Delhi High Court
Pramod Goil vs State Govt. Of Nct Of Delhi & Anr. on 9 February, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment pronounced on: 9th February, 2016
+ BAIL APPLN. 791/2013
SHASHI GOIL & ANR ..... Petitioners
Through Mr.R.N. Mittal, Sr. Adv. with
Mr.Gurpreet Singh and Mr.Jatin S.
Sethi, Advs.
versus
STATE GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through Mr.Hirein Sharma, APP for the
State along with SI Nitin Kumar,
P.S. EOW in person.
Mr.Sunil K. Mittal, Adv. with
Mr.Ramakant Sharma &
Mr.Anshul Mittal, Advs. for
R-2/complainant.
+ CRL.M.C. 1621/2013
PRAMOD GOIL ..... Petitioner
Through Mr.R.N. Mittal, Sr. Adv. with
Mr.Gurpreet Singh and Mr.Jatin S.
Sethi, Advs.
versus
STATE GOVT. OF NCT OF DELHI & ANR. ..... Respondents
Through Mr.Hirein Sharma, APP for the
State along with SI Nitin Kumar,
P.S. EOW in person.
Mr.Sunil K. Mittal, Adv. with
Mr.Ramakant Sharma & Mr.Anshul
Mittal, Advs. for R-2/complainant.
Bail Appl. No.791/2013 & Crl.M.C. No.1621/2013 Page 1 of 32
CORAM:
HON'BLE MR.JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J.
1. Pramod Goil, petitioner in Crl.M.C. No.1621/2013 has filed the
petition under Section 482 of Cr.P.C. seeking quashing of the order
dated 22nd April, 2013 passed by Additional Sessions Judge, Patiala
House Courts, New Delhi whereby the bail granted to the petitioner
was cancelled in FIR No.268/2009 dated 26th December, 2009
registered with PS EOW, under Section 406/420/467/468/471/120-B
IPC.
2. Another petition is filed by Smt. Shashi Goil and her son, Ritesh
Goil, both are wife and son of Mr. Pramod Goil who have filed the
second anticipatory bail application under Section 438 of Cr.P.C. for
grant of anticipatory bail in the same FIR.
3. Lalit Aggarwal, is the complainant and Pramod Goil is his
brother in law. Both matters are arising from the same FIR and due
to many common facts, the petitions are being decided by a single
order.
4. Status reports have been filed in both the matters from time to
time. The relevant facts as per the status report dated 4th July, 2013
are as under:
"The complainant Sh. Lalit Aggarwal, one of the director of
M/s Shree Bihari Forging P. Ltd. A-50, Sec. 2, Noida, UP
had alleged in his complaint that he and his brother-in-law
Mr. Pramod Goil, who is another director in the said
company, were engaged in the business of manufacturing
and dealing with metal forging etc. During the last about
4/5 years, certain disputes arose between them regarding
the management and working of the said company and as
a result, the proceedings before the Company Law Board
were initiated against each other. The cases were filed
before the Company Law Board in the year of 2007 and
matter are still pending there. The complainant received
information from various banks and other financial
institutions regarding loans taken by Pramod Goil in the
name of M/s Shree Bihari Forging Pvt. Ltd. in which his
name was given as a guarantor/applicant. Thereafter, on
enquiry he found that his brother-in-law Mr. Pramod Goil
and his family members took loan of Rs. 1.25 Crore from
following Banks and Financial Institutions after forging his
signature and fabricated the documents in the name of M/s
Shree Bihari Forgings Pvt. Ltd.
1. Bajaj Finance, Jagannath Dudhadhra Complex, Opp.
Maharaja Agrasen Hospital, Rohtak Road, New Delhi -
Loan Amount Rs. 15 Lacs.
2. India Bulls Financial Services Ltd., A-1, FF, Hamilton
House, Connaught Place, New Delhi - Loan Amount
Rs. 25 Lacs.
3. Megama Finance, A-1/93, Basement, Okhla Indl. Area,
Phase-I, New Delhi - Loan Amount Rs. 15 Lacs.
4. Kotak Mahindra Bank, Amba Deep Building, Kasturba
Gandhi Marg, New Delhi - Loan Amount Rs. 15 Lacs.
5. Standard Chartered Bank, 10, Sansad Marg, Jeevan
Deep Building, New Delhi - Loan Amount Rs. 25 Lacs.
6. ABN Amro Bank, 15, Barakhamba Road, Con. Place,
New Delhi - Loan Amount Rs. 20 Lacs.
7. Religare Finvest Ltd., 1/7, East Patel Nagar, Near 178,
Metro Pillar New Delhi - Loan amount Rs. 20 Lacs.
During investigation the loan application forms
alongwith the supporting documents have been taken from
the above mentioned banks and financial institutions. The
concerned officials of bank/financial institutions were
examined. They stated that accused Pramod Goil took loan
from their banks/financial institutions.
The Chartered Accountant of the company Mr.
Mahesh Gupta was examined, who stated that he worked
as a statutory auditor for the company of Shree Bihari
Forgings Pvt. Ltd. for the financial year 2004-05 to 2006-
07. After that he has not signed any balance sheet. The
balance sheet of 2007-2008 is forged as he has not signed
the same.
Specimen signatures of the accused persons taken
after the approval of Ld. Trial Court, specimen signature of
accused, Chartered Accountant, admitted signature and
specimen signatures of complainant alongwith all original
documents collected from banks and financial institutions
were deposited in GEQD for expert opinion. The FSL result
has been received and as per the opinion of the FSL,
signatures of Lalit Aggarwal and Sh. Mahesh Gupta
Chartered Accountant used on loan applications to obtain
loan from different Banks and Financial Institutions in the
name of M/s Shri Bihari Forging Pvt. Ltd were forged. The
signatures of accused Mr. Pramod Goil, Mrs. Shashi Goil,
Mr. Ritesh Kumar and Mayur Goil on the loan documents
were genuine. Thus the accused have availed the above
mentioned loans on the basis of forged documents.
The accused Pramod Goil took the loan on the
behalf of the company M/s Shree Bihari Forgings Pvt. Ltd.
on the basis of forged documents. The applicants/accused
Smt. Shashi Goil and Ritesh Goil were the guarantors
against the above loans and also they were share holders
of the company. Their signatures on the loan application
forms are genuine. The accused Pramod Goil director of
the company M/s Shree Bihari Forgings Pvt. Ltd. was
arrested in the above said case on 21.08.12 and he was
granted bail on same day by the court of Ld. ACMM,
Patiala House Court, New Delhi on the ground that they
are negotiating for the settlement, but the accused Pramod
Goil has not settled the matter as submitted in the trial
court while obtaining the bail.
In this way accused Pramod Goil, Shashi Goil and
Ritesh Goyal in connivance with the other accused persons
obtained the loan from the above mentioned banks and
financial institutions on the basis of documents containing
the forged signature of complainant and Chartered
Accountant."
5. The relevant extracts of the status report dated 12th September,
2013 reads as under:-
"It is further submitted that the DSA M/s Perfect
Finance of Bajaj Finance and Kotak Mahindra Bank, Mr.
Ashwani Sabharwal has been examined. It has been stated
by him that Mr. Vijay Bhutani ex-employee of then ABN
AMRO Bank approached the accused Pramod Kumar Goel
and the documents pertaining to the loan being availed by
Shree Behari Forgings Pvt. Ltd. were provided to him by
accused Pramod Goel. The said documents were verified
from the original in the office of DSA M/s Perfect Finance.
The balance sheet for financial year 2007 to 2008 was also
shown and the balance sheet was verified by Surender
Kumar, the employee of M/s Perfect Finance from the
original.
Mr. Vinit Mittal, the Regional Sales Head, SME,
Megma Finance Ltd. has been examined and it was stated
by him that the loan proposal of M/s Shree Behari Forgings
Pvt. Ltd. was processed through their source Vijay Bhutani
(free lancer). The officials of Megma Finance Ltd. only
verified the credential and financial of the applicant by spot
verification. Mr. Udit Goel & Ritesh Goel (shareholders)
provided the details of the company on the instruction of
Pramod Goel. After satisfaction the loan amount of
Rs.15,00,000 was sanctioned.
The official of Bajaj Finance has been examined. It
has been stated that accused Pramod Goel, Mayur Goel,
Shashi Goel and Ritesh Goel were co applicant of the loan
and they have signed the promissory note and loan term
sheet. No personal guarantee was taken by Bajaj Finance
at the time of sanctioning of loan amount of Rs.15 Lacs.
Mr. Pawan Kumar Bansal, Vice President, Kotak
Mahindra Bank, KG Marg, Delhi stated that accused
Pramod Goel had approached the bank for the loan on
behalf of the company Shree Behari Forgings Pvt. Ltd. and
as per the procedure the loan application was processed
and sanctioned. Accused Pramod Goel has submitted
documents including the board resolution dt. 18.05.09 of
the company Shree Behari Forgings Pvt. Ltd. bearing the
signature of directors.
Mr. Hemant Gupta, Assistant Manager, Standard
Chartered Bank was also examined. It has been stated that
the loan file the Shree Behari Forgings Pvt. Ltd. was
received from Mr. Vijay Bhutani. The loan application was
processed by him. He visited the office of Shree Behari
Forgings Pvt. Ltd. and verified the documents from the
original document shown by the accused Pramod Goil and
Ritesh Goil including the balance sheet of the relevant
period and board resolution dt.25.03.09.
Mr. Vijay Bhutani was also examined and it has been
stated by him that he was working with Ashwani Sabbarwal
on commission basis. He contacted accused Pramod Goil
for loan and visited his office several time for collecting the
requisite documents for availing loan from various bank as
he was looking for a loan of Rs.1.25 crs. He never met Lalit
Agrawal, the complaint and never obtained any signature
from him. All the documentation has been provided by
accused Pramod Goil at his office.
Mr. Sachin Khurana, the Assistant Vice President
Sales of M/s Religare Finvest Ltd. has been examined. It
has been stated by him that a loan of Rs.20 lacs was
sanctioned by M/s Religare Finvest Ltd. to Shree Bihari
Forgings Pvt. Ltd. The loan application was processed
through DSA the Best Solutions. Accused Pramod Goil had
approached the bank on behalf of the borrower company.
All the documentation required for the loan processing was
provided by Pramod Goil to the DSA Best Solutions. In due
procedure of sanctioning the loan he has visited the factory
and office premises of the borrower company where
accused Pramod Goil and Ritesh Goil were present for
verification.
The details of the officials of ABN Amro Bank,
Barakhamba Road and India Bulls Financial Services Ltd.
Noida, the DSAs of the financing institutions/bank are yet
to be examined. The matter is being pursued with the
concerned agencies to obtain the same expeditiously
Accused Pramod Goil was arrested on 21st August,
2012 and he was granted bail on the same day on the
ground of settlement. No police custody remand was
granted for the sustained interrogation in order to ascertain
the authorship of the forged documents and to unearth the
whole conspiracy. The custodial interrogation of the other
accused persons. Ritesh Goil and Shashi Goil is required
to unearth the whole conspiracy.
Further investigation is in progress."
6. It appears from the reports that the matters are under
investigation. The statements of many witnesses have already been
recorded by the Police.
7. The operative part of the impugned order dated 22nd April, 2013
is reproduced here as under :
"I have seen the application, reply, judgments cited and all
the documents on record and my inference is that
application of applicant/complainant under Section 439 (2)
be allowed and bail granted to the accused Pramod Goil
vide order dated 21.08.2012 by the Ld. ACMM be
cancelled on the following grounds:-
Firstly, the para-meters of Section 437(5) Cr.P.C. and
Section 439(2) Cr.P.C. are different, while Section 437 (5)
Cr.P.C. gives power to the Trial Court to grant bail, Section
439(2) Cr.P.C gives power to Court of Hon'ble High Court
or Sessions to set aside the order of bail under this
Section. Merely because application for cancellation of bail
was filed under Section 437 (5) Cr.P.C. is no bar to
disposal of application under Section 439 (2) Cr.P.C., the
arguments of Ld. Counsel for the accused/respondent that
application is not maintainable is not well founded.
Secondly, at the time of granting of bail on 21.08.2012
accused had given the following undertaking:-
"Both the parties have submitted that they are
negotiating a settlement and the accused person has
agreed with to part with the 50% of the vacant land at
Bikuha District Hapur, Ghaziabad to the complainant
and complainant has agreed to resign as Director from
both the companies and transfer his shareholding in
the companies in favour of the accused. The parties
seek three days time to draw an MOU between them
in this regard with intervention of their respective
lawyers. In these facts and circumstances of the case,
the accused Pramod Goil is admitted to bail, on
furnishing Personal Bond and Surety Bond in the sum
of Rs.30,000/-."
Despite taking so many dates, the aforesaid undertaking
has not been, fulfilled. Hence, undertaking has been given
by the accused without intention to perform the same.
Since the undertaking has not been complied and the bail
has been granted on the basis of aforesaid undertaking,
the accused lost his right to remain on bail.
Thirdly, subsequent proceedings after date of hearing
21.08.2012 shows that accused adopted delaying tactics,
sometime he appeared, sometime he did not appear and
sometime his counsel has not appeared and he always
taking dates. This shows that accused is playing fraud with
the Court after taking bail on 21.08.2012.
Fourthly, the total amount of Rs.1 crore 35 lacs is involved
and it is the allegation of the complainant that accused has
committed fraud of Rs. 1 crore 35 lacs. This amount is too
much and the order of Hon'ble Mr. Justice P.K. Bhasin
dated 27.08.2012 (Supra) is squarely applicable in the
present case.
Fifthly, on the face of it, accused appears to have misused
his liberty after being released on bail on 21.08.2012 by not
complying his undertaking given on 21.08.2012.
In view of above, the present application for cancellation of
bail under Section 439(2) is allowed and the bail granted to
the accused on 21.08.2012 is cancelled. Accused is
directed to surrender before the concerned PS/Ld. MM
within 3 days of this order. Dasti."
8. The accused parties and the complainant are in relation. Many
cross FIRs are pending against each other in various courts in Delhi
and in Uttar Pradesh. Pramod Goil is already on regular bail in the
said matter. In the present FIR his bail was cancelled by the
impugned order dated 22nd April, 2013, which has been challenged
by him in Crl.M.C. No.1621/2013. At the first date itself, the Court had
passed the following orders in Crl.M.C. No.1621/2013.
"By this petition filed under Section 482 Cr.P.C. the petitioner
seeks to challenge the order dated 22.4.2013 passed by the
learned Additional Sessions Judge thereby cancelling the bail
of the petitioner under Section 439 (2) Cr.P.C. and directing
the petitioner to surrender before the concerned PS/learned
M.M. within a period of three days.
Arguing the present petition counsel submits that the
petitioner has always been ready and willing to settle the
dispute with the complainant. It is the complainant who did
not come forward to transfer his share holding in the said
company in favour of the petitioner after receiving the same
from the said company. Counsel also submits that so far the
petitioner is concerned he had agreed to part with 50% of
the vacant land at Bikuha District Hapur, Ghaziabad to the
complainant and the petitioner is willing to deposit the title
deeds of the said property with this Court to show bona fide
on his part.
I have heard learned counsel for the petitioner.
Notice.
Mr. Navin Sharma, APP for the State accepts notice on
behalf of the State. Notice now be sent to respondent No.2,
returnable on 30th August, 2013.
Let original title deeds of the said vacant land at Bikuha
District Hapur, Ghaziabad be deposited by the petitioner with
this Court within a period of one week and on the deposit of
the same the Registry shall keep the said title deeds in the
sealed cover. Subject to deposit of the said title deeds by the
petitioner the impugned order shall stand stayed till the next
date.
Dasti."
9. The case of the petitioners is that the sole objective and
intention of the complainant is to harass them and to put undue
pressure with a malafide intention to take control of the company
namely M/s Shree Bihari Forgings Pvt. Ltd. which was incorporated in
the year of 2004 by the petitioners and the complainant.
10. In the year 2004, a private company namely M/s Shree Bihari
Forgings Pvt. Ltd. was duly registered with the registrar of the
companies, Delhi and Haryana under Companies Act, 1956. The
petitioner, Pramod Goil and the complainant are the founder
Directors of the said company. Both i.e. Shri Pramod Goil and Shri
Lalit Aggarwal, the complainant were authorised to operate the said
bank account. A piece of land situated in Pilakhuwa, Distt.
Ghaziabad, U.P. on Dholana road was purchased in the name of the
said company and in the year of 2005, a manufacturing unit was
established for manufacturing iron ingots. The said petitioner and the
complainant had 5000 shares each initially and authorized capital of
the company was increased to Rs. 1 lac, which was subsequently
increased to Rs. 2 lacs, again to Rs. 1 crore and further increased to
Rs.1.5 crores. The said petitioner was having 70% shares and the
complainant was having 30% shares only in the said company. The
complainant did not show any interest in the business of the company
and never co-operated with the petitioner in the managing the
business affairs of the company. It was the said petitioner who had
put his hard labour and worked day and night to run the affairs of the
company.
The intention of the complainant became dishonest. The
complainant with the active collusion and connivance of his
Chartered Accountant with intention to increase his share holdings
and to take control of the factory/manufacturing unit/company
fraudulently converted the unsecured loans amounting to Rs. 74 lacs
approx. into share capital by allotting shares on different dates in
December, 2007 in an illegal manner by misusing the digital
signatures of the said petitioner. The digital signatures of the said
petitioner were in possession of the Chartered accountant in good
faith and trust. Thereafter, the said petitioner started checking the
accounts and record of the company and he came to know that the
complainant had siphoned a huge amount approx. Rs.1.80 crores of
the company without the knowledge and notice of the said petitioner
from the account/bank of the company by issuing and using cheques
duly signed by the complainant from the cheque book which was
already in his possession.
10.1 Pramod Goil filed a company petition bearing No. ND15/2008 in
Company Law Board under Section 397/398 of the Companies Act,
1956, against the complainant and vide order dated 8th May, 2008 the
complainant was restrained by the Company Law Board from
operating the said bank account of the company till further orders.
As a counter blast, the complainant filed a counter company
petition under Section 397/398/402/403 read with Section 237B and
Section 408 of the Companies Act, 1956 before the Company Law
Board bearing petition No. 47ND/2008. Both the petitions are
pending.
10.2 The complainant also filed a company petition under Section
397/398/402/403 of the Companies Act, 1956 before the Company
Law Board bearing petition No. 103 (ND) / 2009 with respect to
working of the company - M/s BSL Buildcon Pvt. Ltd. The FIR No.
599/2009 under Sections 408/420/467/468/120B IPC at PS
Shakarpur registered on the complaint of Shri Lalit Aggarwal, the
complainant wherein the same allegations were made as in the FIR
No. 268 of 2009, Police Station EOW. The complainant forged the
signature of his wife Smt. Seema Aggarwal who was made petitioner
No. 2 in the company petition. The petitioner reported the matter to
SHO Police Station, Parliament Street, Delhi and FIR No. 189/2009
under Section 465/468/467/471/120B IPC was registered against the
complainant.
10.3 The said petitioner also filed a complaint against the
complainant and his Chartered Accountant at Police Station,
Shakarpur, Delhi, about their misdeeds and criminal acts of forgery,
criminal breach of trust, criminal conspiracy etc. and FIR No.
787/2009 under Section 409/465/467/471/120/34 I.P.C was
registered and the case is pending for further investigation as stated
in the order dated 10th October, 2012.
10.4 The complainant sold the property of company namely M/s BSL
Buildcon Pvt. Ltd. in which the said petitioner is one of the Director.
The property of the company was sold in a fraudulent manner without
the knowledge and notice of the petitioner and the complainant
prepared and created false and fabricated board resolutions and
siphoned the huge money and used for his personal gain causing
huge wrongful loss to the company. FIR No. 241/2011 under Section
406/409/420/467/468/471/120B/34 IPC was registered at PS-EOW
on the complaint of Shri Pramod Goil against the complainant and
others in connection with sale of the property of M/s BSL Buildcon
Pvt. Ltd. As a counter blast with the sole objective to pressurize,
embarrass and harass the petitioner and others, the complainant got
registered the present F.I.R. No. 268/2009 under Sections
406/420/467/468/471/120-B IPC at P.S. - Economic Offence Wing by
making false and frivolous allegations against the petitioner and
others. Earlier also FIR No. 599/2009 dated 15th October, 2009 under
Section 408/420/467/468/120B IPC at PS-Shakarpur (in which
Closure Report has been filed by the IO in the concerned court) was
registered on the same/similar allegations as in the present FIR.
11. The allegations in the present FIR are that various loan
applications for and on behalf of M/s Shree Bihari Forging Pvt. Ltd.
have been submitted for obtaining loan from various banks without
any board resolution as the complainant was not in talking terms with
another director/accused namely Pramod Goil and no such board
meetings for taking such loans were ever held. It is further alleged
that the accused persons have forged the signatures of the
complainant on various loan application forms which were processed
by M/s Perfect Finance, Jhandewalan, Delhi and an amount more
than Rs.1.25 crores loan has been obtained and the accused
persons have thus caused wrongful loss to the complainant and to
the company as such sums have been siphoned.
12. The petitioners in both the matters have submitted that no
forgery has been committed by the accused/petitioners in the loan
applications as alleged by the complainant. The loans were obtained
by the company for its need in day to day business requirements.
Loan applications were processed through the agent namely; M/s
Perfect Finance and documentation was completed by the said agent
under advice and guidance from the bank. Hence, there is no
question of the accused/petitioners having committed any forgery as
alleged. The loan application forms, etc. were got signed from the
complainant by the agent and the same were submitted by him to the
bank after collecting other requisite documents from the complainant
like copy of passport, pan card etc. Admittedly, verifications were
made from the complainant about such loans as mentioned in the
FIR. The accused/petitioners are not at all involved in the acts of
forgery, if any, as alleged by the complainant.
12.1 It is stated that the loans have been obtained in a legitimate
manner by the Company for its business and day to day need and
the total loan amount of Rs. 1.35 crores has since been paid. The
outstanding loan amounts have been repaid in accordance with the
terms of the loan. Statements of accounts have been furnished to the
IO who had cross checked the same and had found that no funds
have been diverted to the accounts of the accused/petitioners and as
such the accused/petitioners are not the beneficiaries. The No Dues
Certificates/Statement of Accounts issued by various banks about
repayment of loans by the Company has been filed.
12.2 No offence of cheating, forgery, criminal breach of trust, etc.
have been committed by the accused/petitioners and as per the
records of the Company the loan amount obtained from various
banks by the Company as well as loan amount repaid to such banks
has been correctly reflected in the balance sheets as on 31st March,
2009 and 31st March, 2010 and such balance sheets duly audited by
the qualified auditor have been submitted to the Income Tax
department along with the income tax returns filed by the Company.
12.3 Before the Company Law Board in hearing of the petition
bearing No. 103 (ND) / 2009 with respect to working of the company -
M/s BSL Buildcon Pvt. Ltd., the complainant made a statement that
Minutes Book of the said company is in his possession and the Board
suspecting some foul play directed the Bench Officer to visit the
Registered Office with the petitioner for taking in possession the
Minutes Book. By the order dated 19th July, 2012 the Company Law
Board recorded the malafide intention of the complainant as the
complainant on 18th July, 2012 made a statement that all the
statutory records of the Company - M/s BSL Buildcon Pvt. Ltd. are
with the complainant (petitioner therein) and when the Bench Officer
visited the registered office of the Company with the complainant, the
registered office was locked and when the Bench Officer tried to put
another lock on the door so that the records are not manipulated, two
muscle men stopped him and the Board recorded that "The conduct
of the petitioner smells foul play and shows malafide and serious
adverse inference need to be drawn against the petitioner." The
copies of the orders dated 18th July, 2012 and 19th July, 2012 passed
by the Company Law Board in the petition bearing No. 103 (ND) /
2009 with respect to working of the company - M/s BSL Buildcon Pvt.
Ltd. has been filed.
13. On 26th July, 2012 the said petitioner was arrested in the FIR
No. 290/2011 under Section 420/467/468/471 IPC at PS-Sector-20,
Noida and thereafter he surrendered himself before the court in FIR
No. 405/2011 under Section 408/465/468/471/477A IPC at PS-
Kotwali, Ghaziabad. On 21st August, 2013 the petitioner was in
custody in the above two FIRs and in terms of the Production
Warrant issued in the present FIR No. 268 of 2009, Police Station -
EOW by ACMM, Patiala House Courts, the petitioner was produced
before ACMM - 01, Patiala House Courts, New Delhi.
14. The petitioner moved the bail application before the court and
the petitioner was granted bail and further was sent to Dasna Jail with
respect to other FIRs.
15. The petitioner was granted bail by the High Court of Allahabad
vide the order dated 28th September, 2012 in FIR No. 290/2011
under Section 420/467/468/471 IPC at PS-Sector-20, Noida.
16. The complainant filed an application under Section 437 (5)
Cr.P.C. for cancellation of bail before the ACMM, Patiala House
Courts, New Delhi on the ground that the petitioner after taking bail
was not coming forward for compromise.
On 18th October, 2012, ACMM vide the order dated 18th
October, 2012 dismissed the application under Section 437 (5)
Cr.P.C. of the complainant.
17. The petitioner was granted bail by the High Court of Allahabad
vide the order dated 18th October, 2012 in FIR No. 405/2011 under
Section 408/465/468/471/477A IPC at PS-Kotwali, Ghaziabad and
released from jail on 19th October, 2012.
18. The complainant filed an application under Section 439 (2)
Cr.P. C. before the Session Judge for cancellation of bail of the
petitioner.
19. The allegations of the complainant in the FIR No. 268 of 2009
is that the accused persons applied for the loan on his false
signatures and manipulated the accounts of the Company - M/s
Shree Bihari Forgings Pvt. Ltd. The Company dealing with the same
allegations in the Company Petition 47 (ND)/2008, by the order dated
8th March, 2013 the Court appointed independent Chartered
Accountant for inspecting the records of the Company and the
complainant was authorized to negotiate with the independent
Chartered Accountant and to bring him to the registered office of the
Company.
20. It is a matter of fact that by order dated 17th April, 2012 passed
by ASJ, Patiala House Court, New Delhi had dismissed the
anticipatory bail application of co-accused Ms. Shashi Goil and Mr.
Ritesh Goil thereafter, thus again moved second anticipatory bail on
the ground of change of circumstances which was again dismissed
by the aforesaid Court by order dated 10th May, 2012.
21. They also filed an application for anticipatory bail before this
Court on the ground of change of circumstances by stating that the
Pramod Goil had deposited the title documents of the property and
now the complainant had to resign from the directorship, which was
dismissed by this Court by its order dated 15th March, 2013. On 21st
August, 2012 the petitioner/accused Pramod Goil was brought from
the Dasna Jail though production warrant as he was under judicial
custody in two other cases before the MM, Patiala House Court, New
Delhi.
22. According to Mr. Sunil Mittal, Advocate who argued that
Metropolitan Magistrate granted conditional bail to the Pramod Goil
by order dated 21st August, 2012 as both the parties were negotiating
a settlement/compromise. Therefore, he was released on bail. But,
despite of various dates granted by the Court on 29th August, 2012,
1st September, 2012, 4th September, 2012, 5th September, 2012, 12th
September, 2012, 17th September, 2012, 24th September, 2012 and
10th October, 2012 the accused did not complete the formalities.
23. He admits that the complainant earlier moved an application
under Section 437(5) of Cr.P.C. before Trial Court for cancellation of
bail and the MM dismissed the said application of the petitioner by
order dated 19th October, 2012 and subsequently the complainant
filed an application under Section 439(2) Cr.P.C. before the ASJ 01,
Patiala House Court, New Delhi for cancellation of bail granted to the
petitioner. On 22nd April, 2013 ASJ cancelled the bail granted to the
petitioner vide order dated 21st August, 2012 with the direction that
the petitioner shall surrender before the concerned Police Station/
Metropolitan Magistrate within three days. The trial court in the
impugned order was justified in cancelling his bail order.
24. Mr. Sunil Mittal states that the title deeds of the property papers
which are deposited before this Court are already mortgaged before
the Department of Commercial Tax, Government of India, even the
said fact was not disclosed before Court. There is also a restraint
order passed by this Court in Ex.P.No.201 of 2014 titled as 'Goodluck
Capital Pvt. Ltd. v. Shree Bihari Forgings Pvt. Ltd.' for creating any
third party interest or selling the said property in question. The said
execution has now been transferred by this Court to the District
Judge, Hapur for execution of the judgment and decree dated 26th
March, 2014.
25. The Court on various occasions i.e. on 5th September, 2012
and 20th February, 2013, referred the matter to the Delhi High Court
Mediation Centre for settlement of the parties. The complainant
showed his willingness but the petitioners did not appear several
times before the Mediator. Therefore, the mediation proceeding failed
and no amicable settlement could be arrived at between the parties.
Therefore, Pramod Goil is not serious about the settlement with the
complainant. He is adopting hide and seek policy.
26. It is also informed by Mr. Mittal that on 31st August, 2015, the
Administrator, appointed by the Company Judge who directed
Pramod Goil to produce the books of accounts on the next date of
hearing i.e., 16th September, 2015 at 17.00 hrs. On 4th September,
2015 this Court ordered Pramod Goil to produce all financials and
other relevant record of the company to the Administrator in order to
conduct smooth comprehensive audit of the company. On 16th
September, 2015, the counsel on behalf of Pramod Goil also gave
undertaking to deposit the records of the company on the same date
i.e., 16th September, 2015. The Court vide order dated 16th
September, 2015 directed the petitioner Pramod Goil to deposit all
the records of the company with the Administrator. Inspite of the
directions given by Administrator on 31st August, 2015 and also
directions by this Court by order dated 4th September, 2015 to
produce all the records of the company with the Administrator,
Pramod Kumar Goil did not produce the same. It is submitted that
car which was driven by Mr. Ritish Goil, carrying the books of
accounts and other relevant documents have caught fire and all the
records for the period 2007-2008 to 2014-2015 has been destroyed.
27. It is informed by Mr. Mittal that Pramod Goil locked the office
and the factory premises and broke the earlier locks of the premises
in order to take all the assets and other assets like tables, chairs and
other furniture from the office of the Company. On 21st November,
2015, on the false averments by Pramod Goil for not producing the
books of accounts and other relevant documents to the Administrator,
an FIR No.0652/2015, under Sections 193/203/204/426/477A/120-
B/477/465/435/409/420 IPC, PS Pilkuwa, Distt. Hapur was filed by
complainant. The Administrator vide letter dated 18th November,
2015 authorized complainant to file criminal cases against Mr.
Pramod Goil or any other person who have removed the tangible
assets of the company.
28. On 3rd December, 2015, Pramod Goil sent resignation letter.
On 21st December, 2015, order passed by the Administrator in the
proceeding that he would not take back the documents of Shree
Bihari Forgings Pvt. Ltd. from the Registrar of this Court unless the
orders passed by this Court.
29. The matter has been argued by Sh. R.N. Mittal, learned Senior
counsel appearing on behalf of the petitioners submitted that the
statement made by him to transfer 50% share at the time of granting
the bail by the trial court would not bind him to get the bail at all in
case of non-compliance. However, counsel has assured that the
Pramod Goil is still ready and willing to comply with the order as per
the statement made in the trial court and before this Court but at the
same time, the complainant is also to perform his duty. The
petitioner's counsel on many occasions has discussed the said
aspect and given his suggestion in order to transfer the 50% shares
in favour of the complainant. Learned Senior counsel however
submits that no undertaking was given by his client in this regard; but
he was merely ready for negotiating a settlement as referred in the
order when bail was granted. However, in the impugned order it was
wrongly recorded about the undertaking. Thus, the said order is not
sustainable.
30. However, counsel for the petitioners has not denied the fact
that as per the order passed by this Court, it was agreed by his client
i.e. Pramod Goil would transfer the 50% of the vacant land at Bikuha
District Hapur, Ghaziabad as per statement made by him in the trial
court and on the basis of the same, this Court issued the notice and
passed the interim protection.
31. Learned Senior counsel submits that Pramod Goil was and is
ready and willing to transfer the 50% of the land when the property is
released. His client has no objection if after clearing the liabilities, the
entire property be sold and its half value on the date of settlement be
given to the complainant. If any left, his client would be entitled for the
remaining amount. At present, his client is not in a position to pay the
said value as demanded by the complainant due to money crunch.
32. It is argued on behalf of the petitioners that it is the complainant
who is unwilling to settle as they had to relinquish their rights, from
both the company but the complainant is not coming forward to give
any records of the company M/s BSL Buildcon Pvt. Ltd. The conduct
of the complainant in regards of the records of the company is very
much shown from the orders passed by the Company Law Board
dated 18th July, 2012, 19th July, 2012 and 20th July, 2012 where the
complainant had misbehaved with the bench officer and two muscle
flexing young person had stopped him to put a lock at the registered
office.
There was also a loan of Rs 3.6 Cr which was taken in the year
2004 - 2005 by the Company for which there is no allegation against
the said petitioner in the present FIR but the same was also re-paid
by him from its own efforts.
In the BSL Buildcon Pvt. Ltd. where both Pramod Goil and
complainant are directors and the complainant Lalit Aggarwal had
sold the Company property without any consent, which is worth Rs.
10 Crores at a meager amount which was purchased by the
Company for Rs.4.21 Crores. But the complainant had sold the same
as shown in the sale deed for a value of Rs. 1.45 Crores. And the
fund was used by the complainant for his personal purposes. In the
said case FIR is lodged by the said petitioner bearing FIR No.241/11
PS. EOW which is pending investigation.
33. Pramod Goil had admittedly deposited the title deeds of the suit
property before this Court. He has also resigned from the company. It
is not possible at present to sell the said property. The Company
Court has appointed the Administrator to look into the entire business
accounts, profit and loss or any money siphoned by the Pramod Goil;
the said proceedings are also pending.
34. The following judgments are relied upon by the learned Senior
Counsel for the petitioner :-
(i) Dolat Ram v. State of Haryana, 1995 SCC(Cri) 237.
(ii) Subhendu Mishra v. Subrat Kumar Mishra and Another,
2000 SCC (Cri) 1508.
(iii) Hazari Lai Das v. State of West Bengal & Another, 2009
(10) SCC 652.
(iv) Samarendra Nath Bhattacharjee v. State of West Bengal
and Another, 2004 (11) SCC 165.
(v) Nityanand Rai v. State of Bihar and Another, (2005) 4
SCC 178.
(vi) Devender Kumar v. State of Haryana 2010 (6) SCC 753.
(vii) Suresh Chand v. State NCT of Delhi, 2013 (2) JCC 952.
(viii) Rajan Mahajan and Anr. v. State and Another, (2002) 97
DLT 253
(ix) CBI v. Akhand Pratap Singh, (2008) 146 DLT 93
(x) Bhuvaneshwar Yadav v. State of Bihar, (2008) 15 SCC
(xi) Madhu Garg v. State & Ors., 2009 Cri LJ 1067
(xii) Trinity Global Enterprises Ltd. v. Raj Hiremath & Anr.,
2013 (1) JCC 391.
35. As far as Bail Application No.791/2013 is concerned, no doubt
there is a change in the circumstances which gives rise for the cause
of action for filing the present second bail application as the loan
taken by the company has now been repaid to their respective
bankers. This Court has also appoined the Adminstrator to look into
the entire matter and at the same time, undertaking is also being
given by Mr. Pramod Goil that custody is not required in order to
complete the remaining investigation left, if any, as they undertake to
produce themselves before police as and when required and also to
produce all documents which are in their power and possession.
Even otherwise, the petitioner No.1 Shashi Goil is a house wife and
she is not involved in the day-to-day affairs of the company in any
manner and there is no allegation regarding the role of the petitioner
No. 1 in the alleged transaction(s). Ritesh Goil, the petitioner No. 2 is
a young person aged about 32 years and has two very young
children: one daughter aged 8 yrs old and one son aged 5 years old.
They have already joined investigation and have furnished their
specimen signatures and submitted documents. They have signed on
the loan application forms as guarantor but they are not the
beneficiaries who have never taken any loan from the banks. Hence,
they deserve the relief as prayed for. In case of arrest by the police
they be granted bail accordingly, as no custodial investigation is
required.
36. It is asserted on behalf of Pramod Goil that the loan application
forms, etc. were got signed from the complainant by the agent and
same were submitted by him to the bank after collecting other
requisite documents from the complainant like copy of passport, pan
card etc. He is not at all involved in the acts of forgery. The author of
the alleged forgery has neither been named nor established. The
CFSL report is not decisive and binding upon him. No loss has been
caused to the complainant and/or to the company and/or to the banks
in any manner. The entire loan amount has been paid. He has deep
roots in the society. There is no chance of him fleeing away from the
process of law. He undertakes to appear before the concerned court
during the course of trial on the time, date and place fixed for trial.
37. It is a settled law that the grant of bail ought not to be denied
only on the perceived apprehension by the Court that the petitioner, if
restored to liberty, will tamper with the evidence. There must be some
prima facie evidence on record or reasonable and justifiable grounds
to believe that in case the benefit of bail is extended to an accused,
he is going to misuse his liberty or he would create conditions which
are not conducive to hold a fair trial. The Supreme Court in various
judgments has confirmed that "Bail is the rule and jail is an exception.
The object of bail is neither punitive nor preventive but is meant to
secure presence of the accused during the trial.
38. The Supreme Court in the case of Sanjay Chandra v. Central
Bureau of Investigation, (2012) 1 Supreme Court Cases 40 in paras
21, 22, 23, 24, 40, 45, 46 after recording the facts and law has held
as under:-
"21. In bail applications, generally, it has been laid down
from the earliest times that the object of bail is to secure
the appearance of the accused person at his trial by
reasonable amount of bail. The object of bail is neither
punitive nor preventative. Deprivation of liberty must be
considered a punishment, unless it is required to ensure
that an accused person will stand his trial when called
upon. The courts owe more than verbal respect to the
principle that punishment begins after conviction, and that
every man is deemed to be innocent until duly tried and
duly found guilty.
22. From the earliest times, it was appreciated that
detention in custody pending completion of trial could be a
cause of great hardship. From time to time, necessity
demands that some unconvicted persons should be held in
custody pending trial to secure their attendance at the trial
but in such cases, "necessity" is the operative test. In this
country, it would be quite contrary to the concept of
personal liberty enshrined in the Constitution that any
person should be punished in respect of any matter, upon
which, he has not been convicted or that in any
circumstances, he should be deprived of his liberty upon
only the belief that he will tamper with the witnesses if left
at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the
object of refusal of bail, one must not lose sight of the fact
that any imprisonment before conviction has a substantial
punitive content and it would be improper for any court to
refuse bail as a mark of disapproval of former conduct
whether the accused has been convicted for it or not or to
refuse bail to an unconvicted person for the purpose of
giving him a taste of imprisonment as a lesson.
24. In the instant case, we have already noticed that the
"pointing finger of accusation" against the appellants is "the
seriousness of the charge". The offences alleged are
economic offences which have resulted in loss to the State
exchequer. Though, they contend that there is a possibility
of the appellants tampering with the witnesses, they have
not placed any material in support of the allegation. In our
view, seriousness of the charge is, no doubt, one of the
relevant considerations while considering bail applications
but that is not the only test or the factor: the other factor
that also requires to be taken note of is the punishment that
could be imposed after trial and conviction, both under the
Penal Code and the Prevention of Corruption Act.
Otherwise, if the former is the only test, we would not be
balancing the constitutional rights but rather "recalibrating
the scales of justice".
- xxx-
40. The grant or refusal to grant bail lies within the
discretion of the court. The grant or denial is regulated, to a
large extent, by the facts and circumstances of each
particular case. But at the same time, right to bail is not to
be denied merely because of the sentiments of the
community against the accused. The primary purposes of
bail in a criminal case are to relieve the accused of
imprisonment, to relieve the State of the burden of keeping
him, pending the trial, and at the same time, to keep the
accused constructively in the custody of the court, whether
before or after conviction, to assure that he will submit to
the jurisdiction of the court and be in attendance thereon
whenever his presence is required.
- xxx-
45. In Bihar Fodder Scam (Laloo Prasad v. State of
Jharkhand, (2002) 9 SCC 372) this Court, taking into
consideration the seriousness of the charges alleged and
the maximum sentence of imprisonment that could be
imposed including the fact that the appellants were in jail
for a period of more than six months as on the date of
passing of the order, was of the view that the further
detention of the appellants as pretrial prisoners would not
serve any purpose.
46. We are conscious of the fact that the accused are
charged with economic offences of huge magnitude. We
are also conscious of the fact that the offences alleged, if
proved, may jeopardise the economy of the country. At the
same time, we cannot lose sight of the fact that the
investigating agency has already completed investigation
and the charge-sheet is already filed before the Special
Judge, CBI, New Delhi. Therefore, their presence in the
custody may not be necessary for further investigation. We
are of the view that the appellants are entitled to the grant
of bail pending trial on stringent conditions in order to ally
the apprehension expressed by CBI."
39. However, in the facts of the present case, certain terms are
necessary to be imposed against Pramod Goil in view of his conduct,
who has been changing its stand from time to time. He is neither co-
operating with the Administrator appointed by this court nor he has
fulfilled the condition of settlement offered even at that point of time
when the property was not attached. The 50% share of entire
property at that time could have been transferred in favour of
complainant but it was not happened due to cleverness of Pramod
Goil. Even during the course of hearing, learned counsel appearing
on his behalf has not denied the fact that the value of the property is
more than Rs.3 crores, however, it could not be disposed of as his
client had no buyer. But factually, the decree of recovery has already
been passed in the suit filed by the third party.
40. As far as the anticipatory bail to the petitioners i.e. Shashi Goil
and Riteish Goil in Bail Appl. No. 791/2013 is concerned, it is
directed that in the event of their arrest, the petitioners shall be
released on bail subject to their furnishing a personal bond in the sum
of Rs.10,000/- with one surety of the like amount to the satisfaction of
the Investigating Officer (IO) and further subject to the following
conditions:-
(i) that they will appear as and when directed by the IO and
continue to cooperate in the investigation;
(ii) that they will furnish his present address and contact number
to the IO and will not shift from the said address or change
the contact number, without prior permission of the IO;
(iii) that they will surrender their passport to the IO and will not
leave the country without permission of the Court.
In case of violation of any of the conditions above, it will be
open to the State to apply for cancellation of the bail.
41. Therefore, under these circumstances, it would be appropriate
to put the conditions while granting bail to Mr. Pramod Goil. The bail
is granted but subject to the following conditions:
i) Trial in the matter is expedited;
ii) Pramod Goil as well as other petitioners in bail application
shall join the investigation and produce all relevant
documents which are required by the police which are in
their power and possession;
iii) The petitioner shall not dispose of Company's property
without the permission of the Court if the said property at
any point of time is released from the attachment;
iv) The petitioners shall not approach any witness and tamper
the record of the Company and shall not leave the country
without the permission of the Court;
v) The petitioners shall fully cooperate with the Administrator
appointed by this Court and shall produce the entire record
available with them; and
vi) Without prejudice, Mr. Pramod Goil shall also deposit a
sum of Rs.50 lac with the trial court by way of bank draft as
a security as despite of statement made by him for
settlement from time to time, he failed in his commitment.
The said amount shall be deposited within eight weeks. On
deposit, the trial court shall invest the said amount in fixed
deposit initially for the period of one year.
42. The bail is being granted subject to the abovementioned
conditions.
43. The impugned order dated 22nd April, 2013 passed by the ASJ,
Patiala House Courts, New Delhi is hereby set aside and order dated
21st August, 2012 passed by ACMM, Patiala House Courts, New
Delhi is upheld.
44. Both the petitions are accordingly disposed of.
45. No costs.
(MANMOHAN SINGH)
JUDGE
FEBRUARY 9, 2016
