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TMI Blog2015 (3) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... h Manager in the ICICI Bank lodged the First Information Report, inter alia state as under:- "My name is Utpal Devendrabhai Dave Aged about: 40 years, Occupation: Service, residing at: B-104, Sarjan Complex, Near TGB Restaurant Circle, L.P.Savani Road, Adajan, Surat native of 3- Jashodaya, Ajaypark, Vidyanagar Road, B/h Big Bazar, Anand, Mobile No.99250-24651. Hereby dictate in person the facts of my complain that, I am living at Surat at the above address and am serving in ICICI Bank since 2006. At present I am serving as Cluster Branch Manager in ICICI Bank since 2009 at Shyam Chambers, Opp. Sub Jail, Surat. Our Corporate Office is at Bandra Kurla Complex, Bandra East, Mumbai. I have to supervise Ringroad Branch, Textile Market Branch, Ghoddod Road Branch, Udhna Branch and Sachin GIDC Branch etc. as Cluster Branch Manger as decided by our Regional Office, the customer service, Customer Operations and other business development related work. M/s R.A. Distributors Pvt. Ltd. having its registered office at 6/1943, Office No.303, Cabin No.1, Third Floor, Navkar Building, Opp. Kabir Mandir, Mahidharpura, Surat Whose Directors are [1] Shailesh Rameshbhai Patel Resident of: Room No.3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 71 6,23,07,667/- Nippon Incorporation Ltd. Hong Kong 4 R.A. Distributors Pvt. Ltd. 17292 Date: 03.2.2011 6,24,45,465/- Cornell Trading (HM) Ltd. Hong Kong 5 R.A. Distributors Pvt. Ltd. 17855 Date: 10.2.2011 6,27,34,269/- Al Almas FZE Ltd. Hong Kong 6 R.A. Distributors Pvt. Ltd. 17434 Date: 04.02.2011 6,28,20,869/- Al Almas FZE Ltd. Hong Kong 7 R.A. Distributors Pvt. Ltd. 018699 Date: 23.2.2011 6,21,25,754/- Al Almas FZE Ltd. Hong Kong 8 R.A. Distributors Pvt. Ltd. 25666 Date: 1.2.2011 6,23,5,349/- Al Saba General Trading FZE Dubai 9 R.A. Distributors Pvt. Ltd. 15662 Date: 1.2.2011 6,21,17,760/- Al Saba General Trading FZE Dubai 10 R.A. Distributors Pvt. Ltd. 13037 Date 23.2.2011 6,05,52,278/- Mabrook Trading FZE Dubai 11 R.A. Distributors Pvt. Ltd. 016907 Date: 23.2.2011 6,20,00255/- Mabrook Trading FZE Dubai 12 R.A. Distributors Pvt. Ltd. 00222 Date: 5.4.2011 6,18,32,807/- Al Saba General Trading FZE Dubai 13 R.A. Distributors Pvt. Ltd. 016075 Date 16.2.2011 6,15,93,582 Daimura Gems Jewellery (LLC) Ltd. Hong Kong 14 R.A. Distributors Pvt. Ltd. 015246 Date: 17.2.2011 6,18,68,059/- Daimura Gems Jewellary (LLC) Hong Kong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the conspiracy floated bogus companies by appointing several persons as the Directors. After opening the accounts between 13th December, 2013 and 24th February, 2014, seventeen bogus and forged bank Bills of entry were produced in the bank and thereby remitted a huge amount to the tune of Rs. 1,04, 60, 99,082/- to Dubai and Hongkong. 6. It is the case of the prosecution that the conspiracy was hatched in the office premises of one Madanlal Jain a co-accused. The Bills of Entry produced for the remittance of the amount were forged, and signatures on the Bills of entry were also forged. The applicant herein is alleged to have visited the office of Madanlal Jain(co-accused). Huge amount was sent from Mumbai to Surat through Couriers, more particularly, through the employees of the applicant herein. The applicant is alleged to have received huge amount, and the same was credited in his account as well as in the account of his brother. 7. Mr. P.M. Thakkar, the learned senior advocate appearing on behalf of the applicant-accused vehemently submitted that the investigation is over and the chargesheet has been filed. He submitted that practically all the co-accused, except the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on hand is one of criminal conspiracy. Prima facie it appears that as a part of the conspiracy, which was hatched, a huge amount was transferred to Dubai and Hongkong on the strength of fake Bills of Entry. Each of the accused has played his own role in the alleged conspiracy. It appears that one of the main accused persons Sunil Dipak Kumar Agrawal has been ordered to be released on regular bail by a co-ordinate Bench of this Court, vide order dated 19th November, 2014 passed in Criminal Misc. Application No.15636 of 2014. I inquired with Mr. Rawal, the learned APP whether the State intends to challenge the order passed by the coordinate Bench before the higher forum. In reply, it was submitted that the State has accepted the order passed by the co-ordinate bench. 12. It also appears that one another co-accused namely Ratan Dipakkumar Agrawal has been ordered to be released on bail by the Sessions Court, vide order dated 1st January, 2015. While ordering the release of Ratan Dipakkumar Agrawal, the Sessions Court observed as under:- "[8] Comparing the role of the applicant with the role of the co-accused Sunil Agrawal, it prima facie appears that the role of Sunil Agrawal is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who played active role in the alleged offence is released by Hon'ble Gujarat High Court by the order dated 19.11.2014 in Criminal Misc. Application (For regular bail) No.15636/14. Therefore, on the ground of parity as held by Hon'ble Gujarat High Court in the case of Rameshbhai Batubhai (Supra) the applicant is entitled for bail. Even considering the principle laid down and observations made by Hon'ble Supreme Court in the case of Sanjay Chandra (Supra) the applicant is entitled for bail." 14. Surprisingly, although the co-accused have been released on bail including Sunil Agrawal, yet the learned Sessions Judge refused to exercise his discretion in favour of the applicant herein by observing that the case of the applicant herein was distinguishable with the case of the present applicant. The learned Sessions Judge made the following observations:- "[9] Perusing the material on record, it is prima facie reveled that the applicant and co-accused hatched conspiracy at the office of Mandanlal Jain at Bombay who is the main accused. The co-accused Sunil Agrawal collected documents from so-called directors of five companies and opened accounts with the ICICI Bank, Ring R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a facie involved in the alleged offence. He has received huge amount in his account. The defense taken by the applicant regarding amount credited in his account is a matter of evidence. [12] So far as the submission of parity is concerned, the same is not applicable to the applicant as role of the applicant is different from the accused Sunil Agrawal who is released on bail. There is nothing on record to show that the co-accused Sunil Agrawal has received any monetary benefit. As against this the present applicant has received approximately Rs. 428 Crore from the above referred transactions. 15. I am unable to understand the line of reasoning adopted by the learned Judge more particularly in the wake of the finding that there was nothing on record to show that the co-accused Sunil Agrawal had received any monetory benefit. No person would indulge in such type of activities without any monetory benefit. On what basis such finding is recorded is not known. As observed earlier, each accused has played his own role and all are part and parcel of the conspiracy. 16. I do not intend to go into the merit of the matter. I am persuaded to exercise my discretion in favour of the applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. 15. In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State Exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Rajasthan v. Balchand, (1977) 4 SCC 308 : (AIR 1977 SC 2447), this Court opined: "2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavourable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing. 26. When the under-trial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is : whether the same is possible in the present case. There are seventeen accused persons. Statement of the witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State Exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berty; [b] not act in a manner injuries to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned; [e] mark presence before the concerned Police Station on every Monday between 10.00 a.m. and 2.00 p.m: [f] furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Court; 20. The Authorities will release the appliciant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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