IN THE HIGH COURT OF JUDICATURE AT MADRAS
INDIRA BANERJEE, ABDUL QUDDHOSE, JJ.
Karti P. Chidambaram - Petitioner
Vs.
Bureau of Immigration, Ministry of Home Affairs & Ors. - Respondents
W.P. Nos. 21305, 20798 of 2017; WMP Nos. 22241, 22242, 21645 & 21646 of 2017
Decided On : 23-07-2018
Criminal Procedure Code - Section 125 - Prevention of Corruption Act, 1988 - Sections 8 and 13 - Indian Penal Code - Section 420, 120-B – First accused was apparently incorporated under the provisions of the Companies Act, 1956, to carry on the business of creating, operating, managing and broadcasting a bouquet of television channels, including Hindi and vernacular entertainment channels - INX Media applied to the Chairman, Foreign Investment Promotion Board of the Department of Economic Affairs, Ministry of Finance, Government of India, seeking its approval for permission to issue by way of preferential allotment, in one or more tranches (i) equity shares of Rs.10 each, and (ii) convertible, non cumulative, redeemable preference shares of Rs.10 each collectively representing approximately 46.216% of the Issued Equity Share Capital of INX Media on an “as converted” basis to three non resident investors under the Foreign Direct Investment route - Held, Court conditions precedent for issuance of the impugned LOC were absent, and the impugned LOC is liable to set aside on that ground, we need not go into the questions of whether an LOC could have been issued without statutory sanction, or whether the respondents concerned had jurisdiction to issue the impugned LOC. However, in our view, the Look Out Circular was issued in hot haste when the conditions precedent for issuance of such Circular did not exist - Impugned LOC is set aside and quashed. It is made clear that the order of this Court setting aside the impugned LOC will not impact the criminal proceedings initiated pursuant to FIR, referred to above, or any other proceedings initiated against the petitioner - Writ petitions are disposed
Indira Banerjee, J.
These writ petitions are directed against a Look Out Circular being reference No.1/SIC (DMC)/LOC/2017 5812, dated 16.6.2017, issued in respect of the petitioner by the Bureau of Immigration under the Ministry of Home Affairs of Government of India.
2. On 15.5.2017, the Central Bureau of Investigation (hereinafter referred to as “the CBI”) filed an FIR against the petitioner before the Special Judge, CBI Court, New Delhi, under Sections 120-B and 420 of the Indian Penal Code read with Sections 8 and 13 of the Prevention of Corruption Act, 1988.
3. The petitioner in these writ petitions was named as the third accused in the said FIR, the others named as accused being:
(i) M/s. INX Media (P) Ltd., Mumbai, hereinafter referred to as “INX Media”, through the then Director, Indrani Mukherjea and others (first accused);
(ii) M/s. INX News (P) Ltd., hereinafter referred to as “INX News”, through the then Director, Sh. Pratim Mukherjea @ Peter Mukherjea and others (second accused);
(iii) M/s. Chess Management Services (P) Ltd., hereinafter referred to as “CMS”, represented through its Director, Sh. Karti P. Chidambaram, being the petitioner and others (fourth accused);
(iv) M/s. Advantage Strategic Consulting (P) Ltd., hereinafter referred to as “ASC”, represented through its Director, Ms. Padma Vishwanathan @ Padma Bhaskararaman and others (fifth accused); and
(v) other unknown officers of the Ministry of Finance, Government of India and other unknown persons.
4. INX Media, the first accused was apparently incorporated on 8.8.2006 under the provisions of the Companies Act, 1956, to carry on the business of creating, operating, managing and broadcasting a bouquet of television channels, including Hindi and vernacular entertainment channels.
5. On or about 13.3.2007, INX Media applied to the Chairman, Foreign Investment Promotion Board (hereinafter referred to as “the FIPB”) of the Department of Economic Affairs, Ministry of Finance, Government of India, seeking its approval for permission to issue by way of preferential allotment, in one or more tranches (i) upto 14,98,995 equity shares of Rs.10 each, and (ii) upto 31,22,605 convertible, non cumulative, redeemable preference shares of Rs.10 each collectively representing approximately 46.216% of the Issued Equity Share Capital of INX Media on an “as converted” basis to three non resident investors under the Foreign Direct Investment route, namely:
(i) Dunearn Investment (Mauritius) Pte. Ltd.;
(ii) NSR-PE Mauritius LLC; and
(iii) New Vernon Pvt. Equity Ltd.
6. INX Media had in its application dated 13.3.2017 also expressed its intention, subject to the provisions of applicable laws, to make a down stream financial investment to the extent of 26% of the issued and outstanding equity share capital of INX News.
7. The application of the company seeking FIPB approval was received and acknowledged by the Department of Economic Affairs, FIPB Unit, Ministry of Finance, through its letter dated 15.3.2007. Thereafter, by a Memorandum dated 16.3.2007, the FIPB Unit forwarded the proposal of INX Media to various departments of the Government of India for their comments.
8. The FIPB at its meeting held on 18.5.2007 recommended the proposal of INX Media for consideration and approval of the then Finance Minister. However, the FIPB did not approve the down stream investment by INX Media in INX News. The recommendation of FIPB was approved by the then Finance Minister, Shri. P. Chidambaram, who happens to be the father of the petitioner.
9. The FIPB Unit issued a press release dated 30.5.2007 indicating the details of proposals approved in the FIPB meeting. The quantum of FDI (Foreign Direct Investment)/NRI (Non-Resident Indian) inflow against M/s. INX Media was shown as Rs.4.62 crores. The approval was intimated vide a letter dated 31.5.2007.
10. In the FIR, it is alleged that in contravention of the terms of the approval of FIPB conveyed vide the aforesaid letter dated 31.5.2007, INX Media
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