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14. In this connection only on 30/09/2018 the Union of India through its Ministry of Corporate Affairs appointed inspectors with the Director SFIO to inquire into the affairs of the company namely Infrastructure Leasing and Financial Services Limited and its subsidiary companies. The inspectors were given time of three months to submit the report to Central Government.

15. The SFIO accordingly submitted a report which was looked into by the Union of India, Ministry of Corporate Affairs (MCA) and on 29/5/2019 in exercise of the powers available to it under section 212 (14) of the Companies Act, 2013, it directed the SFIO and Regional Director (Western Region) to proceed further. This communication recommends prosecution of petitioners under various provisions and SFIO has been directed to file a complaint by next day i.e. 30/05/2019 without fail and to submit the compliance report. This order has been questioned on the ground that the report which runs into more than 750 pages & has annexures running into 32,000 pages, has been alleged to be examined in about 30 hours by Union of India and filing of prosecution has been ordered. Petitioners submit that this shows non application of mind. It is also contended that the report submitted by SFIO was not a final report but an interim report and as such prosecution cannot be filed on its strength.

107-- While dealing with the submission that the first respondents could not have on 29/05/2019 directed SFIO to initiate prosecution under section 212(14) of the Companies Act, 2013, he submits that the act of respondents in using the words "interim report" while describing the report of SFIO is legally irrelevant since it is not interim report at all as envisaged under section 212(11). He argues that reliance placed upon the judgment reported at (1974) 1 SCC 242- Nagindas Ramdas vs. Dalpatram Ichharam, by the petitioners is erroneous since here the nomenclature and status of the report is decided by section 212(11). He has drawn our attention to the fact that along with the reply, copy of one more SFIO report on financial affairs has been filed and there it has been expressly described as interim report. It also mentions direction of Central Government with reference to which said report came to be filed. As against this the report which forms subject matter of the challenge before this court, nowhere describes itself as interim report and it has not been submitted in furtherance of any direction of Central Government as required by section 212(11) of the Companies Act, 2013. Thus act of parties loosely describing that report as interim report does not make it an interim or an incomplete report. It is a final report and on its basis, action has been rightly taken. According to him, the letter written by the first respondent on 30/05/2019 directing SFIO to initiate prosecution against officers/persons mentioned therein, therefore, cannot be faulted with on this ground.

113-- To explain the status of office of SFIO, learned advocate has relied upon (2019) 5 SCC 266 : Serious Fraud Investigation Office Vs. Rahul Modi and another. He submits that the SFIO headed by Director is a compact and complete unit consisting of experts in different fields/domains. He relies upon paragraphs 28 and 29 of the said judgment for this purpose. He also draws support from use of the word "assigned" in section 212(3) to explain that the other investigating agencies are completely denuded of any power to conduct the investigation in respect of the offences mentioned in this section. He supports the arguments of the learned senior counsel Mr. Chinoy that the SFIO has not described his report as an interim report. He adds that the status of the report as interim report will have to be determined with reference to direction in section 212(11) and as there is no such direction of Central Government, the report submitted on 29/05/2019 cannot be seen as an interim report. According to him, it is a final report which is complete in all respects. He states that there are various transactions with other companies and cross linkages which need to be looked into, and a separate report in relation to said connections can be filed after the investigation into their affairs. 114--- Learned advocate has invited our attention to his brief written note on point no. 4 to contend that the report dated 28/5/2019 is complete and it is in relation to IFIN only. He placed heavy reliance on certain paragraphs in the said report for this purposes. He further adds that this report has been prepared on "stand alone" basis and needs to be appreciated accordingly. Learned counsel states that the effort to demonstrate that the report is interim or incomplete, cannot succeed. Nine points identified by investigation in paragraph 1 and 4 of the said report are also read out to the court. 115--- In this backdrop, he submits that the said report is not under section 173 of Cr.P.C. and the deeming fiction under section 212(15) in 2013 Act is only for the limited purpose i.e. for the purposes of framing of the charge. This limited fiction cannot be enlarged further. He draws support from (1998) 6 SCC 183 : State Bank of India Vs. D. Hanumantha Rao and another paragraph 5.

120--- With the leave of the court, senior advocate Mr. Chinoy submitted that the contention about the accused requiring to disclose his defence in the enquiry under section 140(5) of 2013 Act and suffering a prejudice in trial, is misconceived. He relies upon (1981) 2 SCC 277 : Capt. Dushyant Somal Vs. Smt. Sushma Somal and another, paragraphs 1, 2 and 5 thereof.

121----- Advocate Khambata has in rejoinder submitted that the efforts made by the petitioner BSR to procure the directions under section 212(14) have not succeeded and despite directions of this Court, the SFIO has not filed any affidavit asserting that his report is a final report. The assertion of the petitioner on oath therefore has not been rebutted. He submits that the negligence even of the highest degree does not tantamount to fraud under section 447 of 2013 Act and this aspect has been lost sight by SFIO as also by the Central Government. Petitioner, therefore, demanded email dated 07/03/2019 but it has not been supplied. Hence, the adverse inference that it contains direction of central Government to SFIO as per section 212(11) needs to be drawn. He relies upon (1973) 3 SCC 581 : Union of India and Ors. Vs. Messrs. Rai Singh Dev Singh Bist and Ors (paragraph 6). 122--- He also reads out certain portions of the said report to show that the report itself points out need for the further investigation. There is express observation to that effect and respondents have not filed any reply on oath to urge that the said investigation has not been undertaken. According to him there is no scope in the scheme of section 212 for such further investigation. If it is a further investigation, the report dated 28/05/2018 is not a complete report under section 212 (12) of 2013 Act.