CNR NO.

MHCC02­012652­2021

IN THE COURT OF SPECIAL JUDGE (CBI) FOR GREATER BOMBAY

ORDER BELOW BAIL APPLICATION EXHIBIT NO.16

IN
SPECIAL CASE NO.1233 OF 2021
IN
RC.BA1/2020/A0004/CBI/ACB/MUMBAI

Gautam Thapar
Aged 61 years,
having permanent address at E­16
Pushpanjali Farm, Bijwasan,
Delhi­ 61
Presently lodged in judicial custody at
Tihar Central Prison, Delhi in other case
being ECIR/11/HUI/2021
since 16.08.2021 .. Applicant/Accused No. 2
Vs.
CBI, ACB, Mumbai .. Respondent/Complainant

CORAM : H.H.THE SPECIAL JUDGE (CBI)

SHRI M.R.PURWAR
DATED : 21.12.2021 ( C.R.NO. 53)

Appearances :
Ld. Sr. Counsel Mr. Mahesh Jethmalani, Advocate Sandeep Kapur,
Advocate Ravi Sharma, Advocate Vivek Suri, Advocate Gunjan Mangla
and Advocate Abhimanshu Dhyani for applicant/accused No. 2.
Ld. SPP Mr. P.K.B. Gaikwad for respondent/CBI.,ACB, Mumbai.

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ORDER

This is an application moved by applicant/accused No. 2

Gautam Thapar (hereinafter referred to as applicant) seeking his release
on regular bail on being charge­sheeted.

2. Material to note that on the basis of Source information, an

FIR No. RC. BA1/2020/A0004­CBI/ACB/Mumbai was registered on
12.03.2020 for commission of offences punishable under Sections 120­B
Indian Penal Code r/w 420 Indian Penal Code (IPC) and 7, 11 and 12
of the Prevention of Corruption Act, 1988 (PC Act) against Shri Rana
Kapoor, then MD and CEO of Yes Bank Ltd., Shri Gautam Thapar, M/s
Avantha Realty Ltd., Smt . Bindu Rana Kapoor, M/s Bliss Abode Pvt.
Ltd. and unknown others and later on after completion of investigation
charge­sheet was filed for the commission of offences punishable under
Sections 120B, 420 of IPC and under Sections 11, 12 & 13(2) r/w.
13(1) of PC Act.

3. It is the case of the applicant that the charge­sheet was

filed on 08.10.2021, this Court took cognizance on 12.10.2021 and
issued summons to the accused persons. In pursuance of the summons
applicant appeared through his Counsel. He is a citizen of India and
serves as the Non Executive Chairman of Avantha Holdings Limited
(AHL) and therefore there is no likelihood of his absconding. He is
currently lodged in Tihar Jail, New Delhi being in Judicial Custody in
the matter titled as Enforcement Directorate Vs. Gautam Thapar and
Others arising out of ECIR No. 11/HIU/2021 pending before District
Court, Delhi. He has co­operated during the investigation of the present

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case and furnished all the information. He was served with notice u/s.
41­A of Cr.P.C. and joined the investigation. The Investigating Officer
did not find any reason to seek the custody of the applicant during
investigation and has not arrested him. As such no purpose would
achieve by taking the applicant in custody when the charge­sheet has
been filed. Nothing is to be recovered or discovered at the instance of
the applicant. There is no instance of non co­operation from the side of
applicant to the Investigating Agency. The case rests on voluminous
documentary evidence which is in possession of the Investigating
Agency. The trial may take long time to conclude. The applicant is
charged for the offences for which the maximum punishment is upto 7
years. There is nothing on record to show the likelihood of the
applicant fleeing from the trial or tampering with the evidence. He is
patient of Acute sciatica and Vertigo. He is having clean antecedents. He
is ready to abide with the terms. He prayed for grant of bail.

4. The Prosecution has resisted the prayer by filing reply

below Exh. 16­A. It is contended that during investigation the oral and
documentary evidence were collected which prima facie revealed that
co­accused Rana Kapoor acquired property at 40, Amrita Shergill Marg,
New Delhi (ASM Property) at an inadequate consideration than it s
actual saleable value belonging to M/s. Avantha Reality Ltd.(ARL), a
company of present applicant, with whom he had official dealings in the
form of various loans taken by the Group Companies of the applicant.
The applicant entered into criminal conspiracy with co­accused Rana
Kapoor for the purpose of cheating and diverted the sale proceeds of the
property for ever greening of other outstanding loans. As a favour for

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sale of the above said property an additional loan of Rs. 1360 Crores
were sanctioned and disbursed to other Group Companies of the
applicant. The applicant is also involved in other economic fraud, which
is grave in nature. The applicant is an influential person and if enlarged
on bail, he is likely to tamper with the evidence. Many of the witnesses
are employees of the applicant and there is every possibility of them
being influenced by the applicant. The applicant is married to lady of
Foreign Nationality and has business interest abroad and there is every
possibility than he may abscond and would not be available for the trial.
The Prosecution has prayed for rejection of the application.

5. It is argued by Ld. Sr. Counsel Mr. Mahesh Jethmalani that

the applicant/accused is involved in a false case. The FIR was registered
on 12.03.2020. There is no reason as to why applicant will agree to sale
the house at 40, Amrita Shergill Marg, New Delhi on discounted rate.
The Chief Vigilance Officer, Yes Bank Ltd, Mumbai (YBL) has filed the
complaint dated 27.05.2021 with CBI, New Delhi upon which a
separate crime bearing RC 2232021A0005 dated 02.06.2021 has been
registered at New Delhi in which it is clearly mentioned that the funds
recovered alongwith Group funding support were sufficient to repay
entire outstanding loan of ARL and as on September 2017, fraud
amount was considered as nil. According to the Ld. Sr. Counsel the
amount in question has already been cleared there is no question of any
fraud as canvassed in the present charge­sheet.

6. It is further argued that there cannot be double Jeopardy.

The Chief Vigilance Officer, Yes Bank Ltd, Mumbai has filed the

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complaint dated 27.05.2021 with CBI, New Delhi upon which a

separate crime bearing RC 2232021A0005 dated 02.06.2021 has been
registered at New Delhi against applicant and others. Since 03.08.2021
the applicant is behind the bars in the crime of New Delhi. Ld. Sr.
Counsel has submitted copy of FIR of crime of New Delhi and argued
that the allegations in the FIR of New Delhi pertains with the fraud by
Oyster Buildwell Private Limited (OBPL) with respect to the credit
facilities in the nature of term loan of Rs. 515 Crores and the same
allegations are also reflecting in the case in hand.

7. It is further canvassed that in the case in hand the FIR was

registered on 12.03.2020. The applicant has received notice u/s. 41­A
of Cr.P.C. and co­operated during the investigation. He has appeared
before the CBI, Mumbai and joined the investigation. He has also
furnished all the documents as sought by the Investigating Officer. The
custodial interrogation or arrest of the applicant was never sought by
the Investigating Agency during the investigation. After completion of
the investigation, the charge­sheet has been filed. On taking cognizance
summons has been issued to the accused persons. In pursuance of the
summons the applicant has appeared through Counsel. The case is
based on voluminous documentary evidence. The trial may take long
time to conclude. There is nothing on record to show possibility of
tampering or fleeing from the course of justice. The Ld. Sr. Counsel
prayed for grant of bail.

8. For the purposes of above submission, Ld. Sr. Counsel has

relied upon following case laws :­

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1. Siddhrath Vs. State of Utter Pradesh and Anr., 2021 SCC

OnLine SC 615 ( Supreme Court).
2. Aman Preet Singh Vs. CBI through Director, 2021 SCC
OnLine SC 941 ( Supreme Court).
3. Satender Kumar Antil Vs. CBI and Anr., 2021 SCC OnLine SC
922 ( Supreme Court).
4. Devender Singh Vs. The State of Uttar Pradesh and Anr., Spl.
Leave to Appeal (Cri) No. 7802/2021 dated 25.10.2021
(Supreme Court).
5. Amitbhai Anilchandra Shah Vs. CBI and Anr., (2013) 6 SCC
348.
6. P. Chidambaram Vs. CBI, (2020) 13 SCC 337.
7. Satender Kumar Antil Vs. CBI and Anr., M.A. No. 1849/2021
in SLP (Cri) No. 5191/2021 dated 16.12.2021(Supreme
Court).

9. Per contra, it is argued by the Ld. Special Public Prosecutor

Mr. Gaikwad that it is an economic offence and itself grave and serious
in nature. The co­accused Rana Kapoor, Bindu Kapoor and the applicant
hatched criminal conspiracy in various financial transactions and
committed fraud. Mr. Mahadik vide his valuation report dated
22.09.2017 has calculated the value of ASM Property at Rs. 562 Crores.
The ASM Property was mortgaged with Yes Bank Ltd. Co­accused Rana
Kapoor being MD and CEO of YBL entered into criminal conspiracy with
his wife co­accused Smt. Bindu Kapoor, Director of M/s. Bliss Abode
Private Limited (BAPL) and applicant, Promoter of AG companies for
the purpose of obtaining illegal gratification in the form of ASM

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Property in a prime location at much less than the realizable market

value belonging to ARL for extending concessions, relaxations and
waivers in the already existing credit facilities provided to Avantha
Group (AG) and for advancing new/additional loans to them. The YBL
had already extended credit facilities to the tune of Rs. 2500 Crores
approx to various AG companies, still a loan of Rs. 400 Crores was
granted to ARL. Co­accused Rana Kapoor was also Chairman of
Management Credit Committee (MCC). Co­accused Bindu Kapoor, wife
of Rana Kapoor, was one of the directors of M/s. Bliss Abode Private
Ltd. (BAPL) and applicant was the Promoter of AG Group of companies
during the period of offence. At the time of sanction of loan of Rs. 400
Crores to ARL, the value of ASM Property was stated to be Rs. 500
Crores in the Credit Approval Memorandum by MCC of YBL. The Credit
Approval Memorandum was signed on 29.03.2016 and Lease Rental
Discounting facility of Rs. 400 Crores was approved. The Lease
agreement on the basis of which the facility was approved was signed
on 22.03.2016, just week prior to this approval of the facility showing
Rs. 5,41,14,790/­ as rental income per month with malafide intention
to falsely show repayment capacity of the borrower. The Lease
agreement was never honored and no rent was received by the
borrower from the lessee, which was also Group company of the same
Promoter i.e. applicant.

10. It is further argued that the Bliss Abode Private Ltd. (BAPL)
i.e. a company of co­accused Bindu Kapoor who is wife of co­accused
Rana Kapoor submitted an offer to buy ASM Property at a consideration
of Rs. 378 Crores and the NOC was issued by YBL. The property papers

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were released by YBL and sale was executed vide agreement dated
15.09.2017. Immediately thereafter the BAPL obtained loans from M/s.
Indiabuls Housing Finance Ltd., where­in the valuer has calculated the
value of ASM Property as 562 Crores. The co­accused Rana Kapoor has
then extended concession, relaxation and waivers to the Avantha Group
Companies(AG).

11. He further submits that in March 2017, YBL gave a loan of

Rs. 530 Crores to M/s. Solaris Chemtech Industries Ltd. for advance of
Rs. 350 Crores as security deposit to Avantha Power and Infrastructure
Ltd. for setting up 60 MW Captive Power Plant at Solaris Plant Location,
Rs. 150 Crores for ongoing Capex/Maintenance Capex and Rs. 30
Crores for long term working capital. However, the fund was not
utilized for the purpose which was granted but diverted for another
purposes. According to him, co­accused Rana Kapoor also abused his
official position to grant a loan of Rs. 515 Crores to MS Oyster Buildwell
Private Ltd. There was non recovery of loan and the account being
classified NPA.

12. According to him, there is sufficient material to show

criminal conspiracy and prima facie involvement of the applicant in the
serious economic offence. The applicant is also involved in another
economic fraud offence. He is having criminal antecedents. Many of the
witnesses are employees of the applicant. Applicant is an influential
person. There is every possibility of tampering with the evidence and
influencing the witnesses by the applicant. The applicant is married to
lady of Foreign Nationality and has business interest abroad. As such

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there is every possibility of absconding. The fact of non arrest during

the investigation itself is not sufficient for grant of bail. Making
payment of outstanding amount of fraud is not sufficient to wipe out
criminal liability. He prayed for rejection of the bail application.

13. For the purposes of above submission he relied upon

following case laws :­
1. Radha Kapoor Khanna Vs. CBI, Criminal Bail Application No.
3323/2021 with Criminal Bail Application No. 3325/2021
with Criminal Bail Application No. 3326/2021 with Criminal
Bail Application No. 3334/2021 dated 28.09.2021 (Bombay
High Court).
2. Sunil N. Godhawani Vs. State, Bail Application 1100/2020
dated 23.07.2020 (Delhi High Court)
3. Y.S. Jagan Mohan Reddy Vs. CBI, Criminal Appeal No.
730/2013 (arising out of SLP (Cri) No. 3404/2013) dated
09.05.2013 (Supreme Court)
4. Jainam Rathod Vs. State of Haryana, CRM­M No. 36693/2019
dated 13.11.2019 (Punjab and Hariyana High Court)

14. I have given mindful consideration to the rival submissions.

I have gone through with the observations of the Hon'ble Lordship's in
the case laws cited supra and very much guided. I have taken judicial
note of all the parameters. I have also perused the material available in
the charge­sheet.

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15. The gist of the accusations complied by the prosecution is

as under :­
a] That it was alleged in the FIR that Shri Rana Kapoor, then
Managing Director (MD) and Chief Executive Officer (CEO), Yes Bank
Ltd. (YBL) obtained illegal gratification in the form of a property in a
prime location in New Delhi at Much less than the realizable market
value, belonging to M/s. Avantha Realty Ltd. (ARL), mortgaged for a
loan taken by ARL from YBL, for extending concessions, relaxations and
Waivers in the already existing credit facilities provided to Avantha
Group (AG) companies and for advancing new/additional loans to
them.

b] That it was further alleged that Shri Rana Kapoor, then MD

and CEO of YBL entered into a criminal conspiracy with his wife, Smt.
Bindu Kapoor, director of M/s. Bliss Abode Private Ltd ( BAPL) and Shri
Gautam Thapar, promoter of AG Companies for the purpose of
obtaining the above illegal gratification. In doing so he was able to
acquire an immovable property at 40, Amrita Shergill Marg, New Delhi,
which has been mortgaged to Yes Bank Ltd by ARL at a consideration of
Rs. 378 Crores against the value of Rs. 685 Crores. That YBL had
already extended credit facilities to the tune of Rs. 2500 crore approx.
to various AG companies, still a loan of Rs. 400 crore was granted to
ARL.

c] That Shri Rana Kapoor, as MD and CEO of YBL was head of

the Management Credit Committee (MCC) of the bank, which approved
the said loan of Rs. 400 Crores to ARL as well as release of property

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against repayment of loan. It was also alleged that as a part of the

conspiracy, YBL at the instance of Shri Rana Kapoor extended further
credits of Rs. 515 crore to M/s Oyster Buildwell Pvt. Ltd. and of Rs. 650
crore to M/s Solaris Chemtech Industries Ltd. after above property at
40, Amrita Shergill Marg had been purchased by M/s Bliss Abode Pvt.
Ltd. in 2017.

d] That the investigation of the case revealed that Shri Rana

Kapoor, S/o Raj Kapoor was the MD and CEO of Yes Bank Ltd (YBL)
during the period of alleged offence i.e. March, 2016 to January, 2018.
And that being MD and CEO of YBL he was also the Chairman of
Management Credit Committee, as per the Board's Credit Policy
applicable during the period. Similarly, Smt. Bindu Kapoor, wife of
Rana Kapoor, was one of the Directors of M/s Bliss Abode Pvt. Ltd.
during the period of offence. Shri Gautam Thapar was the promoter of
Avantha Group of companies during the period of offence with 85% of
share holding in Avantha Holding Ltd (the holding company) and 100%
share holding in Avantha Reality Ltd.

e] That in March, 2016, various Avantha Group of Companies

was having different loans facilities with Yes Bank. During the end of
the year 2015, the financial position of the group was deteriorating,
which had resulted in overall increase in group level debt. Corporate
Banking team received verbal communication from Shri Rana Kapoor,
the then MD and CEO, YBL that Avantha Group was looking to raise
short term financing against the properties owned by the group in their
property holding company named as Avantha Reality Limited (ARL).

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Corporate Banking and Corporate Finance Real Estate Financing Team

were advised by Shri Rana Kapoor to meet the group company's officials
for further discussion. After detailed discussion, Shri Amit Dhawan,
Head of Corporate Banking, North, Yes Bank Ltd. sent a joint update
mail covering the discussion and details of all available properties in the
company which could be taken over as security for proposed loan of
INR 400 Crore to ARL.

f] That Shri Rana Kapoor, the then MD and CEO gave in­
principle approval to go ahead with the proposed loan with detailed
comments through mail. The loan was approved by the Management
Credit Committee, wherein Shri Rana Kapoor was the Chairman, and
final approving authority. This loan of Rs. 400 Crore to Avantha Realty
Limited was given against the Collateral Securities of Rs. 600 Crore,
including immovable property situated at No. 40, Amrita Shergill Marg
( Old No. 17A, Ratendon Road ) New Delhi­ 110003 (ASM Property).

g] That before the said ARL loan of Rs. 400 Crores, the group
companies were already enjoying credit facilities totally amounting to
Rs. 2563.40 Crores and feeling the stress. The companies had
commutative outstanding of Rs. 1712.10 Crores in March, 2016, still
ARL was given a loan of Rs. 400 Crores, which was used only to repay
the existing loans of AHL with ICICI Bank and ARL with DCB Bank,
which added to the existing huge debt of the group companies. In
addition, a loan of Rs. 250 Crore was also sanctioned and disbursed to
M/s. BGPPI (BILT Graphics Paper Products Ltd). As a result the total

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loan to the group company stood at Rs. 3213.40 Crores as on

31.03.2016.

h] That at the time of sanction of loan of Rs. 400 Crores to

ARL, the value of ASM property was stated to be at Rs. 500 Crores in
the Credit Approval Memorandum by MCC of YBL. Credit approval
Memorandum was signed on 29.03.2016 and Lease Rental Discounting
facility of Rs. 400 Crore was approved. The Lease Agreement on the
basis of which the facility was approved was signed on 22.03.2016, just
a week prior to this approval of the facility showing Rs. 5,41,14,790/­
as rental income per month with mala­fide intention to falsely show
repayment capacity of the borrower. This lease agreement was never
honoured and no rent was received by the borrower from the lessee,
which was also a group company of the same promoter i.e. Shri Gautam
Thapar. Prior to application of the said loan of Rs. 400 Crores, there
was a Rent Lease agreement of ARL with VILT for ASM property, which
was being used as Promoter's Residence (Mr. LM Thapar) and official
purpose for an approximate amount of Rs. 50 lakhs per month. That the
decision to give this loan on a sham lease agreement not only caused
wrongful loss to the bank but also they were able to build pressure on
the borrower group by increasing their exposure and debt, so that the
borrower group would agree to monetise the assets and especially ASM
property, against mortgage of which the loan was given to ARL.

i] That M/s Avantha Reality Ltd (ARL) had taken a loan of Rs.
59 Crore in March, 2012 from DCB Bank, Corporate Branch, in which
the collateral Security was Pari Passu Charge of Company's immovable

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property situated at No. 40, Amrita Shergill Marg ( Old No. 17A,
Ratendon Road) New Delhi­110003 (ASM Property). Further, vide
Credit Arrangement letter 03.06.2013, ICICI Bank Ltd had sanctioned a
Term Loan of Rs. 400 Crore to AHL against the Pari Passu Charge with
DCB Bank by way of equitable mortgage over the same ASM property.

j] That during the course of this facility ICICI got the

equitable mortgaged property valued twice first in May, 2014 and then
in August, 2015. As per valuation reports dated 08.05.2014 and
04.08.2015 of Adroit Technical Services Pvt. Ltd. the valuation of the
ASM property stood at Rs. 550.92 Crores and the forced sale value
stood at Rs. 413.19 Crores.

k] That before the ARL account being declared NPA, on

12.11.2016 Shri Rana Kapoor instructed other officers of YBL to pursue
with Group for monetisation of non­core assets including 40, Amrita
Shergill Road, New Delhi property. YBL wrote a letter to Gautam
Thapar signed by Shri Rana Kapoor, MD and CEO to monetize the
assets to repay the outstanding amount of the Group.

l] That Yes Bank Ltd got the ASM property valued by M/s.
Cushman & Wakefield, an expert for valuation of the immovable
property. Vide their report dated 03.11.2016 and followed by its
subsequent addendum dated 30.01.2017, M/s. Cushman & Wakefield
had valued the said property at Rs. 476.8 Crore.

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m] That in the first week of April, 2017 M/s. Inter Globe

Enterprises Ltd (Interglobe) sent an offer to Avantha Reality Ltd to buy
the property at a price of Rs. 375 crore. After the receipt of offer and
the company approached Yes Bank Ltd for issue of NOC and release of
property papers, as the property was mortgaged to them against a loan
of Rs. 400 Crores to ARL and also cross collateralized with other loans
amounting to Rs. 815 Crores. Yes Bank Ltd granted the NOC on
28.07.2017, with a condition to deposit Rs. 408 Crores in ARL account.
However, vide their letter dated 29.08.2017, all of a sudden M/s.
Acquire Services Pvt. Ltd. (Interglobe) withdrew their offer, without
giving any reason for withdrawal of offer.

n] That immediately thereafter, vide letter dated 31.08.2017

M/s Bliss Abode Pvt. Ltd. submitted an offer to ARL to buy the said ASM
property at a consideration of Rs. 378 Crore. Thereafter, NOC was
sought from Yes Bank Ltd., which was granted by them with a condition
that Rs. 374 Crore be credited in ARL account maintained with Yes
Bank Ltd. Accordingly the property papers were released by Yes Bank
Ltd. and the sale was executed vide agreement dated 15.09.2017
between ARL and M/s. Bliss Abode Pvt. Ltd.

o] That Shri Rana Kapoor, MD and CEO of YBL has approved

the issue of NOC for sale of ASM property at the time of offer from M/s.
Acquire Services Pvt. Ltd (InterGlobe), however he deliberately
abstained himself from giving approval at the time of issue of NOC for
sale of ASM Property to M/s. Bliss Abode Private Ltd. Shri Rana Kapoor
was aware of the offered price of Rs. 375 Crore by M/s. Acquire

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Services Pvt. Ltd and hence through the company of his wife, he sent an
offer of Rs. 378 crore, relatively a higher price. As a result the property
could be acquired by BAPL in September, 2017 after paying an amount
of Rs. 374.22 (Value of Rs. 378 Crore minus TDS) to ARL. However,
the sale proceed was not fully utilized to repay the ARL loan, but
distributed among other group exposures, so that the other accounts of
the Group do not become NPA. Only Rs. 253.30 Crore was utilized for
liquidation of the ARL Loan, which resulted in non recovery of
remaining principal and interest, and as such the ARL loan account has
been declared NPA (since October, 2019) with total outstanding of Rs.
137.90 Crore.

p] That during investigation, it was revealed that there was a

code of conduct applicable for the Managing Director of Yes Bank Ltd.
As per Para No. III of code of conduct “Conflict of interest may also
arise when key personal or member of his or her or their family,
received improper personal benefit as result of his or her possession
with the company, whether received from that company or a third
party. The Duty of the key personal to the bank demands that they
avoid and disclose actual and apparent conflict of interest”. However,
as per the Board Records of Yes Bnk, there was no intimation from Shri
Rana Kapoor about any property having conflict of interest with the Yes
Bank being purchased by M/s. Bliss Abode Pvt. Ltd., where his wife was
a Director. Shri Rana Kapoor had submitted Form MBP­1, Notice of
interest by the Directors { pursuant to Section 184(1) and rule 9(1)}
dated 10.04.2017 to the Board of Directors of Yes Bank Ltd. According
to this form he has given the list of the companies in which he and his

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relatives are directors or members. The list included M/s. Bliss Abode
Pvt. Ltd., where his wife has been shown as one of the Directors of the
company.

q] That immediately after acquiring the ASM Property, M/s.

Bliss Abode Pvt. Ltd obtained loans from M/s. Indiabulls Housing
Finance Ltd (IHFL) totally amounting to Rs. 285 Crores by mortgaging
the said ASM property. They were sanctioned and disbursed the said
loans after the valuation of the said property by their Zonal Technical
Manger, Shri Sagar Vasant Mahadik. Vide his valuation report dated
22.09.2017 done on the basis of caparison method ( comparison of
properties in the same micro market in recent past transaction) he has
calculated the value of 40, Amrita Shergill Marg, New Delhi at Rs. 562
Crores. Thus the ASM property acquired by Shri Rana Kapoor in the
name of M/s. BAPL had a much higher value than Rs. 378 Crores even
during the period when it was purchased by Shri Rana Kapoor.

r] That the facts, the investigation and related evidence prima

facie reveals that Shri Rana Kapoor being the MD and CEO of Yes Bank
Ltd abused his official position to acquire a property, mortgaged to Yes
Bank Ltd against a loan taken by ARL, at an inadequate consideration
with the assistance/abetment of Smt. Bindu Rana Kapoor as Director of
M/s. Bliss Abode Pvt. Ltd., Shri Gautam Thapar, as Director of M/s.
Avantha Reality Ltd. Even the loan given to ARL was based on a sham
agreement between the two group companies, which later caused
wrongful loss to the bank and the account was classified NPA in
October, 2019 with a total outstanding of Rs. 137 Crores.

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s] That furtherance to the above said offences Shri Rana

Kapoor being MD and CEO of YES bank Ltd and Chariman of MCC,
entered into a criminal conspiracy with Shri Gautam Thapar, the
Promoter of Avantha Group of Companies and abused his official
position to grant following 3 (three), loans to the group companies,
which were not utilised for the purpose for which they were given and
diverted by the borrowers, where majority of the funds were utilised for
ever greening of the existing loans of the group companies.
I. In July, 2016, Yes bank Ltd gave a loan of Rs. 230 Crores to
M/s. AHL to pay off the outstanding loans of M/s. BGPPL and BILT.
This loan was given for purchase of Bhigwan Power Plant by BGPPL.
Against this loan of Rs. 230 Crores, YBL disbursed an amount of Rs. 225
Crores on 20.07.2016 and the fund was used in the following manner;
i) Rs. 127.20 Crores utilized for liquidation of BGPPL loan with YBL
ii) Rs. 89.40 Crores utilized for liquidation of BILT loan with YBL
iii) Rs. 19.00 Crores converted into FD for future servicing of
Principal and interest.

II. Also, in July, 2016, Yes bank gave a loan of Rs. 85 Crores
to M/s. Solaris Chemtech Industries Ltd to pay off the outstanding loans
of M/s. BILT. This loan was given as long term working capital.
Against this loan of Rs. 85 Crores, YBL disbursed an amount of Rs. 84
Crores on 19.07.2016 and the fund was used in the following manner;
i) Rs. 76.35 Crores utilized for liquidation of BILT loan with YBL
ii) Rs. 7 Crores converted into FD for future servicing of Principal
and interest.

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III. Further, in March, 2017, Yes bank Ltd gave a loan of Rs.
530 Crores to M/s. Solaris Chemtech Industries Ltd. This loan was
given for advance of Rs. 350 Crores as Security deposit to Avantha
Power & Infrastructure Ltd for setting up 60 MW Captive Power Plant at
Solaris Plant Location, Rs. 150 Crores for ongoing Capex/Maitenance
Capex including re­imbursement of Capex incurred in past 6 months
and Rs. 30 Crores for long term working capital. However, against this
loan of Rs. 530 Crores, YBL disbursed only an amount of Rs. 487
Crores between 31.03.2017 to 06.08.2018 in five tranches of Rs. 100
Crores, Rs. 16 Crores, Rs. 290 Crores, Rs. 41 Crores and Rs. 40 Crores.
The fund was used in the following manner;
i) Loan settlement of SCIL/AHL/BGPPL/ARL/OBPL with YBL Rs.
266.68 Crores.
ii) Loan Settlement of SCIL with Religare Rs. 32 Crores
iii) Loan Settlement of SCIL with SBI Rs. 31.19 Crores
iv) Loan Settlement of SCIL with Clix Rs. 59.49 Crores
v) Repaid to CG Powers & Industrial Solutions Ltd. Rs. 8 Crores
vi) Interest settlement of AGL with Aditya Birla Finance Ltd Rs. 1.08
Crores
vii) Interest settlement of ARL with Indusind Rs. 2.92 Crores
viii) Interest settlement of AHL with Indusind Rs. 0.55 Crore
ix) Interest settlement of AHL with SICOM Rs. 0.68 Crore
x) Loan settlement of SCIL with ICICI Rs. 41 Crores
xi) And other company expenditure including Rs. 43.51 Crores
including interest servicing.

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t] That after the acquisition of ASM property by Shri Rana

kapoor abused his official position to grant a loan of Rs. 515 Crores to
M/s. Oyester Buildwell Pvt Ltd in December 2017/January, 2018. This
loan was given for extending security deposit to Jhabua Power
Investments Ltd for Operation and Maintenance to be done for plaints
of Jhabua Power Ltd and meeting transaction expenses. YBL disbursed
an amount of Rs. 514.27 Crores in 3 tranches between 11.01.2018 to
05.03.2018, which was utilized as under;
i) Loan liquidation of AHL and APIL with Aditya Birla Finance Ltd
for release of Shares of CG Power : Rs. 177.74 Crores
ii) Loan liquidation of AHL with ECL Finance Ltd and Edelweiss
Finvest Pvt Ltd for release of Shares of CG Power : Rs. 289.29
Crores
iii) Repayment to lenders : Rs. 20.20 Crores
iv) Operational Expenses of Group Companies : Rs. 11.40 Crores.

u] That as a part of the conspiracy the said loan was given to

an entity which was non­operational and not a profit making company.
This resulted in non­recovery of loan and account being classified NPA
and fraud by the bank with a total outstanding of Rs. 484 Crores, as on
the date of NPA i.e. 30.10.2019.

v] That the above said facts and circumstances prima facie

revealed that Shri Rana Kapoor (accused No. 1), then MD and CEO of
Yes Bank Ltd, abused his official position to acquire a valuable property
at an inadequate consideration then the actual value and Shri Gautam
Thapar (accused No. 2), Promoter of M/s. Avantha Realty Ltd. and

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Smt. Bindu Rana Kapoor (accused No. 4), Director, M/s Bliss Abode Pvt.
Ltd, through their respective companies abetted in the commission of
said offences by Shri Rana kapoor (accused No. 1).

w] That it is also revealed that Shri Rana Kapoor (accused No.

1) in conspiracy with Shri Gautam Thapar (accused No. 2) and Smt.
Bindu Rana Kapoor (accused No. 4) were able to fraudulently induce
the Bank to release the property for sale, at an inadequate value. And
as a favour for acquisition of the property at an inadequate value, Shri
Rana Kapoor further abused his official position to give additional
loans to various group companies of Shri Gautam Thapar (accused No.
2), which were not utilized for the purpose for which it was given and
major portion was used for ever greening of the existing loans with Yes
bank Ltd. Further, they were able to induce the bank to grant the loan
of Rs. 400 Crores, to M/s. Avantha Reality Ltd against a sham rental
agreement entered between two group companies of Avantha Group
and thus cheated Yes bank Ltd.

16. At the outset the Ld. Sr. Counsel for the applicant has relied
upon cases of Siddhrath and Aman Preet Singh ( Cited supra). The
Ld. SPP on the other hand has relied upon case of Radha Kapoor
Khanna (Cited Supra). According to him, the accused persons in the
case of Radha Kapoor Khanna are prosecuted for the economic offences
and their bail applications have been rejected by the CBI Spl. Judge,
Mumbai. The accused persons then moved before the Hon'ble High
Court Bombay for grant of bail and amongst others have rellied upon
cases of Siddhrath and Aman Preet Singh. The Hon'ble Bombay High

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Court has referred those cases and by distingushing cases of Siddharath

and Aman Preet Singh has been pleased to reject the prayer for grant of
bail. I have gone through with the observations of the case of Radha
Kapoor Khanna and find myself in the agreement with the submission of
Ld. SPP.

17. Recently the Hon'ble Apex Court in the case of Satender

Kumar Antil Vs. CBI and Anr., 2021 SCC OnLine SC 922 has been
pleased to issue certain guidelines including additional guidelines on
dated 16.12.2021 in M.A. No. 1849/2021 in SLP (Cri) No. 5191/2021
(Supra). The Ld. Sr. Counsel for the applicant has also relied upon case
of Satender.

18. The categories/ types of the offences given in the

guidelines of the case of Satender are as under :­

A) Offences punishable with imprisnment of 7 years or less not

falling in category B & D.

B) Offences punishable with death, imprisonment for life, or

imprisonment for more than 7 years.

C) Offences punishable under Special Acts containing

stringent provisions for bail like NDPS (S.37), PMLA
(S.45), UAPA (S.43D (5)), Companies Act, 212(6), etc.

D) Economic offences not covered by Special Acts.

19. It is canvassed on behalf of the applicant that the categories

B to D are not applied to the case of the applicant. The case of the

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applicant covered under category A as much as the offences alleged

against the applicant are punishable with imprisonment which may
extent to 7 years. However, in my humble view in the category D there
is reference of economic offences not covered by Special Acts and those
Special Acts means Special Acts as referred in category C . The applicant
is also prosecuted for the offences punishable under the provisions of
Indian Penal Code. As such in my humble opinion the case of the
applicant covered under category D of the guidelines of the Hon'ble
Apex Court in the case of Satender. In the charge­sheet amongst others
Section 120B of IPC r/w. Section 13(2) r/w. 13(1) (d) of the PC Act
also levelled against the applicant. Section 13(2) r/w. 13(1) (d) of the
PC Act is punishable with imprisonment which may extend to 10 years.
On this count also the case of the applicant is not covered under
catefory A.

20. In the case of Satender Kumar Antil (Cited Supra) it is

observed by the Hon'ble Apex Court that the economic offences do form
a different nature of offences and thus the seriousness of the charge has
to be taken into account but simultenously, the severity of the
punishment would also be a factor.

21. In this view of the matter, from the charge­sheet and

connected papers thereto prima facie the allegations are to the effect
that the applicant alongwith co­accused indulged in the commission of
offence which resulted in serious dent to the financial health of the
State. The allegations are serious in nature. The accusations against the

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applicant prima facie show his complicity. It is alleged that the

applicant alongwith co­accused entered into a criminal conspiracy and
the sale transaction of the ASM Property took place at much less than
the realizable market value belonging to ARL for extending concessions,
waivers in the already existing credit facilities provided to AG
Companies and for advancing new/additional loans to them particularly
wheh they were feeling financial stress. It prima facie reveals that the
sale consideration of ASM Property is Rs. 378 Crores against the value
of Rs. 562 Crores. Further, it is also alleged regarding lease rental
discounting facility of Rs. 400 Crores on a Sham Lease Agreement. It is
further alleged that the loans were not utilised for the purpose for
which they were given and diverted for ever greening of the existing
loans of the AG Companies. The another allegation is to the effect of
grant of loan of Rs. 530 Crores to M/s. Solaris but utilisations for
different purposes. Thus, the applicant involved in a grave and serious
economic offence affecting the economy of the Country. There is prima
facie case and the nature and gravity of the offence is grave and serious
one.

22. By referring to the FIR registered at New Delhi against the

applicant on the basis of the complaint of Chief Vigilence Officer, Yes
Bank Ltd., Mumbai it is urged that it is mentioned in the said FIR that
the funds recovered alongwith group funding support were sufficient to
repay the entire outstanding loan of ARL and fraud amount was
considered as nil. It is canvassed that as per contention of the Yes Bank
the fraud amount was considered as nil and as such there is no dues
and on this count also the applicant is entitled for bail. However, in case

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of Rumi Dhar Vs. State of West Bengal and Anr., Cri. Appeal No.
661/2009 it is observed by the Hon'ble Apex Court that repayment of
the public money is not sufficient and the offence committed as such
does not come to an end nor exonerate the accused from the criminal
acts. Thus, I find no substance in the submission.

23. It is further argued that there cannot be double Jeopardy.

The Chief Vigilance Officer, Yes Bank Ltd, Mumbai has filed the
complaint dated 27.05.2021 with CBI, New Delhi upon which a
separate crime bearing RC 2232021A0005 dated 02.06.2021 has been
registered at New Delhi against applicant and others. Since 03.08.2021
the applicant is behind the bars in the crime of New Delhi. Ld. Sr.
Counsel has submitted copy of FIR of crime of New Delhi and argued
that the allegations in the FIR of New Delhi pertains with the fraud by
Oyster Buildwell Private Limited (OBPL) with respect to the credit
facilities in the nature of term loan of Rs. 515 Crores and the same
allegations are also reflecting in the case in hand. The applicant has
relied upon case of Amitbhai Shah (Cited Supra).

24. I have given mindful consideration to the submission and

also gone through with the observation of the case of Amitbhai Shah.
Even assuming for the sake of arguments that in the FIR of New Delhi
prima facie there is referrence of credits to M/s. Oyster Buildwell
Private Limited. However, in the case in hand prima facie there are
other allegations also regarding different transactions.

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25. According to the Ld. SPP applicant is also having

antecedents as he is involved in other economic fraud case which is
grave in nature. He further submits that many of the witnesses are
employees of the applicant and applicant is an influential person. If he
is enlarged on bail he is likely to tamper with the evidence. The
applicant is married to lady of Foreign nationality and has business
interest abroad. As such there is every possibility that the applicant may
abscond. The applicant on the other hand has relied upon case of P.
Chidambaram (Cited Supra). However, in the case of P. Chidambaram
the appellant was in custody for about two months and the co­accused
were already granted bail. However, such is not the fact situation in the
case in hand. Undisputedly some of the witnesses are the employees of
the applicant and the applicant is an influential person. As such
possibillity of tampering/influencing the witnesses cannot be ruled out.
Moreover, the applicant is also having antecedents. The applicant has
further relied upon case of Devender Singh (Cited Supra). However,
the facts of the case of the Devender Singh and of the case in hand are
some what different.

26. Prima facie the allegations are sufficient to show the

complicity of the applicant in a grave and serious offence. Considering
the facts of the matter, the gravity and nature of the offence and in the
larger interest of the society, I am not inclined to allow the prayer by
using discretion in favour of the applicant. The application is therefore
deserves to be rejected. Thus, I pass the following order :

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ORDER

Bail Application Exh. 16 stands rejected and disposed off

accordingly.

Mumbai: (M.R.PURWAR)
Date: 21.12.2021 Special Judge (CBI)
Court Room No.53,
Gr. Bombay.

Typed on : 20.12.2021 and 21.12.2021.

Signed on : 21.12.2021.

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“Certified to be true and correct copy of the original signed order”.

21.12.2021 (Pushpa Rajan Vengurlekar)

at about 4.30 P.M. Stenographer (H.G.)
Court Room No.53

Name of the Hon'ble Judge : Shri. M.R.Purwar

(Court Room No.53)

Date of pronouncement of Judgment/Order : 21.12.2021.

Judgment/Order signed by Hon'ble Judge on : 21.12.2021.

Judgment/Order uploaded on : 21.12.2021.

....