Madras High Court
N.Umashankar @ N.M.Umashankar vs The Assistant Director on 10 March, 2021
Crl.O.P.Nos.3381, 3383 and 3385 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.03.2021
CORAM
THE HONOURABLE MR. JUSTICE M.SATHYANARAYANAN
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
Crl.O.P.Nos.3381, 3383 and 3385 of 2021
N.Umashankar @ N.M.Umashankar ... Petitioner in Crl.O.P.No.3381/2021
1.V.Janarthanan
2.N.Arunkumar ... Petitioner in Crl.O.P.No.3383/2021
Saravanakumar ...Petitioner in Crl.O.P.No.3385/2021
vs.
The Assistant Director,
Directorate of Enforcement,
Government of India,
Chennai Zone-2,
3rd Floor, 3rd Block,
Shastri Bhawan, Haddows Road,
Chennai 600 006. ... Respondent in all petitions
COMMON PRAYER: Criminal Original Petition filed under Section 482 of
the Code of Criminal Procedure, to enlarge the petitioners on bail pertaining to
ECIR No.ECIR/MDSZO/04/2018 pending investigation on the file of the
respondent.
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Crl.O.P.Nos.3381, 3383 and 3385 of 2021
For Petitioner in Crl.O.P.No.3381/2021 : Mr.M.Rakhi
For Petitioner in Crl.O.P.No.3383/2021 : Mr.R.Jayaprakash
For Petitioner in Crl.O.P.No.3385 /2021 : Mr.B.Siddeswaran
For Respondents in all Crl.O.Ps. : Mr.Rajinish Pathiyil
Special Public Prosecutor
COMMON ORDER
The petitioners, namely, N.Umashankar, N.Arunkumar, Janarthanan,
Saravanakumar, are arrayed as accused nos.2, 3, 4 and 9, respectively and ECIR
No.ECIR/MDSZO/04/2018, on the file of the Court of Principal Sessions
Judge, City Civil Court, Chennai. This is the second petition for bail and the
earlier petition was dismissed on 02.02.2021.
2. The learned counsel appearing for the petitioners would point out that
at the time of dismissal of the earlier application for bail in Crl.O.P.Nos.673,
675 and 677 of 2021 on 02.02.2021, the investigation was pending. Now the
respondent has filed a complaint, before the Court of Principal Sessions Judge,
City Civil Court at Chennai and it is in the stage of check and call and
therefore, it amounts to change of circumstances. It is the further submission of
the learned counsel appearing for the petitioners that the Economic Offences
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Wing of Tamil Nadu Police has registered a case in Cr.No.6 of 2016 on
02.06.2016, for the alleged commission of offences under Sections 406, 420,
120B of IPC read with Section 5 of the Tamil Nadu Protection of Interest of
Depositors (in Financial Establishment) Act, 1997 (TNPID Act) and they were
enlarged on bail in the event of arrest and nearly after two years and odd, the
bail granted to them came to be cancelled and during their incarceration, the
Committee of Administrator appointed by the Hon'ble First Bench of this Court
had seized and got over almost all documents pertain to the properties and some
of the properties are also brought for sale and this Court is also taking a call as
to the confirmation or otherwise of the sale of the said properties.
3. It is also contended by the learned counsel appearing for the
petitioners that since the investigation done by the respondent has been
completed and complaint has also been filed, which is yet to be taken on file, as
it is in the stage of check and call, the question of hampering investigation and
tampering the witnesses would not arise at all. It is also pointed out that the
passports of the petitioners are also ordered to be surrendered, in connection
with the case in Cr.No.6 of 2016, registered by the Economic Offences Wing of
Tamil Nadu Police and as such, the question of fleeing from the hands of justice
would not arise. It is also the submission of the learned counsel appearing for
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Crl.O.P.Nos.3381, 3383 and 3385 of 2021
the petitioners that the petitioners, in the event of enlarging of bail, would fully
cooperate with the respondent / Investigating Agency and it is also open to the
Court to impose any conditions in this regard.
4. The learned counsel appearing for the petitioners in support of his
submission has also placed reliance upon the decision rendered by the Hon'ble
Supreme Court of India reported in 2010 (13) SCC 791 (P.Chidambaram Vs.
Directorate of Enforcement).
5. Per contra, Mr.Rajinis Pathiyil, learned Special Public Prosecutor
appearing for the respondent / Enforcement Directorate would strongly oppose
these petitions, by drawing the attention of this Court to the common counter
affidavit and would submit that in pursuant to the order passed by this Court,
the Enforcement Directorate came to be impleaded as a party in the pending
Writ Petition and the investigation sofar revealed that various Companies were
started, in which accused had primary role and indulged in collective instalment
schemes and collected huge money from the customers on promise of lands or
money with higher returns and thereafter defrauded them by diverting the funds
for their own benefits. It is also brought to the knowledge of this Court by the
learned Special Public Prosecutor that despite the petitioners were enlarged on
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Crl.O.P.Nos.3381, 3383 and 3385 of 2021
Anticipatory bail in Cr.No.6 of 2016 on the file of the Economic Offence Wing,
they did not cooperate with the said Agency for nearly two years and odd and
ultimately an order granting them bail, in the event of arrest, were cancelled and
they were incarcerated and then only the Committee of Administrator was able
to lay off their hand for documents and even now, some of the original
documents pertain to valuable properties are yet to be handed over to them and
also pointed out that in the event of their enlargement on bail, the petitioner
would definitely hamper the investigation and tamper the witnesses and as such
they are not entitled for bail.
6. The learned Special Public Prosecutor has also placed reliance upon
the decision rendered by the Hon'ble Supreme Court of India reported in 2013
(7) SCC 439 (Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation
and Arnab Manoranjan Goswami Vs. The State of Maharashtra and others
reported in (MANU/SC/0902/2020) and would pray for dismissal of this
petition, especially in the light of the fact that further investigation is also
underway.
7. This Court paid it's best attention to the rival submissions and also
perused the materials placed before it.
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8. The Hon'ble Supreme Court of India in the decision reported in 2020
(13) SCC 791 (cited supra), has considered the scope of bail in economic
offences involving corruption and abuse of high public office and in paragraph
nos.18 to 23 has observed that ''basic jurisprudence relating to bail is that bail
is the rule and refusal is the exception, etc., Though gravity of offence is an
important factor and economic offences as in present case are considered
grave, consideration for grant of bail would depend upon facts of each case
and taking into consideration all the facts and circumstances, has enlarged
P.Chidambaram, on bail, subject to certain conditions'. and in Y.S.Jagan
Mohan Reddy's case (2013 3 SCC 439) [cited supra], it has been observed in
paragraph no.15 that economic offences having deep rooted conspiracies and
involving huge loss of public funds needs to be viewed seriously and
considered as grave offences affecting the economy of the country as a whole
and thereby posing serious threat to the financial health of the country and in
paragraph no.16, it is observed that while granting bail, the Court has to keep
in mind the nature of accusations,n the nature of evidence in support thereof,
the severity of the punishment which conviction will entail, the character of the
accused, circumstances which are peculiar to the accused, reasonable
possibility of securing the presence of the accused at the trial, reasonable
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apprehension of the witnessess being tampered with, the larger interest of the
public/State and other similar considerations. The guideline for granting bail
have also been considered and reiterated in Arnab Manoranjan Goswami case
(cited supra).
9. Granting of bail is a discretional relief and it is a well settled position
of law that bail is the rule and jail is the exception. Though the respective
learned counsels appearing for the parties has placed reliance upon the above
said judgments, in the considered opinion of this Court, there cannot be any
precedent in the matter of granting bail and the consideration to grant or refuse
to grant bail, have to be decided on case to case basis and depends upon the
facts and circumstances of each case.
10. No doubt in the counter affidavit, the respondent / complainant took a
stand as to the attitude of the accused in not cooperating with the Investigating
Agency, Economic Offences Wing, Government Of Tamil Nadu, their
cancellation of bail, in the event of arrest and the amount and number of
depositors involved and took a categorical stand that the petitioners have
committed serious offence and the looting of money has also been done
scientifically and as such they are not entitled to enlarge on bail, despite the fact
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that the respondent has filed the complaint on the file of the Court of Principal
Sessions Judge, City Civil Court, Chennai.
11. It is also brought to the knowledge of this Court by the respondent in
the counter affidavit that the documents collected would prima facie disclose
that all the accused have committed acts of money laundering under Section 3
of the Prevention of Money Laundering Act and punishable under Section 4 of
the said Act and the petitioners, during police custody also, did not cooperate
with them and despite the complaint has been filed, further investigation is also
in progress. The complaint filed, has been taken on file and as the documents
are voluminous in nature, it is in the stage of check and call and the petitioners
herein were arrested on 09.12.2020 and remanded to judicial custody on
10.12.2020 and they are in incarceration for nearly 91 days. As pointed out in
the counter affidavit, it is always open to the respondent / Investigating Agency
to proceed with further investigation and depending upon the result of the
same, whatever remedy available to them under law would follow, as a natural
consequence. The passports of the petitioners have also been surrendered in
connection with the case in Cr.No.6 of 2016, registered by the Economic
Offences Wing of Tamil Nadu Police and as such their likelihood of
abscondence by leaving the Country may be a distant possibility.
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12. This Court has also taken note of the submissions made by the
learned counsel appearing for the petitioners that in the event of enlargement on
bail, they will fully cooperate with the respondent / Investigating Agency with
regard to further investigation being carried out and the said submission on
instructions is placed on record.
13. In the result, these Criminal Original Petitions are ordered, subject to
the following conditions:
(1). The petitioner shall execute a bond for a sum of
Rs.1,00,000/- (Rupees One Lakh only) with two sureties each for a
like sum to the satisfaction of the Court of Principal City Civil and
Sessions Judge, City Civil Court, Chennai;
(2). The petitioner on execution of the said bonds, shall be
enlarged on bail ;
(3). The petitioners on their enlargement on bail, shall report
before the respondent / Investigating Agency, at 11:00 am for a
period of four weeks from the date of their enlargement on bail, and
thereafter, shall report before the respondent, once in fortnight, until
further orders ;
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(4). If the petitioners commit any breach of conditions or
indulging in hampering of further investigation and tampering the
witnesses, it is always open to the respondent / Investigating
Agency to move this Court for cancellation of bail ;
(5). On breach of any of the aforesaid conditions, the
Principal City Civil and Sessions Judge, City Civil Court, Chennai /
Trial Court is also entitled to take appropriate action against the
petitioner in accordance with law, as laid down by the Hon'ble
Supreme Court in P.K.Shaji vs. State of Kerala [(2005)AIR SCW
5560].
[M.S.N.,J] [A.A.N.,J.]
10.03.2021
sk
Index : Yes/No
Internet : Yes/No
Speaking Order/Non-Speaking Order
sk
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Crl.O.P.Nos.3381, 3383 and 3385 of 2021
To
1.The Assistant Director,
Directorate of Enforcement,
Government of India,
Chennai Zone-2,
3rd Floor, 3rd Block,
Shastri Bhawan, Haddows Road,
Chennai 600 006.
2. The Public Prosecutor,
High Court of Madras,
Madras.
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Crl.O.P.Nos.3381, 3383 and 3385 of 2021
M.SATHYANARAYANAN, J.,
AND
A.A.NAKKIRAN, J.,
sk
Crl.O.P.Nos.3381, 3383 and 3385 of 2021
10.03.2021
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