Sanjay Tyagi vs State (Govt. Of N.C.T. Of Delhi)
2010 Latest Caselaw 5892 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              Judgment reserved on: December 03, 2010
                              Judgment delivered on: December 24, 2010

+      BAIL APPLN. NO.1731/2010 & CRL.M(B) NO.1538/2010

       SANJAY TYAGI                                             ....PETITIONER
                              Through:          Mr.Arvind Nigam, Sr. Advocate with
                                                Mr. Sunil Kumar, Advocate.

                              Versus

       STATE (GOVT. OF N.C.T. OF DELHI)      .....RESPONDENT
                    Through: Mr.R.N.Vats, APP.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Sanjay Tyagi, the petitioner herein vide this application is

seeking bail in case FIR No. 140/2009, P.S. Crime Branch, Delhi.

2. Briefly stated, facts relevant for the disposal of this application

are that the learned Company Judge of this court, while hearing

company petition No. 234/2005, titled "Manjit Kaur Vs. Nanda

Tourism Corporation Ltd." arrived at a prima facie finding that

Manjit Kaur was a fictitious person and she had filed petition for

winding up of the company on the basis of forged and fabricated

bills of M/s. Kumar Security Syndicate, a fictitious entity purported to

have provided security services to the company, with a view to

defraud. Accordingly, a direction was issued vide order date 18 th

April, 2009 to investigate into the matter.

3. Pursuant to said directions, Crime Branch, Delhi enquired into

the matter and the enquiry revealed that Manjit Kaur and M/s.

Kumar Security Syndicate was fictitious entities. Kumar Security

Syndicate was the creation of one Sharad Aggarwal, Advocate and

he, in conspiracy with R.K.Nanda, Promila Nanda and directors of

M/s. Nanda Tourism Corporation Ltd., prima facie, fabricated and

forged entries and records to raise claim towards the company and

has prima facie committed offences punishable under Sections 420,

467, 468, 471, 193, 196 & 205 read with Section 120B IPC.

4. It is pertinent to mention that the learned Company Judge,

while dealing with the company petition No. 238/2005, titled "Manjit

Kaur Vs. Durga Builders" arrived at a prima facie finding that Manjit

Kaur (petitioner) was a fictitious person and she had sued for

winding up of the company on the basis of forged bills of M/s. Kumar

Security Syndicate, a fictitious entity, purported to have provided

security service to M/s. Durga Builders Pvt. Ltd., with a view to

defraud the creditors. Learned Company Judge, accordingly issued

direction for registration of FIR in that case also and pursuant to

that, FIR No. 24/2009, P.S. Crime Branch was registered. In the said

matter, after completion of investigation, charge sheet was filed

against R.K.Nanda and Sharad Aggarwal, Advocate, who was

arrested and subsequently released on bail by this court. Promila

Nanda, wife of R.K.Nanda was also released on anticipatory bail.

5. Learned counsel for the petitioner has submitted that the

petitioner surrendered before the learned Trial Judge on 06th

October, 2010 and since then, he is in judicial custody. Though the

Investigating Officer sought police custody remand of the petitioner,

the court declined the prayer. The bail applications moved by the

petitioner were respectively dismissed by the order of learned ACMM

dated 13th October, 2010 and the order of learned Additional

Sessions Judge dated 19th October, 2010. Learned counsel further

submitted that the petitioner has been made a scapegoat in this

case. He was only an employee of Nanda, who made him a dummy

director in M/s. Nanda Tourism Corporation Ltd. in December, 2003

and thereafter, Nanda resigned from the Board of Directors in 2005

and appointed the petitioner as Managing Director. Learned counsel

also submitted that the petitioner was not authorized to operate the

bank account of M/s. Nanda Tourism Corporation Ltd. nor he had

anything to do with the bank account in the name of Kumar Security

Syndicate, which was operated by Sharad Kumar Aggarwal,

Advocate and which account was closed on 02nd March, 2009. He

argued that R.K.Nanda and Promila Nanda were in actual control of

the company and all other directors were namesake directors.

6. Learned counsel further contended that the petitioner has not

committed any forgery and only allegation against him is that he

filed a false affidavit in the court, which constitutes an offence under

Section 193 IPC, which is a bailable offence. Learned counsel

argued that the petitioner has not cheated anybody nor he had

forged any bill and even as per the police report, the forgery was

committed by Sharad Kumar Aggarwal, Advocate, as such, prima

facie, no offence under Section 467 IPC is made out against the

petitioner. Learned counsel further argued that there is no creditor

of M/s. Nanda Tourism Corporation Ltd. and no monetary loss has

been caused to anybody by filing of alleged revival petition by the

petitioner in the company court. Learned counsel argued that as

regards FIR No. 24/2009 registered pursuant to the directions of the

company court in the matter of Manjit Kaur Vs. Durga Builders Pvt.

Ltd., charge sheet has been filed wherein the petitioner is not an

accused. It is also argued that petitioner is the sole bread earner of

his family comprising of his wife and two small children and an aged

mother and his detention in judicial custody is causing unnecessary

suffering to his family members.

7. Learned APP, on the other hand, has opposed the bail

application on the ground that as per the affidavit filed by the

petitioner in the High Court, he was holding 70% shares along with

Ram Avtar Jindal in M/s. Nanda Tourism Corporation. Admittedly, he

was Managing Director of the Company, therefore, he cannot get

away by taking shield of an argument that he was only a dummy

director. Learned APP further contended that in the affidavit, the

petitioner had stated that Manjit Kaur had rendered services to M/s.

Nanda Tourism Corporation and was a creditor to whom a sum of `

8,40,156/- was due by the company.

8. I have considered the rival contentions. On perusal of the

record, it transpires that application for anticipatory bail filed by the

petitioner on the ground that he was only a dummy director in M/s.

Nanda Tourism Corporation Ltd., which is actually owned and

promoted by R.K.Nanda, his wife and their family members, was

rejected by learned Single Judge of this court vide order dated 07 th

September, 2010. In the aforesaid order, there is a reference to the

affidavit of Sanjay Tyagi filed by him in the court on 16 th February,

2009, which reads thus:-

"7. I affirmed the that as on date the propunder hold more than the statutory requirement of 70% as required under the Companies Act propunder expect to acquire the balance and undertake to buy any share from share holder willing to sell.

8. I depose the following shareholders are also the propounders.

1. Shri Sanjay Tyagi A-2, P.T.S. Malviya Nagar New Delhi

2. Ram Autar Jindal S/o Sh. Jagdish Prasad 2 P.T.S. Colony Malyia Nagar New Delhi.

9. As the petition is under Section 391 of the Companies Act and the propounders/petitioners are ready to make the payment to the creditors Manjeet Kaur sole proprietor of Kumar Securities Syndicate.

10. Total amount payable to alleged unsecured creditors. The amount due and payable based on the date of liquidation to the Manjeet Kaur proprietor of Kumar Securities Syndicate was Rs. 8,40,156/- and proprounders have arranged and ready and willing to pay aforesaid amount of Rs. 8,40,156/-alongwith interest and the same has been consented by the petitioner Manjeet Kaur. There is no other creditors."

9. In the affidavit, the petitioner claimed that he held more than

70% of the shares of M/s. Nanda Tourism Corporation Ltd. as

required under Companies Act and he expected to acquire the

balance and undertook to buy any share from the shareholders

willing to sell. He claimed that besides him, Ram Avtar Jindal was

also the propounder shareholder. He also affirmed in the said

affidavit that the amount due and payable, based on date of

liquidation to Manjit Kaur, proprietor of Kumar Securities Syndicate

was ` 8,40,156/- and that the propounders were ready and willing to

pay the aforesaid amount of ` 8,40,156/- along with the interest and

same has been consented to by Manjit Kaur. It is evident from the

record that as per the enquiry conducted by the Crime Branch,

Manjit Kaur is a fictitious person, which prima facie shows that the

affidavit filed by Sanjay Tyagi in the company court on 16th

February, 2009 is false and this circumstance, prima facie, negates

the submission of the petitioner that he was only a dummy

Managing Director.

8. From the above fact, prima facie, involvement of the petitioner

in the conspiracy to create unwarranted liability of M/s. Nanda

Tourism Corporation Ltd. in favour of a fictitious security agency is

disclosed. The offence allegedly committed by the petitioner is of a

serious nature, therefore, at this stage, I am not inclined to grant

bail to the petitioner. Bail application is accordingly dismissed.

9. It is clarified that nothing contained in this order shall be

treated as observations on the merits of the case.

                                                 (AJIT BHARIHOKE)
DECEMBER 24, 2010                                    JUDGE
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