Delhi District Court
State vs . Khimji Bhai Jadeja on 22 February, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE
II (NORTHWEST): ROHINI COURTS: DELHI
Bail Application No. 2147
State Vs. Khimji Bhai Jadeja
FIR No. 89/2009
PS EOW Crime Branch
U/s. 420/406/120B IPC
22.2.2014
Present: Sh. Tofeeq Ahmed, Addl. PP for the State.
Sh. Imran Khan Advocate for the applicant/ accused.
This is an application for grant of regular bail under Section
439 Cr.PC filed on behalf of the applicant / accused Khimji Bhai Jadeja.
It is pleaded that the applicant / accused is the peace loving citizen of India
and residing at the given address along with his family and presently is
lodged in Sabarmati Jail, Ahmadabad, Gujrat since the year 2009. It is
submitted that as per the contents of the FIR, the prosecution story is that
in the year 2009 coaccused Ashok Jadeja with connivance of the
applicant / accused had cheated the complaint with the tune of Rs.
1,55,000/ by befooling him that he is having blessing of "Sikodi Mata"
through which he can triple the money within three days and in the same
modus coaccused and applicant / accused cheated the numbers of
persons. It is further submitted that as per the contents of FIR, the cheated
amount of Rs.1,55,000/ was received by the coaccused Ashok Jadedja on
20.3.2009 who is already in JC and the role of the applicant / accused is
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shown to be that of abettor and therefore, his case may be considered on
sympathetic grounds. It is pleaded that the coaccused Basant Lal named
in the aforesaid FIR whose role is similar as the applicant / accused, has
already been granted regular bail on 7.9.2009 by Ms. Bimla Makin the
then Ld. ASJ Rohini. It is submitted that the applicant / accused is in JC at
Sabarmati Jail, Ahmadabad, Gujarat since 2009 and after the unjustified
delay of about 4½ years, the Investigating Officer could not produce the
applicant / accused on the Production Warrants before this court on
12.12.2013 without specifying any reason for the delay. It is submitted
that nothing incriminating was recovered from the possession of the
applicant / accused and the allegations against him are baseless, false and
incorrect. It is submitted that the regular bail application of the
applicant / accused has already been dismissed by the Ld. CMM on
9.1.2014. It is prayed that the applicant / accused is ready to abide all the
terms and conditions imposed by the court and is also ready to furnish the
bail bond as per the satisfaction of the court.
On the other hand the bail application has been opposed by the
State on the ground that the applicant / accused has cheated large number
of investors and the matter is at the initial stages of investigations. It is
alleged that the applicant / accused is one of the promoters of the alleged
Scheme which scheme was pertaining to area of Delhi through this
promotion wherein the victims were allured and induced to invest. It is
further alleged that the applicant / accused Khimji Bhai Jadeja is one of the
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agents of the alleged scheme and he constituted a group namely Bajarang
Group managed for collection of money from the victims in the above
mentioned scheme. As per documents seized by CID, Ahmedabad,
Gujarat, it revealed that he has collected about Rs. 30 Crores from the
victims through the said group namely Bajrang Group in the name of
above mentioned scheme. It is further reported that no cheated money has
been recovered from the applicant / accused who during his custody has
stated that he has used the cheated money for his own purposes. It is also
argued that the applicant / accused Khimji Bhai Jadeja is one of the
beneficiaries of the cheated amount and has not provided the register
maintained for purpose of collecting the money from victims therein he
had made entries of investors in respect to their investment in the scheme.
It is further argued that the applicant / accused has not provided his
permanent address which does not stand verified and the coaccused who
are his own family members are still absconding and evading arrest and
have been declared as Proclaimed Offenders and under these
circumstances there is apprehension that he may also abscond and may not
face trial. Addl. PP for the State has also pointed out that the cheated
amount so collected by the applicant / accused through his group i.e.
Bajrang Group is yet to be recovered.
I have considered the rival contentions. At the very outset I
may observe that in so far as the coaccused Sant Lal is concerned, the
allegations against him are totally different. He is relative of the present
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applicant / accused and only allegations against him were that he had
booked a Tavera in his name by paying cash to the tune of Rs.50,000/
and nothing was recovered from his possession.
In so far as the present applicant / accused is concerned, he is
reported to have cheated as many as 1,852 persons to the tune of Rs.
46,40,28,400/ and complainant of each victim (totalling 1,852 in number)
have been received by the CBT Section / EOW. The present FIR however
relates only to the complaint of one Rajesh but in so far as the other
victims are concerned since similar modusoperandi is alleged to have
been used and the matter is under investigations and the same has been
clubbed.
The allegations against the applicant / accused are serious. The
investigations so far revealed that the applicant / accused is directly
involved in the offence and was the beneficiary of the same. The co
accused who are the family members of the present applicant are still
absconding. In this background when the detailed investigations are still
pending in respect of as many as 1,852 pesons who have been cheated, the
applicant / accused seeks indulgence of this Court on the ground that he is
no longer required for investigations, I am persuaded by the view taken by
the Hon'ble Supreme Court has in the case of Ram Narain Popli Vs. CBI
reported in 2003 1 AD (Crl) SC 253 wherein the Hon'ble Apex Court
observed that :
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"......... The cause of the community deserves better
treatment at the hands of the Court in the discharge
of its judicial functions. The Community or the State
is not a person nongrata whose cause may be
treated with disdain. The entire community is
aggrieved if the economic offenders who ruin the
economy of the state are not brought to book. A
murder may be committed in the heart of moment
upon passions being aroused. An economic offence
is committed with cool calculations and deliberate
design with an eye on personal profit regardless of
the consequence of the community. A disregard for
the interest of the community can be manifested only
at the cost of forfeiting the trust and faith of the
community in the system of administration of justice
in an even handed manner without fear of criticism
from quarters which view white collar crimes with a
permissible eye mindful of damage done to the
national economy and national interest, as was
aptly stated in State of Gujarat Vs. Mohanlal
Jitamalji Porwal and Anr. AIR 1987 SC 1321."
In the above case of State of Gujarat Vs. Mohanlal Jitamalji
Porwal & Anr. reported in AIR 1987 SC 1321 as relied upon herein
above, the Hon'ble Apex Court had observed that :
"............ The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to book. A murder may be
committed in the heat of moment upon passions
being aroused. An economic offence is committed
with cool calculation and deliberate design with an
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eye on personal profit regardless of the consequence
to the community. A disregard for the interest of the
Community can be manifested only at the cost of
forfeiting the trust and faith of the Community in the
system of administration of justice in an even
handed manner without fear of criticism from the
quarters which view white collar crimes with a
permissive eye unmindful of damage done to the
National Economy and National Interest......"
Taking a note of these concerns expressed by the Hon'ble Apex
Court, I may observe that when the Country is facing huge economic crisis
on account of numerous scams which are having a disastrous impact on
the state efforts to stabilize the economy of the country, then under the
given circumstances the social and economic offences stand on a much
graver footing in respect of punishment and a serious view has to be taken
of such offences which show a distressingly growing tendency. If serious
economic offence is alleged to be committed by the applicant/ accused
which adversely affects the public and society at large, then discretion
cannot be exercised, for if such offences are viewed lightly, then the
confidence of the public in the Institution of Justice would be shaken.
During hearing of the bail application, it was brought to the
notice of this court and so also reflected from the response filed by Sh. S.
D. Mishra, DCP, EOW that in so far as the present FIR is concerned, it has
been registered on the complaint of one Rajesh but in so far as the other
1,852 victims are concerned, their cases have also been clubbed with the
St. Vs. Khimji Bhai Jadeja, FIR No. 89/09, PS EOW (Crime Branch) Page No. 6 of 14
present case on the pretext that all the victims have been cheated in
pursuance to same conspiracy, deception and dishonest inducement on
account of which no separate FIRs are being registered nor separate
charge sheets are being filed. This does not appear to be the correct legal
position and the manner in which a single charge sheet has been filed by
clubbing the cases of all the victims in one FIR by showing them as one
transaction, is in violation of existing statutory law of the land and also the
law laid down by the Hon'ble Supreme Court. Sh. S. D. Mishra, DCP
(EOW) who has taken this stand was heard on this aspect and directed to
place before this court the stand of the department in this regard.
I fail to understand how the punishment of a person irrespective
of whether he commits one offence (by cheating one investor) or a series
of offences (by cheating different investors of different amounts at
different points of time and at different places), can be the same (i.e. the
maximum as provided for the single offence). Going by the interpretation
which Sh. S.D. Mishra DCP (EOW) this appears to be his logic and
according to him, it does not matter whether the accused cheats one person
or millions all over the country. His main concern, it appears is to take
care of his own logistics being totally unconcerned with the unholy gains
to the accused or the extent of losses caused to the innocent victims all
over the country. He logic is completely devoid of the rationale of the
concept of Proportionality of Punishment as enshrined in the Code of
Criminal Procedure. Even otherwise, when this specific controversy with
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regards to the joinder of cause of action has already been specific put to
rest by the Hon'ble Apex Court in the year 2001 in the case of Narinderjit
Singh Sahni & Anr. Vs. Union of India & Ors., reported in AIR 2001
(SC) 3810 [also relied upon by the Delhi High Court in the case of Mohd.
Shakeel Vs. State Crl. MC No. 3374/2008 dated 17.12.2008 and Anil
Kumar Jain Vs. GNCT of Delhi W.P. (Crl.) No. 1486/10 & Crl. MA
15640/10], how then can Sh. S.D. Mishra - DCP (EOW) be permitted to
question this logic of the Hon'ble Apex Court and to reagitate this issue
by putting forth his own interpretation over and above the law as declared
by the Hon'ble Apex Court as aforesaid. In the case of Narinderjit Singh
Sahni & Anr. Vs. Union of India & Ors. (Supra) where the accused
person belonging to the Finance Company had in pursuance to a single
conspiracy are stated to have floated a Company and cheated a large
number of depositors by luring the investors and promising them high
returns, it was held that each offence of cheating would constitute a
separate offence and each individual deposit agreement shall have to
be treated as an individual transaction brought about by the
allurement of the said companies because the parties who have been
cheated were different, the amount of deposit was different, the period
for which the deposit was affected was different and all this had the
characteristics of independent transaction and hence this concept of
maximum punishment of seven years for a single offence cannot be
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pressed into service by the accused for seeking relief. The Hon'ble
Three Judges Bench of the Apex Court comprising of Hon'ble Mr.
Justices G.B. Pattanaik, U.C. Banerjee and S.N. Variava were very
categorical and specific in this case of Narinderjit Singh Sahni & Anr.
Vs. Union of India & Ors. (Supra) when it dealt with this issue and
observed that the act of cheating each individual constituted a separate
offence being a separate transaction and hence the act of cheating other
depositor/ investors would constitute a separate offence for each of the
said act. I quote and reproduce the relevant observations as under:
"........ As regards the issue of a single offence, we are
afraid that the factsituation of the matters under
consideration would not permit to lend any credence to
such a submission. Each individual deposit agreement
shall have to be treated as separate and individual
transaction brought about by the allurement of the
financial companies, since the parties are different,
the amount of deposit is different as also the period for
which the deposit was effected. It has all the
characteristics of independent transactions and we do
not see any compelling reason to hold it otherwise. The
plea as raised also cannot have our concurrence...."
Another Three Judges Bench of the Hon'ble Apex Court
comprising of Hon'ble Mr. Justice B.N. Kirpal (CJI), Hon'ble Mr.
Justice K.G. Balakrishnan and Hon'ble Mr. Justice A. Pasayat again
had an occasion to reexamine this issue in the year 2002 while dealing
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with the case of State of Punjab & Anr. Vs. Rajesh Syal, reported in AIR
2002 (SC) 3687 wherein it reaffirmed the view taken in the earlier case of
Narinderjit Singh Sahni & Anr. Vs. Union of India & Ors. (Supra) while
observing:
"....... In the present case, different people have alleged
to have been defrauded by the respondent and the
Company and therefore each offence is a distinct one and cannot be regarded as constituting a single series of facts/ transaction......"
The Director of Prosecution who was requested to assist this Court on this legal issue was also heard and both Sh. Vishnu Saran the Director Prosecution and the Addl. PP for the State have submitted that they do not agree with the logic and interpretation given by Sh. S.D. Mishra DCP (EOW) and stand by the statutory law as provided under Section 218, 219, 220, 221 and 222 Cr.PC and also by the law declared by Hon'ble Supreme Court in the following cases:
1. Anil Kumar Jain Vs. State, W.P. (Crl) No. 1486/10 & Crl. MA 15640/10.
2. State of Punjab & Anr. Vs. Rajesh Syal, reported in AIR 2002 (SC) 3687.
3. Narinderjit Singh Sahni & Anr. Vs. Union of India & Ors., reported in AIR 2001 (SC) 3810.
4. Mohammad Shakeel Vs. State, Crl. MC No. 3374/2008 dated 17.12.2008.
St. Vs. Khimji Bhai Jadeja, FIR No. 89/09, PS EOW (Crime Branch) Page No. 10 of 14 Sh. S. D. Mishra, DCP, EOW was permitted to be assisted by Sh. Rajeev Mohan, Addl. PP and he has most adamantly taken a stand contrary to above stand of the Director Prosecution/ Addl. PP both of whom are appearing for the State. Sh. Rajeev Mohan has submitted that he has been instructed by the DCP (EOW) to inform that while registering a single FIR for such like cases and filing a single chargesheet they are placing their reliance on the following decisions of the Delhi High Court and also of the Hon'ble Supreme Court:
1. State Vs. Ramesh Chand Kapoor, Crl. MC No. 1369/10 & Cr. MA 5514/10 dated 30.8.2012.
2. T. T. Antony Vs. State of Kerala, Appeal (Crl.) 689 of 2001.
3. Amitbhai Anilchandra Shah Vs. CBI & Anr., Writ Petition (Crl.) No. 149 of 2012 and 5 of 2013.
Having heard the detail submissions on the above aspect and I find that the stand taken by Sh. S. D. Mishra, DCP, EOW through Sh. Rajeev Mohan, Addl. PP which he claims is the official stand of his department which I seriously doubt is devoid of logic and rationale. I say this, because neither the department has made this claim in writing nor there is any explanation forthcoming on the aspect as to why then the Department is filing separate charge sheets by clubbing three transactions i.e. the cheating committed on three investors in the same year in many cases which are pending in various courts and are also within the knowledge of the Director Prosecution as well as this Court. Needless to St. Vs. Khimji Bhai Jadeja, FIR No. 89/09, PS EOW (Crime Branch) Page No. 11 of 14 say, such a stand is totally whimsical and arbitrary. What I find is, that this is being done selectively in handpicked cases perhaps as a matter of convenience. While in some cases multiple FIRs are being recorded followed by filing of separate charge sheets whereas in others there is an adamant refusal to follow this procedure (as has happened in the present case). It is this selective application of statutory law as well as the law declared by the Hon'ble Supreme Court by the Investigating Agency which is highly questionable and which this Court cannot ignore. I may observe that in so far as the case of T. T. Antony Vs. State of Kerala (Supra) and Amitbhai Anilchandra Shah Vs. CBI & Anr. (Supra) is concerned they are on totally different facts relating to offences against human body were different versions in respect of the same incident had reportedly surfaced in which background the Hon'ble Supreme Court was of a view that it constituted one transaction and hence no separate FIRs were required and hence this would not apply to the economic offences as the one in the present case. Further, in so far as the judgment in the case of State Vs. Ramesh Chand Kapoor (Supra) of Delhi High Court is concerned, I may observe that reliance in the said case had been placed by the Hon'ble Judge on the judgment in the case of S. Swaminathnam Vs. State of Madras reported in AIR 1957 SC 340 which was placed before the Hon'ble Court by the Standing Counsel which the Standing Counsel did by concealing the direct and specific view taken by the Hon'ble Apex Court later in the cases of Narinderjit Singh Sahni & Anr. Vs. Union of St. Vs. Khimji Bhai Jadeja, FIR No. 89/09, PS EOW (Crime Branch) Page No. 12 of 14 India & Ors., reported in AIR 2001 (SC) 3810 and State of Punjab & Anr. Vs. Rajesh Syal, reported in AIR 2002 (SC) 3687. Even otherwise, Swaminathnam case was on totally different set of facts altogether and in view of the direct judgments of the Hon'ble Apex Court on the issue of equivalent Bench, the same is not binding.
It is this, which has made it obligatory for the court of law to step in so as to ensure that corrective measures are taken in this regard by placing the said violation before the competent authorities. No Institution worth the name can afford to violate the law of the land to suit the departmental convenience by exhibiting gross indifference to the rights and interests of the innocent victims and by adopting a stand which rather suits the alleged wrong doers/ violators which is being done by grossly ignoring the concept of Proportionality of Punishment as provided under law.
In so far as the accused is concerned, a total number of 1,852 victims have been cheated so far (whose complaints are reported to have been received) and the investigations conducted so far reveal that the cheated amount runs into Rs.46,40,28,440/ (Rs. Forty Six Crores, Forty Lacs, Twenty Eight Thousand, Four Hundred and Forty) which amount is yet to be recovered. The other coaccused who are his family members are absconding. Hence, in this background, no indulgence can be granted to the applicant / accused Khimji Bhai Jadeja and his bail application is hereby dismissed.
St. Vs. Khimji Bhai Jadeja, FIR No. 89/09, PS EOW (Crime Branch) Page No. 13 of 14 Vide a separate proceedings, a Reference is being drawn and forwarded to the Hon'ble Delhi High Court for necessary action in accordance with law.
Before I end, I place on record my gratitude and appreciation for the Director Prosecution Sh. Vishnu Saran for giving his valuable assistance to this court on the point of law involved. Sh. Vishnu Saran has also submitted that he at his own level shall convey to the Commissioner of Police the concerns expressed by this Court with regard to the selective application of law by his officers as noted herein above for his intervention and corrective action at his end.
Announced in the open court (Dr. Kamini Lau) Dated: 22.2.2014 ASJ/NWII, ROHINI St. Vs. Khimji Bhai Jadeja, FIR No. 89/09, PS EOW (Crime Branch) Page No. 14 of 14