Anil Kumar Tulsiani vs State Of U.P. Thru. Prin. Secy. ...
2022 Latest Caselaw 19285 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13347 of 2022
 

 
Applicant :- Anil Kumar Tulsiani
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Vaibhav Kalia,Abhinav Mishra,Vidhu Bhushan Kalia
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Shri Vidhu Bhushan Kalia, learned counsel for the applicant as well as Mr. Anirudha Kumar Singh, learned A.G.A. appearing for the State and perused the record.

2. Instant bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in FIR No. 0457 of 2019, under Sections 409 and 420 IPC, Police Station - Vibhuti Khand, District - Lucknow.

3. Learned counsel appearing on behalf of the applicant submits that the applicant is innocent and he has been falsely implicated in the instant matter due to ulterior motive. He added that the instant matter is mainly a civil/commercial dispute and the complainant is trying to give it criminal colour. He further submitted that he is one of the Director of the company, namely, "Tulsiani Infra Developer Pvt. Ltd". He submits that in the year 2015, a Scheme was launched in the name of "Multistory Commercial Apartment" and thereafter a unit was agreed to be allotted to the present applicant. In view thereof, Rs.48,00,000/- were to be deposited by the applicant. He submits that as per the terms and conditions of the scheme, until and unless aforesaid unit was handed over, the Company was under obligation to pay the interest on the aforesaid amount. The amount of interest was being paid by the Company for sometime, but due to financial hardship, due to Pandemic 2020-2021, the Company could not pay the interest and thereafter the dispute arose. He added that with a view to settle the dispute, the cheques were also given to the informant. The bonafide act of the applicant shows that there was no criminal intent of the applicant to commit any cheat or fraud with the informant.

4. He further contended that in the year 2019, Union of India promulgated an Act, named as Banning of Unregulated Deposit Scheme Act, 2019 which was commenced since 21.02.2019. He referred Section 3 of the aforesaid Act, which are extracted as under;

"Section 3. Banning of Unregulated Deposit Schemes.

On and from the date of commencement of this Act,?

(a) the Unregulated Deposit Schemes shall be banned; and

(b) no deposit taker shall, directly or indirectly, promote, operate, issue any advertisement soliciting participation or enrolment in or accept deposits in pursuance of an Unregulated Deposit Scheme."

5. Referring the aforesaid, he submits that all the unregulated deposit scheme were banned by the aforesaid provisions and after the enforcement of the "Act 2019", the interest could not have been paid to the applicant.

6. He added that, in fact, a unit which was allotted to the informant, is under construction and he has placed photocopy of the under-construction building, namely, "Palacio Imperial White" and the same is taken on record and this shall remain part of the record.

7. He next added that, in fact, the criminal intent of the applicant is missing in the instant matter and the ingredients of Sections 409 and 420 do not attract.

8. Adding his arguments, he submits that, in fact, chargesheet has been filed but the Company has nowhere been made a party. He further added that as per settled proposition of law, without prosecuting the Company, the whole proceeding of the prosecution case shall vitiate in the eyes of law and in support of his submission, he has placed reliance on the judgment rendered in Sunil Bharti Mittal versus Central Bureau of Investigation, reported in (2015) 4 SCC 609 and has referred paragraphs 42, 43 and 44 of the aforesaid judgment. Abstract of the paragraphs 42, 43 and 44 is quoted below:

"42. No doubt, a corporate entity is an artificial person which acts through its officers, Directors, Managing Director, Chairman etc. If such a company commits an offence involving mens rea, it would normally be the intent and action of that individual who would act on behalf of the company. It would be more so, when the criminal act is that of conspiracy. However, at the same time, it is the cardinal principle of criminal jurisprudence that there is no vicarious liability unless the statute specifically provides so.

43. Thus, an individual who has perpetrated the commission of an offence on behalf of a company can be made accused, along with the company, if there is sufficient evidence of his active role coupled with criminal intent. Second situation in which he can be implicated is in those cases where the statutory regime itself attracts the doctrine of vicarious liability, by specifically incorporating such a provision.

44. When the company is the offendor, vicarious liability of the Directors cannot be imputed automatically, in the absence of any statutory provision to this effect. One such example is Section 141 of the Negotiable Instruments Act, 1881. In Aneeta Hada (supra), the Court noted that if a group of persons that guide the business of the company have the criminal intent, that would be imputed to the body corporate and it is in this backdrop, Section 141 of the Negotiable Instruments Act has to be understood. Such a position is, therefore, because of statutory intendment making it a deeming fiction. Here also, the principle of "alter ego", was applied only in one direction, namely, where a group of persons that guide the business had criminal intent, that is to be imputed to the body corporate and not the vice versa. Otherwise, there has to be a specific act attributed to the Director or any other person allegedly in control and management of the company, to the effect that such a person was responsible for the acts committed by or on behalf of the company."

9. He next added that the applicant is a law abiding citizen and is languishing in jail since 16.08.2022. He further added that the other person, who also being aggrieved, lodged first information report against the present applicant and the same was challenged by the present applicant wherein the FIR was quashed by the Division Benches of this Court and the orders have been annexed as Annexure No.4 (Pages 68 to 84).

10. Apart from the aforesaid, he added that the present applicant is still ready to repay back the amount, which was paid by the applicant within stipulated period of time as may be fixed by this Court. He is also ready to give the possession of the unit to the informant as soon as the same is been finally constructed. He submits that the applicant undertakes that in case, he is granted bail, he will not misuse the liberty and would cooperate in the trial proceedings.

11. Per contra, learned AGA appearing for the State vehemently opposed the contention aforesaid and submits that the present applicant is involved in committing the offence as he has neither repaid back the amount which was deposited by the informant nor the unit was handed over to the informant. He added that several other investors had lodged FIR against the present applicant and as such the present applicant is not entitled for bail.

12. Considering the submissions of learned counsel for the parties and after perusal of record, it is evident that there was an agreement between the informant and the applicant and as per the aforesaid agreement, the applicant had to deposit Rs.48,00,000/- and in view thereof the applicant was under obligation to provide a unit in the constructed building, namely, "Palacio Imperial White". It seems from perusal of the record and it is also an admitted fact that the present applicant kept on paying the amount of interest as per the terms and conditions to the informant for about three years, and thereafter as per the assertion of learned counsel for the applicant, due to financial hardship as well as the Pandemic situation, he could not pay further to the informant. This Court also considered the enactment, namely, "Banning of Unregulated Deposit Scheme Act, 2019", wherein a specific provision has been envisaged that unregulated deposit scheme shall be banned; further the counsel for the applicant also placed the photocopy of the semi constructed building, namely, "Palacio Imperial White" and from perusal it seems that the same has almost been constructed; and further learned counsel for the applicant assures that a unit shall be handed over to the complainant, once the same is constructed completely; further prima facie it seems to be a civil dispute between the parties which is being given a colour of criminality; further the applicant is languishing in jail since 16.08.2022. Considering the aforesaid facts, I find it to be a fit case for bail.

13. Let the applicant- Anil Kumar Tulsiani involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-

(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;

(3) The applicant shall remain 08present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and

(4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.

14. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

15. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.

Order Date :- 1.12.2022

KR

(Shree Prakash Singh,J.)