Bimla Gupta v. SFIO & Anr

2008. Concededly, last auditreport issued by him relates to thefinancialyear ending with 31.03.2008. Itis alleged that the analysis ofthe documents pertaining to the said company for the period 2003-2004 to 2007-2008, seen against the light of his statement recorded during the probe, reveal that he had not fulfilled his duties as statutory auditor and hadfacilitated in enhancement of net worth of the company with fictitious entries in the financialstatements, which was sold to the Group led by Mohd. Iqqal (Al), who utilized certain entries of fictitious share capital,fictitious investments, loans, advances, etc.for liquidation ofbogus investments and to infuse their illicit money, the petitioner having certified the financial statements without verifying the books of accounts and withoutfollowing the basic guidelines of auditingprescribed byInstitute ofChartered Accountants ofIndia. The learned senior counsel, pointed outfrom the investigation report which, in terms ofSection 212(15)of the Companies Act, 2013, is to be treated as report of investigation under Section 173 Cr. PC that accusations against the petitioner relate to the period only upto 31.03.2008, the audit report issued by him pertaining to thefinancial year thereby ending, there being no act of commission or omission attributed for any subsequent period. Though certain other contentions were also raised, what is crucial in the above mentionedsubmission is that on basis ofsuch acts ofcommission or omission anterior to 31.03.2008, it is highly doubtful ifthe offence under Section 447 of the Companies Act, 2013 can be subject matter ofaccusations against the petitioner, this for the simple reason the saidpenalclause had come into force with effectfrom 01.03.2014 only. In theforegoingfactsandcircumstances, theprayer for release on bail is granted. It is directed that upon he furnishing personal bond in the sum of Rs.1,00,0007- (Rupees Onelakh)with onesurety in like amountto the BAIL APPLN.1434/2019& 1467/2019 page3of[6] satisfaction of the Special Judge (Companies Act), the petitioner shall be released on bail pending further proceedings in the criminalcase. Thepetitions is disposedofin above terms." The petitioner ofBail Appln. 1434/2019,BrijBhushan Sharma (A-90)and the petitioner ofBail Appln. 1467/2019, Bimla Gupta(A-

77) are amongst those who have been summoned in the aforementioned case by order dated 24.01.2019 ofthe Special Judge (Companies Act). While the first said petitioner, Brij Bhushan Sharma(A-90)is described as a chartered accountant, inter alia, of two companies viz. MastiffIndustries Pvt. Ltd.(A-95)and Netagro FoodsPvt.Ltd.(A-97)controlled by co-accused SureshKumarGupta (A-80),the second petitioner Bimla Gupta is described as shareholder in Namrata Marketing Pvt. Ltd.(A-96)and also director in some of the companies(also accused)ofsaid Suresh Kumar Gupta. The first petitioner Brij Bhushan Sharma(A-90)has been summoned to answer accusations for offences under Sections 418, AllA,120B IPG,under Sections 211,297,299,301,628,629A ofthe Companies Act, 1956 and under Sections 129, 184, 188, 189, 447,448 ofthe Companies Act, 2013. The second petitioner Bimla Gupta (A-77) has been similarly summoned to answer accusations for offences under Sections 418, AHA, 120B IPG, under Sections 211, 297, 299, 301, 628,629A ofthe Companies Act, 1956 and under Sections 129, 184, 188,189,447,448 ofthe Companies Act,2013. It wasfairly conceded by the learned Additional Solicitor BAIL APPLN.1434/2019& 1467/2019 page4of[6] >■ General that the accusations against both the petitioners pertain to the periodprior to coming into effect (i.e. 01.03.2014) of the penal clause contained in Section 447 of the Companies Act, 2013 this rendering the case against these petitioners to that extent doubtful. It may be mentioned that three other persons, also summoned by the same order in the above mentioned case, they being Ravi Kumar Singhal (A-65), Yogesh Gupta (A-57) and Sanjay Garg (A-66) had also moved applications for anticipatory bail -Bail Applications no.1379-1381/2019 — which were grantedby a common order passed on 30.05.2019. On parity with Ashish Agarwal (Bail Appln. 1430/2019) and the three said others i.e. Ravi Kumar Singhal (A-65), Yogesh Gupta (A-57) and Sanjay Garg (A-66) (Bail Applications nos.1379-81/2019), the petitioners herein deserve similar protection. It is directed that in the event of they being arrested in aforesaid case, the petitioners shall be released on bail on they furnishing personal bonds in the sum of Rs. One lakh each with one surety in the like amount each, to the satisfaction of the arresting officer. The petitioners shall be obliged to appear in person, with counsel of their choice, before the Special Judge on the date fixed, i.e., 01.07.2019 and move proper application for regular bail. The anticipatory bail order hereby granted shall enure to their benefit till 01.07.2019 or if application for regular bail is moved till decision is taken thereupon by the Special Judge and if the prayer for release on regular bail is declined by the said court for a further period of seven days thereafter. BAIL APPLN. 1434/2019 & 1467/2019 Needless to add, while considering the application for regular bail, the Special Judge will not feel bound by the view taken by this court and shall have the liberty to take a decision uninfluenced by any observations made herein. The petitions and the applications filed therewith are disposed ofin above terms. Dasti under the signatures ofCourt Master. ^.K.G^|5A,J MAY 31,2019 yg BAIL APPLN.1434/2019& 1467/2019 page6of[6]