Gujarat High Court
Suresh Narain Bhatnagar vs Central Bureau Of Investigation on 15 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/10900/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10900 of 2018
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SURESH NARAIN BHATNAGAR
Versus
CENTRAL BUREAU OF INVESTIGATION
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Appearance:
MR VIRAT G POPAT(3710) for the PETITIONER(s) No. 1
MR RC KODEKAR(1395) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/06/2018
ORAL ORDER
This is an application under Section 439 of the Code of Criminal Procedure, 1973, for regular bail at the instance of an eighty year old accused in connection with C.R. No.RC0292018A0006 registered at the CBI, Gandhinagar, for the offences punishable under Sections 420, 467, 468, 471, 120B of the Indian Penal Code and under Sections 13(2) & 13(1)(d) of the Prevention of Corruption Act, 1988.
The case of the CBI, in brief, is as under :
(1) On the basis of reliable information a case bearing no.RC0292018A0006 dated 26.3.2018 was registered in CBI, ACB, Gandhinagar branch against M/s.Diamond Power Infrastructure Limited (DPIL), Vadodara, Gujarat, Shri Suresh Narain Bhatnagar, founder of M/s. DPIL, Shri Amit Suresh Bhatnagar, Managing Director, M/s.Diamond Power Infrastructure Limited (DPIL), Shri Sumit Page 1 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER Bhatnagar, Joint Managing Director, M/s.Diamond Power Infrastructure Limited (DPIL) and others for the offences punishable under Sections 120-B r/w 420, 467, 468, 471 of IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
(2) That searches at the premises were conducted on 05.04.2018 and he was available at his residence. A notice u/s 41A of Cr.PC for joining investigation was served at his residence in the night of 05.04.2018. However, instead of joining investigation, he alongwith his sons Shri Amit Bhatnagar and Shri Sumit Bhatnagar both also FIR named accused absconded.
The applicant herein was arrested on 18th April 2018 and was produced before the Special Judge. The Special Judge granted police custody, i.e. remand, till 27th April 2018, and thereafter the applicant was remanded to judicial custody. The two sons of the applicant are also, as on date, in judicial custody.
Mr.R.C.Kodekar, the learned counsel appearing for the CBI has opposed grant of regular bail looking to the nature and gravity of the offence.
An affidavit has been filed on behalf of the CBI opposing grant of bail, inter alia, stating as under :
"1. That accused petitioner had filed the interim bail application no. CRMA 10171/2018 on the health grounds which was dismissed by this Hon'ble Court vide order dt.Page 2 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019
R/CR.MA/10900/2018 ORDER 04.06.2018. However, without any fresh grounds, now regular bail application has been filed. In State Vs. Buddhikota AIR 1989 SC 2292, it was held that after rejection of the successive bail application, grant of bail of subsequent application without change of circumstances virtually results to overruling the earlier decision without there been a change in the fact situation. It was also held that the judicial dismiss, proprietary and committee demand that the impugned order should not have been passed.
2. In the matter of Salimbhai Vs. State of Gujarat (2003) SCC 50: AIR 2003 SC 3224, the Hon'ble Supreme Court has given following guidelines which are only illustrative and not exhaustive for consideration while considering a bail application:
a. While granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
b. Reasonable apprehension of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
3. In the matter of Nimmagadda Prasad Vs. CBI (2013)7 SCC 466, it was held that economic offences constitute a class apart and need to be visited with a different approach in the matter of ball. The economic offence having deep-rooted Page 3 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
4. It is also held by Hon'ble Supreme Court that the plea that the accused had undergone a cardiac operation and needed constant medical attention is not sufficient to order his bail. The prison authorities will arrange for proper treatment of the accused whenever the need for it arises as held in State Vs. Jaspal AIR 1984 SC 1503; 1984 CrLJ 1211.
5. It is also held by the Hon'ble Supreme Court that the Court itself only satisfies that there is genuine case and prima facie evidence in support of allegations against accused. It is not expected, at stage of bail, to have evidence establishing guilt of accused beyond reasonable doubt. It has to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing"
instead of "the evidence"~ Central Bureau of Investigation Vs. V. Vijay (2013)7 SSC 452.
Parawise Reply to the Bail Application:
1. The averments made herein are matter of record and hence do not require a reply.
2. The averments made herein are matter of record and hence do not require a reply.
3. The averments made herein are matter of record and hence do not require a reply.Page 4 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019
R/CR.MA/10900/2018 ORDER
4. That the averments made in the Para 4 are vehemently denied. In this case, a large number of public sector banks are involved in grant of term loan as well as CC limits year after year for a long period of 08 years and in each process, different level of bank officers are involved. Therefore, a detailed investigation is necessary for identification of the public servants and the type of criminal misconduct conducted by them. Whereas, in the case of the private persons named in the FIR including the accused petitioner, it is clear that they had been the Chairman, Managing Director and Joint Director of the company thus, fully responsible for the acts of the company. The present Petitioner / Accused who had been the Managing Director / Founder / Promoter of this company since incorporation till January. 2010 thereafter became Executive Chairman of the Board of Directors and resigned on 31.03.2015 from chairmanship and thus is fully responsible for the offence committed by the company or on behalf of the company. It may also be noted that he had also given the personal guarantee for the credit facilities provided by the bank. Further, the Prevention of Corruption Act, 1988 states payment of illegal gratification to the public servants for invoking the prevention of this act.
The criminal misconduct on behalf of the public servant causing undue pecuniary gain to self or to any other person is sufficient. to invoke the provisions of the PC Act. In this case, the accused / petitioner through his company M/s. Diamond Power Infrastructure Limited of which he was Chairman cum Managing Director had received pecuniary advantage by way of obtaining the loans and the CC limits in Page 5 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER spite of being ineligible and by way of violating the applicable guidelines of the bank.
5. The averments made in Para 5 are also vehemently denied because not only the allegations in the FIR but also investigation so far has revealed that the instant case is not a case of genuine loan but the evidence points to not only the forgery of documents but also forgery of valuable securities, falsification of the records and documents from the very beginning as well as diversion of the funds for the purpose other than for which the loans were granted / CC limits were sanctioned.
(a) In reply to the Para 5(a), it is submitted that the records of the bank show that the outstanding loan of the company which was required to be repaid was Rs.2654 Crores though for the purpose of SDR a part of it amounting to Rs.828 Crores was converted into the equity for transferring the same to the new promoters which were being proposed by the company for investment in order to improve its financial health, however. after this amount was converted into equity, the so called investor backed out. This aspect is also required to be investigated.
(b) In reply to the Para 5(b), it is submitted that on the day of sanction of term loan and even at the time of disposal, the name of the company was figuring in the Defaulters List of the RBI. The NOCs of the banks enclosed with the petition itself shows that the settlement with previous consortium banks was one time settlement where Rs.52.61 Crore was Page 6 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER paid against the total outstanding of Rs.130.31 Crore.
(c) In reply to the Para 5(0), it is submitted that reply to the Para 5(a) above may be read as part of the reply to the averments herein. Regarding the valuation of the assets, the same is required to be investigated. Even the valuation of, movable and immovable assets of the company as well as their stock is a matter of investigation.
(d) In reply to the Para 5(d), it is submitted that investigation is revealing that the company was indulging in large-scale generation of false documents for falsely projecting higher turnover of the company.
(e) In reply to the Para 5(a), it is again submitted that the investigation is revealing the large-scale manipulation and the falsification of the records showing the higher stocks of the company.
(f) In reply to the Para 5(f), it is submitted that the applicant accused was the Executive Chairman of the Board of Directors and Co-accused persons S/Sh. Amit Bhatnagar was the Managing Director and Sumit Bhatnagar was the Joint Director of the company when majority of the Letter of Credits opened in favour of M/s. Ruby Cables which have been found to be false and based on the forgery of the various types of documents.
(g) In reply to the Para 5(g), it is submitted that the investigation with respect to the investment and unsecured Page 7 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER loans is in progress and there is ample evidence to show that such advances and loans were paid from the CC limit account, which were against the terms and conditions of the sanction of CC limits. There is evidence that even in the annual report for the year 2011-12 of DPIL. these unsecured loans have been shown under the head Secured Loans to show the increased valuation of the company.
(h) In reply to the Para 5(h). it is submitted that the Investigation Audit Report of the year 2014 by TR. Chaddha and Company has indeed pointed out the issues with the functioning of the company which are similar to the allegations in the FIR. The report also indicates that the investigators were not provided with all the required documents / reports.
(i) In reply to the Para 5(i). it is submitted that the investors so brought in had either themselves backed out or were not explained to the consortium of the banks itself shows that there were certain issues . with the company and its affairs as well as the efforts of the company were not up to the desired requirements.
(j) In reply to the Para 5(j), his submitted that the Bank of India has declared the account as fraud on 13.03.2018 and had also sent a complaint dated 19.03.2018 to the CBI, HO which was received by the branch after registration of the case.
In view of the above, it is clear that the petitioner / accused, by way of making aforesaid averments, is straight away Page 8 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER trying to deliberately misguide the Hon'ble Court by knowing fully & concealing the true facts for its own advantage.
6. In reply to the Para 6, it is submitted that the same has also been considered by this Hon'ble Court at the time of rejecting the temporary bail application No.CRMA 10171/2018 vide order dt. 04.06.2018. Therefore, it does not require fresh consideration.
7. That in reply to the Para 7, it is submitted that it is already held by the Hon'ble Apex Court in the matter of State Vs. Jaspai AIR 1984 SC 1503; 1984 CrLJ 1211 wherein it is held that if the accused had undergone a cardiac operation and need constant medical attention is not sufficient to order his bail. The prison authorities will arrange for proper treatment of the accused whenever the need for it arises. Further, the allegations as well as the investigation so far points to commission of the offence U/sec. 467, wherein the maximum punishment is life imprisonment.
8. That in reply to the Para 8. it is submitted that the investigation of the case is Spread over for the acts of the company. its representatives as well as public servants spread over a period of more than 08 years. Wherein, though voluminous records have already been collected but there is still possibility of more documents to be recovered from the private persons and for this, witnesses are being examined as well asd required to be examine in future and large number of them had been either the employees of M/s. DPIL or other business associates in one way or other and there is Page 9 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER strong possibility of their being influenced in one way or other by the accused / petitioner if he is allowed the bail.
9. In reply to the Para 9, it is submitted that the provision of Section 167 of Cr.PC have been duly applied with. The accused / petitioner was arrested on 18.04.2018 and was produced before the Ld. Spl. Judge on 19.04.2018. He was remanded to police custody from 19.04.2018 to 27.04.2018 and thereafter he has been remanded to the judicial custody. Further, it can be seen from the FIR that one of the sections invoked is 467 IPC wherein the maximum punishment is life imprisonment and thus time period for investigation is 90 days. Even the investigation so far has also revealed commission of offence U/sec. 467, thus the averments made herein are misleading.
10. In reply to the Para 10, it is submitted that the reply to the Para 4 above may be read as part of reply to this Para. Further, the observation of this Hon'ble High Court in Criminal Misc. Application No. 8765/2003 vide order dt. 15.10.2004 are not applicable herein as the case is still under investigation and at the time of consideration of the bail application, it is already been held by the Hon'ble Apex Court in Central Bureau of Investigation Vs. V. Vijay (2013) 7 SCC 452 that it is not expected, at stage of bail, to have evidence establishing guilt of accused beyond reasonable doubt. It has to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence". Further. this is not a complaint case where the Court of Spl. Judge had ordered investigation U/sec. 156(3) of the Cr.PC.
Page 10 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019R/CR.MA/10900/2018 ORDER
11. In reply to the Para 11, it is submitted that the reply to the Para 4 above may be read as the part of reply to this Para.
12. In reply to the Para 12, it is submitted that the reply to the Para 5 above may be read as the part of reply to this Para.
13. In reply to the Para 13, it is submitted that the offences were committed even at the time when the petitioner/ accused was Chairman cum Managing Director of the company and continued till the January, 2010, therefore, the averments therein cannot be the ground for the bail.
14. In reply to the Para 14, it is submitted that the regular bail application of the accused petitioner was rejected by the Ld. Spl. Judge vide order dt. 05.05.2018 after due consideration of the facts. It may also noted that the petitioner / accused had not shown interest to co-operate with investigation because he absconded from the day when the searches were conducted and had not responded to the Notice U/sec. 41A Cr.PC.
15. The averments made in the Para 15 are vehemently denied as the order dt. 05.05.2018 of Ld. Spl. Judge is detailed and with due reasoning. Further, the present application is U/sec. 439 Cr.PC and cannot be considered to be an application for quashing of the order dt. 05.05.2018 of the Ld. Spl. Judge.
Page 11 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019R/CR.MA/10900/2018 ORDER
16. In reply to the Para 16, it is submitted that the evidence collected so far supports the allegations in the FIR and at the time of considering the Bail Application Ld. Spl. Judge had perused the case records, thus, it is not bad in law and further, as submitted above this is an application U/sec. 439 Cr.PC, therefore, the averments herein for quashing the order dt. 05.05.2018 is not as per the provision of law.
17. In reply to the Para 17, it is submitted that when the offences were committed, the present petitioner l accused was Chairman cum Managing Director (CMD) of the company and is fully responsible for the criminal acts committed on behalf of the company. Being the Chairman cum Managing Director of the company and as part of the conspiracy, he is not required to commit cheat and every offence or part of it on his own, however, being the CMD he cannot claim to be innocent against the criminal acts committed by or on behalf of the company.
18. In reply to the Para 18, it is submitted that as submitted above there is strong possibility of tempering with the evidence which is yet to be recovered as majority of the private witnesses examined so far or yet to be examined had either been the employee of the company of their business associates.
19. The averments made in Para 19 cannot be the ground for grant of bail.
Page 12 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019R/CR.MA/10900/2018 ORDER
20. In reply to the Para 20, it is submitted that the instant application for the bail may be rejected on the grounds as stated above.
21. In reply to the Para 21, it is submitted that it is a matter of re record.
22. In reply to the Para 22, it is submitted that in view of the submissions made in pre paras as well as the settled law in various judgements of Hon'ble Supreme Court as submitted above, this application is not maintainable and is liable to be dismissed."
I do not intend to go into the merits of the matter for the purpose of considering the plea for regular bail. I am persuaded to exercise my discretion in favour of the applicant-accused considering that he is an eighty year old man and bedridden as on date. His health is in a very poor condition. This is evident from the medical certificate issued by the Medical Officer, Ahmedabad Central Jail, annexed with the affidavit filed by the CBI. The certificate is extracted hereunder :
"CERTIFICATE This is to certify that Mr.UT/6191/18 Suresh Narain Bhatnagar is a prisoner of Central Jail, Ahmedabad.
Patient was admitted at U.N.Mehta Hospital on 28/04/2018 and discharged on 29/04/2018.
Discharge summary of show: Past history of CABG (2004), Page 13 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER PTCA (2010), Sick Sinus Syndrome Hb, PP (2014, DM, HTN, HYPOTYRODISM, Obstructive Sleep Apnea (on BIPAP therapy), CKD.
In hospital Patient was given bipap support which he was already taking and was continued with same medicine which he was tsaking. Nephro opinion and pulmo opinion was taken and drugs optimized.
Cardiac investigation: Troponin-1 & CKMB was done twice but both are within normal limit. ECHO show:- PPI lead seen in stu, RWMA + LVEF-50%, Mild TR.
Renal function test (Blood urea-70.62 and creatinine-2.49) are above normal level. Blood uric acid (10.4) is above normal level.
On 10/5/2018 Patient has c/o. of chest pain difficulty in breathing and decreased urine output since two days. Patient is referred to U.N.MEHTA hospital for further investigation and treatment. Patient was as indoor in U.N.MEHTA hospital for 2 days (10/5/2018-12/5/2018). Pt was advised to sent to U.N.Mehta hospital for follow up on 4/6/2018 but pt was refused to go for treatment without attendant & wheel chair. Till today Patient is as indoor in jail dispensary. Pt is bedridden & can't able to do his routine without attendant with generalized weakness.
Patient is taking regular treatment as advised by U.N.MEHTA Hospital, Ahmedabad and symptomatic treatment from jail Physician and Medical Officers of Jail Dispensary.Page 14 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019
R/CR.MA/10900/2018 ORDER This certificate is issued on the basis of available case records at central jail dispensary.
Date:14/06/2018 Sd/-Illegible
Ahmedabad Central Jail Medical Officer
Ahmedabad Central Jail"
The plain reading of the medical certificate would indicate that, as on date, the applicant has been admitted in the jail dispensary as an indoor patient. He is bedridden and, according to the Medical Officer of the Ahmedabad Central Jail he is unable to carry out his routine without any attendant. He was admitted at the U.N.Mehta Hospital for the treatment of respiratory tract infection.
The applicant-accused is in judicial custody past almost more than 55 days. By next 35 days, even the charge-sheet would be filed. The two sons of the applicant-accused are also arrested and are in judicial custody.
I do not undermine the seriousness of the offence but, at the same time, having regard to the overall condition of the applicant-accused and his age, I am persuaded to release him on bail, subject to terms and conditions.
Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with C.R. No.RC0292018A0006 registered at the CBI, Gandhinagar, on executing a personal bond of Rs.5,00,000/- (Rupees Five Lac Page 15 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019 R/CR.MA/10900/2018 ORDER Only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the CBI before he is actually released on bail;
[d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
[f] not leave the city of Vadodara without the prior permission of the concerned CBI Court. In case, if the applicant needs to travel himself to any one of the hospitals in Ahmedabad for treatment, then it shall be open for him to travel to Ahmedabad after informing the CBI in this regard.
(g) If the CBI wants to interrogate the applicant, as charge-sheet is yet to be filed, it shall always be open to do so having regard to the overall condition of his health. If the applicant is bedridden and is unable to carry out his normal pursuits, then he may not be asked to personally remain present. However, it shall always be open for the CBI to go at the place of his residence and interrogate him.
The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
Page 16 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019R/CR.MA/10900/2018 ORDER Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.
At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 17 of 17 Downloaded on : Sat Aug 31 23:43:14 IST 2019