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TMI Blog2022 (8) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the said acts were continued for years together. When the charge-sheet is carefully perused, and a comparative analysis between the role of the two accused persons is scanned for, both face an identical accusation. They are alleged of submitting an application for opening of an FLC for US$ of 1,000,000 with the beneficiary as M/s. Crown Aim Limited, Hong Kong and the advising bank with UCO Bank, Hong Kong for purported import of fresh water pearls and the date of shipment being 23/3/2017. An identical role attributed to both the applicants by transmitting a SWIFT message favouring UCO Bank with the beneficiary name for usage period of 180 days. The alleged offence is undisputedly in the nature of economic offence which has resulted in loss to the State exchequer, but while considering the Bail Applications, it is not only the gravity of the charges which deserve a consideration, but punishment that could be imposed after trial and continuation is also an important aspect. It contemplate recaliberating the scales of justice - Merely because the offence is in the nature of economic offence, would be no ground to refuse the bail, as it is not imperative that in every case of ec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wake of the long incarceration, he being arrested on 6/3/2018 by the CBI and he would submit that two charge-sheets are already filed in the subject C.R, though the applicant was charged on 16/5/2018, when the first charge-sheet was filed, and the learned counsel would submit that the CBI is on it's way to file third charge-sheet. It is submitted that since till date, the investigation itself is incomplete with 92 witnesses being cited to be examined during the trial, the conclusion of the trial in the nearest future appear to be a remote possibility. The learned counsel has placed reliance upon the recent verdict of the Supreme Court in case of Satender Kumar Antil vs. CBI, (Special Leave to Appeal CRL No.5191/2021 dated 11/7/2022) and would submit that the Hon'ble Apex Court has, in the said decision, exhaustively considered the scope and ambit of Section 170 of Cr.P.C and the learned counsel would submit that as far as the present applicant is concerned, he came from abroad and submitted himself to the jurisdiction of the Court and in an offence under PMLA, he has been released on bail by the Special Judge on 7/9/2018, by recording that although it is claimed by the Enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt case is not yet complete and the CBI has filed two charge-sheets, the first one on 16/5/2018 and the second one on 10/6/2021. He would submit that within a span of three to four months, the investigation would be completed and the third charge-sheet is likely to be filed. He would submit that the applicant is attributed a serious role in the charge-sheet and since he was working as a Vice President (Banking Operations) at M/s.Geetanjali Gems Limited, his application do not deserve any consideration. Mr.Venegaonkar would invite my attention to the seriousness of the accusations faced by the applicant by submitting that on the basis of the original charge-sheet as well as the supplementary charge-sheet, the total amount involved, is around Rs.7080.86 crores for the period ranging between 2013- 2017. Mr.Venegaonkar would submit that the offence is serious, where the bank official Shri Gokulnath Shetty, Deputy Manager of Punjab National Bank in connivance with the accused Directors of Gitanjali Group of Companies, defrauded PNB of the huge amount in the matter of issuance of unauthorized and fraudulent letters of Undertaking (LoUs) from 1/3/2017 to 2/5/2017 in favour of Overseas br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Corruption Act, 1988, the substantive offences thereof for alleged defrauding of PNB to the extent of about USD 754.92 Millions (equivalent to Rs.4886.72 Crores@ Rs.64.00 per USD). B) On 22.02.2018, Punjab National Bank gave additional complaint whereby the fraud in respect of FLCS increased by another Rs.1251.56 Crores. Thereafter, on 04.03.2018 Punjab National Bank filed another supplementary complaint for defrauding Punjab National Bank in the sanctioned limit of M/s. Gitanjali Gems Ltd., M/s. Gili India Ltd., M/s. Nakshatra Brands Ltd. and M/s. Asmi Jewellery India Ltd. for an additional amount of Rs. 942.18 Crores. The total amount therefore allegedly defrauded by the accused persons till date is about Rs. 7080.86 Crores during the period 2013-2017. C) The allegation in brief is, the accused Bank official, Shri Gokulnath Shetty in connivance with the accused Directors of Gitanjali Group of Companies and unknown persons defrauded PNB to the extent of Rs. 7080.86 Crores in the matter of issuance of unauthorized and fraudulent Letters of Undertaking (LOUS-143 Nos) between the period 01.03.2017 to 02.05.2017 in favour of overseas Branches of various Indian banks and purpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nishable under Section 201 of IPC, Section 477-A of IPC and Section 7 of PC Act, 1988 by the accused persons including applicant/accused Vipul Chitalia (A-10) and hence, the Supplementary Charge Sheet was filed on 10.06.2021. H) The investigation reveal that the applicant was functioning as Vice President (Banking Operation and Finance) for Gitanjali Group of Companies. He was also one of the authorized signatories to the account of all the accused companies M/s.Gitanjali Gems Ltd, M/s.Gili India Ltd, and M/s.Nakshatra Brands Ltd maintained with PNB Bank, Brady House, Mumbai. He is charged with hatching a conspiracy with Mehul Choksi and of submitting applications along with import documents with PNB Bank, Brady House, Mumbai, for issuance of 165 LOUs and for submitting applications for fraudulent enhancement of value of 58 FLCs issued during the period commencing from 23/1/2017 to 15/5/2017, which are jointly signed by the applicant and Aniyath Shivraman Nair (Accused no.7). The investigation also reveal that the present applicant, in connivance with the co-accused Mehul Choksi, had dishonestly and fraudulently shown corresponding liability towards the purported suppliers i.e. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use him for submitting the application in PNB for issuance of fraudulent LOUs and enhancement of FLCs, the document which also bear the signature of the present applicant. 12 When the charge-sheet is carefully perused, and a comparative analysis between the role of the two accused persons is scanned for, both face an identical accusation. They are alleged of submitting an application for opening of an FLC for US$ of 1,000,000 with the beneficiary as M/s. Crown Aim Limited, Hong Kong and the advising bank with UCO Bank, Hong Kong for purported import of fresh water pearls and the date of shipment being 23/3/2017. An identical role attributed to both the applicants by transmitting a SWIFT message favouring UCO Bank with the beneficiary name for usage period of 180 days. 13 When Mr.Venegaonkar is asked to point out the material in the charge-sheet, which attribute a role distinct to the applicant than co-accused Aniyath Nair (accused no.7), the learned counsel is unable to assign a distinct role to the present applicant. The charge-sheet against the Managing Director Mehul Choksi and his accomplice i.e. Accused no.9, Joint President (Finance) who is in-charge of the Banking Operatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant that the applicant deserve a similar treatment. 15 Another ground which made me favourably consider the prayer for releasing the applicant on bail, is the absence of possibility of the timely trial and his long incarceration. Recently, the Hon'ble Apex Court in case of Union of India vs. Najeeb, 2021 (3) SCC 713, has once again reiterated that, Liberty guaranteed by Part-III of the Constitution, shall bring within its protective ambit not only due procedure and fairness but also access to justice and speedy trial. The following observations by their Lordships of the Apex Court deserve a reproduction : "Liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. Undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accused unless proven guilty, the fact of an imprisonment before the conviction, as a substantial punitive content, it would be improper for any Court to refuse bail and keep the accused incarcerated indefinitely. The requirements of seriousness of the accusations and whether the witnesses are likely to be influenced by the applicant on being enlarged on bail during trial, and whether he is likely to flee from justice, if released on bail, will have to be weighed as against the right of an accused to be presumed to be innocent, till the charge is proved against him by the prosecution. Incarceration of the accused cannot be treated as synonymous with a punishment and assuming that the accused is prima facie guilty for a grave offence, bail cannot be refused in an indirect process of punishing the accused, before he is convicted of the charge framed against him. 19 The charge-sheet being filed against the present applicant on completion of investigation and the entire material crystallized therein, it would be suffice to secure the presence of the applicant at the time of his trial and he need not remain incarcerated by way of a punishment, till he face the trial for the charges ..... X X X X Extracts X X X X X X X X Extracts X X X X
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