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Rajendra Singh Sethia Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 548 of 1985
Judge
Reported inILR1986Delhi300
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 439; Indian Penal Code (IPC), 1860 - Sections 120(B)
AppellantRajendra Singh Sethia
RespondentState
Advocates: D.C. Mathur,; R.K. Khanna,; Gurdial Singh,;
Cases ReferredIn Gurcharan Singh v. State
Excerpt:
(i) criminal - application for bail - section 120 b of indian penal code, 1860 and section 439 of criminal procedure code, 1973 - matters to be considered before granting bail in non-bailable offences - nature and seriousness of offence, character of evidence, circumstances peculiar to accused, reasonable apprehension of witness being temper with, large interest of public or state, likelihood of accused fleeing from justice and similar other consideration. (ii) investigation - section 173 (2) of criminal procedure code, 1973 - further investigation cannot be ruled out only because cognizance of case had been taken by court. - - the financial condition of esal was in a very bad shape and huge amounts were required in order to reduce the outstanding dues the petitioner and amarjit.....d.p. wadhwa, j.(1) the petitioner along with amarjit singh is facing trial for offences under ss. 120b read with ss. 420. 467, 468a nd 471 indian penal code . and also for substantive offence punishable under ss. 420 and 471 read with s. 467 indian penal code . the charge sheet under s. 173(2) of the code of criminal procedure 1973 (for short 'the code') was filed on 29-5-1985 in. the court of the .chief metropolitan magistrate (for short the cmm'), during the pendency of the present petition which is under s. 439 of the code. (2) an f.i.r. being r.c. no. 1185 was registered on 1-3-1985 at 5.00 p.m. against the petitioner and others under ss. 120b read with ss. 420. 467, 468a nd 471 indian penal code . this was under s. 154 of the code. it is mentioned in this f.i.r. that the petitioner,.....
Judgment:

D.P. Wadhwa, J.

(1) The petitioner along with Amarjit Singh is facing trial for offences under Ss. 120B read with Ss. 420. 467, 468a nd 471 Indian Penal Code . and also for substantive offence punishable under Ss. 420 and 471 read with S. 467 Indian Penal Code . The charge sheet under S. 173(2) of the Code of Criminal Procedure 1973 (for short 'the Code') was filed on 29-5-1985 in. the Court of the .Chief Metropolitan Magistrate (for short the CMM'), during the pendency of the present petition which is under S. 439 of the Code.

(2) An F.I.R. being R.C. No. 1185 was registered on 1-3-1985 at 5.00 P.M. against the petitioner and others under Ss. 120B read with Ss. 420. 467, 468a nd 471 Indian Penal Code . This was under S. 154 of the Code. It is mentioned in this F.I.R. that the petitioner, an Indian national, based in the U.K. (London) was the Managing Director of certain group companies and during the period 1982-1984 conspired with certain employees. namely, Ashish Banarjee and Rajender Kumar Batodia and certain officials of the Punjab National Bank, Union Bank of India and Central Bank of India and other institutions based in U.K. and some other countries to defraud these banks' institutions to the tune of millions if pound sterlings. It is then said that in pursuance of the said criminal conspiracy, these banks and institutions were dishonestly induced by the petitioner and his associates to extend loans to the group of companies controlled by the petitioner in respect of alleged contracts with the Nigerian National Supply Corporation and other African Bodies which did not have sufficient foreign exchange reserve required prior to the grant of such loans. It was then stated that such loans were reported to have been obtained on the strength of false representations regarding the value of assets held by the petitioner to meet the amounts of the loans.

(3) The petitioner was arrested on 1-3-1985 itself at about 10.15 P.M. outside Maurya Sheraton Hotel, New Delhi, where lie was staying. His room in the hotel was searched One passport being No. W-900509 in the name of R. K. Dugar in which the photograph of the petitioner had been pasted was recovered. Certain other documents including one return air Ticket of Swiss Air ex-Calcutta Delhi-Bombay Cairo-Geneva New York-Geneva-Bombay-Calcutta, and travellers cheques of the value of Us $ 5001- were also recovered. These documents were again in the name of R. K. Dugar. During the course of investigation, Amarjit Singh, the then General Manager of the Punjab National Bank Branch at London, was also arrested on 16-3-1985 at New Delhi. He was staying in Maharani Guest House, Sunder Nagar, New Delhi, at that time. During the course of search of his room in the guest house, certain documents were recovered one of which was a photo album which showed that Amarjit Singh and the petitioner were quite close to each other. Investigations revealed that apart from other bills, the petitioner in conspiracy with Amarjit Singh co-accused had also submitted false and forged bills to the tune of Us $ 10.4 millions drawn on In-House Company based at Hongkong. The charge sheet which has been filed in the present case relates to the offences committed in respect of these transactions involving Us $ 10,4 millions.

(4) The prosecution case, in brief, is that the petitioner was the Chairman of Esal Group of Companies since 28-3-1977. Amarjit Singh had been posted to the Punjab National Bank Branch London and had been working in various capacities including that of the General Manager since 30-6-1980. The principal company in this group was Esal (Commodities) Ltd. London (for short 'ESAL') which had various accounts with the Punjab National Bank at London. One of the accounts was. Dollars Merchanting Account. Amarjit Singh had issued specific instructions to all officers of the Punjab National Bank giving guidelines in respect of loan accounts etc. He had strictly warned his staff that no facilities even within the existing sanctioned limits were to be permitted to Esal and other group companies without his written permission. There was a Note of 28-11-1983 of Amariit Singh showing that the account of Esal was being personally supervised by him. The financial condition of Esal was in a very bad shape and huge amounts were required in order to reduce the outstanding dues The petitioner and Amarjit Singh some time in the later part of 1983 entered into a criminal conspiracy with some unknown persons to defraud and cheat the bank on the strength of false and forged bills of exchange supported by false shipping documents purporting to show the shipments of granulated sugar to Nigeria. In pursuance of this criminal conspiracy, the petitioner on 7-12-1983 got submitted four bills dated 5-12-1983 and totalling Us $ 10,400,000.00 to the bank knowing or having reason to believe that the bills and the supporting documents were false and forged and no sugar, as was shown in , documents, were shipped in the vessel Golden Venture'. These bills were drawn on another concern of Esal in Hongkong namely Alglobe Trading Ltd. Then the charge sheet in the case describes as to how the documents were not paid and also that the sugar could not have been shipped in the vessel Golden Venture. It is then stated that the accused Amarjit Singh dishonestly allowed an advance of Us $ 7.649 millions against 25 per cent cash margin to Esal in respect of the aforesaid four bills. The said advance was credited to the Dollars Merchanting Account of ESAL. A further loan of Us $ 2.351 million was also allowed to this company by the bank. Thus, while on 6-12-1983 there was an amount of Us $ 33,261,831.35 as outstanding against ESAL. on 7-12-1983 the outstanding dues were reduced to Us $ 23,258,591.35. It is then stated in the charge sheet that the bills of exchange and its supporting documents dated 5-12-1983 were valuable securities which were found to he forged documents and that both the accused person namely the petitioner and Amarjit Singh cheated/defrauded the Punjab National Bank to the extent of Us $ 7.649 million (Rs. 9.5 crores approximately) in respect of that instance. Then. it is mentioned in the charge sheet the Esal has since gone into liquidation with effect from 7-11-1984 and the services of Amariit Singh was terminated by the bank with effect from 14-3-1985.

(5) Amarjit Singh was released on bail by this court on 16-4-1985. [Cr. M. (M) 367/85]

(6) The petitioner filed the present petition on 21-5-1985. Earlier the Metropolitan Magistrate as well as the Addl. Sessions Judge rejected the plea of the petitioner for being released on bail. The order of the Addl. Sessions Judge was made on 27-3-1985.

(7) When this petition came up for hearing on 22-5-.1935, Mr. M. L. Sachdeva, Standing Counsel for the C.B.I., appeared and took notice of the petition. He submitted to the court that the C.B.I, was obliged to file the challan against the petitioner by 29-5-1985 by which date 90 days period would be expiring. It was, thereforee, submitted that the petition might be fixed after 29-5-1985. Then, the petition was taken up on 30-5-3 985. On this day, it was submitted by Mr. D.C. Mathur, learned counsel for the petitioner, that the C.B.I, did not file the documents or the statements of the prosecution witnesses recorded under S. 161 of the Code at the time of filing of the charge sheet on 29-5-1985. He, thereforee, submitted that the charge sheet filed was not a complete charge sheet. Mr. Sachdeva, however, submitted that the documents and statements were in fact filed before the Cmm at the time of submission of the challan but these were taken back by the prosecutor for the purpose of preparation of copies to be supplied to the accused under the law. Since the order of 29-5-1985 of the Cmm was silent on this aspect, a report was called for. Liberty was also given to Mr. Mathur to file an affidavit to the effect that the documents and statements of prosecution witnesses recorded under S. 161 of the Code were never produced before the CMM. No such affidavit has been filed. The Cmm, however, sent his report. He stated that the charge sheet in the case was filed on 29-5-1985 and it was accompanied by three annexures, namely, the sanction order, list of witnesses and list of documents. It was then stated that it was normal practice with the C.B.I, to file the charge sheet in that manner as in most of the case the documents and the statements were voluminous and after production in the court were taken back by the investigating officer for preparation of copies to be supplied to the accused persons. The Cmm in his report further stated that in the present case too, the documents and the statements of witnesses under S. 161 of the Code were not filed along with the charge sheet but were produced and taken back by the investigating officer 'probably for preparation of the copies as time was too short for supply of copies, the next date being 4-6-1985 for the appearance of accused'.

(8) On 29-5-1985 when the charge sheet was filed before the Cmm, he took cognizance of offences against both the accused persons named therein, namely, the petitioner and Amarjit Singh. As Amariit Singh was on bail. summons were directed to be issued to him to appear on 4-6-1985 'when the co-accused Rajendra Singh Sethia shall be produced from jail. Earlier to 29-5-1985, the petitioner had been produced before the Cmm on 20-5-1985. A request was made by the C.B.I, that since investigation of the case was to continue, the petitioner might be further remanded to judicial custody for 10 (14?) days. On this, the Cmm remanded the petitioner to judicial custody till 4-6-1985. On this day, both the petitioner and Amarjit Singh were present in court. The Cmm recorded that copies of some of the documents had been supplied to them. The order-sheet of 4-6-1985 of the Cmm shows that Mr. Mathur had pointed out that the charge sheet in respect of the F.I.R. (RC 185) was incomplete 'inasmuch as the investigation in this very F.I.R. is still in progress and as such accused Rajendra Singh Sethia who is in judicial custody for more than 90 days is entitled to be released on bail'. On a query raised by the Cmm as to whether or not the investigation was complete in the F.I.R., the Deputy Legal Advisor, C.B.I.. stated that he was not bound to make any statement and that the accused might be remanded to judicial custody in this F.I.R. under S. 309 of the Code as the charge-sheet had been filed in the court and the court had already taken cognizance on that basis. It was submitted that as the charge sheet was filed before the expiry of the period of 90 days, the remand of the accused be extended under S. 309(2) of the Code. The case was adjourned to .1-7-1985, and the petitioner was remanded to judicial custody till 19-6-1985 on which date he was directed to be produced before the Duty Magistrate as it appeared the court of the Cmm would remain closed due to summer vacation during that period.

(9) Mr. Mathur had two legal submissions to make. With reference to the F.I.R. and the charge-sheet filed, he submitted that investigation in the case was not complete within 90 days as prescribed in S. 167(2) of the Code and that the petitioner was, thereforee, entitled to be released on bail. The second point raised was on the assumption that if the charge sheet (police report) in the present case was filed within the period of 90 days, it was no charge-sheet in the eyes of law inasmuch as under the mandatory provisions of S. 173(5) of the Code it had to be accompanied by the documents and the statements recorded under S. 161 of the Cods. This having not been done, he submitted, it could not be said that the investigation was complete within 90 days which period expired on 29-5-1985. Mr. Mathur also submitted that no offence under S. 471 Indian Penal Code was made out and in that connection be drew my attention to the sanction order of the Govt. of India granting sanction for the prosecution of the petitioner and Amarjit Singli for the offence mentioned in the sanction order which were committed by them outside India. The offences mentioned in the sanction order ara under Ss. 120B read with Ss. 420. 467, 468a nd 471 I Pc and also under Ss. 420 and 471 Indian Penal Code committed at London outside India. Then, Mr. Mathur submitted that. the order of the Cmm dated 20-5-1985 granting judicial remand of the petitioner till 4-6-1985 beyond the period of 90 days was itself illegal and the petitioner was bound to be released forthwith. He submitted that the Cmm could not by any stretch of imagination authorise detention, of the petitioner beyond 90 days. On merits also, Mr. Mathur submitted that the petitioner should be released on bail. He contended that the petitioner ha? been falsely implicated and certain civil disputes have been given the colour of criminal offences. He stated that the co-accused had already been released on bail and that the petitioner would abide by whatever condition the court might impose while releasing him on bail. He also submitted that the offences in question were committed in U.K.; all the relevant documents were with the C.B.T. or with the Liquidator of Esal in London or even the Metropolitan Police, London; evidence was all documentary and involved going into accounts and for proper defense of the case the petitioner should be free to give proper instructions to his counsel which could only be done if he was released on bail ; most of the witnesses were resident of london and there was no question of the petitioner tampering with the evidence: work of the petitioner is suffering badly and lie is not able to wind up his affairs even in the winding up proceedings ; and lastly that the trial would take its own course and if is not in the interests of justice that the petitioner should be kept in custody.

(10) On the question of finding of passport in the name of R. K. Dugar in the room is the occupation of the petitioner and other related document of R. K. Dugar and the fact that the passport bore the photograph of the petitioner. Mr. Mathur submitted that this was subject-matter of prosecution in the court of the Metropolitan Magistrate, Calcutta, and no reference could be made to such a circumstance for the present purpose.

(11) Mr. Mathur referred to a decision of the Supreme Court in Satya Narain v. State of Bihar : 1980CriLJ227 to support his contention that the police report, as envisaged by S. 173(2) of the Code, has to be accompanied, as required by sub-s, (5), by all the documents and statements of the witnesses therein mentioned and that one cannot divorce the details which the report must contain as required by sub-s. (2) from its accompaniments which are required to be submitted under sub-s. (5) and that whole of it is to be submitted as a report to the court. It has been observed by the Supreme Court in this judgment that sub-s. (5) of S. 173 made it obligatory upon. the police officer to forward along with the report all document or relevant extracts thereof on which the prosecution proposed to rely and the statements recorded under S. 161 of the Code of all the persons whom the prosecution proposed to examine as witnesses at the trial. I think, Mr. Mathur is not correct when he says 'that the police report which is filed in the instant case did not meet the requirements of S. 173(2) of the Code as it was not forwarded along with all the documents or the statements mentioned in sub-s. (5). This controversy has been unnecessarily raised. For one thing, the report of the Cmm shows that these documents and statements were in fact produced along with the police report. Whether the Cmm should. have permitted the investigating officer to take back these documents and statements for preparation of the copies is not for me to comment in the present petition. Secondly, though the Supreme Court in the above judgment has observed that sub-s. (5) of S. 173 of the Code made it obligatory upon the police officer to forward along with the report all documents and the statements recorded under S. 161 of the Code, this judgment cannot be taken to lay down a rule of law that police report means or includes all documents or relevant extracts thereof on which the prosecution proposes to rely and the statements recorded under S. 161 of the Code of all the persons whom the prosecution purposes to examine as its witnesses. The Supreme Court had made the observations while interpreting the provisions of S. 11 of the Essential Commodities Act. 1955 which reads as under:-

'No court shall take cognizance of any offence punishable under this Act except on a report in writing of the facts constituting; such offence made by a person who is a public servant as defined in Section 21 of the Indian Penal Code.'

This section uses the expression 'a report in writing the facts, constituting such offence made by a person who is a public servant'. In this context the Supreme Court held that the police report with relevant document. and statements mentioned in S. 173(5) means a report in writing. The Supreme Court also observed as under :-

'But even if a narrow construction is adopted that the police report can only be what is prescribed in. S. 173(2) there would be sufficient compliance if what is required to be mentioned by the statute has been set down in the report. To say that all the details of the offence must be set out in the report under S. 173(2) submitted by 'the police officer would be expecting him to do something more than. what the Parliament has expected him to set out therein. If the report with sufficient particularity and clarity specifies the contravention of the law which is the alleged offence, it would be sufficient compliance with S. 11. The details which would be necessary to be proved to bring home the guilt to the accused would emerge at a later stage, when after notice to the accused a charge is framed against him and further in the course of the trial They would all be matters of evidence and S. 11 does not require the report to be or to contain the evidence in support of the charge, its function being merely to afford a basis for enabling the Magistrate to take cognizance of the case. ..... ....'.

S. 2(r) of the Code defines police report as meaning a report forwarded by a police officer to a Magistrate under sub-s(2) of S. 173. Section 173(2) provides that as soon. as the investigation is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of an offence on a police report, a report in the form prescribed by the State Government staling certain particulars mentioned in the sub-section. It is on this police report that cognizance is taken by the Magistrate under S. 190 of the Code. In the instant case, cognizance has been so taken. 1. thereforee, do not find any infirmity in the charge-sheet so filed. As to what would be the effect if the provisions of S. 173(5) of the Code are contravened is again not for me to comment in the present proceedings.

(12) A lot has been said by Mr. Mathur that the police report in the present case would show that investigation has not been complete. He stated that he present police report was merely a camouflage to get over the provisions of S. 167(2) of the Code. I have really not been able to appreciate this argument. I have already held that the police report which has been filed in the present case and on which cognizance of the offences mentioned therein has been taken by the Cmm is a valid police report under S. 173(2) of the Cede. I should thereforee address myself to the the question as to whether the petitioner should be released on bail. But, Mr. Mathur submitted that it should be held that in all future challan/police reports which the C.B.J. might file and which might arise out of R.C, 1185, the petitioner should be taken to be released on bail inasmuch as investigation was not completed within the mandatory period of 90 days. I think, it is a futile exercise for me to go into this question. It is not the case of the petitioner that the challan which has been filed in the present case does not arise cut of the F.I.R. in question (RC 1165). There is no bar to further investigation as would be seen from sub-s. (8) of S. 173. But, then the argument of Mr. Mathur was that this sub-section would apply to investigation relatable to the police report already filed and not for another different offence. It is not the case of the petitioner that investigation/further investigation of an offence different from the one which is subject matter of the police report is totally barred. The whole weight of the argument has been that the investigation is not complete and the F.I.R. refers to a larger conspiracy and the petitioner should, thereforee, be released on bail in respect of offences for which investigation is still going on. It does appear to me from the police report filed that tills relates to conspiracy in respect of one transaction and that further police reports would follow, but that does not mean I should pass orders directing release of the petitioner now in respect of those police reports. I put it to Mr. Mathur that .if I was. to reject his petition for release on bail in respect, of the police reports already filed what was the use of further arguments that the petitioner should be released on bail in respect of police reports which were yet to come. He did not appear to have a clear answer to this.

(13) Reference may be made to a decision of the Supreme Court in Ram Lal Narang v. State (Delhi Admn.) : 1979CriLJ1346 . In this case, a criminal conspiracy was alleged against certain accused on the ground that they had replaced certain precious articles of antiquity by fake ones by cheating the court. Subsequent investigations revealed that still more persons were involved and the object was to export the articles illegally to foreign countries end in fact genuine articles were recovered from a foreign country. A second case of conspiracy was, thereforee, initiated in Delhi court and the earlier conspiracy case, which was pending in Ambala Cantt., was withdrawn. The basic submission on behalf of the accused was that two conspiracies alleged in the two cases were but one. The submission was that the investigation into and the taking of cognizance of the second case were without jurisdiction. The court held that the two conspiracies were in substance and in truth separate and not one and, thereforee, the investigation and the taking of cognizance in the second case were not without jurisdiction The court further observed :-

'The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few mere conspirator, as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two cons piracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. We are clear, in the present case, that the conspiracies which arc the subject-matter of the two cases cannot be said to identical though the conspiracy which is the subject-matter of the first case may. perhaps,, be said to have turned out to be part of the conspiracy which is the subject-matter of the second case. As we mentioned earlier, when investigation commenced in First Information Report No. R.C. 4 of 1976, apart from the circumstance that the property involved was the san)e, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known.'

This was a case under the old Code (Code of Criminal Procedure 1898) where there was no provision like sub-s. (8) of S. 173 of the Code. The court nevertheless held that the police has further powers to investigate after putting In the police report under S. 173. The court did not approve of the view taken by some of the High Courts, that with the submission of a charge sheet under S. 173, the power of the police to investigate came to an end and the Magistrate's cognizance of the offence started. The court observed:

'Anyone acquainted with the day-to-day working of the criminal courts will be alive to the practical necessity of the police possessing the power to make further investigation and submit a supplemental report. It is in the interests of both the prosecution and the defense' that the police should have such power. It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused.'

(14) Mr. B. Dutta, learned Add/. Solicitor General of India. referred to a decision of the Patna High Court in Badsah Mian v. The State of Bihar 1978 BBCJ 160 (3). In this case, the petitioner was named as one of the 9 accused mentioned in the F.I.R. from amongst several dacoits. He was alleged to have been armed with a gun and was identified by certain witnesses. It was also alleged that there was a scuffle between the dacoits and the prosecution party resulting in injuries to some of the dacoits as a result of which one of them died. One of the injured dacoits made an extra-judicial confession implicating the petitioner and others. After investigation the police submitted a charge sheet stated as preliminary charge sheet against the petitioner and. one Chandrika Ahir. A second charge sheet (without the heading preliminary charge sheet) was thereafter submitted in respect of six other coaccused, It was contended by the petitioner that a preliminary charge sheet was no charge sheet in law and it was filed merely with a view to defeat the provisions of S. 167(2) of the Code and in such circumstances the petitioner was entitled to bail. The court rejected the contention of the petitioner and held that-

'If a police report--whether called by the name of preliminary or final charge sheet -contains all these materials, it is a final form irrespective of the name by which it is described thereforee, it is the substance of the report which has to be looked into and not merely the name given to it and it is not the time of filing the report which will be the main criterion to decide as to whether it i- a final form or not.

The court also held as under:-

'THEREFORE,in my view merely because a charge sheet has been submitted while investigation is not complete for one reason or the other it cannot be said that it is a document which has no effect in law being not in accordance with law and that for that reason alone it must be deemed to be one with a view to circumvent or defeat the provision of section 167(2) of the Code.'

(15) In my opinion, there is no bar to further investigation and S 173(8) of the Code cannot be limited in its operation in respect of offences which are already the subject-matter of the police report.

(16) The contention of Mr. Mathur that the Cmm by his order dated 20-5-1985 could not extend the detention of the petition until 4-6-1985 beyond the period of 90 days. which expired on 29-5-1985, is, to my mild. again not sound. Reference in this connection may be made to another decision of the Supreme Court in Slate of U.P. v. Lakshmi Brahman : 1983CriLJ839 . Para 5 of the judgment would be relevant in this connection, which is as under -

'In this appeal, we are concerned with Section 167 hereinabove extracted. The High Court after examining the scheme of Section 167(1) and (2) with the proviso rightly concluded that, on the expiry of 60 days from the dace of the arrest of the accused, his further detention does not become ipso facto illegal or void, but if the charge-sheet is not submitted within the period of 60 days, then notwithstanding anything to the contrary in Section 437(1), the accused would be entitled to an order for being released on bail if he is prepared to and does furnish bail. In this case, it is an admitted position that the respondents did not apply to the Magistrate for being released on bail on the expiry of 60 days from the date of their arrest. The. High Court was of the opinion that as the respondents did not apply for bail on the expiry of sixty days from the date of their arrest, their continued detention would not be illegal or without the authority of law. So far there is no controversy.'

(17) I think, for the purpose of the decision of the present petition, I should not take notice of the argument of Mr. Mathur that the charge sheet does not disclose any offence under S. 471 Indian Penal Code or that the sanction order is invalid lest it prejudices either of the parties.

(18) Mr. R. K. Khanna, who also appeared for the petitioner, strenously argued that it was a case of a civil dispute at best and not a case of any criminal offence. He referred in detail to the scheme of arrangement pursuant to S. 206 of the English Companies Act 1948 in respect of Esal and other group companies. Mr. Khanna submitted that this scheme of arrangement just fell through as the English court did not grant its approval due to the attitude of the British Government adopted during the course of hearing and ultimately winding up orders were made by the court and a Liquidator appointed. Mr. Khanna was at pains to explain that claims of the banks including the Punjab National Bank were fully secured and that they were holding assets and securities which if taken together were in fact in surplus of the aggregate claims of the banks. Mr. Khanna also submitted that various amounts were advanced by way of normal banking transactions and that the petitioner suffered losses only because there was a coup in Nigeria in December 1983 and then there was a credit squeeze and serious cash flow problem. He submitted that all proper procedure was followed while taking credit from the banks and this procedure had been in vogue'since 1977. He also submitted that the court should not be unduly impressed by the figures running into millions of Us $ as these were not of much relevance when transactions in foreign lambs were concerned and that it was a normal incident in foreign business where credits are given running into million of Us Dollars

(19) Mr. Khanna also referred to a decision of the, Lahore High Court in Ram Narain v. Emperor AIR 1932 Lah S 6 wherein the court observed that whether an accused is to remain at large on bail depended in most cases upon the exigencies of the particular case before the court. In cases involving question of accounts it is desirable., that the accused should be given full opportunity of instructing his counsel as regards accounts etc.

(20) Mr. Mathur had raised another argument that police report in the instant case did not disclose commission of offences under Ss. 467 and/or 471 Indian Penal Code and he, thereforee, submitted that none of the offences in respect of which the police report was filed prescribed punishment for a period more than 10 years. His argument, thereforee, was that the police report ought to have been submitted within 60 days of registering of the F.I.R. and this having not been done, the petitioner was entitled to be released on bail under sub-section (2) of S. 167 of the Code. This argument is just to be stated only to be rejected. For one thing, the police report has been submitted in respect of offences under S. 120B read with Ss. 420, 467, 468 and 471 Indian Penal Code and also in respect of substantive offences punishable under Ss. 420 and 471 read with S. 467 Indian Penal Code . Secondly, it will be for the trial court to see if offences under these sections are made out while framing charges against the accused. S. 167(2) of the Code merely refers to investigation relating to various offences. If the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term not less than 10 years, the detention of the accused cannot be authorised for a period exceeding 90 days and if the investigation relates to any other offence the period would be 60 days. The argument, thereforee, that police report does not make out any offence punishable for a term not less than 10 years is of no relevance.

(21) I am also of the view that there is no merit in the argument that merely because further investigation after filing of the police report is to go on as permitted by sub-section (8) of S. 173, the petitioner would be entitled to be released on bail under the provisions of S. 167(2) of the Code. It cannot be said that the police report filed in the instant case is a mere camouflage to get over the provisions of S. 167(2) of the Code, as contended by Mr. Mathur.

(22) I may note the submission of Mr. M. L.. sachdeva Standing Counsel for the C.B.I., that the points now raised by the petitioner were nowhere mentioned in the present petition.

(23) Mr. Dutta submitted that this was not a case in which the petitioner should be released on bail. He relied on a decision of the Supreme Court in State v. Jaspal Singh Gill : 1984CriLJ1211 where E. S. Venkataramiah, J. after considering three decisions of the Supreme Court in (i) State v. Jagjit Singh-- : [1962]3SCR622 ; (ii) Gurcharan Singh v. State (Delhi Admn.) AIR 1978 Sc 179 and (ill) Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh : 1978CriLJ502 which dealt with the principles governing grant of bail, observed as under :__

'On a consideration of the above three decisions, I am of the view that the Court before granting bail in cases involving non-bailable offence particularly where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances which arc peculiar to be accused, a reasonable possibility of the presence of the accused not being secured at the trial. reasonable apprehension of witnesses being tempered with, the larger interests of the public or the State and similar other considerations.'

No doubt, this was a case under the Official Secrets Act and the trial had not yet commenced but the two circumstances, that is nature and seriousness of the offence and a reasonable possibility of the presence of the accused not being secured at the trial, would in any case be relevant in the present case before me as well. In fact, it has repeatedly been laid down that the likelihood of the accused fleeing from justice lias always been a strong circumstance to be taken into consideration while refusing or granting bail. Mr. Dutta submitted that the petitioner in order to meet his financial commitments and liabilities to various other companies and bodies in U.K. and other places stated defrauding Indian banks, in U.K. including the Punjab National Bank by producing false and bogus bills of exchange and shipping documents. He submitted that the petitioner had defrauded Allied Arab Bank earlier and was involved in a deception charge under S. 15 of the Theft Act, in UK., and the petitioner was on red alert and had been evading arrest for the last one year. Mr. Dutta then referred to the recovery of a passport from the room in the occupation of the petitioner in the name of R. K. Dugar and other passports and documents. Mr. Dutta submitted that the petitioner was quite desperate and but for his arrest on 1-3-1985 would have fled from the country in an assumed name of R. K. Dugar. He submitted that if the petitioner was released on hail. he in ail likelihood would lump the bail and it would be difficult to procure his presence thereafter. Mr. Dutta also submitted that the amount of Us $ 7649 million (Rs. 9.5 crores) may not be a big amount from the petitioner's point of view but it was certainly a huge amount from any standard in. India.

(24) Before I proceed further it will be appropriated at this stage to set out. a paragraph from the order of the learned Addl. Sessions Judge while rejecting the plea for bail of the petitioner and this para relates to various passports of the petitioner or recovered from his room in Hotel Maurya Sheraton. New Delhi

'Soon after the accused was arrested by the C.B.L sleuths on the night of 1-3-1985 from the Maurya Sheraton Hotel, search of the room reserved by the accused Sethia in his own name resulted in the recovery of amongst others three passports, travel documents, vaccination certificate, foreign exchange etc. etc. which the accused had obtained for travel abroad in a fictitious name of R. K. Dugar. Perusal of Passport No. 553884 issued at London on 12-8-1983 in the name of Rajendra Singh Sethia shows that this passport was issued in lieu of Passport No. 399268 issued on 5-5-1982 at Lagos which was returned to Serbia after his cancellation. Its perusal also shows that earlier Sethia had been issued 4 more Passports from time to time bearing No. 192146 at Lagos on 25-3-1981, Passport No. 7404510 issued at Lagos on 23-1-1981, Passport No. 270290 issued at Lagos on 28-1-1979 and Passport No. 934209 issued at London on 29-10-76 which were cancelled one after the other in lieu of new one issued. This passport issi.cd from London on 12-8-1983 shows accused Sethia with long hairs and moustaches. This passport was cancelled when Sethia was granted a new Passport No. 716884 in New York on 17-2-1984. In this Passport Sethia has been shown in entirely different outfit, clean shaved, without moustaches and very small scalp hair. If that was not all, the room had resulted in the recovery of Passport No. 900509 issued by Passport Officer, Calcutta on V.3-2-19S5 in the name of Raj Kumar Dugar having the photographs of accused Sethia embossed thereon. In this photograph, Sethia has been shown having grown small beard, short moustaches and short scalp hair with aspects on. The recovery had also shown that the accused was having a confirmed ticket for travel abroad in the name of R. K. Dugar with necessary foreign exchange already collected by him on 27-2-1985 and other necessary travel documents to enable him to leave this country with the assumed name of R. K. Dugar.'

(25) I think, the recovery of the passport, air ticket and other documents bearing the name of R. K. Dugar would in itself be sufficient to dismiss the present petition for release of the petitioner on bail. The petitioner had been wanted by the London Police since 8-2-1984 and he was able to evade arrest despite a warrant of arrest having been issued against him, as observed by the learned Addl. Sessions Judge. The petitioner arrived in India on 15-1-1985 when he landed at Bombay. He came to India in the name of Rajendra Singh Sethia. Between this date and March 1, 1985, it-appears, he was able to get a passport in an assumed name of R. K. Dugar, 0a Swissair ticket in this name and had confirmed booking from Indian Airlines from Delhi to Bombay and he had asked for further air booking to Cairo from Bombay. A certificate dated 22-2-1985 of the Punjab and Sind Bank, Lindsay Street Branch, Calcutta, in the name of R. K. Dugar was also recovered during the course of the search of the room in occupation of the petitioner. In this certificate it was stated that R. K. Dugar was having a Saving Bank Account No. 1770 in that branch of the bank and he had a balance of Rs. 24,0001- in that account, A visiting card was also similarly found in the name of R. K. Dugar in which R. K. Dugar was described as Senior Executive of Neelpalm Pvt. Ltd., Calcutta. An amount of Us $ 5001- had also been obtained by means of travelers cheque in the name of R. K. Dugar on the basis of these travel documents. If the petitioner had been able to leave the country on 2-3-1985 it is anybody's guess if at all he could have been found to face the trial. In the passport which is m the name of R. K. Dugar his place of birth has been shown at Ladnun in Rajasthan. Mr. Mathur was at pains explain that all the passports and other documents had been seized by the police and that there was .no possibility of the petitioner leaving the country. I an. afraid I cannot agree. It is the question of the intention and the resources available to a person to leave the country with or without a passport. The petitioner appears to have these resources in plenty and his intention to leave the country even on the basis of forged travel documents is too obvious. The other submission of Mr. Mathur that any conditions could be imposed while granting bail to the petitioner is, thereforee, to my mind, quite irrelevant. In these circumstances, I would also not take notice of the argument of the petitioner that he is a Graduate from the London School of Economics or that he is an income-tax and wealth-tax assessed or that the coaccused is on bail or that there was no possibility of the petitioner tempering the evidence. I also do not accept contention of the petitioner that a great deal of accounts are involved in the present case and for the proper conduct of his defense and to instruct his counsel he should be enlarged on bail. From the charge sheet it does not appear to me that much accounts are involved in the present case. As to whether the case is of civil nature and that no offence is made out would be questions for the trial Judge to decide. The cognizance of the offences mentioned in the charge sheet has already been taken.

(26) While referring to the passport and other documents found in the room in the occupation of the petitioner, I have only taken note of the allegation of the prosecution that these were so recovered and about particulars thereof.

(27) Before concluding, I will take notice of two more decisions of the Supreme Court.

(28) In H. N. Rishbud v. The State of Delhi : 1955CriLJ526 . the Supreme Court was of the view that further investigation is not altogether ruled out merely because cognizance of the case had been taken by the court.

(29) In Gurcharan Singh v. State (Delhi Admn.) AIR 1978 Sc 179 (II), the Supreme Court observed that the two paramount considerations, viz., likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a court of justice, and that it was essential that due and proper weight should be bestowed on these two factors apart from others. There could not be an inexorable formula in the matter of granting bail.

(30) Facts in the present case, particularly the magnitude of the offence and the conduct of the petitioner immediately before his arrest on 1-3-1985, do not justify his release on bail.

(31) The petition is, thereforee, dismissed.


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