Himachal Pradesh High Court

Bhupinder Kumar Sharma vs Cbi on 7 November, 2024

Author: Jyotsna Rewal Dua

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

CRMP No.2789 of 2024 in CRMP(M) No.2820 of 2022 Date of decision: 07.11.2024

Bhupinder Kumar Sharma. ...Petitioner.

                                Versus
CBI.                                                               ...Respondent.

Coram:

Ms. Justice Jyotsna Rewal Dua, Judge. Whether approved for reporting?


For the petitioner              :       Mr. R.K. Bawa, Senior Advocate
                                        with   Mr.   Rajat    Awasthy,
                                        Advocate.
For the respondents :                   Mr. Janesh Mahajan, Standing
                                        Counsel.
Jyotsna Rewal Dua, Judge

This application under Section 528 of Bhartiya

Nagarik Suraksha Sanhita, 2023, has been moved by the

applicant for modification of order dated 13.01.2023 and for

release of his passport.

2(i). Upon transfer of FIR No.0133, dated 16.11.2018,

registered at Police Station Shimla (East), Case No.

RC0962019A0002 was registered on 7.5.2019 at C.B.I. Anti

Corruption Bureau Branch, Shimla. The FIR was registered

under Sections 409, 419, 465, 466 and 471 of the Indian

Penal Code. Subsequently, Sections 120B IPC and 13(1)(c)(d)

Whether reporters of Local Papers may be allowed to see the judgment? Yes

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

1988 were also added in the FIR.

2(ii) The FIR alleged complicity of the several

individuals working in the State Education Department,

Banks and Educational Institutions in misappropriating Post

Matric Scholarships.

Petitioner/applicant is one of the co-accused

persons in above FIR. As per the allegations of the

respondent, he is Chairman of Dev Bhumi Educational Trust

and is involved in grafting of huge amount of money from

Directorate of Higher Education, Himachal Pradesh, Shimla,

under Post Matric Scholarship Scheme w.e.f. years 2013-

2014 to 2016-2017. The amount was statedly meant for the

poor students of SC/ST/OBC categories. The amount was

released to the petitioner/applicant on account of his

producing forged and fabricated documents of the students,

who had never taken admission in his institute.

2(iii) CRMPM No.2820 of 2022 was moved by the

petitioner/applicant under Section 438 of Criminal

Procedure Code. The petition was allowed on 13.01.2023

subject to following conditions:-

"(i). Petitioner shall cooperate with the investigation, shall join the investigation and make himself available for interrogation as and when called by the Investigating Agency in accordance with law.

(ii). Petitioner shall surrender his passport to the Trial Court, if not surrendered already.

He shall not leave India without prior permission of the Trial Court. Petitioner shall intimate the investigating agency about the place, where he shall reside during the investigations and the trial. Any change in his place of residence shall be immediately notified by him to the investigating agency.

(iii) Petitioner shall furnish a cell number to the investigating officer on which he can be contacted at any time. He shall also ensure that the number remains active and switched on at all times. He shall submit details of his Aadhar Card and other proofs of identity with the investigating agency.

(iv). Petitioner shall not tamper with the prosecution evidence or hamper the investigation in any manner whatsoever.

(v). Petitioner shall not make any inducement, threat or promise directly or indirectly to the investigating officer, to the witnesses or to any other person acquainted with the facts of the case to dissuade him from disclosing such facts to the Courts or any Police Officer. Petitioner shall not maintain any direct or indirect contact with officials of bank/education department/private educational institutions concerned with the case. Petitioner shall not deal with any record relevant to the case. He shall not prejudice the

proceedings in the matter.

(vi). Petitioner shall attend trial on each and every hearing unless exempted by the Court, in accordance with law.

Any breach, violation or non-compliance of the above conditions will be viewed seriously and will give right to the investigating agency to seek cancellation of bail. Any unwarranted conduct or action of the petitioner necessitating recall of bail be brought to the notice of the Court. In case of any genuine difficulty being faced due to any of the above conditions, it shall be open to the petitioner/respondent to move an application seeking modification thereof either before this Court or after cognizance of the matter before the learned Trial Court as the case may be. Learned Trial Court may impose any other condition considered appropriate as and when necessary."

2(iv) On 05.08.2023, petitioner/applicant moved

learned Trial Court seeking release of his passport and for

grant of permission to go to Canada. Learned Trial Court vide

order dated 12.09.2023 dismissed the application on two

counts: (i) Challan had not been filed in the Trial Court in

the case, therefore, in view of the conditions imposed in the

order dated 13.01.2023, the application for release of

passport was not maintainable before the learned Trial Court

at that stage; and (ii) Even on merits, learned Trial Court

held that petitioner/applicant could not justify necessity of

going to Canada.

2(v). In the aforesaid circumstances, the petitioner

moved CRMP No.3873 of 2023 seeking release of his

passport and for grant of permission to go to Canada for

business purposes for eight weeks. The reasons pleaded

there were noticed in the judgment dated 29.12.2023 passed

in CRMP No.3873 of 2023 as under:-

"3(i) Petitioner/applicant seeks to travel to Canada for eight weeks. The reasons pleaded and canvassed by his learned Counsel are that: (i) Petitioner/applicant is President of a Business Corporation registered by the name of M.B. Share Corporation, that deals in wholesale bulk delivery of fuel in Canada. Petitioner's presence is required in Canada for his signatures on important bank documents; (ii) Petitioner has purchased property for extension of his business in Canada and for completing the long pending deal, his presence is now necessary in Canada.

3(ii) It has been submitted for the petitioner that he is the President and one of the Directors in entity 204 Fuels Inc. registered at No. 7194375. Entity type is 'Business Corporation'. Entity sub-type is 'M.B. Share Corporation'. The other Directors of the entity are wife and two children of petitioner/applicant.

Placing reliance upon Annexure A-1, dated 7.9.2023, it has been submitted for the

petitioner that 204 Fuels Inc. had entered into process for purchasing '690 Nairn Avenue'. For concluding the transaction, presence of all the Directors, including the petitioner is mandatory as signatures of all the Directors are necessary on the documents.. Attention was also invited to legal notice dated 3.12.2023 (Annexure R-1), appended by the petitioner alongwith the rejoinder to emphasize that on behalf of 204 Fuels Inc., advance deposit of $100,000/- (One Hundred Thousand) had already been paid to the vendors and in terms of Annexure R-1, at the request of petitioner/applicant, time to close the deal was extendedlication that he was ready to furnish bank guarantee to the satisfaction of the Court and would abide by any condition that may be imposed by the Court in case of allowing his prayer. During the hearing of the case, on 26.12.2023, learned counsel for the petitioner/applicant submitted that the petitioner was ready and willing to furnish bank guarantee of Rs.1 Crore to show his bonafides in support of petitioner's prayer for release of his passport and for permission to travel to Canada for eight weeks. till 12.12.2023 on payment of late closing fee of $15,000/- (Fifteen Thousand). The said communication statedly issued from the lawyers (legal notice) also records that in case the Directors of 204 Fuels Inc. do not remain present for signing the documents for purchase of the property, the deposit of $100,000/- (One Hundred Thousand) will be forfeited. Learned counsel for the petitioner/applicant also pressed into service email of the petitioner dated 9.12.2023 (Annexure R-2), in response to legal notice dated 3.12.2023, requesting therein

some more time to close the deal. Learned Counsel for the petitioner/applicant submitted that the time for completing the transaction has now been extended till 12.1.2024.

3(iii). Petitioner/applicant has inter-alia pleaded in the instant application that he was ready to furnish bank guarantee to the satisfaction of the Court and would abide by any condition that may be imposed by the Court in case of allowing his prayer. During the hearing of the case, on 26.12.2023, learned counsel for the petitioner/applicant submitted that the petitioner was ready and willing to furnish bank guarantee of Rs.1 Crore to show his bonafides in support of petitioner's prayer for release of his passport and for permission to travel to Canada for eight weeks."

2(vi) The respondents had opposed the CRMP No.3873

of 2023 with following submissions as noticed in the

judgment:-

"3(iv). For the respondents, contention raised by learned Special Public Prosecutor is that petitioner/applicant is an influential person; He is facing allegations in the FIR of duping the Government worth crores of rupees; In case, petitioner/applicant is permitted to visit Canada, he might not return to India. It was also submitted that the property purported to be purchased by the petitioner can be purchased by the other Directors of the Business Corporation and petitioner's presence in Canada was not indispensable."

2(vii). After considering the facts of the case and

the law on the subject including Parvez Noordin

Lokhandwalla vs. State of Maharashtra & Another 1, the

application was allowed, inter alia, with following

observations:-

"4(iii). The petitioner/applicant in the instant case has placed on record documents to show that he is one of the Directors of 204 Fuels Inc., a Business Corporation registered at No. 7194375 as 'M.B. Share Corporation' that deals with wholesale bulk delivery of fuel in Canada. Respondent has not disputed the factum of petitioner being President and one of the Directors in 204 Fuels Inc. ('M.B. Share Corporation'). The documents placed on record by the petitioner/applicant prima facie lead to an inference that 204 Fuels Inc. has entered into transaction for purchasing '690 Nairn Avenue' in Canada and for purchase of property, presence of all the Directors is being insisted upon by the vendor. It has further been urged that for purchasing the aforesaid property $100,000/- has already been paid by the Corporation as advance deposit. The date for closing the purchase transaction has been extended from time to time and now enlarged up to 12.01.2024. That the deposit would be forfeited by the vendor on purchaser's failure to complete the transaction. Respondents have not disputed the above facts. 4(iv). The petitioner/applicant has also placed on record his travel history between India

(2020) 10 SCC 77

and Canada. The travel history, as indicated in petitioner's affidavit dated 20.12.2023, is as under:

Date of Departure from India Date of Arrival to India 4th October, 2020 3rd January, 2021 8th May, 2022 9th June, 2022 20th July, 2022 1st August, 2022 18th October, 2022 5th November, 2022

During hearing of the case on 26.12.2023, learned Special Public Prosecutor for the respondent fairly conceded that the travel history indicated by the petitioner was correct.

Petitioner has also placed on record his net worth statement dated 21.07.2023 (Annexure A-2), in terms of which, petitioner's net worth is Rs.20,44,35,000/- (Rupees twenty crores, forty- four lakhs, thirty-five thousand only). This has also not been disputed by the respondent.

During the course of hearing on 26.12.2023, learned counsel for the petitioner/applicant had submitted that petitioner/applicant is ready to furnish bank guarantee for Rs.1 Crore (rupees one crore only) to the satisfaction of the learned Trial Court in order to show his bonafides in support of the application for release of the passport and for permission to travel to Canada."

2(viii). Taking note of the facts & circumstances and also

the statement made by learned counsel for the applicant that

applicant was ready to furnish Bank Guarantee for Rs.1

Crore to the satisfaction of the learned Trial Court in order to

show his bona fide, in support of his application for release

of passport and permission to travel to Canada, the prayer of

the applicant was allowed with following operative para, inter

alia, imposing specific conditions upon the applicant:-

"5. As per learned counsel for the parties, challan in the case has been filed before the learned Trial Court on 25.10.2023. It is yet under consideration. Petitioner is one of the several coaccused persons. The trial of the case is going to be a long process. Petitioner/applicant has been able to point out his need to visit Canada in connection with his business. He has placed on record his travel history between India and Canada. He has also placed on record his net worth statement. Petitioner/applicant has also shown his bonafides in seeking permission for travelling to Canada for a period of eight weeks.

In view of the discussion in para - 4 above and also keeping in view all relevant factors, in my considered view the petitioner/applicant has made out a case in his favour. Accordingly, this application is allowed, however with due regard to the apprehension expressed by the respondent, it is ordered that: (i) Passport of the petitioner/applicant shall be released to him on his furnishing bank guarantee of an amount of Rs.1 Crore (Rupees one crore only) as undertaken by him, before and to the satisfaction of learned Trial Court, within two weeks; (ii) Petitioner/applicant shall file an undertaking before the learned Trial Court that he shall appear before the Court as and when

required. Petitioner/applicant shall also give detail of his address/phone numbers abroad;

(iii) Petitioner/applicant is permitted to travel to Canada for a period of eight weeks.

Petitioner shall come back to India within eight weeks; (iv) Petitioner/applicant shall surrender his passport before the learned Trial Court on expiry of eight weeks period from the date of release of passport; and (v) In case of violation of above terms and conditions, the bank guarantee furnished by the petitioner/applicant shall stand forfeited.

It goes without saying that petitioner/applicant shall abide by all the other conditions imposed in the order dated 13.01.2023 passed in Cr.MP(M) No. 2820 of 2023.

Application stands disposed of in the aforesaid terms."

3. Learned Senior Counsel for the applicant submits

that the applicant could not take the benefit of order dated

29.12.2023 passed in CRMP No.3873 of 2023 as he could

not furnish Bank Guarantee for an amount of Rs.1 Crore

which had been undertaken by him in view of the release of

passport and permission for travel to Canada. It was also

urged that in the interregnum, the petitioner came to know

about filing of Supplementary Challan by the respondents

under Section 173(8) Cr.P.C. before the Competent Court,

where the amount involved is shown as Rs.23,81,570/-.

Learned counsel for the applicant submitted that

petitioner/applicant is ready to furnish the Bank Guarantee

for an amount of Rs.30 lakhs to the satisfaction of learned

Trial Court within a period of two weeks in order to show his

bona fide in support of his prayer for release of his passport

and for permission to travel to Canada.

4. While deciding CRMP No.3873 of 2023 on

29.12.2023, the reasons/justification offered by the

applicant in the present application and the opposition

thereof by the non-applicant/respondents have already been

considered and adjudicated upon. The applicant in the

aforesaid application decided on 29.12.2023 was though

permitted to travel to Canada subject to several conditions

(reproduced above), one of them being that he would furnish

Bank Guarantee for an amount of Rs.1 Crore. It appears that

the applicant was not in a position to furnish Bank

Guarantee for the aforesaid amount. Hence, he could not

travel to Canada despite the order having been passed in his

favour.

Taking note of the reasons and justification,

which are already part of judgment dated 29.12.2023, the

consideration thereof in the said judgment and the

Supplementary Challan filed by the

non-applicant/respondents in the criminal case registered

against the petitioner in the Competent Court, wherein the

amount involved is stated to be Rs.23,81,570/- coupled with

the undertaking now furnished by the petitioner, I am

inclined to allow this application subject to following

conditions:-

(i) Passport of the petitioner/applicant shall be released to him on his furnishing bank guarantee of an amount of Rupees Thirty Lakhs only as undertaken by him, before and to the satisfaction of learned Trial Court, within two weeks;

(ii) Petitioner/applicant shall file an undertaking before the learned Trial Court that he shall appear before the Court as and when required. Petitioner/applicant shall also give detail of his address/phone numbers abroad;