Delhi High Court - Orders
Brij Bhushan Kathuria vs Union Of India & Ors on 17 March, 2021
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Digitally Signed By:DINESH
SINGH NAYAL
Signing Date:18.03.2021 16:25:05
$~46
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3374/2021 & CM APPLs. 10253/2021
BRIJ BHUSHAN KATHURIA ..... Petitioner
Through: Ms. Maninder Acharya, Sr. Advocate
with Mr. Siddharth Bhatli, Mr.
Shikhar Kishore, Mr. Abhiyant Singh
and Mr. Abhishek Choudhary,
Advocates.
versus
UNION OF INDIA & ORS. ..... Respondents
Through: Mr. Jatin Puniyam, GP for UOI (M:
9810102233).
Mr. Rakesh Kumar, CGSC with Mr.
Raghav, Mr. Janamjaya Upadhyay
and Mr. Nitin Srivastava, Advocates
(M: 9811549455).
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 17.03.2021 CM APPLs. 10254/2021 (for exemption)
1. Exemption allowed, subject to all just exceptions. Application is disposed of.
W.P.(C) 3374/2021 & CM APPLs. 10253/2021 (for stay)
2. The Petitioner in the present petition is aggrieved by the Look Out Circular (hereinafter, "LOC") which has been issued against him at the behest of the Serious Fraud Investigation Office (hereinafter "SFIO").
3. The brief background of the matter is that the Petitioner is a Chartered Accountant who was inducted in the Board of M/s Techpro Systems Limited, as a Non-Executive Independent Director, in the Annual General Meeting dated 26th November 2007. The Petitioner is working in Oman and W.P.(C) 3374/2021 Page 1 of 4 Digitally Signed By:DINESH SINGH NAYAL Signing Date:18.03.2021 16:25:05 relocated there on 24th October, 2009. He is stated to have resigned from the post of Independent Director of M/s Techpro Systems Limited due to his full time employment in Oman and health concerns. In 2017, Corporate Insolvency Resolution Proceedings were initiated against M/s Techpro Systems Limited, and on 5th May 2019, the Resolution Plan was approved by the NCLT.
4. The case of the Petitioner is that he had travelled to India on 2nd February, 2021, and was scheduled to fly back to Oman on 21st February, 2021. However, he was stopped at the airport and was intimated about the LOC which has been issued against him at the behest of SFIO. The Petitioner was thereafter issued summons bearing SFIO/INV/TSL/1304/2020 by the SFIO, on 23rd February 2021, through WhatsApp, to personally appear before the Investigating Officer on 2 nd March 2021.
5. Ms. Maninder Acharya, ld. Sr. counsel appearing on behalf of the Petitioner, firstly submits that a copy of the LOC, that has been issued, has not been given to the Petitioner. She submits that the issuance of LOC is contrary to the Office Memorandum issued by the Ministry of Home Affairs (Foreigners Division), Government of India, dated 22nd October, 2010, read with the amended clause (j) issued via amendment to the OM, dated 5th December, 2017. Ms. Acharya further submits that it is the settled position of law that until and unless an FIR has been registered and a cognizable offence is made out, an LOC cannot be issued, as has been done in the present petition, as it completely curtails the liberty of the Petitioner to travel abroad. She relies upon the judgments in Sumer Singh Salkan v. Asst. Director & Ors. [WP(Crl.) No. 1315/2005, decided on 11 th August 2010] W.P.(C) 3374/2021 Page 2 of 4 Digitally Signed By:DINESH SINGH NAYAL Signing Date:18.03.2021 16:25:05 and various orders including the order dated 29th August 2018 in Nitin Sandesara v. Directorate of Enforcement and Ors. [WP(C) 7559/2017] and the judgment dated 2nd December 2020 in Deept Sarup Aggarwal v. Union of India [WP(C) 5382/2020].
6. Ms. Acharya further submits that the Petitioner is willing to abide by any conditions that may be imposed by this court, and the Petitioner is ready to report to the Indian Embassy in Oman, as and when required. She submits that the Petitioner has been employed in Oman since 2009, and whenever he has been called for investigation, he has duly reported. Insofar as the urgency qua travel to Oman is concerned, it is submitted that the Petitioner has to report back to his employer in Oman and to attend the wedding of his nephew.
7. Ms. Acharya, ld. Senior Counsel, further submits that the Petitioner has various assets which are located in India, and above all, his wife and both his daughters reside in India. Thus, she submits that there can be no apprehension of flight of the Petitioner, inasmuch as his family connections are deeply rooted in India. It is further submitted by Ms. Acharya that under Section 212 of the Companies Act, even if an investigation has been ordered by the SFIO, until and unless an interim report or a final report is submitted to the Central Government, and is accepted by the Government, a Criminal prosecution would not commence. In the present case, the investigation has allegedly just commenced, and there is no criminal case pending against the Petitioner.
8. It is finally submitted by Ms. Acharya that the role of the Petitioner in the management of the Company- M/s Techpro Systems Limited, is limited in nature, inasmuch as the Petitioner was a non-executive independent W.P.(C) 3374/2021 Page 3 of 4 Digitally Signed By:DINESH SINGH NAYAL Signing Date:18.03.2021 16:25:05 Director for the period between 2006 to 2015, and had no active role to play in the said company.
9. On the other hand, on behalf of the Respondents, the LOC has been produced, which clearly shows that the LOC has been issued against seven persons/directors of the said company - M/s Techpro Systems Limited. Insofar as the reason for the issuance of the LOC is concerned, the said column is left completely blank in the LOC. However, ld. Counsel for the Respondent has placed the background note for the issuance of the LOC as also an independent note, to show the role played by the Petitioner, before this court
10. Arguments heard in part. The Petitioner had been called for joining the investigation on 2nd March, 2021 and he had sought some time to furnish the documents which were sought by the Respondents. Accordingly, before passing any further orders, the Petitioner shall submit the documents which he had assured to supply to the authorities. Further, over the next one week, the Petitioner may be called by the SFIO or the investigating officer, and any documents, which may be required by the authorities, would be duly submitted by the Petitioner. The Petitioner is permitted to be accompanied by a lawyer, who may stay at a visible, but not an audible distance.
11. List for further hearing and orders on 26th March, 2021. The documents handed over by the Respondents, shall be placed in a sealed over with the Court Master.
PRATHIBA M. SINGH, J.
MARCH 17, 2021 MR/Ak W.P.(C) 3374/2021 Page 4 of 4