High Court of Punjab and HaryanaCRM-M/65367/2023allowed

Serious Fraud Investigation Office Through B Ramesh Kumar v. Anil Jindal

2024-04-30Mr. Justice Kuldeep Tiwari46 pages

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Since common questions of law are involved in all these petitions and the reliefs craved to be reaped therein are also alike, therefore, all these petitions are amenable for being decided through a common verdict. -

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17.

Concluding their arguments, the learned counsels for the respondents have submitted that since the matter pertains to documentary evidence, therefore, subjecting the respondents to prolonged incarceration would not have served any gainful purpose and consequently, they have rightly been enlarged on regular bail.

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-1

Consequent upon forming of an opinion by the Ministry of Corporate Affairs (hereinafter referred to as 'M.C.A.') that investigation into the affairs of SRS limited and its Group Companies is necessary to be conducted by the S.F.I.O., it drew an order of investigation on 01.08.2018, in exercise of its powers, as conferred under Section 212(1)(a) of the Companies Act, 2013. Accordingly, the Director, S.F.I.O., vide order dated 08.08.2018, designated officers of S.F.I.O. as Inspectors to carry out the investigation. The investigation was conducted by various officers, whereupon it transpired that total 88 companies belonging to SRS Group were in existence since 01.04.2010. Therefore, investigation into the affairs of those 88 CUIs, including the eight companies which have been arrayed as accused No.

1 to 8 in the complaint (supra), was conducted and on completion of the investigation, an Investigation Report dated 05.06.2021 was presented before the M.C.A. This Investigation Report constituted the backbone of the order dated 10.06.2021, wherethrough, the M.C.A. directed the S.F.I.O. to file complaint and to initiate prosecution against the accused for commission of various offences/violations, i.e.

tion 447, 448, 92, 137, 134, 188, 128, 129, 143 of the Companies Act, 2013, and, Sections 209, 217, 211, 227, 297, 628 of the Companies Act, 1956. 25.

It would be pertinent to record here that, during the course of investigation, on 26.05.2021, in pursuance of approval to arrest four persons/accused, namely, Anil Jindal, Bishan Bansal, Nanak Chand Tayal (respondents in these petitions) and Rajesh Singla (not before this Court), the petitioner moved an application under Section 267 of the Cr.P.C., thereby seeking issuance of production warrants against them. The learned Additional Sessions Judge, Gurugram, allowed the said application on 31.05.2021 and directed for issuance of production warrants for 03.06.2021. Thereafter, on 03.06.2021, an application seeking remand of aforesaid accused to judicial custody was moved by the petitioner, on the ground that, approval for arrest has been obtained from the Director, S.F.I.O., in accordance with the Rules of 2017. This application was allowed on the same day itself and the aforesaid accused were remanded to judicial custody in the present case.

26.

The sum and substance of the complaint (supra), besides the crux of the investigation carried out by the S.F.I.O., is extracted hereinafter:- "(I) SRS Group consisted of two categories of companies with the nomenclature 'SRS companies' and 'Non-SRS companies'. It is revealed that the affairs of these companies were managed and controlled by Anil Jindal, Jitender Kumar Garg, Praveen Kumar Kapoor, Bishan Bansal, Nanak Chand Tayal, Rajesh Singla and Sushil Singla. The said persons were the actual controlling "mind and will" and in control of the affairs of the SRS Group. The degree of their control was such that the directors in these companies were appointed or removed as per their whims and fancies.

@ (II) That in case of Non-SRS companies, it is revealed that the directors were mostly the employees, known persons, or relatives of the controllers of the SRS Group. However, the total control over the operations of these companies was in the hands of the controllers of the SRS Group.

(III) It is revealed that five companies belonging to SRS Group i.e., SRS Limited, SRS Modern Sales Limited, SRS Healthcare & Research Centre Limited, SRS Finance Limited & SRS Real Estate Limited obtained loans to the tune of Rs. 528 crores (after 12.09.2013) from public sector banks/financial institutions. The outstanding bank loans with respect to nine of the SRS Group of companies, as per the latest financial statements filed with MCA, are Rs. 1596.94 Crores.

(IV) It is further revealed that the directors of SRS Ltd. and its four other Group Companies had presented falsified financial statements (after 12.09.2013) containing falsified statements of debtors, inflated Purchase & Sales figures, deliberately concealed the material facts in obtaining aforesaid credit facilities from public sector banks/financial institutions. In this regard, non-SRS companies were used for the purpose of inflating the sale, purchase, and profit of the SRS Companies, adjusting cash sales of jewellery and building material of declared SRS Companies, showing these Non-SRS companies as debtors in the books of accounts of SRS Companies.

(V) It is further revealed that the controllers of the CUls connived and Siphoned Off funds of Rs. 671.48 Crores and diverted funds amounting to Rs. 645.86 Crores from SRS Group of Companies by way of separate/distinct transactions. Further, the unlawful gain to the family members or Companies of the controller of SRS Group was by way of siphoning off the public funds from SRS Group of Companies and it was to the tune of Rs. 21.11 Crores after the period 11.09.2013.

(VI) Investigation also revealed that the auditors of the SRS Companies had deliberately suppressed the actual figures & entries in the accounts of the company and had given wrong,

4 false, and misleading statements in the financial statements, knowing it to be false in a material particular and had omitted to state the material facts, knowing to be material to hide the true nature of the financial statements.

(VII) The SRS Group - where mostly the directors were the Controllers of SRS Groups and their family members in these companies, the employees were also made directors. The directors of these companies were employees of SRS Group or their relatives. Many of these directors were the past directors in the SRS Group.

(VIII) Whenever Anil Jindal/co-accused wanted to incorporate a company either in SRS Group or as a Non-SRS Company, the Secretarial Department was provided the basic details such as a Name, Main objects, place of registered office, authorized capital, and directors, etc. by him. Based on information/instruction given by Anil Jindal, the Secretarial Department use to fill the form for incorporation after preparing the MOA and AOA as per the main objects through Ms. Savita Trehan, Practicing Company Secretary.

(IX) In this regard it is pertinent to mention here that Ms. Savita, in her statement on oath, stated that she either got incorporated or filed forms concerning many companies. (X) As per the requirement, Anil Jindal conveys which person is to be appointed or resigned as director from any company and provide them the documents of the appointee director and accordingly they file the Form -32 / Form DIR- 12 of the concerned persons.

(XI) Anil Jindal or Accounts Department conveys which person/firm is to be appointed or has resigned from any company and further he provided them the documents of the appointee auditors. Accordingly, they filed forms for the appointment and resignation of concerned auditors. (XII) No board meetings of most of the SR Group companies/were held, however, in compliance with Company Law or for other requirements such as the opening of bank accounts, etc., the

Secretarial Department prepares the minutes of all such companies. AGMs of SRS Group companies were not held physically. However, documents of these AGMs were prepared in compliance with company law on the instructions of Anil Jindal. (XIII) Financial statements of SRS and Non-SRS companies were prepared by the accounts departments and they get the balance sheets signed by auditors, preparing notices, director reports, MDA, etc. After the preparation of the notice, director reports, MDA, etc., they use to handed over it to the accounts department or Anil Jindal for signing by Directors. After receiving the signed annual reports, they use to file the same with ROC as generally digital signatures of all the directors were kept with the Secretarial Department with the knowledge of the concerned Directors." 27.

Consequent upon filing of the complaint (supra) by the S.F.I.O., since the learned Special Judge concerned, vide order dated 16.08.2021, summoned the accused(s) named therein, including the present petitioner, to face trial.

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? "% what erupts from a naked eye scrutiny of the factual matrix discussed in the preceding paragraphs of

this verdict is that, undisputedly, the respondent was never formally arrested by the petitioner-S.F.I.O., rather in pursuance of his production warrants, he was produced before the learned Court concerned by the jail authorities concerned, through virtual platform (in compliance of the COVID-19 protocols), and, on the same day itself, upon an application moved by the petitioner, he was remanded to judicial custody. Consequently, the issue which now crops up for adjudication is "whether, in the circumstances (supra), the compliance of the mandatory provisions enshrined ' ..7A- 8 .4$ 3> 3 .4G # 36.

To the considered mind of this Court, the answer to the issue is in affirmative. The reason for forming this inference is embedded in the application filed under Section 267 of the Cr.P.C., wherethrough, production warrants of respondent, who was lodged in District Jail, Faridabad (in different criminal cases), were sought to be issued. This application makes the hereinafter extracted significant graphic emergences:- (a) This application was moved after taking approval from the competent authority to arrest the respondent for offences punishable under the Act of 2013;

(b) In compliance of the order of investigation drawn by the M.C.A. on 01.08.2018, the Director, S.F.I.O., vide order dated 08.08.2018, designated officers of S.F.I.O. as Inspectors to carry out the investigation;

(c) This application gave complete details of all the relevant materials collected during investigation, based whereupon, the petitioner-S.F.I.O. formed an opinion/'reason to believe' about the guilt of the respondent and accordingly sought issuance of production warrants against him in the instant case; (d) This application disclosed the specific role and the

@ modus operandi adopted by the respondent/accused concerned in commission of cognizable offences;

37.

In this way, when the application (supra) fulfilled all the mandatory requirements, i.e. (i) it disclosed the materials collected during investigation, which constituted the 'reason to believe' that the respondent/ accused concerned has been guilty of offence punishable under section referred to in sub-section (6); and (ii) it disclosed the specific role of the respondent/accused concerned in commission of the alleged offences, besides disclosing the opinion and permission to arrest him; and, when the application (supra) has always been a part of the judicial record, which is accessible to all concerned, therefore, this Court has no hesitation to hold that all the mandatory requirements encapsulated in Section 212(8) of the Act of 2013 have been complied with. For ready reference, the relevant paragraphs of the application (supra) filed by the petitioner-S.F.I.O. on 26.05.2021 are reproduced hereinafter:- .$

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Since the application (supra), being a part of the judicial record, was openly accessible and even the order of judicial remand was passed in presence of the respondent/accused, therefore, now at this belated stage, he cannot plead ignorance about the same.

38.

The inference (supra) gets further strengthened from the subsequent sequence of events, inasmuch as, after about 15 days of filing of the application (supra), a detailed criminal complaint containing all the relevant materials, which runs into thousands of pages, was filed by the petitioner on 11.06.2021, before the learned Special Court concerned, which resulted in the latter taking cognizance of the offences and summoning the respondent/accused concerned, vide order dated 16.08.2021. From the above, it becomes clearly established that all the materials, which were collected during investigation and which formed the 'reason to believe' that respondent is guilty and there are sufficient reasons to arrest him, were very much available to the petitioner-S.F.I.O.

39.

Not only this, the application seeking respondent's remand to judicial custody, as filed in the presence of respondent (present through virtual platform), has also been framed in a similar fashion, inasmuch as, it also makes detailed disclosures about the materials collected by the petitioner during investigation, besides making disclosure about role of the respondent/accused concerned. Therefore, in these peculiar circumstances, the respondent is barred from claiming that neither he was aware about the material, which led to the authority concerned to form an opinion that he has committed offence punishable under the Act of 2013, nor he was aware of the grounds of his arrest.

40.

Significant reference at this juncture can be made to "Neeraj

Singal Vs. Directorate of Enforcement" (2024:DHC:129), wherein, the Delhi High Court has held that "when the arrestee or his/her counsel is provided with a copy of the application filed by the ED under Section 167 Cr.P.C. read with Section 65 PMLA seeking custody remand, he/she will stand informed in terms of Section 19(1) of the PMLA (akin to the provisions of Section 212(8) of the Companies Act, 2013), if the said application sets out the materials which also virtually contain the grounds of arrest." 41.

In fact, a perusal of both the applications (supra) makes it abundantly clear that not only the object underlying "( '/ 8 8 > % " 8 ( " C% D " 8 ( ( &1 &-.6, 8 8 8 -6-'</ !-.6+ $ $ ( &

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Hon'ble Supreme Court, in case titled as "Vijay Madanlal Choudhary & Ors. V/s Union of India & Ors." (2022 SCC OnLine SC 929), while dealing with the constitutional validity and the applicability of restrictive conditions of bail provided under Section 45 of the Prevention of Money Laundering Act, 2022 [akin to conditions laid down under Section 212(6) of the Act of 2013], has made the hereinafter extracted relevant observations:- $%

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