RAKESH KUMAR GULATI Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) The present application under Sec. 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023, (for short, 'BNSS'), read with Sec. 45 of the Prevention of Money Laundering Act, 2002, (for short, 'PMLA'), has been filed seeking regular bail in CC No. 01/2024, arising out of ECIR No.: GNZO/09/2021, under Ss. 3/4 of the PMLA, registered with Directorate of Enforcement/respondent. The said ECIR was registered in respect of predicate/scheduled offence in FIR bearing No. RCCHG2020A0021, dtd. 31/12/2020, under Sec. 120B read with Ss. 406, 409, 420 of the Indian Penal Code, 1860, (for short, 'IPC'), and Sec. 13(2) read with Sec. 13(1)(d) of the Prevention of Corruption Act, 1988, (for short, 'PC Act'), registered with CBI, ACB, Chandigarh.

(2.) The present ECIR arises out of FIR/RC being RCCHG2020A0021 which was registered with CBI on a complaint filed by the then Chief Manager of Punjab National Bank, Hindu College Branch, Sonipat, Haryana, against M/s Sunstar Overseas Ltd. (for short, 'accused company') and its directors. As per the said FIR, accounts of 5 banks, namely, PNB, ICICI Bank, IDBI Bank and State Bank of India were declared NPAs (NonPerforming Assets). It was alleged that the accused company had availed various credit facilities from 'Consortium of 9 lender Banks' ,[Punjab National Bank; Corporation Bank; City Union Bank; Karur Vysya Bank; Karnataka Bank; Canara Bank; ICICI Bank; IDBI Bank; and State Bank of Patiala] and had diverted/siphoned off the said loan amount, thereby, failing to repay the said loan amounts to the banks. It was also alleged that the accused company had also violated terms and conditions of the loan agreements in respect of hypothecated goods as the said goods were disposed of without depositing sale proceeds in their Cash Credit Accounts. The case of CBI is that M/s Sunstar Overseas Ltd., accused company, through its directors/promoters/employees and others, had committed fraud by siphoning and diverting funds, criminal misappropriation, criminal breach of trust, cheating, fraud etc., thereby causing wrongful loss of approximately, Rs.951.88 Crores to the consortium of 9 lender banks. It was further alleged that the accused company, after July 2017, failed to submit stock report for as undertaken by it to the consortium of lender banks and subsequently, the said loan accounts of the accused company were declared NPAs w.e.f. 31/3/2015 by the Statutory Auditor on 31/3/2017 which was approved by the consortium of lender banks approved a Master Restructuring Agreement Package on 7/11/2015. The allegation against the accused company was that it through its directors had sold its entire stocks, but the sale proceeds were not being deposited with the bank in the loan accounts. It was also alleged that the accused company had advanced sums received by way of the credit facilities for investment in real estate, which is non-core business activity of the accused.

(3.) In correspondence to the aforesaid, on an application filed by ICICI Bank Ltd. under Sec. 7 of the Insolvency and Bankruptcy Code, 2016, (for short, 'IBC') before the National Company Law Tribunal (for short, 'NCLT') Corporate Insolvency Resolution Process (for short, 'CIRP') proceedings were initiated against M/s Sunstar Overseas Ltd. on 20/7/2018, wherein, an Interim Resolution Professional was appointed for the accused company. NCLT vide order dtd. 12/9/2019 approved the resolution plan of the Resolution Applicant, Ajay Yadav & Co., body of individuals, through its Special Purpose Vehicle, M/s Umaiza Infracon LLP, ('Umaiza') for a total amount of Rs.196.00 Crores. Thus, on implementation of the same, total shareholding of the accused company was to be held by Umaiza. It is alleged that, during the course of investigation, it was revealed that Ajay Yadav &Co., held by Ajay Yadav, as well as active partner of Umaiza, was acting on the directions and advice of the ex-directors/promoters of the accused company so that they can indirectly acquire the accused company while it was undergoing CIRP.