{"id":172714,"date":"2010-10-19T00:00:00","date_gmt":"2010-10-18T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dipak-vs-central-on-19-october-2010"},"modified":"2017-02-11T15:47:48","modified_gmt":"2017-02-11T10:17:48","slug":"dipak-vs-central-on-19-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dipak-vs-central-on-19-october-2010","title":{"rendered":"Dipak vs Central on 19 October, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Dipak vs Central on 19 October, 2010<\/div>\n
Author: Rajesh H.Shukla,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/11415\/2010\t 11\/ 11\tJUDGMENT \n \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 11415 of 2010\n \n\n \n \n\n\n \n\nFor\nApproval and Signature:  \nHONOURABLE\nMR.JUSTICE RAJESH H.SHUKLA\n \n===========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo be\n\t\t\treferred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n===========================================\n \n\nDIPAK\nSHUBHASHCHANDRA MEHTA - Applicant(s)\n \n\nVersus\n \n\nCENTRAL\nBUREAU OF INVESTIGATION - BANKING & SECURITY FRAUD & 1 -\nRespondent(s)\n \n\n=========================================== \nAppearance\n: \nMR BB NAIK, SR. ADVOCATE with MR ND NANAVATI,\nSR. ADVOCATE, with MR AJ YAGNIK\nfor Applicant(s) : 1, \nMR\nYN RAVANI for Respondent(s) : 1, \nMs MANISHA LAVKUMAR SHAH, APP,\nfor Respondent(s) : 2,                                               \n   MR PRANAV DESAI for Original\nComplainant \n===========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE RAJESH H.SHUKLA\n\t\t\n\t\n\n \n\n\t\t\t\t\tDate\n: 19\/10\/2010 \n\n \n\n \nORAL\nJUDGMENT<\/pre>\n
\tThe
\npresent application has been filed by the applicant-accused  for
\ngrant of regular bail under sec. 439 of the Code of Criminal
\nProcedure after the charge sheet is filed.\n<\/p>\n
2.\tThe
\napplicant-accused is charged with having committed offences under
\nsections 406, 420, 467, 468, 471 and 120B of IPC for which FIR being
\nBS&FC\/MUM bearing No. 1(E)\/2010, has been registered with
\nCBI-Mumbai.\n<\/p>\n
3.\tLearned
\nSr. Counsel Mr. BB Naik as well as learned Sr. Counsel Mr. ND
\nNanavati appearing with learned advocate Mr AJ Yagnik have made
\nsubmissions at length and learned counsel Mr. YN Ravani appearing for
\nCBI and learned counsel Mr. Pranav Desai appearing for the
\ncomplainant Bank have also been heard.\n<\/p>\n
4.\tLearned
\nSr. Counsel Mr. Naik has referred to the nature of allegations with
\nreference to the history of the litigation and the details about the
\nadvances made from time to time by the bank.  Learned Sr. Counsel Mr.
\nNaik submitted that the facilities were given by the bank and the
\ntransactions are as back as in 1997  and up to 2006 there was no
\nproblem.  He submitted that a consortium of banks, where SBI was the
\nlead bank, has found irregularities and in fact the proceedings were
\nfiled before the DRT and even at that time no allegations for the
\nalleged offences of fraud or cheating have been made.\n<\/p>\n
5.\tLearned
\nSr. Counsel Mr. Naik submitted that it is a case of commercial
\ntransactions where there is a failure in repayment due to various
\ncircumstances and therefore filing of the complaint at this stage is
\nonly to cause harassment and pressure.  Learned Sr. Counsel Mr. Naik
\nsubmitted that the assets have been also seized under the
\nSecuritsation Act and referring to the FIR which is lodged in 2010 he
\nsubmitted that the present application for bail may be considered as
\nnow the charge sheet has been filed, the documents are seized and the
\nentire case is based on documentary evidence and the witnesses are
\nonly of the CBI or the bank officers and therefore there is no
\nquestion of tampering with the evidence or witnesses.\n<\/p>\n
6.\tLearned
\nSr. Counsel Mr. Naik has also referred to the provisions of sec. 467,
\n468, 471 and submitted that these are regarding forgery and submitted
\nthat these provisions would not be attracted. He emphasized the role
\nof the applicant accused and submitted that it is not even the case
\nof the  investigating agency-CBI that the goods have not been
\nexported after having taken necessary benefits under the scheme of
\nexport incentives of the Export Credit and Guarantee Corporation. He
\ntherefore submitted that the alleged offences under sec. 467, 468,
\n471 are not attracted and the present application may be allowed.\n<\/p>\n
7.\tLearned
\nSr. Counsel Mr. Naik also submitted referring to various details that
\nthe advances have been granted in routine course on the basis of the
\nprocedure followed and therefore merely because there is a default in
\nrepayment the alleged offences would not be attracted.  He also
\nsubmitted that when the charge sheet has been filed, the present
\napplication may be allowed.\n<\/p>\n
8.\tLearned
\ncounsel Mr. Ravani referred to the paper-book including the FIR and
\nother papers and pointedly referred  to the manner in which
\nwell-designed systematic fraud has been committed by the accused.  He
\nsubmitted that having obtained the benefit under the scheme of the
\nCentral Government for export incentives and on that basis having
\nobtained huge finances from various banks, the banks are duped to the
\ntune of Rs. 500 crores. He therefore submitted that the submission
\nthat the provisions of sec. 467, 468, 481 are not attracted cannot be
\naccepted in light of the material and evidence  at this stage. He
\nsubmitted that the charge sheet itself reveals as to how the funds
\nhave been diverted or siphoned off from one firm or another in the
\nname of the so-called business incentive policies for the export, and
\nhaving taken sch advantage, the same documents have been produced
\nbefore two or three banks for the purpose of advances. He therefore
\nsubmitted that it is hot only the banks but the government schemes
\nhave also been exploited for siphoning off the money resulting in
\nhuge loss to the banks to the extent of Rs. 500 crores.\n<\/p>\n
9.\tLearned
\nCounsel Mr. Ravani further submitted that the submission with regard
\nto other proceedings under the DRT and\/or the civil suit would not be
\na relevant consideration as it cannot be said that the dispute is
\nsimply of a civil nature looking to the systematic design in which
\nthe banks have been defrauded. He submitted that a consortium of 26
\nbanks have been formed with SBI as the lead bank and he referred to
\nthe details of the huge amount involved in the alleged fraud and
\nsubmitted that the submission made by the learned counsel for the
\napplicant cannot be accepted at this stage.\n<\/p>\n
10.\tFor
\nthat purpose, he also referred to the affidavit-in-reply  filed by
\nthe CBI and pointedly emphasized that the accused persons have
\ncheated about 23 banks and the investigation has revealed that the
\nfraud amount is more than Rs. 500 crores. He also referred to the
\nmanner in which the entire operations have been carried out.  He
\ntherefore submitted that the present application may not be
\nentertained. He submitted that it is not merely a failure of business
\ncommitment, but it is a well designed fraud of huge amount on various
\nbanks resulting in duping the banks and the public money.  He
\ntherefore submitted that merely because some proceedings are taken
\nunder the DRT Act or suit has been filed would not be relevant as for
\nthe same transaction more than one remedy, that is, civil and
\ncriminal, both options could be exercised and the recovery part is a
\ncivil consequence whereas the present complaint for the offences
\nsuggest about mens rea and the criminal liability for the
\noffences. He therefore submitted that the present application may not
\nbe entertained.\n<\/p>\n
11.\tLearned
\ncounsel Mr. Pranav Desai referred to the affidavit filed on behalf of
\nthe original complainant, opponent No. 3, and supported the
\nsubmissions made by learned counsel Mr. Ravani for the CBI.  He
\npointedly referred to the affidavit particularly Para 7 & 8 and
\nsubmitted that how in the name of different firms amounts have been
\ndiverted which has gone back to the accounts of the applicant herein.
\n He further submitted that as stated in detail in the charge sheet as
\nwell as in this affidavit, same documents have been produced before
\ntwo or three banks and he emphasized that false and forged export
\ncontract was produced and believing it to be genuine the complainant
\nbank made advances to the tune of Rs. 9.07 crores and the accused
\npersons utilized the credit for making payment to Marvel Impex.  Out
\nof the total amount of Rs. 9.07 crores an amount of Rs. 5.15 crores
\nwere paid to the firm during August 2006 to September 2006. The said
\nfirm had an account with Union Bank o India, Mumbai which was dealing
\nin diamonds and bullion. Thus, funds have been utilised for different
\npurposes and thereby fraudulently duped the bank. He further
\nsubmitted that similarly, as clarified in Para 9, LCs were produced
\nbefore one bank and also the bills have been discounted in the name
\nof M\/s. well Worth Overseas Ltd. which was having two accounts with
\nKalupur Commercial bank and the account was operated only to siphon
\noff the amount.\n<\/p>\n
12.\tTherefore,
\nlearned counsel Mr. Desai submitted that considering the magnitude of
\nthe amount involved and also the well designed systematic fraud
\nplayed on various banks, as revealed in the investigation made by the
\nCBI, the present application may not be entertained.\n<\/p>\n
13.\tLearned
\nSr. Counsel Mr. Naik again referred to the facts to emphasise his
\nsubmissions with regard to the fact that the ingredients for the
\nalleged offences cannot be said to have been fulfilled \t and
\ntherefore the same would not be attracted. He also made a reference
\nto the other proceedings in detail and further emphasized that as the
\ninvestigation is over and the charge sheet is filed and the case is
\nbased on documentary evidence, the present application may be
\nallowed.\n<\/p>\n
14.\tIn
\nrejoinder, learned counsel Mr. Ravani submitted that the offence is
\nalso under sec. 120B and looking to the manner in which the alleged
\noffences are committed, the present application may not be
\nentertained. He submitted that there are other complaints which have
\nalso been filed and the accused are habituated to committing such
\noffences.\n<\/p>\n
15.\tLearned
\nSr. Counsel Mr. Nanavati was also permitted to address the court and
\nhas made submissions referring to the DRT proceedings and he also
\nsubmitted that a suit has also been filed against the bank by the
\naccused persons.\n<\/p>\n
16.
\nLearned counsel Mr. Desai appearing for the complainant Bank, in
\nrejoinder, further emphasized that it is not a simple case of failure
\nto fulfill the business commitment. The charge sheet and the material
\nand evidence clearly suggest about a well designed fraud to siphon
\noff huge amount of money from different banks and mens rea or
\nintention is prima facie made out and revealed from the investigation
\nmade by the CBI.  For that he has again referred in detail as to the
\nmodus operandi and submitted that the present application may not be
\nallowed. He strenuously submitted that merely because the charge
\nsheet is filed is not a ground to release the applicant as the
\naccused are influential persons and could still influence the
\nwitnesses and in such big scam involving huge public money, the
\ncourts have made observations expressing a word of caution for
\ngranting bail and therefore merely because it is triable by the Court
\nof Magistrate would not be sufficient as some of the offences are
\npunishable with imprisonment for life or 10 years and therefore the
\npresent application may not be entertained.\n<\/p>\n
17.\tIn
\nview of rival submissions, it is required to be considered whether
\nthe present application can be entertained or not.\n<\/p>\n
18.\tIt
\nis well accepted that the court is not required to appreciate and
\ndiscuss the evidence in detail at this stage for the purpose of
\ndeciding the bail application.  However, the relevant aspects for
\ndeciding such applications for bail and the prima facie involvement
\nof the accused are required to be considered. The relevant facts
\nwould be the nature\/gravity of offence, the manner in which it is
\nalleged to have been committed, the role attributed and also, though
\nit could be said to be a white collar crime, the social impact and
\nseverity of the offence has to be judged with reference to the
\nmagnitude of the amount involved, the well-planned, systematic design
\nby which the banks have been defrauded for huge amounts, affecting
\nfinancial institutions like the banks which also will have a social
\nimpact.  It is also required to be mentioned that in such cases of
\nlarge-scale irregularity where fraud has been alleged for siphoning
\noff huge amount in a systematic foul play, the court has to be slow.
\nThe submissions made by learned Sr. Counsel Mr. Naik referring to the
\ngravity of the offence that it is only under sec. 467, 468, 471 which
\nis triable by the court of magistrate, cannot be accepted that. The
\nfact that it is triable by the Court of Magistrate will not lessen
\nthe nature\/gravity of the offences and the impact thereof in the
\nsociety.  Further, it will also have a reference to the role
\nattributed which is reflected in detail in the FIR with regard to the
\nwell-designed fraud of duping the banks of a huge amount.  This
\nitself would be one of the considerations suggesting mens rea and
\nprima facie case.\n<\/p>\n
19.\tIt
\nis required to be mentioned that as stated thee are other FIRs\/cases
\nfor similar offences filed against the present accused. That itself
\nsuggests about the magnitude of the alleged offences involving
\nsystematic ways and means by which the alleged fraud is perpetrated
\nfor siphoning off crores of rupees of the bank affecting the public
\nat large.\n<\/p>\n
20.\tTherefore,
\nthe Hon’ble Apex Court has also made observations expressing a note
\nof caution that with the change in the circumstances the court, while
\ngranting bail, should be slow for even economic offences and big
\nscams. The concern of the Hon’ble Apex Court has been with reference
\nto the public interest.\n<\/p>\n
21.\tA
\nuseful reference can be made to the observations made by this Court
\nin a judgment in the case of Bholabhai Chaturbhai Patel v. State
\nof Gujarat &<\/a> anr., reported in 2005(3) GLR 2549,  where this
\nHon’ble Court has negatived such contentions.  Further,  a reference
\ncan also be made to the observations made by the Hon’ble Apex
\nCourt in a judgment in the case of Himanshu Chandravadan Desai &
\nors. v. State of Gujarat, reported in AIR 2006 SC 179, where a
\nword of caution has been expressed and it has been also reflected as
\nto the change in the scenario even in such white collar crimes.
\nTherefore, while considering such bail application and the
\nsubmissions referring to the gravity of the offence and the right of
\nthe accused under sec. 21 of the Constitution of India and the
\nliberty, the submissions cannot be readily accepted.\n<\/p>\n
22.\tFurther,
\nit has been observed by the Hon’ble Apex Court in a judgment in
\nthe case of Kalyan Chandra Sarkar v. Rajesh Ranjan<\/a> alias Pappu
\nYadav and anr., reported in AIR 2005 SC 921, that such aspect of
\nliberty under Art. 21 of the Constitution cannot be overemphasized
\nwhen the person has been in judicial custody as per the law
\nestablished in this country and therefore  cannot claim right to
\nliberty on the same footing as any other citizen  as it will be
\nsubject to the criminal justice system of the country.\n<\/p>\n
23.\tTherefore,
\nhaving regard to the nature of offences whereby huge amounts of the
\nbanks have been defrauded which has also got a social impact, the
\npresent application deserves to be rejected and accordingly stands
\nrejected. Rule is discharged.\n<\/p>\n
(Rajesh
\nH. Shukla, J.)<\/p>\n
(hn)<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Dipak vs Central on 19 October, 2010 Author: Rajesh H.Shukla,&Nbsp; Gujarat High Court Case Information System Print CR.MA\/11415\/2010 11\/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 11415 of 2010 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA =========================================== 1 Whether Reporters of Local Papers may be […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-172714","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDipak vs Central on 19 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dipak-vs-central-on-19-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dipak vs Central on 19 October, 2010 - 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