Allahabad High Court
Smt. Deepa Jain vs C.B.I. on 11 November, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 8220 of 2022 Applicant :- Smt. Deepa Jain Opposite Party :- C.B.I. Counsel for Applicant :- Shishir Tandon Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Samit Gopal,J.
1. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Shishir Tandon, learned counsel for the applicant, Sri Gyan Prakash, learned Senior Advocate/Deputy Solicitor General of India assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. and perused the record.
2. The present anticipatory bail application under Section 438 Cr.P.C. has been filed by the applicant-Smt. Deepa Jain, seeking anticipatory bail, in the event of arrest in Special Case No.2A of 2012, RC No.BDI/2010/E/0004, under Sections 120-B r/w 420, 467, 468, 471 IPC and Section 13(2) r/w 13(1(d) of the Prevention of Corruption Act, 1988 and substantive offence 468 IPC, P.S. CBI/BS & FC, New Delhi, during the pendency of trial before the court below.
3. An FIR was lodged on 6.5.2010 by A.K. Budhraja, Assistant General Manager, Union Bank of India, Agra against Santosh Kumar Jain, Amit Jain, Vivek Jain, Vinod Bala Jain, G.S. Mehta, S.P. Sharma and others with regards to fraud of Rs.1260.58 lakhs perpetrated by Directors and Officials of Alka Group of Company with Gandhi Eye Hospital, Branch Aligarh of the Bank stating that false and forged transport receipt of M/s Delhi-Indore Transport Company were fraudulently prepared, false invoices and bills of exchange of M/s NTF Pvt. Ltd., M/s Arihant Narrow Fabricks Pvt. Ltd., M/s Altra Auto Engineering Pvt. Ltd. and M/s Paras Polymers Ltd. showing supply of materials to M/s AIL and M/s ALPL were used as genuine by Santosh Kumar Jain to avail finance from Union Bank of India. The applicant was not named in the FIR. The investigation concluded and charge sheet was submitted against the applicant and other persons including the Companies.
4. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is not named in the FIR. While placing para 15 of the affidavit filed in support of anticipatory bail application, it is argued that the applicant is an employee of M/s Alka Internation Ltd. and M/s Locks Private Ltd and was receiving a salary of Rs.5,000/- per month. It is argued that the said fact has not been disputed in the counter affidavit by the C.B.I in para 26. It is further argued that the applicant has been made as an accused only because of the reason that her name contains the title "Jain" and as such she is being considered as one of the family members of the owners of the Companies and has been made as an accused. It is argued that the allegation against the applicant as per the charge sheet is on page 558 of the paper book in para 16.26 of the charge sheet wherein it is stated that the LC's were essentially accommodative in nature and no materials were purchased against the bills tendered for negotiation under the said LC's. The transport receipt pertaining to the said bills were prepared by the applicant and Smt. Geeta Varshney and no material was found supplied against the said bills. It is argued that thereafter the conclusion was drawn that the investigation could not reveal the authorship of the forged invoices/bills of exchange. While placing page 567 being para 16.40 of the charge sheet, it is argued that even in spite of the fact that the CBI stated that the authorship of the said documents could not be revealed, it concluded that the applicant has admitted having prepared the said transport receipts at the behest of S.K. Jain. Learned counsel for the applicant has argued that the same does not in any manner implicate the applicant in the present case. It is argued that no money was received by the applicant in her bank account. It is further argued that there is no evidence whatsoever to show as to who prepared the said forged bills. The same were signed by the owners of the Company. Learned counsel has further argued while placing annexure no.52 at page 586 of the paper book being a letter dated 4.4.2018 written by the Divisional Manager of the Bank that they have received the money towards final payment towards OTS proposal which has been approved and S.K. Jain of M/s Alka International was advised to withdraw all the cases against the bank so that the bank proceeds to issue NOC and release the documents held with it. It is argued that such the matter has been settled with the bank as the same has ended up through an OTS and now the bank has no grievance. It is argued that co-accused Vivek Jain has been granted regular bail vide order dated 13.5.2022 passed by Special Judge, Anti Corruption, CBI, Ghaziabad, copy of the order has been placed as annexure no.51. It is further argued that even co-accused Amit Jain, AGM G.S. Mehta (official of the bank) and other bank officials have also been granted bail by this Court which has been referred to in the order granting bail to co-accused Vivek Jain and as such the applicant be also directed to be released on anticipatory bail.
5. Per contra, learned counsel for the CBI opposed the prayer for anticipatory bail and argued that although the applicant was not named in the FIR but due to role in the present case, her name has surfaced during the investigation wherein it was found that she had prepared the transport receipts pertaining to bills on which no material was supplied. She is an employee of the Company and was instrumental in preparing the forged invoices and transport bills. While placing para 23 of the counter affidavit, it is argued that the signatures of the applicant and the said bills and receipts were sent to the CFSL, Hyderabad from where a report dated 6.5.2011 was submitted in which the handwriting of the applicant tallied with each other and as such the role of the applicant was clear from the same. It is argued that the applicant had dishonestly prepared false and forged transport receipt of M/s Delhi-Indore Transport Company Ltd. and had fraudulently prepared financial invoices and bills of exchange of M/s NTF Pvt. Ltd., M/s Arihant Narrow Fabricks Pvt. Ltd., M/s Altra Auto Engineering Pvt. Ltd. and M/s Paras Polymers Ltd. showing supply of materials to M/s AIL and M/s ALPL which were used as genuine by Santosh Kumar Jain to avail finance from Union Bank. While placing para no.35 of the counter affidavit, it is argued that the applicant had prepared the said documents which were used as genuine to avail facility of finance from the Bank. While placing Annexure No.2 to the affidavit filed in support of anticipatory bail application, it is argued that initially the applicant had preferred a Criminal Misc. Anticipatory Bail Application No.2299 of 2020 which was dismissed by coordinate Bench of this Court vide order dated 5.3.2022 as the applicant had approached directly to this Court but the applicant was directed to approach the Special Judge and move an anticipatory bail application before the said court. Subsequently the applicant absconded for about 2 years and then filed an anticipatory bail in the year 2022 before the concerned Special Judge which was rejected vide order dated 5.8.2022 and then is before this Court. It is argued that the matter relates to financial embezzlement and is an economic offence. Merely by stating that the accused persons and the Bank have entered into an OTS will not in any manner put the criminal proceedings at end. Hence the present anticipatory bail application be rejected.
6. After having heard the counsels for the parties and perusing the records, it is evident that the applicant was although not named in the FIR but was included as an accused during investigation. Subsequently a charge sheet was submitted against the applicant and other accused persons on which vide order dated 6.2.2012 she was summoned but subsequently since an order was passed by the Lucknow Bench of this Court in Company Petition No.15 of 2012 staying the arrest of the applicant, the matter remained pending. Subsequently the said Company Petition No.15 of 2012 came to be dismissed vide order dated 12.9.2019 and the interim order was discharged. Subsequently the applicant was again summoned vide order dated 18.4.2022 passed by the trial court. The charge sheet specifically states that the applicant prepared forged bills and transport receipts but no material was supplied. The acceptance of one time settlement offer by the Bank will not in any manner purge the offence and put the criminal proceedings at naught. Even the opinion of the Forensic Science Lab is conclusive of the fact that the said invoices and transport receipts were prepared by the applicant. The matter relates to economic offence.
7. The Apex Court while deciding a matter of economic offence at the stage of anticipatory bail has in paragraph no's. 69, 72, 76, 77, 78, 80 and 81 has in the case of P. Chidambaram v. Directorate of Enforcement : (2019) 9 SCC 24 held that power under Section 438 Cr.P.C. is an extraordinary power and has to be exercised sparingly, it should be granted only in exceptional cases, nature and gravity if offence has to be seen and refusal to grant anticipatory bail would not amount to denial of the rights conferred upon the accused under Article 21 of the Constitution of India. It was further held that cases of economic offences stand as a different class as they affect the economic fabric of the society. It was observed that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community. It was held as under:
"69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.
72. We are conscious of the fact that the legislative intent behind the introduction of Section 438 CrPC is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights--safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India.
76. In Siddharam Satlingappa Mhetre v. State of Maharashtra [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514], the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
77. After referring to Siddharam Satlingappa Mhetre [Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : (2011) 1 SCC (Cri) 514] and other judgments and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar [Jai Prakash Singh v. State of Bihar, (2012) 4 SCC 379 : (2012) 2 SCC (Cri) 468] , the Supreme Court held as under : (SCC p. 386, para 19) "19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran [D.K. Ganesh Babu v. P.T. Manokaran, (2007) 4 SCC 434 : (2007) 2 SCC (Cri) 345], State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain [State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1 SCC 213 : (2008) 1 SCC (Cri) 176] and Union of India v. Padam Narain Aggarwal [Union of India v. Padam Narain Aggarwal, (2008) 13 SCC 305 : (2009) 1 SCC (Cri) 1] .)"
78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail.
80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 : 1987 SCC (Cri) 364], it was held as under : (SCC p. 371, para 5) "5. ... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest."
81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552], the Supreme Court held as under : (SCC p. 449, paras 34-35) "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."
(emphasis supplied)"
8. In the case of Sushil Suri v. CBI : (2011) 5 SCC 708 the Apex Court has ruled that payment of bank dues cannot exonerate the accused from criminal liability. It has been held in para 35 as follows:
"35. We respectfully concur with the afore extracted observations. In the final analysis, we hold that merely because the dues of the Bank have been paid up, the appellant cannot be exonerated from the criminal liability. Therefore, the charge-sheet against him cannot be quashed."
9. Accordingly, the anticipatory bail application is rejected.
(Samit Gopal, J.) Order Date :- 11.11.2022 Gaurav