Dharmesh Bothra vs State Of Maharashtra
2022 Latest Caselaw 4593 Bom

                                                            22&23-2-WP1262&1263-2022.DOC

                                                                                  Santosh
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 1262 OF 2022
                                                 WITH
                                     WRIT PETITION NO. 1263 OF 2022

                      Dharmesh Bothra                                      ...Petitioner
                                           Versus
                      State of Maharashtra & anr.                       ...Respondents

                      Ms. Krupali Hiren Rajani, for the Petitioner.
SANTOSH
SUBHASH               Mr. A. R. Patil, APP for the State in WP/1262/2022.
KULKARNI
Digitally signed by
                      Mr. S. R. Agarkar, APP for the State in WP/1263/2022.
SANTOSH SUBHASH
KULKARNI
Date: 2022.04.30
16:36:15 +0530
                      Mr. Hiten Venegaonkar, for Respondent no.2.

                                                 CORAM:       N. J. JAMADAR, J.

                                                 DATED :      29th APRIL, 2022
                      ORDER:-

1. Rule. Rule made returnable forthwith and in the context of

the challenge, with the consent of the learned Counsels for the

parties, the petitions are taken up for hearing and final disposal

at the stage of admission itself.

2. The petitioner, who is arraigned as accused no.14 in PMLA

Special Case No.4/2018 and as accused no.7 in PMLA Special

Case No.9/2018, has invoked the writ jurisdiction of this Court

being aggrieved by the orders passed by the learned Special

Judge (PMLA) rejecting the application preferred by the

petitioner seeking permission to travel to USA between 1 st May,

2022 to 30th May, 2022.

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3. Shorn of unnecessary details, the facts leading to these

petitions can be stated as under:

(a) The Central Bureau of Investigation (CBI) registered

FIR No.RCBSM2018E0001 dated 31st January, 2018 against Mr.

Nirav Modi, Mehul Choksi and others for the offences

punishable under Sections 120B and 420 of the Indian Penal

Code, 1860 ("the Penal Code") and Section 13(2) read with

Section 13(1)(d) of the Prevention of Corruption Act, 1988 ("the

Act, 1988"). Charge-sheet was lodged on 14th May, 2018, alleging

the complicity of 24 entities/persons for the offence of cheating

and criminal conspiracy punishable under Section 120B, 420

and 409 of the Penal Code and Section 13(2) read with Section

13(1)(c) and (d) of the Act, 1988, which are scheduled offences

under Paragraph 1 and 8 of Part-A of Schedule of Prevention of

Money Laundering Act, 2002 ("PMLA"). Eventually, the

Directorate of Enforcement (ED) entered into investigation of the

offence of money laundering as defined under Section 3 against

Mr. Nirav Modi and others.

4. The investigation allegedly revealed that Nirav Modi and

his associates had issued fraudulent LOUs. The LOUs amounts

were utilized for making payment to their overseas supplier/

companies. The funds of LOUs obtained fraudulently were

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siphoned off through their alleged overseas suppliers. The

export and import transactions were not genuine. The invoices

of export and import were overvalued to the huge extent so as to

inflate the balance sheet and procure high credit facilities from

the banks.

(b) The petitioner was implicated with the allegations

that his statement was recorded under Section 50(2) and (3) of

the PMLA Act, 2002. The petitioner stated that his companies

were used for layering and rotating export and import of

diamond jewellery of Gitanjali and Firestar Companies. In

reality, the same was sold and purchased within the group

companies. Those fraudulent transactions carried out only to

inflate the turn over. In return, the petitioner was promised

0.15% of the turn over.

(c) In the backdrop of the aforesaid allegations, the

petitioner came to be arrested and eventually released on bail.

One of the conditions on which the petitioner was released on

bail was that he shall not leave the country without permission

of the Court.

(d) The petitioner preferred application seeking

permission to travel to USA between 1st May, 2022 to 30th May,

2022 as the graduation ceremony of his son Shwetanc Bothra,

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who studies in PennState College of Arts and Architecture,

scheduled on 6th and 7th May, 2022 at Pennsylvania State

University. It was asserted that the petitioner is the sole parent

as the mother of Shwetanc passed away. The petitioner has

been regularly attending the proceedings before the Court. The

petitioner has roots in India. There is no material against the

petitioner except the confessional statement. Even the

petitioner has not been named as an accused in the FIR by CBI.

(e) The application was resisted by respondent no.2. It

was contended that there are specific and grave allegations

against the petitioner. The principal accused Nirav Modi, Mehul

Choksy and others are absconding. In the event the petitioner

is allowed to travel to USA, there is strong possibility of the

petitioner fleeing away from justice and not returning to India.

5. By the impugned order, the learned Special Judge was

persuaded to reject the application, inter alia, holding that the

magnitude of the fraud, for which the petitioner was arraigned,

was huge i.e. to the tune of Rs.6498.20 Crores. After adverting

to the role attributed to the petitioner of assisting in layering

and rotating the money and the reasonability of the

apprehension expressed on the part of the ED that the

petitioner may abscond and not return to India and also tamper

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with evidence, the learned Special Judge declined to grant

permission to travel abroad.

6. I have heard Ms. Rajani, the learned Counsel for the

petitioner and Mr. Venegaonkar, the learned Counsel for

defendant no.2 - ED.

7. Ms. Rajani submitted that the learned Special Judge

rejected prayer of the petitioner to travel abroad unmindful of

the grave consequences on the personal liberty of the petitioner.

Ms. Rajani would urge that the fact that the fraud allegedly

involves huge amount, could not have been used as a refrain to

deprive the personal liberty of the petitioner when the role

attributed to the petitioner is of minor nature. Emphasis was

laid on the fact that the petitioner was not named as accused in

CR No.RCBSM2018E0001, registered on 31st January, 2018. The

special Judge, according to Ms. Rajani, also lost sight of the fact

that the petitioner had been regularly attending the proceedings

before the PMLA Court and there was no substance in the

apprehension of the prosecuting agency that the petitioner

would abscond.

8. In order to lend support to the aforesaid submissions Ms.

Rajani placed a strong reliance on the Division Bench judgment

of the Madras High Court in the case of Karti P. Chidambaram

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vs. Bureau of Immigration, [W.M.P. No.3031 of 2018 in W.P.

No.21305 of 2017, dated16/02/2018] and the judgment of the

Supreme Court in the case of Satish Chandra Verma vs. Union

of India and others [Civil Appeal No.3802 of 2019, dated

9/4/2019].

9. Mr. Venegaonkar, the learned Counsel for respondent no.2

- ED stoutly submitted that the context of the matter cannot be

lost sight of. Four co-accused are yet at large. Investigating

agency has made as many as nine extradition requests against

Nirav Modi and three others. The progress of the trial is

prejudicially affected on account of the absence of the

absconding accused. It was further submitted that the learned

Special Judge committed no error in factoring in the magnitude

of the fraud.

10. Mr. Vegegaonkar further urged that one of the absconding

co-accused is reportedly based in USA. Certain proceedings are

underway in USA regarding the assets of the PNB. The presence

of the petitioner in USA, in the aforesaid context, may

prejudicially affect the interest of the prosecution. Even

otherwise, according to Mr. Venegaonkar, the cause of attending

the graduation ceremony cannot be said to be a reason worthy

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of consideration, especially in the backdrop of the nature of the

accusation.

11. With the development of constitutional values, the right to

liberty, including the right of free travel, is recognized as an

important facet of fundamental right. Personal liberty,

guaranteed under Article 21, is construed in widest terms. It

subsumes in its fold a variety of rights which constitute the

personal liberty. Right to travel abroad is recognized as a facet

of the right to life and liberty guaranteed under Article 21.

Deprivation of the right to travel abroad therefore must satisfy

the test of reasonable restrictions.

12. The question that wrenches to the fore, where permission

to travel abroad is sought by an accused, is whether in the facts

and circumstances of the case and the situation in life in which

the accused finds himself, the deprivation of the right to travel

abroad would constitute an unresonable restriction on the right

to life and personal liberty. The answer hinges on a number

factors. The nature of the accusation and the attendant facts; is

the trial likely to be affected; is there possibility of tampering

with the evidence and deflating the course of justice, whether

the applicant poses a flight risk, are few of the pertinent

factors.

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13. First and foremost, it is necessary to note that the

allegations against the petitioner are of money laundering by

employing the device of facilitating the layering and rotating of

export and import of diamond jwellery of Gitanjali and FireStar

Group Companies, through his companies. This was allegedly

done to inflate the turn over so that the companies of the

principal accused could fetch more credit. In return of such

facilitation, the petitioner was allegedly promised 0.15% of the

turn over. In a general criminal conspiracy and mammoth fraud

of such magnitude, the roles attributed to each of the

confederates may be different. However, the larger picture is

required to be kept in view. The submission on behalf of the

petitioner that there is no incriminating material against the

petitioner, thus, cannot be readily accepted.

14. The fact that four of the co-accused are absconding, and

despite continuous efforts in getting them extradited, they are

still at large, cannot be said to be immaterial or inconsequential.

At this juncture, the apprehension entertained by the investing

agency that there is likelihood of the petitioner making himself

scares is required to be appreciated in the context of the

abscondance of the principal accused.

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15. The submission that the petitioner is being made a

scapegoat while the principal accused are at large, appears

attractive. However, the overall context of the nature of the

accusation, the magnitude of the fraud, the abscondance of the

co-accused cannot be lost sight of.

16. If viewed through the aforesaid prism, no fault can be

found with the impugned order declining to grant permission to

travel to USA. Hence, the petitions deserve to be dismissed.

17. The petitions stand dismissed.

[N. J. JAMADAR, J.]