Gujarat High Court
Kailash Ramkishan Gupta vs State Of Gujarat And Others on 13 January, 2016
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
R/CR.MA/18991/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION
(FOR REGULAR BAIL)
NO. 18991 of 2015
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KAILASH RAMKISHAN GUPTA ....Applicant
Versus
STATE OF GUJARAT AND OTHERS ....Respondents
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Appearance:
MR. SHALIN MEHTA, SR. ADVOCATE with
MR. RAHUL R DHOLAKIA, ADVOCATE for the Applicant
MS. JIRGA JHAVERI, Additional Public Prosecutor for the State
MS. TRUSHA K PATEL, ADVOCATE for the Enforcement Directorate
MR. NAVIN K. PAHWA, ADVOCATE for
THAKKAR AND PAHWA ADVOCATES for the complainant
National Multi Commodity Exchange
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 13/01/2016
CAV ORDER
1. This is a successive application for regular bail. The
applicant is in judicial custody in connection with CR-I No.27 of
2012 dated 27.04.2012 registered with the D.C.B. Police
Station, Ahmedabad for the offences punishable under
Sections 406, 409, 420, 465, 467, 468, 471, 477(A) read with
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Section 120(B) of the Indian Penal Code.
2. This Court had, vide order dated 30.07.2013 recorded on
Criminal Misc. Application No. 11094 of 2013, refused to
enlarge the applicant on bail, for the reasons recorded therein.
3. Against the above order, the applicant had moved
Hon'ble the Supreme Court of India by filing SLP (Criminal)
No.6795 of 2013. The said SLP is dismissed vide order dated
04.09.2014. During the pendency of the said SLP, the applicant
was granted temporary bail by the Supreme Court vide order
dated 03.01.2014. While rejecting the SLP, the temporary bail
was also cancelled and the applicant was given time to
surrender and he had surrendered at the relevant time.
4. After the order of the Supreme Court of India dated
04.09.2014, the applicant attempted to move the Designated
Court for bail but the said application was not accepted by the
Registry of the said Court, since the papers of the Criminal
Case No.135 of 2013 were not transferred to the said Court.
Under these circumstances, the applicant filed bail application
before the Ahmedabad City Sessions Court, being Criminal
Miscellaneous Application No.3108 of 2015, which had earlier
rejected the bail application. The Additional Sessions Judge,
Ahmedabad City did not entertain the said application, since
the case was committed to the Special Court under the
Prevention of Money Laundering Act, 2002. It therefore
directed the applicant to move the proper Court. All these
aspects are reflected in the order dated 04.09.2015 passed by
the Additional Sessions Judge, Ahmedabad City, recorded on
the Criminal Miscellaneous Application No.3108 of 2015.
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5. Thereafter, the applicant moved the Court of the Sessions
Judge, Ahmedabad (Rural) which is the Designated Court under
the Prevention of Money Laundering Act, 2002 Act for the case
in hand. The said application was registered as Criminal
Miscellaneous Application No.1600 of 2015. The said
application is rejected vide order dated 23.09.2015.
6. It is under these circumstances, the applicant has
renewed his prayer for regular bail before this Court in this
application.
7. Heard learned advocates.
8. Learned advocates for the respective parties have
addressed the Court at length, including on the merits of the
main matter. Learned advocates have extensively referred to
the material on record, which runs into about 1200 pages. All
those contentions and submissions are not reflected and dealt
with by this Court in this order, since it may prejudice the case
of either of the parties at the time of the trial. Only those
aspects, which may have bearing on the decision, as to
whether bail should be granted or refused, are gone into by
this Court, that too, to the extent necessary. It is also noted
that, number of authorities are cited on behalf of the applicant
and the complainant.
9. This being the successive application for bail, the
principles to be kept in view by this Court at this stage, are
traced in the decision of Honourable the Supreme Court of
India, as referred to by Mr.Pahwa, learned advocate for the
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complainant, in the case of Kalyan Chandra Sarkar vs. Rajesh
Ranjan @ Pappu Yadav reported in (2005) 2 SCC 42. Relevant
observations are as under.
" 19. The principles of res judicata and such
analogous principles although are not
applicable in a criminal proceeding, still the
courts are bound by the doctrine of judicial
discipline having regard to the hierarchical
system prevailing in our country. The findings
of a higher court or a co-ordinate bench must
receive serious consideration at the hands of
the court entertaining a bail application at a
later stage when the same had been rejected
earlier. In such an event, the courts must
give due weight to the grounds which weighed
with the former or higher court in rejecting
the bail application. Ordinarily, the issues
which had been canvassed earlier would not be
permitted to be re-agitated on the same
grounds, as the same would lead to speculation
and uncertainty in the administration of
justice and may lead to forum hunting.
20. The decisions given by a superior forum,
undoubtedly, is binding on the subordinate
fora on the same issue even in bail matters
unless of course, there is a material change
in the fact situation calling for a different
view being taken. Therefore, even though there
is room for filing a subsequent bail
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application in cases where earlier
applications have been rejected, the same can
be done if there is a change in the fact
situation or in law which requires the earlier
view being interfered with or where the
earlier finding has become obsolete. This is
the limited area in which an accused who has
been denied bail earlier, can move a
subsequent application. Therefore, we are not
in agreement with the argument of learned
counsel for the accused that in view of the
guaranty conferred on a person under Article
21 of the Constitution of India, it is open to
the aggrieved person to make successive bail
applications even on a ground already rejected
by courts earlier including the Apex Court of
the country."
10. Having heard learned advocates for respective parties
and having gone through the material on record, and keeping
in view the above parameters, this Court has to examine as to
whether there is any material change in the circumstances, in
favour of the applicant, and further what is the effect of the
confirmation of the order of rejection of bail of this Court dated
30.07.2013, by Hon'ble the Supreme Court of India vide order
dated 04.09.2014 recorded on SLP (Cri.) No. 6795 of 2013 and
other observations of Honourable the Supreme Court of India
in the said order dated 04.09.2014.
11. So far change of circumstances is concerned, two aspects
need to be examined:-(i) whether any amount has come back,
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from the amount alleged to have been siphoned away by the
applicant, and (ii) what is the likelihood of the trial being
concluded / commenced.
12. So far the first point, as to whether any amount has come
back from the amount alleged to have been siphoned away at
the instance of the applicant, or not, is concerned, the
following facts need to be noted.
12.1 The allegation is of siphoning of an amount to the tune of
Rs. 28 crores. According to the applicant, the entire amount
has come back, according to the complainant no amount has
come back. Under these circumstances, this factual aspect was
required to be assigned to some appropriate authority. Hon'ble
the Supreme Court of India had, for this purpose, taken
assistance of the Directorate of Enforcement, Department of
Revenue, Ministry of Finance, Government of India. Reference
can be made to the order dated 07.10.2013 passed by the
Supreme Court on SLP (Criminal) No. 6795 of 2013. Before this
Court also, the said Enforcement Directorate is joined as party
respondent.
12.2 On behalf of the Enforcement Directorate, an affidavit
dated 04.11.2015 is filed, inter alia stating therein to the effect
that, an amount to the tune of Rs.20 crores approximately, has
been returned back in the account of the complainant itself,
out of the defrauded amount which is to the tune of Rs.28
crores approximately. Since this was the major change of
circumstance in favour of the applicant and which was going to
the root of the matter, to be doubly sure, this Court passed the
following order on 05.11.2015.
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"1. Learned advocates for the respective parties
are heard at length.
2. The contents of the affidavit filed on behalf
of respondent No.2 the Enforcement Directorate
dated 04.11.2015, inter alia reads as under.
"26. During the course of further
investigation under Prevention of Money
Laundering Act, 2002, statements of various
persons were recorded under Section 50 of
the PMLA, 2002, it prima facie appears that
an amount to the tune of Rs.20 crore approx,
has been returned back in the account of M/s
NMCE itself out of the defrauded amount to
the tune of Rs.28 crore approx. The subject
statements had been recorded by the then
Investigating Officer who has been
transferred."
3. There is subsequent affidavit filed by the
complainant dated 05.11.2015, in substance
asserting that, no money from the defrauded
amount has come back.
4. Respondent No.2 - the Enforcement Directorate
need to clarify the above.
5. List for further consideration on 27.11.2015."
12.3 Pursuant to the above order dated 05.11.2015, the
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Enforcement Directorate has filed further affidavit on
13.11.2015, annexing therewith the documents of more than
450 pages. The substance of the said affidavit is that an
amount of Rs.18.22 crores, has been returned back in the
account of the complainant itself out of the defrauded amount
to the tune of Rs.28 crore approximately. The Enforcement
Directorate has explained the complete trail of the proceeds of
the crime and has confirmed that after completion of the
investigation, now it is confirmed that the said amount has
come back.
12.4 Ms.Trusha Patel, learned advocate for the
Enforcement Directorate, while opposing grant of bail, has, on
the basis of the affidavits and the instructions, categorically
confirmed that it is true that the amount to the tune of Rs.
18.22 crores has come back. It is also confirmed that it is the
same amount which is allegedly siphoned away by the
applicant.
12.5 In view of above, it is recorded that this is a major
factor on merits in favour of the applicant. Since this stand has
come on behalf of the Enforcement Directorate only now,
which is after completion of the investigation and which is
subsequent to the order of Hon'ble the Supreme Court of India
dated 04.09.2014, this is accepted to be a change of
circumstance in favour of the applicant.
13. So far the stage of the trial is concerned, the following
facts need to be mentioned.
13.1 After the order of the Supreme Court of India dated
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04.09.2014, the applicant attempted to move the Designated
Court for bail but the said application was not accepted by the
Registry of the said Court, since the papers of the Criminal
Case No.135 of 2013 were not transferred to the said Court.
Under these circumstances, the applicant filed bail application
before the Ahmedabad City Sessions Court being Criminal
Miscellaneous Application No.3108 of 2015, since that Court
had earlier rejected the bail application. The Additional
Sessions Judge, Ahmedabad City did not entertain the said
application, since the case was committed to the Special Court
under the Prevention of Money Laundering Act, 2002. It
therefore directed the applicant to move the proper Court. All
these aspects are reflected in the order dated 04.09.2015
recorded on the Criminal Miscellaneous Application No.3108 of
2015.
13.2 In above circumstances, the applicant moved the Court
of the Sessions Judge, Ahmedabad (Rural) which is the
Designated Court under the Prevention of Money Laundering
Act, 2002 Act for the case in hand. The said application was
registered as Criminal Miscellaneous Application No.1600 of
2015. The said application is rejected vide order dated
23.09.2015, inter-alia observing as under.
" 5. Considering the above arguments in this
case the jurisdiction is required to be decided
first. Without touching to the merits of the
case this Court is of the opinion that this
Court is established by the Act under Ordinance
of Central Government and as per the provisions
of PMLA ED can file any complaint against any
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person who has committed the offence trialable
under PMLA. At present this Court can not decide
this matter on merits because the original
charge sheet and other relevant papers are lying
with DCB Crime or with the learned Magistrate
Court. As it transpires from the arguments of
the learned advocates that commital order has
been passed by the learned Magistrate but
according to the provisions of PMLA there is no
provision of committing the case and therefore,
only way remain with the DCB Crime is to take
back the original papers from the appropriate
court and transmit it to the E.D. and E.D. can
produced it before this Court. I agree with the
arguments advanced by the learned D.G.P. Mr.
Trivedi that in absence of papers this Court can
not decide the present application on merits;
but at the same time since long period neither
the DCB Crime or the ED are doing progress for
bringing/ producing original papers before this
Court and in absence of relevant papers this
Court can not decide the matter. At the same
time the learned City Sessions Judge has passed
an order in Criminal Misc. Appl.No. 3108 of 2015
dated 04.09.2015 that application for getting
bail be move before the appropriate Court and
this Court has already bailed out the accused
under PMLA matter. Therefore, I am of the
opinion that unless and until the papers are
produced before this Court, this Court can not
decide the matter on merits and therefore in
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absence of papers this Court can not pass any
order on merits and considering procedural
aspect this Court is unable to pass any
appropriate order for necessary for producing
the original papers. Hence, without touching to
the merits of the case the present application
is required to be rejected. Hence, the order.
ORDER
This application is hereby rejected.
Registry is directed to keep copy of this order in Criminal Misc. Appl. No. 1649 of 2015."
13.3 In view of above this Court finds that, not only the trial is not likely to be concluded in the near future, it is not likely even to commence in near future. This is also a factor in favour of the applicant.
14. Coming to the next point as to what is the effect of the confirmation of the order of rejection of bail of this Court dated 30.07.2013, by Hon'ble the Supreme Court of India vide order dated 04.09.2014 recorded on SLP (Cri.) No. 6795 of 2013 and other observations of Honourable the Supreme Court of India in the said order dated 04.09.2014, the following aspects need to be noted.
14.1 The following are the observations of Honourable the Supreme Court of India in the said order dated 04.09.2014:-
"....But what distresses us the most is the statement made by the petitioner's counsel that the petitioner is unable to state as to when Page 11 of 13 HC-NIC Page 11 of 13 Created On Thu Jan 14 03:17:47 IST 2016 R/CR.MA/18991/2015 CAV ORDER his son will come to India to join investigation. Learned senior counsel, on instructions from the petitioner, stated that the petitioner has no control over his son. We refuse to believe this statement. The petitioner and his son are prima face involved in the instant crime. In any case, the petitioner's son is the beneficiary of the embezzlement prima facie committed by the petitioner. The petitioner's helplessness appears to be feigned.
We are informed that the petitioner evaded arrest from 26.04.2012 to 30.03.2013. His son, who is one of the main accused, is refusing to join investigation. The petitioner made a statement that his son will return to India to join investigation and this statement was recorded by the High Court in its order dated 30- 7-2013. But till date, the assurance given to the High Court is not fulfilled. Even this Court had directed the petitioner to facilitate his son's coming back to India to join investigation, however, there is no positive response from the petitioner. His approach is evasive. There is no doubt that this purpose is to shield his son...."
14.2 It is noted that the son of the applicant has even now not joined the investigation.
14.3 On conjoint consideration of the above quoted observations of Supreme Court, the factual aspect of the Page 12 of 13 HC-NIC Page 12 of 13 Created On Thu Jan 14 03:17:47 IST 2016 R/CR.MA/18991/2015 CAV ORDER applicant's son not joining the investigation even now, and the parameters to be kept in view while considering the successive bail application, as prescribed by Hon'ble the Supreme Court of India in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan @ Pappu Yadav (supra), it would be inappropriate for this Court to exercise discretion in favour of the applicant to grant him bail.
15. On over all consideration this Court finds that, two major factors are in favour of the applicant, the details of which are recorded in Para:12 and 13 above. As against that, there is a major factor against the applicant as noted in Para-14 above. In totality it is concluded that, it would be inappropriate for this Court to exercise discretion in favour of the applicant to grant him bail. This application therefore needs to be dismissed.
16. For the reasons recorded above, this application is dismissed.
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