Gujarat High Court
Sumit Suresh Bhatnagar vs Central Bureau Of Investigation on 18 June, 2019
Equivalent citations: AIRONLINE 2019 GUJ 261
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/8435/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 8435 of 2019
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SUMIT SURESH BHATNAGAR
Versus
CENTRAL BUREAU OF INVESTIGATION
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Appearance:
LD SR ADV MR S V RAJU WITH LD ADV MR VIRAT G POPAT(3710) for the
Applicant(s) No. 1
LD SPL.P.P. MR RC KODEKAR(1395) for the Respondent(s) No. 1
MS M D MEHTA, ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s)
No. 2
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 18/06/2019
ORAL ORDER
1. This is a successive bail application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code'), the petitioner is allegedly involved in connection with R.C. No. RC0292018A0006 dated 26.03.2018 registered with CBI/ACBGandhinagar for the offences punishable under Section 120B r/w. Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 and Section 13 (2) r/w. Section 13 Page 1 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER (1)(d) of the Prevention of Corruption Act, 1988, investigated by the Central Bureau of Investigation (C.B.I.). The applicant had earlier also preferred bail application being Criminal Misc. Application No. 11793 of 2018. This Court on 20.12.2018 had directed the Investigating Officer to submit the report of further investigation on 08.01.2019, since after filing of chargesheet, C.B.I. continued to further investigate the matter. It was also directed that the Investigating Officer shall aim to complete the investigation on or before 30.01.2019 and further request on this count shall not be entertained. The C.B.I. since had desired more time, this Court without expressing any opinion on the merits of the case, on 05.02.2019 had granted liberty to the applicant to approach this Court after three months, since further investigation which was going on was likely to be over.
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R/CR.MA/8435/2019 ORDER
2.The brief facts as alleged in the F.I.R. are as follows:
2.1. The Company viz. Diamond Power Infrastructure Limited, Vadodara (hereinafter referred to as 'the Company') had obtained borrowings from different banks, although, the Company had appeared in the defaulter list of the Reserve Bank of India (R.B.I.). It is also alleged by the prosecution that the actual turnover of the company was much less than the projected turnover and the false statements and documents were created so as to avail more drawing power under cash credit facilities.
2.2. The letters of credit by the bank were issued in favour of sister concern of the company without following R.B.I. Guidelines. The company also gave loan worth of Rs.16.70 Cr. and Rs.32.96 Cr. to the associates, relatives and family Page 3 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER members. It is also further alleged that the company without the permission of the bank had opened the account outside the consortium and the receivable which should have been repaid in clearing the dues, were diverted in those accounts.
2.3. It is the say of the applicant that the loan transaction is a genuine transaction dehors any fraud or criminality. The company is one of the largest cable and conductor manufacturers in India and is in the said business since 1971. The company has incurred an accumulated loss of over Rs.1,500 Cr. in last 20 quarters (five years), which was not on account of alleged act of any fraud committed by the directors. However, the expansion plant of the company to expand its conductor manufacturing capacity and an ancillary unit at Baroda, Gujarat was to be established, for which, a consortium of Page 4 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER Banks led by the Bank of India advanced the finances. It is the say of the applicant that due to slowdown of the domestic economy as well as delayed realization of receivables, there was a mismatch of cash flow. The company had faced financial distress in the year 2014 2015. It was emphasized repeatedly that it is not the allegation in the F.I.R. that company wanted to defraud the bank. On the contrary, the account was regular till 2014, however, in view of depressed market scenario and nonrealization of the funds envisaged, the company had suffered heavily in revenue generation and could not achieve the result as expected. It is urged that, due to (i) increase in key raw material prices, (ii) delayed expansion leading to cost and time over run, (iii) lack of adequate working capital, (iv) elongated working capital cycle, and (v) delayed realization of receivables, there Page 5 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER was liquidity constraint faced by the company.
2.4. It is also the say of the applicant that there was no question of fund diversion and from the year 2013 till 2018, lenders had only released fresh banking limits and not a single rupee extra has been released and kept the account standard. The company from the year 2013 had already paid Rs.1057 Cr. as interest and banking charges and Rs.900 Cr. on closely monitored expansion project. The funds were never given to the company in post 2013 period and merely interest recovery has been pressed. The company also faced according to the applicant, a cash drain out of over Rs.740.82 Cr. in the form of PV, penalties, retentions and other issues related to execution of ongoing and past supplies.
2.5. It is the case of the applicant that due Page 6 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER to insistence of the directors/promoters of the company in the year 2014, a joint lenders' forum was formed to restructure and to give additional funds to the company. The Joint Lenders' Forum insisted and investigated forensic audit to be carried out in the affairs of the company and the Banks which are part of the consortium, appointed one T.R. Chhadha & Co. for carrying out the forensic audit of the company. According to the applicant, after a thorough inquiry, a report was prepared by the auditor indicating that there was no diversion of fund or any other issue which would suggest any fraud has been committed by the company or its promoters. The consortium of the bank has also accepted the said audit and had not questioned the same at any time and at any stage. An independent evaluation committee headed by representative of different institutions including Accountants, Page 7 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER Engineers and Company Secretaries had supervised the said audit and approved the restructuring. Thus, indicates that there was no question of illegality or irregularity in relation to the management of the company was ever found by the auditors who were appointed by the Bank. 2.6. The Bank has also carried out further statutory annual audit by appointing KPMG and A.K. Yadav Company. That the said audit does not indicate any fraud or irregularity in the company. The Bank had also appointed simultaneously concurrent auditor who carried out audit till December, 2016. It is thus the say of the applicant that allegations with reference to the alteration or variation in stock statements are false. That Ruby Cables Ltd. is not a group company or sister concern of the DPIL. It is standard operating procedure for every Bank to take Page 8 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER a credit information report on the supplier on whom the LC is to be opened. The allegation with regard to the investments and unsecured loans being given does not concern the funds given by the bank. These funds were raised through a private equity investment done by M/s. Clear Water Capital Partner in 2006, which was prior to two years to even securing any loan from the Banks and not from the borrowings.
2.7. The allegation of opening accounts outside consortium, the Bank of India unilaterally started deducting 2% of the receipt of the revenue and was not sharing the same with other lender. An objection by the lender to this act was raised and for keeping up management of the company unit in operation and pay power bill, salary and other business payments, the said funds were utilized.
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R/CR.MA/8435/2019 ORDER 2.8. Moreover, it is urged that the aluminum price from Rs.88 per kg went upto Rs.140 per kg, which is almost 60% high and the company had to perform all the contracts upon the rates which were already given to the vendors. That the company had incurred huge losses in genuinely performing the contracts and in such process, the company had lost more than Rs. 600 Cr. All the details have been submitted to the concerned bank and also undergone through forensic audit at different levels and at different stages.
2.9. In the State of Gujarat, there is no undertrial prisoner for C.B.I. The C.B.I. Court record indicates that 20 years' old cases are still pending, and therefore, C.B.I. has not exercised the powers of arrest in most of the cases. There is no possibility of disposing of the trial within a reasonable time, and therefore, Page 10 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER statutory right guaranteed under Article 21 of the Constitution would require also the grant of bail. There are more than 100 witnesses and 5000 documents which will take years to complete the trial.
3.Affidavitinreply has filed by the respondent-C.B.I. urging that the present application is not maintainable. According to the C.B.I., on the basis of reliable source of information, a case came to be registered by CBI, ACB, Gandhinagar against M/s. Diamond Power Infrastructure Limited (DPIL), Vadodara, the founder of which is Shri Suresh Narain Bhatnagar and Managing Director of the said company is Shri Amit Suresh Bhatnagar and Joint Managing Director, Shri Sumit Bhatnagar. The present applicant is the Managing Director of the company. The searches came to be conducted at the premises on 05.04.2018, however, the applicant did not join the investigation, despite the service Page 11 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER of notice under Section 41A of the Code of Criminal Procedure. The applicant was arrested on 18.04.2018 and was also granted police custody remand till 27.04.2018 and thereafter till 30.04.2018 and thereafter, till today, he is in judicial custody. The applicant has filed his application under Section 439 of the Code of Criminal Procedure for regular bail, which came to be rejected by the Special Court. Thereafter, the applicant - accused has preferred temporary bail. Shri Amit Bhatnagar - present applicant was granted temporary bail for a period of 20 days and again he had been granted temporary bail from 17.03.2019 to 22.03.2019 and from 05.04.2019 to 08.04.2019.
4.According to the C.B.I., there are total 11 Banks i.e. 9 nationalized, 2 private Banks and 8 nonBanking financial institutions from where M/s. DPIL had availed credit facilities involving outstanding loan amount of Page 12 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER Rs.2,654.40 Cr. of various Banks in the name of M/s. DPIL. During the course of investigation, voluminous documents have been collected from the different banks as well as private firms/ companies and investigation is continuing. It is also averred that the company had been enjoying various fund based and nonfund based credit facilities from the year 2007 till 2018. The investigation also revealed that the company had started defaulting by way of development of LCs from the year 2009 itself. Further, in order to avail enhancement in credit facilities, M/s. DPIL carried out transactions with the firms, viz. M/s. Archon Engicon Pvt. Ltd., M/s. Ruby Cables Ltd., and M/s. Jindal Aluminum Foils Pvt. Ltd. without actual purchase of goods in order to project higher turnover. The investigative audit report of M/s.T.R. Chaddha, Chartered Accountants had thrown open various irregularities including non production of necessary documents for Page 13 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER ascertaining sales figures, etc. It is alleged that it is on account of active connivance of known/unknown Bank officials that borrower firm was able to continue availing Bank funds and delay the restructuring procedure, despite the irregularities pointed by the investigative auditor at a very early stage.
5.It is mainly averred that M/s. DPIL had produced a copy of letter dated 27.02.2008 issued by the Reserve Bank of India (RBI), Mumbai addressed to the accused / applicant, wherein, it has been mentioned that the name of the company would be deleted from the defaulters' list in April, 2008. However, witnesses from RBI have categorically stated that the said letter is a forged one and was never issued by the RBI. This is evident that accused/applicant of having intention of cheating by getting the working capital limits released from Bank of India. Moreover, Page 14 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER as per the valuation data provided by the Directorate of Enforcement dated 24.04.2018, the valuation of land and building, plant and machinery along with other properties of the borrower firm and its sister concerns/ directors and his family members is approximately Rs.1,122 Cr. which is grossly inadequate to cover the outstanding dues.
6.It is also averred that from the year 2012 to 2014, the transaction with the companies indicate that there was no actual sale / purchase of goods which had taken place and the transactions were merely accommodation entries in order to project higher turnover so as to avail enhancement in credit facilities. It is further urged that the inventory was prepared by the officials of the company especially Accounts Department, but the applicant/accused is one of the directors of the company and is equally responsible for all the dealings undertaken Page 15 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER with the consortium Banks. Furthermore, the Drawing Power (DP) is calculated on the basis of the Stock and Book Debt statements submitted by the borrower, by submitting false and inflated Stock and Book Debt Statements, the borrower firm had availed higher financial facilities by such manoeuvring.
7.It is also urged that from the year 2011 to 2014, M/s. DPIL had falsely shown purchase of cables and cores from M/s. Ruby Cables Ltd. to the tune of Rs.254.61 Cr. on the basis of false and forged invoices which were used for getting 22 Lcs issued from Bank of India. Brother of the applicant-Amit Suresh Bhatnagar was one of the directors of M/s. Ruby Cables from 01.07.2013 to 06.08.2015. It is also urged that C.B.I. though has filed chargesheet in order to ascertain the identity of the auditor of the documents, private persons are required to be examined. Page 16 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019
R/CR.MA/8435/2019 ORDER There is an allegation of defrauding a consortium of 11 banks and 8 nonbanking financial institutions to the tune of
Rs.2654.40 Cr. As one of the directors of the firm, he has played an important and active role in the functioning and decision making of the company.
8.It is urged that the investigation is at the crucial stage, applicant-accused may tamper with the evidences and there is a possibility of influencing the witnesses by the applicant
- accused. It will be difficult to identify the purported involvement of other private persons and Bank officers who had prepared incriminating documents/records pertaining to credit facilities sanctioned to M/s. DPIL, if the accused / applicant is released on bail.
9.Having thus heard both the sides and also considering the pleadings of the parties, this Court notices that accused are under judicial custody since more than 12 months. Page 17 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019
R/CR.MA/8435/2019 ORDER The chargesheet in this case has been filed on 18.07.2018. That five out of seven accused are released on bail, of course, two of them are bank officials and others are directors of sister concern of M/s. Ruby Cables Ltd and one of them is the founder of the company who happens to be his own father. There is voluminous record of the chargesheet, consisting of 19000 pages and more than 100 witnesses are listed therein. The company is under the control of Resolution Professionals (RP) and the order is already been passed by the NCLT on 30.08.2018 and all the properties of the company have been attached by the Enforcement Directorate (ED). The accused have been granted temporary bail for five times, although, no untoward incident has been reported. This Court already vide its order dated 05.02.2019 in Criminal Misc. Application No. 11793 of 2018 had provided the period of three months' time to the C.B.I. for completing the further Page 18 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER investigation.
10. However, the CBI since is unable to complete its work of further investigation and is desirous of more time to investigate, which is again its prerogative being the investigation agency, this Court while recognising its right to further investigation needs to strike a balance and consider the request of the applicant.
11. This Court has heard learned senior advocate, Mr.S.V.Raju with learned advocate, Mr.Virat Popat for the applicant who have argued on the line of the memo of the application. Ld. Counsel has also argued about the family conditions of the applicant, whose daughter is mentally challenged. He has further urged that no purpose is going to be served of incarceration of the applicant. He has also been granted a temporary bail and has not misused the said liberty. He has urged that stringent conditions may be Page 19 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER imposed, however, applicant be released on bail.
12. Per contra, learned Special Public Prosecutor Mr. R.C. Kodekar appearing for the C.B.I. has urged this Court that no leniency be shown, considering the huge outstanding of the bank. He has urged that investigation is going on. He is agreed that chargesheet has already filed in this case, however, since further investigation is going on, the Court may not exercise the discretion of grant of regular bail.
13. At the time of withdrawal of the last application for regular bail, the time was given of three months in the month of January, 2019 to complete the investigation. However, when today, inquired from the learned Special Public Prosecutor, he has on inquiring from the Investigating Officer has replied that further investigation may take about 6 (six) months time to complete the Page 20 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER investigation. This Court also had gone through the case diary, more particularly, of the period of post January, 2019, and therefore, also a pertinent query was raised to the learned Special Public Prosecutor as to whether the further investigation is not based on documentary evidences and whether the apprehension of tampering can be sustained for denying the bail to the applicant.
14. During the course of the hearing, the details of the properties which have been attached by the Enforcement Directorate, has been furnished before this Court. These properties are enlisted hereinbelow:
Sr. Details of property Value (Rs.) Ownership No. 1 Diamond Power Infrastructure 8,53,38,69,910 Diamond Power Limited, Village: Vadadala, infrastructure Ta: Savli Dist Vadodara (Land & Building & Plant machinery) admeasuring 431649.94 Sq.M. 2 Wind Turbine Generator, JMD 6,90,00,000 Diamond Power 260 Capacity2.1 MW installed Infrastructure at Moje CharpodiNani, Tal Abdasa, DistKutch (owned by DPIL, Vadodara) 3 Wind Turbine Generator, JMD 6,90,00,000 Diamond Power Page 21 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER 260 Capacity2.1 MW installed Infrastructure at Moje Charpodi Nani Tal Abdasa, Dist.Kutch (owned by DPIL, Vadodara) 4 Wind Turbine Generator, JMD 6,90,00,000 Diamond Power 260 Capacity2.1 MW installed Infrastructure at Moje Charpodi Nani Tal Abdasa, Dist.Kutch (owned by DPIL, Vadodara) 5 M/s Diamond Projects Limited, 8,86,90,000 Diamond Power Moje, Haripura Survey No.144 Infrastructure & 146, Teh: Savli, District :
Vadodara Land admeasuring 32500 Sq. M. building, plant and machinery 6 Diamond Power Transformers 3,02,75,000 Diamond Power Limited, Plot no. 101/B/7 Transformers GIDC Estate Road no.2, Limited Ranoli, Vadodara (Land admeasuring 2300 Sq. M. Building and plant machinery) 7 Bungalow no.6/B Green Park 3,73,54,450 Suresh Bhatnagar Society, Nizampura, Vadodara (Land admeasuring 649.21 Sq. M. & Building) 8 Commercial office plot no. 6,90,66,000 1)Madhurilata S. 5/9 & 5/10 BIDC, Gorwa, Bhatnagar 2)S.N. Vadodara (Land admeasuring Bhatnagar HUF 3) 1212 Sq m and building) Richa Bhatnagar
4)Mona Bhatnagar 9 Residential Bungalow, R.S 11,85,24,750 Amit 217/P, Opp.Greenwood, New Bhatnagar/Mona Alkapuri, Vadodara (Rear Bhatnagar SideEast side Direction) (Land admeasruing 1866.51 S.M. & Building) 10 The Address Priyalaxmi Mill 4,37,00,000 Amit Bhatnagar Compound, Ahead of Arunoday Cross Roads, Alkapuri, Vadodara R.S. No. 609 bearing city survey no. 3412 of Village Kasba, Dist.
Vadodara, Tower B Flat No. 801 & 802 {Rs. 21850000 x 2} 11 R. S no. 4/Part, Sheet no. 42,30,000 Amit Bhatnagar 12, City survey no. 500.
Janki Apartment, 2nd Floor,
Flat no. 102, Opp. Yogi Amrut
& Reliance Fresh Near C.H.
Jewellers & HDFC bank,
Alkapuri, Vadodara
12 R.S 217/P, Opp. Greenwood, 11,37,16,000 Sumit
New Alkapuri, Vadodara (Front Bhatnagar/Richa
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R/CR.MA/8435/2019 ORDER
Sidewest side Direction) Bhatnagar
Land admeasruing 1793.17
Sq.M. & Building
13 The Address Priyalaxmi Mill 4,37,00,000 Amit Bhatnagar
Compound, Ahead of Arunoday
Cross Roads, Alkapuri,
Vadodara R.S. No.609 bearing
city survey no. 3412 of
Village Kasba, Dist. Vadodara Tower B Flat No. 701 & 702 {Rs. 21850000 x 2} 14 R. S no. 4/Part, Sheet no. 42,30,000 Amit Bhatnagar 12, City survey no. 500.
Janki Apartment, 2nd Floor, Flat no. 103, Opp. Yogi Amrut & Reliance Fresh Near C.H. Jewellers & HDFC bank, Alkapuri, Vadodara 15 Millennium, opp. Navrachna 3,71,25,000 Northway spaces University, VasnaBhayli Road, ltd(earlier Vadodara R. Survey No. 2566, Mayfair Spaces 2567 & 2568, Block No. 1769 Ltd.) of Village Bhayli, Dist.
Vadodara, Tower A1, 3 BHK -
1560 Sq. Ft. per unit Flat {Rs.33,75,000/ x 11 Units} No.101, 102, 202, 302, 402, 502, 602, 702, 802, 1002 & 1102 16 Millennium, opp. Navrachna 8,75,00,000 Northway spaces University, VasnaBhayli Road, ltd(earlier Vadodara R. Survey No. 2566, Mayfair Spaces 2567 & 2568, Block No. 1769 Ltd.) of Village Bhayli, Dist.
Vadodara, Tower A2, 2 BHK -
1080 Sq. Ft. per unit Flat No. 102, 201, 202, 203, 204, 301, 303, 401, 402, 403, 404, 501, 502, 503, 601, 602, 603, 604, 701, 703, 801, 802, 803, 804, 902, 903, 904, 1001, 1002, 1003, 1004, 1101, 1102, 1103, 1104 {Rs.
25,00,000/ x 35 Units} 17 Millennium, opp. Navrachna 67,50,000 Northway spaces University, VasnaBhayli Road, ltd(earlier Vadodara R. Survey No. 2566, Mayfair Spaces 2567 & 2568, Block No. 1769 Ltd.) of Village Bhayli, Dist.
Vadodara, Tower A3, 3 BHK -
1530 Sq. Ft. per unit Flat No.101 & 102, {Rs.33,75,000/ x 2 } Page 23 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER 18 Millennium, opp. Navrachna 3,50,00,000 Northway spaces University, VasnaBhayli Road, ltd(earlier Vadodara R. Survey No. 2566, Mayfair Spaces 2567 & 2568, Block No. 1769 Ltd.) of Village Bhayli, Dist.
Vadodara, Tower C1, 2 BHK -
1080 Sq. Ft. per unit Flat
No.101, 102, 104, 201, 202,
301,603, 803, 902, 904, 1001,
1002, 1101, 1102, .
{Rs.25,00,000/ x 14 }
19 Millennium, opp. Navrachna 33,75,000 Northway spaces
University, VasnaBhayli Road, ltd(earlier
Vadodara R. Survey No. 2566, Mayfair Spaces
2567 & 2568, Block No. 1769 Ltd.)
of Village Bhayli, Dist.
Vadodara, Tower C2, 3 BHK -
1630 Sq. Ft. per unit Flat
No.202, {Rs.33,75,000/ x
1 }
20 Millennium, opp. Navrachna 3,57,50,000 Northway spaces
University, VasnaBhayli Road, ltd(earlier
Vadodara R. Survey No. 2566, Mayfair Spaces
2567 & 2568, Block No. 1769 Ltd.)
of Village Bhayli, Dist.
Vadodara, Tower C2, 3000 Sq.
Ft per unit. Flat No. 601,
701, 801, 901 & 1001 (1 Unit)
902 & 1002 (1 unit) {Rs.
7150000/ x 5 Units}
21 Millennium, opp. Navrachna 71,50,000 Northway spaces
University, VasnaBhayli Road, ltd(earlier
Vadodara R. Survey No. 2566, Mayfair Spaces
2567 & 2568, Block No. 1769 Ltd.)
of Village Bhayli, Dist.
Vadodara, Tower C3 3000 Sq.
Ft per unit. Flat No. 601,
701, 801, 901 & 1001 (1 Unit)
{Rs. 71,50,000/ x 1}
22 Millennium, opp. Navrachna 3,03,75,000 Northway spaces
University, VasnaBhayli Road, ltd(earlier
Vadodara R. Survey No. 2566, Mayfair Spaces
2567 & 2568, Block No. 1769 Ltd.)
of Village Bhayli, Dist.
Vadodara, Tower B1 1500 Sq.
Ft 3 BHK per unit. Flat No.
201, 202, 601, 701, 801, 901,
1001, 1101 & 1102 {3375000 x
9}
23 Millennium, opp. Navrachna 8,75,00,000 Northway spaces
University, VasnaBhayli Road, ltd(earlier
Vadodara R. Survey No. 2566, Mayfair Spaces
2567 & 2568, Block No. 1769 Ltd.)
of Village Bhayli, Dist.
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R/CR.MA/8435/2019 ORDER
Vadodara, Tower B2, - 1080
Sq. Ft. 2 BHK per unit. 101,
102, 103, 104, 201, 202, 203,
301, 302, 303, 401, 403,
501, 503, 502, 601, 603, 602,
701, 703, 702, 704, 803,
802, 901, 902, 903, 1001,
1003, 1002, 1004, 1101, 1103,
1102, 1104 {Rs. 25,00,000/ x
35 }
24 Millennium, opp. Navrachna 4,05,00,000 Northway spaces
University, VasnaBhayli Road, ltd(earlier
Vadodara R. Survey No. 2566, Mayfair Spaces
2567 & 2568, Block No. 1769 Ltd.)
of Village Bhayli, Dist.
Vadodara, Tower B3 1500 Sq.
Ft 3 BHK per unit. 101, 201,
301, 401, 501, 601, 701,
801, 901, 1001, 1101,
1102, {3375000 x 12}
25 The Address. Priyalaxmi Mill 7,62,50,000 Northway spaces
Compound Ahead of Arunoday ltd(earlier
Cross Roads, Alkapuri, Mayfair Spaces
Vadodara R.S. No. 609 bearing Ltd.)
city survey no. 3412 of
Village Kasba, Dist.
Vadodara, Tower A 5500 Sq.
Ft. 4 bhk per unit Flat NO.
101, 102, 301, 701, 801,
{Rs. 15250000 x 5}
26 The Address. Priyalaxmi Mill 26,22,00,000 Northway Spaces
Compound Ahead of Arunoday Ltd.(earlier
Croos Roads, Alkapuri, Mayfair Spaces
Vadodara R.S. No. 609 bearing Ltd.)
city survey no. 3412 of
Village Kasba, Dist.
Vadodara, Tower B 4600 Sq.
Ft. 3 BHK per unit Flat NO.
101, 102, 201, 202, 301, 302,
402, 401, 502, 501, 602, 601,
{Rs. 21850000 x 12}
27 Mayfair Sunrise, Ahead of 96,00,000 Northway Spaces
Narayan Vadi, Atladara, Dist. Ltd.(earlier
Vadodara R s No.92, Of Mayfair Spaces
village Atladara, Ta; & Dist. Ltd.)
Vadodara, Tower A - 1000 sq.
ft per unit Flat No. 901,
902, 903 & 904{Rs.2400000 x
4}
28 Land and Commercial building, 78,74,29,920 Mayfair Spaces
Khata No. 874, R.S. No. 619, Ltd.)
Mouje Atladara, Dist.
Vadodara (Land admeasuring
5722 Sq M)
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R/CR.MA/8435/2019 ORDER
29 Land at Vill Karodiya Dist. 30,65,55,000 Northway Spaces
Baroda, Khata No. 408, Ltd.(earlier
Block/R S No. 64/2 paiki 1, & Mayfair Spaces
64/2 paiki 2 (Land Ltd.)
admeasuring 20437 Sq. M)
30 Residential land at Block S 11,97,92,000 Northway Spaces
No. 83, Village Kalali, Ltd.(earlier
District Vadodara Mayfair Spaces
(admeasuring 7487 Sq. M) Ltd.)
Total 11,22,72,08,030
15. This Court has heard the learned
counsels on both the sides and had also
perused the order passed under the Prevention of Money Laundering Act, 2002. It could be noticed that in relation to those properties attached under the PMLA Act, 2002, the attachment was initially for the period of 180 days. It is given to understand that later on the said order was confirmed. This Court, therefore, on 12.06.2019 raised a specific query raised as to whether there are any other properties, other than those reflected in the order under the PMLA Act and those which have been specifically reflected in the list of properties tendered by the C.B.I. Page 26 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER 15.1 The CBI was also asked as to whether it was contemplating to attach any property and whether any properties are left out for attachment. On 17.06.2019 the list of the properties had been submitted by the learned Special Public Prosecutor, Mr.R.C.Kodekar, on instructions, from the CBI officers, who are present before this Court and he could show that there were in all 25 properties.
15.2 List of the properties is as follows:
Sr Name of the Description of Property No person/company 1 Amit Suresh Bhatnagar Plot No.3, Sr. No.215 216, Akashvan Bunglows, Ahead of Sevasi, Gotri.
2 Northway Spaces Ltd. 9th floor, Mayfair (erstwhile Mayfair Atrium, Opp. Delhi Spaces Ltd.) Public School, Old Padra Vadsar Ring Road, Vadodara.
3 Mona Amit Bhatnagar Plot No.123, Survey
No.217, Aakshvan Sardar
Patel Marg, Near
Sheshav School,
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Vadodara.
4 Mona Bhatnagar N.A. Land adm.15000
sq.feet, R.S.No.218 &
219, City Survey
No.2564 and 2565 of
Moje Gotri, Vadodara.
5 M/s. Jyoti Ltd Land adm.25,123 sq.mts.
represented by Sh.Rahul At Survey No.53(part) Amin Final Plot No.361 in T.P.Scheme No.11 Moje Sama, Vadodara 6 M/s Diamond Projects D7, BIDC, Gorwa, Limited Vadodara390016 7 Nothway Spaces Limited "Essen House", 5/12.
(formerly known as BIDC, Gorwa, Vadodara Mayfair Spaces Private Limited 8 Mayfair Spaces Ltd Mayfair Atrium, Survey No.663/B, Village Atladara, Vadodara.
9 Diamond Projects Ltd D7,BIDC, Gorwa,
Vadodara
10 Suresh Narayan Bhatnagar Flat No.B34, Goyal
Park, Soham Nagar
Housing Society,
Vastrapur, Ahmedabad
11 Suresh Narayan Bhatnagar Bhentasi Vata, Teshil Amit Narayan Bhatnagar Ankalav, Sumit Suresh Bhatnagar Anand(Agricultural Land), Survey No.585 12 Amit Suresh Bhatnagar Village Khadol, tenshil Ankalav, Survey No.326 13 Amit Suresh Bhatnagar Survey No.657, Mouje Atladara, Vadodara (Office No.A204, 301 and 307) Corporate Park 14 Suresh Narayan Bhatnagar Survey No.657, Mouje Atladara, Vadodara.
(Office No.A503 &
510)Corporate Park
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15 Mona Bhatnagar Survey No.657, Mouje
Atladara, Vadodara.
(Shop No.AGF01 and A
FF101)Corporate Park
16 Sumit Suresh Bhatnagar Survey No.657, Mouje
Atladara, Vadodara.
(Office No.310410)
Corporate Park
17 Namo Narayan Bhatnagar B67, Oriental
Apartment, Plot No.50,
Sector9, Rohini,
Delhi.
18 Suresh Narayan Bhatnagar B34, Goyal Park
Apartment, Opp. Lad
Society, Vastrapur,
Ahmedabad.
19 M/s. Diamond Power B62, Sixth Floor,
Infrastructure Ltd. Himalaya House, 23
Kasturba Gandhi Marg,
New Delhi110001
20 Sumit Bhatnagar Plot No.1 & 2,
"Sumadhur", Survey
No.217, Near Green
Woods, GotriSevasi
Road, New Alkapuri,
Sevasi, Vadodara,
Gujarat391101
21 Suresh Narayan Bhatnagar Office No.A503, Fifth (purchaser party) Floor, Corporate Park, Survey No.657, Vibhag 3(Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) Office No.A510, Fifth Floor, Corporate Park, Survey No.657, Vibhag 3, (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) 22 Amit Suresh Bhatnagar Office No.A204, Second (Purchaser party) Floor, Survey No.657, Vibhag3, (Akota), Atladara, Vadasar Road, Page 29 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER Vadodara (Vendor Party) (Vendor Party) Office No.A301, Third Floor, Corporate Park, Survey No.657, Vibhag3, (Akota), Atladara, Vadasar Road, Vadodara Office No.A307, Third Floor, Corporate Park, Survey No.657, Vibhag 3, (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) 23 Sumit Suresh Bhatnagar Office No.A_310, Third (Purchaser party) Floor, Corporate Park, Survey No.657, Vibhag3 (Akota), Atladara, Vadasar Road, Vadodara Road, Vadodara (vendor party) 24 Mona Amit Bhatnagar Shop No.AGF01, Ground Floor Front Side, Corporate Park, Survey No.657, Vibhag3 (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) Shop No.AFF101, Floor Front Side, Corporate Park Survey No.657 , Vibhag3, (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) 25 Madhuri Finsere Private 202, Sunrise Apartment, Limited Alkapri, Vadodara, GJ 390007 For some of which even the Enforcement Directorate has not issued the notice whereas the Page 30 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER C.B.I. is contemplating to attach all of them. There was a voluntarily disclosure on the part of the applicant with regard to three properties. The details of which is as follows:
Sr. Details Owner No. 1 Flat No.EB5, Utopian Exotica, Mahurilata New Alkapuri, Sevasi Road, Bhatnagar Vadodara Shrishti Bhatnagar 2 Flat No.PB5, Utopian Exotica, Mona Bhatnagar New Alkapuri, Sevasi Road, Shrishti Bhatnagar Vadodara 3 Flat No.PB6, Utopian Exotica, Madhurilata New Alkapuri, Sevasi Road, Bhatnagar Vadodara Rachita Bhatnagar
This Court chose to direct the affidavit to be filed by the applicant specifying that over and above the details of the proceedings in both the lists which have been put forth before this Court and three properties which have been voluntarily disclosed, there are no other properties left with the applicant and his family members.
16. The jail authority had also been directed to produced the applicant today before this Court so that this affidavit could be filed before the Page 31 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER Court decides the matter.
17. It is necessary to make a specific reference that since the applicant is in the judicial custody, this Court deemed it proper and fit to intimate all the possible consequences of any suppression or any attempt not to disclose the true facts before this Court. The Court also had verified their understanding of the English language and comprehensive capacity of the applicant of communication made by this Court to him as an under trial prisoner. After his having been communicated this aspect, he has chosen to voluntarily file the affidavit cum undertaking/ declaration. Though he is already represented by the learned advocate and learned senior counsel both, considering the status of the applicant as an under trial prisoner and also keeping in mind the fact that the applicant is presently before this Court seeking his regular bail, all these aspects were necessary to be specifically conveyed.
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18. The affidavitcumundertaking / declaration has been furnished by the applicant before this Court, wherein he has stated as under:
"1...
2. I state and submit that the Enforcement Directorate vide Provisional Attachment Order No.02/2018 dated 24.04.2018 has attached 30 properties belonging to the deponent and his family members and related corporate entities purportedly controlled by the deponent.
3. I submit that apart from the attached properties, the Enforcement Directorate is conducting an investigation in 12 other properties belonging to the deponent and his family members vide show cause notices dated 28.11.2018.
4. I further say and submit that two list of properties were produced before this Hon'ble Court by the prosecuting agency. That one list contains properties which Enforcement Directorate has been investigating and other list which CBI is contemplating to investigate and/or take appropriate action. Apart from this, from the applicant's side another list of properties is also produced. The properties contained in all three lists are substantially same and overlaps one another except properties at Sr.No.7, 10, 11, 14, 16 and 25 in the list of Enforcement Directorate and properties at Sr No.1, 2 and 3 in the list submitted by the present applicant.
5. I submit and declare that apart from the Page 33 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER properties which have been mentioned in these lists, the deponent does not possess any right, title or interest in any other property. That deponent has disclosed all properties belonging to him by way of present affidavit.
6. That deponent further undertakes that he shall not alienate/transfer any of the abovementioned properties belonging to the deponent in any manner and will abide by any condition that is imposed by this Hon'ble Court in the present proceedings."
19. Having been satisfied that the applicant understood the version and also furnished details which were necessary, this Court deems it appropriate, at this stage, when the investigating agency is further investigating into the matter, that instead of granting the regular bail to the present applicant, it is appropriate and equitable in wake of the chargesheet having been laid in this case in the month of July, 2018, to grant him interim bail with certain stringent conditions and more particularly the applicant is having agreed not to transfer in any mode or manner any of the properties which are enlisted by different list Page 34 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER before this Court, to grant them interim bail for the period of three months for now.
20. Learned advocate, Mr.Virat Popat appearing for the applicant has emphatically urged this Court that other coaccused who have graver role than that of the present applicant have already been granted regular bail. Moreover, they have emphasized on the ratio laid down in various matters more particularly in case of Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40. Following the ratio which has been relied upon in support of the submissions:
"23.Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
24.In the instant case, as we have already noticed Page 35 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER that the "pointing finger of accusation" against the appellants is `the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in 2 support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice."
25.The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, Page 36 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER the reasoning 2 adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual."
21. This Court is conscious of the fact that essentially and predominantly the case is based on documentary evidences. The further investigation of the C.B.I. which is on going is also mainly relying on the documentary evidences and concerned witness is being questioned on the strength of such documents. There is no likely hood of tampering with the documentary evidences which have been seized and which are in the custody of various Banks. The Court is also conscious of the well laid down principle of 'bail and not jail' where more particularly there are rival claims of loss being not on account of Page 37 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER any fraud committed with the Bank, but because of the various factors affecting the market so also the aspect that the chargesheet has been filed long ago and there is no likely hood of the trial getting over with such bulky volume of evidence and numbers of witnesses in a near future. The matters which are investigated by C.B.I. since involving serious question, the trial is likely to take a longer time. However, in this set of facts and circumstances, it is deemed appropriate and equitable to enlarge the applicant on interim bail rather than granting regular bail, at this stage, and allow the investigating agency to complete its task. It will also give an opportunity to the Court to monitor the pace of investigation and the conduct of the accused during the course of further investigation. This will uphold the right of individual liberty and yet will not stultify in any manner the right of investigating agency to further investigate.
22. For the foregoing reasons, this application Page 38 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER is partly allowed and the applicant is ordered to be released on interim bail for the period of three months from the date of his release in connection with R.C.No.RC0292018A0006 dated 26.03.2018 registered with CBI/ACB Police Station, Gandhinagar on his executing personal bond of Rs.2.5 Cr. and furnishing surety of Rs.50 Lakh (cost) with two solvent sureties the said amount of Rs.50 Lakh each to the satisfaction of the C.B.I. Court and subject to the conditions that he shall:
[a] not take undue advantage of liberty or misuse liberty;
[b] not to tamper with any evidence, and /or documents nor to act in a manner injuries to the interest of the prosecution;
[c] surrender his passport, if any, to the C.B.I. Court within a period of three days from the date of his release;
[d] shall not in any mode or manner transfer any of the properties which have been Page 39 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER referred to at paragraph No.14 and 15.2.
[e] mark his presence before the C.B.I./ACB office at Gandhinagar once in a fortnight on the 1st and the 15th day of every English calender month;
[f] shall not leave the District Vadodara except for the purpose of marking presence and attending the trial at C.B.I. Court;
[g] shall not contact any of the witnesses who are already forming the part of the papers of chargesheet and/or any of the Bank officials from the consortium of the Banks since the CBI is still investigating further;
[h] any attempt on his part to so do it if is noticed, it will be open for the Investigating Agency to bring to the notice of this Court for the purpose of cancelling the bail.
[i]any indulgence in any other offence will also make them liable to be incarcerated once again even during the pendency of the trial;
[j] furnish the address of his residence to the Investigating Agency and also to the C.B.I. Court at the time of execution of the bond and shall not change the residence Page 40 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER without prior permission of this Court;
(h) Registrar/Sub Registrar concerned shall be intimated of th order of this Court who shall not permit any process and shall enter the same in the register of the concerned office/entry so that no transfer is affected till the completion of trial in respect of properties referred to at para Nos.14 and 15.2 of this order. In the event of consortium of Bank entering into any settlement in respect of outstanding dues, I.O. shall obtain prior permission of this Court/C.B.I. Court in respect of the enlisted immovable properties.
23. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be at liberty to issue warrant or take appropriate action in the matter.
24. Bail bond to be executed before the C.B.I. Court having jurisdiction to try the case.
25. At the trial, the trial Court shall not be Page 41 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019 R/CR.MA/8435/2019 ORDER influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. On completion of further investigation, applicant may move an application for regular bail. His application for regular bail is thus converted into the application of interim bail and is allowed to the aforesaid extent. Direct service is permitted.
(MS SONIA GOKANI, J) M.M.MIRZA Page 42 of 42 Downloaded on : Wed Jul 03 05:57:57 IST 2019