Ajay Singh v. The State NCT of Delhi

1. By way of these applications filed under Section 438 of Cr.P.C, the petitioner seeks anticipatory bail in FIR 246/2021 dated 27.07.2021 and FIR No.284/2021 dated 02.09.2021 registered under Section 420 of IPC at Police Station Hauz Khas.

2. The dispute is regarding transfer of 15 lakhs and 10 lakhs shares of Spice Jet for consideration of Rs.15 lakhs and Rs.10 lakhs respectively from the complainant to the petitioner. It is further the case of the complainant that the petitioner dishonestly handed over outdated Delivery Instructions Slips (DIS) for the purpose of transfer of shares.

3. It is alleged by the complainant that the petitioner is deliberately and dishonestly resisting the transfer of shares in accordance with the Share Purchase Agreements (SPA-I and SPA-II) (entered into on 03.02.2017 and 09.07.2018 respectively) despite the closing dates as settled in the agreements.

4. On the other hand, the stand of the petitioner is that as per the agreements, transfer of those shares were contingent upon final outcome of the dispute between him and erstwhile promoter of the company and therefore the shares could not be transferred to the complainant as the dispute is still pending. Further, DIS had been given, in good faith, as a security in 2015 and on assurance of the parties to agree on a formal arrangement with proper documentation to be set out subsequently. It is further submitted that while the petitioner was not in India from 07.06.2019 to 07.07.2019, Heena Nanda Gujral, complainant in FIR No.195/2019, sister of the complainant/informant illegally and surreptitiously deposited Rs.10 lakhs in the account of the petitioner and presented the DI Slip with date 01.07.2019. On 11.07.2019, after the petitioner came back to India, the amount of Rs. 10 lakhs was returned back in the account of Heena Nanda Gujral with the reminder that the conditions precedent had not been met and as such, there was no question of performing obligations under SPA II. Further on 01.10.2019, Chetan Nanda, son of the complainant wrote a letter to the petitioner informing that he has deposited Rs. 10 lakhs in the bank account of the petitioner and has presented the DIS handed over to him and called upon the petitioner to issue fresh depository slips in contravention with the terms and conditions of SPA II. The petitioner thereupon on 27.12.2019, wrote a letter to the complainant informing him from misusing the DIS for any purpose and not to transfer sale consideration until the conditions precedent set forth in the SPA II are fulfilled. The petitioner also vide letter dated 15.01.2020 sent a detailed reply to the complainant/informant highlighting that the contents of SPA II clearly recorded that the closing of the same was dependent on the final outcome of dispute between the petitioner and erstwhile promoter of Airline company and also pointed to the malafide intention of the complainant in unilaterally transferring the sale consideration.

5. Learned APP for the State has sought time to file the status report. However, the application has been opposed with the assistance of learned senior counsels for the complainant. It has been submitted by the learned senior counsel for the complainant that the petitioner left the country on 30.03.2022 while the present bail applications have been preferred thereafter. It is further urged by the learned senior counsel for the complainant that there was no conditions precedent for transfer of shares as per SPA II since it merely provided an option to the purchaser that it can make transfer of shares till final outcome of the dispute. The presentation of old/invalid DIS is stated to be intentional since the petitioner never wanted the transaction to be through and knew that the same would be rejected by the depository participant. It is also contended that there is every possibility that the petitioner may flee the course of justice, if released on bail and also some other FIRs are stated to be registered against him.

6 It may be noticed that the interim protection was granted to the petitioner vide order dated 09.03.2021 by the learned Trial Court but the application was finally dismissed vide order dated 30.03.2021.

7. The anticipatory bail was dismissed by the learned Additional Sessions Judge vide order dated 30.03.2022 primarily considering that the petitioner deliberately and dishonestly resisted the transfer of shares in accordance with SPA I and SPA II and the shares of the Airline Company were also pledged previously on three occasions since 2015. It was also observed that SPA-I and SPA-II are silent regarding previous handing over of DIS as a security. Further in the facts and circumstances, it was observed that the custodial interrogation of the petitioner is required.

8 I have given considered thought to the contentions raised. FIR’s in question are based on a civil and commercial dispute out of Share Purchase Agreements dated 03.02.2017 and 09.07.2018, wherein the complainant as well as the petitioner have given different interpretations of the closing date of the transactions with regard to handing over of DI Slips. It is pertinent to note that during the course of submissions, learned senior counsel for the petitioner very fairly submitted that the petitioner was willing to undertake to keep the requisite number of shares secured as per the SPAs, to protect the interest of the parties. It cannot be ignored that the petitioner is a Chairman and Managing Director of Spice Jet Airlines and has deep social roots in the society and has no criminal antecedent except for the FIRs in relation to the transactions referred by the complainant. The petitioner has already joined investigation and also filed a detailed reply to the Investigating Officer during the course of investigation. Merely because the petitioner has travelled as per the preschedule commitment, it cannot be assumed that he is a flight risk. The dispute between the parties also appears to be of a civil nature which could not be finally concluded because of the different interpretations given by the parties. The Arbitral Tribunal granting an Award in September, 2018 was not the final outcome since the Award has been challenged in proceedings and is presently pending before the Delhi High Court. Further the contention raised by the learned senior counsel for the petitioner that as per Clause 4.1.1, the petitioner was required to deliver fresh duly executed DIS to the complainant only on the closing date once the conditions precedent set forth in the SPA II are met cannot be brushed aside. The handing over of the DIS to the complainant prior to execution of SPA II as a security under a bonafide formal arrangement or otherwise requires deeper investigation. It cannot be ignored that there has been correspondence on behalf of the petitioner whereby the considerations stated to have been surreptitiously deposited on behalf of the complainant have already been credited back in the respective accounts. It may also be noted that in Arnesh Kumar vs. State of Bihar, reported in (2018) 8 SCC 273, it is observed that in cases of punishment of imprisonment upto seven years, arrest is not the norm. It is imperative to consider that the petitioner has already joined the investigation and if he is not likely to abscond, in that event, custodial interrogation should be avoided, specifically when the dispute appears to be civil in nature.

9. In the facts and circumstances, since the dispute concerns the transfer of shares involving breach of agreed terms and conditions, it may be appropriate to grant interim protection to the petitioner. Accordingly, no coercive action shall be taken against the petitioner till next date of hearing and NBWs, if any, issued in this regard by the Competent Authority are stayed. The petitioner is however directed to join investigation as and when called by the Investigating Officer. The petitioner is also directed to keep the disputed shares secured till further orders as offered by the learned senior counsel for the petitioner and an undertaking in this regard shall be submitted to the investigating agency.

10. Nothing stated herein above shall tantamount to an opinion on the merits of the case.

11. List on 24.05.2022.

(ANOOP KUMAR MENDIRATTA) JUDGE April 07, 2022