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Applications under Section 438 of the Code of Criminal Procedure.

2. These bail applications arise out of three crimes registered in different Police Stations. Some of the accused are common to all the crimes. In two crimes, the defacto complainant is the same. One crime is initiated at the instance of another. For clarity, I shall narrate the relevant facts in each case separately hereunder.

3. Crime No.1840 of 2015 registered by the Thrissur East Police Station is in respect of offences punishable under Sections 420, 465, 467, 468 and 408 read with Section 34 of the Indian Penal Code (in short, "IPC"). The accused 1 and 2 and the defacto complainant along with others are the Directors of a company by name Punarjani Securities Ltd. It is the allegation that the accused 1 and 2 withdrew `35 lakhs and `30 lakhs respectively without the knowledge and consent of Director Board of the company, they fabricated the seal of the Indian Consulate at Dubai and forged the signature of the Vice Consul on a proxy form in an election to the post of Directors of the company. Fake proxies were submitted on  15.06.2015 and 16.06.2015 before the authorities in spite of warning by the independent Chairman appointed by the Company Law Board (CLB), where certain disputes between the Directors are pending. The accused used the concocted and falsely created proxies in the election. They thereby are liable to be punished under the aforementioned provisions.

16. Companies Act, 2013 (in short, "the Act") and the Rules thereunder are relevant for our purpose. Section 104 corresponding to Section 175 of the 1956 Act deals with the election to the post of Chairman of the company. Section 105 of the Act says that any member of a company entitled to attend and vote at a meeting of the company shall be entitled to appoint another person as proxy to attend and vote at the meeting on his behalf. Section 105(2) of the Act prescribes that every notice calling a meeting of the company recognizing the voting by proxy at the meeting shall with reasonable prominence show a statement that a member entitled to attend and vote is entitled to appoint a proxy or more proxies, as the case may be. Sub-Section (6) of the Section says that the instrument appointing a proxy shall be in writing and be signed by the appointer or his attorney duly authorised in writing. Nowhere it is mentioned that the proxies are to be attested any authority. However, in this case, since some of the shareholders reside abroad, they decided to get it attested from the Consulate. There the allegation of forgery comes out. Rule 18 of the Companies (Management and Administration) Rules, 2014 deals with issuance of notice of the meeting. Rule 19 of the same Rules is also relevant. The proxy form is given in the Rules as Form No.MGT-11. On a perusal of the form, it can be seen that there also no prescription for attestation is made. Sections 156 and 157 of the Act deals with furnishing  of details of DIN to the Registrar of Companies. Rule 9 of the Companies (Appointment and Qualification of Directors) Rules, 2014 and Form No.DIR-3 are also relevant in the context of the contention that the defacto complainant and some other Directors suppressed their NRI status and obtained DIN from the authorities. That is one of the causes of action for taking up the matter to the CLB.

17. Shri S.Sreekumar, learned Senior Counsel contended that neither Dr.A.C.Velayudhan nor Dr.V.G.Suresh or any other person was directly responsible for causing attestation of the proxies by Vice Consul, Consulate General of India, Dubai. So much so, they are not responsible for any fraudulent attestation, if at all it had been done by anyone. They merely heeded to the request of the shareholders to act as proxies in the election. It is also contended that they have not seen the process of attestation by the Vice Consul as the prosecution has no case that they had gone to Dubai to procure the fabricated proxies. In answer to this contention, learned DGP contended that whether the persons who used the proxies in spite of warning by the independent Chairman had gone to Dubai to procure the proxies is a matter for investigation. Shri S.Sreekumar, learned Senior Counsel further contended that the purpose of appointing a proxy is to effectuate the voting right of a shareholder who finds it inconvenient to personally attend an election. It is further  contended that it may be idle to think that the accused persons had gone to Dubai for getting the proxies attested, as normally it will be the look out of the shareholder who appoints the proxy to get it attested. The disputed proxy forms have been produced for scrutiny. It is seen that 15 proxy forms purported to be attested by the Vice Consul, Consulate General of India, Dubai are in the name of Shri Nikhil T.S., Dr.V.G.Suresh and Dr.A.C.Velayudhan. On a close scrutiny of the proxy forms, it can be seen that they contain signature of the shareholder and signature of the proxy holder. It appears from the proxy forms that the person who attested the same has purportedly attested both the signatures, ie., that of the shareholder and the proxy holder. The disputed proxies bear different dates. Before using the proxies, the independent Chairman appointed by the CLB had given following warnings to Dr.A.C.Velayudhan, Dr.V.G.Suresh and other proxies. The exact words of caution by the independent Chairman are quoted hereunder:

18. Learned DGP further contended that the investigating agency has reached upto certain e-mails whereby some shareholders residing in Dubai have understood about creation of forged signature and seal of Vice Consul, Indian Embassy, Dubai and they decided to come down to Kerala for casting vote in the election, disregarding the proxies said to have been got attested by Shri Vijay, Genious Attestations, P.O.Box 70192, Suit No.546, 5th Floor, Damas Building, Burj 2000, Sharjah. Learned DGP therefore contended that the warning given by the independent Chairman to all the shareholders had been taken by many of them very seriously, except some of the accused persons. It is also contended that the accused persons, who were put to notice of forgery, have used forged proxies for casting vote in utter defiance of the warning given by the independent Chairman. In answer to this argument, learned Senior Counsel appearing for the petitioners contended that as per Annexure-X minutes of the  meeting produced along with the statement of the first petitioner dated 16.10.2015, it could be seen that the independent Chairman permitted Dr.A.C.Velayudhan, Dr.V.G.Suresh and other proxy holders to vote subject to the issue raised by the defacto complainant regarding the genuineness of the proxies. Annexure-X filed along with the statement of the first petitioner in B.A.No.5035 of 2015 dated 16.10.2015 shows that the minutes was in respect of a meeting held on 13.06.2015. Learned DGP and the learned counsel appearing for the defacto complainant contended that the minutes of the meeting presided over by the independent Chairman on 13.06.2015 underwent a drastic change as subsequently he gathered information that the proxies used by the accused were forged because the person who purported to have signed as Vice Consul had been transferred much before the so called attestation of the proxies. This information was promptly passed on to all the shareholders including the accused persons. That is why the independent Chairman put things in black and white warning accused persons of the consequences of using concocted and fabricated proxy forms for the election. In complete rejection of the warning, the accused chose to use the proxy forms and thereby incurred the criminal responsibility. It is also contended by the prosecution that they are criminally liable for creation of false proxies as the tenor of the proxies would show that they were present before the Officer at the time when it  was fraudulently created. When the proxies were produced at the time of election, the above extracted warning has been given to all the proxy holders by the independent Chairman. The accused persons who are educated and involved in a management tussle took the risk by themselves by using proxy forms shrouded by suspicion regarding their genuineness. As pointed out by the learned DGP, the accused may be aware about the fraudulent creation of proxies by using the forged seal and signature of Vice Consul of the Indian Consulate and as to who is in possession of the fake seal. It makes the situation very grave. On evaluation of the total facts and circumstances, I am of the view that the petitioners are not entitled to seek the extraordinary jurisdiction of this Court to get a pre-arrest bail.