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The Delhi High Court has set aside the order of the Chief Metropolitan Magistrate, Patiala House Courts and quashed the non-bailable warrants issued against the accused.
A single-judge bench of Justice Anu Malhotra has noted that the petitioner had joined the investigation and was not absconding. “the petitioner according to the Investigating agency did not give the requisite desired answers to the Investigating Agency, which can be no ground per se for issuance of non-bailable warrants against the applicant in as much as every accused is entitled to the right to silence to prevent self-incrimination in terms of Article 20(3) of the Constitution of India,” said the Court.
The petitioner had approached the High Court with the prayer to quash the non-bailable warrants issued against the petitioner by the Court of the learned CMM in the FIR under Sections of 406, 420 and 120B of the Indian Penal Code. The petitioner had also prayed to quash the order which instituted processes under Section 82 of the IPC.
The FIR has been lodged under Sections 406 and 420 of the Indian Penal Code on the complaint of Anuj Tyagi, authorized representative of Saya Cementation Ltd. The petitioner has contended that the matter is civil and not criminal in nature and the arbitration proceedings of the said matter are in process and haven’t concluded yet.
The accused was developing a project in the name of “Oh My God” in Sector 129, Noida and he had been unable to complete the said project which had started in 2013 and thus the same project was proposed to be transferred to the complainant by the way of an execution of an share-purchase agreement for which the consideration was moved in the amount of Rs 3.13 crore and the demand drafts amounting to Rs 11.53 crore towards settling of various litigations which were instituted against the accused at that time.
The accused had taken a loan of Rs 350 crore from India Infoline Finance Ltd (IIFL) and and is not disputed by either of the parties. It was alleged that an authorization letter was submitted to the bank by the accused company where the accused was solely authorized as a signatory on all the cheques. It was further explicitly stated in the same letter that any instructions or directions from Anurag Solanki ( uthorized representative of IIFL) shall not be entertained and the said letter was submitted without intimation or consent of Anurag Solanki.
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Dealing with the issue of whether or not can be accused be termed as a proclaimed offender, the court examined the provision stated in the CrPc and under Section 82(4) of CrPC, the prosecution cannot invoke the said provision because it is beyond the ambit of the charges placed on the accused.
It was also argued that there were alternate remedies available, the procedure mandates that the court should first issue a summons, then a bailable warrant and if no result is produced a non bailable warrant should be issued.