Deepa Tracy vs State (Nct Of Delhi)
2003 Latest Caselaw 287 Del

JUDGMENT

R.C. Chopra, J.

1. The petitioner seeks anticipatory bail in case FIR No. 577/01 registered at P.S. Tilak Marg under Sections 406/420/120-B IPC.

2. The said FIR has been registered on the basis of a complaint filed by Prasar Bharti Broadcasting Corporation of India alleging that Western Cooperative Bank Limited, of which the petitioner is one of the Directors, had issued Bank Guarantees to the tune of Rs. 14 crores 73 lacs in its favor between the period 5.10.1999 to 27.6.2000. However, when the complainant Prasar Bharti invoked the said Bank guarantees and presented the same to the Bank for encashment, the same were not honoured by the Bank. It was alleged that certain feature films and programmes were allowed to be telecast by Prasar Bharti on the strength of the said Bank Guarantees and had Prasar Bharti known that the said Bank Guarantees would not be honoured, it would not have allowed the telecast of the films and programmes. It was also stated that the Chairman, Managing Director, Directors and other officers of the Bank had colluded and conspired to cause wrongful loss to Prasar Bharti and make wrongful gain for themselves by issuance of the aforesaid Bank Guarantees and as such, they were guilty of criminal breach of trust, cheating and conspiracy. After registration of the FIR, the investigations are being carried out. It is stated that the Chairman of the Bank has been released on regular bail on the basis of some medical grounds.

3. I have heard learned counsel for the petitioner and learned counsel for the State.

4. Learned counsel for the petitioner has vehemently argued that the petitioner was a self employed lady doing her own export business and was nominated on the Board of Directors of the Bank being a lady, but she never had any knowledge about the issuance of the aforesaid Bank Guarantees or the inability of the bank to honour the same. It is submitted that the controversy between the parties is of a civil nature and as such, no criminal offence is made out under Section 406 IPC, 420 IPC or 120-B IPC. It is also submitted that the petitioner has been joining investigations.

5. On the other hand, learned counsel for the State has argued that the Bank Guarantees in the sum of Rs. 14 crores 73 lacs were issued by the Bank in violation of the rules and guidelines because no counter-guarantee was obtained while issuing the Bank Guarantees for such a large amount. It is submitted that in case the complainant Prasar Bharti had known that these Bank Guarantees would not be honoured, it would not have accepted the same and acted upon the contract under which the said Bank Guarantees were furnished to it. It is also submitted that a case of conspiracy and cheating is made out on the face of it inasmuch as the capital of the Bank in question was about Rs. 70 lacs only whereas the Bank Guarantees to the tune of Rs. 14 crores 73 lacs were issued knowing fully well that the Bank would never be in a position to honour the same, if invoked. It is also submitted that the petitioner was not only a Director of the Bank, but was appointed its Secretary also with powers of the Chief Executive Officer and some of the employees of the Bank, whose statements have been recorded under Section 161 Cr.P.C., have stated that the petitioner was actively involved in the affairs of the Bank and was even dealing with the persons on whose instance these Bank Guarantees were issued. It is submitted that only custodial interrogation of the petitioner and other accused would reveal the ramifications of the offence and would enable the Investigating Officer to collect further evidence in regard to the conspiracy and the persons involved therein. It is submitted that since the Bank had no financial capacity to honour the Bank Guarantees, the issuance of Bank Guarantees without adequate Term Deposits or Counter Guarantees was on the face of it a fraudulent act with a view to defraud the complainant Prasar Bharti.

6. After considering the submissions made by learned counsel for the parties and going through the case diaries, this Court finds that the allegations against the Bank and its Directors/officers including the petitioner are very serious in nature. The issuance of Bank Guarantees of Rs. 14 crores 73 lacs without safeguarding the interests of the Bank and in the absence of the capacity of the Bank to honour the same was on the face of it a fraudulent act. The instructions issued by Reserve Bank of India in its manual for Urban Cooperative Banks under clause (41) of Chapter VII clearly say that the Bank issuing Bank Guarantees should ensure that the amounts of guarantee are consistent with its financial standing and ability to meet the claims, if necessity arises. It is also mentioned in the said clause that in order to cover itself against any claim that may arise under the guarantee, the Bank should obtain a suitable counter-guarantee from the concerned constituent by adequate security for the guarantee given. It is also mentioned that the total amount of guarantees and obligations of a Bank outstanding at any time should not exceed 10% of its total owned resources made up of paid-up capital, reserves and deposits. The Investigating Officer has come across a show cause notice also issued by Reserve Bank of India to Western Cooperative Bank Limited on 20.6.2001 in para-2 of which case of Prasar Bharti has been specifically dealt with and serious objections have been raised in regard to the issuance of Bank Guarantees to it. It is also pointed out that these Bank Guarantees were issued without maintaining a record of such commitments and there were several fraudulent acts committed by this Bank. In its inspection report dated 21.8.2000 also, Reserve Bank of India had adversely commented upon the functioning of the Bank and misappropriation of funds by its Chairman and others. It was stated that the Bank had not prepared any loan rules and the staff working in the Bank was totally ignorant of prudential norms relating to income recognition, asset classification and provisioning. In para-5 of the report regarding management, it was stated that no Board meeting had been held until 13.3.1999 when the petitioner Deepa Tracy was appointed as a Secretary of the Bank. No Chief Executive Officer had been appointed by the Bank till then. The statements of many employees have been recorded by the I.O under Section 161 Cr.P.C. They have stated that the petitioner was actively involved in the affairs of the bank. The statement of Sonali P. Salve specifically says so.

7. This case is a classic example of a corporate fraud and misuse of official positions. It cannot be believed that Bank Guarantees for such heavy amounts were issued without knowing the consequences likely to arise on account of their invocation. This case has the capacity of shaking public faith in the Banking system which is an important limb of financial network in the country. In-depth investigations must be made to detect all those who were connected with such a big fruad and considerations for which such a conspiracy was hatched. Considering the serious nature of the offence, large amount involved in the fraud and the role attributed to the petitioner in the day-to-day functioning of the Bank, this Court is of the considered view that the custodial interrogation of the petitioner is absolutely essential. The Apex Court has highlighted the relevance and importance of custodial interrogation in the cases of "Pokar Ram Vs. State of Rajasthan & Ors." , "Directorate of Enforcement & Anr. Vs. P.V. Prabhakar Rao" reported in 1997 SCC (Crl.) p-978, "State represented by the CBI Vs. Anil Sharma" , "State of Andhra Pradesh Vs. Bimal Krishna Kundu & Anr." , "Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) Vs. Arun Kumar Bajoria" reported in 1998 SCC (Crl.) p-261 and "Enforcement Officer, Ted, Bombay Vs. Bher Chand Tikaji Bora" reported in 2000(121) ELT (SC). It has been held that the anticipatory bail intrudes into the sphere of investigations and as such, the Courts must be cautious and circumspect in exercising this power which is discretionary in nature. It has also been held that grant of anticipatory bail in serious cases may have the effect of shaking the faith of people in the administration of justice. The interrogation of an accused armed with a pre-arrest bail order is a mere ritual and does not serve any purpose.

8. This Court, therefore, is of the view that on account of the seriousness of the offence and the gravity of the allegations, there are no good and sufficient grounds for enlargement of the petitioner on anticipatory bail, as prayed.

9. The application stands dismissed. Interim protection is withdrawn.