Rajesh Jain v. CBI

1. The petitioners have preferred the aforesaid applications under Section 438 Cr PC to seek a direction that in case of their arrest, they be released on bail in FIR being RC No.BD/l/2011/E/0002/BS&FC/CBI/New Delhi registered on 21.01.2011 by CBl, Bank Security and Fraud Cell.

2. It appears that the aforesaid case was registered against Texcomash International Limited (TIL) and seven other persons and other unknown persons under Section 120B read with Sections 420, 467, 468 and 471 IPC and Section 13(2) read with Section 13(l)(d) of the Prevention of Corruption Act, 1988. Initially, the petitioners were not named as accused in the FIR.

3. The charge sheet was initially filed under Section 173 Cr PC on 13.07.2012 wherein, once again, the petitioners were not named as accused. However, upon further investigation under Section 173(8) Cr PC, a supplementary charge sheet was filed on 14.08.2014, wherein the petitioners were named as accused. The case related to obtainment ofloan facilities by TIL by defrauding the bank and the transfer of the said monies into several companies and eventual import ofdiamonds by utilising the said funds. The petitioners are Directors of several companies to which funds were transferred by TIL, who, in turn, transferred the monies to the accounts of juristic entities overseas for purported import ofdiamonds.

4. So far as the petitioner Rajesh Jain is concerned, the role attributed to him is as follows: "(70 Shri Rajesh Jain: Investigation hasfurther revealed that

5. Shri Rajesh Jain (A-0), the Director ofM/s Fairever Gems & Jewellery Pvt. Ltd., Current a/c No.910020007045714, M/s Surat Gems & Jewellery Pvt. Ltd. 910020010216871 and M/s Jetking Export Pvt. Ltd. all maintained with Axis Bank, Rohini. On 18.8.2009 has applied for Importer-Exporter Code (lEC) from DGFT, New Delhifor M/s. Fairever Gems & Jewellery Pvt. Ltd. Thefunds were receivedfrom M/s TIL in the account of aforesaid 3 companies and were thereafter transferred to otherentities inLayers-II &III without any underlying business transaction. An amount of Rs.1,98,50,000/- + 2,10,05,190/and Rs.1,54,95,750/- (Total Rs.5,62,50,940/-) was credited in the a/c of M/s. Fairever Gems and Jewellery Pvt. Ltd. on 10.4.2010, 15.04.2010 & 22.04.2010from M/s TIL. An amount of Rs.1,56,10,300/- was also credited in the a/c of M/s Surat Gems & Bullions Pvt. Ltd. from TIL and the same was transferred in the a/c ofM/s. Fairever Gems &Jewellery Pvt. Ltd. vide cheque no.16727 dt. 22.4.10. Some amount as mentioned in Layers II, was also credited in the a/co of M/s Fairever Gems & Jewellery Pvt. Ltd. from M/s Leo Diamonds &M/s Sri SalasarBullions Pvt. Ltd. part ofthe proceeds were remitted to overseas entities M/s Jamlu General Trading, Dubai, M/s Kingtech Ltd., Hong Kong and M/s Ford Asia International Ltd., Hong Kong for import of diamonds that were received by Shri Chirag Patel and Chirag Patel's employee Shri Pravin on the authorisation ofShri Rajesh Jain (A-9). There is also the circumstantial evidence ofhis geneal conduct that he was the Director of17paper companies. He did not sign cheques or RTGS requests but has signed documents forforeign remittance offunds towards diamonds imports". Similarly, the role attributed to the petitioner Satish Kumar in the supplementary charge sheetreads as follows: (Hi) Shri Satish Kumar: Investigation has further revealed that Shri Satish Kumar (A-10) is the Director ofM/s. Fairever Gems &Jewellery Pvt. Ltd., Current a/c No.9I0020007045714, M/s Surat Gems &Jewellery Pvt. Ltd. 910020010216871 and M/s Monster Trading Company current a/c No.4496002100006608 all maintained with Axis Bank Rohini. The funds were receivedfrom M/s TIL in the accounts of aforesaid 3 companies and were thereafter transferred to other entities in Layers-II & III without any underlying business transaction. An amount ofRs.1,98,50,000/- + Rs.2,10,05,190/and Rs.1,54,95,750 (Total Rs.5,63,50,940) was credited in the a/c ofM/sFairever Gems and JewelleryPvt. Ltd. on 10.4.2010, 15.04.2010 & 22.04.2010 from M/s TIL. An amount of Rs.1,56,10,300/- wasalso creditedin the a/c ofM/sSurat Gems & Bullinns Pvt. Ltd. from TIL and the same was transferredin the a/c ofM/s Fairever Gems &Jewellery Pvt. Ltd. vide cheque no.16727 dated22.4.10. Some amount as mentioned inLayers CJ II, was also credited in the a/c of M/s Fairever Gems & Jewellery Pvt. Ltd. from M/s Leo Diamonds & M/s Sri Salasar Bullions Pvt. Ltd. Investigation has further revealed that on 27.04.2010, an amount ofRs.2,22,06,400/- was credited in the a/c ofM/sMonster TradingCo. from M/s TIL and thesame was transferred in the a/c of M/s Sahara Fincon Pvt. Ltd. in the company ofShri ManojKumar Garg. Shri Satish Kumar (A-10) signed cheques and RTGS requestsfor transferoffundsfrom the account ofthese entities and his signatures have been got identified by Bank officials. CFSL has given a positive opinion on the comparison of his specimens with his signatures on the AOFs ofthe account ofthe 3 companies. Shri Satish Kumar (A-10) was the Director of18 paper companies. Investigation has further revealed that Shri Satish Kumar (A-10) is directly connectedwith the diversion of ^ funds and participated in the conspiracy with the different, participants Shri Satish Kumar (A-10) and Manoj Kumar Garg were the Directors ofM/s Deepawati Real Estate Developers Pvt. Ltd. andM/s Erawati Builders &Developers Pvt. Ltd.from 22.8.09 to 05.03.10 and Shri Vijay Julka and Shri Abhishek Tiwari from 05.03.10 onwards. M/s Deepawati and M/s Erawati purchased the properties A-26 and A-27A in Mittal Mega Malls, Panipatfrom M/s Cosmos Infra Engineering Pvt. Ltd. on 5.11.09 andthe same werepledgedas collateral by M/s TIL after Shri Vijay Julka (A-2) andShriAbhishek Tiwari (A-6) became the Directors ofM/sDeepawatiand M/s Erawati. The chequesfor the payment ofthese two properties were signed by ShriManoj Gargand the sale deeds were signed by ShriPuran Chand Rathi on behalf of M/s Deepawati and M/s Erawati. Thus, it is evident thatShri Manoj Garg, Shri Satish Kumar (A-

10) andShri Puran ChandRathi are connected to the affairs of M/s TILfrom the very beginning".

6. The learned Special Judge (PC Act), CBI-02 issued Non Bailable Warrants (NBWs) against the petitioners and nine others including one Sh. Vipin Kumar Gupta, who was also an accused named apart from the petitioners in the second charge sheet. Eight others against whom NBWs were issued were those who were not named as accused in the second charge sheet.

7. One of the persons, namely, Sh. Ram Swamp was arrested in the execution ofthe non-bailable warrants. He was not granted bail immediately by the trial Court, and bail was granted only after 45 days ofcustody by the trial Court. Similarly, the other person Sh. Raju Chauhan was arrested in execution ofthe NBWs against him and was granted bail only after 22 days ofcustody.

8. In this background, the petitioners have approached this Court to seek the grant of anticipatory bail. The submission of Mr. Sharma, leamed counsel for the petitioner is that several other persons including the prime suspect have been released on bail. The petitioners have placed on record the orders whereby this Court has granted bail to the other accused as well as to the eight persons who were not even named as accused in the supplementary charge sheet. \J

9. Learned counsel for the petitioner submits that the petitioners have joined the investigation as and when called upon to do so, and the CBI never considered it necessary to arrest the petitioners. In fact, the occasion for the petitioners to move this Court has arisen only on account of issue of the NBWs by the trial court. Even before the filing ofthe supplementary charge sheet, the petitioners were not arrested while the investigation was on. It is further submitted that so far as the petitioners are concerned, the investigations are complete and in the supplementary charge sheet, while it is claimed that further investigations are being undertaken, they do not relate to the petitioners. Learned counsel, therefore, submits that no purpose would be served by taking the petitioners into custody. Learned counsel submits that the petitioners are entitled to parity in the matter of grant of anticipatory bail.

10. Learned counsel further submits that Sh. Rajesh Jain had resigned from the companies in question, namely, Fairever Gems & Jewellery Pvt. Ltd., Surat Gems & Bullions Pvt. Ltd, and Jetking Exporters Pvt. Ltd. on 15.02.2010, whereas all the transactions pertained to the period thereafter, i.e. April 2010. Learned counsel submits that neitherRajesh Jain nor Satish Kumar are the beneficiaries of the allegedly defrauded amounts. At the highest, it could be said that their companies received monies from TIL whichwereutilised for import of diamonds.

11. The applications are opposed by the CBI. It is submitted that further investigation is in progress for which custodial interrogation of the petitioners may be necessary in future. It is submitted that investigation has revealed that Rajesh Jain along with his associated submitted forged yC invoices inthe bank showing import of cut and polished diamond from M/s Ford Asia International, Honk Kong and M/s Silver Jubilee Trading Ltd., Hong Kong. It is submitted that the investigation had further revealed that as per the original invoices submitted in the customs office at the time of import, the name of the importer is mentioned as Glints Global General Trading LLC, Dubai and the funds should have been transferred to the account of the said company. Instead, the monies were transferred to the said company at Dubai andnot at HongKong. Learned counsel submits that theamounts were transferred into theaccounts ofthe companies held by the main accused Manoj Garg through the banking channels by defrauding the bank.

12. It is argued that Rs.36,59,68,1407- were transferred into the account of Ford Asia International Ltd., Hong Kong; Rs.24,69,39,817/- were transferred into the account of Silver Jubilee Trading Ltd., Hong Kong and Rs. 1,60,88,383/- was transferred into the account of Glints Global General Trading LLC, Dubai from M/s Surat Gems and Bullions Pvt. Ltd., Fairever Gems and Jewllery Pvt. Ltd., SaharaExim Pvt. Ltd. and MangalamCreation Pvt. Ltd., by making remittances through Axis Bank, Rohini Branch, New Delhi.

13. Learned counsel submits that even after the alleged resignation of Rajesh Jain from the aforesaid company on 15.02.2010, he had been representing himself and holding out himself as a Director of the said companies, and he had even signed several board minutes meeting and other documents in his capacity as director after 15.02.2010. It is, therefore, submitted that the so-called resignation is of no avail. Learned counsel further submits that in fact the main beneficiary of the defrauded account as per the supplementary charge sheet includes both Rajesh Jain and Satish Kumar and their companies, who diverted the bank funds for import of cut and polished diamonds. Similarly, Satish Kumar is claimed to be involved in making import of diamonds to the tune of Rs.40 crores by utilisation of the ill-gotten funds. Learned counsel lastly submits that the cases of the eight others to whom NBWs were issued and anticipatory bail had been granted by this Court were on account of the fact that they had not been named as accused in the subsequent charge sheet, whereas the petitioners have been so named.

14. Having learned counsels for the parties, it appears that the petitioners may be involved in a rather large scale fraud and siphoning of funds. However, at the same time, one cannot lose sight of the fact that the other accused including the main accused have since been released on bail or have been granted anticipatory bail. The orders in the case of, inter aila, Ajay Kumar Sharma, Vivek Goel, Om Prakash Sharma, Puran Chand Rathi etc. have been placed on record. The petitioners were not arrested during the course of investigation. They had been participating in the process of investigation. The FIR in question was filed in the year 2010; the first charge sheet was filed on 13.07.2012 and the supplementary charge sheet was filed on 14.08.2014. All these while, the CBI has not considered it necessary to arrest the petitioners for their custodial interrogation.