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NAVENDU BABBAR .....Petitioner/Applicant.
Through : Ms. Rebecca M. John, Senior Advocate with Ms. Manisha Parmar and Mr. Swapnil Aeron, Advocates.
Through : Mr. G.M. Farooqui, APP for State.
JUDGMENT
2. To give a brief overview of the matter, the subject FIR came to be registered at the instance of complainant Arjun Singh who complained that in May, 2014 that one Kailash Bhatt approached the complainant BAIL APPL. No. 913/2020 Page of 1 30 2020:DHC:2125 and represented that his employer Navendu Babbar (the applicant) wishes to purchase an apartment, which however he cannot purchase in his own name. According to the complainant, Kailash Bhatt persuaded the complainant to purchase the apartment in the complainant’s name and thereafter transfer it to the applicant within 6 months. The complainant alleges that on this pretext Kailash Bhatt took certain identity documents from the complainant; and on 09.05.2014, Kailash Bhatt and the complainant approached Punjab National Bank, Mayur Vihar Branch, Delhi for a loan along with the applicant and one Ravi Kumar. At the bank, on the directions of Kailash Bhatt and the applicant, the bank officials got the complainant to put his signatures on several documents, which documents the complainant did not understand.
3. Other details apart, the complainant alleges that later he received a letter dated 09.01.2015 from the bank to the effect that he owed Rs.49,04,960/to the bank against an equitable loan facility availed by him against property bearing No. L-2/19 Mohan Garden, Uttam Nagar, Delhi; and if the complainant did not repay the loan amount, the bank would take possession of the property. According to the complainant, he had never taken any loan from the bank and had nothing to do with the property. The complainant accordingly filed a complaint with PS: Economic Offences Wing, New Delhi, on the basis of which the subject FIR has come to be registered.
4. There are 05 accused persons in the matter: Kailash Bhatt (complainant’s neighbour), Ganesh Singh (Bank Manager), Ravi Kumar 2 30 (sole proprietor of one M/s Heico Electronics), Sheetal Garg (Chief Manager of the bank) and Navendu Babbar/applicant (sole proprietor of M/s Harshit Enterprises).
5. The essential allegations in the FIR are that on 05.04.2014 a savings bank account was opened; and on 06.05.2014 a housing loan account was opened at the bank in the complainant’s name; that a loan of Rs.46,50,000/- was sanctioned against equitable mortgage of House No. L-2/19 Mohan Garden, Uttam Nagar, Delhi; that a sale deed in respect of that property was executed by Ravi Kumar in favour of the complainant and registered at the concerned Sub-Registrar of Assurances, Delhi. The sale deed is alleged to be ‘fake’ in that it pertains to a non-existent property; and it is also alleged to be forged, inasmuch the complainant denies his signature/thumb impression on the document. The concerned Sub-Registrar of Assurances has also said that the sale deed is not on the official records of that office.
6. It is nobody’s case however that the applicant has signed the sale deed. The allegation is that the loan amount of Rs.46,50,000/- was credited by the bank to the complainant’s account; and was then disbursed to an account in the name of Ravi Kumar; who then further credited an amount of Rs.46,40,000/- (i.e. Rs. 10,000/- less than the loan amount) to the account of M/s Heico Electronic, which is the sole proprietorship firm of Ravi Kumar, which is engaged in the trade of electronic goods. Furthermore, it is alleged that on 07.05.2014, the sum of Rs.46,40,000/was transferred from the account of M/s Heico Electronics to the account 3 30 of M/s Harshit Enterprises, which is the applicant’s sole proprietorship firm at the Development Credit Bank, Preet Vihar, Delhi.
7. Accordingly, the main allegation against the applicant is that he is the ultimate recipient of Rs.46,40,000/- taken by way of a loan from the bank, against an equitable mortgage, on the basis of a sale deed which is alleged to be fake and forged.
8. In this backdrop, the applicant moved an anticipatory bail application under section 438 Cr.P.C., in which vidé order dated 31.07.2017, the learned Additional Sessions Judge made the following order: “Accordingly, it is hereby directed that in the event of arrest, applicant be released on bail till 31.8.17 subject to his furnishing personal bond in sum of Rs.50,000/- with one surety of like amount to satisfaction of arresting officer/SHO, PS EOW. Applicant is further directed to join investigation as and when he is called upon to do so and in this regard he shall firstly join investigation on 1.8.2017 at
3.00 PM and shall contact the IO/SHO, PS EOW in this regard. He is further directed to join investigation as and when he may be called upon to do so in writing thereafter.” (Emphasis supplied)
9. Subsequently, the applicant moved another anticipatory bail application, in which vidé order dated 31.08.2017, the following order was made: “On basis of information furnished by SI Surjeet and as was mentioned in the report of SI Bhanwar Singh, it is informed by ld PP that although applicant had joined investigation on five occasions and had submitted some documents, still he had not yet furnished any document reflecting that a sum of Rs.46.[5] Lac was due to him from co- 4 30 accused Ravi Kumar nor any document to the effect that tax had been duly paid on the said amount. As per ld. PP these facts had been submitted on behalf of the applicant on 31.7.17 and had helped him secure anticipatory bail.” x x x x x “Keeping in view the aforesaid, applicant is directed to refurnish / furnish to the IO the requisite documents regarding dues to him from Ravi and regarding payment of tax on the said amount. Needful in this regard be done by the applicant within 14 days from today. Accordingly, it is hereby directed that in the event of arrest, applicant be released on bail till 22.9.2017 subject to his furnishing personal bond in sum of Rs.50,000/- with one surety of like amount to satisfaction of arresting officer/ SHO PS EOW. Application stands disposed of accordingly.”
10. Then again, the applicant moved yet another anticipatory bail application which was disposed of vidé order dated 27.09.2017 with the following observations: “Sh. Taneja has delivered the original signed office copies of invoices dated 28.03.2014, copies whereof are available on page 19 & 20 of the present bail application, to the IO, who proposes to provide him the requisite seizure memo. Since IO needs to investigate the matter about veracity of these invoices and other limbs connected thereto, it is deemed appropriate that in the meanwhile the applicant be released on bail till 31.10.2017 in the event of his arrest in this case, on furnishing personal bond in the sum of Rs.50,000/- and one surety of like amount to the satisfaction of arresting officer/SHO.” (Underscoring supplied, bold in original) 5 30
11. According to the State, after the ‘term’ or ‘validity’ of order dated 27.09.2017 ran-out on 31.10.2017, the applicant went missing and did not join or cooperate with the investigation. It is the State’s contention that in view of the applicant’s abscondence, appropriate application was moved to have him declared ‘proclaimed offender’ and upon his arrest on 22.02.2020 in a different case in Mumbai, he was brought to court in Delhi and vidé order dated 25.02.2020, the following was ordered: “Accused has been arrested by the IO in this case and IO has submitted that police investigation has been completed. As far as present accused is concerned, he is not required for any custodial interrogation and he be sent to J.C. It is further stated that accused has been declared P.O. in this case. Considering the submissions made and also the grounds mentioned in the application, the accused is remanded to J.C. for fourteen days. As regards, application for production of accused before Ld. Special Court, CBI, vide order dated 20.02.2020, it has been directed by Ld. Special Court to restore the custody of the accused as and when the investigation is over. Under such circumstances, IO is directed to produce the accused before Superintendent, Arthur Road Jail for further proceedings and duly intimate the said fact to Ld. Special Court, CBI.” (Underscoring supplied, bold in original) 6 30
12. It is in these circumstances that the applicant came to be remanded to judicial custody in Delhi; and was subsequently transferred to Mumbai, where he is presently lodged at the Arthur Road Jail.
13. Status report dated 20.05.2020 discloses that the applicant is involved in 06 cases in all, with the following particulars: S.No Case Reference Date of FIR Police Station Provisions of Law Status 1 FIR No. 88/2015 30.06.2015 Economic Offences Wing, Crime & Railways Under sections 420/467/468/471/ 120-B IPC (Present case) Charge-sheet and supplementary charge sheet filed. 2 CR No.
RC BA 1/2018/A0016 27.06.2018 Anti- Corruption Bureau, CBI, Mumbai 120-B read with 409/ 420/ 467/ 468/ 471 IPC and section 13(2) read with section 13(1) (c) & (d) of PC Act In custody in Mumbai; charge-sheet filed. 3 FIR NO. 492/2015 22.07.2015 Pandav Nagar, Delhi Under section 420 IPC Pending investigation 4 FIR NO. 790/2015 16.08.2015 Ghazipur, Delhi 406/420/467/468/ 471/ 120-B IPC Closure report filed; pending consideration of court. 7 30
14. Ms. Rebecca M. John, learned senior counsel for the applicant submits: a. that though the applicant was named in the FIR, his name did not appear in charge-sheet dated 24.05.2017 filed in the matter; b. that however, in supplementary charge-sheet dated 21.05.2020, the applicant’s name was added; c. that the sum of Rs.46,40,000/- received by the applicant in the account of his sole proprietorship firm from M/s Heico Electronics was towards payment of goods supplied to M/s Heico Electronics under invoice/s dated 28.03.2014 and towards other dues, which money was received on 07.05.2014; and the applicant had nothing to do with the loan transaction that is the subject matter of the complainant’s allegations; d. that the applicant did not abscond and in fact he joined investigation several times when called; but he was never summoned thereafter for investigation. As it appears from the 5 FIR NO. 405/2015 28.04.2015 Vivek Vihar, Delhi 420/468/471/120- B IPC Charge-sheet filed on 22.04.2019; declared proclaimed offender 6 FIR NO. 794/2015 17.08.2015 Ghazipur, Delhi 406/420/467/468/ 471/120-B IPC Pending investigation 8 30 record, between 2017 and 2019 the I.O. attempted to serve notice on the applicant to join investigation at the applicant’s (erstwhile) office address in Vivek Vihar, whereas the applicant had closed that office; but service was never attempted at the applicant’s residential address in Preet Vihar, which address was available with the I.O. In fact, it is contended that the record of proceedings before the Sessions Court shows, that subsequently the I.O. moved an application before the Sessions Court to get NBWs served upon the applicant at his Preet Vihar address; e. that in any case, the issue of alleged abscondence and subsequent declaration of the applicant as ‘proclaimed offender’ is now subject matter of a charge under section 174A IPC, which the applicant will defend; and that aspect cannot count towards consideration of bail; f. that evidently, upon filing of the supplementary charge-sheet, the investigation in the matter insofar as the applicant is concerned, is complete; that the case would proceed essentially on documentary evidence; and that therefore no purpose will be served in keeping the applicant in judicial custody; and g. that all co-accused in the matter, except Sheetal Garg who is absconding, have been admitted to bail in the matter. Kailash Bhatt was granted bail vidé order dated 17.07.2017 by the Sessions Court; Ganesh Singh and Ravi Kumar were granted bail by a 9 30 common order dated 31.07.2017 by the Sessions Court; and it is only the applicant whose application for bail, including on the ground of the prevailing pandemic COVID-19, has been dismissed vidé order dated 28.04.2020 by the Duty Magistrate, North West, Rohini Courts.
15. Learned senior counsel has relied upon the following judicial precedents in support of the applicant’s case: (a) Prabhakar Tiwari vs. State of U.P., to submit that the Supreme Court has observed that although the offence alleged (in that case under section 302 IPC) may be grave and serious and there may be several criminal cases pending against the accused, these facts by themselves cannot be basis for refusal of bail; (b) Ashok Sagar vs. NCT of Delhi, to argue that the gravity of the offence alleged has a limited role to play while adjudicating an application for bail;
(c) Sanjay Chandra vs. CBI, to argue that the object of bail is not punitive but to secure the presence of the accused for trial; and although the severity of the punishment is also to be considered and the offences alleged are serious, the charge-sheet
(d) P. Chidambaram vs. CBI, to point-out that where the accused is in custody, while co-accused have been granted bail and charge-sheet has been filed and the allegations of influencing witnesses are without basis, bail should be granted; (e) Aman Verma vs. State, to submit that incarceration of an accused causes deprivation of his right to legal defence; (f) Moti Ram v. State of M.P, to say that the consequences of pre-trial detention are grave; and that jailed defendants are prevented from contributing to the preparation of their defence, which burden falls on their innocent family members; (g) Babu Singh v. State of U.P., to argue that a person on bail has a better chance of preparing and presenting his case than one remanded in custody; and that unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible;
11 30 (h) Hussainara Khatoon (I) v. Home Secy., State of Bihar, to submit that the discriminatory nature of the bail system becomes all the more acute by reason of the mechanical way in which it is customarily operated;
(i) Bhulabai v. Shankar Barkaji Matre, to urge that denial of bail is a restriction on the freedom of the accused, access to lawyers and preparation of defence; and that presumption of proof of guilt requires clear justification for depriving a person of their liberty before conviction.
16. Opposing the grant of bail, Mr. G.M. Farooqui, learned APP for the State contends as follows: a. that the applicant absconded after obtaining anticipatory bail orders from the Sessions Court; and as recited in status report dated 27.05.2020, the applicant is the main beneficiary of the money involved in the crime, since he ultimately received Rs.46,40,000/-, from the money that was illegally taken as loan from the bank; b. that, as is evident from status report dated 27.05.2020, the applicant did not join investigation after 15.09.2017 and notices issued to him remained undelivered since he was not found available at any of his addresses. Furthermore, efforts were
1999 SCC OnLine Bom 315; para 9 12 30 made to apprehend him; and it is alleged that in an effort to apprehend the applicant, raids were conducted on 16.10.2017, 23.10.2017, 08.03.2018, 09.05.2018, 19.09.2018, 13.12.2018 and 22.04.2019 at his given addresses which were all found locked. Enquiries made from neighbours also did not reveal his whereabouts; that in this background NBWs were obtained against the applicant; that subsequently process under section
82 Cr.P.C. was issued; and on 30.11.2019, the applicant was declared ‘proclaimed offender’; c. that the applicant has still not furnished to the I.O. the ‘original invoices’ and other documents, on the basis of which the applicant claims that money was received against alleged sale of goods to M/s Heico Electronics; d. that the applicant diverted funds released by way of a loan against equitable mortgage, since all procedures for grant of such loan were ignored; and for which reason bank officials are also arrayed as accused in this case; e. that the applicant is a habitual offender; that there are several cases registered against him; and considering the magnitude of the offence, regular bail should not be granted.
17. Some extracts from the relevant judicial precedents may now be cited: Prabhakar Tiwari v. State of U.P. & Anr. (supra): “6. We have considered the respective submissions. The facts highlighted by the appellant are that the case involves offence under 13 30 Section 302 read with Sections 120-B/34, 147, 148 and 149 of the Penal Code, 1860. The accused has several criminal cases pending against him and has been named in the statement forming the basis of the FIR on the date of occurrence itself........... ” x x x x x x “8. On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused........ The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper...........” Ashok Sagar v. State (supra):