Delhi High Court
K.N. Aggarwal vs State Through Central Bureau Of ... on 17 July, 1990
Equivalent citations: 42(1990)DLT285
Author: Y.K. Sabharwal
Bench: Y.K. Sabharwal
JUDGMENT Y.K. Sabharwal, J.
(1) By this application filed under section 438 code of Criminal Procedure, the petitioner seeks grant of anticipatory bail against apprehended arrest for the various offences alleged to have been committed him in respect of FIR/Crime No. 1 (SIG) (S)/90 dated 25th May 1990 (2) According to the First Information Report, the date and time of occurrence is "1989 and earlier", the name of the complainant or the informant is "official records, source information and press correspondents.'., and besides the petitioner the accused are (I )Sh.K.L. Verma, Former Director, Directorate of Enforcement, Government of India, New Delhi; (2) Sh. A.P. Nandi, Deputy Director, Directorate of Enforcement; New Delhi; (3) Sh. Chandraswamy @ Hem Chand; (4) Mr. Larry Kolb, U.S.- National; (5) Mr. George D. Maclean, Former Md, First Trust Corporation Ltd, now settled in Canada and other public servants and private persons. It is alleged that accused persons have committed various offences but, for the present, this court is to consider only offence under section 468 Indian Penal Code as admittedly all other offences mentioned in the Fir are bailable.
(3) The First Information Report is a fairly lengthy document. The Fir is a sequel to publication of a news 'item in some -newspapers alleging that an account No. 29479 with First Trust Corporation Ltd.,' St. Kitts had been opened in the name of Sh. Ajay Singh S/o Sh. V.P. Singh in which the later was shown as beneficiary and the visit of Sh. A.P. Nandi to Usa and St. Kitts and submission of a report by him on return from the said countries. Reference is made in Fir, inter-alia, to the visit of A.P. Nandi to Miami and New York in U.S.A. and St. Kitts and after return to the submission of his report on 9th 0ctober l989 to Directorate of enforcement with which he enclosed the statements of four persons including Mr. Maclean and other persons mentioned in the FIR. According to his report Nandi stated that it was "confidential clear" that the .account in question was being maintained by Sh. Aj'ay Sing with Sh. V.P. Singh as beneficiary. He is said to have added that he had arrived at this conclusion on the basis of statements of four persons and the documents. The Fir records that it is learnt that no such account was opened by Ajay Singh at St. Kitts. The illegal acts/overt facts attributed to the petitioner are :
1. He visited United States Along with Mr. Chandraswamy and Mr. A.P. Nandi and further visited St. Kitts Along with Mr. Chandraswamy, Mr. Larry Kolb and Mr. Nandi.
2. He was a party to criminal conspiracy for the purpose of fabricating false bank documents at Stamford (Connecticut) in the house of Dev Ketu, a disciple of Mr. Chandraswamy.
3. He talked over phone at Indian High Commission, Port of Spain on 5th October 1989 to confirm whether action was being taken on the Faz message sent there for seeking assistance of St. Kitts Government in the enquiry.
4. Again on 6th October 1989 in the evening, he telephoned the Indian High Commission at Port-of-Spain at his residence in the aforesaid connection and claimed himself to be a family friend of Sh.Narsimha Rao.
(4) According to the Fir named accused persons and others were parties to a criminal conspiracy to fabricate false records/evidence which was intended to be used in connection with false and malicious proceedings under Foreign Exchange Regulation Act and to harm the reputation of and to cause injury to Sh. V.P. Singh and Sh. Ajay Singh.
(5) I have heard Mr. Mathur who has vehemently canvassed in favor of grant of anticipatory bail and Mr. Arun Jaitley, learned Additional Solicitor General who has vehemently opposed the grant of anticipatory bail to the petitioner. In which case to grant anticipatory bail and in which case to refuse it is-a matter of direction of the court. There are no inflexible rules governing the grant or refusal to grant the anticipatory bail. The law .on this point is well settled by the decision of the Supreme Court in Gurbaksh Singh v. State of Punjab . By this decision the Supreme Court has set aside the decision of the Full Bench of Punjab and Haryana High Court reported in Air 1978 Punjab and Haryana page 1. The Full Bench decision of the High Court had formulated eight point Code setting out in which cases to grant and in which cases not to grant the anticipatory bail. Chief Justice Chandrachud speaking for the Supreme Court said that in practice .it was very. difficult to apply eight point Code formulated by the High Court. One of the proposition laid down by the High Court said "The larger interest of the public and State demand that in serious cases like economic offences involving the blatant corruption at the higher rungs of the Executive and Political power, the discretion under section 438 of the Code should not be exercised. "Commenting on this proposition the Supreme Court said "How can the court, even if it had a third eye, assess the blatantness of corruption at the stage of anticipatory bail? And will it be correct to say that blatantness of the accusation will suffice for rejecting bail, even if the applicant's conduct is painted in colours too lurid to be true ?" While commenting upon another proposition framed by the High Court the Supreme Court said that it is understandable that if malafides are shown anticipatory bail should be granted in the generality of cases. It further went on to say that "but it is not easy to appreciate why an application for anticipatory bail must be rejected unless the accusation is shown to be malafide."
(6) There cannot be any doubt that when political vendetta is prima facie shown ordinarily an applicant will be entitled to bail but converse need not necessarily follow. It cannot be said that absence of prima facie finding about political vendetta, where one is alleged, should necessarily lead to the dismissal of the application seeking anticipatory bail. No single factor by itself may be sufficient justifying grant or refusal to grant the anticipatory bail. The combined effect of all circumstances is the determining factor. The question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
(7) Reverting to the present case, before noticing the contentions of the parties, it will be useful to reproduce Sections 415 & 468 Indian Penal Code which read as under:-
"415: Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or limit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat."
Explanation-A dishonest concealment of facts is a deception within the meaning of this section."
"68: Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of cither description for a term which may extend to seven years, and shall also be liable to fine."
(8) There is a serious controversy between the parties whether on the allegations made in the Fir offence under section 468 Indian Penal Code is made out or not. Mr. Mathur contended that nowhere in the Fir it is alleged that the accused committed forgery with intention to use the forged documents for the purpose of cheating.' He urged that though Fir is a lengthy document, it does not even use the word 'Cheating' at any place. On the other hand, Mr. Jaitley canvassed, that there is nothing sacrosanct in- the use of the word 'cheating' in the Fir . and urged that reading of Fir as a whole and considering the combined effect of all allegations made in the Fir, clearly makes out offence under section 468 read with Section 415 IPC.
(9) Dealing with the other contention of Mr. Mathur that in the Fir it is not even alleged as to who was deceived, Mr. Jaitley contended that Directorate of Enforcement and Government of India were deceived inasmuch as they were intentionally induced to register a case against Ajay Singh under Foreign Exchange Regulation Act which would not have been done if the Directorate of Enforcement and Government of India had not been deceived and this has caused damage and, in any case, likely to cause damage to the reputation of Directorate of Enforcement and Government of India and they will be "the person so deceived," within the meaning of Section 415 IPC.
(10) Mr. Mathur also contended that assuming for the present purposes the allegations in the Fir to be correct it only shows that some help was rendered by the petitioner while an official of the Government of India was investigating into the alleged opening of a bank account by Ajay Singh at St. Kitts and urged that the acts attributed to the petitioner do not even prima faces show commission of an offence under section 468 Indian Penal Code by him. According to learned counsel the alleged illegal acts/overt acts only show meeting of the petitioner with certain people named in the FIR. Another submission of counsel was that as only -vague and general .allegations about criminal conspiracy for purpose of fabricating false bank account have been made, the petitioner is entitled to grant of anticipatory bail. The other contentions put forth on behalf of the petitioner are briefly these :-
(a)The original documents alleged to have been forged have admittedly .not been obtained and there can be no question of forgery on the basis of photostat copies of the documents. (b) Petitioner was arrested by the Directorate of Enforcement on 23rd February 1990 on a non-existing and false charge of having received foreign exchange outside India and the petitioner was confined to jail custody for a period of 60 days but the Directorate of Enforcement could not file any complaint within 60 days and, therefore the petitioner was released on bail as a right. (c) The present case is a result of the political vendetta against the petitioner. (d) It is not shown when and where conspiracy was hatched which forged documents were used and how; and (e) The petitioner is an old man of 66 years and is suffering from Eschemia of heart, excessive blood pressure and hypertension for the last so many years and was confined to Coronary Care Unit of R.M.L. Hospital from 19th March 1990 to 25th April 1990 which by itself shows the seriousness of the illness from which he is suffering.
(11) On the other hand Mr. Jaitley while vehemently refuting all grounds put forth on behalf of the petitioner, contended that :-
(I) non-filing of the complaint in an earlier case does not show any political vendetta and rather it shows the bonafides of the Government. (ii) Such matters by the very nature of things are likely to take considerable time before complaint could be filed because the investigation is required to be conducted in various countries. (iii) The petitioner was the kingpin in the conspiracy to forge documents and his arrest was necessary for the recovery of important material evidence. (iv) The rich and influential people like the petitioner with high contacts and where the investigation is required to be conducted in foreign countries are not entitled to grant of anticipatory bail; and. (v) Forgeries mentioned in the Fir were committed by misuse of permission granted in other proceedings to the petitioner to visit foreign country.
(12) It may be noticed that the respondent has not filed any reply to the application but aforementioned contentions have been made on its behalf.
(13) At this stage this Court does not consider it expedient to express any opinion on each of the aforesaid contentions separately, be it a contention on behalf of the petitioner or the respondent. Prima facie is cannot be said at this stage that the petitioner missed the permission granted earlier as contended on behalf of the respondent. Any expression of opinion at-this stage on the specific points urged by counsel for the parties may result in causing prejudice to the case of one or the other party. The mere fact that the political vendetta is prima facie not shown by itself is not a ground to refuse anticipatory bail to the petitioner. With a view to decide in which way the discretion should be exercised the cumulative effect of all the facts and' circumstances is to be seen and bearing in mind the totality of the circumstances, I will only say that the petitioner has made out a case for being granted anticipatory bail.
(14) Accordingly, I direct that in the event of arrest of the petitioner in connection with Fir No. Crime No, 1 (SIG) (S)/90 dated 25th May 1990 he shall be released on bail on his furnishing personal bond in the sum of Rs. 2 lakhs with one surety of the like amount to the satisfaction of the Investigation Officer/Arresting Officer. The petitioner shall, however, be required to comply with the following conditions :-
1. The petitioner shall not leave India except with the permission of the court.
2. For a period of one month, the petitioner shall report to Investigating Officer on every Monday at 11.00 A.M.
3. The petitioner shall join investigation as and when called upon to do so.
4. The petitioner shall not temper with evidence and refrain from, directly or indirectly, contacting the witnesses.
(15) The petition is diposed of in the above terms. dusty.