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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 ..... ADV 05/03/2015 OCATE FOR THE APPLICANT CAV JUDGMENT 1. This is an application filed by an accused for regular bail in connection with C.R. No.I-16 of 2014 registered with the DCB Police Station, Surat of the offence punishable under Section 120-B, 420, 465, 467, 468, 471, 477-A of the Indian Penal Code. 2. It appears from the materials on record that the applicant herein was arrested on 20th August, 2014. On completion of the Investigation the charge-sheet was filed on 15th November, 2014. The applicant prayed for bail before the learned Sessions Court at Surat. The learned 7th Additional District and Sessions Judge, Surat vide order dated 24th December, 2014, rejected the bail application. 3. Being dissatisfied, the applicant has come up with the present application. Case of the Prosecution. 4. On 11th April, 2014, one Shri Utpal D. Dave, serving as a Cluster Branch 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, Aj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Commissioner Diamond Bourse, Surat Customs Department, Surat had replied on 3.4.2014 vide letter No. OA2-VIII/CUS/ICQ (SHB)/65/2013-14 Surat in which it was stated that, comparing the BOES sent for verification with the BOES record, prima facie it appeared that there were differences in 17 BOES record, prima facie it appeared that there were differences in 17 BOES according to record of Customs Department and all these following 17-BOES were bogus and fraudulent hence it was urged by the Customs Department to take legal steps regarding them. Sl. No. Name of importer Bill of Entries Number 7 Date Payment made in foreign country (in Currency) Payment made to 1 R.A. Distributors Pvt. Ltd. 016400 Date:17.2.2011 6,25,83,546/- Mabrook Trading -FZE, Dubai 2 R.A. Distributors Pvt. Ltd. 017741 Date: 09.2.2011 6,21,79,910/- Mabrook Trading FZE Dubai 3 R.A. Distributors Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 952/- Cornell Trading (HK) Ltd. Hong Kong 17 R.A. Distributors Pvt. Ltd. 015526 Date: 22.2.2011 104,60,99,082/- Mabrook Trading FZE Dubai Total 104,60,99,082 As shown in the above table, bill of entries submitted by M/s R.A. Distributors Pvt. Ltd. were forged and fraudulent and Customs Department had urged us to undertake legal proceedings, hence we consulted higher officials of ICICI Bank limited and discussed with our legal department who informed me that as a reputed bank it was our responsibility towards the society hence legal steps may be taken against Directors of M/s R.A. Distributors Pvt. Ltd. Company, hence I had prepared a complain on 5.4.2014 on the letter head of ICICI Bank along with the copies of 17 BOES submitted in our bank by M/s R.A. Distributors Pvt. Ltd. and along with the correspondence with Customs Department, Surat and had given y complain in Athwa Lines Police Station with respect to which I was called at D.C.B. Police Station, so I have come to give my com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant herein and one Madanlal Jain, are still in custody. He submitted that the offence is triable by the Magistrate. He further submitted that one Sunil Agrawal a co-accused, who is alleged to have played a major role in opening the fake account from which the funds were transferred abroad, was released on bail by a co-ordinate Bench of this Court . He further pointed out that one another co-accused, namely Ratan Agrawal, who had opened the fake account along-with Sunil Agrawal, with bogus signatures of the Directors, has also been ordered to be released on bail by the Sessions Court. He pointed out that one another prime co-accused, namely Bilal Haroon Gilani, who played a major role in transferring the amount from Mumbai to Surat has also been ordered to be released on bail by the Sessions Court. He submitted that the case of the applicant herein is on the same footing with the case of Bilal and Sunil Agrawal. 8. Mr. Thakkar submitted that the applicant was taken on Police remand for a period of nine days and nothing incriminating was recovered from him. In such circumstances, referred to above, Mr. Thakkar prays that the application merits consideration and the appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Sunil Agrawal is very serious than the role of the present applicant. [8.1] Sunil Agrawal personally met the main accused Madalal Jain and Afroz Fatta at the office of Madanlal Jain, situated in Panchratna Apartment at Mumbai. Further at the instance of the main accused Madanlal Jain. Sunil Agrawal started serveral companies and appointed directors of the companies and collected photographs, I.D. Proof, adress proof etc. for bank accounts and thereafter opened the bank accounts and ultimately remitted huge amount to foreign countries. On the other hand the applicant just accompanied the account holders upto the ICICI bank. The Ld. A.P.P. failed to show that the applicant has fabricated any bogus or fake documents or made misrepresentation to the bank authority or took any monetary benefit. Even if it is presumed that the applicant participated the conspiracy, he is entitled for bail on the principal of parity as he has played less serious role than that of Sunil Agrawal who is released on bail by Hon'ble Gujarat High Court by the above referred order. Even considering the principle laid down by Hon'ble Supreme Court in the case of Sanjay Chandra (Supra) wherein the jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the ICICI Bank, Ring Road Branch, Surat. Thereafter huge amount was sent from Bombay to Surat through courier service. Fake bills of entries were produced before the ICICI bank, Surat. Approximately more than 428 crores have been remitted to Dubai and Hong Kong through the account in the complainant Bank. [10] From the police papers it is disclosed that the applicant and co-accused hatched conspiracy at the office of Madanlal Jain who is the main accused. At the instance of Madanlal Jain, Sunil Agrawal appointed several persons as directors of serveral companies and collected their photos, I.D. Proofs and address proofs etc, and opened accounts in ICICI Bank at Surat and thereafter producing fake bills of entry transferred crores of rupees to Dubai and Hong Kong. Even after filing the main charge sheet and two supplementary charge-sheets police investigation is still in progress and up till now it is revealed that the accused started serveral companies and firms at Surat in different names and opened bank accounts in ICICI and Axis bank and money transactions have made in different names. As per the affidavit I.O., it is stated that the accused have remitted ₹ 428,373 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise my discretion in favour of the applicant herein solely on the ground that three of the main accused persons have been released on bail. One of the co-accused has been released by a co-ordinate bench of this Court and the other two accused are released by the Sessions Court. 17. The Investigation is over and the charge-sheet has been filed. The offence is triable by the Magistrate. The entire case of the prosecution is based on documentary evidence. Many witnesses would be examined in the course of the trial and the trial would take a considerable long period of time before it is concluded. 18. I may quote some of the observations made by the Supreme Court in the Case of Sanjay Chandra Vs. CBI reported in 2012(1) GLH, 93:- 13. The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read 2 with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather recalibration of the scales of justice. The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight. 25. 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 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 the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-sheet.This Court, in the case of State of Kerala v. Raneef (2011) 1 SCC 784 : (AIR 2011 SC 340), has stated :- 15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end ..... X X X X Extracts X X X X X X X X Extracts X X X X
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