Madras High Court

Kishor Kharat vs Superintendent Of Police on 7 March, 2022

                                                                                   Crl.O.P.No.4319 of 2022

                                     IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         Date : 07.03.2022

                                                             CORAM

                          THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN

                                                     Crl.O.P.No.4319 of 2022

                     Kishor Kharat                                           ... Petitioner/Accused-39

                                                                Vs.

                     Superintendent of Police
                     CBI: BS & FC, Bangalore
                     (Crime No.09 of 2018)                                   ... Respondent/Complainant


                                  This Criminal Original Petition was filed under Section 482 Cr.P.C. to
                     direct the respondent to permit the petitioner to travel to USA by keeping the
                     look-out circular issued against him bearing reference number (not known)
                     in Crime No.9 of 2018 in abeyance for a period of six months from such
                     date as this Hon'ble Court may deem fit and proper in the circumstances of
                     the case.


                                        For Petitioner           :     M/s.Sunder Mohan
                                        For Respondent           :     Mr.K.Srinivasan,
                                                                       Special Public Prosecutor
                                                                             for CBI cases



                     1/11


https://www.mhc.tn.gov.in/judis
                                                                                  Crl.O.P.No.4319 of 2022

                                                            ORDER

This Criminal Original Petition is filed seeking direction to the

respondent to permit the petitioner to travel to USA keeping the look-out

circular issued against him in Crime No.9 of 2018 in abeyance for a period

of six months from such date as this Hon'ble Court may deem fit and proper

in the circumstances of the case.

2. It is submitted by the learned counsel for the petitioner that the

petitioner was a banker for 41 years and held various positions including the

post of Managing Director and CEO of IDBI Bank as well as Indian Bank,

besides serving in foreign banks in abroad. FIR in Crime No.9 of 2018 on

the file of CBI/BS & FC, Bangalore for the alleged offences under Section

120-B read with 409 and 420 IPC was registered by the respondent alleging

violation of banking guidelines in the sanction of loan to a company in 2010.

Petitioner is arrayed as 39th accused. The allegations in First Information

Report are that IDBI bank granted loan to M/s.Win Wind Oyo (WWO) to

the tune of Rs.393,00,00,000/- (Rupees Three hundred and ninety three

crores only) on 04.11.2010 and this company had gone into bankruptcy.

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Being aware of the fact that the said company become NPA, officials of IDBI

bank entered into criminal conspiracy with the Directors of Siva Group of

Companies, holding company of WWO and granted loan to the tune of

Rs.523,00,00,000/- (Rupees Five hundred and twenty three crores only) on

01.07.2013 to M/s.Axcel Sunshine Limited, an associate of Siva Group of

Companies. Funds were illegally transferred to various companies of Siva

Group to settle the dues of those companies. Investigation report of CBI and

the report of IDBI bank neither reveals petitioner's name nor his involvement

in the alleged offence. Petitioner's son is undergoing treatment for severe

'Ulcerative Colitis'. He has been suffering from rectal bleeding and severe

diarrhea for more than three months and bedridden. There is threat of

relapse and getting aggravated to malignancy, which could be life

threatening. Petitioner's son needs help in this hour with his personal care

and therefore, petitioner requests permission to travel to USA for a period of

six months by keeping the look-out notice in abeyance.

3. Respondent objected this petition stating that the allegation, as

per the FIR, is that Credit facilities of Euros 52 million was sanctioned and

https://www.mhc.tn.gov.in/judis Crl.O.P.No.4319 of 2022

disbursed to M/s.Win Wind Oyo during 2010-11 and the said account

became NPA to the extent of Rs.393 Crores in 2013. The senior

management of IDBI bank Ltd., in criminal conspiracy with private persons

and in violation of extant guidelines, instructions and procedures of RBI

extended a further loan of Rs.530 Crores (US$ 83 million) to one M/s.Axcel

Sunshine Limited, another entity of the same group of companies during

2014 and adjusted the NPA and other overdue accounts of the group

companies, thereby causing a wrongful loss of more than Rs.600Crores to

IDBI Bank. It is further alleged that M/s.Win Wind Oyo was sanctioned

EUR 52 million by Infrastructure Corporate Group, IDBI bank, Chennai.

The credit facilities advanced to M/s.Win Wind Oyo became NPA. Accused

senior management officials of IDBI bank entered into criminal conspiracy

with the accused Promoter Directors of Siva Group of Companies, by

abusing their official position in the capacity of public servants facilitated the

latter to procure the loan amounting to US$ 83 million from IDBI bank in

favour of M/s.Axcel Sunshine Limited to use the same to repay other loans

of other associate companies. This was done in flagrant violation of

regulatory guidelines of RBI dated 01.07.2013. Further modifications were

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made on 25.03.2014 to favour M/s.Axcel Sunshine Limited. As per these

modifications, (a) change in interest rate, (b) classification of facility as

Medium Term Loan (MTL), (c) change of Corporate Guarantee stipulation

to “Letter of Comfort” from Siva Industries and Holdings Ltd (SIHL), and

(d) Collateral Securities proposed to cover exposure to M/s.Axcel Sunshine

Limited to be modified and provided as additional security against IDBI's

exposure to any of the Siva Group of Companies. In furtherance of criminal

conspiracy, accused bank officials disbursed US$ 67million to Siva

Industries and Holdings limited (SIHL), Chennai. That was utilised to clear

other dues. Further disbursement aggregating US$ 4.70 million was made

to M/s.Axcel Sunshine Limited to enable them to repay the interest due to

IDBI in order to conceal the enormous risk factors involved in using the loan

amount to clear dues to other associate companies of Siva Groups. Thus,

accused person had caused wrongful loss to the tune of US$

73,250,454.18 as on 31.12.2015 to IDBI bank and corresponding wrongful

gain to themselves. Petitioner was 39th accused and was member of

Executive Committee Meeting held on 28.12.2015 for releasing 4th

disbursement of US$ 1.60 million to M/s.Axcel Sunshine Limited towards

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recovery of interest due from the company, pending creation of collateral

security.

4. Considered the rival submissions and perused the records.

5. It is seen from the averments made in the petition, statement of

objections and submissions of the learned counsel appearing for the parties

that the petitioner is one of the accused, more specifically 39th accused, in a

case where it is alleged that the accused in the case had caused wrongful loss

to the tune of US$ 73,250,454.18 as on 31.12.2015. Petitioner, it is alleged,

as a member of Executive Committee in a meeting held on 28.12.2015 was a

party to the decision made to sanction 4th disbursement of US$ 1.60 million

to M/s.Axcel Sunshine Limited without creating collateral security. Though

there is an allegation made against the petitioner that as a member of the

committee, he was also responsible for the decision taken to release US$

1.60 million to M/s.Axcel Sunshine Limited without creating collateral

security, it is evident from the statement of objections that investigation

carried out so far has not disclosed petitioner's role in the offence alleged

https://www.mhc.tn.gov.in/judis Crl.O.P.No.4319 of 2022

against him. However, as a word of caution, it is also submitted that

investigation in this case is still pending. As of now, it appears that there is

no concrete material collected against the petitioner. Taking these aspects

into consideration and also the submissions of learned counsel for the

petitioner that petitioner's son is not well and suffering from the disease

indicated above, which is supported by medical records, this Court is of the

considered view that the petitioner may be given permission to travel to USA

to be with his son to help him in recuperation.

6. Though it is not concerned in a criminal case, it is pertinent to

refer to the judgment of the Hon'ble Supreme Court in Satish Chandra

Verma Vs. Union of India and others reported in 2019 SCC Online SC

2048, wherein, it is observed that,

“5.The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private life; marriage, family and

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friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right (See: Mrs.Maneka Gandhi Vs. Union of India (1978) 1 SCC 248. In the said judgment, there is a reference to the words of Justice Douglas in Kent V. Dulles 357 US 116 (1958) which are as follows:

“Freedom to go abroad has much social value and represents the basic human right of great significance.”

7. For the reasons stated above, this petition is allowed giving

permission to the petitioner to travel to USA and stay in USA with his son

Rohit Kharat from 21.03.2022 till 20.07.2022. The look-out circular opened

against the petitioner by LOC No.1940713 is ordered to be kept in abeyance

during this period. It is submitted by the learned counsel for the petitioner

that petitioner's property documents were already seized by the respondent

and are in the custody of respondent. Thus, this Court allows the petitioner

to travel to USA with the following conditions:-

a) The petitioner shall execute a bond in duplicate for a sum of

Rs.50,000/-(Rupees Fifty Thousand Only) with two sureties,

https://www.mhc.tn.gov.in/judis Crl.O.P.No.4319 of 2022