Economic offence allegations do not automatically justify remand; court must consider specific evidence of risk before denying bail, particularly for women under the Companies Act.

JUDGMENT

Anup Jairam Bhambhani J.

By way of the present petition under section 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) the petitioner, who is accused in CC No.245/2021 titled SFIO vs. Parul Polymers Pvt. Ltd & Ors. pending before the learned Special Judge (Companies Act), Dwarka Courts, New Delhi), seeks regular bail.

2. The petitioner is arraigned as accused No. 3 in the trial court proceedings, among 12 other accused.

3. Notice on this petition was issued on 02.06.2022; consequent whereupon the respondent/Serious Fraud Investigation Office ('SFIO' for short) has filed reply/counter-affidavit dated 10.08.2022 opposing grant of bail.

4. Briefly, the petitioner was summonsed in the matter vide summoning order dated 07.03.2022 made by the learned Special Judge (Companies Act), Dwarka Courts (SW), the essential imputation against the petitioner being that she was director of M/s Parul Polymers Pvt Ltd. (accused No. 1), being the wife of Suman Chadha, who was the other director of the company; and taking cognisance of offences inter-alia under section 447 of the Companies Act, 2013 ('Companies Act' for short).

5. The gravamen of the offences alleged inter-alia under section 447 of the Companies Act is that the company, which was engaged in the trade of plastic granules, indulged in cash sales, in fictitious sale of food grain and in creation of accommodation/adjustment accounting entries, apart from misuse of cheque discounting facilities.

6. It is also the allegation that the company manipulated financial statements, to project substantial growth in its revenues, to mislead banks, so as to induce them to extend and enhance credit limits, which monies were not used towards the business activity of the company but were diverted and siphoned-off to other entities, with no genuine underlying business transactions, thereby indulging in fraudulent diversion of funds to sister concerns.

7. Suffice it to say, that a perusal of the summoning order, which is based upon the criminal complaint filed by the SFIO inter-alia under section 212(15) of the Companies Act, shows that the role ascribed to the petitioner is that of being an `officer who is in default' within the meaning of section 2(60) of the Companies Act, since the petitioner was a director of the company; and was therefore, liable for the affairs of the company under section 212(14) of the Companies Act.

8. This court has heard Mr. Neeraj Kumar, learned counsel appearing for the petitioner; as also Ms. Nidhi Raman, learned CGSC appearing for the respondent. Counsel have also filed their written submissions in the matter.

Petitioner's Contentions

9. It has been contended on behalf of the petitioner that the offences are alleged to have been committed between 2011-14 i.e. during a period even prior to the enactment of the Companies Act, 2013; and that investigation in the matter was commenced in compliance of order dated 07.12.2015 made by a Co-ordinate Bench of this court in Contempt Case (C) No. 3/2015; and after prolonged investigation, the SFIO filed the criminal complaint against the petitioner and other co- accused persons on 08.02.2021; which came to be registered as Complaint Case No. 245/2021.

10. Cognisance of the offence was taken vide order dated 07.03.2022, whereby the petitioner was directed to appear before the court on 25.05.2022. It is submitted that the petitioner was never arrested throughout the investigation and the complaint was also filed without her arrest.

11. Be that as it may, upon appearing before the learned Special Judge, the petitioner was remanded to judicial custody and has been in prison since 25.05.2022.

12. The next date in the proceedings before the learned Special Judge is 22.02.2023 and charges are yet to be framed.

13. Attention is drawn to section 212(6) of the Companies Act, to urge that the said provision contains a proviso empowering the court to release inter-alia a woman on bail, notwith