Bombay High Court
Vipul Chitalia S/O Chunilal Chitalia vs Central Bureau Of Investigation And Anr on 11 August, 2022
Author: Bharati Dangre
Bench: Bharati Dangre
1/20 BA 3810-21.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3810 of 2021
Vipul Chitalia s/o Chunilal Chitalia .. Applicant
Versus
CBI and Anr .. Respondents
...
Mr. Vijay Agarwal with Yash Agarwal, Barkha Rastogi, Nakul
Jain, Darshan Upadhyay, Jasmin Purani i/b Rahul Agarwal for
the applicant.
Mr.Hiten Venegaonkar for respondent no.1 CBI.
Mrs.Anamika Malhotra, APP for the State.
CORAM: BHARATI DANGRE, J.
DATED : 11th AUGUST 2022
P.C:-
1 The present Application filed under Section 439 of
Cr.P.C by the applicant, seek his release on bail in Special CBI
Case No.38 of 2018.
2 Heard learned counsel Shri Vijay Agarwal along with
Yash Agarwal for the applicant and learned Advocate Mr.Hiten
Venegaokar for CBI and Mrs.Anamika Malhotra, learned APP for
the State.
The learned counsel for the applicant would submit
that the applicant deserve his release on bail in the wake of the
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long incarceration, he being arrested on 6/3/2018 by the CBI and
he would submit that two charge-sheets are already filed in the
subject C.R, though the applicant was charged on 16/5/2018,
when the first charge-sheet was filed, and the learned counsel
would submit that the CBI is on it's way to file third charge-sheet.
It is submitted that since till date, the investigation itself is
incomplete with 92 witnesses being cited to be examined during
the trial, the conclusion of the trial in the nearest future appear to
be a remote possibility.
The learned counsel has placed reliance upon the
recent verdict of the Supreme Court in case of Satender Kumar
Antil vs. CBI, (Special Leave to Appeal CRL No.5191/2021
dated 11/7/2022) and would submit that the Hon'ble Apex Court
has, in the said decision, exhaustively considered the scope and
ambit of Section 170 of Cr.P.C and the learned counsel would
submit that as far as the present applicant is concerned, he came
from abroad and submitted himself to the jurisdiction of the
Court and in an offence under PMLA, he has been released on
bail by the Special Judge on 7/9/2018, by recording that although
it is claimed by the Enforcement Directorate that further
investigation is in progress, it appears that the applicant had
joined the investigation and his statement was recorded, and he
was not arrested during the investigation, but he had appeared
before the Court in pursuance of the summons issued to him.
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The learned counsel Mr.Agarwal has placed on record
several orders passed by the Hon'ble Apex Court, where the
accused came to be released on bail in absence of possibility of
timely trial considering the long period of custody. Reliance is
placed on decision of the Apex Court in case of Union of India
vs. K.A. Najeeb 2021 (3) SCC 713. By placing reliance on the
decision in case of Sujay Desai Vs. SFIO, wherein the right to an
expeditious trial has been held to be sacrosanct and the accused
who was in custody, is an under-trial for two years five months,
has been released on bail.
3 Apart from the long incarceration, the learned
counsel Mr.Agarwal has also advanced his arguments on merits of
the case and by inviting my attention to the sequence of events,
he would submit that the co-accused Shivraman Nair is already
released on bail in the year 2018, and the role attributed to him in
the charge-sheet is identical to that of the applicant and there is
no reason why the applicant shall continue to be incarcerated,
despite release of the co-accused on bail in the wake of identical
accusations.
The learned counsel has submitted a list of the
accused persons who have been released on bail, and he would
submit that barring Gokulnath Shetty, the Dy. Director of PNB,
all other officers holding different portfolios and responsibilities
have been released on bail, including accused no.9 Kapil
Khandelwal, Joint President, M/s.Geetanjali Gems Limited,
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Yashwant Joshi (Accused no.12) Manager with M/s.Geetanjali
Gems Limited along with several office bearers of the PNB.
4 The learned counsel would submit that in absence of
the prosecuting agency expressing any possibility of the applicant
being at flight risk or he being indulging in tampering with the
prosecution evidence, the well accepted principle which has time
and again re-iterated by the constitutional Courts being, "bail is
the rule and jail is an exception", the applicant deserve his release
on bail.
5 Per contra, the learned counsel Mr.Venegaonkar
strongly opposed the application, and he would submit that the
investigation in the present case is not yet complete and the CBI
has filed two charge-sheets, the first one on 16/5/2018 and the
second one on 10/6/2021. He would submit that within a span of
three to four months, the investigation would be completed and
the third charge-sheet is likely to be filed. He would submit that
the applicant is attributed a serious role in the charge-sheet and
since he was working as a Vice President (Banking Operations) at
M/s.Geetanjali Gems Limited, his application do not deserve any
consideration. Mr.Venegaonkar would invite my attention to the
seriousness of the accusations faced by the applicant by
submitting that on the basis of the original charge-sheet as well as
the supplementary charge-sheet, the total amount involved, is
around Rs.7080.86 crores for the period ranging between 2013-
2017.
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Mr.Venegaonkar would submit that the offence is
serious, where the bank official Shri Gokulnath Shetty, Deputy
Manager of Punjab National Bank in connivance with the
accused Directors of Gitanjali Group of Companies, defrauded
PNB of the huge amount in the matter of issuance of
unauthorized and fraudulent letters of Undertaking (LoUs) from
1/3/2017 to 2/5/2017 in favour of Overseas branches of various
Indian Banks and purported letter of Credits (FLC) in favour of
foreign suppliers of the accused companies.
6 Focusing on the enormity of the fraud, it is submitted
that the applicant was functioning as a Vice President for
Gitanjali Group of Companies, and he was one of the authorized
signatory to the account of all the accused companies i.e. Gitanjali
Gems Ltd, M/s.Gili India Ltd and M/s.Nakshatra Brands Ltd,
maintained with Punjab National Bank, Brady House, Mumbai.
He is accused of conspiring with Mehul Choksi (Accused no.6) in
submitting the applications along with import documents in
PNB, Brady House, for issuance of 165 fraudulent LOUs and of
submitting applications for fraudulent enhancement of the value
of 58 FLCs which are jointly signed by the applicant and Aniyath
Shivraman Nair (Accused no.7). The charge-sheet also attribute
that he was a close confidant of Mehul Choksi (Accused no.6)
and was responsible for maintaining the records of the fraudulent
LoUs/FLCs transaction which were subsequently recovered under
the Memorandum Panchnama executed u/s.27 of the Evidence
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Act from the applicant. Attributing an active role to the present
applicant, Mr.Venegaonkar would submit that his role as detailed
in the charge-sheet is more serious in nature, as compared to the
other accused persons.
In the wake of the material available on record, it is
also submitted that the applicant had fled the country prior to
registration of the case and he was apprehended at Mumbai
Airport based on the LOC. He is also attributed a role of being
instrumental in shifting documents and influencing the witnesses.
In the wake of the peculiar facts of the case and the
material available against the applicant and compiled in the
charge-sheet, it is requested that his application be rejected.
7 In order to appreciate the rival contentions of the
parties, it is necessary to briefly refer to the case against the
applicant as compiled in the charge-sheet filed by the CBI.
A) On 15.02.2018 CBI, Mumbai registered a case
on the basis of written complaint received from Shri
Avneesh Nepalia, Deputy General Manager, Punjab
National Bank (PNB), Zonal Office, Mumbai against
Gokulnath Shetty, Deputy Manager, Punjab National
Bank and 15 other persons under Sections 120-B r/w.
Section 409, 420 of Indian Penal Code and Section
13(2) r/w Section 13(1)(d) of the Prevention of
Corruption Act, 1988, the substantive offences thereof
for alleged defrauding of PNB to the extent of about
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USD 754.92 Millions (equivalent to Rs.4886.72
Crores@ Rs.64.00 per USD).
B) On 22.02.2018, Punjab National Bank gave
additional complaint whereby the fraud in respect of
FLCS increased by another Rs.1251.56 Crores.
Thereafter, on 04.03.2018 Punjab National Bank filed
another supplementary complaint for defrauding
Punjab National Bank in the sanctioned limit of M/s.
Gitanjali Gems Ltd., M/s. Gili India Ltd., M/s.
Nakshatra Brands Ltd. and M/s. Asmi Jewellery India
Ltd. for an additional amount of Rs. 942.18 Crores.
The total amount therefore allegedly defrauded by the
accused persons till date is about Rs. 7080.86 Crores
during the period 2013-2017.
C) The allegation in brief is, the accused Bank
official, Shri Gokulnath Shetty in connivance with the
accused Directors of Gitanjali Group of Companies
and unknown persons defrauded PNB to the extent of
Rs. 7080.86 Crores in the matter of issuance of
unauthorized and fraudulent Letters of Undertaking
(LOUS-143 Nos) between the period 01.03.2017 to
02.05.2017 in favour of overseas Branches of various
Indian banks and purported Foreign Letters of Credit
(FLC), in favour of foreign suppliers of the accused
companies.
D) It is alleged that Shri Gokulnath Shetty,
Deputy Manager (Retd), Punjab National Bank posted
in Forex Department at Mid Corporate Branch, Brady
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House, Mumbai, fraudulently issued 143 LOUs
(Letter of Undertaking) and unauthorizedly enhanced
the value of 58 FLCs (Foreign Letters of Credits) in
favour of various overseas Branches of Indian Banks
without following the due procedure i.e. by obtaining
required request applications, documents, approval of
the authorities thereto and without making entries in
the Core Banking Solutions (CBS) system avoiding
detection of the transactions, so made, and transmitted
SWIFT instructions to the overseas branches of Indian
Banks for raising Buyers Credit/FLCs and funding the
NOSTRO accounts of PNB. The funds so raised for
payment of import bills have not been utilized for such
purposes.
E) On the basis of investigation conducted in
respect of six fraudulently issued Letters of
Undertaking (LoUs) and fraudulent and unauthorized
amendments made in respect of six Foreign Letters of
Credits (FLCs), Charge-Sheet under Section 173 of
Criminal Procedure Code has been filed before the
Hon'ble Special Court, Mumbai on 16.05.2018 against
18 accused persons including Applicant (accused
No.10) under Section 120-B r/w 409, 420 of Indian
Penal Code and Section 13(2) r/w. 13(1)(c) and (d) of
Prevention of Corruption Act, 1988 and substantive
offences thereof and the said charge-sheet is presently
pending before the Hon'ble Special Court, Mumbai.
The said charge sheet has been marked as Special Case
No. 38/2018.
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F) That during further investigation conducted, it
was established that the total wrongful loss to the bank
on account of outstanding 165 fraudulent LoUs of
2017 and 311 bills drawn under 58 FLCs through
fraudulent amendments was Rs. 6096.63 crores (USD
952.75 million). Since the accused companies did not
repay the amount availed against the fraudulent LoUs
and FLCs, PNB had to pay Rs. 6344,85,07,139.99
(USD 965.19 million), including overdue interest, to
the overseas banks which had advanced Buyer's Credit
against fraudulent LOUs and discounted the bills
against fraudulent FLCs issued by Punjab National
Bank.
G) Investigation also revealed involvement of four
more accused persons and commission of additional
offences punishable under Section 201 of IPC, Section
477-A of IPC and Section 7 of PC Act, 1988 by the
accused persons including applicant/accused Vipul
Chitalia (A-10) and hence, the Supplementary Charge
Sheet was filed on 10.06.2021.
H) The investigation reveal that the
applicant was functioning as Vice President (Banking
Operation and Finance) for Gitanjali Group of
Companies. He was also one of the authorized
signatories to the account of all the accused companies
M/s.Gitanjali Gems Ltd, M/s.Gili India Ltd, and
M/s.Nakshatra Brands Ltd maintained with PNB
Bank, Brady House, Mumbai. He is charged with
hatching a conspiracy with Mehul Choksi and of
submitting applications along with import documents
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with PNB Bank, Brady House, Mumbai, for issuance
of 165 LOUs and for submitting applications for
fraudulent enhancement of value of 58 FLCs issued
during the period commencing from 23/1/2017 to
15/5/2017, which are jointly signed by the applicant
and Aniyath Shivraman Nair (Accused no.7). The
investigation also reveal that the present applicant, in
connivance with the co-accused Mehul Choksi, had
dishonestly and fraudulently shown corresponding
liability towards the purported suppliers i.e. M/s.4C's
Diamonds Distributors and M/s.Shanayo Gong SI Ltd,
Hongkong in the books of the companies and not
towards the PNB who had issued the LOUs.
8 The charge-sheet filed against the applicant reveal his
role along with the mastermind of the case Mehul Choksi
(accused no.6) and it is alleged that knowing fully well that the
accused companies have exhausted their limit sanctioned to them,
and without their providing their requirement to the 100$
margin, applications were submitted with PNB for issuance of
fraudulent LOUs and the accused persons are charged for
hatching a criminal conspiracy and for clandestinely taking back
the original applications which were supposed to be in possession
of the Bank, with an intention to cause disappearance of the same
and it is alleged that the said acts were continued for years
together.
The main conspirator Mehul Choksi has fled the
country on 4/1/2018 and it is the case of the respondent CBI that
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he directed all the dummy partners/Directors/authorized
signatories to provide documents to the present applicant for
processing their work permit and accordingly, the applicant is
accused of conveying the instructions of the main accused.
9 The charge against the applicant is crystallized in the
first charge-sheet, though the second charge-sheet is also filed and
the CBI proposes to file the third charge-sheet.
10 On being arrested, the applicant is confined for over
4 years and the submission on his behalf is that the co-accused
who had played a higher role than him, being occupying higher
position are enlarged on bail and this include the Director of
M/s.Gili India, Aniyath Nair who is released on bail on
20/7/2018. Similarly, Kapil Khandelwal, Joint President of
M/s.Gitanjali Gems Ltd and Nitin Shahi, Assistant Finance
Officer at M/s.Gitanjali Gems are also released on bail. Yeshwant
Joshi, Manager of M/s.Gitanjali Gems Ltd came to be released on
bail on 3/10/2018.
11 Parity is sought to be drawn with co-accused
Shivraman Nair who face similar accusations in the charge-sheet,
and with the assistance of the learned counsel for the applicant
when the charge-sheet is perused, it is revealed that he was
working as General Manager with Gitanjali Gems Ltd, and later
he became the Director in M/s.Gili India Ltd. He was also one of
the authorized signatories to the accounts of all the accused
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companies and the charge-sheet accuse him for submitting the
application in PNB for issuance of fraudulent LOUs and
enhancement of FLCs, the document which also bear the
signature of the present applicant.
12 When the charge-sheet is carefully perused, and a
comparative analysis between the role of the two accused persons
is scanned for, both face an identical accusation. They are alleged
of submitting an application for opening of an FLC for US$ of
1,000,000 with the beneficiary as M/s. Crown Aim Limited,
Hong Kong and the advising bank with UCO Bank, Hong Kong
for purported import of fresh water pearls and the date of
shipment being 23/3/2017. An identical role attributed to both
the applicants by transmitting a SWIFT message favouring UCO
Bank with the beneficiary name for usage period of 180 days.
13 When Mr.Venegaonkar is asked to point out the
material in the charge-sheet, which attribute a role distinct to the
applicant than co-accused Aniyath Nair (accused no.7), the
learned counsel is unable to assign a distinct role to the present
applicant. The charge-sheet against the Managing Director
Mehul Choksi and his accomplice i.e. Accused no.9, Joint
President (Finance) who is in-charge of the Banking Operations,
along with the present applicant working as Vice President
(Banking Operation) Nitin Shahi (Accused no.8 - Assistant
Finance Manager) of the accused companies, accused nos.3,
accused no.4 and accused no.5, accuse them of dishonestly and
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fraudulently showing the liability in the books of accounts of the
companies towards the supplier in all the six transactions and not
to PNB, who had issued the LOUs. All the accused, in
furtherance of the conspiracy are charged with dishonest and
fraudulent act of not reflecting the liability towards PNB, instead
of reflecting the transaction as a liability towards M/s. 4C's
Diamonds Distributors, Hong Kong and M/s.Shanayo Gong SI
Ltd, Hong Kong in their books, causing wrongful loss to PNB.
The entire material against the accused persons is now
compiled in the charge-sheet and all the necessary documents
which form the basis of the charge are already in the custody of
the CBI. The investigation being complete, the incarceration of
the applicant is unnecessary, particularly when the CBI do not
express it's apprehension in any manner to deny the bail to the
applicant, either on the ground of his flight risk or his likelihood
of tampering with the case of the prosecution.
The alleged offence is undisputedly in the nature of
economic offence which has resulted in loss to the State
exchequer, but while considering the Bail Applications, it is not
only the gravity of the charges which deserve a consideration, but
punishment that could be imposed after trial and continuation is
also an important aspect. It contemplate recaliberating the scales
of justice.
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14 In Manoranjana Sinh @ Gupta Vs. CBI, 2017 (5)
SCC 218, the Hon'ble Apex has observed as under :-
"This Court in Sanjay Chandra Vs. Sanjay Chandra vs. Central
Bureau of Investigation (2012) 1 SCC 40, also involving an
economic offence of formidable magnitude, while dealing with
the issue of grant of bail, had observed that deprivation of liberty
must be considered a punishment"
Merely because the offence is in the nature of
economic offence, would be no ground to refuse the bail, as it is
not imperative that in every case of economic offences, bail
should invariably be refused.
Since the co-accused who has been assigned a similar
role in the charge-sheet is already released on bail, I am convinced
with the arguments advanced on behalf of the learned counsel for
the applicant that the applicant deserve a similar treatment.
15 Another ground which made me favourably consider
the prayer for releasing the applicant on bail, is the absence of
possibility of the timely trial and his long incarceration.
Recently, the Hon'ble Apex Court in case of Union of
India vs. Najeeb, 2021 (3) SCC 713, has once again reiterated
that, Liberty guaranteed by Part-III of the Constitution, shall
bring within its protective ambit not only due procedure and
fairness but also access to justice and speedy trial.
The following observations by their Lordships of the
Apex Court deserve a reproduction :
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"Liberty guaranteed by Part III of the Constitution
would cover within its protective ambit not only due
procedure and fairness but also access to justice and a
speedy trial. Undertrials cannot indefinitely be detained
pending trial. Ideally, no person ought to suffer adverse
consequences of his acts unless the same is established
before a neutral arbiter. However, owing to the
practicalities of real life where to secure an effective trial
and to ameliorate the risk to society in case a potential
criminal is left at large pending trial, Courts are tasked
with deciding whether an individual ought to be
released pending trial or not. Once it is obvious that a
timely trial would not be possible and the accused has
suffered incarceration for a significant period of time,
Courts would ordinarily be obligated to enlarge them
on bail.
It is true that the charges levelled against the
respondent are grave and a serious threat to societal
harmony. Had it been a case at the threshold, we would
have outrightly turned down the respondent's prayer.
However, keeping in mind the length of the period
spent by him in custody and the unlikelihood of the
trial being completed anytime soon, the High Court
appears to have been left with no other option except to
grant bail. An attempt has been made to strike a balance
between the appellant's right to lead evidence of its
choice and establish the charges beyond any doubt and
simultaneously the respondent's rights guaranteed
under Part III of our Constitution have been well
protected".
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16 Reiterating the principle of presumption of innocence
of a person accused of an offence and placing the onus on the
prosecution to prove the guilt, the Apex Court recently in case of
Satendar Kumar Antil vs. CBI & Anr (supra) has reinforced the
fundamental right of an accused for a speedy trial by recording as
under :-
"One must read this provision from the point of view of
the dispensation of justice. After all, right to a fair and
speedy trial is yet another facet of Article 21. Therefore,
while it is expected of the court to comply with Section
309 of the Code to the extent possible, an unexplained,
avoidable and prolonged delay in concluding a trial, appeal
or revision would certainly be a factor for the bail".
17 The Hon'ble Apex Court in case of Sujay Desai Vs.
SFIO, has considered the submissions advanced on behalf of the
appellant who was in custody as an under-trial for two years five
months, and since no other accused continued to remain in
custody, the appellant was released on bail by recording as
under :-
"Having regard to the position as it remains regarding
non-service of summons on foreign entities, the period of
custody already undergone and no immediate possibility
of the trial commencing, we are of the considered view
that the appellant would be entitled for grant of bail"
18 Considering the long incarceration, and particularly
by keeping in mind the principle of assumption of innocence of
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accused unless proven guilty, the fact of an imprisonment before
the conviction, as a substantial punitive content, it would be
improper for any Court to refuse bail and keep the accused
incarcerated indefinitely. The requirements of seriousness of the
accusations and whether the witnesses are likely to be influenced
by the applicant on being enlarged on bail during trial, and
whether he is likely to flee from justice, if released on bail, will
have to be weighed as against the right of an accused to be
presumed to be innocent, till the charge is proved against him by
the prosecution. Incarceration of the accused cannot be treated as
synonymous with a punishment and assuming that the accused is
prima facie guilty for a grave offence, bail cannot be refused in an
indirect process of punishing the accused, before he is convicted
of the charge framed against him.
19 The charge-sheet being filed against the present
applicant on completion of investigation and the entire material
crystallized therein, it would be suffice to secure the presence of
the applicant at the time of his trial and he need not remain
incarcerated by way of a punishment, till he face the trial for the
charges levelled against him, however, serious may be the
accusations faced by him.
I may gainfully refer to the observation of the The
Apex Court in case of Sanjay Chandra Vs. CBI, 2012(1) SCC 40,
in relation to 2G Spectrum case, which read as under :-
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"Apart from the question of prevention being the object of
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"
20 In light of authoritative pronouncements, I am of the
view opinion that the accusations against the applicant being
crystallized in the charge-sheet, he deserve his release on bail and
merely because he is to face a trial in an economic offence, he
cannot be robed of his liberty. His long incarceration for more
than 4 years also deserve to set him at liberty, pending the trial for
the accusations faced by him.
Apart, it is to be noted that the applicant is already
released on bail on 7/9/2018 by the Special Judge for PMLA in
the PMLA Case No.9/2018, by recording that he had joined the
investigation.
The applicant was also released on bail temporarily on
1/4/2022 for stipulated period and on availing his liberty, he has
surrendered within the time prescribed by this Court.
21 In the wake of the aforesaid circumstances, being
weighed in favour of the applicant, he deserve his release on bail,
on considering the merits of the accusations faced by him and also
in the wake of his long incarceration with no time line for
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conclusion of the trial, considering large number and witnesses
and complexity of the accusations to be tried. Hence, the
following order :-
ORDER
(a) Application is allowed.
(b) The Applicant - Vipul Chitalia in connection with Special Case No.38/2018 and Special case No.641/2021 (RC No.02(E)2018 CBI BS &FC, Mumbai) registered with CBI, shall be released on bail on furnishing P.R. bond to the extent of Rs.1,00,000/- with one or two sureties of the like amount.
(c) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case so as to dissuade him from disclosing the facts to Court or any Police Officer. The Applicant should not tamper with evidence.
(d) The Applicant shall report to the Deputy Superintendent of Police, CBI, Bank Securities, Fraud Branch, once in every month on every first Saturday between 11.00 am to 1.00 pm for a period of three months and thereafer, once in Tilak ::: Uploaded on - 17/08/2022 ::: Downloaded on - 08/01/2023 20:08:47 ::: 20/20 BA 3810-21.doc trimester on every Saturday between 11.00 am to 1.00 pm.
(e) The applicant shall deposit his passport with the Special Court.
(f) The applicant shall not leave India without prior permission of the Special Court.
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