Delhi High Court - Orders
Vipin Anand vs Serious Fraud Investigation Office & ... on 12 January, 2021
Author: Suresh Kumar Kait
Bench: Suresh Kumar Kait
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2020/2020 & CRL.M.A. 14435/2020
VIPIN ANAND ..... Petitioner
Through Mr. Mohit Mathur, Sr. Adv. With
Mr. Gautam Narayan & Ms.Asmita
Singh, Advs.
versus
SERIOUS FRAUD INVESTIGATION OFFICE & ANR.
....... Respondents
Through Mr. Amit Mahajan, CGSC.
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
ORDER
% 12.01.2021 The hearing has been conducted through video conferencing.
1. Present petition has been filed under section 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing of the complaint CC No.770/2019 dated 01.07.2019 and summoning order dated 16.08.2019 passed by ASJ-03 and Special Judge (Companies Act), Dwarka Courts, Delhi.
2. Case of the petitioner is that on 04.04.2016, the Accused company was informed that the Petitioner would represent LIC on their Board as a nominee director, on 03.05.2016, investigation into the affairs of the accused company was assigned under Section 212(d) of the Companies Act, 2013 by the Government of India. On 30.05.2016, petitioner attended the board meeting of the accused company for the first time and CRL.M.C. 2020/2020 Page 1 of 4 was appointed to the Board. He raised the issue of default in payment of interest on debentures of LIC by accused company, however, his objection was not recorded. On 12.08.2016, petitioner sought permission of LIC to withdraw himself from the position of nominee director, however, petitioner was asked to continue as Nominee Director and attend Board of meeting of the accused company. On 26.07.2017, an Interim Resolution Professional was appointed for the accused company. On 14.03.2019, SFIO raised questions regarding petitioner's role and thereafter, on 01.04.2019 Petitioner was appointed as Managing Director of LIC. On 27.06.2019, SFIO submitted its investigation report in the affairs of the accused company to the Government of India. On 29.06.2019, the MCA, Government of India gave sanction to the SFIO to initiate prosecution against the accused persons. On 16.08.2019, after filing of CC no. 770/2019, summons were issued on the said date.
3. Learned senior counsel appearing on behalf of petitioner submits that on 02.03.2020, MCA clarified that only WTDs (Whole Time Directors) and KMPs (Key Managerial Personnel) involved in the day-to- day functioning of the company would be liable for its defaults and that nominee directors such as petitioner would not be liable. Ministry of Finance vide its OM dated 16.07.2020 has reiterated that nominee directors cannot be accused of fraud in accused company. Petitioner has also been wrongly dragged by the SFIO merely on the ground that he served as a nominee director of LIC on the board of the accused company for a brief period.
4. He further submits that complaint is erroneously based on the fact that petitioner was a member of the Audit Committee which is incorrect, CRL.M.C. 2020/2020 Page 2 of 4 as he was never a member of the Audit Committee which is a statutory committee constituted under Section 177 of the Companies Act, 2013. There is no accusation of any conspiracy on the Petitioner and promoters or officials of the accused company. Petitioner being a "public servant"
no cognizance could have been taken of the offences alleged to have been committed by him without sanction. Investigation report has erroneously stated the position of the Petitioner as Non-Executive Chairman, whereas, he was only appointed as a nominee director of LIC and functioned in that capacity only. Petitioner attended his first board meeting only after the investigation had commenced.
5. In addition to above, learned senior counsel for the petitioner submits that similar issue came before this Court in Crl. Rev. Pet. No.1308/2019 (Dr. Rajesh Kumar Yaduvanshi vs. SFIO & Anr.) and vide order dated 21.09.2020, quashed the summoning order against the nominee director of Punjab National Bank.
6. Moreover, in Crl. Rev. Pet. No.1110//2019 (Ajay Kumar Deb v. SFIO & Ors.) summoning order against Nominee Director of State Bank of India was quashed vide judgment dated 25.09.2020.
7. Learned Standing Counsel does not dispute the fact that summoning orders have already been quashed in two cases mentioned above and submits that the aforementioned order passed by this Court have been challenged before the Hon'ble Supreme Court, however, the said petitions have not been listed till date.
8. Since this Court has taken a view in the aforesaid cases, therefore, present petitioner is also on the similar footing, thus, the complaint deserves to be quashed on parity.
CRL.M.C. 2020/2020 Page 3 of 49. In view of above facts, I hereby quash the Criminal Complaint No.770/2019 against the petitioner.
10. The petition is, accordingly, disposed of.
11. Pending application also stands disposed of.
12. The order be uploaded on the website of this Court forthwith.
SURESH KUMAR KAIT, J JANUARY 12, 2021 ab CRL.M.C. 2020/2020 Page 4 of 4