9911796707
TMI Blog2021 (5) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... t and proper in the circumstances of the case, so as to meet the ends of justice; Any other orders or direction which this Hon'ble High Court deems fit & proper in the facts and circumstances of the matter, may also be passed in the interest of justice." 3. Submission of the learned counsel for the applicant is that both father and mother of the applicant were suffering from Covid-19 disease and were in critical condition. Father of the applicant also met with an accident. No one is to look after them in the house. Applicant is the only son. Thus, referring to the documents annexed with the interim bail application prayer was made to allow the interim bail application. 4. Sri Gyan Prakash, learned Sr. Advocate appearing for the S.F.I.O. argued that earlier the applicant had also approached this Court for interim bail on other grounds but same was rejected. Since argument has been completed on the main bail application, therefore, interim bail application cannot be allowed. At this juncture learned counsel appearing for the S.F.I.O. also referred to the prayer made in the interim bail application and prayed for rejection of the application. 5. Having considered the rival subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further argued that mere filing of the complaint / police report within the period of 60 days will not be sufficient to deprive the applicant from an indefeasible right accrued in his favour. Referring to the dates and events of the filing of the complaint, taking of the cognizance and also the date of extended remand it was next contended that cognizance had not been taken within 60 days, therefore, indefeasible right had been accrued in favour of the applicant to release him on bail as applicant had applied for default bail on 18.05.2020 itself. At this juncture, learned Sr. Advocate also referred to the legal position and further argued that right of the default bail accrued in favour of the applicant will not be extinguished by filing of the complaint/challan only. Trial Court while rejecting the default bail prayer has committed illegality. Remand of the accused after filing the police report / complaint could not continue under Section 167 Cr.P.C., therefore, on this ground also remand extended by the concerned Magistrate is illegal and applicant is entitled to be released on bail as custody of the applicant is illegal in the present matter. It was further argued that rati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Yogesh Mittal Versus Enforcement Directorate MA 1487 /2017 in Criminal Appeal No.2012 of 2017 26. Shri Chamundi Mopeds Ltd. Versus Church of South India Trust Association, (1992) 3 SCC 1 27. Mohd. Iqbal Madar Sheikh Versus State of Maharashtra, (1996) 1 SCC 722 28. State of U.P. Versus Lakshi Brahman, (1983) 2 SCC 372 29. Pradeep Ram Versus State of Jharkhand & Another, (2019) 17 SCC 326 30. Union of India Versus Thamisharasi, (1995) 4 SCC 190 31. Deepak Bajaj Verus State of Maharashtra, (2008) 16 SCC 14 32. State of Bihar Versus J.A.C. Saldhana and Ors., (1980) 1 SCC 554 33. Uday Mohan Lal Acharya Versus State of Maharashtra, (2001) 5 SCC 453 34. C.B.I. Versus Anupam J. Kulkarni, (1992) 3 SCC 141 11. Learned Sr. Advocate also referred to the points disclosed in the written argument and further argued that there are two stages in Section 167 Cr.P.C. Section 167 (1) Cr.P.C. is related to the prosecution agency but Section 167 (2) Cr. P. C. is related to the Court. It is next contended that in-action on part of the Court in taking cognizance will not be a ground to deprive the accused to release him on default bail. Material question in the present matter is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant refuting the submissions raised by the learned Sr. Advocate appearing for the S.F.I.O. further argued that bar created under Section 212 (6) of the Companies Act will not come in the way in allowing the regular bail application. Both the courts i.e. High Court and Sessions Court have concurrent jurisdiction, therefore, regular bail prayer could be moved directly before this Court. Remand was extended without taking cognizance on the complaint in the present matter thus it indicates that it was beyond the scope of Section 167 (2) Cr.P.C. No remand could be extended after the expiry of sixty days under Section 167 (2) Cr.P.C. In that situation only provision for extended remand is given in Section 309 Cr.P.C. Thus, referring to the aforesaid facts it was next contended that the applicant is entitled to be released on default bail and also on regular bail. 15. Prosecution case in nutshell, as disclosed in the bail application and affidavits filed by the parties are that the applicant has been arrayed as an accused no. 42 in the complaint dated 15.05.2020 filed by the S.F.I.O.. It has been averred in the said complaint that applicant was one of the promoter-Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opting aforesaid modus operandi obtained bad debts write off. They also made manipulation in share capital. They have not shown true and fair picture of the business done by them and also furnished wrong reflection of sales and purchase figure. They have also wrongly classified the interest income. 16. It has also been averred that applicant under the garb of MT conducted moping of interest arbitrage thereby, fraudulently inducing the public sector Banks to obtain credit facilities. Applicant had knowingly falsified the books of accounts and the financial statements deliberately concealing material facts. It is also averred that applicant was also indulged in speculative currency trading unrelated to MT being undertaken by RGC thereby gambling with Banks money which resulted in huge loss. Applicant was instrumental in holding the currency losses in the books of accounts under the garb of debit notes. These debit notes were raised against foreign parties and made part of trade receivable. Later on these debit notes were adjusted against the payment received from the LC rotated funds. 17. Allegation against the applicant is also that he abused his position as promoter-director and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the issues dimensionally, the matter was posted on 20.11.2018. The following order was passed on 20.11.2018: "The three dimensional question which this bail application involves is (a) personal liberty of the accused persons; (b) threat to the investigating agency at the hands of the accused persons to tamper with the evidence; and (c) retrieving the alleged loss caused to the Bank. In a written constitution like the one we have in India, personal liberty is a fundamental right guaranteed under Article 21 which has a primacy. This fundamental right can only be curtailed by following the procedure established under law. The procedure unless it serves the purpose of law cannot be allowed to defeat the basic right. Sri S.V. Raju, learned Senior Counsel, reiterating his stand, would argue that the outstanding liability as against the accused applicants is full of doubts in the attending facts and circumstances of the case but the argument would require some more clarifications which he shall address while making submissions in rejoinder. This Court is in the midst of the arguments being advanced by Sri Amarjeet Singh Rakhra on behalf of CBI. Sri Rakhra has explained the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny apprehension of tampering with the evidences by an accused person. All these aspects would be considered by the Court. List this matter on 27th of November, 2018 in terms of the order already passed." Learned counsel for the parties were heard at length on 27.11.2018 and 28.11.2018 and the following order was passed on 28.11.2018: Sri S.V. Raju learned Senior Counsel assisted by Sri Pranjal Krishna learned counsel for the accused applicant has concluded his arguments in the bail application. Sri Amarjeet Singh Rakhra learned counsel for the C.B.I. has also concluded his arguments barring for the fact that some decisions are to be cited by him in support of the arguments advanced. Sri Chandra Shekhar Sinha learned counsel for the Bank craves for an opportunity to make some supplementary submissions with respect to the letter of credit i.e. Document D-7 attached to the charge-sheet. List/put up on 30.11.2018 at 2.15 p.m. for concluding arguments. Hearing was concluded today. Having regard to the arguments made by Sri S.V. Raju, learned Senior Counsel assisted by Sri Pranjan Krishna, who concluded his submissions on 28.11.2018, Sri Amar Jeet Singh Rakhra for the CBI a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Assistant Manager (Operation & Forex), Sri Radhey Shyam, Senior Manager/ Joint Manager, Smt. Ankita Srivastava, the then Scale-I Officer. Sri Sunando Bandopadhyay, Assistant Manager (Scale-I), Sri Dipesh Narain, Officer, Sri Anil Kumar Rakhit, Senior Manager/ Forex Incharge, Ms. Parul Nigam, Assistant Manager, Operation, Sri Keerthy Anjaneyulu, Chief Manager / Branch Head, Sri Sanjiv Jha, Sr. Manager (Forex) all staff posted at BOB, IBB, Kanpur and Shri Mangalore Devadas Mallya (M.D. Mallya) the then Chairman & Managing Director, Sri Rajiv Kumar Bakshi, the then Executive Director, Sri Atul Agarwal the then Direkctor (Part Time Non Official Director) posted at BOB, Head Office, Mumbai and unknown private persons / unknown public servants. After completion of investigation under Section 173(8) against the above mentioned accused persons, supplementary charge sheet will be filed in this Hon'ble Court in due course." The Court has heard the case of both the applicants in the light of material gathered in the charge sheet filed on 19.5.2018. The charge sheet, prima facie, makes a distinction of complicity between the two accused applicants in the backdrop of their role which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia hence a case for grant of bail is made out in favour of Rahul Kothari. Insofar as the co-accused Vikram Kothari, Managing Director of the Company is concerned, it has strongly been argued that even if it is assumed that there is a, prima facie, case against him yet after filing of the charge sheet, there is no justification for the CBI to harp on his continued detention which impinges upon the personal liberty of the accused applicant who is to face trial. In nutshell, it is argued that the same very ground on which the co-accused is entitled to be granted bail, in equal measure, is applicable to the case of Vikram Kothari, therefore, he may also be set free. This Court would note that the advances made to M/s Rotomac Global Pvt. Ltd. have not been secured by primary or collateral security as per the mandate of Section 21 of Banking Regulation Act, 1949. The consortium of nationalised banks, prima facie, appears to have failed to secure the advances by adhering to the condition of primary security/margins and even not to the extent of collateral Securities despite the fact that there exists a pervasive control of the Ministry of Finance and Reserve Bank of India. The Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigation (2016) 5 Supreme Court cases 414 5 Virupakshappa Gouda and another versus State of Karnataka and another (2017) 3 Supreme Court cases 406 6 State of Bihar and another versus Amit Kumar alias Bachcha Rai (2017) 13 Supreme Court cases 751 Reference to each decision cited by the applicants and dealing with the principles embodied therein, in my humble view, is uncalled for once the fact situation of the present case is dealt with by recording reasons in the discretionary exercise of powers. Insofar as the decisions cited by learned counsel for CBI are concerned, emphasis has been laid on the nature of offences being economic. It is urged that the apex court in the matters of this category of offences has not disapproved the apprehensions of investigating agency and curtailing the right of personal liberty has been dealt with firmly and without attaching more importance to the right of personal liberty which each offender may claim. This submission advanced by learned counsel for CBI is not convincing for the reason that no material has been supplemented against the accused applicants after filing of the charge sheet on 19.5.2018 and the accused applicants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 174-A of the Indian Penal Code. (vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. The trial court is also expected to expedite the trial once the charge sheet has been filed." 22. It is admitted fact in the present matter that the applicant has not moved regular bail application before the court below. Only default bail application was moved and same was rejected by the court below. Thereafter present bail application has been moved before this Court taking recourse to the provisions of Section 439 and 167 Cr.P.C. It is true that provision of Section 212 Cr.P.C. has not been mentioned in the bail application but on this technical ground alone prayer made by the applicant to consider the bail application on regular side cannot be rejected. Thus, preliminary objection r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on 17.05.2020, therefore, default bail was not liable to be allowed. It is immaterial whether cognizance had been taken or not on the complaint/police report on the date of filing of the default bail application. Judicial custody could continue under Section 167 (2) Cr.PC. in the present matter till the court takes cognizance on the complaint as has been discussed herein above. Custody of the applicant on this score will not be deemed to be illegal and applicant was not deprived of his constitutional right as enshrined under Article 21 of the Constitution of India. There was valid ground to extend the judicial custody of the accused-applicant under Section 167 (2) Cr.P.C. for extended period. Prayer of the applicant for default bail is not liable to be allowed and is hereby rejected. 27. As far as regular bail is concerned only ground taken by the learned counsel for the applicant is that he has been allowed on bail on the basis of same set of facts in the FIR lodged by the C.B.I. and he has cooperated with the investigation agency. There is no chance for tampering the evidence or fleeing away. There is no chance for conclusion of the trial in near future. If the submissions r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
