Bombay High Court

Mahendrapratap Singh And Anr vs The State Of Maharashtra on 23 December, 2022

Bench: R.P. Mohite-Dere, P. K. Chavan

                                                                  905-IA-ST-22267-2022.doc


           Shailaja


                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                INTERIM APPLICATION [STAMP] NO.22267 OF 2022
                                    IN
                       WRIT PETITION NO.3802 OF 2022

           Anilkumar Mahendra Pratap Singh]                 Applicant

           IN THE MATTER BETWEEN:

           Mahendrapratap Singh and another]                Petitioners
                 Vs.
           The State of Maharashtra        ]
           and another                     ]                Respondents
                                                    .....

Mr. Aabad Ponda, Senior Advocate i/b Mr. Nilesh Pandey a/w Mr. Sameer Vispute and Rahul Bhosale, for Applicant.

Dr. Abhinav Chandrachud i/b Mr. Rahul Karnik, for Respondent No.2.

Ms. P.P. Shinde, A.P.P, for Respondent No.1-State.

Mr. Aditya Mokashi a/w Mr. Fauzan Shaikh, for Applicant in I.A. No.3964 of 2022.

Mr. Mahendra Savardekar, P.I., Unit-8, EOW, Mumbai, present in Court.

.....

CORAM : REVATI MOHITE DERE & PRITHVIRAJ K. CHAVAN, J.J.

DATE : 23rd DECEMBER, 2022.

SHAILAJA Digitally signed by SHAILAJA SHRIKANT HALKUDE SHRIKANT Date: 2022.12.23 18:40:00 HALKUDE +0530

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P.C.

1. Heard learned Counsel for the parties.

2. By this Interim Application, the applicant seeks the

following substantive reliefs;

(a) That this Hon'ble Court be pleased to stay the effect and implementation of the Look Out Circular issued upon the Petitioner No.2 by the Respondent No.1 through the Samta Nagar Police Station, Mumbai and/or Economic Offences Wing - Unit 8, Mumbai in connection with F.I.R bearing C.R. No.1168 lodged at the instance of Samta Nagar Police Station, Mumbai dated 07.08.2022 @ C.R. No.139/2022 of EOW, Unit - 8, Mumbai lodged at the instance of de-facto Complainant viz Mr. Yogeshkumar Radheshyam Shukla for the offences punishable U/s. 406, 420 and 34 of the IPC 1860 and Sec. 3 of the Maharashtra Protection of Interest of Depositors Act, 1999;

(b) That this Hon'ble Court be pleased to permit the Petitioner No.2 i.e Anilkumar Mahendrapratap Singh to travel abroad i.e at Basel, Switzerland on or before 26.12.2022 to 30.12.2022 for renewal of Work Permit/ Resident Permit of Petitioner No.2".

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3. Mr. Ponda, learned Senior Counsel appearing for the

applicant submits that the applicant is required to travel to

Switzerland from 26th December, 2022 to 30th December,

2022, for the purpose of renewing his Work Permit/Resident

Permit which expires on 27th December, 2022, the said date

being the last cut-off date for renewing the Work Permit/Resident

permit. He submits that physical presence of the applicant is

required for renewal of the said permit. He further submits that

the applicant undertakes to return on 30th December, 2022 and

is ready to abide by any condition that may be imposed by this

Court. He further submits that the applicant's Anticipatory Bail

Application is pending in this Court and the said Anticipatory

Bail Application is due on 10th January, 2023 and that this Court

has granted interim protection to the applicant till 10th January,

2023. He further submits that the applicant would definitely

return, as he does not intend to jeopardize his father's

Anticipatory Bail Application or his brother's regular Bail

Application, which are pending before the respective Courts. He

further submits that the applicant's mother is suffering from

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Cancer and that under these circumstances, the applicant would

not aggravate the situation, by putting additional stress on her by

not returning to India.

4. Today, learned Senior Counsel appearing for the applicant

has tendered an Affidavit-cum-Undertaking of the applicant

dated 23rd December, 2022. Various documents evidencing why

the applicant is required to travel to Switzerland to renew his

Work Permit/Resident Permit are annexed to the said Affidavit.

The said Affidavit-cum-Undertaking is taken on record. Learned

Senior Counsel states that the applicant has a flat at Kharghar

which is presently given on leave and licence and that the said flat

is free from all encumbrances. He states, on the instructions of the

applicant, who is present in Court, that the applicant will not

create any third party rights with regard to the said flat, till his

Anticipatory Bail Application is decided by this Court. He states

that the applicant is ready to submit the original documents with

respect to the said flat situated at Kharghar to this Court/to the

Police.

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5. Dr. Chandrachud, learned Counsel appearing for the

respondent No.2 vehemently opposes the application. He

submits that the applicant is working in Navi Mumbai and as

such, is not required to travel to Switzerland. Learned Counsel

relied on Page No.70 of the Application i.e Letter of Offer of

Appointment issued to the applicant. He further submits that

there is nothing on record to show that the applicant was residing

in Switzerland and South Africa for several years, as contended

by the learned Counsel for the Applicant. He further submits

that the applicant has not shown any reason for not renewing the

Work Permit/Resident Permit from India.

6. According to Dr. Chandrachud, learned Counsel appearing

for the respondent No.2, Work Permit/Resident Permit of the

applicant shows that it expires on 28th November, 2023 and not

on 27th December, 2022 as contended by the learned Senior

Counsel for the applicant. Learned Counsel appearing for the

respondent No.2 relied on the judgment of the Apex Court in the

case Parvez Noordin Lokhandwalla Vs. State of Maharashtra and

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another, (2020) 10 Supreme Court Cases 77 and in particular

paragraph 8 of the said judgment. He submits that the applicant

should not be permitted to travel to Switzerland for renewal of his

Work Permit/Resident Permit, as prayed in the application.

7. Learned A.P.P opposes the application.

8. Perused the application. The applicant is facing prosecution

in connection with C.R. No.1168 of 2022 dated 7th August,

2022 registered with the Samta Nagar Police Station, Mumbai for

the alleged offences punishable under sections 406, 420 r/w 34 of

the Indian Penal Code and section 3 of the Maharashtra

Protection of Interest of the Depositors Act, 1999, subsequently

transferred to EOW, Unit 8, Mumbai and renumbered as C.R.

No.139 of 2022.

9. We have heard learned Counsel for the parties at some

length. Prima facie, it appears that the applicant is not a Director

of any of the Companies of which his brother Sunilsingh (co-

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accused) is a Director. It appears that the complainant, is a

Director of one of the companies has made certain allegations

against the Company, of which he is the Director.

10. Learned A.P.P when questioned, states that the Police have

attached eighteen Fixed Deposit Receipts of the applicant to the

tune of Rs.2,00,000,00/- (Two Crores only). As far as the

applicant's flat at Kharghar is concerned, she states that the said

flat has not been attached. Learned A.P.P when questioned, as to

whether any amount was transferred in the account of the

applicant by the depositors /by the co-accused, states that there is

only one transfer of Rs.13,00,000/- by the co-accused

Sushilsingh (brother of the applicant) in the applicant's account.

According to the learned Senior Counsel appearing for the

applicant one family property was sold to Sunilsingh by the

applicant and his father on 31st March, 2021, pursuant to which,

an amount of Rs.12.5 lakh was transferred by Sunilsingh in the

applicant's account on 5th April, 2021. Learned A.P.P, when

questioned, does not dispute the said fact, that transfer is of 5th

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April, 2021.

11. In this application, the only question that arises for

consideration is whether the applicant is required to travel to

Switzerland during the period i.e 26th December, 2022 to 30th

December, 2022 and should he be permitted to travel?

12. Considering the submission advanced by the learned

Counsel for the respondent No.2 that the applicant has not

shown any document to show that he was working in Switzerland

or South Africa earlier, we have perused the original passport of

the applicant. A perusal of the passport shows that the applicant

was in Switzerland and South Africa from 1st December, 2011 to

November, 2018 and from November, 2018 to 2020

respectively. From the document on record i.e "Exhibit B Colly"

which is at page 70 of the interim application, it appears that the

applicant was appointed as "Head of Shared Service Center

India", in GBS at Airoli, New Mumbai, from 1st January, 2020 to

30th November, 2022. The document at page 73 dated 10th

August, 2022 issued by Head of HR India, for Clariant India

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Limited certifies that the applicant is working with them on

International Assignment from Clariant International AG as

Head of Shared Service Center India in Service Unit Global

Business Service since 1st January, 2020 and is based at Airoli,

Navi Mumbai. The document at page 74 shows that the

applicant being an Indian citizen, has been employed with

Clariant since December 1 2011 and is currently employed in the

Company in Switzerland and that currently he is on an

international assignment in India and is also part of the Clariant

Group.

13. The document i.e the Residence Permit shows that the

same is valid upto 28th November, 2023. The same is not

disputed by the applicant. The contention of the applicant is that

the said permit expires on 27th December, 2022. In support of

the said submission, learned Counsel for the applicant relied on

page 18 of the Affidavit-cum-Undertaking tendered today to

show that the said permit expires on 27th December, 2022 and

that the applicant and his family thereafter would be de-registered

in Switzerland on 27th December, 2022. The document at page

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No.19 is an Email sent to the applicant by the Head of the

Clariant International Limited which shows that the applicant

and his family must return to Switzerland before the expiry date

of the residence permit i.e on 27th December, 2022. It is further

stated that the applicant and his family members must remain

present physically in Switzerland as on this date. The document

at page No.97-B annexed to the application shows, based on

Article 40 of the Federal Law of December 16, 2005 on

Foreigners and Integration, the Canton of Basel City Population

Services and Migration Department, how visas are issued. In the

said document, length of stay for maintaining the C permit is

stated to be from 28th December, 2018 to 27th December, 2022.

14. Although, the Work-Permit shows that the same expires on

27th November, 2023, the document shows that Work-Permit

was for four years i.e for the period from 28th December, 2018 to

27th December, 2022, necessitating the applicant's presence in

Switzerland on 27th December, 2022, for issuance of the same.

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15. Apart from the same, we have noticed that about 18 Fixed

Deposit Receipts of Two Crores have been attached by the Police

during the course of investigation. We are informed by the

learned Senior Counsel appearing for the applicant that the flat

standing in the name of the applicant is worth of Rs. One Crore

and Fifty Lakhs and that the applicant is ready to give an

undertaking that his flat is free from encumbrances and that he

will not create any encumbrance on the said flat till his

Anticipatory Bail Application is decided by this Court.

16. Having heard learned A.P.P appearing for the State, it

appears that the applicant is not a Director of the Companies in

question. The allegation against the applicant is that the

applicant induced the investors to invest in the company of which

his brother - Sunilsingh was a Director. Although, it is alleged

that some cash was given to the applicant, we are informed by

the learned A.P.P, on the instructions of the Investigating Officer

that till date, he has not been able to collect any material with

respect to the same. Apart from the said transfer of

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Rs.13,00,000/- by Sunilsingh in the applicant's account on 5th

April, 202, there is no other transfer either from any of the

investors or applicant's brother in the applicant's account.

17. Be that as it may, we do not intend to go into the merits of

the case, lest we may prejudice the contentions of either of the

parties in the pending Anticipatory Bail Application. The

observations made aforesaid, are only for the purpose of

considering whether or not to suspend the LOC issued as against

the applicant for the period i.e from 26th December, 2022 to

30th December, 2022 and whether to permit the applicant to

travel. Learned Senior Counsel for the applicant has annexed the

tickets (departure and return) to the Affdiavit-cum-Undertaking

at Pages 9 and 14.

18. In view of the aforesaid, the application is allowed on the

following terms and conditions;

(a) The applicant - Anilkumar

Mahendra Pratap Singh is permitted to travel

overseas to Switzerland during the period

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from 26th December, 2022 to 30th

December, 2022;

(b) In order to enable the applicant to

travel during the said period, the LOC issued

as against him is stayed during the period i.e

from 26th December, 2022 to 31st December,

2022;

to deposit the original sale deed pertaining to

Flat No. C/2/902, 9th Floor, Hyde Park, Plot

No.8, 9, 10, Sector 35 G, Kharghar, Navi

Mumbai, with the Investigating Officer, today,

during the course of the day;

(d) The applicant before his departure

to file an affidavit-cum-undertaking with the

Registrar - (Judicial-I) of this Court, setting

out the full itinerary of his travel to

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Switzerland with all details, including the

address where he would stay and contact

details/numbers etc;

(e) The applicant shall also undertake in the said affidavit;

(i) not to apply for renewal or extension of this order, until he returns to India;

(ii) that the property papers of the flat handed over, is free from encumbrance and that he will not create any third party rights in the said property till his Anticipatory Bail Application is decided and