Delhi High Court

Bajrang Gupta vs Cbi on 26 February, 2016

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                           +       BAIL APPLN. 2496/2015
                                            Date of Decision: February 26th , 2016
       BAJRANG GUPTA                                         ..... Petitioner
                   Through                  Mr.Mohit Mathur, Sr. Adv. with
                                            Mr.Pramod Kumar, Adv.

                               versus

       CBI                                                  ..... Respondent
                               Through      Mr.Sanjeev Bhandari, Spl.P.P. for
                                            CBI.

       CORAM:
       HON'BLE MR. JUSTICE P.S.TEJI

                                            ORDER

P.S.TEJI, J (Oral)

1. The present bail application has been filed under Section 439 of the

Code of Criminal Procedure for grant of bail in R.C. No.221/2013 E 0001

under Section 120-B/420/467/468 of Indian Penal Code read with

Sections 66/43 of I.T. Act, 2000 in P.S. CBI, SPE, EOU-IX, EO-III

against the order dated 26th October, 2015 passed by the Special Judge

NDPS, New Delhi in Bail Application No.3986/2015.

2. The argument advanced by learned senior counsel for the petitioner

is that there are seven accused in the present case and the main

beneficiary of M/s Bhavana Exports in whose favour the amount of

Rs.50,00,000/- is alleged to have been transferred, was not even arrested

and presently, he is on Court bail.

3. Similarly, the other five accused are on bail except the accused

Mr.Jaideep Rastogi who, as per the chargesheet, happened to be on the

seat on that day. Further submission made by learned senior counsel for

the petitioner is that the role assigned to the petitioner is not even at par

with the beneficiary and seeks bail on grounds of parity. He further

submitted that the petitioner was not beneficiary in the present case. No

entry was made by him and he was just part of the outsourced

employment of the bank.

4. Learned senior counsel for the petitioner has further submitted that

no cash amount has been recovered from the petitioner, no money

transaction is on record in the account of the petitioner and there is no

iota of evidence whether oral or documentary, against the petitioner

showing him beneficiary of the alleged fraud. It has further been

submitted that document no.33, which is the pass book of the petitioner

itself, shows that the petitioner was working in the complainant bank

even after lodging the complaint for about a year and even the bank

officials did not say any word against the petitioner and that the father of

the petitioner already sold ancestral property on 13th June, 2011 and from

the said sale proceeds, the properties, which has been alleged, have been

purchased in the name of the petitioner.

5. The circumstances of the present case reveals that the amount of

Rs.50,00,0000 /- was transferred and the petitioner was outsourced

employee for the purpose of making the transfer entry of the bank. As

per the chargesheet, the accused Mr.Jaideep Rastogi happened to be on

duty on the relevant day. The role attributed to the present petitioner is

having less gravity than the main accused as the entry attributed is to

Mr.Jaideep Rastogi. As per the case of the prosecution, the allegation

levelled against the accused is that he had purchased the properties of the

value of Rs.1,33,00,000/- The submission made by learned Senior

Counsel for the petitioner is to the effect that the properties alleged to be

purchased in the name of the petitioner, has nothing to do with the

alleged transaction and are not subject to any attachment by the

investigating agency during the investigation and even prior to it. There

is no application pending before the Trial Court for the attachment of the

properties. Even then, the petitioner offered that he is ready to furnish

indemnity bond to the effect that he is having title and possession of the

properties in his name and shall maintain status quo during the pendency

of the trial.

6. Learned senior counsel for the petitioner further argues that the

petitioner is at par with the other accused persons who were not arrested

and that the petitioner is behind bar since 28th November, 2014. Since

the trial is likely to take long time, bail of the present petitioner is sought

in the present case.

7. On the other hand, learned Special Public Prosecutor for CBI has

submitted that in the present case, the chargesheet was filed in the Court

of learned CMM, Patiala House Court, New Delhi on 24th February, 2015

against the accused persons namely Bajrang Gupta; Jaideep Rastogi;

Gaurav Bansal; Gaurav Aggarwal, Ashutosh Singhal; Ashok

[email protected] & Raj Varshney who, in furtherance of conspiracy, with

the object to cheat Bank of Baroda, dishonestly and fraudulently accessed

computer network of Bank of Baroda, CBO/New Delhi and thereby

transferred an amount of Rs.50,00,000/- to the account of Ms.Jagdamba

Sharma instead of actual beneficiary. Learned Spl.P.P. has further

submitted that the accused persons have thus committed offences

punishable under Section 120-B read with Sections 430, 467, 468 & 471

of Indian Penal Code and Section 66 read with Sectoin 43(a) & (i) of

Information Technology Act, 2000 and substantive offences under

Section 420, 467 & 468 of IPC and Section 66 read with Section 43(a) &

(i) of Information Technology Act, 2000. It has further been submitted

on behalf of CBI that the accused has purchased properties having the

value of Rs.1,33,00,000/- in his name.

8. I have heard rival contentions in detail. Apparently, the accused is

behind the bar since 28th November, 2014 whereas other five accused

namely Mr.Gaurav Bansal, Mr.Gaurav Aggarwal, Mr.Ashutosh Singhal,

Mr.Ashok [email protected] & Raj Varshney having the alleged part of the

conspiracy, are on bail. The parity claimed by the petitioner may be

justified but the fact which remains is that the allegation of having

purchased the properties for a sum of Rs.1,33,00,000/-.

9. Furthermore, the wife of the petitioner namely Ms.Poonam Gupta

who is aged 29 years, was suffering from dengue at the relevant time and

in support of the same, the medical certificate of Ms.Poonam Gupta has

been placed on record.

10. This Court is of the considered opinion that the main person in the

present case was Mr.Jaideep Rastogi, who allegedly was on duty at the

relevant point of time. As per the chargesheet filed on record, during

investigation it was revealed that subsequent to the conspiracy, accused

Gaurav Bansal, Gaurav Aggarwal, Ashutosh Singhal, Ashok

[email protected] and Raj Varshney with the object of cheating the Bank,

made accused Navin Chandra Mehta to enter into the conspiracy and

collected the account detail of M/s Bhavana Exports, Mumbai from

proprietor Navin Chandra Mehta and handed over the same to the

petitioner herein and Jaideep Rastogi. The chargesheet was filed without

arresting Gaurav Bansal, Gaurav Aggarwal, Ashok [email protected] and

they have all been admitted to bail. Moreover, the main beneficiary of

M/s Bhavana Exports, Mumbai in whose account the cheque of

Rs.50,00,000/- is alleged to have been transferred, has not been arrested

and presently he is on Court bail. Considering the said facts, this Court is

of the opinion that as per the chargesheet, M/s Bhavana Exports and

Mr.Jaideep Rastogi are the two main accused/persons in the present case.

Considering the ground of parity, this Court does not find any reason to

deny bail to the petitioner herein as he is only one of the alleged

conspirator and not the main accused.

11. The High Court of Allahabad in the case of Nanha S/o Nabhan

Kha v. State of U.P. 1993 Cri L.J. 938 observed as under:-

"16. Thus the word 'parity' connotes a state when a person is placed on the same footing as the other person. We have to examine as to how far this alleged principle of parity can be invoked in the matter of bail.

22. From the cases discussed above, we find that parity alone had not been considered as a ground for release on bail. A Full Bench of this Court as well as the Supreme Court had refused to release an applicant on bail simply because the other co-accused had been released on bail. In the cases of Captain Jagjit Singh and Sunder Lal, the Supreme Court and High Court examined the case of each applicant on its own footing, even though co-accused had been released on bail.

24. My answer to the points referred to us is that parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail applications of the co-accused whose bail application had been earlier rejected are allowed and co-accused is released on bail. Even then the court has to satisfy itself that, on consideration of more materials placed, further

developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the ' applicant on bail. If on examination of a given case, it transpires that the case of the applicant before the court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should be also released on bail.

45. In a very recent case of Har Dayal Singh v. State of Punjab, reported in 1992 (4) JT(SC) 353: (AIR 1992 SC 1871) the Hon'ble Supreme Court has held that when the High Court had acquitted four accused giving reasons to discard testimony of certain witnesses the parity of reasoning should have been extended to the fifth accused also. The Supreme Court, therefore, allowed the appeal and acquitted the fifth accused as well.

53. There are large number of cases of this Court in which the question of parity in the matters of bail has been considered earlier and the weight of judicial authority is in favour of the principle of parity being followed. In the case of Hadi v. State, 1986 Allahabad Criminal Cases 390 Hon'ble Parmeshwari Dayal, J. bailed out the accused on the ground that co-accused had been bailed out earlier. In another case of Sanwal Das Gupta v. State of U.P., 1986 Allahabad Criminal Cases 79, D.N. Jha, J. observed that where bail was granted to a co-accused then even the Magistrate can admit co-accused to maintain parity. In the case of Ram Roop v. State of U.P. 1987 Criminal Rulings 30, this Court observed that a co-accused having similar role having been granted

bail another co-accused should also be granted bail. In the case of Ali Hussain v. State of U.P., 1990 U.P. Criminal Rulings 93, Hon'ble S.K. Dhaon, J. placed reliance on the Supreme Court's case of Kallu (supra) and granted bail on the ground of parity. In a unreported decision of this Court in Criminal Misc. Bail Application No. 1360 of 1987 Rai Munna v. State of U.P. Hon'ble G.P. Mathur, J. granted bail on the ground of parity though the Hon'ble Judge clearly observed that he was still of the opinion that the applicant was not entitled to bail on merits, but, however, as his case was not distinguishable from the case of co-accused the bail was granted on the ground of parity. In his judgment in Sobha Ram's case (supra) Hon'ble V.N. Mehrotra, J. has considered some more unreported decisions of this Court in which bail has been granted on the ground of parity. I respectfully agree with the view of Hon'ble V.N. Mehrotra, J."

12. Similarly, in Ajay Tayal v. State (NCT of Delhi) 2016 (1) JCC

184, co-accused was admitted on bail on the principle of parity.

13. It is settled law that the grant of parity is one of the cogent reasons

for grant of bail. In view of the judgments mentioned above; period of

detention of more than one year undergone by the petitioner; grant of bail

to Bhavana Exports; attribution of main allegations to Mr.Jaideep

Rastogi; illness of wife of the petitioner at the relevant time; ground of

parity with the other co-accused except Mr.Jaideep Rastogi and no

likelihood of conclusion of trial immediately, the same culminates into

entitlement of grant of bail to the petitioner. Thus, considering the facts

and circumstances as discussed above, this Court is of the considered

opinion that it would be just and fair if the petitioner/accused is enlarged