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BEFORE THE HONBLE SUPREME COURT OF


INDIA

ADARSH PRAJAPATI
(Appellants)
v.

(Respondents)

MEMORIAL FOR APELLANTS

TABLE OF CONTENTS
INDEX OF AUTHORITIES..3
STATEMENT

OF

JURISDICTION..5
STATEMENT OF FACTS..6
QUESTIONS PRESENTED..7
SUMMARY OF PLEADINGS.8
ARGUMENTS ADVANCED..9
PRAYER...12

INDEX
1.
2.
3.
4.
5.
6.
7.
8.
9.

AUTHORITIES

Dahyabhai Chhaganbhai Thakker vs State of Gujarat , 1964 AIR 1563 , 1964 (7) 361
Vijay Kumar Arora vs State (Govt of NCT of Delhi)
Vijayee Singh and ors vs State of Uttar Pradesh , 1990 AIR 1949 , 1990 SCR (2) 573
Surinder Singh vs Hardial Singh and ors , 1985 AIR 89 , 1985 SCR (1) 1059
Tejinder Singh @ Kaka vs State of Punjab
Tesco Supermarket ltd vs Nattrass , HL/PO/JU/4/3/1215
Bakhshish Singh vs State of Punjab , 1957 AIR 904, 1958 SCR 409
Court on its own motion vs State , 146 (2008) DLT 429
Smt Laxmi Devi Newar vs East India Company , 2007 137 Compcas 617 CLB

Databases
1.
2.
3.
4.

OF

Westlaw
Manupatra
Hein online
SCC online

STATEMENT OF JURISDICTION

A Writ Petition under Article 32 of the Constitution of India before the Honble Supreme Court of India challenging
the arrest and remand

of Adarsh Prajapati

STATEMENT OF FACTS

Adarsh Prajapati was born in Dubai, holds a US passport and has been a permanent resident of
India since 1985. He is a trained economist and is considered to be one of the brightest minds in

his profession. He returned to India and started his own company in India, Future Money.
He was the CEO of the company and his close friend, Mohan Chandra was the Vice Chairman

and authorized signatory.


the Company ended up with unpaid loans amounting to several hundreds of crores and several

thousand shareholders baying for Adarsh Prajapatis blood.


Adarsh and Mohan Chand resigned from the Company.
Deal between Future Money and Adarsh Prajapati, wherein he was paid Rs. 5 Crores upon the

termination of his contract with Future Money,


One of his creditors, M/s Hi Fashion Ltd., filed FIR No. 944A/2004 under Section 420, 406, 467,
471, 120B of Indian Penal Code against inter alia, Adarsh Prajapati, which was registered by the
EOW cell, Crime Branch, New Delhi on 03.09.2004. Adarsh Prajapati was arrested on

15.09.2004 and was remanded to judicial custody.


In September 2005, Adarsh Prajapati joined Generic Multi National Company [GMNC] as their

Vice President [Marketing] with assignments around the world.


These presentations, which were templates for the campaign, contained several morphed pictures
of HRH Tashanbilli in shorts and holding a beer mug with a caption Welcome to Fraternia!

Cheers!! Adarsh Prajapati used a mobile handset for all his communications.
Since the scandal, Mohan Chandra had been arrested, charged and in February 2008, convicted
for the murder of a local moneylender under Section 302/34 IPC and had been sentenced to life
imprisonment by the Sessions Court, which sentence was confirmed by the High Court in March
2008.

Mohan Chandra had conceived and executed a plan to defraud investors through Future Money
and further demonstrate how Adarsh Prajapati had in fact made over Rs.100 crores from the

entire fraud and had invested almost the entire amount in Indian energy companies
withdrawal of prosecution against Adarsh Prajapati in case FIR No. 944A/2004.
The Govt. of NCT of Delhi filed an Appeal before the High Court against Order dated 10.10.2008
passed by the trial court, stating that the Government had withdrawn the request for withdrawal

of prosecution,
The Government also placed additional material on record, including transcripts of CDs showing

that Adarsh Prajapati had tampered with the judicial file.


Adarsh Prajapati proceeded to take a vacation and booked a tour with Floating Casino, a ship
registered in Norway that steamed out of Mumbai and spent five days about 50 nautical miles
from the Mumbai coast. On the third day of his vacation on the Floating Casino, a team of
officers from the Delhi effected the arrest of Adarsh Prajapati and after seeking transit remand
from the local Magistrate in Mumbai on 27.11.2008, produced him before the High Court, where
he

was

remanded

to

judicial

custody

pending

the

appeal.

Adarsh Prajapati immediately filed a Writ Petition under Article 32 of the Constitution of India
before the Honble Supreme Court of India challenging his arrest and remand. He also moved an
SLP under Article 136 of the Constitution of India challenging Order dated 24.11.2008 passed by
the Delhi High Court issuing notice to him on the appeal.

SUMMARY OF PLEADINGS

The prosecution had withdrawn the case against him under Section 321
Cr.P.C., and that he stood discharged vide Order dated

21.11.2008 and

hence the continued proceedings against Adarsh Prajapati were bad in law
The entire process was an abuse of the process of law and at any rate there
was no evidence against Adarsh Prajapati and hence

the proceedings were

bad in law
Mohan Chandra was bound by the terms of his pardon, and was not

competent to give any evidence against Adarsh Prajapati;


The continued trial against Adarsh Prajapati amounted to a review of the
Order

dated

21.11.2008

and

could

not

be

sustained

in

law;

ARGUMENTS ADVANCED

[1] BENEFIT OF DOUBT


It is a fundamental principle of criminal jurisprudence that an accused is presumed
to be innocent and, therefore, the burden lies on the prosecution to prove the guilt
of the accused beyond reasonable doubt. (Dahyabhai Chhaganbhai Thakkar v. State
Of Gujarat1,) Suspicion, however, strong cannot be allowed to take place of proof
and, therefore, the Court has to be watchful and ensure that conjectures and
suspicion do not take place of legal proof. (Vijay Kumar Arora v. State 2 (Govt. of NCT
of Delhi.) In case of such a reasonable doubt, the Court has to give the benefit of
the same to the accused. (Vijayee Singh And Ors v. State Of Uttar Pradesh 3, By a
catena of decisions of this Court it has by now been very well settled that
allegations of corrupt practice are quasi-criminal charges and the proof that would
be required in support of such allegations would be as in a criminal charge.
Therefore, charges of such practice are to be equated with criminal charges and
proof thereof would be not preponderance of probabilities as in civil action but proof
beyond reasonable doubt as in criminal trials.( Surinder Singh v. Hardial Singh And
Ors4, ) The Supreme Court has said in Tejinder Singh @ Kaka v. State of Punjab 5,
that the benefit of doubt must be given to the accused when the prosecution has
not been able to prove its case beyond reasonable doubt.
[2] THE CIRCUMSTANTIAL EVIDENCE IS INCONCLUSIVE IN NATURE
As Jaffee says Propositions are true or false; they are not "probable"'. 6 In court as
elsewhere, the data cannot 'speak for itself'. It has to be interpreted in the light of
the competing hypotheses put forward and against a background of knowledge and
1 1964 AIR 1563
2 (2010) 2 SCC 353
3 1990 AIR 1459
4 1985 AIR 89
5 (2013(2) ACR1212)
6 Leonard Jaffe of Probativity and probability (1985)46 University of Pittsburgh Law
Review 924-934

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experience about the world. 7 In the present case, the plausibility of the hypothesis
put forward by the Prosecution at the trial stage is inconclusive in nature. The
circumstances encompassing situation at hand fail to prove the factum probandum.
The rules as laid down by Wills on Circumstantial Evidence, other writers on the
subject have repeated, and are as follows:(1.) The circumstances alleged as the basis of any legal inference must be strictly
and indubitably connected with the factum probandum.
(2.) The onus probandi is on the party who asserts the existence of any fact which
infers legal accountability.
[2.1] ABSENCE OF
A
MATERIAL PROPOSITION INCRIMINATING MR.
PRAJAPATI: In the instant matter, the Trial Court held Mr. Prajapati guilty of the
offences of Cheating and Criminal Conspiracy. The offences, if committed at all,
have been committed by the Companies. To convict Mr. Prajapati it becomes
essential to prove that the offences have been committed with the consent,
connivance of, or is attributable to the accused. It is submitted that none of
the existing circumstances are concrete enough to prove the factum probandum. To
convict Mr. Prajapati of the offences in question it is has to be proved that he was
the Controlling Officer. As held in the leading case of Tesco Supermarket Ltd. v
Nattrass8, a person is a controlling officer if the person is in actual control of the
company or part of them and who is not responsible to another person in a
company for the manner in which he discharges his duties in the sense of being
under his orders. Thus the available chain of circumstances fails to prove the
proposed hypothesis and at the same time fails to exclude any other possible
hypothesis. As observed by the Supreme Court of India in Bakhshish Singh v State
of Punjab9, in a case resting on circumstantial evidence, the circumstances put
forward must be satisfactorily proved and those circumstances should be consistent
only with the hypothesis of the guilt of the accused. Again those circumstances
should be of a conclusive nature and tendency and they should be such as to
exclude every hypothesis but the one proposed to be proved 10.
[2.2]THE CIRCUMSTANTIAL CHAIN IS INCOMPLETE AND LEAVES A
REASONABLE DOUBT: There must be a chain of evidence so complete as not to
7 Supra, FN 2,Page 15

8 HL/PO/JU/4/3/1215
9 1975 AIR 904, 1958 SCR 409
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leave any reasonable ground for the conclusion consistent with the innocence of the
accused and must show that in all human probability the act must have been done
by the accused, the evidence produced by the prosecution should be of such nature
that it makes the conviction of the accused sustainable .It is therefore most
respectfully submitted that the Evidence presented is insufficient to sustain a
conviction.
[2.3] LACK OF EVIDENCE
It is humbly put forth before this venerated bench that the accused cannot be
convicted under the sections Section 420, 467, 471, 120B IPC due to the lack of
evidence against him
A bare perusal of the factual matrix shows that Government also The Government
also placed additional material on record, including transcripts of CDs showing that
Adarsh Prajapati had tampered with the judicial file. These CDs had been handed
over by Mohan Chandra, who was unavailable for comment.
In the present case, there is nothing which establishes the authenticity of the CD
and the question of whether or not there is any possibility of the CD being morphed,
tampered or altered was not examined by the court. Authenticity of evidence is an
important aspect which cannot be compromised upon. In the present case, what
have been presented before the court are compiled CDs and not the original disks
containing the recordings.
This sufficiently creates room for doubt and in such a scenario the evidence cannot
be blindly relied upon. The necessity of presenting the original disks has been put
forward by the Court in Court On Its Own Motion v. State 11.
While the transcript of the recordings may be edited, the films and tapes
themselves should not be edited. Both edited and unedited tapes be produced
before the committee.
It is humbly submitted before this Honble Court is that the critical evidence to be
given by Mohan Chandra cannot be relied upon as the evidence is based on the
malafide intention for Adarsh Prajapati and to get a relief from the punishment
which he had been charged with.
Also seeing the moot proposition, the confession to be made by Mohan Chandra on
22.09.2008 in the press conference that was called upon by his brother was not
made on the reason of condition of his pardon was his complete co operation with
the Government in the extradition case against Adarsh Prajapati. It can be clearly
seen that he altered from giving the confession against Adarsh prajapati.

11 146 (2008) DLT 429

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The fact that 23 out of 25 witnesses turned hostile [the remaining witnesses being
the Investigating Officer and a formal witness from Registrar of Companies], and the
only evidence in favour of the prosecution were photocopies of certain forged
receipts. The prosecution issued a statement that the original and allegedly forged
receipts were no longer present on the case file.
The photocopies of certain forged receipts cannot be relied upon as their
authenticity under The Indian Evidence Act is not proved.
[3] MR CHANDRAS TESTIMONY CANNOT BE RELIED UPON
The trial court arrived at its conclusion mainly relying on the deposition of Mr.
Chandra. The Appellant submits that the testimony of Mr. Chandra is erroneous and
lacks the requisite probative value.

[3.1] THE TESTIMONY IS INCONSISTENT WITH THE PRIOR STATEMENT: On


his examination before the Court, he improved upon his testimony by deposing that
Mr. Chandra who in turn was acting in the directives of Mr. Prajapati. It is contended
that this omission amounts to a contradiction thereby narrowing down the credibility
of the testimony. As G. F. Arnold observes in his book Psychology applied to Legal
Evidence, A person may equally persistently adhere to falsehood once uttered, if
there be a motive for it." It has always seemed that for this reason a statement does
gain value by repetition, if the second statement is substantially in accord with the
original, and especially if it has stood the test of cross-examination. It is contended
that the testimony in question fails to be in accord with the previous statement
made by the witness. The contradictions and omissions in the previous statements
are the best material to impeach the testimony of the witness. The Wigmorean
conclusion states that it maybe some undefined capacity to err; it may be a moral
disposition to lie, it may be partisan bias, it may be faulty observation, it may be
defective recollection, or any other quality. It has been held in a plethora of Indian
Cases that omissions which amount to contradictions in material particulars, i.e
materially affect the trial or the core of the prosecutions case, the testimony of
such a witness is liable to be discredited.

[4] DIRECTORS ARE LIABLE FOR THE ACTS OF THE COMPANY


A company is an artificial person and it can work only through its directors. A
director is an agent of the company for the conduct of business of the company. The
directors major role is to approve the commercial roles and strategies of the
company with a view to make profit.
The Directors carry out the companys management functions and they speak as a
company. In UK, the Cadbury Report on Corporate governance defines the

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independence as Apart from their Directors fees and shareholdings, they should
be independent of management and free from any business or other relationship
which could materially interfere with the exercise of their independent judgment.
The Directors are to exercise their powers bona fide in the interest of the
company. The powers of directors cannot be overridden even by the company in a
general meeting and they cannot interfere with the decision of the directors. The
Supreme Court of
India in Smt. Laxmi Devi Newar v East India Company 12 laid down three tests to
examine whether the Board of Directors have exercised their discretionary powers
properly or not they are: (i) whether the discretionary powers have been exercised
in the interest of the company; (ii) whether they exercised on the wrong principle;
(iii) whether there were exercised mala fide or for a oblique motive or for a collateral
motive. Herein the company has been charged with the crimes of criminal
conspiracy and cheating. However when a company is charged with any such
crimes the charges are to be attributed to the directors of the company and not the
promoters, it is not a matter of law but a matter of fact. Those who are involved in
day to day affairs of the company exercising such functions which only they could
exercise by the virtue of being in a position of power can be held responsible for the
actions of the company as they are the ones controlling the reins. As in the matter
which the Honorable Court is dealing with Mr. Prajapati companies to the point that
in all possibilities the directors of the companies should be charged with the crimes
of criminal conspiracy and cheating because the power to release IPO is a power of
the directors of a company. The companies being charged herein and as it has
already been brought to attention of this Honorable Court that the directors being
the heart of a companys working and also this heart having the power to exercise
such functions as providing loans to other companies, there remains no fact and no
law calling for Mr. Prajapati as the accused

PRAYER

12 2007 137 Comp Cas 617 CLB

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WHEREFORE, in light of the issues raised, arguments advanced and


authorities cited it is most humbly and respectfully requested that this
Honble Court to adjudge and declare that:
1. Mr. Prajapati is not guilty of the crimes of cheating and criminal
conspiracy.
2. The High courts conviction order of Mr. Prajapati should be reversed.
3. Mr. Chandra should be summoned as an accused.
The court may also be pleased to pass any other order, which this Honble
Court may deem
fit in light of justice, equity and good conscience.

Sd/-

(Counsel for the


Appellant)