1956 have been noticed during investigation. Mr. Pankaj Madan, Ms. Shikha Sinha, both directors and Ms. Chhavi Garg are officers in default and liable to be charged under the said Act. 16. The petitioner has been absconding and he was declared proclaimed offender by learned trial court vide order dated 17.1.2014. 17. The Apex Court in Jagtar Singh v. Satendra Kaur @ Bhavana Grover & Ors., 2002 (6) SCALE 177 has observed that normally when the accused are absconding there is no question of granting anticipatory bail. 18. Considering the facts and circumstances of the case that petitioner has been declared proclaimed offender and the parameters for grant of anticipatory bail, in my view, the petitioner is not entitled to anticipatory bail. Hence the application is dismissed. Application dismissed.