ORDER : 1. This application is filed under Section 439 of the Code of Criminal Procedure, 1973 by the applicant – accused with a prayer that he may be enlarged on regular bail in connection with Final Report/Charge Sheet No.11/19 dated 21.09.2019 arising out of FIR being C.R.No.I­5 of 2019 registered with CID Crime, Gandhinagar Zone Police Station for the offences punishable under Sections 406, 409, 420, 465, 468, 471 and 120B of the Indian Penal Code, 1860 (IPC for short) and under Section 13(1)(d) of the Prevention of Corruption Act, 1988. 2. The applicant is shown as accused No.1 in the aforesaid FIR, which is registered on 26.06.2019. Applicant came to be arrested on 02.07.2019 in connection with the said FIR. After the investigation, investigating agency has filed charge­sheet No.11 of 2019 on 21.09.2019. In the said charge­sheet, it has been mainly stated that the Gujarat Maritime Board (GMB) awarded tender for the purpose of setting up of a Vessels Traffic & Port Management System (VTPMS) to Aatash Norcontrol Pvt. Ltd. (ANL) of which the applicant herein is a Director. In the year 2007, a Concession Agreement dated 30.09.2007 was entered into between the two companies. That according to the contract entered into between the two companies, VTS fee (charge) was to be collected from the vessels for a period of 30 years from the day of VTPMS system came into existence. That according to clause 11.2, VTS fees will be fixed at the rate as framed by the complainant and notified and the said rates will be revised at 10% every 5 years. It was further stated that the capital cost claimed by ANL is 119,39,27,755/­, out of which bills amounting to Rs.16.31 crores are false and forged bills. It is also alleged that though the applicant was aware about the fact that the said bills were false, the same were used as genuine. Moreover, from August 2010, ANL has been charging more VTS fees than what was decided. It is also alleged that ANL has inflated the capital cost by using forged bills and by doing the same, it has illegally earned an amount of Rs.134.38 crore more from Financial Year 2015­16 to 2018­19. Moreover, from August 2010, ANL has been charging more VTS fees than what was decided. It is also alleged that ANL has inflated the capital cost by using forged bills and by doing the same, it has illegally earned an amount of Rs.134.38 crore more from Financial Year 2015­16 to 2018­19. Upon further inquiry, it has been found that the funds have been siphoned through various shell companies like Aakash Palace Developers Pvt. Ltd. And Chardham Developers Pvt. Ltd. And their subsidiary companies i.e. the sister concern of ANL being Aatash Dredging and Construction Private Ltd. (ADCPL) and Aatash Computer and Communication Pvt. Ltd. back into the account of ANL. It is further alleged that a bill has been submitted by ANL for development of Dumas premises for the purpose of construction of Master Control Station of the VTPMS project, which has not bee constructed at all. Moreover, no construction work as described in the 8 bills issued by Chardham Developers Pvt. Ltd. and Aakash Palace Developers Pvt. Ltd. has taken place and the said bills are false and forged. 3. Heard learned Senior Advocate Mr. I. H. Syed appearing for the Singhi & Company for the applicant, learned Senior Advocate Mr. S.V.Raju assisted by learned advocate Mr. G.H. Virk appearing for the original complainant and learned Public Prosecutor Mr. Mitesh Amin for the respondent – State. 4. Learned Senior Advocate Mr. Syed referred the paper­book separately supplied and the relevant material placed on record and thereafter learned counsel has given brief facts of the present case. It is submitted that in the year 1997, the Government of Gujarat issued Build, Own, Operate and Transfer (BOOT) Policy for involvement of the private sectors in construction and operation of new ports. The purpose of such policy was to give complete freedom to private investors for design and operation of the Port Management System where the private investors and Government of Gujarat and GMB acted as partners or principals who would share the benefits as per the agreement. As per the said policy, GMB invited offers by way of public notice/Expression of Interest (EoI) in the year 2006 to set­up a modernize and advanced VTPMS in the Gulf of Khambhat. It is submitted that VTPMS is a system used to give navigational advice to ships/vessels. In response to the said public notice, Kongsberg Norcontrol IT AS (a Norwegian company) submitted commercial bid. It is submitted that VTPMS is a system used to give navigational advice to ships/vessels. In response to the said public notice, Kongsberg Norcontrol IT AS (a Norwegian company) submitted commercial bid. In the year 2007, ANL – a joint venture company of the applicant’s company and the aforesaid Norwegian company submitted its Detailed Project Report (DPR) to GMB for the Gulf of Khambhat stating the capital cost of the project would be more than 100 crores. A VTS fees sensitivity chart was made in which Internal Rate of Return (IRR)/ROI/ROE was fixed at 15% for the tenure of 30 years of the project. The Government of Gujarat in exercise of powers under the Gujarat Maritime Board Act, 1981 issued VTS fee Gazette Notification for the said purpose. Thereafter, Concession Agreement was executed between ANL, GMB and Government of Gujarat. Learned counsel has referred the relevant clauses of the Concession Agreement. 5. Learned counsel Mr. Syed thereafter submitted that as per the direction of GMB and in compliance of the Concession Agreement and the Gazette Notification, the ANL collected VTS fees from 2010­2011 to 2018­2019 and out of total revenue, 20% of the revenue was paid to the GMB as per the Agreement. It is also submitted that in the year 2015, by invoking Clause 11.2 of the Concession Agreement, the ANL demanded 10% escalation of VTS fees from GMB. Therefore, the GMB asked the concerned Chartered Accountant to prepare the report and the said Chartered Accountant stated that project cost is in fact not 119 crores but it is approximately 75 crores. It is further submitted that the Principal Accountant General (PAG) gave a Preliminary Inspection Report on 03.05.2018 stating that due to non­inclusion of any provision in the agreement to limit the return on investment to the desired limit of 15% on the project cost, the licensee had earned an extra income of Rs.134.38 crores during the period from 2015­2016 to 2017­ 2018. It is submitted that the said report was prepared by PAG without giving an opportunity of hearing to the applicant. Thereafter, an Expert Committee consisting of two Chartered Accountants, one appointed by GMB and another of ANL, was formed invoking Clause 18 of the aforesaid Agreement. It is submitted that the said report was prepared by PAG without giving an opportunity of hearing to the applicant. Thereafter, an Expert Committee consisting of two Chartered Accountants, one appointed by GMB and another of ANL, was formed invoking Clause 18 of the aforesaid Agreement. The said committee submitted a joint report in which it is stated that the capital cost of the project on a conservative basis would be Rs.98.19 crores instead of Rs.119 crores. On the basis of the report given by the PAG, GMB issued recovery notice to ANL instructing the ANL to pay Rs.134.38 crores within a period of 30 days and threat was also given to terminate the contract. The ANL therefore approached the concerned Court and ultimately dispute is referred to Arbitral Tribunal. Learned counsel has referred the interim order passed by the Arbitral Tribunal. 6. Learned counsel Mr. Syed thereafter referred the relevant portion of the papers of the charge­ sheet and would submit that mainly three allegations are levelled against the applicant, which are as under: ”1. That Aatash Norcontrol Ltd. (ANL) raised the capital cost of the project for more than 100 crore to the tune of Rs.119,39,27,755/­ (One Hundred Nineteen Crore Thirty Nine Lakhs Twenty Seven Thousand Seven Hundred Fifty Five only). 2. Out of the said Rs.119,39,27,755/­, Rs.16 crore were paid by ANL to Aatash Dredging and Constructions Pvt. Ltd. (ADCPL) through sub­contractors which made a payment of Rs.15 Crore to Akash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd. 3. By escalating the cost of project for more than 100 crore VTS fees was fixed by the Gujarat Maritime Board (GMB) for hazardous and non­hazardous vehicle at Rs.6 and Rs.4 per Gross Register Tonnage (GRT). As the VTS fees was fixed on the higher side, the ANL collected VTS fees of Rs.134 crores for the year 2015­2016 to 2017­2018 more.” 7. It is contended that prima facie the aforesaid three allegations are not correct. The total cost of the project as per ANL is Rs.119 crores and if the taxes are included then the cost of the project would go to Rs.124 crores. It is contended that prima facie the aforesaid three allegations are not correct. The total cost of the project as per ANL is Rs.119 crores and if the taxes are included then the cost of the project would go to Rs.124 crores. It is submitted that even as per the case of the prosecution, at the best, out of Rs.119 crores, payment of Rs.16 crores was made by ADCPL to Akash Palace and Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd., wherein against the said payments no work was done and the bills were raised to escalate the capital cost of more than 100 crores. The investigating agency has recorded the statement of witnesses like the contractors, sub­contractors and collected the documentary evidence in the form of bank statements of the said sub­contractors. From the said material, it is submitted that except two payments mentioned in the case of Akash Palace and Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd., there was no illegality found in other transactions. It is, therefore, contended that out of Rs.119 crores, if Rs.16 crores are deducted then the capital cost inclusive of taxes would be Rs.103 crores, which is more than Rs.100 crores. 8. At this stage, learned counsel would further submit that the reliance placed by learned Senior Counsel appearing for the complainant on the averments made in the bail application filed by co­accused Sudarshan Sharma and Rekha Sharma is misconceived. It is submitted that averments made in the bail application of co­accused cannot be relied upon while deciding the application of the co­accused. Therefore, it cannot be said that certain invoices and bills are forged. 9. Learned counsel Mr. Syed further submits with regard to allegation No.3 that PAG gave Preliminary Inspection Report that ANL had earned extra 134.38 crores during the period between the years 2015­16 to 2017­18. However, the said report was prepared without giving an opportunity of hearing to the applicant and without going through any of the documents in respect of the project. The said report has no evidentiary value as per the Evidence Act. In spite of that the investigating agency has placed reliance upon the said report given by the PAG. No independent investigation is carried out by the agency for arriving at the figure of Rs.134 crores which the applicant/ANL has allegedly received as extra income. The said report has no evidentiary value as per the Evidence Act. In spite of that the investigating agency has placed reliance upon the said report given by the PAG. No independent investigation is carried out by the agency for arriving at the figure of Rs.134 crores which the applicant/ANL has allegedly received as extra income. It is, therefore, urged that all the allegations levelled against the applicant in the papers of charge­sheet are baseless and the prosecution has failed to point out any prima facie case against the applicant. It is, therefore, urged that case of the applicant be considered. 10. Learned counsel thereafter submits that the Arbitral Tribunal has passed interim order on 07.08.2019 and when the same dispute is pending before the Arbitral Tribunal, case of the applicant may be considered. At this stage, it is also contended that the applicant is aged about 60 years and he is in jail since 02.07.2019 and therefore now when the charge­sheet is filed, this Court may consider the case of the applicant. 11. Learned counsel Mr. Syed has placed reliance upon the decision rendered by the Hon’ble Supreme Court in the case of R. Venkatkrishnan v. Central Bureau of Investigation, reported in (2009) 11 SCC 737 , State Bank of India v. National Housing Bank & Ors., reported in (2013) 16 SCC 538 and in the case of P. Chidambaram v. Directorate of Enforcement rendered by Hon’ble Supreme Court on 04.12.2019 in Criminal Appeal No.1831 of 2019. 12. On the other hand, learned Senior Advocate Mr. S.V. Raju appearing for the original complainant – GMB has mainly submitted that under Clause 11.2.1 of the Concession Agreement, the licensee was entitled to receive and collect from the users as per the rates contained in Annexure VII. Under Clause B the licensee was entitled to get return on equity at the rate of 15% of investment of 100 Crore and above and if the investment is below 100 Crore, the return on equity would be proportionately reduced. The licensee was, therefore, required to submit document to verify the cost as stated in this clause itself. 13. The case of the prosecution is that the licensee acting through applicant deliberately submitted documents of cost inflating the cost to 119 crores approximately and thereby to get advantage of this clause to get 15% return on investment. 14. The licensee was, therefore, required to submit document to verify the cost as stated in this clause itself. 13. The case of the prosecution is that the licensee acting through applicant deliberately submitted documents of cost inflating the cost to 119 crores approximately and thereby to get advantage of this clause to get 15% return on investment. 14. It is further submitted that after the CAG report, which showed that the accused had taken benefit of 134.38 crores, a committee comprising of two Chartered Accountants was formed. It is submitted that both the Chartered Accountants have rescinded from and withdrawn their joint report. In any case, without taking into account the fraudulent and forged documents escalating the cost, the report dated 27.06.2018 of these two Chartered Accountants showed that the cost incurred by the applicant – accused was not 119.39 crores but 98.19 crores. 15. It is, thereafter, submitted that the CAG acting through PAG gave a report/letter on 18.08.2018 stating that the applicant has earned an extra income of Rs.134.38 crores for the period from 2015­2016 to 2017­2018 (3 financial years). 16. Learned counsel would further contend that it is pertinent to note that the cost incurred by the applicant – accused could not and did not reveal forged and bogus bills and therefore the complainant had no reason to suspect any foul play. Since the Concession Agreement was between GMB and ANL and Government of Gujarat, the complainant could not and did not have any documents pertaining to the entities viz. ADCPL which was sister concern of the ANL and both these companies were under the control of the applicant. 17. The bills submitted by ANL shows that an amount of approximately Rs. 16 crores was given to ADCPL. The complainant came to know later on in the year 2019 that ADCPL had in turn sub­ contracted this work to Aakash Palace Developers Ltd. and Chardham Developers Pvt. Ltd. which were shell companies out of large number of shell companies run and operated by co­accused Sudarshan Sharma and Rekha Sharma whose business was to run shell companies and to raise false and fictitious bills and this money received by these two companies of Sudarshan Sharma and Rekha Sharma were transferred to Mewad Tradelink Pvt. Ltd. and thereafter the monies came back to ADCPL. This was done on the same day vide various accounts. This was done on the same day vide various accounts. Thus, the said amount was never used for building any infrastructure but was used only to falsely inflate the cost of more than 100 crores. 18. Learned counsel would further submit that both the co­accused viz. Sudarshan Sharma and Rekha Sharma, in their bail applications filed before the Sessions Court, have in clear terms stated that the signatures in the bills of Rs.16 crores are not their signatures. Thus, it is apparent that the bills of Akash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd. given to ADCPL are not only bogus but forged as the signatories have denied their signatures. Moreover, to inflate the cost of the project, bogus bills of construction having been done at Dumas amounting to Rs.5.83 crores has also been submitted. During the investigation it is revealed that no construction has taken place and that no reclamation work has taken place at Dumas. Therefore, it is evident that this bill was raised only for the purpose of inflating the cost above 100 crores so that the applicant – accused gets the benefit of 15% return on equity. Moreover, investigation has revealed that no work was done on any of the other VTS sites. 19. Learned counsel further submits that the case of the applicant – accused is that Dumas site was infeasible and therefore, Sultanabad site was given. But even in that case, no such construction has been done at Sultanabad also which is evident from inspection of that site. To save his skin of having given false bills regarding Dumas, the applicant – accused has now changed his version and said that he has done reclamation work. However, the investigation has disclosed that no such reclamation work was done at the site. This is nothing but an afterthought. 20. It also reveals that though applicant – accused was not entitled to retain the amount over the proportionate cost, the applicant – accused has misappropriated huge amount not only about 11.4% but also above 15% and therefore the CAG report also indicts the applicant – accused for misappropriating about 135 crores. Learned counsel has submitted that the ANL earned much more than what it was entitled to. 21. Learned counsel Mr. Learned counsel has submitted that the ANL earned much more than what it was entitled to. 21. Learned counsel Mr. Raju would thereafter submit that the applicant, who is the Chairman and Managing Director of ANL, ADCPL, Aatash Computer and Communications Private Limited, Aatash Management Services Private Limited and other Aatash Group Companies has committee white­collar crime. The applicant has been charged under various provisions of the Indian Penal Code along with relevant provisions of the Prevention of Corruption Act and therefore this Court may not exercise discretion in favour of the applicant. At this stage, learned counsel has placed reliance upon the following decision rendered by the Hon’ble Supreme Court: (1) State of Gujarat v. Mohanlal Jitamalji Porwal & Anr., reported in (1987) 2 SCC 364 . (2) State of Bihar & Anr. v. Amit Kumar alias Bachcha Rai, reported in (2017) 13 SCC 751 . 22. Learned counsel further submits that prima facie, Arbitral Tribunal cannot decide the issue of criminality, fraud, bribery, corruption, etc. and therefore though the dispute between the parties is pending before the Arbitral Tribunal, prima facie, Arbitral Tribunal cannot give any finding with regard to the culpability of the applicant and other co­accused. In support of the said submission, learned counsel has placed reliance upon the decisions rendered by the Hon’ble Supreme Court in the case of (1) Trisuns Chemical Industries v. Rajesh Agarwal & Ors., reported in (1999) 8 SCC 686 , (2) A. Ayyasamy v. A. Paramasivam & Ors., reported in (2016) 10 SCC 386 and (3) Booz Allen Hamilton v. SBI Home Finance, reported in (2011) 5 SCC 532 . It is submitted that in all the aforesaid three cases the Hon’ble Supreme Court has held that referring disputes to arbitration is not a substitute to criminal prosecution and disputes like bribery, corruption, fraud, criminal matters cannot be referred to arbitration. It is further held that criminal disputes being rights in rem, are not arbitrable. Thus, it is contended that reliance placed by learned counsel appearing for the applicant on the interim order passed by the Arbitral Tribunal is misconceived. 23. Learned counsel Mr. Raju thereafter contended that the decisions upon which the reliance is placed by learned counsel for the applicant would not render any assistance to him in the facts of the present case. 23. Learned counsel Mr. Raju thereafter contended that the decisions upon which the reliance is placed by learned counsel for the applicant would not render any assistance to him in the facts of the present case. It is submitted that the said decisions deal with a report of commission constituted under the Commissions of Inquiry Act, 1952 and pertain to a case after trial was over. In both the cases, the reports of the commission were unsubstantiated by factual corroboration, which is not the case in the present matter, where everything stated in the report of the PAG is substantiated. 24. Learned counsel appearing for the complainant further submits that prima facie case is made out against the applicant in the papers of the charge­sheet and looking to the past conduct of the applicant there are all chances that the applicant will tamper with the evidence and therefore this Court may not exercise discretion in favour of the applicant. It is, therefore, urged that application be dismissed. 25. Learned Public Prosecutor Mr. Mitesh Amin appearing for the respondent – State has also supported the submissions canvassed by learned Senior Advocate Mr. Raju appearing for the original complainant. It is further submitted that though Master Control Room at Dumas was not constructed, bills worth Rs.5.83 crore were mentioned in the account books. ANL had enhanced the project cost by making paper transactions with shell companies. ANL had made agreement with its own subsidiary company viz. ADCPL for the work of dredging. ADCPL had further entered into contract with Aakash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd. It is further submitted that none of these companies have ever carried out dredging work even though paper transactions of Rs.16 crore were recorded in the books of account. Learned Public Prosecutor has referred the statement of witness Sangita Goyal and thereafter submitted that the applicant was looking after the shell companies, which only deals in the business of bogus billing. From the papers of the charge­sheet, it is pointed out that the applicant had made transactions with Aakash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd. and the amount paid to the said companies was returned in the account of ADCPL on the very same day. From the papers of the charge­sheet, it is pointed out that the applicant had made transactions with Aakash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd. and the amount paid to the said companies was returned in the account of ADCPL on the very same day. It is also pointed out that during the course of investigation it is revealed that both the aforesaid companies have registered office address at Pratibha 1, Sakar 1 but the bills issued by the said companies mentioned the office address of Ghantakarna Market. Learned Public Prosecutor referred the statement given by Mr. Kinnar Arvind Shah, wherein it is stated that he is running the garment business from the address shown in the bills since 2009. At this stage, it is also pointed out by learned Public Prosecutor that total turnover of Aakash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd. for the year 2008­2009 were Rs.52,505/­ and 80,455/­ respectively. However, for the same period, Aakash Palace Developers Pvt. Ltd. had issued the invoices of Rs.8.25 crore and Chardham Developers Pvt. Ltd. had issued the invoices of Rs.6.29 crore. Thus, it is contended that prosecution has prima facie made out the case against the applicant that on the basis of the forged bills project cost was enhanced with a view to get monetary benefit from the complainant. It is, therefore, urged that this Court may not exercise discretion in favour of the present applicant. 26. Having heard the learned advocates appearing for the parties and having gone through the material placed on record, it transpires that FIR in question is filed against the applicant and other co­accused for the alleged offences punishable under Sections 406, 409, 420, 465, 468, 471 and 120B of the Indian Penal Code (IPC for short) and under Section 13(1)(d) of the Prevention of Corruption Act, 1988. The applicant is in jail since 02.07.2019. It further transpires that it is the specific case of the prosecution against the applicant that applicant with a view to get monetary benefit on the basis of the forged bills enhanced the project cost. As per the concession agreement entered into between the parties, with an expenditure of Rs.100 crore for the VTPMS, ANL would have become entitled to 15% return on equity on actual expenditure incurred. As per the concession agreement entered into between the parties, with an expenditure of Rs.100 crore for the VTPMS, ANL would have become entitled to 15% return on equity on actual expenditure incurred. A reduction in the expenditure (below Rs.100 crore) would proportionately reduce the return on equity for ANL and effectively the amount which would have to be charged from vessels/ships plying into the gulf of Khambhat would be brought down. From the investigation papers, prima facie, it is revealed that ANL hiked the project expenditure artificially by bogus transactions and utilizing a maze of shell and subsidiary companies to recycle huge amount of money and created an impression that it had expended the said amount of money to create the VTPMS contracted assets. It is revealed during the course of investigation that ANL through its subsidiary company i.e. ADCPL gave sub­contract to Aakash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd. These two companies have also not carried out any work. However, the money was rerouted on the same day through another company viz. Mewad Tradelink Private Limited. At this stage, the chart prepared by the original complainant on the basis of the papers of charge­sheet is required to be referred to, which is as under: AATASH NORCONTROL LIMITED (ANL) (Directors : Jinofer Bhujwala, Zubin Bhujwala, Nazneen Bhujwala) Dena Bank Account A/c.No.068613001101 Aatash Dredging and Construction Private Limited (ADCPL) SBI Bank Account A/c.No.62132435795 Akash Palace Developers Pvt. Ltd. And Chardham Developers Pvt. Ltd. SBI Bank Account A/c.No.62101780879 Mewad Trade Links Pvt. Ltd. Dena Bank Account A/c.No.068613001101 Aatash Dredging and Construction Private Limited (ADCPL) DIRECTORS Jinofer Bhujwala, Zubin Bhujwala, Nazneen Bhujwala DIRECTORS Sudarshan R. Sharma Rekha S. Sharma DIRECTORS Sudarshan R. Sharma Rekha S. Sharma DIRECTORS Jinofer Bhujwala, Zubin Bhujwala, 27. Thus, from the aforesaid chart, it is clear that Aakash Palace Developers Pvt. Ltd., Chardham Developers Pvt. Ltd. and Mewad Tradelink Private Limited were run by the same set of individuals – Sudarshan Sharma and Rekha Sharma, whereas the applicant is the Director in ANL as well as ADCPL. Thus, from the aforesaid chart, it is clear that Aakash Palace Developers Pvt. Ltd., Chardham Developers Pvt. Ltd. and Mewad Tradelink Private Limited were run by the same set of individuals – Sudarshan Sharma and Rekha Sharma, whereas the applicant is the Director in ANL as well as ADCPL. At this stage, it is also pertinent to note that from the papers of the charge­sheet it is further revealed that in the Balance Sheet and Profit and Loss Account of Aakash Palace Developers Pvt. Ltd. and Chardham Developers Pvt. Ltd., a turnover of few thousand rupees was found during the relevant period and even the address shown in the bills is also incorrect. The said aspect is prima facie clear from the statement of witness Mr. Kinnar Arvind Shah. Thus, prima facie, it is clear that though the work was not carried out, bills of more than Rs.16 crore are produced with a view to enhanced the total project cost. 28. From the papers of the charge­sheet, it would further emerge that ANL has claimed Rs.5.83 crore which is alleged to have expended for construction of Master Control Station at Dumas. However, from the Panchnama of the said place, it is revealed that no construction work was made at Dumas. In spite of that, bogus bills of construction having been done at Dumas amounting to Rs.5.8 crore have also been submitted to inflate the cost so that the applicant can get the benefit of 15% return on equity. Thus, prima facie, a case is made out by the prosecution against the applicant that applicant has misappropriated an amount of approximately 135 crore during the period of three years as per the report of the PAG. 29. The committee of two Chartered Accountants submitted its report that project cost was approximately Rs.98 crore. However, subsequently both the Chartered Accountants including the Chartered Accountant appointed by the applicant have stated that they have submitted the report only on the basis of the documents supplied by ANL and both the CAs have rescinded from and withdrawn their joint report. 30. The contention taken by learned counsel appearing for the applicant that dispute is pending before the Arbitral Tribunal wherein the Arbitral Tribunal has passed an interim order and reliance is placed on the said interim order. 30. The contention taken by learned counsel appearing for the applicant that dispute is pending before the Arbitral Tribunal wherein the Arbitral Tribunal has passed an interim order and reliance is placed on the said interim order. However, the said submission would not be helpful to the applicant at this stage while deciding the application filed under Section 439 of the Code of Criminal Procedure. Prima facie, as per the decisions rendered by the Hon’ble Supreme Court on which the reliance is placed by learned Senior Advocate Mr. Raju for the original complainant, it can be said that the allegation with regard to the fraud, corruption and criminality cannot be decided by the Arbitral Tribunal. 31. The decisions upon which the reliance is placed by learned Senior Advocate Mr. Syed appearing for the applicant would not render any assistance to him in the facts and circumstances of the present case. 32. In the case of R. Venkatkrishnan (supra), the Hon’ble Supreme Court has observed in para 65 to 68 as under: “65. Before we move on to deal with the substantive criminal charges under the Indian Penal Code and the Prevention of Corruption Act invoked against the appellants herein, we must first deal with a grievance which has been raised by the learned counsel for the appellants and, in our opinion, rightly that in the impugned judgment the Special Court had acted illegally and without jurisdiction in relying upon the report of the "Janakiraman Committee" while imposing the sentence on respondent No.6; the relevant portion whereof is as under:­ "So far as accused No.6 is concerned, it is clear from what has been observed [by the] Jankiraman Committee that there was virtually no supervision on accused No.6 and he was managing the affairs or mismanaging the affairs of the N.H.B. according to his own acts, wish and ultimately at the wish and fancy of the brokers. He was giving loans to the brokers which the law prohibited him from doing." 66. We have noticed hereinbefore the premise on which the said Committee was constituted. We have also noted its objects and reasons. There is no dispute that the Committee was appointed and it submitted its report. It is one thing to say that the court records to the constitution of the Committee for the purpose of tracing the history for enactment of the Act. We have also noted its objects and reasons. There is no dispute that the Committee was appointed and it submitted its report. It is one thing to say that the court records to the constitution of the Committee for the purpose of tracing the history for enactment of the Act. But it is another thing to say that the contents of the said report would be admitted in evidence in a criminal case without proof thereof. 67. The Committee was not a court. It did not render any decision. It was merely a fact finding body. It was constituted for a limited purpose. Contents of the report, therefore, without formal proof, could not have been taken in evidence. A Division Bench of the Nagpur High Court in M.V. Rajwade v. Dr. S.M. Hassan, [AIR 1954 Nag 71] following the judgment of the Privy Council In Re. Maharaja Madhava Singh LR , [(1905) 31 IA 239], held that a Commission is a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature and that findings of a Commission of Inquiry were not as definitive as a judgment. Similarly in Branjnandan Sinha v. Jyoti Narain [1955] S.C.R. 955, this Court held that the Commission appointed under the Public Servants (Inquiries) Act, 1850, was not a court within the meaning of the Contempt of Courts Act, 1952.[See also Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279 , Puhupram v. State of Madhya Pradesh, (1968) MPLJ 629. Sham Kant v. State of Maharashtra [1992 Suppl. (2) SCC 521] 68. Accordingly, the Janakiraman committee report was not admissible in evidence. The report in terms of the provisions of the Evidence Act, 1872 is not a judgment. The report may facilitate investigation but cannot form basis of conviction and sentencing of the accused. For the said purpose the report was wholly inadmissible in evidence.” 33. From the aforesaid decision, it is revealed that in the facts of the said case, after the conclusion of the trial, matter went to Hon’ble Supreme Court and it was observed by the Hon’ble Supreme Court that the report of the concerned committee was not admissible in evidence and the report in terms of provisions of Evidence Act, 1872 is not a judgment. Such report may facilitate investigation but cannot form basis of conviction and sentencing of the accused. Such report may facilitate investigation but cannot form basis of conviction and sentencing of the accused. This Court cannot dispute the proposition of law laid down by the Hon’ble Supreme Court in the aforesaid case. However, this Court is considering the application of the applicant under Section 439 of the Code and therefore, at this stage, such decision would not render any assistance to the applicant. 34. In the case of P.Chidambaram (supra), the Hon’ble Supreme Court has recently exercised the discretion in favour of the concerned appellant. However, if the said decision is carefully seen, it is revealed that the Hon’ble Supreme Court has considered various factors while exercising discretion in favour of such appellant. However, in the facts and circumstances of the present case, the said decision would also not render any assistance to the applicant. 35. In the case of Amit Kumar (supra), the Hon'ble Supreme Court has observed in para 11 and 12 as under: “11. Although there is no quarrel with respect to the legal propositions canvassed by the learned counsels, it should be noted that there is no straight jacket formula for consideration of grant of bail to an accused. It all depends upon the facts and circumstances of each case. The Government's interest in preventing crime by arrestees is both legitimate and compelling. So also is the cherished right of personal liberty envisaged under Article 21 of the Constitution. Section 439 of The Code of Criminal Procedure, 1973, which is the bail provision, places responsibility upon the courts to uphold procedural fairness before a person’s liberty is abridged. Although ‘bail is the rule and jail is an exception’ is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail. 12. We are of the considered opinion that the case of Sanjay Chandra (supra), as relied upon by learned counsel for respondent, is distinguishable from the case at hand as the charges in that case carried a maximum punishment for a term which may extend to seven years. In the present case, charge sheet has been submitted, inter alia, for the offences under section 409[4], 465, 467[5], 468, 471, 188, 201, 212 and 120B of Indian Penal Code, 1860 and Section 8[6], 9[7], 13 (1)(c)/(d) read with 13(2)[8] of Prevention of Corruption Act, 1988[9]. In the present case, charge sheet has been submitted, inter alia, for the offences under section 409[4], 465, 467[5], 468, 471, 188, 201, 212 and 120B of Indian Penal Code, 1860 and Section 8[6], 9[7], 13 (1)(c)/(d) read with 13(2)[8] of Prevention of Corruption Act, 1988[9]. Therefore the case of Sanjay Chandra (supra) provides no assistance for the respondent herein.” 36. From the aforesaid decision rendered by the Hon'ble Supreme Court, it is revealed that the Hon'ble Supreme Court has considered the decision rendered in the case of Sanjay Chandra v. CBI, reported in (2012) 1 SCC 40 and distinguish the said case and thereafter observed that in the case of Sanjay Chandra, maximum punishment prescribed for the alleged offence was up to 7 years. 37. In the present case, allegation of offence punishable under Section 409 of the Indian Penal Code is also levelled against the applicant. The maximum punishment prescribed for the said offence is more than 7 years. Similarly, charge­ sheet is also filed for the offence under Section 13(1)(d) of the Prevention of Corruption Act and therefore, prima facie, as observed by the Hon'ble Supreme Court in the case of Amit Kumar (supra), decision rendered in the case of Sanjay Chandra (supra) would not be helpful to the present applicant. 38. This Court has also gone through the relevant material and the papers of the charge­sheet provided during the course of hearing and this Court is of the view that prosecution has prima facie made out a case against the applicant for commission of the alleged offences. This Court has also considered the nature of offence alleged against the applicant and the severity of the punishment prescribed for the alleged offence and the role attributed to the applicant. It is clarified that the observations made by this court in this order are tentative in nature while deciding the bail application and the same shall not come in the way of the applicant at the time of trial. 39. In view of the aforesaid discussion, I am not inclined to exercise the discretion in favour of the present applicant. Application is, therefore, dismissed. However, liberty is reserved to the applicant to file fresh application before the concerned trial Court if the trial is not commenced within a period of six months.