Anil O. Khandelwal vs. The State Of Maharashtra

Both Applicants are Chartered Accountants. Applicant – Anil O. Khandelwal is the Chief Financial Officer3 of the Company called Cox and Kings Limited4 and Applicant – Naresh Tikamchand Jain’s proprietory concern namely N.T. Jain and Company is the Internal Auditor of CKL. CKL borrowed huge amounts as capital loan from Tourism and Finance Corporation of India Limited – a Public Financial Institution and defaulted in repayment. Complainant is Mr. Bishwaroop Tiwari, Assistant Vice President (Legal) of Tourism and Finance Corporation of India Limited. Complaint dated 11.11.2021 is 1 For short ‘EOW’ 2 For short ‘IPC’ 3 For short ‘CFO’ 4 For short ‘CKL’ 2 of 16

Briefly stated prosecution case is that CKL borrowed similar substantial amounts and loan towards working capital between 2011 and 2019 from Axis Bank, Laxmi Vilas Bank, HDFC Bank, Yes Bank, Tourism Finance Corporation Limited, Kurlon Enterprises Limited, Indusind Bank in different denominations running into several hundred crores. Complaint is lodged by Tourism and Finance Corporation of India Limited for cheating and criminal breach of trust due to default by the said Company CKL in repayment of the loan amount. It is seen that post 2019, CKL failed to repay the loan amount to Complainant Financial Institution. It also defaulted on statutory payments including payments towards GST5 and TDS6. Record shows that on 27.06.2019 CKL filed a disclosure with the Stock Exchange informing that it had defaulted in repayment of commercial papers aggregating to various denominations pertaining to Banks from which they had obtained loan and could not repay the same. Record shows 5 Goods and Services Tax 6 Tax Deducted at Source 3 of 16

Investigation of the crime is completed and charge-sheet has been filed in October 2022. 6. The alleged role attributed to Applicants is of falsification of accounts in collusion with each other. Same role is attributable to both. It is alleged in the charge-sheet that certain amounts were paid to them which could be said to be the amounts received by them for having indulged in the illegal activity of falsification of accounts. In 4 of 16

Mr. Mundargi, learned Senior Advocate appearing for the Applicant in Bail Application No.4876 of 2024 would at the outset submit that the main accused namely Ajay Ajit Peter Kerkar has been granted bail vide order dated 29.08.2024 by the Supreme Court7 in the present case. He has placed before me a copy of order dated 13.08.20248 passed by this Court (Coram: Manish Pitale, J) granting bail to Applicant – Anil O. Khandelwal in connection with C.R. No.33 of 2020 wherein similar allegations are made against the Applicant. He would therefore persuade the Court to consider that order as well as order passed by the Supreme Court granting bail to the main Accused namely Ajay Ajit Peter Kerkar and claim parity with him for grant of bail considering his long incarceration and submit that his further judicial custody is unwarranted as he has fully co-operated in the investigation.

Next, he would submit that Applicant whom he represents has been granted bail by the learned PMLA Special Court vide order dated 30.04.2024 on the ground of delay in commencement of trial 7 Criminal Appeal arising out of SLP (Crl) Nos.10471-10478 of 2024 8 Passed in bail Application No. 4222 of 2021 5 of 16

He would submit that while granting bail to the main Accused – Ajay Ajit Peter Kerkar, the Supreme Court in its order dated 29.08.2024 referred to the order passed by this Court granting bail to Applicant – Anil O. Khandelwal, the CFO of CKL and thereafter arrived at the conclusion of enlarging him on bail. Hence he would urge the Court to consider the facts of the case and enlarge the Applicant – Anil O. Khandelwal on bail.

Mr. Joshi, learned Advocate appearing for Applicant in Bail Application No.4846 of 2024 would adopt and support the submissions advanced by Mr. Mundargi. He would submit that the role attributed to the Applicant whom he represent is on a similar footing to that of Applicant, Anil O. Khandelwal who was the CFO of the Company. He would submit that Applicant whom he represents has been granted bail by the learned PMLA Special Court vide order dated 30.04.2024 on the ground of delay in commencement of trial and his long incarceration 6 of 16

Ms. Bajoria, learned APP would vehemently oppose grant of bail to the Applicants. She would submit that Applicants are indicted for an economic offence which is considered to be an offence against the economy of the nation and affects the financial fabric of the society at large. She would submit that role of the Applicants as highlighted and endorsed in the charge-sheet is of falsification of accounts to depict a healthy picture of the financial health of the Company CKL as being financially sound for the purpose of obtaining loans / capital loans and thus forms the basis of the crime in question. She would submit that such falsification of accounts forms the basis of inducement to the Financial Institution in question to part with huge sums of public money as borrowings / loan amount which is ultimately defaulted by the Company. She would thus emphasize that role of Applicants has to be categorized as a major role in submitting falsified accounts to the Complainant Financial Institution on the basis of which substantial loan is procured with the intention of defaulting on the same which has come true in the present case. However on taking instructions she would submit that considering parity and long incarceration the Court may pass appropriate order rather than delving 7 of 16

I have considered the rival submissions advanced at the bar and perused the record with the able assistance of the learned Advocates appearing for the parties.

Prima facie it is seen that offence under Section 467 of IPC is the major offence as it provides for punishment of imprisonment of more than 7 years and contemplate maximum sentence of life imprisonment. Therefore if Applicants are able to demonstrate that the said offences prima facie cannot be said to be made out against then then Court would be inclined to grant bail particularly in the light of their long incarceration as argued by their Advocates and investigation being completed.

Since the Prosecution Advocate has persuaded me to consider the case of Applicants on parity and long incarceration as also the fact that the main principal accused Ajay Ajit Peter Kerkar having been granted bail, adhering to the submissions of the Prosecution, I have considered the above grounds for deciding these Applications.

This Court is further informed that the Applicants have been granted bail in the proceedings initiated against them under the provisions of the Prevention of Money Laundering Act, 2002. This is also a factor that can be taken into consideration. 8 of 16

As regards the allegation of certain amounts being paid to the Applicant – Naresh Tikamchand Jain, which could be relatable to Courts ought to exercise power to enlarge accused under-trials on bail, who have suffered substantial incarceration and there is remote possibility of trial being completed within the reasonable period of 9 2024 SCC OnLine SC 1693 10 (2021) 3 SCC 713 11 (2022) 10 SCC 51 9 of 16

This Court is of the opinion that the said position of law also enures to the benefit of the Applicants.

While considering the case of Applicants for grant of bail, it is seen that the principal case of Complainant is that there is a default in repayment of loan amount advanced by the banks / Financial Institution to the Company i.e. CKL. What intrigues the Court's mind is the fact that when Public and Private Sector Banks or Public Financial Institution holding public money advance large amounts of monies as loan or working capital to a borrower, what is the nature of security that the said Banks / Financial Institutions take from the Borrower in order to secure the loan amount. In the present case borrower is CKL. In general context if a common man approaches a Public Sector Bank or a Private Sector Bank or a Public Financial Institution for loan, in order to secure the loan amount the common man is required to give more than adequate security without which no loan is ever approved or sanctioned to him. When an Application for loan is made, Banks / Financial Institutions follow a rigorous regime of compliances to be undertaken by the borrower as required by the Bank / Financial Institution only after which if complied the loan is sanctioned. This procedure and process for compliance is generally called as due 10 of 16

Prima facie it is seen that Complainant Financial Institution alleges that when the Company CKL approached the Financial Institution, it placed on record its balance sheet which was prima facie looking very healthy and based upon which the Complainant Financial Institution advanced huge amounts of money as loan. It should not be forgotten that these monies which are / were advanced as loan by the Complainant Financial Institution are / were public monies. Therefore even if the borrower Company i.e. CKL presented and relied upon its balance sheet for procuring the loan amount which runs into hundreds of Crores in most of the cases before me, it was the duty of the Complainant Financial Institution to undertake appropriate due diligence. In this context attention is invited to Financial Institution’s due diligence to be followed before giving loan to a borrower Company on the basis of its balance sheet only. It is seen that Banks / Financial Institutions have to perform a variety of due diligence checks before giving loan to a Company on the basis of its balance sheet. In the case of a Company submitting its balance sheets, Banks not only have to review the Company's balance sheet but also its income statements and 11 of 16

It is seen that in the present case over a period of more than 4 years, Complainant Financial Institution advanced substantial amounts running into hundred crores of rupees to CKL. CKL has not been in a position to repay the said amount from 2019 onwards. The question therefore that would arise in the mind of the Court is whether the Complainant Financial Institution had carried out due diligence appropriately in the context of the procedure required to be followed by any Public or Private Sector Bank or Financial Institution while advancing large sums of monies which are not secured adequately. For example in the case of the Complainant before me it is stated that they were deceived by falsified accounts and balance sheets which were submitted to them for borrowing the amounts by CKL. Still 4 year period over which amounts were advanced is reasonably a long period for the Complainant Financial Institution to complete appropriate due diligence and ensure that the real status of the borrower Company is known to the Complainant - Bank. Needless to state that complicity of the accused persons in the present crime in question will be determined in the trial on adjudication. Before me is the case of the Chief Financial Officer of CKL and its Internal Auditor. Undoubtedly their complicity and role will be determined in the ensuing trial. 13 of 16

As delineated herein above, Applicants have already been granted bail by orders dated 28.11.2024 and 13.08.2024 passed by this Court in other Bail Applications. Keeping that in view, both Bail Applications are allowed on the following terms and conditions:- (i) Both Applicants are directed to be released on bail on furnishing P.R. Bond of Rs. 1,00,000/- (Rs. One Lakh only) each with one or two sureties of the like amount; (ii) Both Applicants shall be released forthwith on provisional cash bail of Rs. 1,00,000/- (Rupees One Lakh only) and are permitted to furnish sureties as directed within a period of 4 weeks after their release from prison; (iii) Applicants shall report to the Investigating Officer of EOW as and when called for by the Investigating Officer; (iv) Applicants shall co-operate with the conduct of trial and attend the Trial Court on all dates, unless specifically exempted and will not take any unnecessary adjournments, if they do so it will entitle the 14 of 16

It is clarified that the above observations in this order are limited only for the purpose of granting bail and the trial shall proceed uninfluenced by the present order. The trial shall be adjudicated on its own merits and evidence and determined strictly in accordance with law. 15 of 16

Bail Application No.4876 of 2024 and Bail Application No.4846 of 2024 are allowed and disposed.