- (1.) HEARD learned counsel for applicant and learned A.G.A.
(2.) ACCUSED -applicant is involved and detained in Case Crime No. 1336 of 1992, under Sections 406, 420, 467, 468, 471 and 120 -B IPC, P.S.Hazratganj, district Lucknow. Sri Gaurav Bhatia, learned counsel appearing for applicant would submit that FIR was lodged in year 1992 and charge -sheet was submitted in year 1995 but applicant was neither named in the FIR nor in the charge -sheet. After 16 years, applicant has been arrested. Applicant was merely an authorized signatory on behalf of M/s Kanpur Fats Pvt. Ltd., as such no criminal liability can be fastened on him. He further submits that Directors of the company took loan from Pradeshiya Industrial and Investment Corporation of U.P. (PICUP) for establishing M/s Kanpur Fats Pvt. Ltd. Applicant is neither Director nor promoter nor financer. He was merely authorized to sign on behalf of the company. As such even if Directors of company have committed some wrong, applicant cannot be held responsible. He has referred a decision of the Apex Court given in the case of Sanjay Chandra v. CBI (Arising out of SLP (Crl.) No. 5650 of 2011). particularly relying upon following extracts: - "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 preventive. Deprivation of liberty must be considered a punishment, unless it can be 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........." "..........From time to time, necessity demands that some un -convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test........" "..........This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual......." "..........We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment........" "A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. 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.........." "It is not in the interest of justice that accused should be in jail for an indefinite period........." Sri Bhatia with great vehemence has argued that Hon'ble Apex Court in the case of State of NCT of Delhi v. Rajiv Khurana, (2010) 11 Supreme Court Cases 469 has clearly demarcated the area where criminal liability can be fastened on the Directors and employees of the company. Relevant paragraph of the judgment is being quoted herein below: - "17. The ratio of all these cases is that the complainant is required to state in the complaint how a Director who is sought to be made an accused, was in charge of the business of the company or responsible for the conduct of the company's business. Every Director need not be and is not in charge of the business of the company. If that is the position with regard to a Director, it is needless to emphasize that in the case of non -Director officers, it is all the more necessary to state what were his duties and responsibilities in the conduct of business of the company and how and in what manner he is responsible or liable."
(3.) HE further submits that applicant is in jail since 2nd February, 2011. The offence is triable by Magistrate I Class. Learned A.G.A. Sri R.K.Dwivedi opposed the bail assisted by Sri R.K.Swarankar, Superintendent of Police, who is Investigating Officer, EOW, State of U.P. It is submitted on behalf of the State that three directors, namely, Sant Kumar, S.B.Khanna and Smt. Kamlesh Khanna applied for loan of Rs. 90,00000/ - from PICUP. They submitted fake papers for obtaining the loan and did not pay the same. All the three directors concealed their identity and applied for loan with false identity and by submitting forged papers. Applicant Sanjay Khera is real brother of Sant Kumar and Balram. He too concealed his real identity. He knew that Directors of company are real brothers and knowing fully well about their identity colluded with them in duping PICUP of more than Rs. 125 crores. In fact, this very family had applied for loan for seven companies namely, M/s Manu Oils (P) Ltd., M/s Manu Agro (P) Ltd., M/s Perth Oils (P) Ltd., M/s Naini Automobiles (P) Ltd., M/s Hill Automotive Components, M/s Manu Refinery (P) Ltd. and M/s Kanpur Fats (P) Ltd. Real name of Sanjay Khera has been shown somewhere as Sanjay Kumar and somewhere as Sanjay Arora and Rohit Kumar. Initially case was registered on 20.10.1992 against Sant Kumar, S.B.Khanna and Smt. Kamlesh Khanna under Sections 426, 420 IPC. After investigation, charge -sheet was submitted on 31.1.1995, in the absence of accused. They could not be arrested as they had given false address. They were declared absconder and award of Rs. 5000/ - was also declared on them. In year 2009, further investigation was conducted by Superintendent of Police under Section 173(8) Cr.P.C. During investigation, it was detected that Sant Kumar (real name Brij Kishore Khera) had obtained loan for seven companies in collusion with his relatives and friends. None of the factories were in operation and after obtaining the loan they fled away. Sant Kumar's real name is Brij Kishore Khera, S.B.Khanna another directors' real name is Sri Balram Shah Khera. Smt. Kamlesh Khera is wife of Balram Shah Khera while these three persons represented themselves as Sant Kumar, S.B.Khanna and Smt. Kamlesh Khanna for obtaining loan. Sanjay Khera is real brother of Sant Kumar and S.B.Khanna (Brij Kishore Khera and Balram Shah Khera), as such he was party to the fraud since beginning and he had operated the bank account of the M/s Kanpur Fats Private Ltd. with Union Bank Branch Paschim Vihar, New Delhi. The Union Bank was informed that current account of the company will be operated by Sant Kumar, Director and Sanjay as Chief Executive of company. Signature of Sanjay was identified by the Chairman on letter dated 6.11.1989. Thus, in this letter, Sant Kumar refers Sanjay as Chief Executive and authorized him to operate the bank account. Sanjay knew that Sant Kumar was not real person. In fact, his actual name was Brij Kishore Khera and he happened to be real brother. Even in bank full name of Sanjay has not been given i.e. Sanjay Khera and Sanjay Arora etc. with no parentage and address. Annexure CA -3 filed with the counter -affidavit shows that Sanjay has transacted the business with Union Bank of India in the capacity of authorised signatory and the letter for opening the account contains the signature of Smt. Kamlesh Khanna, Sant Kumar and S.B.Khanna who had opened the account by giving fake identity.;