Mukesh Jain vs Cbi
2009 Latest Caselaw 5315 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         Bail Application No.2179/2009

%                         Reserved on :  17th December, 2009
                          Pronounced on: 21st December, 2009

#     MUKESH JAIN                                ..... Petitioner
!                             Through Mr. R.N. Mittal, Sr. Adv.
                              with Mr. Puneet Mittal and Mr.
                              Manoj Kumar, Advs.

                          versus

$     CBI                                           ..... Respondent
!                             Through Ms. Sonia Mathur with
                              Mr. Sumit Singh, Advs.
                              Insp. Sirup Sarkar, I.O., CBI.

*     CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.     Whether the Reporters of local papers
             may be allowed to see the judgment?                    Yes

      2.     To be referred to the Reporter or not?                 Yes

      3.     Whether the judgment should be
             reported in the Digest?                                Yes


: V.K. JAIN, J.

1. This is a petition under Section 439 of the Code of Criminal

Procedure for grant of bail in the case registered vide RC

No.RC071/2009 (E) under Section 420/467/468/471/511 IPC and

Section 13(2) read with 13(1)(d) of Prevention of Corruption Act,

1988. The petitioner was arrested by CBI on 8th April, 2009 and

has been chargesheeted alongwith nine other co-accused

persons, in a case of defrauding Punjab National Bank to the

extent of Rs.1,46,71,000/- and attempt to defraud the bank of

Rs.2,72,38,000/- using forged cheques for the purpose of

cheating, in connivance with some bank officials.

2. As far as the petitioner is concerned, the allegations

against him are that two forged cheques one of Rs.51.65 lakhs

and the other of Rs.55.06 lakhs purporting to be issued by M/s

Sahara India Finance Corporation Ltd. were deposited in the

bank account of M/s Bahubali Marketing Pvt. Ltd. in which he

and his wife Benu Jain were Directors. These cheques were

forged after procuring a blank Multicity Cheque Book from the

Daryaganj Branch of Punjab National Bank and printing the

name of Lal Bagh, Lucknow Branch on the cheques. According

to CBI, out of the aforesaid sum of Rs.106.71 lakhs, Rs.38 lakhs

were withdrawn by the petitioner and his wife through self

cheques and a sum of Rs.60.61 lakhs was transferred to the

account of M/s Analytical Impex Ltd. This is also the case of the

CBI that Mr. Pramod Kumar Pandey of M/s Analytical Impex Ltd.

withdrew Rs.50 lakhs in cash and handed them over to the

petitioner Mukesh Jain in the presence of his co-accused Shri

S.K. Bhargav and Rs.10 lakhs were transferred to the account of

M/s Saint Grandeur, which is owned by a relative of the

petitioner.

3. While investigating this case, the CBI also found that using

forged cheques, purporting to be issued by M/s Bajpai

Construction Co., a sum of Rs.40 lakhs was transferred to the

account of M/s Bansal Trading Co., which belonged to Nipun

Bansal, co-accused of the petitioner. The bail application of

Nipun Bansal was dismissed, as withdrawn vide order dated July

29, 2009 with liberty to file a fresh application after order on

charge is passed.

4. The defence taken by the petitioner, as disclosed in para 15

to 18 of the petition, is that his co-accused S.K. Bhargav, who is

a Chartered Accountant, has requested him to supply fabric to

M/s Sahara India Finance Corporation Ltd. and had given the

above noted two cheques one of Rs. 51.65 lakhs and other of

Rs.55.06 lakhs, drawn in favour of M/s Bahubali Marketing Pvt.

Ltd., which were deposited in the account of the company. It is

claimed by the petitioner that he had also delivered material

worth Rs.10 lakhs in the office of his co-accused S.K. Bhargav,

who subsequently requested to cancel the order and transfer the

remaining funds to the account of M/s Analytical Impex Ltd. It

has been further alleged that the amount of Rs.38 lakhs,

withdrawn by the petitioner and his wife in cash, was also

handed over to co-accused S.K. Bhargav.

5. It is not appropriate for this Court, while considering an

application for grant of bail, to analyse and comment upon the

defence taken by the petitioner. Suffice it to say that ordinarily,

no purchaser, more so a company, would give such a huge

advance without even placing the purchase order with the seller.

No such purchase order has been produced or even claimed by

the petitioner. Assuming that the amount of Rs.106.71 lakhs was

given to the petitioner, as advance, for supply of fabric and the

order was later on cancelled by Shri S.K. Bhargav, in that case,

the money would be refunded by way of cheque in the name of

M/s Sahara India Finance Corporation Ltd. and would not be

either paid in cash to Shri S.K. Bhargav or transferred to the

account of M/s Analytical Impex Ltd. which had nothing to do

with M/s Sahara India Finance Corporation Ltd. I, however,

need not go into further into this aspect lest it should prejudice

the petitioner at a later stage.

6. The petitioner is alleged to have cheated a public sector

bank of more than Rs.1 crore. Admittedly, nothing has been

refunded by the petitioner to the bank despite his coming to

know that the cheques, whereby money was transferred to the

account of his company were forged documents and a huge sum

of money, belonging to the bank, had come to the account of his

company. The petitioner, therefore, continues to enjoy the fruits

of the crime, alleged to have been committed by him. In State

of Gujarat vs. Mohanlal Jitamalji Porwal and Anr. AIR 1987

SC 1321, the Hon'ble Supreme Court, while considering a

request of the prosecution for adducing additional evidence,

inter alia, observed as under:-

"The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest."

The above referred observations were quoted with

approval in Ram Narain Popli vs. CBI, 2003 (3) SCC 641. The

Hon'ble Court also observed as under:

"Unfortunately in the last few years, the country has seen an alarming rise in white-collar crimes which has affected the fiber of the country's economic structure. These cases are nothing but private gain at the cost of the public, and lead to economic disaster."

In Champakbhai Amirbhai Vasava vs. State of Gujarat,

2001 Crl.L.J. 4475, a judgment relied upon by the learned

counsel for CBI, Gujarat High Court, while considering Bail

Application in a case involving misappropriation of Rs.6 lakhs by

a bank employee, inter alia, observed as under:-

"If the employee of the bank would commit such serious offence then, the customer whose amount has been lying in the bank will not be safe and the amount will not be secured. As per my view, such matters cannot be viewed lightly and, therefore, merely in view of the long detention or that there are no chance of his absconding or about tampering with the evidence are not the only criteria to be borne in mind while considering the bail application but there are other considerations while examining bail application to the effect that if the serious offence is committed by the petitioner which would be adversely affecting the public at large, society at large, discretion cannot be exercised. If such offences are viewed lightly, then, the confidence of the public in the Scheduled Banks will be shakned and, therefore, as per my view, this is not the fit case for exercising the powers under section 439 of the Code of Criminal Procedure and the bail application is therefore required to be rejected."

7. In Lalit Goel vs. Commissioner of Central Excise, 2007

(3) JCC 2282, this Court, while dealing with bail application in a

case of Customs Act, observed that the economic offences

constitute a class apart and need to be visited with a different

approach in the matter of bail. Noticing ever growing

materialistic outlook setting unscrupulous elements on a prowl

to maximise material gains by unlawful means, this Court even

suggested appropriate legislative measure and judicial

intervention to safeguard the interest of the State and public at

large.

8. In Prem Kumar Parmar vs. State (CBI), 1989 RLR 131:,

this Court observed that the offences such as cheating and

forgery bring imbalance in the economy of the country, which

has the effect of making the life of majority of people,

particularly those belonging to economically weaker sections of

the society miserable and that such economic offences are worse

than murders.

9. It is true that the petitioner has been in custody for more

than eight months and the chargesheet has already been filed,

but considering the huge amount of public money, being

retained by him, his having been in custody for eight months by

itself would, in the facts and circumstances of this case, not

entitle him to grant of bail at this stage. The economic offences

having deep rooted conspiracies and involving huge loss of

public funds whether of nationalized banks or of the State and

its instrumentalities need to be viewed seriously and considered

as grave offences affecting the economy of the country as a

whole and thereby posing serious threat to the financial health

of our country. Therefore, the persons involved in such offences,

particularly those who continue to reap the benefit of the crime

committed by them, do not deserve any indulgence and any

sympathy to them would not only be entirely misplaced but also

against the larger interest of the society. The Court cannot be

oblivious to the fact that such offences are preceded by cool,

calculated and deliberate design, with an eye on personal gains,

and in fact, not all such offences come to the surface. If a

person knows that even after misappropriating huge public

funds, he can come out on bail after spending a few months in

jail, and thereafter, he can continue to enjoy the ill-gotten

wealth, obtained by illegal means, that would only encourage

many others to commit similar crimes in the belief that even if

they have to spend a few months in jail, they can lead a lavish

and comfortable life thereafter, utilizing the public funds

acquired by them. In fact, not everyone would mind luxurious

living for him and his family, even if it comes at the cost of

spending a few months in jail. A strong message therefore

needs to be sent to these white collared criminals and those who

are waiting in the wings, that in the long run, it does not pay to

be on the wrong side of law. Unless it is done, we will not be

able to check the growing tendency to adopt dubious and illegal

means, to get rich overnight so as to be able to enjoy all those

luxurious of life, which now are available in abundance, courtesy

liberation and globalization of our economy. I do not wish to

suggest that the time already spent in jail is not a relevant

consideration in the matter of grant of bail or that the economic

offenders should not at all be enlarged on bail. Of course, we

cannot keep anyone in prison for an unreasonably long period.

But, how much period spent in jail would by itself entitle an

under trial prisoner to bail, would depend upon the facts of each

case, including the amount of public funds involved, the

quantum of public funds being retained by him, the

circumstances in which the offence was committed and the

nature of the defence, if any, taken by him. No hard and fast

rule can be laid down in such matters and every case has to be

examined in the light of its individual facts and circumstances.

10. The learned counsel for the petitioner has referred to the

decision of the Hon'ble Supreme Court in Ashok Dhingra vs.

N.C.T. of Delhi 2001 [1] JCC [SC] 178, where the Hon'ble Court

noticing that the petitioner had been in custody for more than

five months, enlarged him on bail in a case of cheating a

Japanese national of more than of 65 lakhs. This judgment, in

my view, does not apply to the present case involving public

funds to the extent of more than one crore. Cheating, involving

a private person, cannot be treated at par with a case of criminal

conspiracy by forgery and cheating, in respect of huge public

funds. The cases of cheating and forgery resulting in loss of

public funds have to be treated differently from the cases of

cheating private citizens as cheating, involving public funds,

does not affect any individual, but affects the society at large.

11. The learned counsel for the petitioner has also referred to

the decision of the Hon'ble Supreme Court in M.M.

Cooperative Bank Limited vs. J.P. Bhimani & Another

(2009) 8 SCC 727. In that case, the respondent, during the

hearing of his bail application, offered before the High Court to

make payment of Rs.2384 lakhs to the petitioner-bank. He

offered to deposit Rs.50 lakhs within a week from the date of his

release, Rs.150 lakhs in five instalments, Rs.150 lakhs by selling

his mortgaged property and by permitting the bank to deal with

his immovable properties, with his cooperation. A sum of Rs.805

lakhs was to be paid in minimum monthly instalments of Rs.10

lakhs commencing after initial period of six months was over.

On this statement, he was granted bail, subject to a number of

conditions enumerated in the order. Grant of bail to the

respondent was challenged before the Hon'ble Supreme Court.

The Hon'ble Court noticed that a large number of civil litigations

were pending. It was also noticed that he had tendered a list of

properties held by third parties not being the borrowers of the

bank, alongwith their consent and support and the bank was free

to deal with those properties in the manner it liked for recovery

of the amount. The Hon'ble Court was informed that he had sold

his residential house as well as his office to deposit a sum of

Rs.150 lakhs. In these circumstances, the Hon'ble Supreme

Court declined the request of the appellant to direct the

respondent to deposit at least a sum of Rs.41 crores.

12. What is important is that in the case of M.M. Cooperative

Bank Limited (supra), the Hon'ble Supreme Court did not take

an adverse view of the respondent being enlarged on bail, on the

basis of the offer made by him to pay a huge amount to the bank.

The learned senior counsel contended that if bail is granted to

the petitioner, he would deposit a sum of Rs.5 lakhs within two

weeks from the date of his release. Considering the amount that

was transferred to the account of the company of the petitioner,

the offer to pay Rs.5 lakhs, after two weeks from the date of his

release, cannot be considered as good enough to be treated at

par with the other on the basis of which the respondent was

released in the case of M.M. Cooperative Bank Limited

(supra). In fact, it is nowhere near even the amount of Rs.38

lakhs, withdrawn in cash by the petitioner and his wife.

13. In Suresh Chandra Ramanlal vs. State of Gujarat 2008

(7) SCC 591, a case, involving cheating and forgery in respect of

funds of a bank, the Hon'ble Supreme Court even while granting

bail on verified medical grounds, imposed a condition that he

would deposit a sum of Rs.40 lakhs with the bank in four

monthly instalments. This was despite the fact that in the case

before the Hon'ble Supreme Court, there were as many as 49

accused and each one of them had already been enlarged on bail

and that included the Chairman, Vice-Chairman, Managing

Director, 11 other Directors of the bank and the case of the

appellant, Ex. Vice-Chairman of the bank, was that he had

resigned in the year 1999, whereas the FIR was registered in the

year 2002.

14. Nipun Bansal, co-accused of the appellant, in whose

account, Rs.40 lakhs were transferred by committing forgery

and cheating, is still in custody though during the course of

arguments, I was informed that he had already made some

payment to the bank before he was arrested. The petitioner

does not deserve a treatment more favourable than what has

been given to Nipun Bansal, who has retained an amount much

less than the amount retained by the petitioner.

15. For the reasons given in the preceding paragraphs, I am of

the considered view that the petitioner should not be enlarged

on bail at this stage.

The Bail Application is hereby dismissed. The observations

made in this order, having been necessitated solely for the

purpose of dealing with the contentions raised by the petitioner

and the plea taken by him, shall not prejudice the decision of the

case at any stage of the trial.

(V.K.JAIN) JUDGE DECEMBER 21, 2009 bg