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2000 DIGILAW 541 (PNJ)

Kimiti Lal Jain v. State

2000-05-19

K.S.KUMARAN

body2000
JUDGMENT K.S. Kumaran, J. - RC No. 34(A)/98 under Sections 120-B/420/468/471 Indian Penal Code and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act dated 15.6.98 has been registered by Central Bureau of Investigation/ACB, New Delhi, wherein the following material allegations are found :- 2. During 1995, M/s R.K. Viz, Regional Marketing Manager, M.V. Prabhakar, Dy. Finance Manager and Rakesh Chauhan, Accountant Assistant of the regional office of Bongaigaon Refinery and Petro Chemical Ltd. (hereinafter referred to as B.R.P.L.), New Delhi entered into a criminal conspiracy with M/s Arihant Cotsyn Limited (hereinafter referred to as A.C.L.) Industrial Estate, Ludhiana and others. In pursuance thereof, the aforesaid officials of the B.R.P.L. by abusing their positions, fraudulently and dishonesty allowed M/s A.C.L. to lift Polyester Staple Fibre (hereinafter referred to as P.S.F.) worth Rs. 67 lacs on the basis of fake letters of credit, and thereby causing pecuniary loss to B.R.P.L. The letters of credit are dated 23.5.95, 9.6.95 and 22.6.95, while the invoices are dated 3.4.95, 28.4.95, 13.7.95 and 14.7.95. Mr. R.K. Viz, on receipt of the indents from M/s A.C.L. raised requisitions for the sale of PSF mentioning therein the bogus numbers of letters of credit. M.V. Prabhakar in collusion with the party and without verifying the genuineness of the letters of credit fraudulently approved the sale of PSF with the intent to cause loss to B.R.P.L. Rakesh Chauhan, Accountant Assistant showed entries of bogus letters of credit received from A.C.L. against which the P.S.F. in question was sold. But on correspondence with the Punjab National Bank, Ludhiana, from where the questioned letters of credit are said to have been issued, it was found that these letters of credit were not issued in favour of B.R.P.L. 3. Therefore, the petitioner-Kimiti Lal Jain, Chairman-cum-Managing Director of A.C.L., apprehending arrest in pursuance of the above said case moved the Special Judge, Patiala under Section 438 Criminal Procedure Code for bail in anticipation of arrest, but was declined relief. Therefore the petitioner has approached this Court under Section 438 Criminal Procedure Code for the same relief. 4. I have heard the counsel for both the sides and perused the records on file. 5. Therefore the petitioner has approached this Court under Section 438 Criminal Procedure Code for the same relief. 4. I have heard the counsel for both the sides and perused the records on file. 5. The learned counsel for the petitioner contended that the petitioner is not named in the FIR, and no role has been attributed to him in the alleged forgery of the letters of credit or in the transaction of sale of P.S.F. According to the learned counsel for the petitioner, the petitioner, being the Managing Director of A.C.L. sits at its registered office at Ludhiana whereas, Mr. Rajan Guglani, President of A.C.L., is the incharge of the companys unit at Dhuri, and B.R.P.L. has been mostly and usually interacting with him with regard to the supply of PSF. The learned counsel for the petitioner contended that BRPL has been supplying raw materials on credit from a very long time, and the extract of the ledger from August 1991 to March 1998 maintained by ACL shows that the raw materials were supplied to ACL in advance and ACL has been making payments to BRPL leaving some balance at all times. The learned counsel for the petitioner also pointed out that the present FIR has been lodged with reference to certain supplies made in the year 1995, and the alleged letters of credit are stated to relate to the invoices dated 3.4.95, 28.4.95, 13.7.95 and 14.7.95. He contended that the last of the supplies was sent on 14.7.95 and was received on 24.7.95. According to him, there was no supply after 24.7.95, whereas, the alleged forged letters of credit were sent alongwith a covering letter dated 17.8.95 i.e. after receipt of the last supply on 24.7.95. The learned counsel for the petitioner, therefore, contended that it is not as if these supplies were made only after the alleged forged letters of credit were furnished, but were made as usual in the course of the business. He, therefore, contened that it cannot be said that a fraud was committed upon B.R.P.L. - the complainant. 6. The learned counsel for the petitioner further contended that BRPL had also filed a company petition before this Court for winding up of the ACL due to the non-payment of Rs. 43.50 lacs and the ACL has been permitted to pay the amount in monthly instalments of Rrs. 3.00 lacs. 6. The learned counsel for the petitioner further contended that BRPL had also filed a company petition before this Court for winding up of the ACL due to the non-payment of Rs. 43.50 lacs and the ACL has been permitted to pay the amount in monthly instalments of Rrs. 3.00 lacs. According to the learned counsel for the petitioner, till date Rs. 32.81 lacs have been paid leaving only a balance of Rs. 10 lacs. 7. The learned counsel for the petitioner also contended that the petitioner has been joining investigation and during the course of the pendency of the petition before the Special Court at Patiala also, he was ready to join investigation, inspite of the order on 5.4.2000 by the learned Special Judge while granting stay of arrest and directing him to join investigation. The learned counsel for the petitioner also contended that he received a notice under Section 160 Criminal Procedure Code to appear before Mr. S.N. Subramanium, Inspector CBI/ACB, New Delhi, which was served upon the staff of ACL, and the petitioner had requested permission to appear on 6.3.2000. The learned counsel for the petitioner also contended that accordingly, the petitioner appeared in the office of CBI, and though he was informed about the transfer of Mr. S.N. Subramanium to Calcutta, and that a fresh notice will be issued to him, no such notice has been received so far. 8. But the learned counsel appearing for the CBI, on the other hand, first of all contented that the C.B.I. has been constituted under the Delhi Special Police Establishment Act, 1946 and only the Court at Delhi has jurisdiction to grant relief. He contended that Special Courts have been constituted by the respective State Governments, but in this case, the Court which has jurisdiction over the matter is the Special Court at Delhi. He, therefore, contended that neither the Special Court at Patiala nor this Court can grant bail to the petitioner. The learned counsel appearing for the C.B.I. also contended that on 6.3.2000, the petitioner did not come to the office of the C.B.I. at New Delhi as alleged. 9. It is seen that the petitioner is not named in the F.I.R. and naturally there are no allegations against the petitioner that he forged the letters of credit in question. The learned counsel appearing for the C.B.I. also contended that on 6.3.2000, the petitioner did not come to the office of the C.B.I. at New Delhi as alleged. 9. It is seen that the petitioner is not named in the F.I.R. and naturally there are no allegations against the petitioner that he forged the letters of credit in question. On the contrary, in the reply (annexure P-6) filed before the Special Judge, Patiala to the bail application filed by the petitioner, the C.B.I. has stated that investigation revealed that letter along with the said forged letters of credit was typed at the factory premises of ACL and the writings on the typed letters were of Rajan Guglani, the then General Manager. The specific case of the petitioner is that he sits at Ludhiana where the registered office of ACL is situated, which is not questioned. 10. Of course, the learned counsel for the C.B.I. relied upon the decision of the Honble Supreme Court in State v. Anil Sharma, 1997(7) SCC 187, and contended that persons holding high positions and wielding considerable influence should not be granted bail in anticipation of arrest and custodial interrogation is more useful in eliciting information. 11. He also relied upon another decision of the Honble Supreme Court in Dukhishyam Benupani, Assistant Director Enforcement Directorate (Fera) v. Arun Kumar Bajoria, 1998(1) SCC 52, and contended that where huge amount is involved, bail in anticipation of arrest should not be granted. 12. But, as pointed out already, there are no allegations in the F.I.R. that petitioner forged the letters of credit. There is also no indication to show that he had even knowledge of these alleged forgeries since investigation has revealed that the letters forwarding the forge letters of credit were sent from the factory site at Dhuri and the handwritings on the letter were that of Rajan Guglani. But the petitioner contends that he is sitting at Ludhiana. 13. This apart, the learned counsel for the petitioner contended that during the period when the petition for bail was pending before the Special Judge, Patiala, the petitioner was directed to join investigation and had, in fact, even joined the investigation. But the petitioner contends that he is sitting at Ludhiana. 13. This apart, the learned counsel for the petitioner contended that during the period when the petition for bail was pending before the Special Judge, Patiala, the petitioner was directed to join investigation and had, in fact, even joined the investigation. He also contended that petitioner had even received a notice from the C.B.I. to appear before S.N. Subramanium, Inspector of C.B.I., ACB, New Delhi, that the petitioner had requested permission that he would appear on 6.3.2000 and accordingly appeared on that date in the office of the C.B.I., but was informed that S.N. Subramanium had been transferred to Calcutta. The learned counsel for the petitioner also contended that though the petitioner was informed that fresh notice would be issued to him, no such notice was issued to the petitioner. The fact that S.N. Subramanium has been transferred to Calcutta, is not disputed by the C.B.I., though it is denied that the petitioner had come to the office of the C.B.I. on 6.3.2000. 14. But the learned counsel for the petitioner contended that the learned Special Judge has also pointed out in his order that at the initial stage the petitioner was joined in investigation at his registered office at Ludhiana, though he observed that it is no bar for the present Investigation Officer to ask the petitioner to join investigation at this stage. Pointing out these factors, the learned counsel for the petitioner contended that the petitioner has joined investigation and has always been ready to join investigation. 15. The next contention of the learned counsel for the petitioner is that there was no cheating at all because admittedly, the letter which accompanied the forged letters of credit was sent on 17.8.1995 only whereas the last of the supplies of PSF was made on 24.7.1995, which shows that no supply was made on the basis of these forged letters of credit. The fact that the last of the supplies was made on 24.7.1995, is not disputed by the learned counsel for the C.B.I. So, the learned counsel for the petitioner contended that no supply of PSF was made in pursuance of these alleged forged letters of credit and, therefore, there is no wrongful gain or wrongful loss to anybody and consequently, there is no question of cheating or acting in a dishonest or fraudulent manner. The learned counsel for the petitioner also pointed out that the ACL had been dealing from a very long time and there have always been balance payable by the ACL, and it is not as if the supplies were made on the basis of the forged letters of credit. 16. The learned counsel for the petitioner relied upon the decisions of the Honble Supreme Court in Jibrial Dewan v. State of Maharashtra, 1998(1) Judicial Reports (Criminal) 52 and contended that when there is neither wrongful gain to anyone, nor any wrongful loss to another the act of ACL cannot be termed to have been done dishonestly, and the ACL cannot be said to have acted with the intention to defraud since its action has not resulted in any disadvantage to BRPL. 17. Annexure P-1, the extract from the ledger maintained by the ACL shows that from 1991 to 1997-98, the ACL has been purchasing materials from BRPL and there has always been balance payable by the ACL. Annexure P-2, the letter by which the forged letters of credit were forwarded is dated 17.8.1995 and apparently, no supply was made by BRPL after 24.7.1995. Therefore, the petitioner cannot be stated to have gained or the BRPL cannot be stated to have been made to suffer a loss by virtue of the production of these forged letters of credit. Whatever might have been the action of others, there is nothing to show that the petitioner was involved in the act of cheating, though he may be the Chairman-cum-Managing Director sitting at Ludhiana. 18. The learned counsel for the petitioner next contended that the finding of the Special Court at Patiala that it had no jurisdiction to entertain the bail application, cannot at all be sustained. The learned Special Court, Patiala has taken the view that even if it is assumed that the Special Court at Patiala as also the Special Court at Delhi have territorial jurisdiction since the alleged offence was committed within their jurisdiction, still the F.I.R. having been registered at Delhi and the Court competent to hold the trial, at Delhi having issued the non-bailable warrants for the arrest of the petitioner, if the Special Court at Patiala stays the arrest during investigation, it would amount to staying the execution of the lawful orders of the competent Court of parallel jurisdiction which, according to him, would be improper. 19. 19. But the learned counsel for the petitioner contented that even according to the C.B.I., the forgery was committed at Dhuri in District Sangrur and, therefore, certainly the Special Court at Patiala which exercises jurisdiction over the alleged place of occurrence, will have jurisdiction. The learned counsel for the petitioner also contended that under Section 177 Criminal Procedure Code, the offence has to be ordinarily enquired into and tried by a Court within whose local jurisdiction it was committed. He, therefore, contended that the Special Court at Patiala has jurisdiction to entertain the bail application. Of course, in this case, the F.I.R. has been registered at Delhi. The office of the BRPL is at Delhi and certain officials of the BRPL are alleged to have colluded with ACL in making supplies without getting letter of credit. They are alleged to have connived with the ACL. Therefore, it may be that the Court at Delhi has also jurisdiction. The F.I.R. has also been registered at Delhi. But the alleged forgery has been committed at Dhuri, District Sangrur which falls within the jurisdiction of the Special Court at Patiala. Under Section 178 Criminal Procedure Code, where the offence consists of several acts done in different local areas, it can be enquired into or tried by a Court having jurisdiction over any of such local areas. Therefore, it cannot be stated that the Special Court at Patiala has no jurisdiction. 20. The learned counsel for the C.B.I., of course, referred to the provisions of the Delhi Special Police Establishment Act, 1946. But, these provisions deal with the powers of the Investigation Officers belonging to that establishment and the learned counsel for the C.B.I. has not been able to point out any provision which deals with the jurisdiction of the Court. The learned counsel for the C.B.I. also fairly conceded that the provisions of Delhi Special Police Establishments Act do not override the provisions of the Criminal Procedure Code with regard to the jurisdiction of the courts to enquire into and try offences. The learned counsel for the C.B.I. also fairly conceded that the provisions of Delhi Special Police Establishments Act do not override the provisions of the Criminal Procedure Code with regard to the jurisdiction of the courts to enquire into and try offences. Of course, the learned counsel for the C.B.I. contended that the Special Court at Delhi has issued non-bailable warrants for the arrest of the petitioner, but the learned counsel for the petitioner contended that the petitioner had approached the Special Court at Patiala on 5.4.2000 itself for bail in anticipation of arrest on which date notice of the same was given to the Public Prosecutor for the C.B.I. and the case was adjourned to 11.4.2000. He also pointed out that the arrest of the petitioner was also stayed. The learned counsel for the petitioner contented that inspite of the fact that the Public Prosecutor of the C.B.I. had taken notice and stay of arrest had been granted on 5.4.2000, the C.B.I. had obtained the non- bailable warrants against the petitioner on 8.4.2000. The learned counsel for the petitioner contented that by obtaining this order on 8.4.2000, the C.B.I. cannot oust the jurisdiction of the Special Court at Patiala. 21. The learned counsel for the petitioner relied upon the decision of the Full Bench of the Patna High Court in Syed Zafrul Hassan v. State, 1986(2) RCR(Crl.) 60 : 1986 Criminal Law Journal 605, in support of his contention that the Court which has jurisdiction over the local area in which the offence was committed, has the jurisdiction to grant bail. He also relied upon the decision of this Court in Ravinder Mohan Bakshi v. State of Punjab, 1984 Criminal Law Journal 714, wherein it was held that the jurisdiction of the Court arises with reference to the offence. 22. But the learned counsel for the C.B.I., on the other hand, relied upon a decision of the Honble Supreme Court in C.B.I. Anti-Corrupation Branch v. Narayan Diwakar, 1999(4) SCC 656. That was a case where an I.A.S. Officer was officiating as Collector at Daman. He was then transferred to Arunachal Pradesh. Before his transfer, three FIRs were registered by the C.B.I. A wireless message was sent from Bombay to the Chief Secretary Arunachal Pradesh to advise the said I.A.S. Officer to appear before the Inspector of Police, C.B.I. at Bombay in connection with the investigation. He was then transferred to Arunachal Pradesh. Before his transfer, three FIRs were registered by the C.B.I. A wireless message was sent from Bombay to the Chief Secretary Arunachal Pradesh to advise the said I.A.S. Officer to appear before the Inspector of Police, C.B.I. at Bombay in connection with the investigation. The said I.A.S. Officer filed a writ petition before the Guwahati High Court to quash the F.I.Rs. and for the consequential reliefs, which was allowed. The contention before the Honble Supreme Court was that no part of cause of action arose within the jurisdiction of the High Court of Guwahati and the Honble Supreme Court accepted it. But, that is not so in the present case on our hand, because as pointed out already, the alleged forgeries were committed within the jurisdiction of the Special Court, Patiala. Therefore, this decision is not applicable to the facts of this case. 23. The learned counsel for the C.B.I. relied upon another decision of the Honble Supreme Court in Central Bureau of Investigation, New Delhi v. Showkat Ahmed Bakshi, 1995 Supp.(3) SCC 73. That was a case where the chargesheet had been filed in the designated Court at Jammu. The Honble Supreme Court held that the Designated Court at Sri Nagar cannot entertain an application for bail with regard to that case since the charge-sheet had been filed at Jammu and therefore the trial was pending before the Court at Jammu. But this decision again is not applicable to the facts of this case inasmuch as the charge-sheet has not so far been filed in the Special Court at Delhi, though the learned counsel for the C.B.I. stated that they are going to file the charge-sheet in the Special Court at Delhi. The learned counsel for the petitioner contended that, therefore, this decision is also not applicable to the facts of this case. 24. The learned counsel for the C.B.I. also referred to the decision of the Honble Supreme Court in Central Bureau of Investigation v. Rajesh Gandhi, (1996)11 SCC 253. That decision again will have no application to the facts of this case because it relates to the extensions of the powers and jurisdiction of the members of the Delhi Special Police Establishment and not to the jurisdiction of the Court. 25. That decision again will have no application to the facts of this case because it relates to the extensions of the powers and jurisdiction of the members of the Delhi Special Police Establishment and not to the jurisdiction of the Court. 25. One another point urged by the learned counsel for the petitioner is that the company petition for winding up ACL was filed before this Court wherein ACL has been permitted to pay the money in instalments of Rs. 3 lacs. According to him, only a sum of Rs. 10 lacs remains the balance. 26. Taking into consideration the facts of the case and analysing them in the light of the decisions mentioned above, I am of the view that at this stage the jurisdiction of this Court to grant bail is not taken away. The position would, of course, be different if the charge-sheet had been filed, when the accused would have to approach the Court, where the charge-sheet had been filed, with a request for bail. 27. Taking into consideration the arguments put forward by both the sides, but at the same time without meaning to express any opinion on the merits of the main case, I am of the view that the petitioner is entitled to be released on bail in anticipation of arrest. 28. Accordingly, this petition is allowed. In the event of arrest of the petitioner on the allegations found in the F.I.R. mentioned in this petition, the petitioner is ordered to be released on bail on his furnishing sufficient surety to the satisfaction of the Arresting Officer. However, if the association of the petitioner is necessary for the purpose of further investigation, the Investigation Officer shall issue notice to the petitioner giving him sufficient time to join investigation and on such notice, the petitioner shall join investigation. The petitioner shall also abide by the provisions of Section 438(2) Criminal Procedure Code Petition allowed.