Final Order 7

Order Details: COPY OF ORDER
Pdf Text: Bail Matter No.939/22 & 940/22
FIR No. 445/20
PS Vasant Vihar
State Vs. Vinod Tayal & Vinod Kumar
U/s 420/467/468/471/120B/34 IPC
15.09.2022
Present : Sh. S.K. Kain, Ld. Addl. PP for the State.
Sh. Vikas Arora, Sh. Mohit Dagar and Sh. Siddharth Singh,
Ld. Counsels for applicant/accused.
Sh. Vikas Pahwa, Ld. Senior Advocate alongwith Sh.
Rohan Wadhwa and Sh. Neeraj Tiwari, Ld. Counsels for
complainant.
IO Inspector Sandeep Kumar in person.
Request has been received for appearance through VC on
behalf of counsel for complainant. None has joined VC. However, Sh.
Vikas Pahwa, Ld. Senior Advocate has appeared on behalf of the
complainant physically.
The present case pertains to alleged illegal transfer of shares
for which the complaint has been lodged by the complainant. Matter is of
some complex nature owing to the following facts:
firstly, the alleged transaction took place in the year 2016,
whereas the complaint in the present case has been made in the year
2020;
secondly, the parties i.e. the complainant and several
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persons and companies related to the complainant and his family
members have been having financial transactions since almost a decade
with a company, namely, Genesis Finance Ltd., (coaccused company)
of which both the accused/applicants appearing before me, are
employees. (That the accused Vinod Tayal is stated to be Vice President
of the said company, whereas the other applicant/accused Vinod Kumar
is a Field Officer of the said company).
thirdly, there are 4 shares transfer transactions in dispute:
a) The first pertains to transfer of 62500 shares in the name
of one Nirmala Aggarwal from the complainant Sh. Tript Singh. (It is
claimed that these transactions were discovered by the complainant when
he checked the status of his shares online). (Bail of Ms. Nirmala has
already been dismissed by the Bail Roster Judge earlier and her
anticipatory bail is pending before the Hon’ble High Court of Delhi,
where she is enjoying interim protection and same is listed for
12.10.2022). (Applicant Vinod Kumar is a witness in the said share
transfer document).
b) The second transfer pertains to the credit of 100 shares
from the name of Ms. Kavita Bhutani in favour of the wife of the
complainant herein. (Although, Ms. Kavita Bhutani admits her signature,
being the seller, the complainant's wife has disputed her signature on the
said document.) (This share transfer form is allegedly signed by accused
Vinod Tayal).
c) The other transaction pertains to transfer of 300 shares in
favour of one Ms. Ruhi Reshi by the complainant. (In this form, the
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signatures of the complainant Sh. Tript Singh are alleged to be forged
and the witness is Vinod Kumar.)
d) Not only, the sale of these 300 shares by complainant is
disputed, but his signatures on the alleged form of share purchase in his
favour at an earlier point is also in dispute, which is witnessed by Vinod
Kumar. (The existence of the seller Sanjay Prasad is itself in question
today, inasmuch as, no KYC documents have been made available with
the IO and IO has not been able to trace the said person at the given
address.)
Fourthly, FSL report has been received, wherein an opinion
has been expressed that signatures of Sh. Tript Singh and his wife on the
aforesaid share transfer form are forged/not matching with the sample
signatures of the said persons.
The dispute has attained complexity as the complainant also
claims that the alleged transfers of shares are without consideration. It is
claimed by accused company that the shares which were purchased by
the complainant for Rs.1.25 crores had lost their market value and were
transferred to Ms. Nirmala Aggarwal for consideration amount of
Rs.6.25 lacs only. Further, it is claimed that on the same day, a credit of
Rs.97 lacs was given in the loan account of complainant Sh. Tript Singh
and Gaganmeet Singh (brother of complainant).
The Ld. Senior Counsel for the complainant has submitted
that several payments were made by the complainant as well as his
brother and certain companies (in which companies either complainant
or his brother is a Director) to the coaccused company against
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respective loan accounts. Some of these payments were unilaterally
adjusted in loan account’s of other’s instead of the account of the person
depositing the amount. Therefore, the discount/concession so claimed
by the accused company is being disputed. The Ld. Senior Counsel has
also submitted that the market value of the shares on the date of transfer
was Rs.280 per share, as per company’s own board resolution of year
2016. The value @ Rs.6,25,000/ of the whole lot is therefore, incorrect.
Counsel for applicants submitted that these adjustments
were made much prior to lodging of the FIR and the complainant/his
brother or companies controlled by them have never objected to such
adjustments.
These adjustments, asserted by one side and disputed by the
other side, are required to be verified by the IO. It is also not in dispute
that neither party has been able to provide any document or NOC
declaring or certifying that all the loan accounts stood settled or
reconciled at any point of time. I have been informed by the Ld. Senior
Counsel that, although, bank account statement have been given to the
IO, the loan document or related documents, other than the ledger
account of 3 out of 7 entities, (purported to have been maintained by the
accused company) have not been placed on record by the accused
company.
However, considering that the coaccused company being a
listed company, and at least, 4 companies pertaining to the complainant
or his brother/near relatives are registered companies, in my view, all of
the companies must be maintaining books of accounts, including list of
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creditors and debtors and the outstanding loan liability etc. duly reflected
and audited by a Chartered Accountant. Similarly, individuals tend to
show their assets and liabilities in their tax returns, which can always be
referred, to show, how the parties were reflecting the liabilities as well as
assets in their own books of account. Such documents would be
admissions of a higher level and could always be relied upon in a case
like this, where other relevant documents are not forth coming. At least,
in my view, these document ought to have been collected by the IO and
examined.
At this stage, IO has stated that a decision to appoint a
Chartered Accountant to assist the investigation in the present case,
considering the aforesaid complexity, has already been taken by the
Investigating Agency. Such a process of appointment of Chartered
Account will take some time.
In the meanwhile, IO is also now expected to collect the
documents suggested herein before, which, in the opinion of this court,
at least, can be referred to, considering the scant material made available
with the IO at this stage. Although, I have been assured by the counsels
appearing for both the sides that the said material would be made
available to the IO at the earliest possible opportunity, of course, non
submission of these documents would have its own
consequences/inference, which the IO would be at liberty to draw. At
such stage, IO may seek assistance of the court in such coercive action,
as may be considered deem and fit by him.
Ld. Counsel for accused tried to point out that the share
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transfer forms have been signed by the applicants as mere witnesses and
they are not the beneficiaries. He submitted that signatures of Vinod
Tayal appear after undisputed signatures of Kavita Bhutani and
signatures of wife of complainant are on a separate page at the end of the
form. He cannot, in these circumstances, be taken to be a witness of her
signature’s at least. However, I am not going into the merits of the
case/allegations at this stage as the main beneficiary of this transaction
has already gotten interim protection from the Delhi High Court, where
her anticipatory bail application is pending. Also considering that in two
other anticipatory bail applications of coaccused persons, it has been
directed that IO shall issue a notice of 7 days in advance to said co
accused persons before making arrest and also considering the time that
may be spent by the IO in collecting documents, placing the same before
the Chartered Accountant appointed by the Department and the CA
analyzing the same and submitting a proper report, the present bail
applications which are already pending since past few months cannot
remain on the board nor can I decide the merits of the rival claims.
At this stage, when the matter has been heard for almost 2
hours and the aforesaid dictation has been given, Ld. Senior Advocate
for the complainant submits that he has not been allowed to argue.
Firstly, it is for the prosecution to argue the matter and the counsel for
complainant is only permitted to assist the prosecution. Further, for the
sake of record, I am also constrained to point out that while arguments
were been addressed by the counsel for applicants/accused persons, Ld.
Senior Counsel for complainant himself made ample submissions
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responding to each and every submission made by the counsel for
applicant/accused which have also been recorded. In fact, the
complainant, who is present in person, also addressed the court and made
submissions regarding the alleged loan transactions. The Ld. Addl. PP
has nothing to add. In these circumstances, the claim that complainant
has not been fully heard is misplaced. Even otherwise, this court is not
granting pre arrest bail to the applicants nor disposing off the
applications on merits.
Ld. Senior Counsel for the complainant next submits that
the order passed by this court is an order granting bail to the accused
persons, to which proposition this court is unable to agree, inasmuch as,
the court is concluding that the IO is yet to carry out proper investigation
in the matter, which includes thorough examination of the documents.
Only thereafter, the IO is expected to come to a conclusion that there
was no consideration for the alleged transfer of share which may support
the opinion of forgery. It is only, thereafter, the issue that arrest and
custodial interrogation of the accused is required for any purpose can be
decided.
Needless to say, in the present case, sample signatures of
the accused persons have already been taken by the IO. Therefore, the
requirement of Proviso to Section 311 A of Cr.PC is also not coming
into the way of the IO or the investigation.
It is also not in dispute that a sum of Rs.5 crores has
already been deposited by the accused company before the Delhi High
Court to secure the interest of the complainant in case there is a finding
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in his favour eventually.
Where the IO has to carry out such an extensive exercise of
examination of accounts and financial documents for the purpose of
investigation in a given case, I see nothing wrong in not keeping the
matter pending before the court and relegating the matter to the IO to
first carry out proper preliminary investigation before coming to the
conclusion regarding arrest or custodial interrogation of the accused
persons.
In my view, with all due respect, the present order does not
amount to order granting bail.
As far as the submission that while the matter remains
pending before the Delhi High Court qua the coaccused, this court
should keep the same pending is concerned, in my view, since accused is
not the same before the two courts, the same cannot be a ground for
keeping the present matter pending. Even otherwise, the Delhi High
Court is dealing with the bail application of main beneficiary.
I do not want to go into the merits of the difference in role
as far as present applicants are concerned and the role of the beneficiary,
whose bail is pending before the Delhi High Court. Even otherwise, it
cannot be cited as a proposition of law or a rule that whenever a bail
application of a coaccused is pending before the High Court, (after the
same having been declined by the court of coordinate bench at the
Sessions level), the bail application of any other coaccused should
remain pending at the Sessions level till such bail application of co
accused is disposed off by High Court concerned.
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Even otherwise, as already stated, this court is not passing
any order on merits but treating the applicants at par with the other co
accused persons, whose bail applications have already been disposed off
with the direction to the IO to issue 7 days notice in case a decision
regarding their arrest is taken by IO as per law. This court is only
following what coordinate Roster Judges have been doing in the present
case.
No further indulgence is required in the present case.
Applications disposed off.
Order dasti.
(Harjyot Singh Bhalla)
Roster Judge/Addl. Sessions Judge04,
New Delhi District, Patiala House Courts
New Delhi/15.09.2022
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