Delhi High Court - Orders
Pawan Garg vs State Of Nct Delhi on 9 September, 2021
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~3 to 6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1673/2019
PAWAN GARG ..... Petitioner
Through: Mr. Mukul Gupta & Mr. Pramod Kumar
Dubey, Senior Advocates alongwith Mr. Hemant
Shah, Mr. Sumit Mishra, Mr. Deokant Tripathi,
Mr. Akshay Rana & Mr. Saurabh Pal, Advocates
Versus
STATE OF NCT DELHI ..... Respondent
Through: Ms. Neelam Sharma, APP for State with
Inspector Samarpal, P.S. EOW
Mr. Tanmaya Mehta, Advocate alongwith Mr.
Ravi Kapoor & Ms. Aditi Singhal, Advocates for
Complainant
+ BAIL APPLN. 2383/2019
SHASHI GARG ..... Petitioner
Through: Mr. Pramod Kumar Dubey, Senior
Advocate alongwith Mr. Hemant Shah, Mr. Sumit
Mishra, Mr. Deokant Tripathi, Mr. Akshay Rana
& Mr. Saurabh Pal, Advocates
Versus
STATE OF NCT DELHI ..... Respondent
Through: Ms. Neelam Sharma, APP for State with
Inspector Samarpal, P.S. EOW
Mr. Tanmaya Mehta, Advocate alongwith Mr.
Ravi Kapoor & Ms. Aditi Singhal, Advocates for
Complainant
+ BAIL APPLN. 2384/2019
GAURAV GUPTA ..... Petitioner
Through: Mr. Pramod Kumar Dubey, Senior
Advocate alongwith Mr. Hemant Shah, Mr. Sumit
Mishra, Mr. Deokant Tripathi, Mr. Akshay Rana
& Mr. Saurabh Pal, Advocates
Versus
STATE OF NCT DELHI ..... Respondent
Through: Ms. Neelam Sharma, APP for State with
Inspector Samarpal, P.S. EOW
Mr. Tanmaya Mehta, Advocate alongwith Mr.
Ravi Kapoor & Ms. Aditi Singhal, Advocates for
Complainant
+ BAIL APPLN. 2387/2019
ANUJ GARG ..... Petitioner
Through: Mr. Pramod Kumar Dubey, Senior
Advocate alongwith Mr. Hemant Shah, Mr. Sumit
Mishra, Mr. Deokant Tripathi, Mr. Akshay Rana
& Mr. Saurabh Pal, Advocates
Versus
STATE OF NCT DELHI ..... Respondent
Through: Ms. Neelam Sharma, APP for State with
Inspector Samarpal, P.S. EOW
Mr. Tanmaya Mehta, Advocate alongwith Mr.
Ravi Kapoor & Ms. Aditi Singhal, Advocates for
Complainant
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
(VIA VIDEO CONFERENCING)
ORDER
% 09.09.2021
1. Vide this common order, the bail applications are taken up for hearing.
2. The present bail applications have been filed under Section 438 Cr.P.C. read with Section 482 Cr.P.C. on behalf of the applicants seeking anticipatory bail in FIR No. 205/2013 registered under Sections 420/468/471/120-B IPC and Sections 66A/66C of the IT Act, 2000 at Police Station Economic Offences Wing, Delhi.
3. Mr. Mukul Gupta, learned Senior Counsel for the applicant submits that the present FIR was registered in the year 2013 on the basis of the complaint dated 24.09.2013 but a perusal would show that the complaints were given earlier also including supplementary complaint dated 14.11.2011, however, no FIR was registered for the period of two years. He submits that prior to the registration of the FIR, the parties were known to each other and had business relationship as the complainant Ashok Jain and his wife Meena Jain were having their equity trading accounts with CPR Capital Services Limited which is a sister concern of CPR Commodities Private Limited belonging to the applicant. In the year 2009, the complainant and his wife had also interest in having trading accounts with M/s CPR Commodities Services Private Limited as their earlier broker M/s IP Commodities Pvt. Ltd. was winding up its business. It is further submitted that on such a request made by the complainant & his wife, the requisite Client Registration Forms were filled up. The complainant and his wife made investments of over Rs.5.90 Crores on which initially, an amount of Rs.20-25 lakhs was received by them towards profit. However, subsequently when the losses occurred, the complainant mischievously denied opening any accounts and filed the present complaint.
4. Learned Senior Counsel for the applicant further submits that in pursuance of filling up of the Client Registration Forms, two trading accounts were opened with Unique Client Code (UCC) KB-32 and KB-34 on 13.03.2009. It is also submitted that during investigation the aforesaid forms were sent to the FSL and out of the 29 signatures, 15 signatures have been matched with the sample signatures.
It is submitted that the applicant's company M/s CPR Commodities Pvt Ltd. also instituted arbitration proceedings against the complainant on 29.09.2011 claiming a sum of Rs.1,85,02,182.98/-. It was claimed that the applicant had entered into an electronic contract of trading on behalf of the complainant and the contract notes in this regard were duly sent to complainant by way of E-mail as well as SMS on his mobile number which were mentioned in the aforementioned Forms. The complainant had issued three cheques for the sum of Rs.50 lakhs each towards his liability, which on presentation got dishonoured, resulting in filing of proceedings under Section 138 of the NI Act against the complainant. It was claimed that in all, the above noted sum had become payable by the complainant to the applicant. The complainant took a stand that the aforesaid cheques were issued as loan. The attention of the Court was also invited to the Income Tax Returns filed by the complainant and his wife wherein, losses to the tune of Rs.27,54,230/- and Rs.60,15,795/- were shown by him for the assessment years 2009-10 and 2010-11 respectively. An FIR bearing No. 0357/2017 registered under Sections 420/406/506 IPC at Police Station Sahibabad is also stated to have been filed by the applicant's company against the complainant.
5. On behalf of the applicant, it is also submitted that the allegation with respect to forgery of E-mails are falsified by the fact that the complainants themselves have also logged in these E-mails accounts which is substantiated by the FSL report.
6. Lastly, it was submitted that since the year 2013 the applicant has joined the investigation on more than 30 occasions and no purpose would be served by sending the applicant in custody as the entire evidence is documentary in nature.
7. Mr. Pramod Dubey, learned Senior Counsel while adopting the submissions of Mr. Gupta on merits for the applicant Anuj Garg has additionally submitted that Shashi Garg, though holding the position of a Director is a house wife and no averments have been made against her as well as the applicant Gaurav Gupta.
8. Ms. Neelam Sharma, learned APP for the State duly assisted by Mr. Tanmay Mehta, learned counsel for the complainant has vehemently opposed the bail applications. It is submitted that the applicant, Pawan Garg in connivance with the other applicants without any authorization from the complainant and his wife not only opened their E-mail accounts, but also entered into trading on their behalf for which no intimation was ever sent to them. It is submitted that the alleged E-mail addresses [email protected] and [email protected] that were claimed to be opened in their name were rather forged by the applicants and even otherwise, though the applicant's company claimed to have entered into a total of 160 trading contracts on behalf of the complainant and his wife but intimation of only 19 was allegedly sent. It is claimed that no intimation was ever received by the complainant on his genuine E-mail account. It is also submitted that as per the FSL report, at 14 places out of 29, the signatures of the complainant and his wife have not matched on the Client Registration Form. Insofar, applicant's contention with respect to accessing of E-mail accounts by the complainant is concerned, it is submitted that the E-mail accounts were accessed by the complainant only after the present dispute arose. It is also submitted that during investigation, the details of E-mail accounts were obtained from the service provider Rediffmail. As per the reply received, though the E-mail IDs were created on 15.02.2008 but the same found mentioned on the Client Registration Form which was stated to be filled up on 28.01.2008. It is also submitted that while creating the alleged E-mail accounts, the alternate E-mail ID used was that of CPR Capital i.e., [email protected].
9. Learned APP further submitted that the applicant has misappropriated a total amount of Rs.6.50 Crores including the amount of Rs.5.90 Crores which was initially invested. It is also stated that prior to making the investment of Rs.5.90 Crores, the applicant offered the complainant share capital in his Company. The complainant and his wife paid the share application money through their listed company i.e., M/s Oracle Credit Limited in which they were Directors and an amount of Rs.80 lakhs was paid for the aforesaid purpose. Insofar as the arbitration proceedings pending between the parties is concerned, it is stated that the award against the complainant was an ex-parte award which has been challenged.
10. It is also submitted that SEBI/FMC/MCX had also conducted inquiry into the affairs of the applicant's company. In 2014, FMC (Forward Markets Commission) ordered MCX (Multi Commodity Exchange of India Limited to carry out forensic audit of the books of accounts of the applicant's company i.e., M/s CPR Commodities Services Pvt. Ltd. with respect to the complaints made by the complainant regarding the irregularities in their accounts. In the Forensic Audit Report, shortcomings were noted. It was observed that certain sections of the Client Registration Forms of M/s CPR Commodities Services Pvt. Ltd. have not been signed by the complainant and his wife and the details of trades entered into on their behalf were not communicated to them. Lastly, it is submitted that the applicant Pawan Garg is also found involved in five other cases.
11. In rebuttal, learned Senior Counsel for the applicant has referred to the reply filed in response to the Status Report. Reliance was placed on the SMS messages exchanged between the applicant and the complainant as well as on the payments transferred by M/s CPR Commodities Services Pvt. Ltd. in the complainant's account on 15.09.2009 and 09.02.2010 for the amount of Rs.10 lakhs and Rs. 15 lakhs respectively. It is also submitted that there were multiple transactions between M/s CPR Commodities Services Pvt. Ltd. and M/s Oracle Credit Limited, where an amount of Rs.3.61 Crores stands paid. It is also submitted that the other FIRs mentioned in the Status Report against the applicant Pawan Garg have either been closed or settled.
12. I have heard learned counsel for the parties and have also gone through the material placed on the record.
13. The bone of contention between the parties is whether the trading contracts entered into by the applicant's company were under the instructions and authorisation of the complainant and his wife.
14. The applicant Pawan Garg is stated to be the Managing Director of M/s CPR Commodities Pvt. Ltd. The applicants, Shashi Garg & Gaurav Gupta were Directors at the relevant time and no specific averment has been made against them. With respect to the applicant Anuj Garg, it has been stated that he is the nephew of the applicant Pawan Garg and he was also a Director in the Company at the relevant time and verified the forged signatures of the complainant and his wife on the Client Registration Forms and also signed the contract notes.
15. The transactions in the present case relates to the year 2009-2010 when the complainant and his wife are stated to have invested an amount of Rs.5.90 Crores from September, 2009 to November, 2010. Admittedly, the complainant and his wife have received an amount of Rs.25 lakhs on 15.09.2009 and 09.02.2010. It has also come in the investigation by way of the FSL report that the complainant's and his wife signatures have been found to be matching at 15 places.
16. It is surprising that though the FIR is of the year 2013 but the investigation till date has not been completed. The entire evidence is documentary in nature. It is an admitted position between the parties that except for the arbitration proceedings instituted by the applicant's company no proceedings for recovery have been instituted by the complainant against the applicant.
17 The applicants have stated to join the investigation not only earlier but also on interim protection being granted by this Court vide orders dated 10.07.2019 and 20.09.2019 on more than 30 occasions.
18. Keeping in view the aforesaid facts and circumstances, the interim protection granted to the applicants vide orders dated 10.07.2019 and 20.09.2019 are made absolute and it is directed that in the event of arrest, the applicants be released on anticipatory bail, subject to them furnishing a personal bond in the sum of Rs.50,000/- each with one surety each in the like amount to the satisfaction of the concerned Investigating Officer/SHO/Arresting Officer and subject to the following further conditions:-
i) The applicants shall remain available on mobile numbers:
9810014521 (Pawan Garg), 9810014531 (Shashi Garg), 9810005702 (Gaurav Gupta) and 9910124580 (Anuj Garg) respectively, which they undertake to keep operational at all times during the period of trial.
ii) The applicants shall not leave the NCT of Delhi without prior intimation to the Investigating Officer.
iii) The applicants shall not directly/indirectly try to get in touch with the complainant or any other prosecution witnesses or tamper with the evidence.
iv) The applicants shall join the investigation and cooperate in the same, as and when they are directed to do so by the Investigating Officer.
v) In case of change of residential address/contact details, the applicants shall promptly inform the same to the concerned Investigating Officer/SHO.
vi) The applicants shall regularly appear before the Trial Court as and when the charge sheet is filed against them.
19. The bail applications are disposed of in the above terms.
20. Copy of this order be uploaded on the website forthwith.
21. Needless to state that nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case.
MANOJ KUMAR OHRI, J SEPTEMBER 9, 2021 p'ma Click here to check corrigendum, if any