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2022 (8) TMI 1324 - HC - Indian LawsSeeking grant of Bail - Criminal Conspiracy - flight Risk - defrauding PNB of the huge amount in the matter of issuance of unauthorized and fraudulent letters of Undertaking (LoUs) in favour of Overseas branches of various Indian Banks and purported letter of Credits (FLC) in favour of foreign suppliers of the accused companies - HELD THAT - The charge-sheet filed against the applicant reveal his role along with the mastermind of the case Mehul Choksi (accused no.6) and it is alleged that knowing fully well that the accused companies have exhausted their limit sanctioned to them, and without their providing their requirement to the 100 margin, applications were submitted with PNB for issuance of fraudulent LOUs and the accused persons are charged for hatching a criminal conspiracy and for clandestinely taking back the original applications which were supposed to be in possession of the Bank, with an intention to cause disappearance of the same and it is alleged that the said acts were continued for years together. When the charge-sheet is carefully perused, and a comparative analysis between the role of the two accused persons is scanned for, both face an identical accusation. They are alleged of submitting an application for opening of an FLC for US of 1,000,000 with the beneficiary as M/s. Crown Aim Limited, Hong Kong and the advising bank with UCO Bank, Hong Kong for purported import of fresh water pearls and the date of shipment being 23/3/2017. An identical role attributed to both the applicants by transmitting a SWIFT message favouring UCO Bank with the beneficiary name for usage period of 180 days. The alleged offence is undisputedly in the nature of economic offence which has resulted in loss to the State exchequer, but while considering the Bail Applications, it is not only the gravity of the charges which deserve a consideration, but punishment that could be imposed after trial and continuation is also an important aspect. It contemplate recaliberating the scales of justice - Merely because the offence is in the nature of economic offence, would be no ground to refuse the bail, as it is not imperative that in every case of economic offences, bail should invariably be refused. Recently, the Hon ble Apex Court in case of UNION OF INDIA VERSUS K.A. NAJEEB 2021 (2) TMI 1212 - SUPREME COURT , has once again reiterated that, Liberty guaranteed by Part-III of the Constitution, shall bring within its protective ambit not only due procedure and fairness but also access to justice and speedy trial. The charge-sheet being filed against the present applicant on completion of investigation and the entire material crystallized therein, it would be suffice to secure the presence of the applicant at the time of his trial and he need not remain incarcerated by way of a punishment, till he face the trial for the charges levelled against him, however, serious may be the accusations faced by him. The accusations against the applicant being crystallized in the charge-sheet, he deserve his release on bail and merely because he is to face a trial in an economic offence, he cannot be robed of his liberty. His long incarceration for more than 4 years also deserve to set him at liberty, pending the trial for the accusations faced by him - it is to be noted that the applicant is already released on bail on 7/9/2018 by the Special Judge for PMLA in the PMLA Case No.9/2018, by recording that he had joined the investigation - applicant was also released on bail temporarily on 1/4/2022 for stipulated period and on availing his liberty, he has surrendered within the time prescribed by this Court. The Applicant Vipul Chitalia registered with CBI, shall be released on bail on furnishing P.R. bond to the extent of Rs.1,00,000/- with one or two sureties of the like amount and subject to the conditions imposed - application allowed.
Issues Involved:
1. Long Incarceration and Right to Bail 2. Merits of the Case and Parity with Co-Accused 3. Seriousness of the Accusations 4. Flight Risk and Tampering with Evidence 5. Right to Speedy Trial Detailed Analysis: 1. Long Incarceration and Right to Bail: The applicant, arrested on 6/3/2018, has been in custody for over four years. The counsel for the applicant argued that the prolonged detention without a timely trial is unjust, citing the Supreme Court's decision in Satender Kumar Antil vs. CBI, which emphasizes the right to a speedy trial. The court acknowledged the applicant's long incarceration and the improbability of a timely trial given the extensive list of 92 witnesses and ongoing investigations. 2. Merits of the Case and Parity with Co-Accused: The applicant's counsel argued that the role attributed to the applicant in the charge-sheet is identical to that of co-accused Shivraman Nair, who was released on bail in 2018. The court noted that other co-accused, including high-ranking officials, have been granted bail. The court found no distinct role for the applicant that would warrant continued incarceration, thus favoring the principle of parity. 3. Seriousness of the Accusations: The CBI opposed the bail, highlighting the applicant's significant role in a fraud amounting to Rs. 7080.86 crores. The applicant, as Vice President (Banking Operations) at Gitanjali Group, is accused of conspiring with Mehul Choksi and others to defraud Punjab National Bank (PNB) by issuing fraudulent Letters of Undertaking (LOUs) and Foreign Letters of Credit (FLCs). The court acknowledged the gravity of the economic offence but emphasized that the severity of the charges alone should not preclude bail. 4. Flight Risk and Tampering with Evidence: The prosecution did not present any substantial evidence to suggest that the applicant poses a flight risk or is likely to tamper with evidence. The court reiterated the principle that "bail is the rule and jail is an exception," especially in the absence of such risks. The court noted that the applicant had previously complied with bail conditions in a related PMLA case and had surrendered on time after temporary bail. 5. Right to Speedy Trial: The court emphasized the constitutional right to a speedy trial, citing the Supreme Court's observations in Union of India vs. Najeeb and Satendar Kumar Antil vs. CBI. Given the lengthy pre-trial detention and the unlikelihood of a swift trial, the court found it just to grant bail. The court highlighted that prolonged pre-trial detention violates the presumption of innocence and the right to liberty. Conclusion: The court ordered the release of the applicant on bail, considering the long incarceration, the principle of parity with co-accused, the absence of flight risk or evidence tampering, and the constitutional right to a speedy trial. The applicant is to be released on furnishing a P.R. bond of Rs. 1,00,000/- with sureties, and must comply with conditions including reporting to the CBI, depositing his passport, and not leaving India without court permission.
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