Delhi High Court - Orders
Sucheta Omprakash Goenka vs Serious Fraud Investigation Office ... on 25 April, 2023
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 612/2022, Crl.M.A No. 9192/2022, Crl.M.A No.
24216/2022, Crl.M.A No. 25535/2022 & Crl.M.A No. 4854/2023
SUCHETA OMPRAKASH GOENKA ..... Petitioner
Through: Mr. Vijay Aggarwal, Mr. Ayush
Jindal, Mr. Mukul Malik,Mr. Abhiraj
Ray and Mr. P Goyal and Mr. Anuj
Kapoor, Advs.
versus
SERIOUS FRAUD INVESTIGATION OFFICE THROUGH THE
INVESTIGATING OFFICER & ANR. ..... Respondents
Through: Mr. Anurag Ahluwalia, CGSC, Mr.
Abhigyan Siddhant, GP, Mr. Rohit,
Adv., Mr. Nitin Agnihotri,
Prosecutor, Mr. Sandeep Yadav, SC,
SFIO, Mr. Tarun Srivastava, LC,
SFIO and Mr. Shubham Gangal, LC,
SFIO for UOI with IO Piyoosh.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
ORDER
% 25.04.2023 CRL.M.A No. 4854/2023
1. This application has been moved by the petitioner seeking issuance of an appropriate order or direction for permission to travel abroad, for a period six months, pursuant to the petitioner's marriage. This was in context of an LOC which had been opened against the petitioner at Serious Fraud Investigation Office's (SFIO) behest consequent to which W.P.(CRL) 612/2022 assailing the LOC had been filed and is pending adjudication.
2. In the meantime, the petitioner had been granted permission to travel Signature Not Verified Digitally Signed By:ANISH DAYAL abroad for a period of eight weeks to finalise prospects of her marriage vide order dated 01st June, 2022. Pursuant to finalisation of a marriage plan, she was engaged to her prospective husband on 10th October, 2022 in Mumbai and had planned for her marriage to be held on 15th January, 2023 in Dubai. Later, it transpired that she decided to get married in India on 17th February, 2023. Consequently, this application was preferred for seeking permission to travel post her marriage for a period of six months from 15th March, 2023 to be with her husband, who was apparently resident in Dubai.
3. The SFIO vehemently objected to any such permission being given to the petitioner and filed a status report in that regard. Pursuant to a direction by this Court on 27th March, 2023, a short affidavit was also filed by SFIO to respond to the contentions of learned counsel for the petitioner which had been advanced in support of grant of permission.
4. SFIO's principal objection was that the earlier permission granted by this Court on 01st June, 2022 was based on specific submission of the petitioner that since she had lost her resident status in Dubai, the banks in Dubai inter alia Mashreq Bank, RAK Bank, HSBC (UAE) Bank, National Bank of Fajairah were not willing to disclose details online and if she was permitted to go Dubai, she would be able to furnish all details and collect the same personally. On that account and after noting the contentions of the SFIO, this Court was pleased to grant permission imposing specific conditions inter alia that the petitioner shall not have any transaction in the aforesaid banks and "then will be bound by the assurance given, to obtain the details of the said bank accounts as required by respondent No.1 to submit the same either immediately through email or on her return to India, as required by the SFIO".
Signature Not Verified Digitally Signed By:ANISH DAYAL5. As per the SFIO, despite the magnanimous view of this Court, the petitioner did not cooperate and has failed to furnish details of HSBC Bank account. Attention was drawn to a status report dated 12th March, 2023 wherein it was noted that pursuant to order dated 01st June, 2022 the SFIO sent successive emails from 14th June, 2022 onwards requesting for the information relating to the banks, which was not responded to by the petitioner who kept on delaying compliance thereof. A detailed list of said emails, information sought and received from the petitioner has been tabulated. It was further submitted that with regard to the documents from RAK Bank furnished by her, it transpired that she was the Managing Director of Green Foods Restaurant and despite queries, she had not furnished the details of this relationship except the trade licence. As per the SFIO, she has been consistently evasive and non-cooperative in the investigation.
6. Learned counsel for SFIO reiterated that the investigation was ordered into the affairs of various companies and in particular three companies namely, Twinkle Enviro Tech Pvt. Ltd. (TETPL), Royal Twinkle Star Club Pvt. Ltd. (RTSCPL) and Citrus Check-Inns Ltd. (CCIL) that allegedly collected a sum of Rs.12,318 Crores from the public under the guise of Holiday Plan Schemes and Time-Share Holidays during the period 2000-2015 and only a sum of Rs.6,737 Crores had been returned to the investors. Investigations revealed that money had been transferred through RTSCPL and 86 other subsidiary companies CUIs (companies under investigation) and in all of them the petitioner was a director and was discharging important functions including finalisation of accounts. She had also received funds from her father Sh. Om Prakash Goenka through Signature Not Verified Digitally Signed By:ANISH DAYAL unsecured loans. While she revealed that she had only one bank account in RAK Bank, her father's statement revealed that she had five accounts in Dubai. Further, certain proceedings had been moved in NCLT, Bombay under Insolvency Resolution Process in 2017 against RTSCL and CCIL and it was observed by the Hon'ble Supreme Court vide order dated 08th January, 2018 that the entire exercise under the IBC was a collusive effort and the orders of the NCLT and the NCLAT were stayed. Investigation revealed movement of huge funds between the CUIs as also from the promoters/directors including the petitioner and other entities of the Goenka Group. Funds were received by the petitioner from different CUIs as consultancy fee, commissions, unsecured loans and, therefore, it was suspected that siphoning of public funds was taking place.
7. During investigation, it was apparently revealed that the Green Foods Restaurant in Dubai which was serving Indian food under brand name "Rajdhani" was originally owned by Mirah Hospitality Foods Solutions Pvt. Ltd. and the shareholding of the company was majorly held by TEPL and RTSCPL and the brand was transferred to another company later which was subscribed in the names of Gaurav Goenka and Girija Goenka, the family of the petitioner. Details been sought relating to the petitioner's involvement in the restaurant were not obtained and she was evasive in her replies. Further, the said Gaurav Goenka and Girija Goenka, as per the learned counsel for SFIO, had gone to Dubai and not returned. Also as regards the husband of the petitioner, it was stated that he was a resident of Calcutta and was an Indian Passport holder.
8. Importantly, SFIO relied on the OM dated 22nd February, 2021 issued by the Government of India, Ministry of Home Affairs, Foreigners Division Signature Not Verified Digitally Signed By:ANISH DAYAL issuing detailed guidelines regarding issuance of Look Out Circulars. As per para 6 (L) of the OM, LOCs can be issued if it appears to an authority based on inputs that the departure of a person is detrimental to the sovereignty or security or integrity of India or to the strategic and/or economic interests of India or that such departure ought not to be permitted in the larger public interests. As per the SFIO, the LOC in question, therefore, was justified considering that the principal allegation against the petitioner was of being instrumental in collecting public moneys, layering them under various corporate transactions through multiple companies and siphoning of more than Rs.6,000 Crores into various entities, including those located in Dubai.
9. Learned counsel for the SFIO stated that the investigation report under Section 212 of the Companies Act, 2013 had been submitted on 06th April, 2023 to the Ministry of Corporate Affairs (MCA) after due approval from the Director, SFIO. It was, therefore, proposed that the petitioner be charged under Section 447 of the Companies Act, 2013 and sanction in respect of that is awaited from the Central Government. It was stated that Section 447 of the Companies Act is a cognizable, non-bailable offence which attracts the twin conditions for grant of bail as mandated by Section 212(6) of the Companies Act and punishable for upto 10 years and liable to fine of three times of the amount. It was therefore submitted, that at this stage there were chances of petitioner absconding, if she was allowed to travel abroad, and would run the risk of her evading trial in the Indian Courts. More so, since she has business interests outside India, and funds had been parked with companies in Dubai and that she may be summoned any time soon post approval of SFIO report, she may be a flight risk.
10. Learned counsel for the petitioner, however, contended in Signature Not Verified Digitally Signed By:ANISH DAYAL support of the plea that there were only seven cases in Mumbai against the father of the petitioner. The petitioner was co-accused in only one case and that too through a supplementary charge-sheet. Moreover, she had been permitted by the Hon'ble High Court of Bombay to travel abroad for a period of 8 weeks from 14th May, 2023 onwards. Further, Section 212(6) of the Companies Act did not apply to a woman and she can be released on bail since a special exception is carved out. Attention was drawn to OM dated 27th October, 2010 per which LOC was issued and in particular to the fact that LOCs should be issued where accused were deliberately evading arrest or not appearing in the Trial Court despite NBWs or there was a likelihood of the accused leaving the country. As per the petitioner considering that none of these grounds were made out, the LOC itself was illegal and, therefore, permission as sought in the interim ought be granted.
11. Responding to SFIO's submission that the investigation is now complete and the report is up for approval of the Central Government and if permission would be granted, the matter would be placed before the competent Court and summons may be issued, learned counsel for the petitioner contended that these were all speculative and at this stage it was merely enough that the investigation was complete and, therefore, the petitioner was not required for any further interrogation. Reference was drawn to the decision of this Court in Sumer Singh Salkan, 2010 SCC OnLine Del 2699 where this Court had held that recourse to an LOC can be taken only when an accused was deliberately evading arrest or not appearing in Trial Court despite NBWs or there was a likelihood of the accused leaving the country to evade trial or arrest.
12. Further, attention was drawn to the fact that the petitioner had duly Signature Not Verified Digitally Signed By:ANISH DAYAL responded promptly to the notices dated 08th December, 2022, 19th December, 2022 and 11th October, 2022 issued by the SFIO seeking information. Information regarding the three issues of the HSBC account, Green Foods Restaurant and RAK Bank had been specifically given and reference was drawn to email dated 15th February, 2023. In any case, as per the learned counsel for the petitioner, this bogey of lack of cooperation was irrelevant since the petitioner had a constitutional right not to self incriminate herself as per Article 20(3) of the Constitution of India and, therefore, if there was any further information that was not possible for the petitioner to provide, it was incumbent upon the investigating agency to procure the same through official channels.
13. Further, an email of 24th August, 2022 had also been noted stating that since her accounts had been shut-down she did not have an access to the accounts and she was only able to provide a bank closure letter for the HSBC account. Reliance was placed on decisions of this Court in Deepak Jha v. State, Bail Appn. 2633/2022 decision dated 06th February, 2023 where it had been noted that Section 212(6) of the Companies Act would not apply to a case where the IO had never sought police custody of the accused and had not asked the accused to be remanded to custody after cognizance was taken. Reliance was also placed on Shreya Jha v. CBI, 2007 (3) JCC 2318 where this Court had stated just because the main accused was the father of the petitioner therein, it was insufficient to drawn inference of grave suspicion of such a nature as to warrant charges against the daughter.
14. The learned counsel for the SFIO distinguished this decision by stating that this was not an LOC matter and that the issue herein in this case was where the petitioner was directly implicated pursuant to a vast and Signature Not Verified Digitally Signed By:ANISH DAYAL complex investigation which had revealed collecting of public money, layering of accounts and siphoning of funds. No prejudice was being caused to the petitioner by continuing to be in India, particularly, when there was a possibility of cognizance being taken in the recent future post approval by the Central Government. Though, it was admitted by the learned counsel for the petitioner that the husband of the petitioner had his residence in Calcutta and an Indian Passport, it was stated that he was a Non Resident Indian.
15. Pursuant to an assessment of these respective contentions of the parties, this Court is of the considered opinion that the petitioner's plea for travelling to Dubai at this stage cannot be granted inter alia for the following reasons: firstly, that the ground on which permission was granted by the Court on 01st June, 2022 cannot be taken as a carte blanche for subsequent permissions. The permission to travel at this stage has to be seen in the light of facts and circumstances which exist as of today. As also there was a specific mandate given by the Court then (in June 2022) to procure the details of various bank accounts by the petitioner; secondly, there are serious allegations made relating to collection of public funds and layering of accounts through complex corporate structures and siphoning of funds, including such funds being utilized for entities in Dubai. In this circumstance to allow the petitioner to travel to Dubai, particular, when the petitioner could possibly be summoned would not be prudent; thirdly, the petitioner got married in Bombay to an Indian passport holder who has a residence in Calcutta and, therefore, no prejudice would be caused if she is not permitted to travel at this stage and continues her residence in India; fourthly, considering that the validity of the LOC is still pending Signature Not Verified Digitally Signed By:ANISH DAYAL adjudication by this Court, and the reasons and guidelines as mandated by the Central Government and various decisions of the Court are still to be assessed, the contention of the petitioner that permission in the interim ought to be granted on the basis of an illegal and invalid LOC cannot be accepted at this stage; fifthly, all arguments relating to Section 212(6) of the Companies Act, summoning and eventual bail are not relevant at the stage. Even if bail is granted in a similar situation to a similarly placed accused, it is always possible that it is granted with conditions inter alia of not to travel out of the country until trial is underway. This is usually done to secure presence of the accused at trial.
16. The petitioner may be required to present herself before the trial court in the eventuality of being summoned and at this stage, permission for her to go abroad cannot be allowed on a holistic assessment of all facts and circumstances adverted to above.
17. For the aforesaid reasons, the said application is dismissed at this stage and liberty to the petitioner to file afresh on the basis of any subsequent developments in the matter, if so desired and necessitated, is granted.
W.P.(CRL) 612/2022
1. List on 29th August 2023.
2. Order be uploaded on the website of this Court.
ANISH DAYAL, J.
APRIL 25, 2023/MK Signature Not Verified Digitally Signed By:ANISH DAYAL