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2021 (11) TMI 777 - HC - Indian LawsApplication for grant of permission to visit United States of America (USA) and to release the passport of the petitioner - Alleged non-cooperation of the petitioner in the investigation - placing of two purchase orders after the Board of Directors had been suspended - Offences u/s 420, 406, 120-B, 34 of the Indian Penal Code, 1860 - HELD THAT - A perusal of the order reproduced would show that reliance has also been placed upon the order dated 04.01.2021 vide which the prosecution had withdrawn their application for cancellation of bail by stating that the petitioner and other co-accused had joined the investigation. Moreover, it is an admitted case of both the parties that in the present case, the investigation has been completed and the challan has been filed. Further, on the question of merits, the allegations in the present case are not such so as to disentitle the petitioner to travel abroad. Thus, the first three issues are decided in favour of the petitioner and it is held that the said three issues would not come in the way of the petitioner being granted the permission to travel abroad. Change of period with respect to which permission is sought for going abroad inasmuch as before the Chief Judicial Magistrate, period was stated to be from 18.12.2020 to 10.01.2021 and before the Sessions Court, it was stated to be from 09.01.2021 to 30.01.2021 and in the present petition, it is stated to be 30 days from the date of receiving the passport - HELD THAT - In para 2 of the judgment passed in Parvez Noordin Lokhandwalla s case 2020 (10) TMI 1258 - SUPREME COURT , the Hon ble Supreme Court has categorically observed that though the time period for which the appellant therein had sought permission to travel abroad had lapsed, the cause survived and thus, in the said case, the appellant therein was permitted to travel abroad. In the present case, the visit was not for a specific function/event, upon the finishing of which, the cause would cease to survive. For instance, in case a person has to travel abroad to attend the marriage of a near and dear one and the marriage has already been performed or to participate in a particular event and the said event has already taken place, then the cause, depending upon the facts and circumstances of the case, would have invariably lapsed - Issue decided in favour of the petitioner. Whether the Petitioner has a right to go abroad based on the pleas raised in the present petition? - HELD THAT - In the present case, although, the pleas raised by the petitioner before the Courts below, have been considered to be sufficient by this Court so as to entitle the petitioner to travel abroad, but it is always open to this Court while exercising its powers under Section 482 of Cr.P.C. to consider any additional/ancillary plea, and thus, in this case, the same may be considered so as to grant permission to the petitioner to travel abroad. The additional plea raised with respect to the petitioner being a permanent resident of USA since 02.04.2011 which is to expire on 06.04.2023, as is apparent from Annexure P-6, as also on the basis of the relevant Chapter of the US Citizenship and Immigration Services - issue decided in favour of the petitioner. In case, permission is to be granted, then the conditions, which are required to be imposed on the petitioner so that the petitioner would not flee from the course of justice - HELD THAT - This Court is aware of the fact that it is a debatable issue as to whether the petitioner would be personally liable to pay the said amount or not or if it is the company in question which has to pay the said amount. There are 41 cases under Section 138 of the Act of 1881 stated to be pending against the petitioner and the company M/s Indsur Global Limited and the amount involved in the same is stated to be ₹ 25 crores by the learned Senior Counsel for the complainant. Although, learned Senior Counsel for the complainant has not been able to produce the complaints filed under Section 138 of the Act of 1881, which would have enabled this Court to come to a prima facie conclusion as to what is the total amount due and to what extent is the liability of the petitioner, however, on the other hand, even the learned Senior Counsel for the petitioner has not produced anything to affirmatively controvert the fact that the petitioner is an accused in the said 41 cases. The company in which the petitioner was on the Board of Directors, can be seen to be accused No.1 in the said complaints under Section 138 of the Act of 1881. This Court is required to draw a balance between the right of the petitioner to travel abroad and also right of the prosecution to duly prosecute the petitioner so as to prevent him from evading the trial. From perusal of the various judgments passed by the Hon ble Supreme Court of India as well as this Court, it is clear that paramount consideration is given to the conditions imposed upon the persons who have been granted the permission to go abroad, so as to ensure that they do not flee from justice - In the present case, keeping in view the facts and circumstances, moreso the fact that the petitioner does not own any property in his own name in India and the wife and son of the petitioner also reside abroad and also keeping in view the offer made by learned Senior Counsel for the petitioner so as to prove his bonafide, the petitioner is allowed to go abroad for a period of one month subject to the conditions imposed. Petition disposed off.
Issues Involved:
1. Pendency of CRM-M-33202-2020 filed by the complainant against the order of the Sessions Judge granting anticipatory bail to the petitioner. 2. Alleged non-cooperation of the petitioner in the investigation. 3. Merits of the allegations made against the petitioner, especially regarding placing of two purchase orders after the Board of Directors had been suspended by the NCLT. 4. Change of period for which permission is sought to go abroad. 5. The petitioner's right to go abroad based on the pleas raised in the present petition. 6. Conditions required to be imposed on the petitioner to ensure he does not flee from the course of justice. Detailed Analysis: Issue 1: Pendency of CRM-M-33202-2020 The petition CRM-M-33202-2020, filed by the complainant against the anticipatory bail granted to the petitioner, was dismissed by the High Court on 01.09.2021. The court considered the allegations of non-cooperation in the investigation and the merits of the case, including the two purchase orders placed after the Board of Directors' suspension by the NCLT. The court noted that the purchase orders were canceled upon realizing the impact of the NCLT order, and no goods were supplied based on those orders. The court found no strong circumstances to interfere with the anticipatory bail order. Issue 2: Alleged Non-Cooperation in Investigation The court observed that the prosecution had withdrawn their application for cancellation of bail on 04.01.2021, stating that the petitioner and co-accused had joined the investigation. Additionally, the investigation was completed, and the challan was filed. Thus, non-cooperation in the investigation was not a valid ground to deny the petitioner's request to travel abroad. Issue 3: Merits of Allegations The court found that the allegations against the petitioner, including the placement of purchase orders after the NCLT order, were not sufficient to deny the petitioner's request to travel abroad. The case was primarily based on documentary evidence, and the court did not find any overwhelming circumstances to interfere with the anticipatory bail order. Issue 4: Change of Period for Permission to Travel The court referred to the Supreme Court judgment in Parvez Noordin Lokhandwalla's case, which stated that even if the period for which permission to travel abroad had lapsed, the cause could survive. The primary cause for the petitioner was to meet his wife and son in the USA, which remained relevant. Therefore, the change in the period for which permission was sought did not affect the petitioner's right to travel. Issue 5: Right to Travel Abroad The court acknowledged the petitioner's right to travel abroad to meet his family, considering it a fundamental right under Articles 19 and 21 of the Constitution of India. The court also considered the petitioner's permanent residency in the USA, which required periodic visits to maintain its validity. The court found that the petitioner's right to travel could not be curtailed merely due to the pendency of a criminal case, provided suitable conditions were imposed to ensure his return. Issue 6: Conditions for Granting Permission The court imposed several conditions to ensure the petitioner would not flee from justice: 1. Furnish two sureties of ?40 lakhs each to the satisfaction of the trial court/duty magistrate. 2. Indicate the 30-day period for travel within two months from the date of the order. 3. Provide an undertaking to return and appear before the court on the specified date. 4. Release the passport upon acceptance of sureties and undertaking. 5. Exempt personal appearance during the travel period, allowing representation through counsel. 6. Not tamper with prosecution evidence. 7. Restrict travel to the USA only. 8. Submit the passport to the court within five days of return. 9. Continue to abide by previous bail conditions upon return. The court balanced the petitioner's right to travel with the need to ensure he would return for trial, thus allowing the petitioner to travel abroad for one month under the specified conditions. The petition was disposed of accordingly.
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