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Himachal Pradesh High Court · body

2011 DIGILAW 864 (HP)

Davinder Kumar Dhar v. State of H. P.

2011-03-03

DEV DARSHAN SUD

body2011
JUDGMENT Dev Darshan Sud, J. This petition has been filed by Shri Davinder Kumar Dhar, Manager of Corporation Bank, Ambala City, who is one of the accused in FIR No.23/11, registered on 26.1.2011 with Police Station Una for offences under Sections 419, 420, 467, 468, 471, 120-B and 489-A IPC and Section 23 of the Foreign Contribution (Regulation) Act, 1976. 2. The allegations in a nutshell are that on 26.1.2011 around 3.35 P.M. one Scorpio bearing No.HP-36-0444, which was coming from Nangal towards Una was stopped for checking by the police who were on routine duty. The driver disclosed his name as Sanyog Dutt son of Ravinder Nath, Resident of Village Pathiar, District Kangra and the second person as Ashutosh Sharma son of Ravinder Nath, Resident of the same village. They informed the police that they are employees of “Divya Himachal Newspaper”. The vehicle was bearing two stickers with the words “Press” which were affixed on the front and the rear wind screen. The police became suspicious and searched the vehicle, when one certificate/document bearing No.OR/DKD/AMB/14/2011, dated 20.1.2011 issued by the Corporation Bank, Ambala City Branch and signed by the petitioner was produced by the two occupants. This certificate stated a sum of Rs.one crore has been sent by Shri K.P. Bhardwaj to be remitted to his savings account was being transported in vehicle No.HR-03H-6194. The police found Rs.one crore in cash in a bag out of which Rs.80 lacs (Rs.eighty lacs) were in One Thousand Rupee notes and Rs.20 lacs (Rs.twenty lacs) in Five Hundred Rupee notes. The police suspected that the money was to be used for anti-social activities/smuggling/illegal activities etc. and therefore, the case under Sections 419, 420, 467, 468, 471 and 120-B IPC was registered. Lateron, after investigation offences under Section 489-A IPC and Section 23 FCR Act were added. Confessional statement of one M.R.Dogra, who is supposed to be connected with the offence, has also been recorded under Section 154 of the Code of Criminal Procedure by the Judicial Magistrate Ist Class, Court No.2,Una. 3. It is undisputed before me that prior to the institution of the present application, two applications praying for grant of bail were filed one before the learned Chief Judicial Magistrate, Una, and the second before the learned Additional Sessions Judge, Una. 4. 3. It is undisputed before me that prior to the institution of the present application, two applications praying for grant of bail were filed one before the learned Chief Judicial Magistrate, Una, and the second before the learned Additional Sessions Judge, Una. 4. By order dated 5.2.2011 the learned Chief Judicial Magistrate, rejected the prayer made by the petitioner and the other accused. The prayer of the investigating agency for remanding the petitioner to judicial custody was allowed. While considering the bail application, the Court inter alia noticed the prayer made on behalf of the prosecution that the petitioner herein be remanded to judicial custody. The Court holds that the recovery of Rs.one crore stands established on the record and that the accused Sanyog Dutt and Ashutosh Sharma had produced one certificate/document issued by the petitioner herein that the money being carried by them belonged to one Kul Parkash. Pursuant to the seizures, searches of the Monastery of Karmappa at Sidhbari were carried out and recoveries of huge amount of cash in Indian and Foreign currencies was made. The Court holds that the record shows that the accused Kul Parkash was not having any Saving Bank Account with the Ambala Branch of the Corporation Bank. It was further averred that this money was handed over to Rabgey Chhoshang by some other persons whose names were Karma Kukekhampa and Rinzin Bagmo, who are also arrested and are in police custody. The Court then holds:- “10. ……..It is alleged by the investigating agency that accused persons are required for interrogation except accused D.K. Dhar against whom the police prayed for judicial custody. The main premise for which the police is prayed for by the investigating agency is an out come of document allegedly to have been received by the agency from their police headquarter on the pretext that land deal was struck at Rs.Five Crore and not of Rs.2.5 Crore, which would be rather fallacious on the part of the investigation praying for police remand on a document coming on record from their own possession.” 5. The Court then takes notes of the fact that since the amount involved is huge, currency belonging to more than 25 countries has been recovered from the monestary at Sidbari, the seizure was the stimulus for the recovery of currency of a number of countries from Karmapa Monastery, the amount involved is large, the Court concludes that these certificates would undermine the economy of the country and it will be reasonable to presume that in case the accused are released on bail, they would interfere in the progress of investigation and tamper with the prosecution witnesses. The bail applications were rejected and the petitioner was remanded to judicial custody. 6. The petitioner, undeterred, preferred another application before the learned Additional Sessions Judge, Fast Track Court, Una. This application was taken up with a number of other cases. The learned Court noted that Kul Parkash is said to have entered into a conspiracy with Sanyog Dutt and Ashutosh Sharma for commission of the offences. He had entered into an agreement with the Karmapa Math to sell some property in contravention with the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. Adverting to the case against the petitioner, the specific allegation was that he had connived with the others and issued a forged authorisation letter to the accused Sanyog Dutt and Ashutosh Sharma authorising them to carry one crore rupees from Delhi. Taking note of various arguments addressed at the bar, the Court ruled that the case is at the investigation stage, there is a possible link between the money recovered involved in this case and huge foreign currency recovered by the Police from the Budhist Math (Monastery) at Sidhbari. The police is investigating the case with respect to the purchase of the land by this Monastery and there is a possible nexus between the petitioner and the officials of the Monastery, an agreement to sell was executed inter alia between Kul Parkash Bhardwaj and the "Math”, the identity papers carried by the two drivers of the jeep were fake, the authorising certificate issued by the petitioner herein was not correct, the police should be granted full opportunity to further investigate the case. At that time, the petitioner had also brought to the notice of the Court that this Court vide its order dated 16.2.2011 had disposed of the petition of one Dr.Swatantra Mahajan (who was also involved in the case of sale, purchase etc.) on the ground that he is not an accused in the case. The application was dismissed. The petitioner has now filed this application before this Court praying that he be admitted to bail. 7. I have heard learned counsel for the parties, considered the orders passed by the two Courts below and have also gone through the record. 8. Learned counsel appearing for the petitioner submits that there is no dispute and infact it is not disputed that the certificate/authorisation which was issued by the petitioner, there is nothing secret about this document which bears a dispatch number of the bank. This was issued on the basis of a letter/ communication issued by accused Kul Parkash Bhardwaj stating that he would be remitting some sale proceeds of which this amount of Rs.one crore is a part to be deposited in his account. Both these documents are in possession of the police. Mr. Kul Parkash had, therefore, asked for the issuance of letter certifying that Mr.Dogra will be requiring authority from the bank certifying that the amount being carried by them is pursuant to a property transaction. The authorisation certificate is brief and terse. It states:- “ Corporation Bank To whom so ever it may concern This is to certify that Shri K.P. Bhardwaj is out valued customer having his Savings bank Account with us and at Panchkkula Branch also. He has sold his property at New Delhi and amount of Rs.1 crore is being remitted to his account vide cash transaction and carried in vehicle no.HR03H6194. This is a genuine banking transaction for the credit of SB A/c of captioned party.” 9. The name of the person(s) who were authorised to carry this letter has/have not been mentioned but only vehicle number has been mentioned. Learned counsel submits that there is no complicity so far as the petitioner is concerned. He was working in Ambala and Kul Parkash Bhardwaj was a customer of the bank well known to him and in these circumstances he had issued this certificate. Learned counsel submits that there is no complicity so far as the petitioner is concerned. He was working in Ambala and Kul Parkash Bhardwaj was a customer of the bank well known to him and in these circumstances he had issued this certificate. He has no interest nor is he anywhere involved in the affairs of the Monastery, his only interest was that the bank should have the maximum deposit(s). 10. Learned Additional Advocate General, has vehemently opposed the grant of bail to the petitioner. He submits that it is not usual to find people carrying huge amount of cash of one crore rupees or more. The most important link evidence according to the learned Additional Advocate General is that this seizure forms the foundation of recovery of huge amount of foreign currency from the Monastery, it was found that the seizures effected at the Monastery were of huge sums of cash in different foreign currencies for which the Monastery/Trust had no authority to retain. There is no explanation as to how the Monastery came in possession of such a huge amount of cash. So far as the petitioner is concerned, he was a facilitator authorizing the accused to carry the money which is the subject matter of this case. 11. In these circumstances, there is all the more reasons to suspect that the money would be used for anti-State/anti-National/illegal/criminal activities and no satisfactory explanation has come forth from the occupants of the vehicle with respect to the source/transaction of cash which was seized, there was no explanation as to how these people came into possession of such a huge amount of money and it was the petitioner who issued a letter which facilitated the crime. 12. It is undisputed that seizure of the Indian and foreign currency at the Monastery of the Karmapa at Dharamshala is not the subject matter of this petition and neither is the Karmapa or other persons who have connived with him have been charged in the present case. 13. It is undisputed before me that the FIR has been registered under the provisions as stated in the application. It is also undisputed that on 5.2.2011 the petitioner was sent to judicial lock up. 13. It is undisputed before me that the FIR has been registered under the provisions as stated in the application. It is also undisputed that on 5.2.2011 the petitioner was sent to judicial lock up. On the question of his interfering with the prosecution evidence, I do not find that there is anything on the record to excite suspicion that his liberty would be a danger to the investigation or that he would in any manner tamper with the evidence, overawe or win over the prosecution witnesses. The two Courts below have rejected the application on the ground that the money involved is substantial; this seizure lead to the trial of the seizure of foreign currency with the Monastery at Sidhbari in Dharamshala which amount was itself illegally retained by the Monastery. What the Courts below ignored by taking into consideration the activities at the Monastery is the fact that the prosecution has not brought on record any material to show that they were proceeded under the Foreign Contribution (Regulation) Act, 1976, Prevention of Money Laundering Act, 2002, Foreign Exchange Management Act, 1999, Income Tax Act or any other Act dealing with reception conversion etc. for foreign currency, violation of any of the Regulations, Notifications issued by the Reserve Bank of India, prohibiting/regulating the receipt conversion of foreign currency etc. or purchase of immovable property in any part of India, save and except without the prior permission of the Central Government. As noticed by me, I do not find from the record as to what action is being taken by the Authorities under the Prevention of Money Laundering Act, 2002, the Foreign Contribution (Regulation) Act, 1976, Foreign Exchange Management Act, 1999, the Income Tax Act or the Reserve Bank Regulation, order etc. It is clarified that if any case is made out against the petitioner under those Act, it will be open to the Authorities to proceed in accordance with law and this order will not be considered as having granted bail to the petitioner under this Act. 14. Merely because the seizure is large amount of currency that by itself may not be a factor for denying bail, more especially, when I do not find anything on the record to show/establish that the petitioner had infact engaged/facilitated some anti-National/illegal activities. 14. Merely because the seizure is large amount of currency that by itself may not be a factor for denying bail, more especially, when I do not find anything on the record to show/establish that the petitioner had infact engaged/facilitated some anti-National/illegal activities. If the Math/Monastery and the other persons have been found in violation of the other provisions of the law noticed above, for possession of unaccounted money/foreign exchange in violation of the enacted provisions dealing with the requirement of receipt conversion of money including foreign currency, nothing stops either the State or Central Government from investigating the matter and taking such action in accordance with the provisions of law. 15. In the facts and circumstances of the case, it is directed:- (a) That the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs.one lac with one surety in the like amount who should be a resident of Himachal Pradesh preferably District Una to the satisfaction of the learned Sessions Judge, Una. (b) That the petitioner shall not tamper with the prosecution evidence nor make any overt or covert attempt to do so. The petitioner shall not overawe, influence, intimidate the prosecution witnesses or in any manner attempt to do so. (c) That the petitioner shall report to the Station House Officer, Una, once every 15 days on a date to be fixed by the Investigating Officer. (d) That the petitioner shall undertake that he shall not abscond and shall not obstruct the smooth progress of the trial nor shall he in any manner obstruct the investigation. (e) That the petitioner shall further undertake to be present for investigation as and when called for which purpose a Hukumnama shall be sent to him at his place of work by the police intimating and informing him that he requires for the purposes of investigation. (f) That the petitioner shall apply for bail afresh when challan is put up in Court. 16. In case of violation of any of these conditions, the bail shall stand forfeited the case will be referred to this Court immediately. The petitioner will be liable to be arrested and taken into custody. 17. (f) That the petitioner shall apply for bail afresh when challan is put up in Court. 16. In case of violation of any of these conditions, the bail shall stand forfeited the case will be referred to this Court immediately. The petitioner will be liable to be arrested and taken into custody. 17. That it will be open to the prosecution to apply for such other or further condition(s) which may be required to be imposed in case so required in the interest of justice and in the facts and circumstances of the case. For this purpose it will be open to the State to move this Court. 18. This order does not determine the merits of the case or of any allegation/case which may have been instituted or may be instituted against the petitioner under the provisions of the other Acts and only deals with the FIR in this case.