Anand Tiwari vs C B I
2014 Latest Caselaw 4544 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                       Date of Decision: 17th September, 2014

+       BAIL APPLN.1238/2014 & Crl.MB 1109/2014 & Crl.MA
        11156/2014
        P K TEWARI                               ..... Petitioner
                        Through:    Mr. Sidhartha Luthra, Senior
                                    Advocate with Mr. Madhav
                                    Khurana and Mr. Aalam Nijjar,
                                    Advocates.
                        versus
        CBI                                      ..... Respondent
                        Through:    Ms. Sonia Mathur, Standing
                                    counsel for CBI with Inspector
                                    R.K. Singh
                                    Ms. Savita Singh, Advocate for
                                    the complainant

+       BAIL APPLN. 1246/2014 & Crl. MB 11154/2014 & Crl. MB
        1117/2014
        ANAND TIWARI                              ..... Petitioner
                        Through:     Mr. Sidhartha Luthra, Senior
                                     Advocate with Mr. Madhav
                                     Khurana and Mr. Aalam Nijjar,
                                     Advocates
                        versus
        CBI                                       ..... Respondent
                        Through:     Ms. Sonia Mathur, Standing
                                     counsel for CBI with Inspector
                                     R.K. Singh
                                     Ms. Savita Singh, Advocate for
                                     the complainant
%
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
                  JUDGMENT

: SUNITA GUPTA, J.

1. Vide this common order, I shall dispose of two bail

applications being bail application No.1238/2014 filed by Sh. P.K.

Tewari and bail application No.1246/2014 filed by Sh. Anand Tewari,

inasmuch as, both the applications have been moved in case RC No.

RCBDI/2013/E/009.

2. The case has been registered on the basis of complaint received

from General Managar, SBI against M/s. Century Communication

Ltd. (M/s.CCL), petitioners Sh. P.K. Tewari, CMD and Anand

Tewari, Director, Mrs. Meena Tewari, Abhishek Tewari and other

unnamed employees of the company for having caused wrongful loss

of Rs.64.17 crores to the bank. Total eight FIRs were registered

against the petitioner and the companies promoted by them. Charge

sheets were filed in three cases for various offences under Indian

Penal Code and Prevention of Corruption Act, 1988 while

investigation is pending with regard to remaining five FIRs.

3. Mr. Sidharth Luthra, learned Sr. Advocate for the petitioner

submitted that the only ground on which the CBI is seeking the

custodial interrogation of the petitioners is to recover the originals of

two invoices of M/s. Avital Electronics Limited, which are allegedly

in the custody of the petitioner, however, as per the sanctioned letter

issued by SBI, original invoices had to be submitted to the Bank

without which no money could be disbursed. Therefore, original

invoices had been submitted to SBI by CCL. SBI itself has written a

letter to CBI confirming that the original invoices have been

misplaced by it. Despite the fact that the CBI was in possession of

this letter, the same was not disclosed either before the learned

Additional Sessions Judge or before this Court, even though the

petitioner asked for production of the letter. It was only when an

application was filed before this Court that the CBI in its reply for the

first time accepted that it had the said letter and thereafter handed

over the same in sealed cover to the Court. Earlier, the petitioner had

joined investigation and traced out some of the original invoices of

M/s. Avitel Electronics which were seized in another FIR. Now CBI

is claiming that it needed to interrogate the petitioner in order to

discover the utilization of fund for purchase of gold. However, an

affidavit was filed before the learned Additional Sessions Judge

along with a chart recording that the petitioner had handed over

details of the gold and cash seized by the Income Tax Department.

Hence on this ground also no interrogation is required. Moreover,

after the grant of interim protection, the petitioner has not only joined

but also cooperated in the investigation. List of dates have been

submitted for showing as to how many times, the petitioners have

joined investigation. Moreover, out of a total 280 invoices, pertaining

to all the banks, the petitioner handed over 228 invoices to the CBI

and informed that 50 invoices had been seized by Income Tax

Authorities. Therefore, only 2 invoices were left and now it has come

on record that the two invoices have been lost by the Bank. It was

further submitted that there was no intention to cheat on the part of

the petitioner. Out of Rs. 7 crores advanced to CCL as of today only

a sum of Rs.27,74,115/- is payable which the petitioners are ready

and willing to deposit in two instalments. Till September, 2011 all

the companies to whom various banks had advanced money were

servicing all the loans. It is only when the CBI filed a complaint that

the banks stopped granting funds to the petitioners‟ companies which

led to paucity of funds and it was only then that the banks began to

declare the companies as Non Performing Assets. It was further

submitted that the petitioner P.K. Tewari is suffering from acute

ulcerative colitis and hypertension and the petitioner Anand Tewari is

suffering from Cirrhosis of the liver. As such, the petitioners be

released on bail.

4. The application is opposed by the learned standing counsel for

CBI who referred to the averments made in the complaint against the

petitioners for showing the seriousness of the allegations against

them. It was submitted that out of TERM Loan-I of Rs.7 crores, an

amount of Rs.4,71,40,000/- was disbursed by Bank on 29th March,

2004 by way of a demand draft favouring M/s.Avitel Electronics Ltd.

shown as a supplier of software for Media Industry. Investigation

reveals that M/s.Avitel Electronics Ltd. is a fictitious company

through which the funds have been diverted. The promoters/Directors

of M/s. CCL used fake invoices of M/s.Avitel Electronics Ltd. to

induce the bank to part with funds at the time of disbursement of the

Term Loan. It was further submitted that accused P.K. Tewari, CMD

vide letter dated 8th January, 2004 requested the State Bank of Indore

to sanction Rs.10 crores as part finance for setting up a digital studio

at Mumbai. Accused Anand Tewari vide letter dated 19 th March,

2004 submitted status report to Bank with regard to Mumbai Project

and requested for disbursal of amount of Rs.4 crores against Term

Loan-I. Registrar of Companies, Delhi and Haryana vide letter dated

2nd January, 2004, confirmed that M/s.Avitel Electronics is fictitious

company as not registered with ROC. The registration No.

U72900DL2000PTC108642 used for the purpose of opening of bank

account of M/s.Avitel Electronics Ltd. was in fact allotted to M/s.

Northway Electronics Pvt. Ltd. The amount of Rs.4,71,40,000/-

disbursed by Bank was credited in the account of M/s.Avitel

Electronics Ltd. on 6th April, 2004 and on the same day these funds

were retransferred into different account of M/s.CCL which was

credited through DDs issued on the requisition of Anand Tewari of

M/s. Avitel Electronics Ltd. Ms. Sona Debnath, an employee of M/s.

CCL during investigation stated that the invoices of M/s.Avitel

Electronics were signed by her in the assumed name of "M Jain" at

the instance of accused P.K.Tewari. It was urged that the fraudulent

acts committed by CCL and its director and other employees are

highly prejudicial to the financial interest of Bank as they have caused

wrongful loss to the complainant bank and corresponding wrongful

gain to themselves. Reference was also made to the affidavit filed by

SBI that outstanding balance as on date of M/s. CCL amounts to

Rs.64,16,89,773.32.

5. As regards two original invoices, it was submitted that the role

of the bank officials is being investigated. Moreover, the accused

have failed to give the details/end use of Rs.8 lacs which was

withdrawn in cash from the accounts of M/s. Avitel Electronics Ltd.

and had to explain the purchase and disposal of primary gold worth

Rs.5.67 crores and use of cash withdrawal of Rs.4crores from Cash

Credit Account of M/s. CCL.

6. It was further submitted that accused P.K. Tewari has been

arrested by CBI on 3rd September, 2014 in RC-5/E/2012. As such, it

was submitted that the accused do not deserve to be released on bail.

7. Needless to say, while considering the application for grant of

anticipatory bail, the Court has to consider the gravity and seriousness

of the allegations levelled against the petitioners. According to CBI,

inquiry revealed that M/s. Avitel Electronics Limited is a fictitious

company and the company is not registered with the ROC, Delhi and

Haryana. A sum of Rs.4,71,40,000/- was credited on 5th April, 2004

in the account of M/s. Avitel Electronics Limited and on the same

day, it was transferred to various accounts of CCL. It is also the case

of CBI that the accused had got the loan on the basis of false and

fabricated invoices of M/s. Avitel Electronics Ltd. and dishonestly

diverted the funds for purposes other than it was sanctioned. There is

also statement of Sona Debnath, an employee of M/s. CCL who

signed the invoices of M/s. Avitel Electronics in the assumed name of

„M. Jain‟ at the instance of accused P.K. Tewari.

8. Needless to say, the allegations against the accused persons as

to the modus operandi adopted by them for securing loan in the name

of fictitious company and then diverting the funds to CCL are very

serious and grave in nature. That being so, the mere fact that they

have joined the investigation number of times ipso facto is not

sufficient to release them on bail.

9. Accordingly the bail applications are dismissed.

Pending applications, if any, also stand disposed of.

(SUNITA GUPTA) JUDGE SEPTEMBER 17, 2014 rs