Vikas Srivastava vs State
2009 Latest Caselaw 2812 Del

               IN THE HIGH COURT OF DELHI

              Bail Application No. 1329/2009


                                  Date of decision: 24th July, 2009

     Vikas Srivastava                      ... Petitioner
            through: Mr. K.K. Manan, Mr. Sangram S. Saron and
                     Mr.Nipun Bhardwaj and Mr. Mustafa Arif,
                     Advs.

                                VERSUS

     State                             ....Respondents

through: Mr. Manoj Ohri, APP for the state

CORAM:

HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment? No

2. To be referred to the Reporter or not? No

3. Whether the judgment should be reported in the Digest? No

GITA MITTAL, J

1. By this petition, Vikas Srivastava who has been

implicated in a case registered as FIR No. 62/08 by the police

station Economic Offences Wing, Malviya Nagar, u/s

406/420/120B of the Indian Penal Code seeks bail. The

allegations against the complainant briefly noticed are that he

has induced the complainant Sh. Sanjay Kohli, a resident of

Lucknow to part with a sum of Rs.43 lakhs by holding out that

he was a proprietor of one M/s Format International and was

involved in the business of procurement of colour printing

machines. The complainant has given a graphic description of

a meeting which allegedly took place in the last week of July,

2007 whereby Mr. Vikas Srivastava represented himself to be

having a large client base in India as well as in Nepal in this

trade for the last more than nine years; that Mr. Vikas

Srivastava took the complainant to his residence cum office at

A-164 Surajmal Vihar-110092 and introduced his father and

brother; that these three persons represented that they had a

strong base in Czechoslovakia where one Sh. Ashok

Srivastava, an uncle of the applicant resides and between

them, they had good contacts for procuring new and second-

hand off set machines therefrom; that other representations

with regard to the manner in which transactions are

undertaken by them and the manner in which the complainant

would require to make payment were also disclosed by them.

It is further alleged that Mr. Vikas Srivastava alongwith his

father went Lukcnow on 13th August, 2007 where he showed

some models of machines out of which the complainant

selected one; on negotiations, a deal was finalised for Rs.50

lakhs and the transaction details were reduced to writing by

Mr. Vikas Srivastava on the letterhead of his firm. An amount

of Rs.3 lakhs was paid by the complainant on 13th August,

2007 and a receipt of this amount was given by the applicant

on the transaction sheet. The complainant was required to

pay an amount of Rs.43 lakhs by 1st January, 2008 and it was

assured that the machine would be imported by the end of

January, 2008. On the asking of the applicant, the complainant

applied for the importer and exporter code on 17th August,

2007 which was allotted to him on 21st August, 2007 for the

import of such machine.

2. The complainant claims to have obtained a bank loan of

Rs.25 lakhs for which Sh. Vikas Srivastava is alleged to have

issued an invoice to facilitate the loan. The specifications of

the machine and quotation etc were given by the applicant to

the complainant.

3. On the insistence of the applicant, Sh. Sanjay Kohli claims

to have made the following payments towards procurement of

the machines:-

(i) On 13th August, 2007 Rs.3 lakhs in cash paid against written receipt

(ii) On 19th October, 2007 Rs.15 lakhs in cash paid against written receipt

(iii) On 31st December, 2007 Rs.18 lakhs paid by cheque from the bank loan against receipt

(iv) On 12th January, 2008 Rs.7 lakhs paid by cheque from the bank loan against receipt.

4. Details of the representations made by the applicant

resulting in the aforestated payments have been listed in the

complaint as also the several excuses propounded by the

petitioner as reasons for the delay in the procurement of the

machines. Several other mis-representations with regard to

the manner in which the procurement of the machines and its

loading was being arranged are also alleged. The complainant

states that finally in first week of March, 2008, Vikas

Srivastava called and told him that the machine had arrived in

Mumbai and that he should arrange for the remaining amount

of Rs.78 lakhs and send the same to him. To this the

complainant had responded to say that he would send the

balance once the machine reached Lucknow.

5. On calls which were made thereafter, the complainant

was told that Vikas Srivastava and his brother had gone to

Mumbai for clearing of the shipment. Finally on 31st March,

2008, Vikas Srivastava told the complainant to send the

money to his bank with the Form 31 as the machine had

arrived at Delhi and he would organise its discharge once he

receive the complete payment. The complainant applied for

Form 31 and received the same on 5th April, 2008 with which

he reached Delhi on 6th April, 2008. No response could be

obtained from Vikas Srivastava. He thereafter went to office

cum residence to inspect the machine and make the balance

payment when he was told by the brother of the Vikas

Srivastava that he should deposit the money and then he could

see the machine in the afternoon. At this the complainant told

him that he would pay the remaining money only after seeing

the machine.

6. The complainant has alleged that while he was making

these efforts to contact Vikas Srivastava, he received a call

from one Sh. Vijay Jain who had also paid Vikas Srivastava a

sizeable amount of money for import of machines and that

Vikas Srivastava had not imported any machines for him as

well. Mr. Vijay Jain is stated to have told the complainant that

Vikas Srivastava had run away with the money of various

parties. All efforts to reach Vikas Srivastava were fruitless.

However, finally at about 9.35 p.m. on 16th April, 2008, the

complainant submits that he had received an SMS on his

mobile no. 9818224843 sent by Vikas Srivastava wherein he

had stated that he was in a big problem and would be in touch

very soon. It was further stated that the complainant's money

was totally safe. Vikas Srivastava was absconding and his

father and brother were giving false stories. In a second SMS,

Vikas Srivastava asked the complainant to wait for his next

reply. Enquiries made from various sources and the bankers of

Format International revealed that no moneys had been sent

to Czechoslovakia for import of any machine nor any machine

had been imported from there. According to the complainant

the amounts have been misappropriated by Vikas Srivastava

and his relatives and they had cheated the complainant and

other persons in a conspiracy.

On these allegations, Sanjay Kohli lodged the complaint

on 11th April, 2008 on which the present FIR was registered.

7. During the course of investigation, the investigating

officer has recorded a statement of Sh. Vijay Jain who has also

made similar allegations against Vikas Srivastava and alleged

that he was fraudulently persuaded to make payments to the

tune of over Rs.60 lakhs between 18th June, 2007 and 18th July,

2007. He alleges bank transfers at the instance of Vikas

Srivastava even to his uncle Sh. Ashok Srivastava in

Czechoslovakia towards procurement of the printing machine.

To instill confidence, Sh. Vikas Srivastava is alleged to have

taken Sh. Vijay Jain to Czechoslovakia where the pretense of

procurement of the machine was made. On 5th April, 2008, Sh.

Vikas Srivastava is alleged to have fraudulently executed a

promissory note acknowledging all the payments were made

by Sh. Vijay Jain and promising to pay the same on payment.

8. Mr. K.K. Manan, learned counsel for the petitioner has

primarily one argument in support of this petition. It is

contended that the prosecution has filed a chargesheet on 31st

July, 2008 and there is, therefore, no justification for keeping

the petitioner in custody. It is further urged that merely

because an economic offence is disclosed, continued

incarceration of the petitioner is not tenable. (Ref. 2000 Cr.L.J.

2094 Anil Mahajan vs. Commissioner of Customs). Learned

counsel has also vehemently urged that the tendency of

businessmen to convert civil cases into criminal prosecution

has to be deprecated and urges that the present case is such

an attempt. (Ref : 2006 (3) JCC 1447 K. Jayram & Anr. v. State).

It is further urged that merely because the money involved in

the complaint is large, would be no justification to keep the

accused in custody. (Ref : 2007 (2) JCC 1070 Sanjay Dua v. The

State of NCT of Delhi).

Reliance has also been placed on the pronouncement at

2001 (1) JCC (SC) 178 Ashok Dhingra v. NCT of Delhi; 130

(2006) DLT 203 Lalit Mishra v. State Through Govt. of NCT of

Delhi; 129 (2006) DLT 498 Anurag Singh v. State (Through NCT

of Delhi) and 64 (1996) DLT 633 Sukh Ram v. State Through

CBI to urge that the applicant has been in custody for a long

time and that he would not flee from justice and consequently

there is no warrant for keeping him in jail.

It is noteworthy that in each of these cases the entire

facts and circumstances leading up to the registration of the

case have been examined. No single circumstance by itself

can be urged as an entitlement to bail.

9. Learned counsel for the complainant has argued at

length that the complainant is actively pursuing the matter.

The charge sheet stands filed and there is no likelihood of their

tampering with evidence. It is urged that in these facts, the

principles laid down by the Apex Court in AIR 1997 SC 2575

Chandra Swami & Ors. v. Central Bureau of

Investigation, would apply and the applicant would be

entitled to grant of bail. In this case, the factors which

weighed with the Apex Court in granting bail included the fact

that the complaint related to an offence allegedly committed

nearly 16 years ago; not much progress had taken place in the

conduct of the proceedings; the main witness was the

complainant himself who was zealously pursuing the matter

and for this reason, there was no likelihood of any evidence

being tampered or influenced.

There is no parity on the facts of the case with the

present case.

10. Similarly the submission that there is a growing tendency

in the business circles to convert a civil dispute into criminal

cases would not apply to the instant case wherein there is

more than one similar transaction allegedly entered into by the

petitioner that too with different persons which prima facie

suggests a well designed conspiracy to cheat and dupe

members of the public. It needs no elaboration that civil

liability and criminal culpability can arise from the same

actions. For the same reason, it cannot be contended that the

allegations in the present case relate to issues which are

purely of a civil nature.

11. As per the allegations on record, the applicant went to

the extent of taking Shri Vijay Jain to Czechoslovakia which

would only indicate the extent of deviousness and confidence

of the accused that he would get away with his alleged actions.

12. Mr. Manoj Ohri, learned APP for the state points out that

the receipts, promissory note and the other documents

executed by Sh. Vikas Srivastava were sent for forensic

examination and a report has been received from forensic

science laboratory that the handwritten details of machines

and the signatures on the documents are of Sh. Vikas

Srivastava. The forensic reports and the documents

corroborate the allegations of the complainant and Sh. Vijay

Jain and prima facie support the allegations made in the

complaint by Sh. Sanjay Kohli and in his statement by Sh. Vijay

Jain.

13. Apart from the forensic examination, the investigating

agency places reliance on its verification of the transactions

alleged by both the complainant and Sh. Vijay Jain. Mr. Ohri,

learned APP points out that so far as the cheque and bank

transfers were concerned, the modus operandi adopted by the

applicant was that Sh. Vikas Srivastava would withdraw the

amounts thereof in cash immediately after deposit. Sh. Vikas

Srivastava was the only authorised signatory of the cheque to

withdraw the amount for the bank account in question.

14. The transactions to the company in Czechoslovakia by

Vijay Jain have been confirmed by the bank. Shri Jain has

stated that these were all without any orders being placed on

the Czechoslovakia company and were made to dupe the

victims.

15. As per learned APP, not a single step was taken by Mr.

Vikas Srivastava to forward any proper payments to any

Czechoslovakian company or any effort to obtain the machine

for which the moneys were taken from these two persons.

Details of the telephone communications used by Vikas

Srivastava; the complainant Sanjay Kohli and the victim Sh.

Vijay Jain also support the allegations which have been made.

16. Mr. Manan, learned counsel for the applicant rightly did

not even remotely suggest any circumstance or explanation

with regard to the transactions which have been alleged

against the applicant other than the one line in the application

to assert that the applicant is innocent. It has been

contended by Mr. Manan, learned counsel for the applicant

that the charge sheet has not been laid under Section 420 of

the Indian Penal Code. Nothing much would turn on this

submission inasmuch as the complainant and the witnesses

have made serious allegations with regard to the offence of

cheating and this aspect would be considered by the trial court

at the stage of framing of charge.

17. So far as the continued incarceration is concerned, it may

be noted that the applicant had first filed a bail application in

this court on 12th December, 2008 which was registered as Bail

Application No. 2540/2008. This application was withdrawn

after a period of almost six months on the 6th May, 2009.

Shortly thereafter a second application was filed seeking

bail on or around the 26th May, 2009 before the learned

Additional Sessions Judge. This application was rejected by

the learned Additional Sessions Judge by an order passed on

8th June, 2009.

The present application has been filed immediately

thereafter on or about 7th July, 2009.

18. Mr. Manan has asserted at length that the bail is being

opposed for the reason that the detention of the petitioner is

being utilised to compell the petitioner to make payment. He

submits that bail cannot be brought. This submission is

unfortunate and unfounded to say the least.

19. Mr. Manoj Ohri, learned APP has drawn my attention to

the pronouncements of the Apex Court reported (2001) 4

SCC 280 entitled Prahlad Singh Bhati v. NCT of Delhi &

Ors. In para 8 of this pronouncement, the court laid down the

principles which would bind consideration of the present

application thus :-

"8. The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behavior, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

20. It becomes necessary to notice certain essential facts in

this case. This is not a case of a complaint by one person but

more than one person have made a complaint. As noted

above, during the course of investigation, the investigating

agency has also recorded the statement of one Sh. Vijay Jain

who has complained of the manner in which an amount of over

Rs.60.25 lakhs was taken from him. The complainant has

stated that there are other persons who have been so duped

as well.

21. The allegations in the complaint disclose a clever design

by which a huge amount of money has been extracted over a

period of time. The allegations made by Mr. Vijay Jain disclose

a close overlap between the period when payments were being

obtained from Sh. Sanjay Kohli and Sh. Vijay Jain. Payments

have been received from Sh. Vijay Jain between 18th June, 2007

and 4th February, 2008. While payments have been received

from Sh. Sanjay Kohli between 13th August, 2007 and 12th

January, 2008 clearly suggesting the mind and planning of the

accused persons.

22. I had dealt with bail applications of brother and father of

the applicant. However, I did not get the occasion to examine

the above revelations by the witness or other facts disclosed in

the investigation while considering those applications.

23. It now becomes necessary to consider the applicable

principles which would govern consideration of an application

seeking bail. There can be no dispute with the principles laid

down in the several judgments cited on behalf of the applicant.

However, no absolute proposition of law can be urged as an

entitlement to grant of relief. Perhaps if there was only a

single transaction in which the applicant was involved, matters

may have taken a different connotation. However in the

instant case, it appears that a concerted effort to induce

persons to part with large sums of money under the ruse of

procurement of printing machines is alleged. It is urged that

the complainant induced Sanjay Kohli and Vijay Jain to part

with huge sums of money. Sh. Sanjay Kohli has urged that he

had got a loan sanctioned from a bank which amount was also

paid to the petitioner. Efforts were made by Shri Vikas

Srivastava to obtain further and larger amounts from the

complainant on false pretexts which were not paid for the

reason that the complainant had become suspicious about the

intention and the genuineness of the representations being

made by Sh. Vikas Srivastava.

24. The allegations as laid thus prima facie disclose a

concerted design to dupe persons into making payments to

the applicant and substantial arrangements had been made by

him to lend credence to the false promises held out. There are

allegations that several other persons have been similarly

cheated.

25. Deprivation of liberty is a matter of grave concern. In

para 17 of the pronouncement reported at AIR 1978 SC 527 :

(1978) 1 SCC 240 Babu Singh & Ors. vs. State of U.P.,

the Apex Court has noticed that the same may be permissible

when law authorising it is inter alia geared to the goals of

community good. Refusal of bail is not for punitive purpose

but for the bifocal interests of justice - to the individual

involved and society affected.

26. The court observed that in regard to habituals, a

thoughtless bail order would enable the accused to exploit the

opportunity to inflict further crimes on the members of society.

Exercise of bail discretion on the basis of evidence about the

criminal record of a defendant is, therefore, not an exercise in

irrelevance. The court has also to consider the likelihood of

the applicant interfering with the witnesses for the prosecution

of or otherwise polluting the process of justice.

27. In (1977) 4 SCC 308 State of Rajasthan, Jaipur vs.

Balchand allias Balley, the Apex Court held that the basic

rule is to grant bail except where there are circumstances

suggestive of fleeing from justice or thwarting the course of

justice or creating other troubles in the shape of repeating

offences, or intimidating witnesses and the like.

28. It is nobody's case that the offences which have been

alleged by the complainant are bailable offences. The Apex

Court has laid down the conditions which must weigh with the

court while grant of bail which include consideration of nature

and seriousness of the offence; character of the evidence and

the larger interest of the public or the state. In the instant

case, certainly the offence alleged is of serious nature.

Nothing has been placed to support that the applicant has any

roots in society. There is not even a whisper of an assertion in

the application or in any submission that he is involved in any

respectable trade business vocation. On the other hand, there

are allegations of involvement of his father and brother in the

transactions as well.

29. It is the applicant who is alleged to have opened the bank

accounts; started a firm; cheated persons and misappropriated

the money obtained from them. A well orchestrated

conspiracy; the impact on public interest; propensity to cheat

other persons are some of the relevant considerations which

would weigh with the court in grant of the bail. In this

background, there is grave possibility of repetition of the

offences and the applicant is clearly disentitled to exercise of

discretion in his favour.

30. It is not the applicant's case that the witnesses are only

official witness. Learned APP has urged that the applicant has

not cooperated in tracing the transactions. He has also not

facilitated the investigation agency to reach other persons. An

apprehension is expressed that the applicant may tamper with

the evidence by advancing monetary amounts to the victims

and thereby thwart the course of justice.

For all these reasons, I see no reason to disagree with the

learned ASJ who has recorded detailed reasons as well in his

order dated 8th June, 2009.

The application is, therefore, dismissed.

(GITA MITTAL) JUDGE July 24, 2009 kr