Allahabad Aug 27(ILNS): The Allahabad High Court gave relief to Vishwanath Gupta, accused in the ongoing Serious Fraud case against 69 companies including Rotomac Global of Kanpur, and their directors, auditors, and officers.
A Single Bench comprised of Justice Rahul Chaturvedi passed this order while hearing a Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C filed by one Vishwanath Gupta, who has every reason to believe that he may be arrested on the accusation of having committed a non-bailable offense in connection with a case under Section 447 of the Companies Act, 2013, Police Station-Civil Lines, District-Kanpur Nagar.
The allegation against the applicant is that he has committed fraud attracting Section 447 of the Companies Act, whereby he has created a forged Memorandum of Understanding (M.O.U.) dated April 01, 2014, between Vishwa Nath Gupta and Vikram Kothari of RFL Infrastructures Pvt Ltd. in siphoning the shareholders and property of the company is detrimental to the interest of Vikram Kothari.
The proceedings were initiated between RFL Pvt Ltd and Dolphin Dwellings Pvt Ltd u/s 7 of the I.B.C. before the National Company Law Tribunal, Allahabad, and vide order dated July 7, 2021, there was a truce and amicable settlement between the parties, and accordingly, the proceedings were withdrawn by Vikram Kothari of RFL Pvt Ltd.
The Court observed that,
From the record, it is evident that the applicant has approached the Court straightway without getting his anticipatory bail rejected from the Court of Sessions.
Counsel for the applicant has drawn the attention of the Court to Clause-7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2019), which read thus: “(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session.”
After interpreting the aforesaid clause, it is clear that the Legislature in its own wisdom bestowed two avenues upon the accused with a rider that if the accused has chosen to come to the High Court straight away, then he would not be relegated back to exhaust his remedy before the Court of Session first.
The Court said that, in this regard, Counsel for the applicant has placed reliance upon the Full Bench judgment of the Court in the case of Ankit Bharti and others Vs. State of U.P. and another, 2020(3) ADJ 575 in which the Bench has directed to spell out the extraordinary and special reasons for coming to the High Court.
After perusal of those pleadings/reasons in this regard, the Court is satisfied that the reasons mentioned therein are quite convincing to entertain the anticipatory bail application before the Court itself.
It has been contended by the Counsel for the applicant that the applicant has got no criminal antecedents and he has not undergone any imprisonment after conviction by any Court of law in relation to any cognizable offense previously.
An assurance was also advanced by Counsel for the applicant on behalf of the applicant that he would render all requisite co-operation and assistance in the process of law and with the investigating agency and shall not create any hindrance to reach its logical conclusion and shall not flee away from the course of justice.
Counsel for the applicant has strenuously argued that the applicant has been made a target just to besmirch his reputation and belittle him in the public estimate by the informant.
Counsel for the applicant has submitted that this is a complaint case lodged by the respondents before the Court of 9th Additional District and Sessions Judge, Kanpur Nagar, Special Judge (Companies Act) against as many as 69 companies and its Directors, Auditors and other officials.
The contention raised by Counsel for the applicant that after adhering to the procedure prescribed, Presiding Judge order dated May 29, 2020, has summoned all named persons in the complaint.
It is further contended by Counsel for the applicant that in the summoning order, the basic thrust of the allegation is that there was a fraud and forgery committed by the applicant but since the matter has already been settled and Vikram Kothari has no grudge and grievance qua the applicant, therefore, the provisions of Section 447 of the Companies Act would not be attracted.
It is also contended by Counsel for the applicant that the interest and freedom of Vikram Kothari and Sunil Verma has already been protected on different occasions by the Apex Court and the case of the applicant is at par with them.
Additional Solicitor General of India has vehemently opposed the anticipatory bail application by mentioning that though the applicant has got no criminal antecedents there is nothing on record to satisfy that the police personnel is after the applicant to arrest him.
Despite the fact that the applicant is not participating in the above complaint case, proceedings u/s 82 Cr.P.C. were initiated against him, thus as per the verdict of the Supreme Court, no protection should be extended to such type of persons. The alleged apprehension on behalf of the applicant is imaginary and unfounded.
A.S.G.I. has also submitted that in view of the seriousness of the allegations made in the complaint, the applicant is not entitled to any relaxation from the Court.
The Court held that after the close scrutiny of Section 438 Cr.P.C.(U.P. Act No.4 of 2019) and its relevant clauses, the Court is satisfied that the applicant has made out the case for interim order protecting the liberty of the applicant in connection with aforesaid case crime pending investigation.
The Court ordered that it would be the interest of the prosecutor to gear up the proceedings of the case pending before the Special Judge, Companies Act, Kanpur Nagar, and consequently the anticipatory application stands allowed to the extent that in the event of arrest of the applicant in aforesaid complaint case, he shall be released on bail on furnishing a personal bond of Rs. 50,000/- with two sureties each in the like amount to the satisfaction of the Arresting Officer/Presiding Judge during the course of the trial, with the conditions that:-
(i) The applicant shall give a written undertaking to the court concerned that he would regularly participate in the proceedings of the court and would not seek any adjournments.
(ii) The applicant shall make himself available for the interrogation by the police as and when required (if at all necessary and required).
(iii) The applicant shall not directly or indirectly make any inducement, threats, or comments to any person acquainted with the facts of the case so as to dissuade him from disclosing the correct facts to the court or to the police officer.
(iv) The Prosecutor of the case would make all necessary assistance to the court concerned in gearing up the trial in an utmost transparent and professional way and the court concerned would try to conclude the same within a maximum period of one year. During this period the applicant would not leave the city, Kanpur Nagar, without informing the Investigating Officer/court concerned and sharing his contact number./ILNS/AP/SNG