The accused-applicant is seeking in Case Crime No.540/2019, under Sections 409, 420, 467, 468, 471, 120-B IPC and and section 7-A & 8 of the Prevention of Corruption Act, 1988, P.S. Hazratganj, District Lucknow (now RC No.0062020A0005, under Sections 409, 420, 467, 468, 471, 120-B IPC and section 7-A & 8 of the Prevention of Corruption Act, 1988, Police Station CBI-ACB, Lucknow).
Mr. Purnendu Chakravarty, learned counsel for the applicant has submitted that the applicant is a private person and is engaged in the Real Estate Business with financial consultancy since 2010 and apart from the business of Real Estate purchase and brokerage, the applicant is an investment agent/broker having Broker Code of HDFC Bank; Canara Bank and DHFL. It is submitted that the applicant opened a Firm namely 'Alpine Associate' for the purpose of financial consultancy and investment/brokerage on 26.04.2017. The applicant is an active broker having a client base of 650 and above customers and DHFL Brokerage Code of the applicant's firm is 13814.
Learned counsel for the applicant has submitted that a complaint has been made by Sri I. M. Kausal, Secretary Trust against one Praveen Kumar Gupta, Ex- Secretary of the Trust of Uttar Pradesh Power Corporation Limited Contributory Provident Fund Trust and against one Sudhanshu Dwivedi the then Director Finance with the allegations that they had invested the money in private sector companies in a wholly illegal and malafide manner to earn huge illegal commission in violation of the provisions of the Companies Act, Employees Provident Fund and Misc. Provisions Act, 1952 and provisions of the Indian Trust Act, 1882. The first information report has been registered as Case Crime No.540 of 2019 under Sections 409, 420, 467, 468, 471, 120-B IPC and and section 7-A & 8 of the Prevention of Corruption Act, 1988, P.S. Hazratganj, District Lucknow on 02.11.2019 and the applicant was arrested by EOW Lucknow on 14.11.2019 on the basis of the statement of other co-accused in case diary Parcha No.15 dated 14.11.2019 recorded by the EOW. The EOW filed the charge - sheet in the case, however, on the request of the State Government, the case has been transferred to the C.B.I. and on 05.03.2020 and the C.B.I. registered the F.I.R. as R.C. No.0062020A0005 while the investigation is still going on.
Learned counsel for the applicant has submitted that the applicant is not named in the first information report and there are no allegations whatsoever directly or indirectly has been assigned to the present applicant. It is submitted that the Broker Code of the petitioner's firm namely Alpine Associate was used by the DHFL to facilitate sub-agents and the applicant has no knowledge regarding the investment programme initiated at the office of UPPCL Lucknow into DHFL for earning some better interest rate. The services of many other brokers have been utilized by DHFL for receiving investment from UPPCL and for paying the brokerage or commission. Learned counsel for the applicant submits that the firm of the applicant as also its code has also been utilized by the DHFL and the applicant has no knowledge regarding any enroutment of the money in cash through sub agents to whom the Alpine Associates transferred amount through RTGS after TDS deduction. Learned counsel strongly denied the allegation of conspiracy and he is not connected with the entire episode of UPPCL Trust Money investment with DHFL.
Leaned counsel for the applicant has further submitted that the applicant's firm Alpine Associate received the money from DHFL through RTGS mode and the said money has been further transferred to the accounts of sub-agents and in this total transfer of money, the service charge of about Rs.30-40 lakhs has been earned by the applicant's on which the applicant has paid the Income Tax. Learned counsel for the applicant submits that there is no evidence collected by the investigating agency to involve the applicant in the conspiracy story except the statement of the co-accused. It is submitted that no forged document has been prepared for the purpose of cheating, hence, the offence under section 468 IPC is not made out against the applicant. No forgery of any valuable security has been committed by the applicant so the offence under section 467 IPC is not made out. It is submitted that earlier the first information report has been registered under the offence of Indian Penal Code and subsequently 13(2) of the Prevention of Corruption Act has been added which is for the public servant and while filing the charge-sheet by the EOW, no offence under section 13(2) of the P.C. Act has been found.
In support of the arguments, learned counsel for the applicant has submitted that co-accused Sanjay Kumar, Shyam Kishore Agarwal, Manoj Goyal, Ishant Agarwal, Pankaj Giri and Arun Jain have already been granted bail by the Court of Special Judge, P.C. Act, Lucknow, however, Mr. Lalit Goel has been granted bail by the Court of the Special Judge, C.B.I. Learned counsel submits that the case of the applicant is on better footing than that of the other co-accused who have been granted bail. Learned counsel submits that one of the other co-accused of the same crime number namely Sri Vikash Chawla has been granted bail by Hon'ble the Apex Court vide order dated 01.02.2021 passed in Criminal Appeal No.97 of 2021 arising out of S.L.P. (Crl.) No.6023 of 2020 and while releasing the bail, the Hon'ble Apex Court considered the parity with other co-accused Rajesh Arora, Pankaj Giri, Shyam Kishore Agarwal, Anuj Jain and Nishant Agarwal who have already been released on bail by the learned Special Judge, P.C. Act, Lucknow. It has also been submitted that the Coordinate Bench of this Court has already granted bail to the main accused Ayodhya Prasad Mishra vide its order dated 13.07.2021 passed in Bail No.4387 of 2021 and one another co-accused namely Manoj Agarwal has also been granted bail vide its order dated 22.07.2021 passed in Bail No.6202 of 2020.
Learned counsel for the applicant has vehemently submitted that the applicant is in jail since 14.11.2019 and the C.B.I. has not able to collect any evidence against the applicant and till date no charge sheet against any of accused has been filed. Learned counsel has relied upon the judgment of Hon'ble the Apex Court in the case of P. Chidambaram vs. Director of Enforcement (2020) 13 SCC 791 wherein it has been observed that the gravity of the alleged offence can only beget the length of the sentence provided in law and the bail cannot be denied only on the ground that offence allegedly committed by the accused is grave.
Learned counsel for the applicant submits that considering the fact that the a number of co-accused of the case crime has been granted bail by the Hon'ble Apex Court as well as by this Hon'ble Court and also by the court below and since the case of the applicant is on better footing, he may also be released on bail. It has also been submitted that there is no possibility of the applicant's fleeing away from the judicial process or tampering with the evidence and in case the applicant released on bail, he will not misuse the liberty of bail and will cooperate in trial.
Per contra, Sri Anurag Kumar Singh, learned counsel for the C.B.I. has vehemently opposed the bail application and submitted that during the investigation by the E.O.W., U.P. Police, the role of the applicant was surfaced and thereafter he was arrested by the EOW U.P. Police on 14.11.2019 and after completion of the investigation, the charge-sheet has been filed against the applicant. The applicant is the proprietor of the firm M/s Alpine Associate and in pursuance to the criminal conspiracy hatched amongst accused persons, the applicant's firm was got registered as broker with DHFL Lucknow. Thereafter huge amount of surplus funds of GPF/CPF Trust were invested in fixed deposits of DHFL through broker M/s Alpine Associate and against the said investment the applicant's firm had received Rs.11.52 crores in its Bank account maintained with the Indusland Bank, Sector 119, Noida, Lucknow. Learned counsel for the CBI has also submitted that the applicant in the criminal conspiracy had booked rooms in hotels and also air tickets for co-accused Praveen Kumar Gupta and Abhinav Gupta and made payment from the bank account of Indusland Bank.
Learned counsel for the CBI has relied upon the judgment of Hon'ble the Apex Court in the case of State of Bihar vs. Amit Kumar (2017) 13 SCC 751 wherein it has been held that while considering the bail involving socioeconomic offences stringent parameters should be applied. It is submitted that the investigation of the case is still going on and the applicant is a very rich and influential person and if he is enlarged on bail, he may flee from clutches of law and may tamper with the evidence and try to win over the witnesses. Therefore, looking to the allegations, the applicant is not entitled for bail and his bail applicable may be dismissed. However, learned counsel for the CBI has not contradicted the other facts that the other co-accused of the case has been granted bail.
Heard learned counsel for the applicant, learned AGA and perused the record.
In the case of State of Maharashtra vs Sitaram Popat Vetal and another; (2004) 7 SCC 521, while dealing with the duty of the Court and passing an order of bail, Hon'ble Apex Court has expressed the view which is as under:
"6. There is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the Courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are:
(1) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(2) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(3) Prima facie satisfaction of the Court in support of the charge.
In the light of the observations of Hon'ble Supreme Court, I also feel that such expression of prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the Appellate Court has every right to know the basis for granting the bail, the Court is duty-bound to apply its mind to the allegations put forth by the investigating agency and ought to have given at least a prima facie finding in regard to these allegations because they go to the very root of the right of the accused to seek bail.
It is admitted fact that the CBI is conducting the investigation for the last one year and the investigation has yet not been concluded. The applicant is not named in the first information report and his name came into light in the statement of the co-accused Lalit Goel who has been granted bail by the Court of the Special Judge, C.B.I. Lucknow. The other co-accused who are private persons have already been granted bail by the competent court of law and the main accused Sri Ayodhya Prasad Mishra has also been granted bail by a coordinate Bench of this Court. The co-accused Abhinav Gupta who is private person has been enlarged on bail by the Hon'ble Supreme Court vide order dated 04.06.2021. It is admitted fact that the applicant is also a private person. There is no allegation with regard to non-cooperation with the investigating agency and the applicant also undertakes that he will appear in trial as and when required and shall abide by the conditions of bail imposed by this Court.
Regard being had to the facts and totality of the circumstances of the case and the material brought on record, the other co-accused of the case has already been granted bail, CBI has not completed the investigation after more than a year, I am inclined that it is a fit case for grant of bail to the applicant. Thus the present application is allowed.
Let the applicant Ashish Chaudhary be released on bail in aforesaid first information report number on his furnishing a personal bond and two heavy sureties of the like amount as required by the Court concerned with the following conditions:
1. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
2. The applicant will surrender his passport before the trial court.
3. The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
4. In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
5. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
6. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
7. The computer generated copy of such order shall be self attested by the counsel or the party concerned.
8. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Observation made hereinabove is exclusively for deciding the instant bail application and shall not affect the investigation and trial in any manner.
Order Date :- 27.7.2021 VNP/-