Bombay High Court
Ashok Kumar Joshi And Ors vs The State Of Maharashtra on 29 November, 2018
Author: A.S. Gadkari
Bench: A. S. Gadkari
ssm 1 904-aba254.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 254 OF 2018
Ashok Kumar Joshi & Ors. ....Applicants.
Vs.
The State of Maharashtra ....Respondent.
WITH
ANTICIPATORY BAIL APPLICATION NO. 253 OF 2018
Vijay Bhandari & Ors. ....Applicants.
Vs.
The State of Maharashtra ....Respondent.
Mr. P.K. Dhakephalkar, Sr. Counsel i/by Mr. K.S. Garg for the
Applicants in ABA No. 254 of 2018.
Mr. P.K. Dhakephalkar, I/by Mr. Pawan Mali for the Applicants in ABA
No. 253 of 2018.
Ms. Rutuja Ambekar APP, for the Respondent-State.
CORAM : A. S. GADKARI, J.
DATE : 29th NOVEMBER, 2018.
P.C.:-
These are the Applications under Section 438 of the Code of Criminal Procedure for pre-arrest bail in CR No. 667 of 2017 dated 26th October, 2017 originally registered with Juhu Police Station, Mumbai and now being investigated by EOW, Unit 9, Mumbai having 1/8 ::: Uploaded on - 07/12/2018 ::: Downloaded on - 30/12/2018 11:07:00 ::: ssm 2 904-aba254.18.doc re-numbered as CR No. 82 of 2017 under Sections 409 and 120(b) of the Indian Penal Code.
2 Heard Shri. Dhakephalkar, the learned Senior Counsel appearing for the Applicants and the learned APP. Perused the record of investigation.
By an order dated 9th February 2018, the Applicants were granted interim relief and were directed to attend the Investigating Officer on stipulated dates and to join the process of investigation. 3 The first information report is lodged by Shri Prasad P. Chavan, an Officer/Executive employed with M/s. Fidelity Multitrade Private Limited, in pursuance of resolution dated 25 th September, 2017, passed by the said company authorizing him to file the present Complaint.
It is stated that, the said M/s. Fidelity Multitrade Private Limited is a share holder of M/s. Golden Tobaco Limited (M/s. GTL) holding 553865 shares of the said company. M/s. GTL is a public limited company incorporated under the Companies Act, 1956 having the Applicants as its Directors. That, M/s. Golden Reality and Infrastructures Limited (M/s. GR&IL) is a 100% subsidiary of M/s. 2/8 ::: Uploaded on - 07/12/2018 ::: Downloaded on - 30/12/2018 11:07:00 :::
ssm 3 904-aba254.18.doc GTL. The Applicants are also the Directors of the said M/s. GR&IL. It is further stated that, M/s. WGF Financial Services Limited, M/s. Cross Investments Private Limited, M/s. Dalmia Finance Limited and M/s. Ilac Investment Private Limited are subsidiaries/related entities of M/s. GTL. That, in pursuance of an Arbitration Award dated 21 st October, 1996, the afore-stated four companies acquired a land at Village Chhaterpur, New Delhi admeasuring approximately 19.26 acres. That, subsequently, by an agreement of sale dated 28 th March, 2008, M/s. GTL acquired the shares of M/s. WGF Financial Services Limited and M/s. Ilac Investment Private Limited (total 60.20% = 11.59 Acres) of the said land for a total consideration of Rs.40 crores. Out of which, M/s. GTL paid Rs.33.50 crores to M/s. Ilac Investment Private Limited.
It is further stated that, bypassing the agreement dated 28th March, 2008, M/s. GR&IL executed a development agreement with M/s. WGF Financial Services Limited (including and on behalf of its partners M/s. Cross Investments Private Limited, M/s. Dalmia Finance Limited and M/s. Ilac Investment Private Limited), on 13 th August, 2018 in respect of afore-stated property. By the said agreement M/s. GR&IL acquired development rights of the said 3/8 ::: Uploaded on - 07/12/2018 ::: Downloaded on - 30/12/2018 11:07:00 ::: ssm 4 904-aba254.18.doc property for consideration of Rs.385 crores along with 50% shares of the developed area. That, in the year 2008, M/s. GTL had purchased 60% of the shares of the said property for consideration of Rs. 40 crores and as per the informant, it means that, at the time the entire property was worth approximately Rs. 67 crores and therefore, subsequently after just 2 years, i.e. in the year 2010, M/s. GTL, through its subsidiary company i.e. M/s. GR&IL purchased development rights in respect of the same property for a whooping consideration of Rs.385 Crores plus 50% of the shares of the developed area. That M/s. GR&IL availed a loan of Rs.200 crores from M/s. Indiabulls in financial the 2011-12 for making payment to M/s. WGF Financial Services Limited and the remaining amount out of Rs.376.21 crores i.e. Rs.175.85 crores was paid by M/s. GTL.
It is stated that, the development work of the said project never started and subsequently M/s. GR&IL received back a sum of Rs.105.76 crores, out of which it returned Rs.11.29 crores to M/s. GTL. It is alleged that, the said transactions clearly show that, under the garb of sham development agreement dated 13 th August 2010, the then office bearers of M/s. GTL and M/s. GR&IL, in connivance with the then office bearers of M/s. WGF Financial Services Limited, M/s. 4/8 ::: Uploaded on - 07/12/2018 ::: Downloaded on - 30/12/2018 11:07:00 :::
ssm 5 904-aba254.18.doc Cross Investments Private Limited, M/s. Dalmia Finance Limited and M/s.Ilac Investment Private Limited have misappropriated the company funds of M/s. GTL to the tune of approximately Rs.376 Crores causing loss to the Company and its share-holders including the company of the first informant. In the premise, the present offence under Sections 409 and 120(b) of the Indian Penal Code is registered.
4 Mr. Dhakephalkar, the learned Counsel appearing for the Applicants submitted that, the complainant became share-holders of M/s. GTL on 24th December 2010. That, the accounts of the company namely M/s. GTL have been audited by a statutory auditor in every financial year and the same were placed before the General Body of the share-holders, which has ratified and accepted it. He further submitted that, the present complaint smacks with malafide, as the complainant company is acting at the behest of M/s. Sheth Developers Private Limited, who are interested in an immovable property owned by M/s. GTL situated at Andheri. That, there are certain civil litigations inter-se between the said two parties pending before various Courts. That, in a Suit filed by Mr. Pramod Jain against M/s. GTL for a direction that M/s. GTL be injuncted from entering into a 5/8 ::: Uploaded on - 07/12/2018 ::: Downloaded on - 30/12/2018 11:07:00 ::: ssm 6 904-aba254.18.doc development agreement with M/s. Sheth Developers Private Limited, pertaining to the said property, the complainant M/s. Fidelity Multitrade Private Limited has filed intervention Application. He further submitted that, in Civil Appeal No.5038 of 2016 the Hon'ble, the Supreme Court in its Judgment dated 12 th May, 2016, in para 34 has observed that, M/s. Sheth Developers Private Limited have been precluded from intervening in the said Appeal. He lastly submitted that, the complainant M/s. Fidelity Multitrade Private Limited is prompted by M/s. Sheth Developers Private Limited to lodge the present crime with a view to pressurize the Applicants to either surrender or settle the dispute pertaining to the immovable property situated at Andheri, owned by M/s. GTL.
5 Perusal of the record indicates that, the Applicant Mr. Ashok Kumar Joshi is aged about 60 years, Applicant Mr. Bharat B. Merchant is aged about 69 years and it is informed that, he has undergone a life saving surgery and is recuperating from the same, Applicant Mr. Vijay Bhandari is aged about 74 years and Applicant Mrs. Kokila Panchal is aged about 69 years. The said Applicants are Senior Citizens.
6 The record indicates that, in pursuance of the directions 6/8 ::: Uploaded on - 07/12/2018 ::: Downloaded on - 30/12/2018 11:07:00 ::: ssm 7 904-aba254.18.doc
issued by this Court on 9th February 2018, the Applicants have attended the Investigating Officer and have submitted all the necessary documents which were in their possession. A perusal of the first information report would prima facie indicate that, it is difficult to hold at this stage that, Section 409 of the Indian Penal Code is attracted to the present crime, in view of the facts mentioned by the first informant. The first informant has not given explanation as to how after receiving back a sum of Rs.105.76 crores by M/s. GR&IL out of approximately Rs.376 crores, again an amount of Rs.376 crores has been misappropriated or the loss of that amount has been suffered by M/s. GTL.
7 While answering a query put by this Court to the learned APP, the learned APP on instructions from the Investigating Officer, who is personally present in the Court, submitted that the Forensic Audit of the said Company is still being conducted and at this stage, it cannot be assertively stated that the said Company has suffered any losses. The record further indicates that, the audited accounts of M/s. GTL were placed before the General Body of share-holders after the end of each financial year and the general body, has accepted/ratified the said accounts.
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ssm 8 904-aba254.18.doc 8 In view of the same, I, prima facie, find substance in the
submission made by the learned Senior Counsel appearing for the Applicants that, the present complaint filed by M/s. Fidelity Multitrade Private Limited smacks with malafide. 9 In view of the above, the Applicants deserve to be protected by pre-arrest bail. Interim relief granted by an Order dated 9th February 2018 is hereby confirmed. However, the condition to attend the Investigating Officer is waived.
10 Applications are allowed in the aforesaid terms.
(A.S. GADKARI, J.) 8/8 ::: Uploaded on - 07/12/2018 ::: Downloaded on - 30/12/2018 11:07:00 :::