Point of Law : “in economic offences, the accused is not entitled to anticipatory bail.

JUDGMENT :

Chandra Dhari Singh, J.

1. The instant application under Section 438 of the Code of Criminal Procedure has been filed on behalf of the petitioner seeking anticipatory bail in FIR No. 263/2019 registered at Police Station EOW, Mandir Marg, New Delhi for offences punishable under Section 420/406/120B of the Indian Penal Code, 1860.

2. The case of the complainant is that M/s Shri Balaji Beans Pvt. Ltd. (Accused No.1), its director Mr. Ramesh Kumar Bansal (Accused No.2), Mr. Anil Kumar Aggarwal (Accused No.3) and the present applicant committed a default of Rs. 8 Crores.

3. M/s Shri Balaji Beans Pvt. Ltd approached the complainant bank requesting for sanctioned working capital facilities to the tune of Rs. 8 Crores, which was sanctioned on 14th December, 2017 and the sanction letter was countersigned by Mr. Ramesh Bansal.

4. Pursuant to the sanction, a loan agreement was executed on 16th December, 2017. The said credit facility was to revolve around 12 months line and was repayable on demand as per the term of the sanction letter. The said credit facility was agreed to be secured by way of equitable mortgage in addition to the deed of Guarantee. As per the stipulation in the deed of Guarantee the following properties were secured:-

i. Residential Property at H-22, Ashok Vihar, Phase-1, Delhi-110052.

ii. Industrial Property at Plot No.428, Food Park, Industrial Area, Rai, Sonipat, Haryana.

iii. Industrial Property at Plot No. 561, Food Park, Industrial Area, Rai, Sonipat, Haryana.

iv. Commercial Property at 3980-B, Naya Bazar, Delhi-110006.

5. It is alleged that the accused persons did not adhere to the terms and conditions of sanctions and failed to make re-payment of the sanctioned amount.

6. It is also alleged M/s Shri Balaji Beans Pvt. Ltd. is not providing the insurance for their security hypothecated or mortgaged with bank.

7. Learned counsel for the applicant submitted that the applicant herein was neither a director nor a shareholder nor a managerial person who was conducting day-to-day affairs in the company i.e., 'M/s. Shri Balaji Beans Pvt. Ltd.' The applicant never had any knowledge of the transaction which occurred between the complainant bank and other accused persons. Moreover, the applicant is not even a borrower in the present matter. The applicant was only a guarantor in the alleged transaction which occurred between the complainant and other accused persons.

8. It is submitted that the applicant has been regularly appearing before the Investigating Officer and has assisted in investigation. The applicant had already surrendered his personal properties (basis of guarantee to loan) to bank without demur. It is submitted that the applicant surrendered all his assets to the complainant bank when the complainant bank invoked guarantee on 3rd January, 2019 by issuing a notice of invocation to the guarantors of the facility.

9. It is submitted that all the properties which have been surrendered by the applicant has equivalent value to the actual loan amount which has been sanctioned by the complainant bank to M/s Shri Balaji Beans Pvt. Ltd.

10. Learned counsel for the applicant submitted that transactions which is reflected from the FIR itself shows that the whole transaction is of civil nature moreover, the complainant bank has also filed recovery proceedings at Debt Recovery Tribunal (DRT), Delhi and complaints under Section 138 of the Negotiable Instruments Act (NI Act).

11. It is further submitted that a bare pursual of the allegations as made in the FIR against the applicant, no offence of cheating or criminal breach of trust has been made out against the applicant. It is submitted that merely because a person has given a guarantee in a loan agreement, he cannot be made as an accused for an offence which he has not committed.

12. Learned counsel appearing on behalf of the petitioner submitted that no offence of cheating under Section 420 of the IPC is being made out against the applicant since in order to constitute the