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TMI Blog2024 (4) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... n 02.02.2024, which was dismissed by the learned Trial Court with the observations that there was repeated physical absence of the petitioner before the Court, despite giving assurance/ undertaking to do so, on previous various dates, and thus, there were no grounds to allow the exemption application as he was not even on bail in this case, and also considering the fact that no relief had been granted to the petitioner/accused by this Court in the connected CBI case. The learned Trial Court had dismissed the exemption application filed on behalf of petitioner and had observed that Bailable Warrants were not being issued against the petitioner, and an opportunity was being afforded to him, but with a clarification that his failure to appear physically on the next date of hearing would lead to issuance of NBW against him. On 11.08.2023, 19.09.2023, 05.12.2023, though he was allowed to appear virtually by the learned Trial Court, it was observed that the same was allowed only for one occasion and he had to appear physically before the Court - Having taken note of the orders passed by the learned Trial Court on 31.05.2023, 19.07.2023, 11.08.2023, 19.09.2023, 05.12.2023, 05.01.2024, 02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AEO JUDGMENT SWARANA KANTA SHARMA, J. 1. The present application has been preferred on behalf of the applicant Rajeev Jhawar under Section 482 of the Code of Criminal Procedure, 1973 ( Cr.P.C. ) seeking quashing and setting aside of impugned order dated 02.02.2024 passed by the learned Special Judge, CBI-19 (PC Act), Rouse Avenue Courts, New Delhi ( Trial Court ) in Complaint Case No. 08/2023, arising out of ECIR/DLZOI/24/2022, titled as Enforcement Directorate vs NMP Sinha and Ors. issuing Non-Bailable Warrants ( NBW ) against the petitioner and proceedings thereafter. FACTUAL BACKGROUND 2. On 02.10.2020, the Central Bureau of Investigation ( CBI ) had registered RC AC-1/2020/A0004, at CBI/AC-I, New Delhi under Sections 7-A/8/9/10/12 of Prevention of Corruption Act, 1988 ( PC Act ). This was registered pursuant to receipt of an information that Sh. N.M.P. Sinha i.e. Ex. SP, CBI, New Delhi, in conspiracy with Sh. Vinay Jalan, Sh. Parth Jalan, Sh. Rajiv Jhawar (present applicant) i.e. M.D. of M/s. Usha Martin Ltd., Sh. Raj Kumar Kapoor i.e. Authorized Signatory of M/s. Usha Martin Ltd., and other unknown persons, was trying to influence the investigation of the case of CBI registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Delhi team of Directorate of Enforcement. 6. The case of Directorate of Enforcement, in brief, is that the applicant Rajeev Jhawar, Managing Director, M/s Usha Martin Ltd., on behalf of the accused company, had agreed to give a bribe of Rs. 50 lakhs to Sh. N.M.P Sinha and as a first installment, Rs. 30 lakhs was delivered to Vinay Kumar Jalan in Delhi for further handing over to N.M.P Sinha. However Rs. 25 lakhs was given to N.M.P Sinha and rest Rs. 5 lakhs was retained by Vinay Kumar Jalan on request of N.M.P Sinha and the said amount totalling to Rs. 30 lakhs were seized by CBI. The aforesaid money totalling to Rs. 30 lakhs, which were acquired by N.M.P Sinha and Vinay Kumar Jalan, from Rajeev Jhawar, as a result of criminal activities related to schedule offences is proceeds of crime as defined under Section 2(1)(u) of PMLA. As alleged, the accused persons namely N.M.P Sinha, Rajeev Jhawar, Vinay Kumar Jalan, M/s. Usha Martin Ltd have committed the offence of money laundering as defined under Section 3 and they are liable to be prosecuted and punished under Section 4, and the bribe money Rs. 30 lakhs which is involved in the offence of money laundering is proceeds of crime i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint case initiated by the Directorate of Enforcement. Reliance in this regard has been placed on Dr S. Jaitley Anr. v. State (NCT of Delhi) 2023 SCC OnLine Del 5551, CA Rakesh Kumar Gupta v. Delhi High Court W.P. (C) 17194/2022. 12. It is further contended that the petitioner s anticipatory bail application was dismissed by the learned Trial Court on 19.01.2024, which was challenged before this Court and therefore, judicial discipline requires that till disposal of the bail application by this Court, no adverse order should have been passed against the petitioner. However, despite being informed of the pendency of present petitions before this Court, the learned Trial Court had erroneously issued fresh NBW against the petitioner on 22.02.2024. 13. Learned Senior Counsel further submits that the learned Trial Court has failed to appreciate that the petitioner has genuinely and bona fidely made various attempts to join the proceedings, but due to the various processes being issued against him by the Directorate of Enforcement and CBI, he is unable to do the same. Moreover, NBW has been issued by the learned Trial Court overlooking the fact that the issuance of NBW interferes wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular date i.e. 11.08.2023 and had not given a permanent exemption from personal appearance. Further, it is pointed out that petitioner had been seeking exemptions from personal appearance on all the dates fixed for hearing. It is also pointed out that the learned Trial Court vide order dated 05.01.2024 had specifically directed the petitioner to be present and his application seeking exemption had been dismissed on this date. However, no coercive process was issued against him on this day. 18. Therefore, it is prayed that the present petition be dismissed, being devoid of any merits. 19. This Court has heard arguments addressed by learned Senior Counsel for the applicant/accused as well as learned Special Counsel for the Directorate of Enforcement, and has gone through the records of the case. ANALYSIS AND FINDINGS 20. In the present case, the question before this Court is whether the Non-Bailable Warrants issued against the petitioner vide order dated 02.02.2024 are liable to be quashed? 21. The sequence of events which unfolded before the learned Trial Court are that on 03.04.2023, cognizance was taken of the complaint filed by the Directorate of Enforcement, and summons w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been filed. Vakalatnama shall be filed on the next date of hearing. Copy of the said application supplied to the Ld. Counsel for the ED. Arguments heard on the application moved on behalf of accused no. 3 for exemption from personal appearance. For the reasons stated in the application, accused no. 3 Rajeev Jhawar is exempted for today only with the direction to accused no. 3 to appear in person on the next date of hearing. The application is disposed of accordingly 23. Therefore, the application filed on behalf of the petitioner seeking exemption from personal appearance was allowed only for one day, with the direction to appear in person on the next date of hearing. Again on 19.07.2023, an application seeking exemption from personal appearance was preferred by the petitioner, however, the same was dismissed vide detailed order and it was clarified that though the Court could have issued Bailable Warrants against the petitioner/accused for the next date of hearing, it was not passing any adverse order against the accused. It was also made clear that if an application seeking exemption is again filed on the next date of hearing, the Court will straightaway issue Non-Bailable Warran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused in person before the court. 14. It is also clarified that today as the court could have issued bailable warrants, which the court has not issued therefore in case there is an exemption application on behalf of the accused no. 3 on the next date as well, which the court happens to dismiss, the court may straightaway issue the non-bailable warrants against accused no. 3. 24. On 11.08.2023, the petitioner had appeared for the first time before the learned Trial Court, however, not physically, but through video-conferencing. After hearing arguments on behalf of the accused and the complainant, the learned Trial Court had taken a lenient view and allowed the petitioner to appear through videoconferencing on that day considering the fact that the matter was at the stage of scrutiny of documents and no prejudice would be caused to the complainant by physical absence of the accused. 25. On 19.09.2023, the petitioner had again appeared through video-conferencing before the learned Trial Court. A specific query had also been put to the learned counsel for the accused as to when the petitioner would appear physically before the Court as he was not on bail in this case. Though his ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issued against him. For reference, the relevant portion of order dated 05.01.2024 is reproduced hereunder: ...An exemption application from personal appearance has been moved on behalf of A-3. Heard. Considering the previous conduct of A-3 and his repeated absence from physical presence before the court, the exemption application cannot be allowed as he is not even on bail in this case. Hence, exemption application stands dismissed. A-3 is directed to physically appear on the next date of hearing failing which the court shall be inclined to issue NBWs against him. 27. It is also important to note at this juncture that prior to the next date of hearing, the anticipatory bail application of the petitioner was dismissed by the learned Trial Court vide order dated 19.01.2024. 28. Despite there being clear directions for the petitioner to appear physically before the learned Trial Court, another exemption application on his behalf was filed on 02.02.2024, which was dismissed by the learned Trial Court with the observations that there was repeated physical absence of the petitioner before the Court, despite giving assurance/ undertaking to do so, on previous various dates, and thus, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it needs to be reemphasized that the applicant/A-3 is not on bail in this case and his anticipatory bail application also stands dismissed. The court had already made it clear on the previous date that the applicant/A-3 had to appear physically, which he has repeatedly failed to do so. As regards the contention that NBWs cannot be issued at the first instance after dismissal of exemption application is concerned, it is pertinent to mention that the exemption application of applicant/A-3 already stands dismissed on the previous date and no new fact is brought on record, to allow the present application. Moreover, the court had not issued NBWs on the previous date despite dismissal of his exemption application and granted him time to appear but he chose not to do so. Considering the previous conduct of A-3 and his repeated absence from physical presence before the court, despite giving assurance/ undertaking to do so, on previous various dates, the exemption application cannot be allowed as he is not even on bail in this case. Even the Hon ble Delhi High Court has refused to grant any relief to the applicant/A-3 vide its order dated 24.01.24 in the connected CBI case considering his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this Court s opinion, what can be readily discerned from the records of the case and the orders passed by the learned Trial Court is that the petitioner had been afforded several opportunities by the learned Trial Court, to appear before it physically and repeated warnings had been issued that his failure to appear before the Court would lead to issuance of coercive process i.e. NBW. It is only thereafter that the learned Trial Court was left with no other option but to issue NBW against the petitioner. It is also relevant to note that the learned Trial Court had also considered in its previous orders, the conduct of the petitioner during the course of investigation i.e. his non-appearance before the investigating officer despite five summons being served upon him, the fact that complaint under Section 174 of IPC had been filed already against him by the prosecuting agency, and also the fact that NBWs had been issued against him in the connected CBI case and relief had been denied to the petitioner by this Court also in the CBI case as he had failed to return to India despite giving undertakings on numerous occasions. 35. As regards the reliance on judgment rendered by this Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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