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TMI Blog2021 (11) TMI 777X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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. - CRM-M-3304-2021 (O&M) - - - Dated:- 9-11-2021 - HON'BLE MR. JUSTICE VIKAS BAHL Present: Mr. Satvik Verma, Sr. Advocate with Mr. Harsh Gokhale, Advocate and Mr. Raghav Kakkar, Advocate for the petitioner. Mr. Praveen Bhadu, AAG, Haryana. Mr. B.S. Rana, Sr. Advocate with Mr. Nayan Deep Rana, Advocate for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioner were permanently residing in India and even the company owned by the petitioner and the other assets were also in India. It was stated that the petitioner undertook not to violate the conditions of bail and further, to return the passport to the Investigator on his arrival back to India. With the said averments, the application was filed before the Chief Judicial Magistrate, Rewari. Additional Public Prosecutor had opposed the said application on the ground that the petitioner was not cooperating in the investigation and also that the present case was a case under Sections 420, 406, 120-B, 34 of the IPC,and the order of the National Company Law Tribunal (for short NCLT ) was passed against the petitioner and also that he was not the authorized signatory of the company and the signatures were withdrawn on 24.09.2021 but the petitioner had placed two purchase orders on 17.10.2019 and had also signed two PDC cheques in order to cheat the complainant who had supplied the waste and scrap material. Application was also opposed on the ground that the petition bearing case No.CRM-M-33202-2020 titled as Joginder Singh Vs. State of Haryana and others, had been filed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation of the case. 2) The petition under Section 482 of Cr.P.C., challenging the grant of anticipatory bail to the petitioner, was pending before this Court. 3) If permitted, there was a possibility of the petitioner fleeing from the course of justice and not returning to India after release of his passport. The abovesaid two orders are the subject matter of challenge in the present petition. Learned Senior Counsel for the petitioner has vehemently argued that the reasons given by the Courts below for rejection of the application of the petitioner are either non-existent as on the present date, or are irrelevant, or are against the settled principle of law. It has been submitted that the primary reason of rejection given by both the Courts below was the pendency of CRM-M-33202-2020 which had been filed by the complainant-Joginder Singh against the order of grant of anticipatory bail to the petitioner and the said fact is no more relevant inasmuch as this Court vide judgment dated 01.09.2021 has dismissed the said petition filed by Joginder Singh. Reference has been made to the said order which has been annexed as Annexure P-17. It has been pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... survives. In the present case, it is submitted that since the primary cause was re-union with the family, thus, cause survives even in case, the period mentioned before the Chief Judicial Magistrate i.e. 18.12.2020 to 10.01.2021 as also revised period mentioned before the Sessions Court i.e. 09.01.2021 to 30.01.2021, has elapsed. Learned Senior Counsel for the petitioner has submitted that in fact, in addition to the abovesaid reasons, there is an additional reason for which it is necessary for the petitioner to go abroad. For the said purpose, reference has been made to the order dated 16.06.2021 passed by the Coordinate Bench of this Court. In the said order, it had been contended that for maintaining the validity of the green card, which has been issued in favour of the petitioner, the petitioner is required to visit America and failing the same, serious prejudice would be caused to the rights of the petitioner. Learned Senior Counsel for the petitioner has drawn the attention of this Court to Annexure P-6 which is the permanent resident card of the petitioner, specifically stating that the said card would expire on 06.04.2023 and also prima facie proving the petitioner to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absent from the United States for a continuous period in excess of 180 days, (iii) has engaged in illegal activity after having departed the United States, (iv) has departed from the United States whileunder legal process seeking removal of the alien from the United States, including removal proceedings under this chapter and extradition proceedings, (v) has committed an offense identified insection 1182(a)(2) of this title, unless since such offense the alien has been granted relief under section 1182(h) or 1229b(a) of this title, or is attempting to enter at a time or place other than as designated by immigration officers or has not been admitted to the United States after inspection and authorization by an immigration officer. On the basis of the abovementioned condition, it has been submitted that serious prejudice would be caused to the rights of the petitioner with respect to his permanent residency in the USA, if he is not granted the said permission. Learned Senior Counsel for the petitioner has further submitted that in fact, the wife of the petitioner had to undergo an operation for removal of her appendix and for the said aspect, the petitioner has ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 28.07.2021 in which, in the case titled TCI Freight Vs. Indsur Global i.e. complaint No.3 of 2018, non-bailable warrants have been issued to accused Nos.2 to 4 for 04.01.2022. It is the contention of learned Senior Counsel for the complainant that the said accused Nos.2 to 4 includes the present petitioner, although, the complaint in the said case under Section 138 of the Act of 1881 is not available. Reliance has been placed upon judgment of the Hon ble Supreme Court in Srichand P. Hinduja Vs. State through CBI, New Delhi reported as 2002 (3) RCR (Criminal)186 to contend that in the abovesaid case, even where the permission to go abroad was granted, the petitioners were directed to execute a bond for a sum of ₹ 15 crores each with a bank guarantee for the like amount to the satisfaction of the Special Judge, in addition to the other conditions. It is submitted that in the said case, the entire dispute was with respect to an amount of ₹ 1437 crores but the kickback amount was of ₹ 64 crores. It is submitted that in the present case, the petitioner whose wife and son are residing abroad, and does not have any property in India and is also facing several c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than Annexure C2 regarding which a specific answer has already been given. No objections have been taken with respect to the pendency of the said cases before the Courts below, as the allegations with respect to the alleged dishonor of two cheques which were raised before the Courts below were with respect to the dispute with the complainant and the said cheques were also dishonoured as the same were sought to be encashed at the time when the order of admission of insolvency had already been passed and thus, the cheques could not have been credited. Further, with respect to the outstanding amount of ₹ 1,85,50,286/-, it has been argued that the same has been considered by this Court in its order dated 01.09.2021 passed in CRM-M-33202-2020 and that the complainant representing his company M/s Yashu Iron Private Limited had lodged his complaint before the Interim Resolution Professional (hereinafter to be referred as IRP ) and the same figures at Sr. No.4 in Column No.B under the heading Operational Creditors and the amount claimed by the company of the complainant therein is ₹ 1,85,50,286/-. Further reference has also been made with respect to independent forensic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to impose any further conditions. Reference has also been made to judgment dated 20.04.2018 passed by the Coordinate Bench of this Court in CRM-M-15550-2018 titled Surender Singla Vs. State of Haryana in which permission to travel abroad was granted subject to deposit of ₹ 2,00,000/- with the trial Court in addition to the undertaking specifying conditions of forfeiture. This Court has heard the learned counsel for the parties and has perused the record. On the basis of the observations made in the impugned orders, the objections raised by the learned Senior Counsel for the complainant and learned counsel for the State and also the arguments raised by the learned Senior Counsel for the petitioner, the following issues/factors arise for consideration in the present case: - 1) Pendency of CRM-M-33202-2020 filed by the complainant Joginder Singh 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, moreso with respect to the placing of two purchase orders after the Board of Directors had been suspended v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused-company which is now under the control of the IRP. It was also observed that the custodial interrogation is not required because the entire case is based upon documentary evidence. Conditions with respect to furnishing of bonds to the satisfaction of the Investigating Officer and not to leave the country without prior permission of the Court and other conditions have also been imposed. The Sessions Judge, Rewari has referred to the facts of the case as well as, arguments raised by both sides and has granted anticipatory bail by a reasoned order. This Court finds that there is no circumstance much less, strong or overwhelming circumstance to set aside the impugned Order. It is further observed that with respect to every argument raised/allegation made by the Learned Senior Counsel for the Petitioner, there is a plausible argument/defence put forth by the Learned Senior Counsel for the Respondent No. 3 to 5. With respect to the argument on behalf of the Petitioner that the two purchase orders were given on17.10.2019, i.e. after the passing of the Order dated 24.09.2019, it has been argued on behalf of the Respondent no 3 to 5 that admittedly, no goods were receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Respondent Nos. 3 to 5 are and will always be ready to join the investigation and to cooperate with the Investigating Officer. Further, a period of 8 months has elapsed since the passing of the impugned order and there are no allegations against the answering respondents that they are either trying to influence the witnesses or have misused the concession of anticipatory bail granted to them. A perusal of the order reproduced hereinabove 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. ISSUE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to go abroad based on the pleas raised in the present petition. In the present case, the petitioner had initially made a prayer to go abroad primarily on the ground of conjugal union since he is an overseas Indian Citizen and his wife as well as his son are residing in Utah, a state in USA, at the address 584E, Southfork Drive, Draper, UT84020 and also on account of the wife of the petitioner having undergone an operation for removal of her appendix for which reliance has been placed upon the medical record (Annexure P-5) and subsequently, an additional factor, with respect to petitioner being a permanent resident of United States of America and the said residency having an expiration date of 06.04.2023 and in order to keep his rights of said residency alive, him being required to visit USA, has for the first time been raised in the present petition filed under Section 482 Cr.P.C.. For substantiating the prejudice that might be caused to the petitioner, reference has been made to Chapter-3 of the US Citizenship and Immigration Services (Annexure P-14) as well as the judgment of Hon ble the Supreme Court in Parvez Noordin Lokhandwalla s case (Supra), relevant portion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Punjab's case (supra), which is applicable to the facts of the present case, in which also the permission has been sought by the petitioner to travel abroad for a short duration for attending the marriage ceremony of his childhood friends and the supporting documents have also been placed on record, I grant permission to petitioner Utkarsh Pahwa to travel abroad for attending the marriage ceremony of his childhood friends Jay at Bangkok during the period from 25.1.2019 to 28.1.2019 and marriage ceremony of Medha Alhuwalia at Turkey from 08.2.2019 to 09.2.2019 subject to following conditions:- (i) that the petitioner shall not seek extension of the period of his stay abroad at any ground whatsoever except in case of medical emergency and shall return to India from 1st trip by 29.1.2019 and by 10.2.2019 from the second trip. (ii) that the petitioner shall not visit any other country except Thailand and Turkey. (iii) that the petitioner shall not in any manner tamper with the evidence of the prosecution; (iv) that the petitioner shall submit copy of his passport before visit and on return, within one week shall produce his passport in the court for placing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner 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, as also the judgment of Hon ble the Supreme Court in Parvez Noordin Lokhandwalla s case (Supra), goes to show that non-grant of the said permission to the petitioner to go abroad could cause prejudice to the right of the petitioner with respect to his permanent residency. Thus, the said issue is also decided in favour of the petitioner. ISSUE NO.6: 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. Learned Senior Counsel for the complainant as well as learned counsel for the State have very vehemently stated that in the present case, the primary ground for opposing the application for permission to go abroad is that it is certain that the petitioner would not come back to India, in case permission is granted to the petitioner to go abroad. On the said aspect, it has been highlighted that the wife and son of the petitioner are citize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ss Cases SS/2301954/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 28.09.2021 6 CMM, Esplanade Court Mumbai Ss Cases SS/2301221/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 24.02.2022 7 CMM, Esplanade Court Mumbai Ss Cases SS/2300890/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 04/01/22 8 CMM, Esplanade Court Mumbai Ss Cases SS/2301924/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 16.12.2021 9 CMM, Esplanade Court Mumbai Ss Cases SS/2300870/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 21.01.2022 10 CMM, Esplanade Court Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 07/03/22 21 CMM, Esplanade Court Mumbai Ss Cases SS/1797/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 10/01/22 22 CMM, Esplanade Court Mumbai Ss Cases SS/2121/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 01/01/22 23 CMM, Esplanade Court Mumbai Ss Cases SS/1470/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 29.11.2021 24 CMM, Esplanade Court Mumbai Ss Cases SS/961/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 07/04/22 25 CMM, Esplanade Court Mumbai Ss Cases SS/2057/2018 U/s 138 RW 141 NI Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC/96439/2018 U/s 138 RW 142 NI Act Crystal Foundary Falaksis Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 21.10.2021 37 CMM, Esplanade Court Mumbai Ss Cases SS/2239/2017 U/s 138 RW 141 NI Act Schenker India Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 07/12/21 38 MM Court, Ahmedabad CC/96427/2018 U/s 138 RW 142 NI Act Crystal Foundary Falaksis Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 21.10.2021 39 CJM, Rewari NI Act/2733/2019 U/s 138 RW 142 NI Act M/s Yashu Iron Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 28.10.2021 40 CJM, Rewari NI Act/2701/2019 U/s 138 RW 142 NI Act M/s Yashu Iron Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 28.10.2021 41 CJM, Rewari NI Act/140/2020 U/s 138 RW 142 NI Act M/s Yashu Iron Pvt. Ltd. Vs. Indsur Global Ltd. Anr. 28.10.2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel for the petitioner has relied upon judgment of the Coordinate Bench of this Court in Paramjit Kaur s case (Supra), wherein the petitioner was permitted to go abroad on the execution of only one personal bond in a sum of ₹ 5,00,000/- with an undertaking that she would report back on or before 15.02.2019. Further, reference has also been made to Surender Singla s case (Supra) to state that in the said case, permission was granted subject to deposit of only ₹ 2,00,000/- with the trial Court. This Court has considered the arguments of the counsel for the parties on the present issue, which is of utmost importance. The amount due to the complainant is stated to be ₹ 1,85,50,286/-. 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. Althou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner on Paramjit Kaur s case (Supra) to contend that only a personal bond amounting to ₹ 5,00,000/- was sought from the Petitioner in the said case, does not further the case of the petitioner inasmuch as in the said case, there was no argument raised that the petitioner therein had several cases against her nor any outstanding amount had been stated with respect to which fraud or cheating at the hands of the petitioner therein could be alleged, nor it had been stated that the petitioner therein did not have any immovable property in India. In fact, in the said case, the petitioner therein had earlier gone to Canada and had returned to India in accordance with the permission granted and the conditions imposed and even the proceedings in the trial Court as well as in the civil litigation had been stayed. In fact, in the case of Brij Bhushan Singal, which was considered in the said case, the security sought from the accused therein was for a sum of ₹ 25 lacs. Even in Surender Singla s case (Supra), relied upon by the learned Senior Counsel for the petitioner, neither there were any details of the amount with respect to which the Petitioner had allegedly committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he event of his failure to return from abroad, he would have no objection if the land measuring 64 Kanals 9 Marlas as mentioned in the Jambandi for the year 2004-05 (Annexure P5) is attached and disposed of in accordance with law. On return from abroad, the conditions as imposed upon the appellant-applicant for going abroad will become inoperative and the appellant-applicant shall continue to be bound by the old bonds and sureties that have been furnished by him while being released on bail on 30.11.2010. In another case, titled Dr. Mangal Singh Sandhu Vs. State of Punjab, reported as2018(2) Law Herald 1077 , the Coordinate Bench of this Court, while allowing the petitioner to go abroad, directed the petitioner therein to execute a personal bond and surety in the sum of ₹ 50 lacs each to the satisfaction of the trial Court. Relevant portion of the said order is reproduced hereinbelow: - 16. In the totality of the circumstances, prayer of the petitioner seeking permission to proceed to Canada is accepted to the extent of according permission to proceed abroad upto 28.04.2018. 17. Petitioner shall execute a personal bond and a surety in the sum of ₹ 50 l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of trial and would not seek any extension with respect to the same. 4) Upon the acceptance of the sureties and also upon giving the undertaking, as directed aforesaid and after specifying the date of return in the aforesaid manner, the passport of the petitioner shall be released to him and he would be permitted to go abroad. 5) During the period of the petitioner being abroad, the personal appearance of the petitioner shall be exempted and the petitioner shall be permitted to appear through his counsel. However, the petitioner would not be entitled to raise the objection that the evidence had been led in his absence. 6) The petitioner shall not dispute his identity. 7) The petitioner shall not in any manner tamper with the evidence of the prosecution. 8) The petitioner shall not visit any other country except USA, during the said period for which the permission to travel abroad has been granted by this Court. 9) The petitioner on returning, within five days from the date of return, shall produce his passport before the concerned trial Court/Duty Magistrate. 10) On return, the petitioner shall continue to be bound by the old condit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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