Supreme Court - Daily Orders
Kailash Ramkishan Gupta vs State Of Gujarat on 4 September, 2014
Bench: Ranjana Prakash Desai, N.V. Ramana
ITEM NO.1 COURT NO.6 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s). 6795/2013
(Arising out of impugned final judgment and order dated 30/07/2013
in CRLMA No. 11094/2013 passed by the High Court of Gujarat at
Ahmedabad)
KAILASH RAMKISHAN GUPTA Petitioner(s)
VERSUS
STATE OF GUJARAT & ANR Respondent(s)
(With appln.(s) for bail and directions and exemption from filing
O.T. and permission to file additional documents and office
report)
Date : 04/09/2014 This petition was called on for hearing today.
CORAM :
HON'BLE MRS. JUSTICE RANJANA PRAKASH DESAI
HON'BLE MR. JUSTICE N.V. RAMANA
For Petitioner(s)
Mr. Raju Ramachandran, Sr. Adv.
Ms. Parul Shukla, Adv.
Mr. Mahesh Agarwal, Adv.
Mr. E. C. Agrawala,Adv.
Mr. Vivek Jain, Adv.
Ms. Ambwani, Adv.
For Respondent(s)
Ms. Hemantika Wahi,Adv.
Ms. Jesal, Adv.
Ms. Preeti Bhardwaj, Adv.
Ms. Puja Singh, Adv.
Ms. Swati Vaibhav, Adv.
Mr. Huzefa Ahmadi, Sr. Adv.
M/s. Ap & J Chambers,Adv.
Mr. P.S. Patwalia, ASG
Mr. Ravindera Kr. Verma, Adv.
Mr. B. Krishna Prasad, Adv.
Signature Not Verified
Digitally signed by
Vishal Anand
Date: 2014.09.05
14:56:05 IST
Reason:
-2-
UPON hearing the counsel the Court made the following
O R D E R
The petitioner has challenged the Order dated 30-7-2013 passed by the Gujarat High Court declining bail to him. It appears that the Forward Markets Commission (“the Commission”), a regulatory authority set up by the Government of India in accordance with the provisions of Section 3(1) of the Forward Contracts (Regulation) Act, 1952 (“the Act”) received a complaint on 28-11-2010 wherein various irregularities alleged to have been committed by the National Multi Commodity Exchange (“the NMCE”) were mentioned and the Commission's intervention was sought. The complaint pertained to trading irregularities and abuse of its position in NMCE by M/s. Neptune Overseas Limited (“NOL”), the anchor Promotor of NMCE. The Report of the Auditors appointed by the Commission pointed out irregularities committed by NMCE. A show cause notice was issued to the petitioner, who was the Vice-Chairman and Managing Director of the NMCE, under Section 4(b) of the Act. An Inquiry was conducted and after analysis of evidence, the Commission observed as under:-
“a) Embezzlement of huge funds from the Exchange through ATSPL amounting to atleast Rs.28.80 crore.
b) Irregularities in the allotment of shares of NMCE to NOL, including misuse/misappropriation of Exchange funds for the said purchase.
c) Misuse of Exchange funds running in crores of rupees on numerous frivolous consultancies without proper appointments and consultancy/study reports.-3-
d) Illegal payments from NMCE to his family members and others.
e) committing criminal offence by doing all the above.
f) subversion of corporate governance in the Exchange.
g) Abetment of criminal acts by relatives and family members.” The Commission inter alia directed the NMCE to file FIR against the petitioner.
Pursuant to this direction, FIR was registered against the petitioner being C.R. I no. 027/2012 dated 27-4-2012 under Sections 406, 408, 409, 420, 465, 466, 467, 468, 471, 477(A) read with Sections 120B and 34 of the Indian Penal Code with DCB Police Station, Ahmedabad.
The Directorate of Enforcement, Department of Revenue also registered a case under the Prevention of Money Laundering Act against the petitioner. On 31-3-2013, the petitioner was arrested. The petitioner filed bail application in the Sessions Court which came to be rejected on 24-4-2013. On 28-5-2013 bail application filed by the petitioner in the High Court came to be withdrawn. After the charge-sheet was filed on 24-6-2013, the petitioner again filed bail application in the Sessions court which was rejected. The petitioner then filed bail application in the High Court. By the impugned order, it was rejected. Hence, this Special Leave Petition.
-4-On 7-10-2013, this Court directed the Directorate of Enforcement to submit a status report. On 3-1-2014, on perusing the said report, this Court observed that the status report discloses that the investigation into fraud and siphoning of funds was in progress. This Court further observed that from a reading of the report it appears that the provisional attachment order no. 08/2013 has been passed under Section 5 of the Prevention of Money Laundering Act attaching 33,45,729 shares of NMCE held by the companies allegedly controlled by the petitioner. This Court also noted that another provisional attachment order had been made on 31-12-2013 by which further shares worth Rs.12 crores approximately were attached. This Court noted that the charge-sheet had been filed and a supplementary charge-sheet against the petitioner’s wife had also been filed in the matter. In the circumstances, this Court granted interim bail to the petitioner subject to the following conditions:-
“(1) The petitioner furnishes bail bonds in a sum of Rs.25,00,000/-(Rupees twenty five lakhs) with two sureties in the like amount to the satisfaction of the court seized of the matter.
(2) The petitioner cooperates with the on-going investigation by the Directorate of Enforcement in all respects.
(3) The petitioner refrains from tampering with the evidence or prolonging/protracting proceedings in the court in any manner.” Subject to the fulfillment of the conditions, the petitioner was released on interim bail pending completion of -5- investigation.
On 14-8-2014, in compliance of this Court’s order dated 25-7-2014, further Status Report was submitted which was perused by this Court.
As per the report, the presence of the petitioner's son was necessary for investigation. As his son was not available, the counsel for the petitioner was questioned about the whereabouts of his son and, on instructions, his counsel made a statement that the correct address of the petitioner’s son will be furnished to the investigating agency. This Court also expressed that the petitioner must facilitate his son's coming back to India to join investigation. This Court further expressed that the petitioner shall inform his son that he should come back to India to join investigation.
Mr. P.S. Patwalia, learned Additional Solicitor General, made a statement that considering the gravity of the offence and the large scale embezzlement of the NMCE funds and considering the fact that the value of the shares which were attached by the investigating agency has been considerably reduced, the petitioner should deposit at least Rs.20 crores in this Court.
Learned senior counsel for the petitioner made a statement that he will take instructions in this behalf. Hence, the Special Leave Petition was adjourned to 22-8-2014. On 22-8-2014, this Court adjourned the present matter for one week to enable learned Senior Counsel for the petitioner to -6- make a statement as to when the petitioner’s son will come back to India and also when he will deposit the amount. Yesterday, when the matter was heard, we were informed by learned Senior Counsel for the petitioner that the petitioner is unable to deposit Rs.20 crores in this Court. Though deposit of Rs.20 crores was not a condition of bail, the petitioner ought to have deposited the amount as the value of shares attached by the investigating agency has depleted considerably and the embezzlement of funds of NMCE is about Rs. 28 crore. That would have shown his bona fides. But what distresses us the most is the statement made by the petitioner's counsel that the petitioner is unable to state as to when his son will come to India to join investigation. Learned senior counsel, on instructions from the petitioner, stated that the petitioner has no control over his son. We refuse to believe this statement. The petitioner and his son are prima facie involved in the instant crime. In any case, the petitioner's son is the beneficiary of the embezzlement prima facie committed by the petitioner. The petitioner's helplessness appears to be feigned.
We are informed that the petitioner evaded arrest from 26-4-2012 to 30-3-2013. His son, who is one of the main accused, is refusing to join investigation. The petitioner made a statement that his son will return to India to join investigation and this statement was recorded by the High -7- Court in its order dated 30-7-2013. But till date, the assurance given to the High Court is not fulfilled. Even this Court had directed the petitioner to facilitate his son's coming back to India to join investigation, however, there is no positive response from the petitioner. His approach is evasive. There is no doubt that his purpose is to shield his son. The petitioner is, therefore, in breach of the condition imposed on him while granting provisional bail that he will cooperate with the investigating agency. The provisional bail was granted to him with the hope that the petitioner will cooperate with the Police. His conduct is to the contrary. The provisional bail, therefore, deserves to be cancelled and is accordingly cancelled. His bail bond stands cancelled. We have perused the impugned order. The High Court has rightly declined bail to the petitioner. In our opinion, it is not necessary to interfere with the impugned order. Therefore, the Special Leave Petition is dismissed.
Learned senior counsel for the petitioner requests that the petitioner may be given a week’s time to surrender. The petitioner is accordingly granted a week’s time to surrender before the Additional Chief Metropolitan Magistrate, Court No.11, Ghee Kanta, Ahmedabad City.
Needless to say that if any observations made by us in this order touch the merits of the case, they are prima facie observations as they are made while dealing with the challenge raised to the impugned order declining bail to the petitioner. -8- The Court seized of the petitioner’s case shall deal with it uninfluenced by them, independently and in accordance with law.
(VISHAL ANAND) (INDU POKHRIYAL) COURT MASTER COURT MASTER