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Punjab-Haryana High Court
Major Sanjeev Bhatia vs Union Territory Of Chandigarh on 1 March, 2021CRM-M-42067-2020 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.42067 of 2020
Date of Decision: 01.03.2021
MAJOR SANJEEV BHATIA ……Petitioner
Vs
UNION TERRITORY OF CHANDIGARH …..Respondent
CORAM: HON’BLE MR. JUSTICE RAJ MOHAN SINGH
Present:Mr. R.S. Rai, Sr. Advocate with
Mr. Anurag Arora, Advocate
for the petitioner.
Mr. Ashu Mohan Punchhi, PP UT, Chandigarh with
Mr. Anupam Bansal, Advocate
for the respondent/UT Chandigarh.
Mr. Raghav Gulati, Advocate
for the complainant.
****
RAJ MOHAN SINGH, J.
[1]. Petitioner seeks grant of regular bail under Section 439
Cr.P.C in case bearing FIR No.99 dated 27.10.2020, registered
under Sections 420/468/471/120-B IPC at Police Station North,
Chandigarh.
[2]. The FIR was registered at the instance of complainant-
Mrs. Adarsh Manocha w/o Sh. Jasbir S. Manocha with the
allegations that the petitioner and Anup Nargas approached her
and her husband. They asked them to invest in the Company
namely YAR GUN ENTERPRISES PRIVATE LIMITED (YEPL)
which is a logistic company dealing with the storage of frozen
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meat for the supply to Army Command Stations. The accused
also told the complainant that other firm namely MEDIAIDS
provides for cold rooms to YEPL. The accused allured the
complainant and her husband by projecting that they would
receive 12% return on the investment on monthly basis. The
complainant was also given promise that she would be made
one of the Directors in the said Company. The accused also
increased the rate of shares of YEPL from Rs.10 per share to
Rs.55 per share as per projection report i.e. Valuation certificate
dated 21.02.2017 allegedly issued by Kamini Sehgal, CA. On
the basis of aforesaid assurance, a written Memorandum of
Understanding (MOU) was executed on 21.05.2017 between
the accused, complainant and other investors. The complainant
invested a sum of Rs.50 lakhs in YEPL.
[3]. Precise allegations against the accused are that they
have embezzled an amount of Rs.344.57 lakhs and on the basis
of forged valuation certificate allegedly issued by Kamini Sehgal,
CA on 21.02.2017, the accused increased the price of share of
the Company from Rs.10 to Rs.55 thereby alluring all the new
investors to invest their money on the assurance that they would
get more benefits. The MOU was executed on the basis of such
assurance that the complainant was to be given a post as per
clause 9 of the said MOU, but she was not given the said
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position, neither she was made Director in the Company, nor
was paid money as per promise. The investors have not been
paid anything till date and the accused persons have cheated
the complainant and the investors in a huge sum f Rs.344.57
lakhs. The money has been transferred from the accounts of the
Company.
[4]. Learned Senior counsel for the petitioner vehemently
submitted that it is a case of civil profile and the FIR has been
registered just as a recovery proceedings. Learned Senior
counsel further submitted that the petitioner is in custody since
21.10.2020. Challan has been presented on 26.12.2020. No
recovery is to be effected from the petitioner. Petitioner being
aggrieved against mismanagement in the Company filed C.A.
Nos.188/2020 and 189/2020 & 263/2020 and C.P.
No.60/Chd/CHD/2020 in the National Company Law Tribunal,
Chandigarh Bench, Chandigarh after resigning from the
Company on 30.12.2019. Petitioner is no longer a shoreholder.
No written statement has been filed by the
respondent/complainant in that petition. The National Company
Law Tribunal passed an order dated 22.09.2020 that there shall
not be any change in the shareholding pattern of the company
and no assets of the company shall be sold or otherwise utilized
other than in the normal course of business when both the
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counsel submitted that they will try to reach out an amicable
settlement between the parties.
[5]. Learned Senior counsel for the petitioner further
submitted that even after making the said statement before the
National Company Law Tribunal, the FIR was got registered on
27.10.2020. Petitioner is only an Ex. Director. As per minutes of
meeting held on 06.08.2020, point regarding dispute of dues of
Mediaids, a proprietorship Firm of the petitioner was discussed
and after due deliberations, it was observed in clause (a) as
under:-
“(a) Bharat Rajeev & Associates has shared its audit report
to the EOW without tabling to the board of directors. A resolution
in this regard may be passed and a letter to go from Yar Gun
Enterprises Pvt. Ltd., to EOW that the audit report does not have
the concurrence of Board of Directors as yet the company has
ordered an internal audit. Once the internal audit is over, action
as deemed appropriate will be taken. The report has now been
tabled.”
[6]. Learned Senior counsel for the petitioner submitted that
despite the aforesaid observation, challan was presented.
Petitioner was not paid anything and, therefore, petitioner
himself alleged mismanagement in the Company before the
National Company Law Tribunal. Petitioner has already
disassociated himself from the directorship w.e.f. 30.12.2019.
Husband of the complainant was inducted as Director in the
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Company vide resolution of the Company dated 17.10.2019. As
per resolution dated 22.10.2019, financial powers stood vested
with the Directors including the husband of the complainant,
who was signatory in the Bank accounts. The valuation report
was obtained through the services of Company Secretary and
his professional fee was also paid. Litigation is pending before
the National Company Law Tribunal.
[7]. Learned Senior counsel for petitioner further submitted
that registration of FIR is abuse of process of law as the same
cannot be resorted to in order to effect recovery of dues, if any.
Learned Senior counsel further submitted that signature of
Kamini Sehgal, CA if compared from documents viz. her
statement dated 28.09.2020 made before the Inquiry Officer
(EOW), Sector 17, Chandigarh, Independent Auditors’ Report
dated 10.09.2016 and Valuation Certificate, then these
documents would provide the same pattern of signatures. The
MOU is based on certain documents. The valuation of the
Company share was assessed by the Chartered Accountant and
the same was accepted after due discussion at Rs.55 per share
i.e. Rs.10 per share having a premium of Rs.45 per share. The
statement of Kamini Sehgal, CA was recorded only on
28.09.2020 whereas MOU had already been executed on
21.05.2017. The Chartered Accountant was duly paid by the
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Company for the valuation done. Professional fee for valuation
report was duly paid by the Company itself through Company
Secretary Virender Sharma. The valuation certificate was also
published on the website of Ministry of Corporate Affairs on
07.07.2017 by the said Company Secretary Virender Sharma.
No complaint was made by the author of share valuation
certificate i.e. Kamini Sehgal, CA before any authority in respect
of misuse of her stamp or seal or any forgery committed on the
document in question. The valuation certificate is also proved
from other documents such as auditors’ report which was signed
by Kamini Sehgal, CA and was also issued in her name for other
Companies unrelated to the accused party. Those documents
are available on the portal of Ministry of Corporate Affairs.
[8]. Learned Senior counsel for the petitioner further
submitted that the valuation report itself is based on many
documents and is a culmination of analysis of all other financial
documents such as Balance Sheets, Assets and Liabilities,
Profit and Sales Account, Sales projection etc. which ultimately
resulted in share price valuation. In the absence of any
suspicion with regard to other financial documents, no such
allegation of forgery in respect of valuation certificate can be
presumed. Husband of the complainant was added a new
Director in the Board of Company at the instance of the
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complainant herself. Some other complaints have also been
filed against the accused by other shareholders namely Ms.
Navnika Puri w/o Brigadier Gian Puri and Mrs. Supreeti Binda
w/o Colonel P.S. Bindra after registration of present FIR. Those
complainants are also respondents in the petition before
National Company Law Tribunbal. Husband of Ms. Navnkia Puri
and Mrs. Supreeti Bindra are the Directors in the Company
against whom NCLT petition has been filed. Ms. Navnika Puri
was also re-appointed as Director on the Board of the Company
after her initial resignation on 13.12.2017. Husband of the
complainant unilaterally conducted an audit of the accounts of
the Company, contrary to the provisions of the Companies Act.
For that the husband of the complainant engaged the services
of M/s Bharat Rajeev & Associates for conducting this audit
despite there being another internal auditor of the Company.
That is why, it was resolved and recorded in the minutes of
meeting dated 06.08.2020 that the auditor report shared with
the EOW does not have the concurrence of the Board of
Directors and the Company has ordered an internal audit.
[9]. Learned Senior counsel for the petitioner with reference
to the order dated 27.10.2020 passed by the National Company
Law Tribunal, Chandigarh Bench, Chandigarh submitted that
when the matter was taken up before the Company Law
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Tribunal, learned counsel appearing for both the parties jointly
submitted that there is some progress in the conciliation
proceedings between the parties and they sought more time for
settlement. Despite the aforesaid order dated 27.10.2020, the
FIR was registered on 27.10.2020 itself which is colourable
exercise of power.
[10]. Per contra, learned Public Prosecutor for UT,
Chandigarh duly assisted by learned counsel for the
complainant submitted that magnitude of the embezzlement is
to the tune of Rs.344.57 lakhs. Offence under Sections 467 and
201 IPC have been added as the Company Secretary has
destroyed the record. He further submitted that petition bearing
CRM-M No.39464 of 2020 for anticipatory bail filed by the co-
accused Anup Nargas was dismissed by this Court on
22.12.2020 and he remained unsuccessful in SLP (Crl.)
No.6829/2020, which was dismissed by the Hon’ble Apex Court
on 30.12.2020. He was given two weeks’ time to surrender and
apply for regular bail.
[11]. Learned Public Prosecutor on behalf of the
respondent/UT, Chandigarh further submitted that it is yet to be
ascertained as to how the money was transferred from the
accounts of the company in other accounts. In the MOU, 13
persons have shown to have participated whereas the persons
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appearing at Sr. Nos.3, 4 and 8 i.e. Smt. Bharti Chaturvedi, Smt.
Supreeti Binda and Shri Geet Bindra respectively have not
signed the aforesaid MOU in any capacity. The aforesaid
persons are also shown to be promoters of the Company. The
parties at Sr. Nos.4 to 13 are shown to have agreed to bring
fresh investors and these parties shall be allocated shares in the
manner as depicted in para no.3 of the MOU. New investors had
invested Rs.39,314,000.00. However, no investor has received
any amount so far. Despite para No.12 of the MOU, the accused
were involved in acting illegally.
[12]. Learned Public Prosecutor on behalf of the
respondent/UT, Chandigarh further referred to the decision to
induct Adarsh Manocha to be Head, HR & IT and the
remuneration for active participation in the operation of business
is Rs.50,000/-. The amount invested is shown to be Rs.50 lakhs
and return at the rate of 1% of the invested amount is
Rs.50,000/- per month. The return @ 12% on total investment
from the date of investment was decided to be paid on monthly
basis. It was decided to be paid from July 2017 onwards subject
to availability of funds and payments of arrears from the date of
investment till June 2017 were to be paid after October 2017 on
monthly basis. The mode of payment of such return was to be
decided mutually by the shareholders. This was not permitted in
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the eyes of law and should not have been put on record. It was
so observed in para No.12 of the MOU. There was no resolution
of the Company for Chartered Accountant for the investment
etc.
[13]. Learned Public Prosecutor on behalf of the
respondent/UT Chandigarh further submitted that Kamini Sehgal
has denied her signature on valuation certificate by way of
making her statement before the Inquiry Officer, EOW, Sector
17, Chandigarh on 28.09.2020. She further stated that the
Company namely Yar Gun Enterprises Pvt. Ltd. is not known to
her and she has never worked for this Company. The letter head
(on the basis of which valuation certificate has been issued)
does not belong to her. Even the format used in the certificate
has not been used by her at any point of time for issuing
certificates to her clients. She has pleaded the said certificate to
be forged. FRN Number mentioned in the certificate is also
wrong as her FRN Number is 024169N and not 022860N. She
has also denied her signature on the valuation certificate. She
further stated that as per Rule 13, Explanation of Companies
Act, 2013, the certificates are to be issued by an independent
merchant Banker, who is registered with the Securities and
Exchange Board of India or an independent Chartered
Accountant in practice having minimum experience of 10 years.
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With reference to the aforesaid, Kamini Sehgal, CA stated that
she was not competent to issue such valuation certificate.
[14]. Learned Public Prosecutor on behalf of the
respondent/UT Chandigarh further submitted that the financial
health of the Company was not such for which projection in
question was made i.e. from Rs.10 per share to Rs.55 per
share. He referred to the document of Ministry of Corporate
Affairs Receipt G.A.R. 7 to show that the financial health of the
Company for the period in question in the context of profit
before tax and profit after tax. The Company Secretary is also
accused in respect of destruction of documents for which
offences under Sections 467 and 201 IPC have been added.
Uploaded/scanned documents of original is available to show
the forgery in question.
[15]. Both the parties have tried to address arguments with
reference to the documents in question, but at this stage any
consideration of documents on merits, may prejudice the case
of the parties during trial. Petitioner is in custody since
28.10.2020. Challan has been presented. Petition before the
National Company Law Tribunal, Chandigarh Bench,
Chandigarh is pending. Vide orders dated 22.09.2020 and
27.10.2020 passed by the Company Law Tribunal the
observation was made that the parties to the litigation would try
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to strike out some amicable resolution of the dispute. Evidently,
the allegations are based on documentary evidence. The Police
after investigation has already filed the challan. The admissibility
of documents and veracity of allegations would be decided by
the trial Court during trial. Offences are triable by the Magistrate.
In view of ratio of Sanjay Chandra and Vinod Goenka vs Central
Bureau of Investigation, 2011(4) RCR (Criminal) 898; Babba vs
State of Maharashtra, (2005) 11 SCC 569 and Siddharam
Satlingappa Mhetre vs State of Maharashtra, 2011(1) RCR
(Criminal) 126, even in case of economic offences of high
magnitude, regular bail can be granted after filing of challan.
[16]. Keeping in view of the aforesaid stage of the case and
without adverting to the merits of the case, I deem it appropriate
to enlarge the petitioner on regular bail.
[17]. In view of above, petition is allowed. Petitioner is
ordered to be released on bail, subject to his furnishing
adequate bail bonds/surety bonds to the satisfaction of the trial
Court/concerned Duty Magistrate.
[18]. Nothing expressed hereinabove would be construed to
be an expression of any opinion on merits of the case.
(RAJ MOHAN SINGH)
March 01, 2021 JUDGE
Atik
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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