Calcutta High Court (Appellete Side)
Kamlesh Parekh vs Central Bureau Of Investigation on 16 March, 2020
Author: Tirthankar Ghosh
Bench: Tirthankar Ghosh
IN THE HIGH COURT AT CALCUTTA
CRIMINAL REVISIONAL JURISDICTION
APPELLATE SIDE
PRESENT:
THE HON'BLE JUSTICE TIRTHANKAR GHOSH
CRR 2320 of 2019
with
CRAN 4127 of 2019
with
CRAN 4273 of 2019
Kamlesh Parekh
-vs.-
Central Bureau of Investigation
For the Petitioner : Mr. Y. J. Dastoor
Mr. Phiroze Edulji
Mr. Saryati Datta
For the CBI : Mr. Anirban Mitra
Mr. Amit Halder
CAV on : 26/02/2020
Judgment on : 16/03/2020
Tirthankar Ghosh, J:-
The revisional application has been preferred against the order dated
2-8-2019passed by the Ld. Judge, Special (CBI) Court No. 4 in-charge of Special (CBI) Court No.2, Bichar Bhawan, Calcutta in connection with RC (CBI) Case No. 05 of 2016. The present revisional application refers to an open-dated non-bailable warrant of arrest issued against the petitioner to 2 enable the Interpol to issue Red Corner Notice in connection with CBI, BS & FC Case No. RCBSK2016E0005.
The first information report was registered on the basis of a complaint lodged by the General Manager, State Bank of India (as leader of a consortium of 25 banks) with the Superintendent of Police, CBI, BS & FC, Kolkata.
The gist of the allegations in the complaint as reflected from the application made by the Central Bureau of Investigation (CBI) before the Special Court is to the effect that the directors, promoters, company secretary along with the officials who looked after the day to day affairs of M/s. Sri Ganesh Jewellery House (I) Ltd. entered into a conspiracy with unknown officials of nationalized banks and foreign companies, who in furtherance of the said conspiracy cheated a consortium of 25 banks during the period 2012 to 2014, by availing credit facilities of 4047.50 crores from a consortium of 25 banks, including 20 nationalized banks in the name of the accused borrower company causing wrongful loss to the tune of Rs. 2672 crores (excluding interest) as on the date of NPA out of which the share of 20 nationalized banks is Rs. 2223.13 crores. It has been further alleged that the accused persons forged/got forged certain documents for the purpose of cheating and used such forged documents as genuine. The public servants of the nationalized banks abused their respective official position in as much as they caused undue pecuniary advantage to the accused borrower company and others.
3
Before dealing with the issue raised in the revisional application, it would be pertinent to state that the present petitioner preferred an Application for quashing of the proceedings relating to RC (CBI) Case No. 05 of 2016 being CRR 3200 of 2017, wherein a Coordinate Bench was pleased to hold by an order dated 20-9-2017 as follows:-
"In view of the fact that the petitioner has substantial shareholding in the company to whom loan had been dishonestly advanced by a nationalized bank by the employees of the bank in abuse of their official position I am of the opinion that there is no illegality in registration of FIR in the instant case and commencement of investigation thereon. Extent of complicity of the petitioner may be gone into in the course of such investigation. It is open to the petitioner to join the investigation in accordance with law. In the event investigation results in filing of police report against the petitioner, it shall be open to him to agitate his grievances before the trial Court in accordance with law, if so advised."
It would also not be out of place to state that at the time of admission of the instant revisional application on 1-11-2019 a coordinate Bench was pleased to observe as follows:-
"Without going into the rival contentions of the parties at this stage and in view of the fact that the Revisionist wishes to participate personally in the investigation being conducted by the C.B.I., the warrant of arrest already communicated to the authorities in the United Arab Emirates, shall stand modified to a limited extent to allow the Revisionist to leave United Arab Emirates only by air to city of Kolkata by a direct flight, on a commercial airline and to no other destination.
It is made clear that in the event, the revisionist Kamlesh Parekh seeks to leave the United Arab Emirates for any 4 other destination, United Arab Emirates Authorities are requested to arrest him in the UAE and to deport him to India.
Mr. Dastoor, the learned counsel for the Revisionist, undertakes before this Court, on behalf of his client, that his client is willing to be present on November 7, 2019 at 11 am at the Office of the C.B.I. at C.G.O. Complex, Salt Lake, Kolkata and shall appear before Shri R.K. Bhattacharjee, Additional Superintendent of Police, C.B.I., (Bank Fraud Cell).
It is made clear that on condition that the Revisionist shall thereafter not leave India and the city of Kolkata without the leave of this Court and without prior intimation to the C.B.I., no coercive action shall be taken by the C.B.I., in the form of arrest, until November 22, 2019."
Mr. Dastoor, Ld. Senior Advocate appearing for the petitioner vehemently argues regarding the innocence of the petitioner and attempts to establish through the annexures enclosed along with the revisional application that by no stretch of imagination it can be said that the petitioner was available in India (except once or twice for 2/3 days) for the last 19 years. According to Ld. Senior Advocate, it was within the knowledge of the CBI that the petitioner was permanently staying at Dubai and by adopting a sly procedure, the investigating agency got open-dated warrant of arrest issued against him. Mr. Dastoor demonstrates the non-availability of the petitioner in the country for the last 19 years by drawing the attention of this Court to the passport which has been renewed in favour of the petitioner from Dubai and to that effect he draws the attention of this Court to each of the extensions being granted from Dubai office (lastly on 27-9- 2018). It is his further contention that the petitioner was a mere 5 shareholder of the company and never a promoter and the said shareholding was inherited by him. The description as a promoter is a manufactured fact and the petitioner was carrying on his own business at Dubai without having any interest or say in the accused borrower company. The CBI authorities knowing fully well that the petitioner is staying at Dubai purposely effected service at his Kolkata address at 6A, Iron Side Road, P.O.- Ballygunge, Kolkata- 700019 and impressed the Ld. Special Judge for issuing the open-dated warrant against him.
Ld. Senior Advocate also draws the attention of this Court to the different proceedings which were initiated by the DRI authorities as also in Geneva to show that the petitioner was always exonerated from the charges and the allegations are same irrespective of the fact whether they are investigated by the CBI or any other agency. It is his further contention that because of the mistaken identity of another company which is of the same name, the petitioner is being wanted in connection with the instant case, the said company being Sparkle Jewellery (LLC) was closed in the year 2007 and another company by the name of Sparkle Jewellery (FZE) was opened at Sharjah by one Amit Kumar Thakur and the bankers having dealt with the said person cannot make the petitioner responsible in respect of any alleged dues of the said company.
Ld. Senior Advocate further submitted that the application dated 22- 1-2019 so preferred by the CBI before the Ld. Special Court for issuing the non-bailable warrant of arrest for enabling Interpol to issue a red corner 6 notice against him was without any foundation, so the Ld. Judge was dissatisfied as there was no material to justify such prayer. Surprisingly the Ld. Special Judge without dismissing such application provided an opportunity to the CBI and called for a report from the authorities to show how they have come to know that the petitioner was not available in India. Consequently, the CBI sent a notice by speed post at the residence of the petitioner at Kolkata on 15-2-2019 and also sent a second notice on 26-2- 2019 at 6A, Iron Side Road, PO- Ballygunge, Kolkata- 700019 through a constable which was returned unserved. So the verification report filed before the Court was not complied in proper spirit and the purpose for which opportunity was given to the CBI. Another argument was also advanced on behalf of the petitioner that a letter dated 22-4-2019 was issued by the Consulate General of India, Dubai wherein the petitioner was show caused as to why his passport should not be impounded/revoked as he was wanted in connection with CBI BS & FC Kolkata Case No. RCB SK 2016 E 0005. The said notice/letter was issued at the address of the petitioner being 1901, 'B' Block, Burjuman Residence, Markhool, Bur, Dubai. The said notice/letter was challenged before the Hon'ble High Court at Delhi which was quashed with a liberty being granted to the Union of India to issue a fresh notice by assigning proper reasons. By relying upon the aforesaid fact the Ld. Advocate appearing for the petitioner argues that the residence of the petitioner was within the knowledge of the CBI as the notice which was issued by the Consulate General of India, Dubai specifically referred to his residential address at Dubai and also the present case which was investigated by CBI, as such the service which was effected 7 in Kolkata was with a questionable motive and not a notice thereby requiring a person to appear before investigating authorities for the purpose of interrogation. The said notice, according to the petitioner, was issued for the purpose of creating a foundation for the open-dated warrant of arrest and not for the purpose of the petitioner appearing before the investigating authorities as the proper address was well within the knowledge of the CBI. Further the petitioner furnished his address at the time of preferring an objection pursuant to a leave granted by the Ld. Special Court while contesting the issue of warrant of arrest so prayed for by CBI. The petitioner also refers to an order dated 17-7-2019 wherein, according to the petitioner, 3 Letters Rogatory were issued to the authorities in the United Arab Emirates, Hong Kong and Singapore for information in respect of certain companies. Inspite of the aforesaid, the Ld. Special Court by an order dated 2-8-2019 was pleased to issue open-dated warrant of arrest against the petitioner.
The other aspect which has been argued by the Ld. Senior Advocate for the petitioner is the order dated 1-11-2019 passed in the instant revisional application by a coordinate Bench of this Court (which has been quoted above). The petitioner tried to justify this on the basis of certain information being received by him for which he had an apprehension that he might be detained by the authorities at Sharjah inspite of the order being passed by the High Court at Calcutta. According to the petitioner, CBI is only responsible for such apprehension as they have taken a different stand in respect of the open-dated warrant of arrest so issued by the Ld. Special 8 Court and whether the same was communicated to the concerned authorities or not, the petitioner was therefore compelled to take out an application being CRAN 4127 of 2019. The said application reflects that the petitioner was suffering from ill health at the time of approaching the airport, to that extent the petitioner has enclosed certain medical documents and tried to justify his reasons for not coming to Kolkata and meeting the investigating agency as per the order dated 1-11-2019. Lastly the petitioner contends that as none of the prerequisites for issuance of an open-dated warrant of arrest for obtaining a red corner notice have been fulfilled, the order dated 2-8-2019 passed by the Ld. Special Judge is liable to be set aside.
Mr. Anirban Mitra, Ld. Advocate appearing for the CBI submitted that the petitioner along with his brothers namely, Nilesh parekh and Umesh Parekh and other accused persons entered into a criminal conspiracy and in furtherance of the said conspiracy cheated a consortium of 25 banks out of which 20 are nationalized banks, to the tune of Rs. 2672 crores (excluding interest). He further submitted that after registration of the case in the year 2016 searches were conducted at the residential and office premises of the accused directors/promoters of the company after obtaining search warrant, searches could not be conducted at the residential premises of Nilesh Parekh, Umesh Parekh and Kamlesh Parekh (present petitioner) as they were not available on the date of search and their mobile phone numbers collected in course of investigation, were found switched off. Mr. Ashok Prakash Sahni, the CFO of the company was handed over with three notices 9 on 6-8-2016 to deliver them with the delivery address at Gold Centre Building, Mezzanine Floor, Shop No. M-15, Deira, Dubai with an information to appear before the CBI on 10-8-2016. The said Mr. Sahni informed the CBI from Dubai that he could not serve any of the notices to the addressee or their staff members.
The Ld. Advocate for CBI also drew the attention of this Court to the order dated 20-9-2017 passed in CRR 3200 of 2017 and submitted that the factual aspect so agitated for the purpose of issuance of warrant of arrest by the petitioner cannot be taken into account in view of the fact that this Court cannot sit in appeal over the earlier order passed by a coordinate Bench refusing to appreciate similar/identical facts of claiming innocence by the petitioner. The communication made by the lawyer to the CBI was in the nature of interrogating the lawyer and not the accused, further the notice so sent by the lawyer did not contain the address of the petitioner which has been very recently furnished. It is the further contention that the three brothers fled away from the country and did not join the investigation, however, Nilesh Parekh was arrested on 8-5-2018 from Mumbai while coming from Dubai. Till date the present petitioner and his other brother, Umesh Parekh did not join the investigation and as such the investigating authorities did not have any scope for ascertaining their innocence. The foundation of the petitioner fleeing away is supported by authenticated documents received from the Intelligence Bureau, Ministry of Home Affairs, Government of India.
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The petitioner never had the intention to join the investigation and as such by frivolous reasonings tried to evade the investigation and inspite of the undertaking given before the Hon'ble High Court at Calcutta subsequently took up a plea of medical emergency. The conduct of the petitioner would be evident as the petitioner already purchased the return ticket although the order of the coordinate Bench reflects that the petitioner should not leave India and the city of Kolkata without leave of the High Court. According to him, the Letters Rogatory are being pursued in its proper spirit and the same cannot be a subject matter of argument, at this stage, when the investigation of the case is under progress. The Ld. Advocate for the CBI also filed a memorandum of evidence which disclosed the role of the present petitioner and his complicity in the offence which is under investigation. Lastly, the Ld. Advocate submitted that the petitioner never had the intention to join the investigation and inspite of having knowledge of such investigation being carried out is watching the same and purposely evading the process of investigation and also the Courts of this Country by taking up frivolous pleas and pretext.
At this stage it would be worthwhile to consider the purpose/object of investigation, as also the role of an investigating officer while performing his duties. In State of Bihar vs. P.P. Sharma, 1992 SCC (Cri) 192 it has been observed that:
"The investigating officer is the arm of the law and plays pivotal role in the dispensation of criminal justice and maintenance of law and order. The police investigation is, therefore, the foundation stone on which the whole edifice 11 of criminal trial rests - an error in its chain of investigation may result in miscarriage of justice and the prosecution entails (sic) with acquittal. The duty of the investigating officer, therefore, is to ascertain facts, to extract truth from half-truth or garbled version, connecting the chain of events. Investigation is a tardy and tedious process. Enough power, therefore, has been given to the police officer in the area of investigatory process, granting him or her great latitude to exercise his discretionary power to make a successful investigation. It is by his action that law becomes an actual positive force. Often crimes are committed in secrecy with dexterity and at high places. The investigating officer may have to obtain information from sources disclosed or undisclosed and there is no set procedure to conduct investigation to connect every step in the chain of prosecution case by collecting the evidence except to the extent expressly prohibited by the Code or the Evidence Act or the Constitution. In view of the arduous task involved in the investigation he has been given free liberty to collect the necessary evidence in any manner he feels expedient, on the facts and in given circumstances. His/her primary focus is on the solution of the crime by intensive investigation. It is his duty to ferret out the truth. Laborious hard work and attention to the details, ability to sort through mountainous information, recognized behaviourial patterns and above all, to co-ordinate the efforts of different people associate with various elements of the crime and the case, are essential. Diverse methods are, therefore, involved in making a successful completion of the investigation.
From this perspective, the function of the judiciary in the course of investigation by the police should b e complementary and full freedom should be accorded to the investigator to collect the evidence connecting the chain of events leading to the discovery of the truth, viz., the proof of the commission of the crime."
In H.N. Rishbud and Inder Singh vs. State of Delhi, (1995) 1 SCR 1150 it has been held that:
"Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) 12 Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of thing considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected there is case to place the accused before a Magistrate for trial and if so taking the necessary steps for the same by filing of a charge-sheet under Section 173.....
It is also clear that the final step in the investigation viz. the formation of the opinion as to whether or not there is a case to place the accused on trial is to be that of the officer in- charge of the police station."
I have perused the memorandum of evidence so submitted by the CBI which reflects that M/s. Sri Ganesh Jewellerry House (I) Ltd. had export business with several foreign companies based in UAE, Singapore and Hong Kong. Investigation has revealed that the present petitioner has substantial control and had stake in some of the foreign companies who dealt with the accused borrower company and which were involved in the conspiracy for the wrongful loss sustained by the consortium of banks. Such fact is in addition to the 24.15% shareholding of the petitioner in the accused borrower company namely M/s. Sri Ganesh Jewellery (I) Ltd.
The aforesaid facts prima facie requires clarification, which the petitioner alone can provide to the investigating agency and the claim of innocence, as advanced by the Ld. Senior Advocate for the petitioner at this stage of investigation, as such cannot be taken into consideration when the documents are overwhelming for the petitioner to be interrogated. 13
On a primary assessment of the evidence which has surfaced in course of investigation, this Court is also of the view that the interrogation of the petitioner is required for the sake of investigation and a lawyer's communication claiming to clarify any issue which is to be answered by the petitioner is redundant in view of the scheme of the CrPC, where the role of an advocate may arise at a stage provided under Section 41D of the CrPC.
The present stage of investigation and the issues which are being dealt with by the investigating agency at this stage, particularly the loan being taken from the banks by the borrower company and the same being utilized for overseas companies without being repaid to the borrower company, wherein the investigating agency has been able to make out a case on records regarding the stake involved in the borrower company as well as the foreign overseas companies in respect of the individuals, being same, also dilutes the issues relating to the Consulate General of India sending any notice for impounding of the passport. As the same is restricted to the authorities who are supposed to issue the passport and between the person who has been allotted the passport. The investigating agency has nothing to do with the passport with the act/actions of the passport authorities. This Court therefore is also not in a position to assess regarding the truth or falsity of the version taken by the petitioner in respect of one of the overseas companies which according to him stopped its business long ago and the same being investigated by the CBI.
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Having regard to the provisions of law more particularly Section 41(1)(b)(ii)(b), which is as follows:-
"41(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely:-
(ii) the police officer is satisfied that such arrest is necessary-
(b) for proper investigation of the offence; .... '' This Court is of the opinion that if the petitioner had been residing within the territorial jurisdiction of the Court it would not have been necessary for the investigating agency for obtaining any warrant for the purposes of securing his presence in course of investigation, more particularly after taking into account the materials which have already surfaced against the petitioner. There was no requirement for seeking any permission of any Court of law to compel the petitioner to join the investigation. The present warrant which is the subject matter of this case is an obstacle which the investigating agency has to overcome only for the purpose that the petitioner is available outside the boundaries of this country and the formalities required for compelling the person to join the investigation requires a seal of the Court. To that extent I am unable to 15 agree with the initial order dated 8-2-2019 passed by the Ld. Special Judge, Court No. 2, Calcutta wherein the Special Court directed for furnishing a report from the prosecution regarding the actions taken by them for securing the presence of the accused persons before the investigating agency and that the accused persons were not available in the country. Here it is very disturbing to see that the report of the Intelligence Bureau, Ministry of Home Affairs, Government of India have been converted into a public document inspite of the authorities requesting for non-disclosure of the same.
It would be pertinent to rely upon State Through CBI vs. Dawood Ibrahim Kaskar & Ors., (2000) 10 SCC 438 wherein it has been held as follows:-
"Another factor which clearly indicates that Section 73 of the Code gives a power to the Magistrate to issue warrant of arrest and that too during investigation is evident from the provisions of Part C of Chapter VI of the Code, which we have earlier adverted to. Needless to say the provisions of proclamation and attachment as envisaged therein is to compel the appearance of a person who is evading arrest. Now, the power of issuing a proclamation under Section 82 (quoted earlier) can be exercised by a Court only in respect of a person "against whom a warrant has been issued by it''. In other words, unless the Court issues a warrant the provisions of Section 82, and the other sections that follow in that part, cannot be invoked in a situation where in spite of its best efforts the police cannot arrest a person under Section 41. Resultantly, if it has to take the coercive measures for the apprehension of such a person it has to approach the Court to issue warrant of arrest under Section
73.'' 16 This Court after assessing the facts as submitted by the Ld. Senior Advocate for the petitioners as well as the Ld. Advocate for the CBI is of the opinion that the provisions of Section 41(1)(g) which states "Any police officer may without an order from a Magistrate and without a warrant, arrest any person-(g) who has been concerned in, or against whom a reasonable complaint has been made, or a credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India;'', read with the provisions of Section 70 and Section 105 of the CrPC, enables the CBI/investigating agency to invoke the jurisdiction of a Court in an appropriate case to obtain warrant of arrest for the purpose of bringing within its ambit a person who is thickly connected with the offence and is evading the investigating agency.
On a cumulative assessment of the conduct of the present petitioner particularly having knowledge regarding the investigation being conducted at Kolkata, India, and having challenged such proceedings wherein liberty was granted for joining the investigation and subsequently after tendering an undertaking before the High Court for joining investigation and thereafter taking a plea for justifying for not joining the investigation, do not satisfy the conscience of this Court to interfere with the open-dated warrant of arrest so issued by the Ld. Special Judge in its order dated 2-8-2019.17
In view of the aforesaid observations, the revisional application fails and as such CRR 2320 of 2019 is dismissed.
As the revisional application has been dismissed, the connected applications being CRAN 4127 of 2019 and CRAN 4273 of 2019 are infructuous.
Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.
(Tirthankar Ghosh, J.)