VINOD KUMAR V/S STATE OF HARYANA CRMM 13400 of 2021
Facts:
1) FIR NO. 273 dated 26.04.2018 U/S 406, 420, 120B IPC & U/S 3 of the HPIDFE Act was registered against the petitioner including others, on the basis of a complaint made by Abhinav Garg, wherein, it was alleged that a sum of Rs.94.5 Lacs was deposited by respondent No 2 w.e.f July 2015 to December 2015 in FD Scheme floated by M/s SRS Ltd. in which petitioner happened to be Non-Executive Director. It was further alleged that all officials named in the FIR lured the complainant to deposit money and promised a handsome rate of interest but except payment of interest till March 2017, nothing was paid back.
2) It was also stated that SRS Ltd. went to NCLT for extension of time which was earlier granted vide order dated 20.10.2016, but subsequently vide order dated 20.12.2017 NCLT Chandigarh bench refused to extend the time and also directed Registrar of Companies to proceed under Section 74(3) of the Companies Act, 2013 against the SRS Limited.
3) Consequent to order dated 20.12.2017 passed by NCLT, Chandigarh, Deputy Registrar of Companies initiated proceedings against the Company & its officials u/s 74(3) of the Companies Act and vide order dated 01.08.2018 by the Ministry of Corporate Affairs (hereinafter referred as ‘MOCA’), enquiry by the Serious Fraud Investigation Office (SFIO) was ordered which after investigation filed two reports before the Special Court-Additional Sessions Court, Gurgaon. While COMA 17-2021 dealt with offences punishable under Sections 360 r/w 447, 448 and 143 of the Companies Act, 2013 and Sections 227 and 628 of the Companies Act, 1956, in which the petitioner was arrayed as an accused though he was implicated as an accused only in COMA-18-2021 in which charges were u/s 92, 137, 134, 128 and 129 of the Companies Act, 2013 and 209, 211, and 217 of the Companies Act, 1956.
Issue: Whether the application can be allowed ?
Arguments:
Applicant:
1) Counsel submitted that the primary grievance of respondent No.2 was the non repayment of fixed deposit/interest by the company which was squarely covered u/s 73, 74 and 76A r/w 447 of Companies Act, 2013 and when investigation by SFIO was already completed and proceedings were initiated by Special Court for non refund of FD, there was no scope of investigation by the police on the basis of same set of allegations in view of Sections 212 & 436 of the Companies Act,2013 (for short ‘the Act’).
2) It was submitted that in view of section 436(2) of the Companies Act, 2013, Special Court when trying an offence under the Companies Act may also try an offence with which the accused may be charged under Code of Criminal Procedure (CrPC), 1973. Further, it was also submitted that as per Section 212(2), where a case was assigned by the Central Government to SFIO for investigation, no other investigating agency of the Central Government or any State Government could proceed with parallel investigation.
3) Counsel submitted that a bare perusal of the FIR reveals that there were no specific allegations against the petitioner who was named in only one FIR i.e. FIR No. 273 and in all other FIRs, he was not even named when investigation under the provisions of Companies Act was already completed, no investigation could be conducted under the HPIDFE Act, as in that event provisions of HPIDFE Act becomes repugnant and inconsistent with the provisions of Companies Act, 2013.
Respondent:
1) Counsel submitted that the scope of investigation under both the acts was separate and accordingly, investigation by the EOW was in no way hindered by the investigation conducted by the SFIO. Ld. State Counsel further submitted that there were numerous precedents wherein different agencies were made entitled for conducting the parallel investigation. It was further contended that from the perusal of FIR, it cannot be held that no offence was made out against the petitioner or the present case was an abuse of the process of law and therefore, this Court would not exercise the discretionary powers in favour of the petitioner to quash the FIR and consequential proceedings.
Decision: Hon’ble HC dismissed the petition.
Rationale:
1) Hon’ble HC held that Scope of investigation by the SFIO is limited to the offences under the Act only, which is also apparent from the language of section 212(2) itself, whereby, investigation by any other agency would be barred “in respect of any offence under this Act”. But on that basis, it would be preposterous to hold that investigation even under the offences of any other Act would also be barred.
2) In the present case, FIR has been registered u/s 3 of HPIDFE Act along with the provisions of IPC and accordingly, there cannot be any restriction on investigation as per the provisions of HPIDFE Act & CrPC. Perusal of the commission of offences in relation to which investigation was conducted appropriately reveals the scope of investigation by the SFIO, which is primarily related to the irregularities/illegalities in operations of company in violation of relevant statutes, rules and regulations governing the administration of a company. On the other hand, scope of offences under the IPC and HPIDFE Act is much wider and investigation in this regard has to be conducted on the basis of allegations levelled in the FIR after taking into consideration the version of the victim/ investor
3) It held that Parallel investigation under other laws by different agencies is not ruled out from the scheme of Companies Act, 2013 itself as in Section 212(17)(b) it is envisaged that SFIO shall share any information or documents available with it with any other investigating agency “in respect of any offence or matter being investigated or examined by it under any other law”. Thus, parallel investigations by different agencies, as permitted by law, are not precluded.
Order:
