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. 2497/2015
                                             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 0008

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.3987/2015.

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.3,25,18,688/- 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.3,25,18,688/- 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, on 28th April, 2012, the Bank of

Baroda, Pusa Road Branch, Delhi received a cheque bearing no.736965

dated 29th March, 2012 for Rs.3,25,18,688/- in clearing. The said cheque

was payable at all CBS branches of the Bank & was drawn on Syndicate

Bank, Pusa Campus Branch, New Delhi, favouring Pay & Accounts

Officer, CGHS, New Delhi having account maintained with Pusa Road

branch of Bank of Baroda.

8. It has been contended by learned Spl.P.P. that the investigation has

further revealed that accused Bajrang Gupta & Jaideep Rastogi were

employees of M/s Nelito Systems Limited and deployed with the Bank of

Baroda, CBO, Parliament Street, New Delhi, as support staff in

furtherance of a contract.

9. Learned Spl.P.P. further submitted that further investigation

revealed that a conspiracy was hatched in March, 2012 among accused

Bajrang Gupta, Jaideep Rastogi, Gaurav Bansal, Gaurav Aggarwal &

Ashok [email protected] the purpose of which was to arrange a Bank of

Baroda account for defrauding the bank for crores of rupees and making

corresponding unlawful gain to themselves. After that, the accused

Jayanti [email protected] Mistry and accused Navin Chandra Mehta

joined the said conspiracy with the same object.

10. It has further been submitted by learned Spl.P.P. that subsequent to

the conspiracy, accused Gaurav Bansal, Gaurav Aggarwal, Ashok

[email protected] and Jayanti [email protected] Mistry with the object of

cheating the bank, made accused Navin Chandra Mehta, to enter into the

conspiracy, collected the account details of M/s Bhavana Export,

Mumbai from proprietor Navin Chandra Mehta and handed over the same

to accused Bajrang Gupta and Jaideep Rastogi. Further investigation by

CBI further established that accused Bajrang Gupta and Jaideep Rastogi

had forged the crucial text file generated from the server of RBI and

account bearing number 04100200001622 of one M/s Bhavana Exports,

having account in Bank of Baroda, Mumbai branch was mentioned, after

replacing the account number of actual beneficiary i.e. Pay & Account

Officer CGHS, New Delhi. Thereafter, the said forged text file was

processed, in the CBS application, which as per the information available

in the text file, gave credit of Rs.3,25,18,688/- to M/s Bhavana Exports,

instead of actual beneficiary i.e. Pay & Account Officer, CGHS, New

Delhi and that after processing the forged text file in the CBS, the

account number of M/s Bhavana Exports was again replaced with the

account number of actual beneficiary i.e. Pay & Account Officer, CGHS,

New Delhi. 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.

11. I have heard rival contentions in detail and perused the material

submitted. Apparently, the accused is behind the bar since 28th

November, 2014 whereas other five accused namely Mr.Gaurav Bansal,

Mr.Gaurav Aggarwal, Mr.Ashok [email protected], Ms.Jayanti

[email protected] Mistry and Navin Chandra Mehta, having the alleged

part of the conspiracy, are on bail. The parity claimed by the petitioner

may be justified but the fact that remains is the allegation of having

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

12. 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.

13. 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, Ashok [email protected] and Jayanti

[email protected] Mistry 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.3,25,8,688/- 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.

14. 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."

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

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

16. 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