Sharad Kumar Agarwal vs The State
2009 Latest Caselaw 2706 Del

          IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Bail Application No.1158/2009

                         Judgment reserved on: 10th July, 2009

                         Judgment delivered on: 20.07,2009

Sharad Kumar Agrawal                             .....Petitioner
                  Through: Mr. Sunil K. Mittal with Ms. Sangeeta
                           Agrawal and Mr. Kshitij Mittal,
                           Advocates.

                         versus

The State                                            ..... Respondent

Through: Mr. Sanjay Lao, APP for the State.

Mr. Rajiv Bahl, Advocate for Official Liquidiator.

Mr.Vijay Aggarwal and Rakesh Mukhija, Advocates for Respondent No. 2.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

KAILASH GAMBHIR, J.:

1. By way of this application moved under section 439 Cr. P.C., r/w

Section 482 Cr.P.C., the petitioner seeks grant of regular bail.

2. The case of the prosecution, in brief, is that in company

petition no. 238/2005, filed by one Ms. Manjit Kaur, against M/s.

Durga Builders Pvt. Ltd., directions were given by Justice Gita Mittal

vide order dated 3.10.2008 to Crime Branch to conduct investigation

into the existence/address/whereabouts of Ms.Manjit Kaur daughter

of Shri Gyan Singh, R/o E-208, Kavi Nagar Industrial Area, Ghaziabad

(U.P). The court also directed investigation from the aspect of

conspiracy between Ms.Manjit Kaur and Durga Builders Pvt. Ltd., as

well as its Ex-directors Mr. R.K. Nanda and Smt. Promila Nanda.

Pursuant to the said directions, the Crime Branch, Delhi Police carried

out the investigation and found that Ms. Manjit Kaur does not reside

at the given address and M/s. Kumar security Syndicate of which Ms.

Manjit Kaur claimed to be the sole proprietor was also found to be

non-existent firm. It was also found by the Crime Branch that all

entries regarding supply of security guards to M/s. Durga Builders

Pvt. Ltd. seem to be merely paper entries, so much so even the

advocate namely Mr. Vishesh Jain on whose letter head and

signatures the said statutory notice under section 434 of Company

Act to M/s. Durga Builders Pvt. Ltd. was sent prior to filing of the

company petition was also found to be incorrect. The Crime Branch

thus found that the papers submitted by the parties, before the High

court in the company petition bearing no. 238/2005 do not seem to be

genuine and there appears to be a clear nexus between advocates and

Directors of M/s. Durga Builders Pvt. Ltd. Based on this facts, the

Crime Branch registered the said FIR against the present petitioner

and against Mr. R.K. Nanda, Ex-director of M/s. Durga Builders Pvt.

Ltd.

3. Mr. Sunil Mittal submits that the petitioner is in custody for

almost two months. Mr. Mittal further submits that the petitioner is

not required for any further investigation as the entire documents are

either on the Court record or already seized, therefore, any further

detention of the petitioner would tantamount to punishing the

petitioner without any opportunity of fair trial.

4. On facts counsel submits that at the most the present petitioner

is the beneficiary of Rs. 1.25 lakhs only, which amount was paid to

Ms. Manjit Kaur in the company petition No. 238/2005 filed by her

against M/s Durga Builders. Counsel further submits that the worse

allegation against the petitioner could be that he was illegally and

unauthorisedly running the firm under the name of M/s Kumar

Security Syndicate in violation of the professional ethics for which the

action is contemplated under the Advocates Act. Counsel also submits

that the petitioner had no control over the actions of M/s Durga

Builders or its management as he was merely representing M/s Durga

Builders in the said case and in some other cases. Counsel also

submits that in any event the petitioner was not the beneficiary of

seeking winding up of the said company. Counsel also contends that

the petitioner himself had issued public notice so as to find and

ascertain the whereabouts of Manjeet Kaur vide public notice dated

10th December, 2008 in various newspapers. Ms. Manjeet Kaur was

being represented by two different counsels in relation to the said

company proceedings, which led the Court to make certain

observations on 3rd October. Counsel further submits that the

petitioner shall abide by any of the terms imposed by this Court. The

petitioner has also unblemished record since the time of the joining of

the legal profession.

5. Opposing the said bail application Mr. Sanjay Lao APP for the

State strongly contended that Mr.Sharad Aggarwal and Mr. R.K.

Nanda both have abused and misused the process of the court by

filing a frivolous and collusive petition based on forged documents,

therefore, the petitioner does not deserve grant of bail. Mr. Lao

further submitted that there is no lady with the name of Ms. Manjit

Kaur who could file the said company petition against M/s. Durga

Builders Pvt. Ltd. The address of Ms.Manjit Kaur given in the

company petition is also incorrect as on the said address Mr. Pravin

Kumar Aggarwal, real uncle of Mr. Sharad Aaggarwal is residing.

M/s. Kumar Security Syndicate of which Ms. Manjit Kaur has been

shown as a proprietor belongs to Sharad Kumar Aggarwal and he

has been operating account of the said firm i.e. A/c no.

87773071140, syndicate Bank, Malibada Branch, Ghaziabad, U.P.

The said account of M/s. Kumar Security Syndicate also stands closed

on the request of Mr. Sharad Kumar Aggarwal on 2.3.2009 i.e. after

the said investigation was directed by the Company Court. The

address of Mr.Vishesh Jain, Advocate as given in the statutory notice

sent by him is also incorrect as at the said address one Atul Gupta

advocate an associate of the present petitioner has been residing.

The two cheques for sum of Rs. 25,000/- and Rs. 1,00,000/- vide

cheque bearing nos. 559296 and 562479 towards part settlement of

alleged outstanding dues of Ms. Manjit Kaur were presented in the

joint account of Ms. Manjit Kaur and Mr. Sharad Aggarwal at the

UCO Bank Branch of Delhi High Court, New Delhi and subsequently

the said money was withdrawn by the present petitioner through ATM

card and through three cheques. Counsel thus submitted that it is the

petitioner who has ultimately been found to the beneficiary of the

said amount of Rs.1.25 lacs.

6. Counsel also submitted that in another such similar case

investigation has been directed by the court of Justice S.N. Dhingra

and pursuant to the said directions FIR No. 246/08 was registered

under section 420/467/468/471/120B and the investigation against

the petitioner and other accused persons are still in progress by

SOS/Crime Branch, Delhi. In the said suit the present petitioner had

accepted notice on behalf of M/s. Durga Builders Pvt. Ltd. on the very

first date in the court itself, which fact would show that the present

petitioner was involved in getting the said suit filed in active

conspiracy with Mr. R.K. Nanda, Ex-Director of M/s. Durga Builders

Pvt. Ltd. and Mr. Vishesh Jain to secure a decree against Mr. Arun

Mehra and Ms. Seema Mehra. It is only when the court gave

directions for the personal presence of Mr. Vishesh Jain the said suit

was dismissed by the court with a cost of Rs.10,000/- due to the non-

appearance of Mr. Vishesh Jain and to expose the conspiracy between

Mr. Vishesh Jain and the Directors of M/s. Durga Builders Pvt. Ltd.,

Crime Branch of Delhi Police was directed to investigate the matter.

Counsel further submitted that during the investigation some of the

documents were either forged or there were scanned signatures of

Mr. R.K. Nanda, Director of M/s Durga Builders Pvt. Ltd. Mr. Lao,

APP for the State thus submitted that the petitioner and Mr. R.K.

Nanda iin connivance and in collusion with each other have played

serious fraud on this court through their various fraudulent and

criminal acts.

7. I have heard learned counsel for the parties at considerable

length.

8. The FIR in the present case was registered against the petitioner

and Mr. R.K. Nanda, Ex-Director of M/s. Durga Builders Pvt. Ltd.,

pursuant to the directions given by the Company Court directing the

Crime Branch to conduct investigation into the role of Ms. Manjit

Kaur and Ex-Director of M/s. Durga Builders Pvt. Ltd., who are

alleged to have connived to file a company petition based on the

alleged forged documents so as to defeat the rights of the creditors

and that of Mr. Arun Mehra, alleged purchaser of share holding of

said company.

9. Without expressing any opinion on the merits of the above

submission and taking a prima facie view of the matter, it appears to

me quite shocking that the petitioner has blatantly abused and

misused his position of an Advocate by seriously interfering with

the course of judicial proceedings. The investigation against the

petitioner is in progress in two other cases i.e. FIR. NO. 246/2008 and

as per the counsel for the State many more skeletons are likely to

come out from various shady deals of the petitioner.

10. Mr. Sunil Mittal counsel for the petitioner submits that the

petitioner has already been in judicial custody for the past about two

months and he is no more required for any further interrogation and

all the records being judicial, there can be no threat of petitioner's

tempering with the same or influencing any witnesses. Counsel also

submitted that if the petitioner has committed any act of indiscipline

or in violation of Advocates' Act, then necessary action will be taken

by Delhi Bar Council and he will have to face criminal prosecution as

well as other consequences. The main emphasis of the counsel for the

petitioner was that the case of the petitioner should not be treated

differently only because he is a legal practitioner and as already he

has immensely suffered after he was put behind the bar by the

police.

11. The allegation of filing of fictitious case with fictitious names,

fictitious addresses, forged documents, misusing and abusing the

process of the court, no doubt constitutes very serious acts and

deserve strongest condemnation especially when they are allegedly

committed by none else but by those on whose shoulders the edifice

of administration of justice rest. This court would have certainly

appreciated had the Bar Council of Delhi by now would have taken

some decision either to bail out the petitioner from the said serious

charges or had thrown out the petitioner from the rolls of the

counsel, if such allegations are proved correct. It is a high time that

Bar Council of Delhi must rise to the occasion to deal with such

cases very strenuously and effectively without siding for

unscrupulous lawyers. Stream of justice has to be kept clean and

pure and any one spoiling its purity must not be spared howsoever

well connected he or she may be, so that the message goes down to

one and all that no one can be permitted or spared to undermine the

dignity of the court or to interfere with the administration of justice.

12. Reverting back to the facts of the case, I am of the view that

since the wife of the petitioner who is also a practicing advocate

has undertaken on behalf of the petitioner that he will not appear

before any court of law, judicial or quasi-judicial till he is cleared

from the contempt proceedings and also from the disciplinary

proceedings to be initiated against him by the Bar Council of Delhi

and also on account of the fact that he has been in judicial custody

for the last about two months and is not required for any further

interrogation so far the present case is concerned, the petitioner is

granted bail subject to his furnishing personal bond in the sum of Rs.

One lakh with one surety in the like amount to the satisfaction of

the trial court.

13. It is made clear that the petitioner from the date of his release

shall not appear in any court of law, any Tribunal, judicial or quasi-

judicial authority to represent any client either as an advocate or as

an attorney till the time he is finally cleared from the contempt

proceedings initiated against him by the order dated 13.4.2009 and

also after he is finally cleared from the disciplinary proceedings to be

initiated by the Bar Council of Delhi. It is also made clear that the

above observations shall not come in the way of the police to carry out

any further investigation in the other cases already under

investigation or likely to be registered against the petitioner.

JULY 20, 2009                                   KAILASH GAMBHIR,J
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