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11.1. The main promoters/alleged beneficiaries in the matter are enjoying interim protection and have been chargesheeted without arrest:

11.1.1. The main promoters of the ESL including the MD/CEO Shantanu Prakash, Whole-Time Director/Chairman Jagdish Prakash and Whole-Time Director Vinod Kumar Dandona were all granted interim protection by a Co-ordinate Bench of this court vide order dated 26.05.2022 in W.P. (Crl) 1242/2022. The interim protection is operative till 2023:DHC:2994 date. No proceedings have been filed by the SFIO to challenge the interim protection so granted. 11.1.2. The above-named main promoters/key managerial personnel, who are the main beneficiaries of the alleged fraud as per SFIO‟s own case, along with 53 other individuals who have been assigned a greater role than the petitioner by the SFIO, were all chargesheeted without arrest. Several other persons who held key managerial positions in the Educomp Group and are prima-facie complicit in the alleged fraud, were not even made accused in the investigation. However, the SFIO chose to arrest only the petitioner and one co-accused Dr. Bindu Rana, who (latter) was subsequently admitted to bail by a Co-ordinate Bench of this court vide order dated 20.01.2023.

13. Arguing on behalf of SFIO, Mr Ajay Digpaul, learned CGSC has opposed the grant of bail. Based on the charges placed in the SFIO complaint filed before the learned Special Judge, on the oral submissions made by learned CGSC and the written submissions filed in the matter, the following may be summarised as the key points raised on behalf of the SFIO :

2023:DHC:2994 13.5. As for the allegation of commission of fraud by divesting the shares in Vidya Mandir Classes Ltd. („VMC‟), the SFIO says that it was the petitioner‟s duty to ensure that the implementation of CDR is done in a manner which served the best interests of ESL; and also that the petitioner being CFO was responsible for managing the finances of ESL and had also attended the Joint Lenders Meeting for CDR. Despite the availability of a higher offer from Resonance (another company that was interested in acquiring VMC), that offer was rejected by the management of ESL and instead, a paper company i.e., KBESPL was used to acquire the shares of VMC, so that the control of VMC remained with Shantanu Prakash indirectly. 13.6. Similar is the allegation of commission of fraud in relation to the sale of Mussoorie International School („MIS‟), the allegation being that the petitioner was responsible for managing the finances of ESL, and had also attended the Joint Lenders Meeting for CDR, and was therefore well aware that money was siphoned-off to acquire MIS so that the control of MIS remained indirectly with Shantanu Prakash. 13.7. In response to the reliance placed by the petitioner on the bail granted to co-accused Bindu Rana by a Co-ordinate Bench of this court vide order dated 20.01.2023, the SFIO submits that the role of every accused has to be considered on its own merits; and no parity can be drawn between two co-accused. Is the SFIO‟s allegation that the petitioner has been involved in the fraud since the beginning, when money had started being siphoned-off to clear fictitious debts of ESSPL through the 2023:DHC:2994 OSN Group. On the other hand, Bindu Rana was associated with ESL in the capacity of a Research Head and has been implicated only in 3 charges; whereas the petitioner was the financial expert being CFO and was the „directing mind‟ along with Shantanu Prakash. The petitioner was also a direct beneficiary of Rs. 5.50 crore. Moreover, it is the SFIO‟s contention that Bindu Rana, being a woman, was entitled to the benefit of the proviso to section 212(6) of the 2013 Act, which she did get in the bail order passed in her favour. 13.8. Responding to the petitioner‟s contention that he was not the Group CFO, the SFIO draws attention to the Minutes of Meeting of the Board of Directors of EISML, a subsidiary of ESL, at which meeting he was designated as the Group CFO. It is pointed-out that the petitioner attended the said Board meeting. Furthermore, Manoj Kumar Garg, CFO of EISML, who was formerly an employee of ESL, has in various statements recorded on oath, said that he worked under the instructions of Group CFO i.e., Ashish Mittal. 13.9. In relation to the petitioner‟s contention that he only joined ESL in 2013 and was not associated with any previous transactions, the SFIO submits that before joining the company as V.P. (Finance), the petitioner was the Internal Auditor of ESL and had also attended the Board Meetings of ESL; and was the „virtual CFO‟ of the OSN Group, which group was used by Shantanu Prakash for siphoning-off funds. 13.10. To the petitioner‟s submission that no fraud could have taken place after 2014 since the Monitoring Institution under the 2023:DHC:2994 CDR process was monitoring all transactions and in the forensic audit conducted by M/s. Grant Thornton, they did not mention any fraud having been committed at the company, the SFIO says that though there was a Monitoring Committee during the CDR process, but the management was still with the original promoters/CFO of the company, and the siphoning-off funds to acquire various assets has taken place even after 2014. 13.11. Furthermore, the SFIO contends that the petitioner being the CFO, which comes under the ambit of „key managerial person‟ as defined under section 2(51) of the 2013 Act, and also thereby under the definition of „officer in default‟ under section 2(60) of the 2013 Act, it was his responsibility to implement the CDR process in the best interests of the ESL as well as its lenders.

34.7. Significantly, all the loans raised by ESL, which went bad, were taken prior to the petitioner joining the company.

2023:DHC:2994 34.8. Suspicion is sought to be raised by the SFIO that the petitioner obtained a loan for Rs.5.5 crores from ESL, which was not really a loan but was part of the siphoned-off money. The loan, however, was taken by way of formal loan agreements. The SFIO argues that the stamp-papers for the loan agreements were not purchased contemporaneously; they were either dated before or after the dates of execution of the loan agreements; which the SFIO submits, make the loan agreements „suspect documents‟.