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TMI Blog2020 (7) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... etext Kailash Bhatt took certain identity documents from the complainant; and on 09.05.2014, Kailash Bhatt and the complainant approached Punjab National Bank, Mayur Vihar Branch, Delhi for a loan along with the applicant and one Ravi Kumar. At the bank, on the directions of Kailash Bhatt and the applicant, the bank officials got the complainant to put his signatures on several documents, which documents the complainant did not understand. 3. Other details apart, the complainant alleges that later he received a letter dated 09.01.2015 from the bank to the effect that he owed Rs. 49,04,960/- to the bank against an equitable loan facility availed by him against property bearing No. L-2/19 Mohan Garden, Uttam Nagar, Delhi; and if the complainant did not repay the loan amount, the bank would take possession of the property. According to the complainant, he had never taken any loan from the bank and had nothing to do with the property. The complainant accordingly filed a complaint with PS : Economic Offences Wing, New Delhi, on the basis of which the subject FIR has come to be registered. 4. There are 05 accused persons in the matter : Kailash Bhatt (complainants neighbour), Ganesh Si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- with one surety of like amount to satisfaction of arresting officer/SHO, PS EOW. Applicant is further directed to join investigation as and when he is called upon to do so and in this regard he shall firstly join investigation on 1.8.2017 at 3.00 PM and shall contact the IO/SHO, PS EOW in this regard. He is further directed to join investigation as and when he may be called upon to do so in writing thereafter. (Emphasis supplied) 9. Subsequently, the applicant moved another anticipatory bail application, in which vid order dated 31.08.2017, the following order was made: On basis of information furnished by SI Surjeet and as was mentioned in the report of SI Bhanwar Singh, it is informed by ld PP that although applicant had joined investigation on five occasions and had submitted some documents, still he had not yet furnished any document reflecting that a sum of Rs. 46.5 Lac was due to him from co- accused Ravi Kumar nor any document to the effect that tax had been duly paid on the said amount. As per ld. PP these facts had been submitted on behalf of the applicant on 31.7.17 and had helped him secure anticipatory bail. x x x x x Keeping in view the aforesaid, applicant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been directed by Ld. Special Court to restore the custody of the accused as and when the investigation is over. Under such circumstances, IO is directed to produce the accused before Superintendent, Arthur Road Jail for further proceedings and duly intimate the said fact to Ld. Special Court, CBI. (Underscoring supplied, bold in original) 12. It is in these circumstances that the applicant came to be remanded to judicial custody in Delhi ; and was subsequently transferred to Mumbai, where he is presently lodged at the Arthur Road Jail. 13. Status report dated 20.05.2020 discloses that the applicant is involved in 06 cases in all, with the following particulars: S.No Case Reference Date of FIR Police Station Provisions of Law Status 1 FIR No. 88/2015 30.06.2015 Economic Offences Wing, Crime & Railways Under sections 420/467/468/471/ 120-B IPC (Present case) Charge-sheet supplementary charge sheet filed. 2 CR No. RC BA 1/2018/A0016 27.06.2018 Anti- Corruption Bureau, CBI, Mumbai Under sections 120-B read with 409/ 420/ 467/ 468/ 471 IPC and section 13(2) read with section 13(1) (c) & (d) of PC Act In custody in Mumbai ; charge-sheet filed. 3 FIR No. 492/2015 22.07.2015 Panda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... documentary evidence ; and that therefore no purpose will be served in keeping the applicant in judicial custody; and g. that all co-accused in the matter, except Sheetal Garg who is absconding, have been admitted to bail in the matter. Kailash Bhatt was granted bail vid order dated 17.07.2017 by the Sessions Court ; Ganesh Singh and Ravi Kumar were granted bail by a common order dated 31.07.2017 by the Sessions Court ; and it is only the applicant whose application for bail, including on the ground of the prevailing pandemic COVID-19, has been dismissed vid order dated 28.04.2020 by the Duty Magistrate, North West, Rohini Courts. 15. Learned senior counsel has relied upon the following judicial precedents in support of the applicants case : (a) Prabhakar Tiwari vs. State of U.P. , to submit that the 1 Supreme Court has observed that although the offence alleged (in that case under section 302 IPC) may be grave and serious and there may be several criminal cases pending against the accused, these facts by themselves cannot be basis for refusal of bail; (b) Ashok Sagar vs. NCT of Delhi , to argue that the gravity of 2 the offence alleged has a limited role to play while adjudicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received Rs. 46,40,000/-, from the money that was illegally taken as loan from the bank; b. that, as is evident from status report dated 27.05.2020, the applicant did not join investigation after 15.09.2017 and notices issued to him remained undelivered since he was not found available at any of his addresses. Furthermore, efforts were (1980) 1 SCC 81 ; para 38 1999 SCC OnLine Bom 315 ; para 99 made to apprehend him; and it is alleged that in an effort to apprehend the applicant, raids were conducted on 16.10.2017, 23.10.2017, 08.03.2018, 09.05.2018, 19.09.2018, 13.12.2018 and 22.04.2019 at his given addresses which were all found locked. Enquiries made from neighbours also did not reveal his whereabouts ; that in this background NBWs were obtained against the applicant ; that subsequently process under section 82 Cr.P.C. was issued; and on 30.11.2019, the applicant was declared proclaimed offender; c. that the applicant has still not furnished to the I.O. the original invoices and other documents, on the basis of which the applicant claims that money was received against alleged sale of goods to M/s Heico Electronics ; d. that the applicant diverted funds released by way of a loan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x x x (iv) Given this legal position, the nature of the offence committed necessarily has a limited role to play, while examining the merits of an application for bail. This is for a simple reason that the application being examined by the court is not for suspension of sentence, but for release during trial. If the court were to allow itself to be unduly influenced by the nature of the charges against the accused, and the seriousness of the crime alleged to have been committed by him, it would result in obliterating the distinction between grant of bail and suspension of sentence. Inasmuch as the applicant, in a bail application, has yet to be found guilty of the offence with which he is charged, the significance of the nature of the offence stand substantially reduced, while examining the application for bail. Courts have to be alive to the legal position - underscored in the very first paragraph of Dataram Singh (supra) - that every accused is presumed to be innocent until proved guilty. (Emphasis supplied) Sanjay Chandra v. CBI (supra) : 21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather recalibrating the scales of justice. x x x x x x 39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. x x x x x x 46. We are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other co-accused on 18.10.2019. The appellant is in custody from 21.08.2019 for about two months. The co- accused were already granted bail. The appellant is said to be aged 74 years and is also said to be suffering from age related health problems. Considering the above factors and the facts and circumstances of the case, we are of the view that the appellant is entitled to be granted bail. (Emphasis supplied) Moti Ram v. State of M.P. (supra) : 14. The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family. (Emphasis supplied) Babu Singh v. State of U.P. (supra) : 18. We must weigh the contrary factors to answer the test of reasonableness, subject to the need for securing the presence of the bail applicant. It makes sense to assume that a man on bail has a better chance to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived by the applicant/M/s Harshit Enterprises from M/s Heico Electronics. However, this demand of the I.O. must be taken as answered on point of fact, when the original, signed office copies of invoice/s dated 28.03.2014 were delivered by the applicants counsel to the I.O. in court, as recorded in order dated 27.09.2017 made by the Sessions Court; and copies thereof were also placed on the court record. It is reasonable to assume that the original invoices would have been delivered to the person upon whom the invoices were raised, in this case M/s Heico Electronics, and would therefore not have been available with the applicant. iv. That the I.O.s allegation that the applicant was not cooperating in the investigation also needs to be put in legal perspective. Is the I.O. saying that an accused would be taken to be not cooperating in the investigation till he furnishes all material that the I.O. thinks is necessary to nail the accused ? We must remember that under our system of criminal jurisprudence, an accused has a right of silence, apart from a fundamental right against self-incrimination under Article 20(3) of the Constitution. What would happen if an accused says that no ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the structure and framework of the criminal procedure code. As of 21.05.2020, supplementary charge-sheet has been filed naming the applicant; and thereby the case to frame charges against the applicant has been laid before the trial court. The investigating agency must therefore be taken to have concluded investigation insofar as the applicant is concerned. Viewed from this perspective, no further indulgence is deserved by the investigating agency and it cannot say that the applicant be kept in prison as an undertrial since he has not cooperated in the investigation. vii. That insofar the allegation of the applicant having absconded is concerned, on a prima facie view it appears that firstly, the three orders dated 31.07.2017, 31.08.2017 and 27.09.2017 granting anticipatory bail to the applicant were never complied with inasmuch the I.O. never arrested the applicant; and therefore the occasion of releasing him on bail based on those anticipatory orders did not arise. Since that occasion did not arise, the applicant did not furnish any personal bond or surety bond to bind him to the bail order. So the applicant cannot be said to have jumped bail or broken any conditions of a ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compelling case to allow the applicants bail plea on grounds of parity (cf. P. Chidambaram, supra); xii. That in cases such as this, in which allegations relate to forgery and fabrication of documents, transfer of monies between bank accounts through banking channels, the prosecution would turn essentially upon documentary evidence, which has already been collected and charge sheet has been filed. Again therefore, the applicants presence in custody would not be necessary or justified (cf. Sanjay Chandra and P Chidambaram, supra) ; xiii. That even assuming, as the I.O. alleges, that there are some documents which the applicant has not furnished to the I.O. (though this appears contrary to what is recorded by the Sessions Court), the applicant would be well within his rights to place such documents during his defence evidence, by confronting prosecution witnesses or through defence witnesses, at the appropriate stage; xiv. That to contend that the applicant should be kept in judicial custody till such time as the applicant gives to the I.O. all supposed documents that the I.O. demands, would result in endless custody of an undertrial, which cannot be permitted; xv. That priso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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