Harish Sikka & Ors. vs State
2008 Latest Caselaw 1656 Del

*     HIGH COURT OF DELHI AT NEW DELHI

+            BAIL APPL. NO. 1886/2008

                              Date of decision : 15.09.2008

#     HARISH SIKKA & ORS.          ...... Petitioners
!             Through : Mr. I.C. Tewari, Adv.

                            Versus

$     STATE                             ......Respondent
^                   Through : Mr. Lovkesh Sawhney, APP
                              Inspector Sukhdev Singh,
                              EOW

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?

     (3) Whether the judgment should be reported
         in the Digest ?

                          JUDGMENT

ARUNA SURESH, J. (Oral)

Crl.M.A. 11144/2008 (exemption)

Exemption allowed subject to all just exceptions.

Application stands disposed of accordingly.

BAIL APPL. No.1886/2008

1. Notice.

2. Mr. Lovkesh Sawhney, APP accepts notice on

behalf of the State.

3. The Petitioners and co-accused Rakesh Sikka are

real brothers. They were running a company in the

name of M/s Unified Agro Industries India Ltd.

which was doing the business of rice export. The

petitioners and co-accused, the Director of the

company, approached the complainant bank for

packing credit facility in the sum of Rs. 50 lacs in

the year 1989. This facility was increased from

time to time and the bank feeling fully secured

financially enhanced the cash credit limit to Rs. 21

crores. As per the complaint, the petitioners and

co-accused Rakesh Sikka defrauded the

complainant bank through current account No. 177

by withdrawing Rs. 3.65 crores from „the current

account‟ with the intention to cheat the bank and

another sum of Rs. 3.9 crores in „foreign bill

purchase account‟ by submitting forged and

fabricated documents between the period from

1.4.1998 to 30.9.1998.

4. Complainant bank initially filed a complaint with

Central Bureau of Investigation in 1998 but after

investigation CBI did not take cognizance of the

offence and wrote a letter dated 13.7.2001 to the

Chief Vigilance Officer, Complainant Bank in the

year 2001 informing that the matter had been

examined by the CBI and it was decided to refer

the matter back to the bank to approach the local

police in this regard.

5. The bank lodged an FIR after about two years of

receipt of this letter on 12/13/06/2003 being FIR

No. 166/2003 under Sections 420/468/471/477A/

120B IPC with Police Station Mandir Marg. During

investigation of the case, Rakesh Sikka was

arrested and he was released on regular bail.

Chargesheet against Rakesh Sikka was filed in the

trial court by the complainant bank after about 8

years from the date of alleged commission of

offence. Co-accused Rajan Sikka has already been

released on anticipatory bail vide court order dated

30.07.2008. However, investigation as against the

present petitioner is still going on though a period

of 11 years has lapsed in between.

6. Complainant bank filed a civil suit in Debt Recovery

Tribunal, Delhi for recovery of a sum of Rs.

28,03,00,000/- (Rupees twenty eight crores three

lacs) against the company. The said suit was

decreed in favour of the bank and an attachment

order was obtained by the bank and all the assets

of the petitioners consisting of two factories of the

company located at Saharanpur and Bahadurgarh

and one residential property at Delhi of the

petitioners were auctioned for an amount of more

than Rs. 3.55 crores. After receipt of this amount

the bank kept silent for about three years and

thereafter lodged the present FIR.

7. Besides, the bank also received an amount of over

Rs. 12.26 crores as insurance amount from Export

Credit Guarantee India Ltd. in 2001. On 11.2.2008

the bank also auctioned another property of the

company named "United Cold Stores" located at

Kaithal, Haryana for a sum of Rs. 1 crore. The

bank allegedly had obtained physical possession of

the factory premises at Bahadurgarh and

Saharanpur containing Sortext and other latest

machinery etc. on 26.8.1998. Apprehending arrest

at the hands of the prosecution agency, present

application has been filed by the petitioner seeking

anticipatory bail.

8. This application is opposed by the respondent/

State. Learned APP for the State has argued that

petitioners had earlier moved an application

seeking anticipatory bail in February 2006 which

came up for hearing on 27.2.2006. In the said

petition an order was passed on 21.3.2006 by S.K.

Agarwal, J., while granting interim bail to the

petitioners and it was directed that they would

participate in the investigation of the case on

28.3.2006 and 29.3.2006 at EOW Cell Qutab

Institutional Area, Delhi at 4.00 p.m. and on such

other subsequent dates as and when required and

supply necessary documents to the investigating

agency and co-operate with the investigation. On

7.7.2006 a request was made by the prosecutor

that for proper investigation in the matter some

more documents were required, which the

petitioners were not furnishing and A.K. Sikri, J.

directed the petitioners to supply those documents

as per the list provided to them by the State or give

their explanation with regard to the said

documents before 23.8.2006 and the Interim

protection was continued.

9. Learned APP for the State further submitted that as

per order dated 23.8.2006 it was observed that

reply of the petitioners only indicated that the

documents were either with the bank or they had

been lost and petitioners sought some more time to

produce the list of documents filed by the bank

before the Debt Recovery Tribunal and the interim

order continued. This interim order continued till

25.1.2007 as petitioners had been seeking time

from the Court to file the list of documents as

requested earlier. It is further pointed out by the

learned APP that on 25.1.2007 the petitioners

instead of supplying the list of documents or the

documents themselves to the investigating officer

or to the Court, withdrew their petition and the

same was dismissed as withdrawn. Therefore, he

has urged that since the petitioners have not

complied with the orders passed earlier, they are

not entitled to any anticipatory bail as till date

petitioners have not supplied the documents as per

the list supplied to them i.e. stock register etc. as

required for investigation of the case and they are

not cooperating with the investigation.

10. Undisputedly the petitioners failed to supply the

documents like stock register, account books etc.

as asked by the investigating agency during the

investigation of the case. However there is no

reason assigned by the complainant bank as to why

the FIR was lodged after a substantial period of

commission of the alleged offence by the

petitioners. Chargesheet has already been filed

against Rakesh Sikka who was also arrested and

was subsequently released on regular bail. He also

happened to be the Director of the company. It is

intriguing that without any proper investigation

from Rakesh Sikka, who was in custody, regarding

the stock register etc. or details of stocks

maintained by the company the investigation was

completed and chargesheet was filed after about

10 years of the commission of offence.

11. Under the circumstances, especially when the bank

had taken the possession of factory premises of the

company at Saharanpur and Bahadurgarh and

residential house of the petitioners at Delhi, the

State is insisting on custodial interrogation for the

recovery of stock register etc. which the petitioners

failed to produce despite various opportunities

availed by them when they were enjoying interim

bail granted to them in the previous anticipatory

bail petition filed by them which was ultimately

withdrawn and was accordingly dismissed. The

FIR was lodged after lapse of substantial time. The

bank had initiated civil litigation and has been

successful in recovery of some of the amount due

to the bank though the bank could not recover the

entire money as decreed against the petitioners

and their company. Complainant bank is still

pursuing legal procedure to recover the balance

amount against the petitioner and other co-

accused.

12. Under these circumstances, after about 10 years of

the alleged commission of offence and on the basis

of report submitted by the Chartered Account

indicating some misappropriation of money by the

petitioners in their account books and stock

registers, the petitioner cannot be refused

anticipatory bail as prayed. Hence, petition is

allowed.

13. In the event of arrest, petitioners are ordered to be

released on bail on their furnishing personal bond

in the sum of Rs. 1 lac with one local surety in the

like amount each to the satisfaction of the

SHO/Investigating Officer with the condition that

petitioners shall fully cooperate in the investigation

of the case and shall assist the Investigating Officer

in collecting the necessary documentary evidence

which the prosecution feels are necessary for the

proper investigation of the case. Petitioners shall

not leave the country during the investigation of

this case without permission of the trial court

where the case as against co-accused Rakesh Sikka

is pending trial.

ARUNA SURESH (JUDGE) September 15, 2008/vk