Delhi High Court

Parvesh Jain vs Cbi (State) on 27 February, 2017

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
                                   Date of Decision: February 27th, 2017
+   BAIL APPLN. 197/2017
    PARVESH JAIN                                           ..... Petitioner
                           Through       Mr.Sidharth Luthra, Sr. Adv. with
                                         Mr.Ajay     Jain,     Adv.      with
                                         Mr.Pranay Jain, Adv. & Mr.Aastha
                                         Chopra, Adv.
                  versus

    CBI (STATE)                                            ..... Respondent
                           Through       Mr.Sanjeev Bhandari, Spl. P.P. for
                                         CBI with Mr.Girraj, Investigating
                                         Officer.


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

                                   ORDER

P.S. TEJI, J

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

of the Code of Criminal Procedure by the petitioner for the grant of

regular bail in FIR No.RC 04(A)/2015/CBI/AC-III/ND, under

Sections 120B read with 420/467/468/471 IPC and Sections 13(2)

read with 13(1)(d) of the Prevention of Corruption Act.

2. The facts, as emerging from the record, are that the FIR of

the instant case was registered by the CBI on 04.11.2015 on the

basis of a written complaint made by Mr.Rajender Singh, Dy.

General Manager of IDBI Bank Limited against the accused

Parvesh Jain, proprietor of M/s Jain Tex & Fab, Smt. Ruchi Jain,

wife of Parvesh Jain and unknown persons for causing a loss of

Rs.10 crores to IDBI Bank Limited by way of criminal conspiracy,

impersonation, cheating, forgery and criminal misconduct by

public servants. It was alleged that accused Parvesh Jain had

applied to IDBI Bank for take over and enhancement of sanctioned

cash credit limit of Rs.3.25 crores by State Bank of India in

August, 2008. Cash credit limit of Rs.4.30 crores was sanctioned

to him by IDBI Bank on 20.10.2008. The said limit was renewed

and enhanced to Rs.6.30 crores on 04.07.2009 and it was further

enhanced to Rs.10 crores on 24.05.2010. It was further alleged

that four properties were mortgaged as collateral security by

accused Parvesh Jain, his wife Ruchi Jain being third party

guarantor and Ujagar Singh Gill. The loan account of accused

Parvesh Jain was turned into a Non-Performing Asset (NPA) on

29.07.2011. It was found that on the property mortgaged by

Ujagar Singh Gill, a multi-storey building was constructed. It was

alleged that Ujagar Singh Gill had expired in 1993. Property

bearing No.F-54, Jagatpuri, Delhi in the name of accused Parvesh

Jain had another claimant, namely, Ramesh Tayal. It was further

alleged that accused Parvesh Jain and Ruchi Jain presented an

impersonator as Ujagar Singh Gill.

3. After the completion of charge sheet, CBI filed the charge

sheet against accused Parvesh Jain, Ruchi Jain and 12 officers of

IDBI Bank Limited.

4. Arguments advanced by the learned Senior Counsel for the

petitioner/accused as well as learned Special Public Prosecutor for

the CBI were heard.

5. Argument advanced by the learned Senior Counsel for the

petitioner is that the petitioner is in custody since 14.09.2016 and

has spent about five months in custody. It is further submitted that

the Will claimed to be executed by Ujagar Singh Gill was forged

and the property developer had constructed flats on the plot no.13,

Shalimar Garden Extension-I which was alleged to be mortgaged

by Ujagar Singh Gill in favour of the Bank. It has also come on

record that the death certificate relied upon by the CBI was forged

and fabricated. It was further argued that the charge sheet was

filed on 14.12.2016 and the petitioner is entitled to statutory bail

under Section 167(2) Cr.P.C. It is further submitted that in the

present case, there are allegations of criminal misconduct by public

servants for which Section 13 of the P.C. Act has been added, but

the sanction for prosecution of public servants has not been taken

by the CBI which debars the Court into taking cognizance as

provided under Section 19 of the P.C. Act.

6. Per contra, learned Special Public Prosecutor for the CBI has

vehemently opposed the grant of bail to the petitioner/accused on

the ground that there are specific allegations against him and his

wife that they mortgaged the properties on the basis of forged and

fabricated documents. It is further submitted that one impersonator

was introduced by the accused as Ujagar Singh Gill who allegedly

mortgaged his property with the bank and subsequently it was

found that flats were already constructed on it. It is further

submitted that the accused persons committed criminal conspiracy,

cheating, forgery and impersonation and grant of bail to the

accused may result in tampering of the evidence.

7. As per the allegations levelled and the documents placed on

record, accused Parvesh Jain disposed of a mortgaged property

situated at 1542-A, Gandhi Nagar, Delhi to a third person. The net

worth certificate submitted by the accused to IDBI Bank were

found to be not genuine. It is further alleged that accused and his

wife presented an impersonator as Ujagar Singh Gill with forged

documents. Property situated at F-54, Jagat Puri, Delhi mortgaged

by the accused to IDBI Bank was fond to be on the basis of fake

documents. During investigation, it was revealed that accused got

issued another PAN on the basis of different date of birth, address,

alteration in his name and father's name. It has also been revealed

that Ujagar Singh Gill who was the third party guarantor had

already expired who had allegedly mortgaged his property while

availing the enhancement of cash credit limit. The cash credit limit

was enhanced to Rs.10 crores on the basis of forged and fabricated

documents.

8. In view of the above allegations, this Court is of the

considered opinion that the petitioner/accused is not entitled for the

grant of bail on merits of the case.

9. Proviso to Section 167(2) of the Cr.P.C. provides that an

accused has to be released on bail if the investigation is not

completed or no charge sheet is filed after the expiry of statutory

period. The Magistrate has no power to remand an accused for

further custody beyond the period prescribed in Section 167(2) of

the Cr.P.C. To be released on bail because of the default of filing

of the charge sheet within the statutory period is a valuable right of

the accused and the said right can be exercised only on furnishing

of bail as per proviso to Section 167(2) of the Code. The said right

of an accused is an indefeasible right and is enforceable only prior

to the filing of the charge sheet and it does not survive or remain

enforceable on the charge sheet being filed.

10. The contention of the learned Senior Counsel for the

petitioner that the petitioner is entitled to statutory bail as per

Section 167(2) of the Cr.P.C. is not acceptable for the reasons that

the accused is in custody since 14.09.2016 and the charge sheet in

the instant case was filed on 14.12.2016 well within the specified

period of 90 days as provided in Section 167(2) of the Cr.P.C.

11. The next limb of argument of the learned Senior Counsel for

the petitioner is that the matter is not proceeding with as sanction

under Section 19 of the P.C. Act, for the prosecution of accused

persons has not been obtained, that is why the trial court is unable

to take cognizance and frame charge.

12. On the other hand, learned counsel for the CBI has

submitted that applying for the grant of sanction and its accord

takes time as it involves certain procedures. In the present case,

the letter for the grant of sanction against the public servants was

sent to the competent authority on 12.12.2016 and the period

prescribed for the grant of sanction under Section 19 of the P.C.

Act is three months.

13. Section 19 of the P.C. Act, 1988 provides for seeking

previous sanction for launching prosecution against a public

servant. It provides that no court shall take cognizance of an

offence punishable under Sections 7, 10, 11, 13 and 15 of the Act

allegedly committed by a public servant except with the previous

sanction of the competent authority.

14. The Hon'ble Apex Court in the case of Subramanian

Swamy v. Manmohan Singh and another (2012) 3 SCC 64 has

extensively gone through the question of grant of sanction as

provided under Section 19 of the P.C. Act. In this case, it was

observed as under :

"In my view, Parliament should consider the constitutional imperative of Article 14 enshrining the Rule of Law wherein "due process of law" has been read into by introducing a time-limit in Section 19 of the PC Act, 1988 for its working in a reasonable manner. Parliament may, in my opinion, consider the following guidelines:

(a) All proposals for sanction placed before any sanctioning authority empowered to grant sanction for prosecution of a public servant under Section 19 of the PC Act must be decided within a period of three months of the receipt of the proposal by the authority concerned.

(b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in clause (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time-limit.

(c) At the end of the extended period of time- limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge- sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time-limit."

15. As per the guidelines framed in the case of Subramanian

Swamy (supra), the proposal for sanction placed before the

sanctioning authority must be decided within a period of three

months of the receipt of the proposal and if the same is not

possible, an extension of one month may be allowed. In the

present case, as submitted by the learned counsel for CBI, the

proposal for sanction had been sent to the authority concerned on

12.12.2016, meaning thereby the decision on the same was to be

taken by the competent authority by the mid of March or by the

mid of April if the extended period of one month was added.

16. In view of the above discussion, facts and circumstances,

this Court is of the considered opinion that the trial court is