Point of Law: Offence of cheating – Denial of bail - Gravity of the offence cannot be the sole ground to deny bail to the accused

JUDGMENT :

SUBRAMONIUM PRASAD, J.

1. The petitioner has filed the instant petition under Section 439 Cr.P.C seeking bail in FIR No.46/2019 registered at Police Station EOW, New Delhi for offences under Sections 406/420/467/468/471/120B of the Indian Penal Code, 1860.

2. Facts, in brief, leading to the present petition as under :-

a) The instant FIR was registered on the complaint of one Dr. Sanjiv Gemawat who stated that his erstwhile subsidiaries namely OCL India Cements Ltd. and Dalmia Cement East Limited were interested in making mutual fund investments in May 2017 and for this purpose, they availed the services of the depository NSDL National Securities Depository Ltd. (NSDL) and its participant, Allied Financial Service Private Limited (AFSPL) through which account opening forms were signed and the respective DMAT Accounts bearing client ID No. 1006126 in the name of Dalmia Cement East Ltd on 20.02.2017 and client ID No.1006129 in the name of OCL India Cements Ltd. on 10.05.2017 were opened.

b) After the initial investment, several further investments and redemption were made in the said accounts from time to time and the complainant held securities worth Rs. 344.07 Crores in the said account as on 28.12.2018.It is pertinent to note that vide orders dated 01.05.2018, 28.02.2018 and 20.04.2018 passed by the NCLT, OCL and DCEL merged to form DBCL (Dalmia Cement Bharat Ltd.) which then became the owner of the said securities.

c) On 27.12.2018, the complainant submitted a redemption request to AFSPL and as per the rules and the market practice, the said securities should have been credited by 28.12.2019. However, despite several reminders, the redemption amount was not credited. On 16.01.2019, a fresh request was made. Thereafter, on 17.01.2019, the complainant reported the said matter to the NSDL and the NSDL vide reply dated 25.01.2019 enclosed the transaction statements for the period May 19, 2017 to January 24, 2019 and informed the complainant that there were no securities left in the DMAT Accounts as on the said date of reply.

d) NSDL vide its reply further mentioned that the said securities were transferred to accounts of AFSPL, its sister companies, namely, Money Mishra Financial Services Ltd, Money Mishra Overseas Private Ltd. and Mr. Awanish Kumar Mishra. Through the clearing member-trading member agreement dated 14.11.2017 entered into between IL&FS and AFSPL, the investment was then transferred to IL&FS as collateral. Thereafter, the securities were offered to NSCCL (National Securities Clearing Corporation Limited) as collateral.

e) However, the director of AFSPL through his email dated 31.01.2019 again confirmed the complainant’s holding in the above DMAT accounts and regretted delay in the processing of redemption request. It assured that the same would be processed by 06.02.2019. As per the allegations, no such redemptions were made as on that date or any time afterwards.

f) The accused has been arrested as on 16.08.2019 and the chargesheet has been filed as on 11.11.2019.

3. Mr. Dayan Krishnan, learned Senior Counsel appearing for the petitioner, contends that the petitioner herein is the managing director of AFSPL, which is a depository participant, that facilitates derivative trading on the NSDL platform. The mutual fund units were given to the petitioner herein by the complainant in the capacity of a depository participant.

4. Mr. Krishnan contends that the mutual fund units in question were voluntarily transferred by OCL and DCEL to three companies of the petitioner to utilize the dead assets of the company and offer the same as collateral, with a view to avail margin for trading. He contends that the alleged transactions with the mutual fund units were done on the instructions of Mr. Puneet Dalmia, who is the managing