Delhi High Court - Orders
Ingram Micro India Private Limited vs Serious Fraud Investigation Office on 20 December, 2021
Author: Rajnish Bhatnagar
Bench: Rajnish Bhatnagar
$~84
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 3347/2021
INGRAM MICRO INDIA PRIVATE LIMITED ..... Petitioner
Through: Mr. Siddharth Luthra, Sr. Adv. with
Mr. Nishant Joshi, Mr. Nikhil
Varshney, Mr. Kunal Singh, Mr.
Chirag Madan and Mr. Hardik Rupal,
Advs.
versus
SERIOUS FRAUD INVESTIGATION OFFICE ..... Respondent
Through: Mr. Anurag Ahluwalia, CGSC and
Mr. Danish Faraz Khan, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
ORDER
% 20.12.2021 Crl.M.As 20358-59/2021 (Exemption) Exemptions allowed, subject to just exceptions. The application stands disposed of.
CRL.M.C. 3347/2021 and Crl.M.A 20360/2021 (for interim directions) Crl.M.A.20361/2021 (for directions
1. By virtue of this petition, petitioner is seeking the following reliefs:-
(a) Quash the complaint (CC No.7826/2017) filed by Respondent with the Court of Additional Chief Metropolitan Magistrate (Special Acts), Central District, Tis Hazari Courts, New Delhi vis-a-vis the Petitioner;
(b) Quash the impugned order dated 27.06.2019 & proceedings thereunder passed by the Court of Learned Additional Chief Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:23.12.2021 22:21 Metropolitan Magistrate (Special Acts), Central District, Tis Hazari Courts, New Delhi in CC No. 7826/2017 vis-a vis the Petitioner;"
2. It is submitted by the learned senior counsel for the petitioner that the main allegations are against one M/s Shark Communication Private Limited (SCPL), and there are no allegations against the petitioner-company. It is further submitted by learned senior counsel that it was in the year 2015 that the respondent-Serious Fraud Investigation Office (SFIO) undertook investigations against SCPL and its sister concerns. It is further submitted that it was only on 13.10.2015 that petitioner-company was directed to produce certified copies of the documents and certain information in their said letter. It is further argued that documents were sought in reference to ongoing investigation against SCPL and its group companies. It is further submitted that the respondent-SFIO has filed a complaint against M/s Shark Communication Private Limited under Section 621 of the Companies Act read with Section 200 of the Code of Criminal Procedure, 1973 for alleged violation of Sections 209(5)/217, 211, 628 and 227(2)/233 of the Companies Act, 1956 read with Sections 403, 420 and 477-A of the IPC, before the Court of learned Additional Chief Metropolitan Magistrate (Special Acts), Central District, Tis Hazari Courts, New Delhi. Notably, petitioner was not arrayed as an accused in the complaint..
3. It is further submitted by learned senior counsel for the petitioner that Ministry of Corporate Affairs also wrote to respondent-SFIO stating inter alia that no action for criminal conspiracy be taken against the beneficiary, including the present petitioner.
4. It is further submitted by learned senior counsel for the petitioner that despite letter dated 24.1.2017 of the Central Government specifically stating Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:23.12.2021 22:21 that no further action is required in support of charge no.1 pertaining to criminal conspiracy under Section 120B against the beneficiary companies including the present petitioner well without any reasons the petitioner was summoned by the learned trial court.
5. The respondent- SFIO has filed its complaint before the learned Special Judge without referring the petitioner as an accused, however, while taking cognizance vide impugned order dated 27.6.2019 the petitioner has been summoned. The relevant portion of the order of learned trial court reads as follows:-
"13. However, it is to be noted that the complainant has not arrayed M/s Motherson Sumi Innovative & Design Ltd., M/s ASL Insurance Brokers Pvt. Ltd., M/s Accord Insurance, M/s Link Engineers Ltd., M/s FIITJEE Ltd., M/s Times A&M (India) Ltd., M/s HCL Infosystems Ltd., M/s HCL Technologies Ltd., M/s HCL Comnet Ltd., M/s NIIT Ltd., M/s Reliance Industries Ltd., M/s Reliance Infocom Ltd. (now known as Reliance communications Infrastructure Ltd.) and M/s Ingram Micro (India) Pvt. Ltd. as an accused in the present complaint despite them being the beneficiary of the accommodation entries. The complainant has mentioned in para 6 of the complaint that Central Government vide letter dt. 24.01.17 has stated that no further action is required in respect of charge no. 1 pertaining to invoking of provision of Section 120-B IPC against the beneficiary companies.
14. xxx
15. ....... The investigating officer has given a categorical finding that above mentioned companies despite being asked to provide the details have only provided copies of the bills/invoices raised by SKG Group of companies and these companies failed to provide the necessary documents which shows that transactions were not genuine and they were sham and bogus. The accommodation entries were raised for the benefit of these companies which prima facie shows that accused no.2 facilitated fictitious entries to earn commission by providing cash in lieu of cheques and thus helping the beneficiaries evade taxes and cheat the exchequer by submitting Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:23.12.2021 22:21 false returns and false entries in their books of accounts. The said beneficiaries companies by taking fictitious accommodation entries in their books of accounts, reduces their profit, which further reduces their Income Tax liabilities. Thus, these companies entered into a criminal conspiracy with SKG and its group companies to cheat the Government exchequer by taking false accommodation entries in their books of accounts with an intent to save taxes.
16. Since these companies have benefited as a result of accommodation entries and conspired together with accused no. 2 who is the kingpin of the fraud, I am satisfied that in view of the investigation report, documentary material including bank statements, summons issued to them to provide the details, the statement of the directors/officials of these beneficial companies coupled with statement of accused Shri Kishan Gupta, that there is sufficient material on record to summon M/s Motherson Sumi Innovative & Design Ltd., M/s ASL Insurance Brokers Pvt. Ltd., M/s Accord Insurance, M/s Link Engineers Ltd., M/s FIITJEE Ltd., M/s Times A&M (India) Ltd., M/s HCL Infosystems Ltd., M/s HCL Technologies Ltd., M/s HCL Comnet Ltd., M/s NIIT Ltd., M/s Reliance Industries Ltd., M/s Reliance Infocom Ltd. (now known as Reliance communications Infrastructure Ltd.) and M/s Ingram Micro (India) Pvt. Ltd.for committing offence U/s 420/120- B IPC."
6. Issue notice. Learned counsel for the respondent (CGSC) appears and accepts notice. He seeks time to file the status report/reply.
7. List on 23rd March, 2022. In the meanwhile, petitioner shall be exempted from personal appearance through counsel during the trial proceedings till the next date of hearing.
RAJNISH BHATNAGAR, J DECEMBER 20, 2021 ib Signature Not Verified Digitally Signed By:KAMAL KANT MENDIRATTA Signing Date:23.12.2021 22:21