Allahabad High Court
J.M.P. Khanna vs State Of U.P. And Another on 19 December, 2023
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:240710 Reserved Court No. - 78 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37040 of 2023 Applicant :- J.M.P. Khanna Opposite Party :- State of U.P. and Another Counsel for Applicant :- Somya Chaturvedi,Sr. Advocate Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav WITH Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37510 of 2023 Applicant :- Monica Dhawan Opposite Party :- State of U.P. and Another Counsel for Applicant :- Somya Chaturvedi,Sr. Advocate Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav WITH Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39567 of 2023 Applicant :- Charu Khanna Opposite Party :- State of U.P. and Another Counsel for Applicant :- Subir Lal,Swetashwa Agarwal Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav Hon'ble Raj Beer Singh,J.
1. All the above referred three bail applications pertain to one and the same case and the case of all the applicants is similar thus, these bail applications are being decided by this common order.
2. These bail applications have been moved on behalf of the applicants in F. I. R. dated 24.4.2023, bearing No. RC 216/2023/A0004, Police Station-CBI/AC-I, New Delhi, under Sections-7/8/9/10/12 of P. C. Act and Section-120-B IPC with prayer to enlarge the applicants on bail during trial.
3. Heard Sri G.S. Chaturvedi learned Senior Advocate, assisted by Ms Somya Chaturvedi and Sri Swetash Agarwal, learned counsel for the applicants and Sri Gyan Prakash learned Deputy Solicitor General along with Sri Sanjay Yadav learned counsel for Central Bureau of Investigation (CBI) and perused the record.
4. According to prosecution version, an information was received by Central Bureau of Investigation (hereinafter referred as CBI) that Sri Ramit Lala, General Manager, Broadcast Engineering Consultants India Limited, a Central Public Sector Enterprise of Government of India (hereinafter referred as BECIL) under Ministry of Information and Broadcasting, is indulging in corrupt practices in collusion with unknown officials by extending favours to private companies in tender process and expeditious payment of their pending bills in exchange of huge bribe money from the representatives of such private companies. In that process information was developed that Ms Monica Dhawan, Managing Director of M/s Fusion Corporate Solution Private Limited, Gurgaon (hereinafter referred to the said 'FCSPL') along with her sister Charu Khanna, Business head, and her father Mr J. M. P. Khanna, also a director of the said company, is pursuing various tenders of the different ministries and government departments floated by BECIL and for clearing their pending bills for the already executed works awarded by the BECIL. As per information, Ms. Monica Dhawan approached Ramit Lala for favours in getting work orders. On 17.4.2023 Ramit Lala enquired from Ms. Monica Dhawan about pending bills of her company with BECIL and he asked her for a meeting. On 19.4.2023 Ramit Lala asked Ms. Charu Khanna to meet him in Delhi and later Ms. Charu Khanna informed Ramit Lala that amount could not be arranged. On 24.4.2023 the CBI came to know that Ms. Charu Khanna has told her sister Monica Dhawan that Ramit Lala is pestering her for payment of amount and she is tired of making excuses and she asked her father to arrange the money and that one Vishnu, driver of Charu Khanna, was asked to deliver bribe amount to Ramit Lala at his office. On the basis of these facts, a regular case was registered by the CBI.
On receipt of above information that driver Vishnu was likely to deliver the bribe amount to Ramit Lala at his office, a trap team, including two independent witnesses, was constituted and while the CBI team was on the way, the source informed that a packet containing bribe amount has been delivered by driver Vishnu Bahadur Bika to Ramit Lala near his office and thereafter the trap team was divided into two parts and one of the team apprehended Vishnu Bahadur Bika at Yamuna bridge near Akshardham temple, New Delhi, who disclosed that he has delivered a packet containing cash to Ramit Lala under instructions of Monica Dhawan. Meanwhile Ramit Lala was also located at the 'Weekend Wine and More' in Sector 101 NOIDA by second team and on his disclosure, the said packet containing bribe amount of Rs. two lacs was recovered from the car of Nishant Malhotra (a friend of Shri Ramit Lala) and on the envelope word "Ramit Ji 8130190438" was found written. It was also also alleged that one packet was recovered from the bag of Vishnu Bahadur Bika, which was containing cash to the tune of Rs. 3,00,000/- (Three lacs) and on the envelope a hand written note "George" was found written on the packet.
The basis of above information is that the CBI has put the mobile phone numbers of accused persons namely, Ramit Lala, Monica Dhawan, Charu Khanna and Vishnu Bahadur Bika on interception after due approval of competent authority and on the basis of conversation of the said phone calls and whats-app messages, it was revealed that accused persons have talked about processing of expeditious payment or to schedule meeting places, demand of bribe by accused public servant and arrangement of same by accused private persons. Investigation also revealed incriminating whatsApp messages amongst the accused Monica Dhawan and Ramit Lala. It was also revealed that 'FCSPL' is one of the 19 empanelled agencies for social media work in BECIL and total number of 10 projects/work/event work were awarded to that company by BECIL.
It was revealed that on 03.01.2023 total 38 invoices aggregating to Rs. 5.31 Crores under 09 projects were outstanding in account of 'FCSPL' with BECIL, out of which 20 invoices aggregating to Rs. 3,73,38,709/- were processed and passed by BECIL for payment to the said company. Investigation has revealed a pattern of payment showing that the invoices for above payments were forwarded by Sri Ramit Lala to George Kuruvilla after Ms. Monica Dhawan contacted them and pursued for release of payments, wherein hints of bribes were made and consequently payments were released after such calls. In the charge-sheet details of several telephonic calls amongst accused persons and WhatsApp messages have been referred and it was concluded that Ramit Lala and George Kuruvilla entered into a criminal conspiracy with Monica Dhawan, Charu Khanna and JMP Khanna and Vishnu Bahadur Bika with the object to accept illegal gratification as reward for facilitating release of payments against bills / invoices submitted by the 'FCSPL' under various projects awarded by Government / Ministries. In pursuance to the said criminal conspiracy Ramit Lala and George Kuruvilla accepted / agreed to accept illegal gratifications from Monica Dhawan, Charu Khanna, JMP Khanna and Vishnu Bahadur Bika and in this way applicants Monica Dhawan, Charu Khanna, J. M. P. Khanna and Vishnu Bahadur Bika offered bribes and abetted the accused public servants to accept the same in lieu of releasing the payments to the said company.
5. Learned Senior Advocate appearing for applicants-accused Monika Dhawan, Charu Khanna, J.M.P. Khanna submitted that the applicants are innocent and they have been falsely implicated in this case and there is no credible evidence against them. The prosecution case is based on undisclosed source information, which has no sanctity or credibility in the eyes of law. No one has made any complaint to the CBI and the prosecution case is based on recording of mobile calls and whats-app messages. It was submitted that the stray whats-app messages taken on record by the CBI merely reveal that applicants were merely pursuing the payment of amount due upon respective departments for long time. Except the confessional statement of accused persons, there is no evidence against the applicants.
6. It was submitted that the investigating agency, despite being aware through alleged source information, that co-accused Vishnu Bahadur Bika is going to deliver alleged bribe amount to co-accused Ramit Lala, the C. B. I. did not apprehend said co-accused Vishnu Bahadur Bika and Ramit Lala while exchanging alleged kick-back of Rs two lacs. As per prosecution version alleged bribe amount of Rs two lacs was recovered from the car of one Nishant Malhotra. It is doubtful whether the investigating agency has sought requisite approvals prior to intercepting her personal phones calls and accessing the whats-app messages which amount to infringement of right to privacy, which is a part of right to life guaranteed under article 21 of Constitution of India. The CBI completely failed to collect any evidence which could demonstrate that the tenders awarded to company M/s Fusion Corporate Solutions were given by adopting any corrupt practice or by changing criteria. To pursue for expeditious payment of pending bills is a normal matter for any company for running any business and the same would not make the applicants culpable. It is further submitted that there is a complete mechanism for any payments to be made by the to the private companies for the work done by them. Referring to the procedure, it was submitted that a number of departments of BECIL, like Technical team and finance and accounts division are involved and after examination of the invoices and recommendation from concerned G.M. / D.G.M / AGM, payment is released upon approval of C.M.D.. The aforesaid procedure of payment of bills has not been bypassed at any stage in the matter of disbursement of pending bills pertaining to the company M/s Fusion corporate solutions Private Limited.
7. It was further submitted that once the CBI could not collect any evidence to the effect that any undue advantage was extended with an intention to perform public duty improperly or dishonestly and thus, no charge under section 7 of the P.C. Act could sustain. There is nothing on record that applicants have paid any bribe or promised to pay any amount so as to seek any undue advantage from public servant with intention to induce a public servant to perform public duty improperly and that no offence under Sections- 9, 10 and 12 of P.C. Act is made out against applicants. The investigating agency failed to collect any credible evidence of agreement or meeting of minds or any act of entering into agreement for doing an illegal act and thus, no case under section 120-B IPC is made out. After arrest of applicants, they were remanded to police custody for a sufficient long period and they co-operated with the investigating urgency and that no recovery of any substantial incriminating article has been effected from applicants. Referring to facts of the matter it was submitted that no prima facie case is made out against applicants.
8. It was further submitted that without collecting any independent or cogent and credible evidence against applicants, the CBI proceeded to submit charge-sheet in the matter on 22.06.2023 for offence under section 120-B IPC and section section 7, 8, 9, 10 and 12 of P.C. Act. In fact it is an in-complete charge-sheet which was hurriedly submitted by CBI against applicants and co-accused persons without even obtaining the sanction of prosecution against the co-accused / who are public servants. Upon submission of the charge-sheet on 22.06.2023, the learned Special Judge, Ghaziabad did not take cognizance as there was no sanction of prosecution of co-accused Ramit Lala and George Kuruvilla and the case was fixed for 26.06.2023 for consideration on point of cognizance but again the CBI could not produce sanction order and since then the matter is being adjourned again and again for consideration on the issue of taking cognizance but the cognizance has not been taken so far and that the applicants-accused are being confined in jail without commencement of trial. It was pointed out that after submission of the charge-sheet, the trial court cannot remand the applicants-accused to judicial custody under section one 167 Cr. P. C., whereas Section 309(2) CrPC applies after cognizance is taken. It was submitted that incomplete charge-sheet was filed in order to defeat the right of getting default bail prescribed under section 167(2) CrPC.
9. It was further submitted by learned Senior Advocate that applicant-accused Monica Dhawan is one of the director of M/s FCSPL and the allegation against her is that she along with her father and sister was pursuing various standards of different ministries and government departments floated by be BECIL for clearing their pending bills for the already executed work awarded by the BECIL. She remained in police custody remand of 13 days and she was confronted with various documents and she has fully co-operated during investigation. The prosecution case is based on documentary and electronic evidence and she is no in a position to temper with evidence. The investigation is complete and charge-sheet has already been filed. The applicant-accused Monica Dhawan is a 46 years old lady and she has a eleven years old daughter and she is suffering from several ailments and that she in custody since 25.04.2023.
10. Similarly, regarding applicant-accused J. M. P. Khanna, it was submitted that he is father of co-accused Monica Dhawan and Charu Khanna and he is one of the director of M/s FCSPL and only allegation against him is that he along with his two daughters was pursuing for the payments of the bills of the company for the work already executed. No specific overt act of commission or omission has been attributed to him. No recovery of any incriminating article has been made from him. It was submitted that he is 74 years old person suffering several old age related ailments and on the night of 27/28.04.2023, he had to be taken to the hospital for heart related issues. In view of critical condition of applicant-accused J.M.P. Khanna, the lack of proper medical care and personal attention may result in to multi organ failure and his condition may deteriorate. The wife of applicant is dependent upon him and that he is in custody since 25.04.2023.
11. Regarding applicant-accused Charu Khanna, it was submitted that she is not a beneficiary of any transaction, in as much as she is merely a salaried employee of the company. There is no evidence that the applicant-accused has given alleged bribe amount to co-accused Vishnu (driver). Said co-accused Vishnu is not the employee of the applicant-accused but of the company. It was submitted that the investigation is already complete and applicant-accused Charu Khanna is a highly educated lady and she languishing in jail since 25.04.2023.
12. Per contra, Learned Dy. Solicitor General has opposed the bail applications and submitted that the applicant-accused Monika Dhawan is Managing Director of M/s Fusion Corporate Solution Pvt Ltd and in conspiracy with co-accused persons, she has handed over two packets containing bribe amount of Rs. two lacs and three lacs to co-accused Vishnu Bhadur Bika, who on the direction of applicants-accused, has handed over the packet containing Rs. two lacs to the co-accused Ramit Lala. Said amount of Rs. two lacs was recovered at instance of co-accused Ramit Lala from the car of one Nishant Malhotra. Another packet containing Rs. three lacs was recovered from co-accused Vishnu Bahadur Bika, which was sent by applicant Monika Dhawan for payment to co-accused George Kuruvilla. The scrutiny of intercepted calls show that co-accused Ramit Lala, the officiating GM, BECIL, demanded illegal gratification from applicant-accused Monika Dhawa, Charu Khanna and Vishnu Bahadur Bika on behalf of M/s Fusion Corporate Solutions Pvt. Ltd. During investigation 57 phone calls were intercepted by investigating agency, which clearly show involvement of the applicants-accused. The investigation revealed that after 03.01.2023, a total number 38 invoices aggregating to Rs. 5.31 crores under nine projects were outstanding in account of M/s Fusion Corporate Solutions Pvt Ltd, out of which 20 invoices aggregating to Rs. 3,73,38,709/ were processed and passed by BECIL for payment to M/s Fusion Corporate Solutions Pvt Ltd and the pattern of payment shows that payment were cleared, wherein hint of bribe were made. Referring contents of WhatsApp conversation between applicants-accused and co-accused Ramit Lala and George Kuruvilla, it was submitted that the payments of bills of accused company FCSPL were being cleared by adopting corrupt practices. The said conversation gives an indication that the applicants-accused have paid bribe for clearance of the payments due to the FCSPL. The contention that the phone calls were intercepted by the CBI without requisite approval from competent authorities is wholly false. It was submitted that if the co-accused Ramit Lala and George Kuruvilla were pressurizing the applicants-accused to pay kick-back for clearance of their bills, the applicants must have informed the concerned authorities as per law but they did not give any such information and thus they were equally involved in corrupt practices. Being Director of the FCSPL, the applicants-accused are beneficiary of the same. It was submitted that after collection of evidence, charge-sheet has been submitted against the applicants-accused. Merely because the sanction of prosecution regarding co-accused Ramit Lala and George Kuruvilla has not been submitted so far, it can not be termed as incomplete charge-sheet. In this connection learned counsel has referred case of Suresh Kumar Bhikamchand Jain Vs State of Maharashtra and Serious Fraud Investigation office V Rahul Modi MANU/SC/0156/2022. Learned counsel for CBI submitted that in view of serious allegations, the applicants-accused are not entitled for bail. Learned counsel for CBI has placed reliance upon case of Neeraj Dutta V State AIR 2023 SC 330 and it was submitted that sincere efforts must be made so that the corrupt public servants are brought to book and convicted. The Case of A. B. Bhaskara Rao Vs C. B. I. (2011) 10 SCC 259 was also referred and it was submitted that in view of serious allegations, the applicants are not entitled for bail.
13. I have considered rival submissions and perused the record.
14. Perusal of record shows that applicant - accused Monika Dhawan is managing director, applicant accused Charu Khanna and J.M.P. Khanna are director of FCSPL. The essence of prosecution version is that they were involved in payment of illegal gratification to co-accused Ramit Lala and George Kuruvilla, who were working as in-charge General Manager and C.M.D. of BECIL respectively, for clearance of the bills/ release of payments against contract work executed by FCSPL. As per prosecution, on 24.04.2023 applicant-accused Monica Dhawan has given a packet containing amount of two lacs to her driver co-accused Vishnu Bahadur Bika for delivery of the same to co-accused Ramit Lala, and consequently he has delivered the same to co-accused Ramit Lala at his office. It was shown that despite prior information, the CBI did not apprehend them at the time of alleged delivery of kick-back amount to co-accused Ramit Lala. On the same day co-accused Ramit Lala was apprehended near a restaurant 'Weekened Wine and more' and recovery of alleged amount of Rs two lacs was shown from the car of one Nishant Malhotra. As per prosecution one packet containing cash of Rs. three lacs was recovered from the car of co-accused Vishnu Bahadur Bika and this packet was sent by the applicants for delivery to co-accused George Kuruvilla. Essentially, the case of prosecution is based on contents of mobile phone calls of accused persons and their Whats-App messages. There is no direct evidence. As per prosecution, co-accused Ramit Lala and George Kuruvilla were involved in award of various contracts to accused company FCSPL for illegal gratification but no specific evidence could be shown to support said allegations. Regarding clearance of bills of accused company FCSPL, it was alleged that pattern of release of amount to the said company gives a hint that various bills were cleared after receipt of kick-back. The investigation in respect of applicants-accused is complete and charge-sheet against applicants and co-accused persons was submitted on 22.06.2023 but it was shown that no cognizance has been taken so far, due to the reason that the investigating agency failed to produce sanction of prosecution in respect of co-accused Ramit Lala and George Kuruvilla. In this connection case of Ritu Chhabria V. UOI LAWS (SC) 2023 was referred. The applicant -accused namely Monica Dhawan and Charu Khanna are women and applicant-accused J.M.P. Khanna is stated 74 years old person, suffering from several ailments. The applicants are not in position to temper with evidence. The applicants-accused are in custody since 25.04.2023 and thus, they have already undergone the detention of about seven and half month and the trial is yet to start and even cognizance has not been taken so far. Considering submissions of learned counsel for parties and above referred facts of the matter, a case for grant of bail to applicants-accused is made out.
15. Let the applicants J.M.P. Khanna, Monica Dhawan and Charu Khanna, involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned subject to the following conditions:
i. The applicants will not tamper with the evidence during trial.
ii. The applicants will not pressurize/intimidate the prosecution witnesses.
iii. If the applicants hold passports, the same be surrendered before the trial Court and they would not leave India without permission of trial Court. iv. The applicants will appear before the trial court on the date fixed, unless personal presence is exempted. v. The applicants will not try to contact, threat or otherwise influence the complainant or any of the witness of the case.
16. In case of breach of any of the above conditions, the court concerned shall be at liberty to cancel the bail of applicants, in accordance with law.
Order Date: 19.12.2023.
HR