Reserved on 18.12.2020 Delivered on 05.01.2021
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8606 of 2020 Applicant :- Deepti Bahal Opposite Party :- State of U.P.
Counsel for Applicant :- Syed Imran Ibrahim,Azad Khan,Manish Tiwary(Senior Adv.) Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
1. Heard Shri Manish Tiwary, learned Senior Counsel assisted by S/Shri Syed Imran Ibrahim and Azad Khan, learned counsel appearing for the applicant, Shri Manish Goyal, learned Additional Advocate General assisted by Shri Syed Ali Murtaza, learned A.G.A. appearing for the State.
2. Present anticipatory bail application under Section 438 CrPC has been filed by the applicant seeking bail in Case Crime No. 353 of 2019 under Sections 420 and 406 IPC, P.S. Dadari, District Gautam Budh Nagar.
3. Prosecution case, in nutshell, as unfolded by the informant Smt. Kitab Kaur in the First Information Report (in short 'FIR') is that she was the permanent resident of Hisar (Hariyana). Her husband late Dashrath Singh was Captain in Army. A well known lady 'Smt. Veena' wife of Narendra Singh and her brother Ishwar Dayal alongwith one Sanjay Bhati came to her house and told that Sanjay Bhati had launched a Company, namely, Garvit Innovative Promoters Limited' having its registered office at Gautam Budh Nagar, U.P.. It was also told that the said Company was registered under the Companies Act. They also stated that they have launched a scheme in the name of 'Bike Boat' and impressed her to invest amount in the said scheme. They also assured that on investment in the Company, certain EMI shall be returned monthly alongwith bonus. Informant also disclosed in the FIR that she paid / invested Rs. 34,15,500/- through bank transaction i.e. RTGS/Net on different dates in the account number given by the aforesaid persons in the year 2018. No amount, as assured by the aforesaid persons, was credited /returned in the account of informant, despite repeated request. Informant named nine persons in the FIR as accused including the present applicant as wife of Sanjay Bhati. Thereafter, one post dated cheque amounting to Rs. 50,10,056/- on 5.12.2019 signed by one Karan Pal Singh was sent at the address of the informant. It was also mentioned that the said cheque appears to be forged. Thus, prayer was made for legal action against accused persons as they committed fraud and cheating against the informant.
4. At this stage it is note-worthy to mention that applicant is wife of Sanjay Bhati and she was Director in the said Company till February, 2017. She is also shareholder of 3.8% shares of the said Company. It also appears that looking to the lucrative proposal propagated by the Company more than two lakhs investors invested huge amount i.e. near about 3500 crores under the Bike Boat Scheme. A perusal of the affidavit annexed with the application shows that applicant herself has admitted that Company has paid Rupees Forty Crores as tax to the Government since its inception and has returned Rs. 1522 Crores to 1.5 lakhs investors.
5. It was submitted by the learned Senior Counsel appearing for the applicant that applicant is not named in the FIR. No active role has been assigned against her. She was non-executive Director of the Company in question, which was run by her husband and she resigned from the Company on 14.2.2017. She was Professor in Chaudhary Charan Singh University and was also Principal of different Colleges affiliated with the said University. Referring to FIR and other documents annexed with the bail application and also the documents furnished by the State it was also submitted that none of the ingredients of the offence under Sections 420 and 406 IPC are available in the present matter against the present applicant. At no point of time she did any act in the Company. It was also submitted that she is being prosecuted in this matter only on the basis that she is shareholder of 3.8% of the Company. It was further submitted that in similar nature case parties have settled the dispute in Delhi High Court and criminal proceeding has been quashed. In another matter in the State of Hariyana, parties have agreed to settle the dispute on the basis of compromise. It was further submitted that in this matter since the applicant has resigned the Company in the month of February, 2017 from the post of non-executive Director, no active role has been assigned against her in commission of present offence, vicarious liability cannot be fastened upon her only on the basis of shareholder of the Company in question. No prima facie case is made out against the applicant. It was further submitted that it is not necessary to the applicant to make out a special or exceptional case for anticipatory bail. If offences levelled in the matter are not attracted, anticipatory bail should be granted. Applicant will cooperate with the investigating agency and conditions imposed upon her by the Court shall be adhered to. In support of his submissions, learned Senior Counsel has placed reliance on the following case laws:
1. Sudhila Aggrawal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1.
2. GHCL Employees Stock Option Trust vs. India Infoline Limited, (2013) 4 SCC 505.
3. N.K. Wahi vs. Shekhar Singh and others, (2007) 9 SCC 481.
4. Ajay Mitra vs. State of M.P. And others, (2003) 3 SCC 11.
5. Jai Prakash Singh vs. The State of Bihar and another etc., 2012 (4) SCC 379.
6. Bhadresh Bipinbhai Sheth vs. State of Gujarat and another, (2016) 1 SCC 152.
6. On the other hand, learned Additional Advocate General appearing for the State submitted that though applicant resigned from the post of Director of the Company in the month of February, 2017 yet she was having control over the day-to- day affairs of the Company. She was having share of 3.8% in the said Company and has access to the record, as is clear from the affidavit filed in support of the bail application itself. She is named in the FIR as wife of Sanjay Bhati. She has also threatened to the investors when they raised their grievances before her, as is clear from the statement of the witnesses recorded during investigation. More than 2.5 lakhs investors have invested money with the Company in which mostly are Ex-servicemen but the agreement entered into between them and the assurance given by the Company were not implemented/acted upon. EMI and other benefits including bonus were not returned to the investors, instead, Company invested the said money in different business i.e. real estate etc.. Since applicant is one of the shareholders of the Company, bike boat scheme was launched by the Company, huge money of the investors have been invested in other different schemes and applicant has access to record of the Company and threatened to the investors, it shall be presumed that she was in actual control over the day-to-day affairs of the Company. It is a scam of multi-thousand crores. It was also submitted that settlement arrived at between one of the investors and the Company at Delhi will not be a ground to grant anticipatory bail to the applicant. A reward of Rs. 50,000/- has been declared upon the applicant and also non-bailable warrant has been issued against her. She is not cooperating in investigation. It was also submitted that applicant has prayed for anticipatory bail in this crime only for the offence under Sections 420 and 406 IPC but now the case has been converted into the offence under Sections 409, 420, 467, 468, 471, 120-B and 201 IPC read with Section 58-A of the Indian Companies Act and sub-section 4-A of Section 58-B of the R.B.I. Act. It was further submitted that though financial business was being done by the Company in question yet no approval, as required under the R.B.I. Act, was obtained from the Reserve Bank of India. Present matter relates to economic offences and huge amount of investors have been embezzled. A prima facie case is made out against the applicant. It was further submitted that a number of FIRs have been lodged against the applicant, as is clear from Annexure-13 to the bail application. Interrogation is necessary in the matter. If applicant is granted anticipatory bail, there is every chance for destroying the evidence. She is also not cooperating to the Investigating Officer. At this juncture, learned Additional Advocate General has also referred to attachment order issued by the Directorate of Enforcement and also the various other documents / papers. Lastly, in support of his case, he has also placed reliance on the following case laws:
1. State of M.P. And another vs. Ram Kishna Balothia and another, )1995) 3 SCC 221.
2. Securities and Exchange Board of India vs. Sharda India Real Estate Corporation Limited and others, (2016) 1 SCC 48.
3. Jai Prakash Singh vs. State of Bihar and another, (2012) 4 SCC 379.
4. P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC 24.
5. Baldev Raj vs. State of Himachal Pradesh, (1980) 2 SCC 564.
6. Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, (2011) 1 SCC 694.
7. Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1.
8. Lavesh vs. State (NCT of Delhi), (2012) (8) SCC 730.
7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws relied upon by the learned counsel for the parties carefully.
8. Before dealing with the submissions raised by the learned counsel for the parties, it is pertinent to quote relevant paragraphs of relevant cases relied upon by the learned counsel for the parties, which are as under:
9. In Sushila Aggarwal case (supra), the Apex Court held as under (paragraphs 52,85 and 92 of the said decision):
“52. In the light of the relevant extracts of Sibbia, it would now be worthwhile to recount the relevant observations on the issue. The discussion and conclusions in Sibbia are summarized as follows:
52.1. Grant of an order of unconditional anticipatory bail would be “plainly contrary to the very terms of Section 438”. Even though the terms of Section 438 (1) confer discretion,Section 438 (2)“confers on the court the power to include such conditions in the direction as it may think fit in the light of the facts of the particular case, including the conditions mentioned in clauses (i) to (iv) of that sub- section.”
52.2. Grant of an order under Section 438 (1) does not per se hamper investigation of an offence; Section 438 (1)(i) and (ii) enjoin that an accused/applicant should co- operate with investigation. Sibbia (supra) also stated that courts can fashion appropriate conditions governing bail, as well. One condition can be that if the police make out a case of likely recovery of objects or discovery of facts under Section 27 (of the Evidence Act, 1872), the accused may be taken into custody. Given that there is no formal method prescribed by Section 46 of the Code if recovery is made during a statement (to the police) and pursuant to the accused volunteering the fact, it would be a case of recovery during “deemed arrest” (Para 19 of Sibbia).
52.3. The accused is not obliged to make out a special case for grant of anticipatory bail; reading an otherwise wide power would fetter the court’s discretion. Whenever an application (for relief under Section 438) is moved, discretion has to be always exercised judiciously, and with caution, having regard to the facts of every case. (Para 21, Sibbia).
52.4. While the power of granting anticipatory bail is not ordinary, at the same time, its use is not confined to exceptional cases (Para 22, Sibbia).
52.5. It is not justified to require courts to only grant anticipatory bail in special cases made out by accused, since the power is extraordinary, or that several considerations – spelt out in Section 437 or other considerations, are to be kept in mind. (Para 24-25, Sibbia).
52.6. Overgenerous introduction (or reading into) of constraints on the power to grant anticipatory bail would render it Constitutionally vulnerable. Since fair procedure is part of Article 21, the court should not throw the provision (i.e. Section 438) open to challenge “by reading words in it which are not to be found therein.” (Para 26).
52.7. There is no “inexorable rule” that anticipatory bail cannot be granted unless the applicant is the target of mala fides. There are several relevant considerations to be factored in, by the court, while considering whether to grant or refuse anticipatory bail. Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the accused’s presence not being secured during trial; a reasonable apprehension that the witnesses might be tampered with, and “the larger interests of the public or the state” are some of the considerations. A person seeking relief (of anticipatory bail) continues to be a man presumed to be innocent. (Para 31, Sibbia).
52.8. There can be no presumption that any class of accused- i.e. those accused of particular crimes, or those belonging to the poorer sections, are likely to abscond. (Para 32, Sibbia).
52.9. Courts should exercise their discretion while considering applications for anticipatory bail (as they do in the case of bail). It would be unwise to divest or limit their discretion by prescribing “inflexible rules of general application.”. (Para 33, Sibbia).
52.10. The apprehension of an applicant, who seeks anticipatory bail (about his imminent or possible arrest) should be based on reasonable grounds, and rooted on objective facts or materials, capable of examination and evaluation, by the court, and not based on vague un-spelt apprehensions. (Para 35, Sibbia).
52.11. The grounds for seeking anticipatory bail should be examined by the High Court or Court of Session, which should not leave the question for decision by the concerned Magistrate. (Para 36, Sibbia).
52.12. Filing of FIR is not a condition precedent for exercising power under Section 438; it can be done on a showing of reasonable belief of imminent arrest (of the applicant). (Para 37, Sibbia).
52.13. Anticipatory bail can be granted even after filing of an FIR- as long as the applicant is not arrested. However, after arrest, an application for anticipatory bail is not maintainable. (Para 38-39, Sibbia).
52.14. A blanket order under Section 438 , directing the police to not arrest the applicant, “wherever arrested and for whatever offence” should not be issued. An order based on reasonable apprehension relating to specific facts (though not spelt out with exactness) can be made. A blanket order would seriously interfere with the duties of the police to enforce the law and prevent commission of offences in the future. (Para 40-41, Sibbia).
52.15. The public prosecutor should be issued notice, upon considering an application under Section 438; an ad interim order can be made. The application “should be re-examined in the light of the respective contentions of the parties.” The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage. “Should the operation of an order passed under Section 438 (1) be limited in point of time? Not necessarily. The court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time.” (Para 42, Sibbia).”
“85. Having regard to the above discussion, it is clarified that the court should keep the following points as guiding principles, in dealing with applications under Section 438, Cr. PC:
85.1. As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable a specific offence or particular of offences. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which considering the application, to extent and reasonableness of the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not a necessary condition that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.
85.2. The court, before which an application under Section 438, is filed, depending on the seriousness of the threat (of arrest) as a measure of caution, may issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
85.3. Section 438 Cr. PC does not compel or oblige courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While weighing and considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The necessity to impose other restrictive conditions, would have to be weighed on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.
85.4. Courts ought to be generally guided by the considerations such nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while assessing whether to grant anticipatory bail, or refusing it. Whether to grant or not is a matter of discretion; equally whether, and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.
85.5. Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
85.6. Orders of anticipatory bail do not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.
85.7. The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that :
“19............if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.”
85.8. It is open to the police or the investigating agency to move the court concerned, which granted anticipatory bail, in the first instance, for a direction under Section 439(2) to arrest the accused, in the event of violation of any term, such as absconding, non-cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc. The court – in this context is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.
85.9. The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam v. Ramprasad Vishwanath Gupta, Jai Prakash Singh and State of U.P. vs. Amarmani Tripathi). This does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.
85.10. The judgment in Mhetre (and other similar decisions) restrictive conditions cannot be imposed at all, at the time of granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin and subsequent decisions (including K.L. Verma, Nirmal Jeet Kaur) which state that such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.”
“92. This court, in the light of the above discussion in the two judgments, and in the light of the answers to the reference, hereby clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438, Cr. PC:
92.1. Consistent with the judgment in Gurbaksh Singh Sibbia v. State of Punjab, when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest.
92.3. It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail.
92.3. Nothing in Section 438 Cr. PC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc. The courts would be justified – and ought to impose conditions spelt out in Section 437 (3), Cr. PC [by virtue of Section 438 (2)]. The need to impose other restrictive conditions, would have to be judged on a case by case basis, and depending upon the materials produced by the state or the investigating agency. Such special or other restrictive conditions may be imposed if the case or cases warrant, but should not be imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of anticipatory bail may be granted, if they are required in the facts of any case or cases; however, such limiting conditions may not be invariably imposed.
92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court.
92.5. Anticipatory bail granted can, depending on the conduct and behavior of the accused, continue after filing of the charge sheet till end of trial.
92.6. An order of anticipatory bail should not be “blanket” in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence.
92.7. An order of anticipatory bail does not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail.
92.8. The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that :
“19..........if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya.”
92.9. It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non - cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc..
92.10. The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities.
92.11. The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the state or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances. (See Prakash Kadam v. Ramprasad Vishwanath Gupta; Jai Prakash Singh (supra) State of U.P. v. Amarmani Tripathi). This does not amount to “cancellation” in terms of Section 439 (2), Cr. PC.
92.12. The observations in Siddharam Satlingappa Mhere v. State of Maharashtra, (and other similar judgments) that no restrictive conditions at all can be imposed, while granting anticipatory bail are hereby overruled. Likewise, the decision in Salauddin Abdulsamad Shaikh v. State of Maharashtra and subsequent decisions (including K.L. Verma v. State, Sunita Devi v. State of Bihar, Adri Dharan Das v. State of West Bengal, Nirmal Jeet Kaur v. State of M.P., HDFC Bank Limited v. J.J. Mannan; Satpal Singh v. State of Punjab and Naresh Kumar Yadav v Ravindra Kumar) which lay down such restrictive conditions, or terms limiting the grant of anticipatory bail, to a period of time are hereby overruled.”
10. In N.K. Wahi case (supra), the Apex Court held as under (paragraphs 2,8 and 13 of the said decision):
“2. Background facts in nutshell are as under: Appellant presented a criminal complaint under Section 138 read with Section 141 of the Negotiable Instruments Act, 1881 (in short the 'Act') in the Court of Metropolitan Magistrate, New Delhi. It was pleaded that M/s Western India Industries Ltd. is a limited company and the respondents and some others were the Directors/persons responsible for carrying on the business of the company and the liability of these persons is joint and several. It was stated that certain cheques had been issued by the company which were dishonored on being presented. After giving the necessary notice the complaint was filed. The respondents filed an application for dropping the proceedings stating that they were not Directors of the company and further there was no allegation against them in terms of Section 141 of the Act and as such they should not have been made parties. Learned Metropolitan Magistrate dismissed the application holding that whether the applicants in the aforesaid petitions were Directors at the relevant point of time or not is to be decided on evidence.
8. To launch a prosecution, therefore, against the alleged Directors there must be a specific allegation in the complaint as to the part played by them in the transaction. There should be clear and unambiguous allegation as to how the Directors are incharge and responsible for the conduct of the business of the company. The description should be clear. It is true that precise words from the provisions of the Act need not be reproduced and the court can always come to a conclusion in facts of each case. But still in the absence of any averment or specific evidence the net result would be that complaint would not be entertainable.
13. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another, [2005] 8 SCC 89, it was, inter-alia, held as follows:-
"18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 the Act contains the requirements for making a person liable under the said provision. That the respondent falls within the parameters of Section 141 has to be spelled out. A complaint has to be examined by the Magistrate in the first instance on the basis of averments contained therein. If the Magistrate is satisfied that there are averments which bring the case within Section 141, he would issue the process. We have seen that merely being described as a director in a company is not sufficient to satisfy the requirement of Section 141. Even a non-director can be liable under Section 141 of the Act. The averments in the complaint would also serve the purpose that the person sought to be made liable would know what is the case which is alleged against him. This will enable him to meet the case at the trial.
19. In view of the above discussion, our answers to the questions posed in the reference are as under:
(a) It is necessary to specifically aver in a complaint under Section 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company. This averment is an essential requirement of Section 141 and has to be made in a complaint. Without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.
(b) The answer to the question posed in sub-para (b) has to be in the negative. Merely being a director of a company is not sufficient to make the person liable under Section 141 of the Act. A director in a company cannot be deemed to be in charge of and responsible to the company for the conduct of its business. The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a director in such cases.
(c) The answer to Question (c) has to be in the affirmative. The question notes that the managing director or joint managing director would be admittedly in charge of the company and responsible to the company for the conduct of its business. When that is so, holders of such positions in a company become liable under Section 141 of the Act. By virtue of the office they hold as managing director or joint managing director, these persons are in charge of and responsible for the conduct of business of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141”.
11. In Ajay Mitra case (supra), the Hon'ble Supreme Court has held as under (paragraph 18 of the said decision):
“18. So far as the present appellants are concerned, they came into picture much later in July 1999, when various trademarks and brands of A-1 were purchased by A-
6. The appellants were not at all in picture at the time when the complainant claims to have spent money in improvement of its bottling plant on the basis of the agreement executed with Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). Since the appellants were not in picture at all at the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No offence of cheating can, therefore, be said to have been committed by the appellants on account of the fact that a notice was given to the complainant that the bottling agreements will not be renewed any further after expiry of the initial term. Thus, even if the allegations made in the complaint are accepted to be absolutely true and correct, the appellants cannot be said to have committed any offence of cheating as provided in Section 420 IPC”.
12. In this matter, as is evident from the record, applicant is named in the FIR as the wife of Sanjay Bhati. She herself has admitted that she was the Director of the Company in question till February, 2017. Thereafter, she resigned from the said post. She remains shareholder of 3.8% shares till today. It is also evident from the record that a huge money of the investors invested in Bike Boat Scheme of the Company has been diverted / reinvested in different other Schemes. It is also evident that EMI and other benefits, assured / agreed upon between the investors and the Company, have not been returned / paid to them. A number of criminal cases have been lodged against the applicant, as is clear from the rejection orders of the anticipatory bail annexed with the bail application as Annexure-13. It is also evident that at the time of diversion of the money in different other schemes invested by the investors against the agreement entered into between the investors and the Company, applicant was also having share of 3.8% in the Company. Affidavit filed in support of the anticipatory bail application also reveals that she has access to the record of the Company, meaning thereby she was having control over the day-to-day affairs of the Company. Non-bailable warrant has also been issued against her. A reward of Rs. 50,000/-is also against her, as applicant is not cooperating the investigating agency. It is true that there is no need to make out a special or exceptional case for anticipatory bail but during investigation in this case evidence under Section 409 IPC and other offences, as disclosed here-in- above, have also been added; number of investors (more than 2.5 lakhs) have invested their money in the Company; invested amount is also over and above 3500 crores and they are still waiting for return of the money invested by them in the Company, hence, having regard to the entire facts and circumstances of the case and the law laid down by the Apex Court in Lavesh case (supra) and also considering the submissions of learned counsel for the parties and keeping in view the nature and gravity of offence, money invested by the investors with the Company, modus operandi adopted by the Company diverting the investors' amount in other different Scheme against the agreement, criminal cases lodged against the applicant, issuance of non-bailable warrant and reward of Rs. 50,000/- and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has not made out a case for anticipatory bail. The anticipatory bail application is rejected.
Order Date :- 05.01.2021 safi