Allahabad High Court
Manoj Kumar vs Union Of India And Another on 15 February, 2023
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgement Reserved On 25.01.2023 Judgement Delivered On 15.02.2023 Court No. - 67 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 3505 of 2022 Applicant :- Manoj Kumar Opposite Party :- Union Of India And Another Counsel for Applicant :- Rajrshi Gupta,Rahul Yadav,Sr. Advocate Counsel for Opposite Party :- Sanjay Kumar Yadav,G.A. Hon'ble Rahul Chaturvedi,J.
Heard Sri Dileep Kumar, learned Senior Advocate, assisted by Sri Rahul Yadav, learned counsel for the applicant and Sri Gya Prakash, learned Deputy Solicitor General assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. as well as learned AGA for the State. Perused the record.
After the release of present Crl. Misc. Anticipatory Bail Application by Hon'ble Rajiv Gupta,J.. The Hon'ble the Chief Justice vide order dated 09.05.2022 has nominated the present Anticipatory Bail Application to this Court, hence under the direction of Hon'ble the Chief Justice, this Court is deciding the present anticipatory bail application.
Pleadings between the parties have been exchanged between the parties and the matter ripe for final submissions.
The present applicant Manoj Kumar, who is a charge sheeted accused approaching this Court by means of the instant Anticipatory Bail Application after invoking the powers of this Court under Section 438 Cr.P.C., so that his interest may be protected, even though the charge sheet has been submitted in the matter against him (the applicant).
To start with the matter, learned counsel for the applicant has drawn the attention of the Court to the FIR lodged by C.B.I. in connection with RC No. 1202018A0002, P.S. C.B.I., ACB, Ghaziabad, under Sections 120-B read with 420, 419, 406, 467, 468, 471 IPC and Section 120-B IPC read with Section 13(2)/12(1)(d) of Prevention of Corruption Act, 1988 and other substantive sections thereof.
From the record, it is evident that the applicant has approached this Court straightway without getting his anticipatory bail rejected from the Court of Sessions.
Learned counsel for the applicant has drawn attention of the Court to Clause-7 of Section 438 Cr.P.C. (U.P. Act No.4 of 2019), which read thus :
"(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."
After interpreting the aforesaid clause, it is clear that the Legislature in its own wisdom bestowed two avenues upon the accused with a rider that if the accused has chosen to come to the High Court straightaway, then he would not be relegated back to exhaust his remedy before the Court of Session first. In this regard, learned counsel for the applicant has placed reliance upon the Full Bench judgment of this Court in the case of Ankit Bharti and others Vs. State of U.P. and another, 2020(3) ADJ 575 in which the Bench has directed to spell out the extraordinary and special reasons for coming to the High Court. After perusal of those pleadings/reasons in this regard, this Court is satisfied that the reasons mentioned therein are quite convincing to entertain the present anticipatory bail application before this Court itself.
From the F.I.R. it is evident that on 31.03.2018, the said FIR has been registered against unknown officials of Punjab National Bank, Nehru Nagar Branch, Ghaziabad (hereinafter referred to as "the bank"), Sri Sanjeev Dixit, r/o of 232, Jagriti Enclave, New Delhi and Propreitor of M/s Golden Tap Industries, 121 FIE Patparganj, Industrial Area, Delhi and Smt. Sheetal Sharma, w/o Sri Sanjeev Dixit, r/o of 232, Jagriti Enclave, New Delhi, Proprietor of M/s Ganesh Enterprises, 402 FIE Patparganj, Industrial Area, Delhi and other unknown private persons.
On this, it has been contended by the learned counsel for the applicant that the applicant is not even named in the FIR.
The gravamen of the story as mentioned in the FIR is that unknown private persons have entered into a criminal conspiracy and in order to cheat and defraud the bank by submitting a forged document in the bank, inducing the bank official to provide aggregate C.C.Limit of Rs. 5.50 Crores (Rs. 3.50 Crores + Rs. 2.50 Crores), which was swindled by named accused persons for this transaction. The applicant has not been named in the FIR, nor any specific allegation or role has been fasten against him.
Contention raised by the counsel that during investigation, the applicant has faithfully cooperate with the investigating agency and have rendered full support and cooperation during the investigation and thus the investigating agency has not sought his arrest.
It has been contended by the counsel that the present application is first anticipatory bail application under Section 438 Cr.P.C., which has been filed straightway to the High Court without exhausting alternative remedy to approach before learned Sessions Court, in the anticipation that since the anticipatory bail of co-accused Sri R.S.Bhatnagar was rejected by the Special Judge, Prevention of Corruption Act, Court No.1, Ghaziabad vide order dated 08.02.2022, hence there is no likelihood that the applicant's anticipatory bail application would be allowed and therefore knocked the doors of this Court straightway.
After submissions of the charge sheet by C.B.I. the applicant approach this Court by means of an application under Section 482 Cr.P.C. assailing the charge sheet as well as summoning order by filing the Application 482 No. 4270 of 2022 (Manoj Kumar Vs. Union of India) and coordinate Bench of this Court vide order dated 04.03.2022 pleased to pass the following order while disposing of the above 482 application. The order passed by the coordinate Bench of this Court is quoted herein below:-
"After some arguments, learned counsel for the applicant has made a statement at the bar that he does not want to press other prayers made in the application and has confined his prayer only to the relief that in case, applicant moves an application for bail before the court below, his bail application be considered and disposed of at the earliest.
Per contra, learned counsel for the opposite party/CBI has opposed for expeditious disposal of bail application of the applicant.
In view of the above statement, it is directed that if the applicant moves an application for bail before the court below within three weeks from today, his prayer for bail be considered and decided as expeditiously as possible in accordance with law.
For a period of three weeks from today, no coercive action be taken against the applicant.
The applicant may file his discharge application at appropriate stage.
With the aforesaid observations, this application under Section 482 CrPC is finally disposed of."
From the aforesaid order, it is clear that the learned counsel for the applicant have argued the case on merits but thereafter given up his arguments and sought that liberty may granted to the applicant to move bail application before learned court below. In the event, the applicant moves an application for bail, the court below shall decide the bail application at the earliest.
Responding to the prayer, the Bench of this Court was pleased to give a direction that in the event moves an application for bail before the court below within three weeks from today i.e. 04.03.2022. The prayer for bail be considered and decided as expeditiously as possible strictly in accordance with the law and for a period of period of three weeks no coercive action shall be taken against the applicant.
Armed with the aforesaid directions of this Court, the applicant Manoj Kumar moved a bail application no. 1502 of 2022 ( Manoj Kumar Vs. CBI) without surrendering himself in a judicial custody move a bail application and the learned Special Judge (Prevention of Corruption Act), CBI, Court No.1, Ghaziabad while complying the direction of this Court decide/reject the said bail application on 23.03.2022 annexed as Annexure No.4 to the affidavit accompanying the application. The interesting feature of this case is that the bail application of the applicant was filed without surrendering before the majesty of the court, which was eventually rejected by the Special Judge.
The further interesting feature is that against this bail rejection order dated 23.03.2022 passed In-charge, Special Judge (Prevention of Corruption Act), CBI, Court No.1, Ghaziabad, the applicant straightway approached to the Hon'ble Apex Court by filing SLP No. 3199 of 2022 and the Hon'ble Apex Court while declining to interfere in the aforesaid SLP pleased to direct the applicant by passing the following order, which reads as under :-
"By way of this special leave petition, petitioner has challenged the order of the Trial Court rejecting the bail application of the petitioner.
In our view, the petitioner should first approach the High Court against the said order. Accordingly, we decline to interfere with the impugned order on merits. While dismissing this petition, we request the High Court to consider the bail application of the petitioner, as and when it is filed, as expeditiously as possible and in accordance with law.
The special leave petitioner is, accordingly, dismissed.
Pending application(s), if any, stands disposed of."
Thus, it is clear, that Hon'ble Apex Court has also refused to interfere and requested the Hon'ble High Court to consider the bail application of the applicant as and when, it is filed as expeditiously as possible.
The applicant instead of abiding the direction given by the co-ordinate Bench of this Court vide order dated 04.03.2022 and thereafter directions given by the Hon'ble Supreme Court without surrendering himself before the authority of court concerned, is exploring all possibility of be-fooling the court of law by adopting all sorts of tricks and gimmicks and now landed by filing the instant anticipatory bail. His modus operandi is very clear and written on the wall. Despite of the fact that he is charge-sheeted accused, and there is consistent directions by the courts of law to apply for bail, the applicant is not interested to pay any heed to these directions, but seems, more interested in p laying legal jugglery, which is not at all permissible that too for person who has not approached with clean hands.
Sri Gyan Prakash, learned Deputy Solicitor General, submits that instead of filing the bail application, the applicant has filed the present anticipatory bail application with the prayer to allow the same, point out some of procedural drawback and loopholes of the case.
Sri Gyan Prakash, learned Deputy Solicitor General have and alleged that this anticipatory bail is wholly incompetent and deserves to be rejected on this ground alone. The applicant with impugnity have ignored the directions of this Court as well as Hon'ble Apex Court whereby, he was directed to apply for bail and instead of doing so, he is trying hard to anyhow by playing all sorts of legal tricks.
Now coming to the FACTUAL ASPECT OF THE ISSUE, which has given rise to the present controversy. It is imperative to give a Birds' eye view of the entire controversy, involved in the present case.
The instant FIR was lodged on the basis of source of information received on 31.01.2018 against (i) Mr. Sanjeev Dixit, (ii) Smt. Sheetal Sharma, (iii) unknown officials of P.N.B. Nehru Nagar, Ghaziabad and (iv) unknown private persons for hatching the conspiracy thereby siphoning the loan of the Bank to the tune of Rs. 5.50 Crores by submitting forged documents. It is alleged, that no doubt Sanjeev Dixit and his wife Smt. Sheetal Sharma are the prime culprits and king pin of instant serious financial scam but all the known and unknown accomplices, who actively participated in the offence are equally liable and involve in swindling the public money.
Mr. Sanjeev Dixit being proprietor of M/s Golden Tap Industries (Estd. 1998) is the proprietor of the firm, which indulge in manufacturing and trading of designer bathroom fittings having its Cooperate Office at 121 FIE Patparganj, Industrial Area, Delhi having two outlets, namely, Chavadi Bazar, Delhi and Vasundhara, Ghaziabad. It was revealed that Sanjeev Dixit approached the bank for applying the loan on 09.05.2011 for obtaining a Cash Credit Limit of Rs. 3.50 Crores. The said loan application was processed at the branch level by the team of (a) R.S.Bhatanagar, the then Deputy Manager/Processing Office and (b) Manoj Kumar, the then Manager/ Recommending Officer and (c) R.S. Chauhan, the then Chief Manager/Sanctioning Authority of Punjab National Bank, Nehru Nagar Branch, Ghaziabad. The borrower has provided a co-lateral security of one property situate at C-193, 3rd Floor, Vivek Vihar New Delhi against said loan and mortgage was created by the bank on the said property as per the bank norms and therefore, Cash Credit Limit of Rs. 3.50 Crores was sanctioned on 25.05.2011 but the same was declared as NPA on 01.11.2012.
Similarly, Smt. Sheetal Sharma, w/o Sri Sanjeev Dixit, r/o of 232, Jagriti Enclave, New Delhi, was also established a firm in the name of M/s Ganesh Enterprises in the year 2010 and she was proprietor of the firm and this firm too was engaged in manufacturing and trading designer bathroom fittings having its cooperate office at, 402 FIE Patparganj, Industrial Area, Delhi. She too have applied for loan on 19.06.2011 for obtaining the Cash Credit Limit of 2.00 Crores and the said loan application too was processed by the aforesaid team. The borrower has provided a co-latteral security of one property situate at 5/1234, Vasundhara, Ghaziabad and the said mortgage was created by the bank as per the bank norms. Thereafter, the Cast Credit Limit of Rs. 2.00 Crores was sanctioned on 19.06.2011 and the same was declared as NPA on 01.11.2012.
During the investigation, it was surfaced that borrowers have submitted fake and forged sale deeds of the property for obtaining the above mentioned loans. During investigation, it was also come in to light, that use of the funds was not ascertained by the bank as the borrowers has made a huge cash transaction/withdrawal and make payments through RTGS. The transaction were made from the CC Account to the other sister concerned of the borrower, thus the borrower have diverted the funds for the objective of their choice, other that they were sanctioned by the bank.
The bank officials allowed the same without following the due diligence. Not only this, it was also surfaced that borrowers have used various fake documents like NOC of Pollution Control Board, Sale-deeds, consent order from the Commissioner of Industries, PAN Cards, ITR, Audit Report, balance sheet, VAT Returns, Driving License, Voter IDs'. The bank officers remain silent spectator and without following the established SOP by the bank and without applying diligence as per the bank norms, without verifying the genuineness of the documents put the interest of the bank at serious jeopardy and put to huge loss to the bank.
The investigation further reveals that Sri R.S.Bhatnagar, the then Deputy Mangater/Processing Officer, Manoj Kumar, the then Manager/ Recommencing Officer and R.S.Chauhan, the then Chief Manager/Sanctioning Authority of the bank have processed, who are responsible for processing the above documents of the borrowers did not conduct a proper investigation and verification, without acting in due diligence, sanctioned the loan, which could be safely be termed as criminal conspiracy with the private persons causing huge loss to the bank to the tune of Rs. 5.50 Crores. It is only after the bank who suffered huge loss to the tune of Rs. 5.50 Crores, now bank officials are playing passing the bug, shifting their responsibility on the shoulder of others.
Rebutting the submission, Sri Dileep Kumar, learned Senior Counsel has floated number of arguments trying hard with object to single out the applicant from this scam. While assertively arguing on behalf of the applicant, that the entire responsibility of Sri R.S. Chauhan, the then Chief Manager/ Sanctioning Authority of the Bank to scan all these documents which were processed by the applicant. The applicant to the best of his ability have performed the duty as a recommending officer and has got no role to play in this offence. More over, the property no. 5/1234, hypothicated property was taken and put to auction and therefore, the case of the applicant may be considered sympathetically and may be decided in his favour.
On the other hand Sri Gyan Prakash, learned Deputy Solicitor General of India submits that regular bail applications R.S.Bhatanagar and R.S.Chauhan were allowed by the coordinate Bench of this Court on different occasion and as such the applicant too in all fairness should surrender before the court concerned and apply for regular bail.
After hearing the rival submissions, the Court has got its own reservations about the way and manner the applicant approached this Court by filing the instant anticipatory bail application under Section 438 Cr.P.C.. There is consistent direction was given by the coordinate Bench of this court on 04.03.2022 and surrendering and applying for regular bail application within a period of three weeks but instead of surrendering before the majesty of the Court, he cleverly move the bail application without surrendering before the authority of the court. After getting the same rejected by learned In-charge Special Judge, (Prevention of Corruption Act), CBI, Court No.1, Ghaziabad straightway went to Hon'ble Apex Court where too he was directed to apply for regular bail application. Instead of abiding the direction, the applicant seems to be more interested in playing legal tricks to any how save himself from the judicial custody, unmindful of the fact that the applicant, is charge sheeted accused of the serious offence involving the siphoning of huge public money, he cannot absolve from his liability by making a casual mention that, he has not participated or have played any specific role in this scam. All that would be appreciated at the time of trial.
At this juncture, this Court is not inclined to grant any indulgence in favour of the applicant till such time to surrender before the majesty of the court within next 15 days or by 25.02.2023 (whichever is later) and apply for regular bail. The court concerned would hear the matter on merits and shall decide bail application of the applicant expeditiously.
Without making any observation regarding the merit of the case or the role played by the applicant, the present anticipatory bail application moved on behalf of applicant- Manoj Kumar is hereby REJECTED with the aforesaid directions.
Order Date :- 15/02/2023 Abhishek Sri./ M.Kumar