Delhi High Court
Mukesh Bhanwarlal Bhandari vs Govt. Of Nct Of Delhi on 8 September, 2022
[1]
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ BAIL APPLN. 2394/2022
Between:-
SHRI MUKESH BHANWARLAL BHANDARI,
S/O SHRI BHANWARLAL BHANDARI
R/O BHANDARI FARMHOUSE,
NEAR AMBLI BRTS,
AMBLI 380058, GUJARAT
........PETITIONER
(Through: Mr. Kailash Vasdev, Senior Advocate alongwith Mr.
Shrey Kapoor & Mr. Sitesh Narayan Singh, Advocates).
AND
GOVT. OF NCT OF DELHI ....... RESPONDENT
(Mr. Utkarsh, APP for State
Mr. Saurabh Soni & Mr. Sanjeet Kumar Thakur,
Advocates for Complainant)
+ BAIL APPLN. 2396/2022
Between:-
SHRI SIDHHARTH MUKESH BHANDARI,
S/O SHRI MUKESH BHANWARLAL BHANDARI
R/O BHANDARI FARMHOUSE, NEAR AMBLI BRTS,
AMBLI 380058, GUJARAT
........PETITIONER
Signature Not Verified
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By:PRATIMA
Signing Date:12.09.2022
12:04:52
[2]
(Through: Mr. Harshit Tolia & Mr. Sitesh Narayan Singh,
Advocates).
AND
GOVT. OF NCT OF DELHI ......... RESPONDENT
(Mr. Utkarsh, APP for State
Mr. Saurabh Soni & Mr. Sanjeet Kumar Thakur,
Advocates for Complainant)
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% Pronounced on : 08.09.2022
JUDGMENT
PURUSHAINDRA KUMAR KAURAV, J.
1. This order would dispose of two applications filed by the
respective applicants in connection with same crime, however, for the
sake of clarity facts would be referred from BAIL APPLN. 2394/2022 as
and when required.
2. The applicants apprehend their arrest in connection with FIR No.
93/2022 registered at PS Lodhi Colony, District South-East, for offences
punishable under Sections 420/468/471/120-B of the IPC.
3. The learned senior counsel appearing on behalf of the applicants
submit that the applicants are innocent and they have been falsely
implicated in the instant case. According to him, no offence, as alleged in
the FIR, is made out. The allegation that the signature of some of the
shareholders is forged is incorrect. According to him, at best, the alleged
act would fall under Section 171 and/or 181 of the IPC and, therefore, the
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Signing Date:12.09.2022
12:04:52
[3]
offences punishable under Sections 171 and 181 of the IPC are covered
within the sweep of Section 195 of the Cr.P.C., according to which, the
complaint in writing can only be given by the officer of the court. He,
therefore, submitted that as per Section 195(1)(b)(i) of the Cr.P.C., the
FIR is not maintainable and instead, complaint in writing could only be
given to the concerned Magistrate. He further stated that out of 151
shareholders who had signed the original Power of Attorney-cum-
consent letter dated 18.09.2021, more than 130 shareholders have already
sent their written communications to the Investigating Officer in reply to
the questions put forth, accepting their signatures on the said Power of
Attorney. As per the mandate of Section 244 of the Companies Act,
2013, to file an appropriate application before the NCLT, Ahmedabad,
under Sections 241 and 242 of the Companies Act, more than 100
shareholders are required. It is, therefore, submitted that there was no
reason for the applicants to forge any document or signature of any
shareholder inasmuch, as more than 130 shareholders had admittedly
signed the concerned Power of Attorney, and they have specifically
informed the Investigating Officer. It is also submitted that the impugned
FIR suffers from malice and vexatious prosecution. Identical
FIR/complaint was given by the complainant/Managing
Director/Shailesh Bhanwarlal Bhandari before Santej Police Station
Gandhi Nagar, Gujarat and enquiry was carried out by the officials of the
said police station in detail. The statements of the applicants were
recorded. All the documents were given to the police authority. The
complainant realized that since no offence was made out, therefore,
before the formal conclusion of the said enquiry at Gujarat, the
complainant filed the present FIR with identical set of allegations at
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Signing Date:12.09.2022
12:04:52
[4]
Police Station Lodhi Colony, New Delhi. The act of the complainant
speaks volumes about his mala fide intent. It is also submitted that the
complainant has also filed applications under Section 340 of the Cr.P.C.,
before the NCLAT, New Delhi and NCLT, Ahmedabad, on the basis of
identical set of allegations. The applications so filed under Section 340 of
the Cr.P.C. are still pending. The police machinery is sought to be
misused by filing the untenable, false and fraudulent FIR, so that the
applicants can be put to physical and mental torture and ultimately
pressure is built to succumb to legal proceedings pending before the
various courts of law. He also submitted that predominantly the act or
omission alleged in the impugned FIR, are of civil nature. The applicants
have a long-standing dispute with Shailesh Bhanwarlal Bhandari. He
further submits that the applicants, namely, Mukesh Bhanwarlal
Bhandari, is aged about 70 years and is a permanent resident of Ambli
BRTS, Gujarat having his movable and immovable properties, and there
is no possibility of his absconding or not joining the investigation as and
when required. He specifically submitted that during the pendency of the
bail application before the learned ASJ, as per the directions of the
learned court, the applicants in both the cases appeared on 22.06.2022
and 30.06.2022 before the Investigating Officer, and they were
thoroughly interrogated. The learned senior counsel, therefore, submitted
that the applicants are entitled for grant of anticipatory bail.
4. Learned senior counsel has placed reliance on various decisions of
the Hon'ble Supreme Court in the cases of Mohammed Ibrahim and
Ors. v. State of Bihar and Anr.1, Safiya Khan Alias Shakuntala
2009 3 SCC 751
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[5]
Prajapati v. State of U.P. and Anr. 2, Rekha Jain v. State of Karnataka
and Anr. 3, Gurukanwarpal Kirpal Singh v. Surya Prakasam and Ors.4,
Shriniwas Pandit Dharamadhikari v. State of Maharashtra5, Govind
Prasad Kejriwal v. State of Bihar & Anr.6, Sardar Ali Khan v. State of
Uttar Pradesh 7, Vikas v. State of Rajasthan8, M.Suresh & Ors. v. State
of Andhra Pradesh & Anr.9, Commissioner of Police & Ors. v.
Devender Anand10, Babu Venkatesh and Ors. v. State of Karnataka &
Anr.11, Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai12, Vijay
Kumar Ghai & Ors. v. State of West Bengal & Ors.13, Randheer Singh
v. State of U.P. & Ors.14, Mitesh Kumar J. Sha. v. State of Karnataka15,
Arnab Manoranjan Goswami v. State of Maharastra and Others 16, P.
Chidambaram v. Directorate of Enforcement17, Bandekar Brothers
Private Limited v. Prasad Vassudev Keni and Others18, Siddharam
Satlingappa Mhetre v. State of Maharashtra and Ors.19 & Satendra
Kumar Antil v. Central Bureau of Investigation and Anr.20, MOH,
decision of the High Court of Bombay in the case of Dr. Swapna Patker
2022 4 SCC 549
2022 SCC OnLine SC 585
Special Leave to Appeal (Crl.) No.5485/2021
1980 4 SCC 551
2020 16 SCC 714
2020 12 SCC 51
2014 3 SCC 321
2018 15 SCC 273
2019 SCC OnLine SC 996
2022 5 SCC 639
2022 SCC OnLine SC 258
2022 SCC OnLine SC 344
2021 SCC OnLine SC 942
2021 SCC OnLine SC 976
(2021) 2 SCC 427
(2020) 13 SCC 791
(2020) 20 SCC 1
(2011) 1 SCC 694
2022 SCC OnLine SC 825
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[6]
v. State of Maharashtra and Ors.21, and decision of this court in the case
of Jamshed Adil Khan & Anr. v. Union Territory of J&K22.
5. The prayer is vehemently opposed by learned APP for the State
assisted by Shri Saurabh Soni, learned counsel for the complainant.
Learned APP, while referring to the status report, submits that the perusal
of the FIR shows that the allegations against the applicants are serious.
According to him, out of 151 persons, who claimed to have signed the
Power of Attorney, it was found that only 77 had signed the same. He
submitted that the applicants have filed forged and fabricated Power of
Attorney in order to get relief from the NCLT, Ahmedabad, as well as
from NCLAT, Delhi, therefore, they are not entitled to any protection.
He further submitted that notwithstanding the pendency of application
under Section 340 of the Cr.P.C. before NCLT and NCLAT, the police
station in Delhi has jurisdiction to investigate the case. He further
submitted that a specific statement has been made by one Mr. Sameer
Odhabai Degamadiya that he did not sign the Power of Attorney and had
not given his consent to the applicants to pursue application under
Section 241 of the Companies Act, before the NCLT Ahmadabad. He
further submitted that the custodial interrogation of the applicants is
required for the purpose of knowing how 77 non-shareholders had signed
the Power of Attorney. Their signatures, identification and credentials are
yet to be examined. Signatures of the applicants and hand-writing have to
be taken, the conspiracy of fake shareholders has to be unearthed and the
Original Power of Attorney is to be recovered. He also submits that the
applicants are not disclosing correct information to Investigating Officer
and are giving vague answers. He specifically pointed out that on
Writ Petition No.2281 of 2021
W.P.(CRL.) No.976 of 2022
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By:PRATIMA
Signing Date:12.09.2022
12:04:52
[7]
22.06.2022, accused No. 2/Siddharth Mukesh Bhandari gave a statement
that the accused are in possession of Original Power of Attorney and
would produce the same before the Investigation Officer as and when the
same is required. However, on 16.08.2022, when he appeared before the
Investigation Officer, he stated that the Original Affidavit and Power of
Attorney were stolen from his office and, therefore, it can be seen that
the accused are not cooperating with the investigation. Under the
aforesaid circumstances, he, therefore, prayed that the applicants are not
entitled for grant of anticipatory bail.
6. I have heard the learned counsel appearing on behalf of the parties
and perused the record.
7. The Hon'ble Supreme Court, in paragraph No.112 in the matter of
Siddharam Satlingappa Mhetre (supra), has laid down some of the
factors to be considered in the matter of anticipatory bail. The same is
reproduced as under:-
"112. The following factors and parameters can be taken into
consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the
accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the
accused has previously undergone imprisonment on conviction by a
Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice;
iv. The possibility of the accused's likelihood to repeat similar or the
other offences.
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[8]
v. Where the accusations have been made only with the object of
injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large
magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the
accused very carefully. The court must also clearly comprehend the
exact role of the accused in the case. The cases in which accused is
implicated with the help of sections 34 and 149 of the Indian Penal
Code, the court should consider with even greater care and caution
because over implication in the cases is a matter of common
knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors namely, no prejudice
should be caused to the free, fair and full investigation and there
should be prevention of harassment, humiliation and unjustified
detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the
witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only
the element of genuineness that shall have to be considered in the
matter of grant of bail and in the event of there being some doubt as to
the genuineness of the prosecution, in the normal course of events, the
accused is entitled to an order of bail".
8. In the aforesaid judgment of Siddharam Satlingappa Mhetre
(supra) in paragraph No.113, the Hon'ble Supreme Court has further
held that the arrest should be the last option and it should be restricted to
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[9]
those exceptional cases where arresting the accused is imperative in the
facts and circumstances of that case. It has further been held that the
court must carefully examine the entire available record and particularly
the allegations which have been directly attributed to the accused, and
these allegations are corroborated by other material and circumstances on
record. In paragraph No.114, it has been explained that there are some
factors which should be taken into consideration while deciding the
anticipatory bail applications. Those factors are not exhaustive, but they
are only illustrative in nature. The position of law, as explained in the
case of Siddharam Satlingappa Mhetre (supra), has further been
considered by the Hon'ble Supreme Court in its recent pronouncement in
the case of Satendra Kumar Antil (supra).
9. If the facts of the present case are seen, the same would
demonstrate that the applicant Mukesh Bhanwarilal Bhandari is the
founder Director of Electrotherm India Ltd., which is a company
established in the year 1994 under the Companies Act. The brother of the
applicant-Shailesh Bhanwarlal Bhandari, is the complainant in the
present case. The said company is registered with the Bombay Stock
Exchange and National Stock Exchange and has 6,500 shareholders. The
applicant was the Chairman of the company from its date of
incorporation till the year 2020. The applicant was removed in the year
2020. In the year 2007, certain bifurcation of work in the company was
made, and in 2010, it is stated that the company, on account of certain
financial crunch, had to obtain certain loans, advances and credit
facilities. There were certain irregularities in availing of the loans, and
certain financial losses allegedly occurred to the concerned Bank and,
therefore, that led to the filing of an FIR in the year 2014 by the Bank
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Signing Date:12.09.2022
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[10]
before the CBI, Mumbai, for the offences punishable under Section 120-
B read with Section 420 of IPC with Section 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act. The said case, at the
instance of CBI, is pending before the CBI Court at Ahmadabad against
the Directors of the Company and certain Bank officials. Another
accused in the present FIR, who is an applicant in the connected case,
namely, Siddharth Mukesh Bhandari stated to have taken charge as a
Director of the company in the year 2017. He, having found that he was
cheated by Shailesh Bhanwarlal Bhandari by siphoning of the funds
through Shell companies and fictitious transactions, filed a criminal
complaint being criminal inquiry No. 1483/2019 before the Chief
Metropolitan Magistrate, Ahmedabad for the offences punishable under
Sections 465/467/468/471/120-B/114 of the IPC. Shailesh B. Bhandari
and others are the accused in the said case. The learned Magistrate
exercised its power under Section 156(3) of the Cr.P.C., and directed for
registration of the FIR. Accordingly, FIR being M. case No. 1/2019 is
registered and pending with CID, Crime and Railways, Gandhi Nagar.
Siddharth Mukesh Bhandari, accused No.2 in the present FIR, had also
filed two other complaints being, Criminal Inquiry Case Nos.
1484/2019& 1485/2019 before the Chief Metropolitan Magistrate, and
therefore, in all, there are three FIRs registered against Shailesh
Bhandari and others. It is also seen that in the year 2019 Shailesh
Bhanwarlal Bhandari preferred a petition under Section 482 of the
Cr.P.C. before Hon'ble Gujarat High Court challenging aforesaid FIRs.
The Hon'ble Gujarat High Court, vide order dated 10.10.2019 directed
that there shall be no coercive steps against him. The Hon'ble Supreme
Court stayed the order passed by the Gujarat High Court and finally vide
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Signing Date:12.09.2022
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[11]
order dated 19.12.2021, the Hon'ble Supreme Court has set aside the said
interim order passed by the Hon'ble Gujarat High Court. It is thereafter,
the Hon'ble Gujarat High Court had taken up the petitions for final
hearing and vide order dated 14.02.2022, stayed the investigation arising
out of M. Case No.2 & 3 of 2019, as stated above. The applicant Mukesh
Bhanwarlal Bhandari in Bail Application No. 2394/2022, assailed the
aforesaid order dated 14.02.2022 again before the Hon'ble Supreme
Court. The Hon'ble Supreme Court issued the notices on 25.04.2022 and
directed the Investigating Officer to file a report as to the investigation
carried out therein. The Hon'ble Supreme Court finally vide order dated
02.08.2022, allowed the petition.
10. It is seen that besides the aforesaid criminal proceedings in the
year 2017, the accused No.2 in the present FIR Mukesh Bhanwarlal
Bhandari, filed Company Petition No.93/2018 & 94/2017 before NCLT
Ahmedabad, challenging various illegal appointments of independent
Directors to the Board of the company, which is pending for its
adjudication. On 08.04.2021, accused No.2/Mukesh Bhandari filed an
application under Section 241 & 242 of the Companies Act before
NCLT, Ahmedabad, seeking various prayers against the concerned
Managing Director, including his removal etc. The said applicant had
filed an IA No. 499/2019 in the above company petition for waiver of the
mandate of the minimum requirement of 10% of shareholders. The said
IA was dismissed by NCLT, Ahmedabad vide order dated 08.04.2021.
The accused No. 2 in the present FIR/Mukesh Bhanwarlal Bhandari
assailed the said order before NCLAT vide Company Appeal No.
86/2021, and according to him, in the meantime, around 150 persons
came forward and represented to him that they were the shareholders of
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[12]
the company and want to initiate/join the proceedings under Section 241
& 242 of the Companies Act, 2013. It is seen that a Power of Attorney
was prepared stating the details of DEMAT accounts of around 150
persons in favour of the accused No. 2/ Mukesh Bhanwarlal Bhandari
and accordingly, the application was withdrawn in Company Appeal No.
86/2021 as, according to them, they were made to understand that they
have the mandate of the required number of shareholders to initiate the
proceedings under Section 241 & 242 of Companies Act. It is seen that
the aforesaid Power of Attorney was allegedly forged by the accused in
the present FIR. The same has been produced before the NCLAT, Delhi,
for the purposes of withdrawal of the IA. It is also to be noted that on
22.10.2021, one application I.A. No. 12/2021 was filed stating therein
that the Power of Attorney was forged and the persons mentioned at
Serial Nos.1 to 74 are the only shareholders of the company, and the rest
of the persons mentioned therein are not the shareholders of the company
as on 17.09.2021. Accordingly, a prayer was made to initiate action
under Section 340 read with Section 195 of the Cr.P.C. and further to
direct the Registrar, NCLAT, to register the FIR against the present
accused persons. On 26.10.2021, in the identical manner, the
complainant filed another application before NCLT, Ahmedabad, to
initiate the same proceedings. It is seen that between 25.12.2021 to
21.03.2022, the accused received a mandate of total 205 shareholders of
the company. The applicant, therefore, preferred fresh Company Petition
No. 5/2022 before NCLT Ahmedabad, which is pending for its
adjudication. It is thus seen that fresh proceedings under Section 241 &
242 of the Companies Act, 2013 are pending at the instance of the
applicant.
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Signing Date:12.09.2022
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[13]
11. The facts of the case further show that at the instance of Shailesh
Bhanwarlal Bhandari/ complainant, Special Civil Suit No. 553/2009 is
pending seeking prayer to restrain the defendants therein from entering
into the company's premises. An application under Order 31 Rules 1 &
2 of the Cr.P.C. was rejected on 15.11.2021. Another Company Appeal
(AT) No. 54, 55, 56 & 57/2021 are also pending at the instance of the
complainant before the NCLAT.
12. The learned APP contented that non-production of Original Power
of Attorney is a serious issue. According to him, once it was accepted by
the applicants in their statements that they are in possession of the
Original Power of Attorney at a later stage, they cannot take a different
stand to say that the same has been stolen. On the other hand, the
applicants have stated that there is no reason to hide the Original Power
of Attorney from the Investigating Officer, and if at all, there has been
any intention not to produce the same in the first statement itself, it could
have been informed that the same was stolen from them. The applicants,
therefore, stated that they have already lodged a complaint with respect
to stealing of the Original Power of Attorney dated 19.09.2021 and
inquiry with respect to the aforesaid fact is going on. According to them,
the photocopy of the said Power of Attorney is already a part of the
record before this court as well as before the NCLT Ahmedabad and
NCLAT Delhi. A certified copy of the same can always be obtained and
can be used as secondary evidence, as per Section 65 of the Indian
Evidence Act, 1872. In any case, it is submitted that on account of non-
production of the Original Power of Attorney, the applicants should not
be denied the protection of anticipatory bail.
13. Under the facts of the present case, this court is of the opinion that
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[14]
non-availability of Original Power of Attorney alone would not call for
any custodial interrogation. It can be seen that applicant Mukesh
Bhanwarlal Bhandari, who is a senior citizen has appeared before the
Investigating Officer on 09.06.2022, 26.06.2022, 16.08.2022,
23.08.2022. The applicant Siddharth Mukesh Bhandari also appeared on
09.06.2022, 22.06.2022, 14.08.2022, 16.08.2022 and 23.08.2022 before
the Investigating Officer. The offences alleged against the applicants are
under Sections 420/468/471/120-B of the IPC. The maximum
punishment is up to seven years with a fine. The offences in question are
triable by Magistrate. There is no reasonable apprehension of the accused
persons to tamper with the evidence or to influence the witnesses. They
being permanent residents of the State of Gujarat, having their movable
and immovable property therein, cannot be expected to flee from justice.
There are no criminal antecedences except a few litigations between the
parties. There is no significant interest of the public or of the State
involved in the matter. The dispute predominantly relates to dominance
on a company. There is a long-standing dispute between both the groups.
The photocopies and certified copies of the Original Power of Attorney
are still available. The interrogation of the signatories or their statement
can still be recorded by the Investigating Officer. The accused have
undertaken that at any stage of the investigation if they are able to get the
Original Power of Attorney, they would produce it before the
Investigating Officer. It is thus seen that merely on the ground that the
Original Power of Attorney is not available with the Investigating
Officer, the accused cannot be denied the benefit of anticipatory bail
when it is found that they have been able to prove all other factors in
their favour.
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Signing Date:12.09.2022
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[15]
14. It is also seen that the allegations in the FIR relate to forgery of
signatures of 77 persons in the Power of Attorney. With respect to the
same allegations, two separate applications have been filed by the
complainant before the NCLT and NCLAT, as stated in the preceding
paragraphs. The complainant apparently approached Police Station at
Gujarat, where the enquiry was conducted. The complainant thereafter
made a representation. It was noted by the said police station that
nothing is required to be done with respect to his application. The entire
allegation relates to the documentary proof. The applicant No. 1 is aged
about 70 years and the applicant No. 2 is his son. The applicant No. 1 is
the brother of the complainant and the applicant No. 2 is his nephew.
15. Having considered the nature of the allegations and the overall
facts and circumstances of the case, as noted above, this Court finds it
appropriate to grant anticipatory bail to both the applicants.
Accordingly, it is directed that in the event of arrest, the applicants be
released on anticipatory bail subject to their furnishing personal bonds in
the sum of ₹50,000/- each with one surety each in the like amount to the
satisfaction of the Arresting Officer/Investigating Officer/SHO of the
concerned Police Station and also subject to the further following
conditions:-
(i) The applicants shall join the investigation as and when
they are directed to do so.
(ii) The applicants shall not directly or indirectly try to get
in touch with the complainant or any other prosecution
witnesses or tamper with the evidence.
(iii) In case of change of residential addresses/contact
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[16]
details, the applicants shall promptly inform the same
to the concerned Investigating Officer/SHO.
(iv) The applicants shall regularly appear before the Trial
Court as and when the charge sheet is filed against
them.
(v) The applicants shall not leave India without previous
permission of this Court. They would surrender their
passport forthwith.
(vi) The applicants would render all assistance in securing
the Original Power of Attorney and in case, at any
stage of the investigation, if they are able to locate it,
the same would be produce before the Investigating
Officer without any delay.
(vii) The complainant/State would be at liberty to file an
appropriate application in case, it is found that the
applicants are in contravention of any of the terms and
conditions imposed by this court.
16. The bail applications are disposed of in the above terms.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
SEPTEMBER 08, 2022
p'ma/priya
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By:PRATIMA
Signing Date:12.09.2022
12:04:52
