Allahabad High Court
Divya Verma vs State Of U.P. And 2 Others on 20 April, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 49 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4435 of 2023 Applicant :- Divya Verma Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Ami Tandon,Sr. Advocate Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Rajeev Misra,J.
1. Heard Mr. Anurag Khanna, the learned Senior Counsel assisted by Mr. Ami Tandon, the learned counsel for applicant and Mr. Gyan Prakash, the Deputy Solicitor General of India assisted by Mr. Sanjay Kumar Yadav, the learned counsel representing opposite party-1 i.e. C.B.I.
2. Perused the record.
3. This application for anticipatory bail has been filed by applicant-Divya Verma in connection with F.I.R. No. RC-0219-216 (E) 0008 dated 16.5.2016, under sections 120B, 406, 420, 468, 471, 411 IPC, Police Station C.B.I./E.O-I Bew Delhi
4. Record shows that in respect of criminality alleged to have been committed on different dates by named accused, an F.I.R. dated 16.5.2016 was lodged by first informant namely Anjan Chattopadhyay, which was registered as F.I.R. No. RC-0219-216 (E) 0008 dated 16.5.2016, under sections 120B, 406, 420, 468, 471, 411 IPC, Police Station C.B.I./E.O-I Bew Delhi. In the aforesaid F.I.R. 4 persons namely, Ashwani Channa, Firish Chanana, Jagmandar Dass Jain and M/s CVS Steels Pvt Ltd have been nominated as named accused.
5. After registration of aforesaid F.I.R, Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by Investigating Officer during course of investigation, he came to the conclusion that not only the complicity of named accused but certain other persons are also established in the crime in question. Accordingly he submitted police report (charge sheet) under section 173(2) Cr.P.C. on different dates. All the named accused have been charge sheeted vide charge sheet dated 29.12.2017. Subsequently, Investigating Officer submitted supplementary charge sheet dated 30.6.2022, whereby 19 persons including applicant have been charge sheeted.
6. After submission of aforesaid report, cognizance was taken upon same by court concerned and summons were issued to the charge sheeted accused.
7. Mr. Anurag Khanna, the learned Senior Counsel submits that one of the accused who was charge sheeted under the supplementary charge sheet referred to above, namely, Manoj Bansal, approached this Court by means of Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1978 of 2023 (Manoj Bansal VS. Central Bureau Investigation through its S.P.). The said application came to be allowed vide order dated 28.2.2023. For ready reference, the same is reproduced herein under:
"1. Heard Sri Anurag Khanna, learned Senior Advocate, assisted by Sri Raghav Dev Garg, learned counsel for the accused-applicant and Sri Gyan Prakash, learned Senior Advocate and Deputy Solicitor General of India, assisted by Sri Sanjay Kumar Yadav for the Central Bureau of Investigation (for short ?CBI?) and perused record.
2. The present application under Section 438 Cr.P.C. has been filed seeking bail in anticipation of his arrest in F.I.R. No. RC-0219-2016 (E) 0008 dated 16.05.2016, under Sections 120-B, 406, 420, 468, 471, 411 I.P.C. and substantive offences thereof, Police Station C.B.I./E.O.-I, New Delhi.
3. A complaint dated 04.09.2015 was received from Sri Anjan Chattopadhyay, Assistant General Manager of Punjab National Bank against Sri Ashwani Chanana and others. The allegation in the F.I.R. in brief is that Sri Ashwani Chanana, and Sri Girish Chanana, the Directors of M/s C.V.S. Steels Private Limited had obtained a Cash Credit Limit of Rs.900 Lakhs and Term Loan of Rs.8.80 Lakhs for running business of manufacturing and sale and purchase of items in steel which was renewed to the company on 04.03.2010 against the hypothecation of goods and book debts. To secure the loan, the original title deed of House No. KB-46, Kavi Nagar, Ghaziabad, was deposited in the bank by one Sri Jagamandar Dass Jain, for the purpose of creating Equitable Mortgage. The said house being a lease hold property, Sri Jagamandar Dass Jain/borrowers also furnished a letter dated 18.11.2011 purportedly issued by the Ghaziabad Development Authority granting permission to mortgage the said lease hold property. Since the permission period of three years was to run out on 17.11.2014, the officials of the bank wrote a request letter to Ghaziabad Development Authority for extension of permission to mortgage for a further period of 3 years. Thereafter, the Ghaziabad Development Authority vide letter dated 27.03.2015 had apprised that the permission to mortgage dated 18.11.2011 was not issued by the office of Ghaziabad Development Authority and it was a forged letter. Further allegation was that the accounts of the company became highly irregular and the borrower did not repay the loan amount despite repeated reminders by the bank, hence the account of the borrower was classified as NPA 31.03.2014 with total outstanding amount of Rs.10,15,59,249/- and 50 paise.
4. After investigation of the case, charge sheet has been filed against six persons, including one public servant. In respect of Sri R.K. Sharma, the then Assistant General Manager, Punjab National Bank, Noida, the prosecution sanction for prosecuting the said public servant was denied under Section 19 of the Prevention of Corruption Act.
5. Allegation against the accused-applicant, who was a partner of the firm known as M/s Universal Steel and Alloys, is regarding diversion and round-tripping of the funds of the bank, which was made available to M/s C.V.S. Steels Private Limited by the bank.
6. Sri Anurag Khanna, learned Senior Advocate for the accused-applicant has drawn the attention of the Court towards some documents to show that the accused-applicant had resigned from the partnership of the aforesaid firm in the year 2007, whereas the allegation of round-tripping and depositing some amount in the account of M/s Universal Steel and Alloys is of the year 2009. He further submits that when the accused-applicant was not the partner of the said firm, which is evident from Form-15 of the U.P. Trade Tax Act and Rules made thereunder, in which it was clearly mentioned that there were only two partners and the accused-applicant was not the partner at that time, the allegation against the accused-applicant that he was also involved in the alleged commission of offence, would not be justified. He has also drawn the attention of the Court towards the audited balance sheet of M/s Universal Steel and Alloys dated 29.8.2008, which also mentioned the names of only two partners and the accused-applicant was not a partner. He also submits that it appears that name of the accused-applicant remained in the bank account of the firm as one of the partners and on that basis, he has been made an accused, but in fact he had resigned from the partnership firm way back in the year 2007 itself. He, therefore, submits that there is hardly any evidence to connect the accused-applicant in the commission of offence and, therefore, he may be enlarged on anticipatory bail.
7. On the other hand, Sri Gyan Prakash, learned counsel for the CBI has submitted that the accused-applicant did no produce these documents/papers during the investigation. These papers which are being shown and have been filed with the anticipatory bail application, do not form part of the charge sheet/CBI report. He has further submitted that name of the accused-applicant was not struck off from the account of the firm in the bank and all the partners, who are the account holders, have been made accused.
8. I have considered the submissions advanced on behalf of the learned counsel for the parties.
9. Two other accused are the brothers of the accused-applicant. It appears that the partnership firm was a family concern. However, some Government documents would suggest that the accused-applicant had resigned from the partnership firm in the year 2007.
10. Considering the aforesaid facts and circumstances of the case and the documents which have been placed on record, this Court is of the view that the accused-applicant is entitled to be admitted on anticipatory bail.
11. Accordingly, this anticipatory bail application is allowed and it is directed that accused-applicant shall appear before the trial court within seven days from today and furnish a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. On furnishing personal bond and sureties, the accused-applicant shall be admitted on anticipatory bail in the aforesaid case crime number subject to the following conditions:-
(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation;
(ii) That the accused- applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the cases so as to dissuade him from disclosing such facts to the court or to any police officer; and
(iii) That the accused-applicant shall not leave India without previous permission of the Court.
12. In case of breach of any of the said conditions or in case it is otherwise found for any other reason the bail is required to be cancelled, it shall be open for the State or the appropriate authority to move an application for cancellation of bail in accordance with law. "
8. Another co-accused Nishu Chawla, also approached this Court by means of Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 1995 of 2023 (Nishu Chawla Vs. Central Bureau of Investigation (CBI). The said application came to be dismissed vide order dated 21.2.2023. For ready reference, same is reproduced herein under:
"1. Heard Sri Anurag Khanna, learned Senior Advocate in support of this application assisted by Sri Raghav Dev Garg, learned counsel for the accused applicant and Sri Gyan Prakash, learned Senior Advocate and Deputy Solicitor General of India, assisted by Sri Sanjay Kumar Yadav for the C.B.I. and perused record.
2. The present bail application under Section 438 Cr.P.C. has been filed seeking anticipatory bail in anticipation of his arrest in F.I.R. No. RC-0219-2016 (E) 0008 dated 16.05.2016, under Sections 120-B, 406, 420, 468, 471 I.P.C. and substantive offences thereof, Police Station C.B.I./E.O.-I, New Delhi.
3. A complaint dated 04.09.2015 was received from Sri Anjan Chattopadhyay, Assistant General Manager of Punjab National Bank against Sri Ashwani Chanana and others. The allegation in the F.I.R. in brief is that Sri Ashwani Chanana, and Sri Girish Chanana, the Directors of M/s CVS Steels Pvt Ltd had obtained a Cash Credit Limit of Rs.900 lacs and Term Loan of Rs.8.80 lacs for running business of manufacturing and sale & purchase of items in steel which was renewed to the company on 04.03.2010 against the hypothecation of goods and book debts. To secure the loan, the original title deed of House No. KB-46, Kavi Nagar, Ghaziabad, was deposited in the bank by one Sri Jagamandar Dass Jain, for the purpose of creating Equitable Mortgage. The said house being a lease hold property, Sri Jagamandar Dass Jain/borrowers also furnished a letter dated 18.11.2011 purportedly issued by the Ghaziabad Development Authority granting permission to mortgage the said lease hold property. Since the permission period of three years was to run out on 17.11.2014, the officials of the bank wrote a request letter to Ghaziabad Development Authority for extension of permission to mortgage for a further period of 3 years. Thereafter, the Ghaziabad Development Authority vide letter dated 27.03.2015 had apprised that the permission to mortgage dated 18.11.2011 was not issued by the office of Ghaziabad Development Authority and it was a forged letter. Further allegation was that the accounts of the company became highly irregular and the borrower did not repay the loan amount despite repeated reminders by the bank, hence the account of the borrower was classified as NPA 31.03.2014 with total outstanding amount of Rs.10,15,59,249.50.
4. The role of the accused applicant came fore during the course of investigation in commission of offence of banking fraud and cheating. The accused applicant was sole proprietor of M/s Signature Imports and Exports. The investigation revealed that from M/s CVS Steels Private Limited on the date 23.10.2009 vide Cheque No. 827755 an amount of Rs.50,00,000/- was credited in the account of M/s Shreyansh Alloys and Steel, on the samd date vide Cheque No. 49172 an amount of Rs.50,02,150/- was credited in the account of M/s Signature Import and Export (of Nishu Chawla, the present accused applicant) from M/s Shreyansh Alloys and Steel. On the same dated vide Cheque No. 709655 an amount of Rs.4,84,000/- was credited into the account of M/s Raunaq Industries from M/s Signature Import and Export, the concern of the present accused applicant. On the same date vide Cheque No. 2867 an amount of Rs.48,40,129/- was credited into M/s CVS Steels Pvt. Ltd. Thus the approximate amount of Rs.48,00,000/- started from M/s CVS Steels Pvt. Ltd and returned back on the same date. This is nothing but is a case of Round Tripping of bank fund.
5. C.B.I. has collected the sufficient evidence against the present accused applicant during the course of investigation and the case of the present accused applicant does not fall within the parameter of Section 438 Cr.P.C. to grant any indulgence to the present accused applicant and enlarge the accused-applicant on anticipatory bail. Banking fraud has become a practice by the people who obtains loans by creating forged documents with an intention to cheat the bank from beginning and the involvement of accused applicant in Round Tripping has come to fore from the investigation.
6.In view thereof, this Court finds no ground to enlarge the accused applicant on anticipatory bail.
7. Therefore, the present anticipatory bail application is rejected.
8. However, it is provided that if the accused-applicant surrenders before the concerned trial court within ten days from today and applies for bail, his bail application shall be considered and decided expeditiously in accordance with law. The trial court shall also consider the age of the accused applicant and other arguments advanced on behalf of the accused applicant while he presses the regular bail application. "
9. Feeling aggrieved by order dated 21.2.2023, referred to above, charge sheeted accused Nishu Chawla, approached Supreme Court by means of Special Leave to Appeal (Crl.) No. 3466 of 2023 (Nishu Shawla Vs. Central Bureau of Investigation). In the aforesaid leave to appeal, Apex Court has passed an interim order dated 24.3.2023, which reads as under:
"Issue notice.
Till the next date of hearing, there will be no coercive steps based on F.IR No. RC 219 2016 E 0008 dated 16.5.2016 List the matter on 24.4.2023."
10. On the aforesaid premise, learned Senior Counsel submits that case of present applicant is similar and identical to that of aforementioned accused who have already been granted the benefit of anticipatory bail. There is no such distinguishing feature on the basis of which case of present applicant could be distinguished from aforementioned co-accused so as to deny her the benefit of anticipatory bail. Even otherwise, applicant is woman of clean antecedents. Applicant has no other criminal antecedents to her credit except the present one. Applicant is ready to co-operate with the trial. Attention of Court was also invited to the provisions contained in proviso to Section 437 Cr.P.C. It is thus submitted that since the charge sheet has already been submitted, as such, the evidence sought to be relied upon by the prosecution against applicant stands crystalized. He, therefore submits that custodial arrest of applicant is not absolutely necessary during the pendency of trial. On the aforesaid premise, learned Senior Counsel for applicant contends that liberty of applicant be protected by extending her the benefit of anticipatory bail.
11. Per contra, the learned Deputy Solicitor General of India has opposed this application. However, he could not dislodge the factual and legal submissions urged by learned Senior Counsel for applicant at this stage.
12. Having heard the learned Senior Counsel for applicant, the Deputy Solicitor General of India for C.B.I, and upon perusal of record, matter requires consideration.
13. Notice on behalf of opposite party no.1 has been accepted by Mr. Sanjay Kumar Yadav. He prays for and is granted four weeks time to file counter affidavit.Applicant will have two weeks thereafter to file rejoinder affidavit.
14.List for orders after expiry of aforesaid period.
15. In view of above, in the event of arrest, applicant-Divya Verma shall be released on ad-interim anticipatory bail on her furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station/ concerned Court.
Order Date :- 20.4.2023 YK