1.Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Nitin Gupta and Sri N.I. Jafri, learned counsel for the C.B.I, learned A.G.A. for the State and perused the record.
2.The present bail application has been filed with the prayer to allow the present bail application and applicant be released on bail in Case Crime No.R.C.2(E) of 1998, u/s 120-B, 420, 471 IPC, P.S. EOW-II-DLI, District Gautam Budh Nagar.
3.The prosecution story as narrated in FIR is as follows:-.
4. Sri Jagdish Kumar, both partners of M/s Glitter Overseas, Plot No.166 NEPZ, NOIDA Ghaziabad entered into a criminal conspiracy during the years 1992-95 with S/Shri Y.N. Bhargava, the then General Manager now Chief General Manager, Sri R.Khosla, Ex-Director and others with the object of cheating MMTC and obtaining undue pecuniary advantages for themselves/others to the extent of USS 334371 approximately (value in Indian currency as Rs.1.40 crore approximately) and corresponding loss to MMTC in the matter of certain credit facilities including gold loan for M/s Glitter Overseas for manufacturing gold jewellery and its export to foreign buyers.
5.M/s Glitter Overseas were 100% Export Oriented Unit for gold, jewellery and were allotted plot No.166 NEPZ, NOIDA, Ghaziabad (U.P.) to carry out their business as an associate of MMTC in accordance with the gold loan scheme issued by Jt. Chief Controller of Imports & Exports vide R.E.P. Circular No.22/88 dated 15.6.1988. Shri Jagdish Kumar and his wife Mrs. Neeta Kumari were its partners. The firm was sanctioned gold loan for 20 Kgs. Packing credit on COD (cash on delivery) basis for Rs.125 lacs and D.A limit (Documents against Acceptance) for Rs.25 lacs by MMTC during 1992 and 1993 to manufacture gold jewellery for export in accordance with the stipulated norms and existing guidelines. Thereafter, M/s Glitter Overseas started showing export of gold jewellery on COD basis to the foreign buyers of USA, UK and UAE after avoiling gold loan and packing credit from MMTC and submitted the export documents to MMTC which were negotiated through Oriental Bank of Commerce and Canara Bank, New Delhi and State Bank of India, NOIDA from where these were forwarded to the foreign banks in whose favour Airway Bills were shown to have been issued for realisation of the export proceeds from the buyers. The documents including the Airway Bills, being the most crucial documents, were to be reeased by the foreign banks to the buyers on receipt of the payments to enable them to take delivery of the consignments from the Airlines authorities and the foreign banks could remit the export proceeds to the Indian Banks for credit to MMTC. It was clearly stipulated that all exports bills were to be realised within 180 days from the date of export. The MMTC was required to monitor the same scrupulously since its funds were involved and in case of deviation from the above guidelines and non-realisations of export proceeds within the stipulated period of 180 days MMTC was not expected to issue further gold loan etc. to the said firm till export proceeds were realised.
6.The said firm exported the following eight consignments of gold jewellery on COD basis for US$ 334371 during August 93 to April 95 after availing gold loan and packing credit from MMTC on the basis of the applications and the undertakings given by the partner of the said firm for realisation of the export proceeds but the same remained outstanding till date.
Sl.No.
Invoice no. and date FOB value (US$) Terms of payment Foreign buyers 1 49/10.08.93 56804 C.O.D.
Devji Purushottamji UAE 2 50/08.09.93 53203 C.O.D.
Laxmi Jewelers 42-79B, Main Street, New York-1125 (USA) 3 55/22.11.93 44302 C.O.D.
Laxmi Jewellers, 42-79B, Main Street, New Yord-1125 (USA) 4 56/01/03.02.94 42661 C.O.D.
Pawan Corporation USA 5 68/20.03.95 42042 C.O.D.
Allein Jewellers UAE 6 69/22.03.95 28042 C.O.D.
do 7 70/03.04.95 23143 C.O.D.
do 8 71/05.04.95 42124 C.O.D.
7.Even though the export proceeds in respect of first four invoices referred to above were outstanding for more than the stipulated period of realisation, yet gold loan and packing credit in respect of the remaining four aforesaid invoices were dishonestly and unauthorisedly released to the said firm by the officials of MMTC.
8.The Airway Bills of M/s Glitter Overseas were dishonestly and fraudulently forged by interpolating the name of the consignee as foreign buyer instead of the Bank which enabled the buyer to receive the exported parcels directly from the Airlines authorities without making payment to the Bank. The consignment relating to invoice No.49 dated 10.8.1993 referred to above, was exported to M/s Devji Purushottam Jewellers, UAE vide AirWay Bill No.098-6216-0792 wherein the buyer was dishonestly shown as consignee against the established norms and subsequently the name of the consignee was fraudulently and dishonestly changed as Oman Bank Ltd. On the original third shipper copy of the AirWay Bill and submitted to MMTC for negotiation so as to show that the consignee was the bank whereas the other copies of the AirWay Bill including the one sent along with the exported parcel showing foreign buyer as consignee. Similarly, in respect of another consignment exported vide invoice No.50 dated 08.09.93 to M/s Laxmi Jewellers, USA against AirWay Bill No.074-5621-1396 showing State Bank of India, New York as consignee but later on the name of the consignee was fraudulently and dishonestly changed as foreign buyer which enable the buyer to take delivery of the exported parcel directly without making payment to the Bank.
9.It is reported that due to non-realisation of the export proceeds, the facilities extended to the said firm were suspended by MMTC. The DGM, MMTC conducted enquiries about the outstanding bills and submitted a note dated 29.10.1994 indicating the outstanding bills of M/s Glitter Overseas exceeding more than 180 days. He also pointed out that a large number of payments were received by Demand Drafts and not through banking channels. He further mentioned that the enquiries made by him with the airlines authorities indicated that M/s Glitter Overseas were in the regular habit of tampering with the AirWay Bill. MMTC also contacted the overseas buyers to ascertain the position of the outstanding bills and M/s Pawan Corporation, USA one of the buyers informed that the payment against the bill was collected by Jyoti @ Shri Jagdish Kumar. Despite the above position, Sri Y.N. Bhargava, General Manager in pursuance of the said criminal conspiracy submitted a proposal favourable to the firm which was totally against the laid down guidelines framed by MMTC and he also suggested restoration of the facilities to M/s Glitter Overseas which was dishonestly approved by Sri R.Khosla the then Director in December 94 and thereby caused undue pecuniary advantage to the said firm and corresponding loss to MMTC.
10.M/s Glitter Overseas dishonestly and fraudulently changed the name of the consignee in a number of other AirWay Bills but records of MMTC do not indicate the payments as outstanding in respect of such AirWay Bills suggesting that the export proceeds were not realised against them through proper channels. The officials of MMTC accepted the unauthorised payments against such bills which clearly indicated their connivance with the said firm.
11.Sri Jagdish Kumar as proprietor of M/s Himanshu Jewellers enjoyed gold loan and COD packing credit from MMTC. The firm after availing gold loan and packing credit from MMTC, exported gold jewellery and three bills for US$ 82988 remained outstanding. The Airway Bills of the said consignments were fraudulently and dishonestly interpolated by changing the name of the consignee as foreign buyer in place of the bank which enabled the buyers to take delivery of the exported parcels without payment to the bank. The aforesaid fact was also mentioned by the DGM, MMTC in his note dated 29.10.1994, referred to above which was seen by S/Sri Y.N. Bhargava and R.Khosla, General Manager and Director respectively even then they dishonestly allowed restoration of the facilities to M/s Glitter Overseas.
12.The C.B.I after investigation submitted charge sheet against the applicant and other co-accused persons on 23.12.2002 namely Bali Ram, Pawan Kumar Verma @ Pawan Verma. It appears from the charge sheet that though the charge sheet was submitted against co-accused MMTC official Y.N. Bhargava, General Manager, Alok Singh (Sr. Manager), Vijay Pal (DGM), V. Chandramouli (DGM), B.L. Jain (General Manager) and P.K. Mohan Rao, Dy. General Manager and sanction for prosecution was sought by the C.B.I from the competent authority of MMTC but the competent authority declined to accord the sanction against the aforesaid officials. Subsequently on the request of C.B.I the matter for prosecution sanction was referred to Central Vigilance Commission but the Central Vigilance Commission also advised for departmental action against the MMTC officials. Since, Sri Y.N. Bhargava, General Manager and Sri R.Khosla since retired from service and their prosecution was not sanctioned by Central Vigilance Commission. Hence it shows their names in column 2 of the charge sheet.
13. The charge sheet was submitted against the applicant and other co-accused persons in the court of Special Judicial Magistrate, C.B.I, Ghaziabad who took cognizance of the offence and registered the case against the applicant being case no.14 of 2003 C.B.I Vs. M/s Glitters Overseas & others and the learned Magistrate summoned him vide order dated 17.1.2003 and further issued non-bailable warrants against the applicant for the offence u/s 120-B read with Section 420, 471 IPC. The applicant challenged the summoning order dated 17.1.2013 before this Court by filing Criminal Revision No.936 of 2003 Jagdish Kumar Vs. State of U.P. in which an interim order was passed by this Court in the year 2003 and directing that no coercive action shall be taken against the revisionist, ultimately the said revision was partly allowed by this Court on 12.5.2014 whereby the summoning order dated 17.1.2013 was confirmed so far as it related to take cognizance against the accused persons u/s 120-B, 420, 471 IPC and so far as issuance of N.B.W against the applicant is concerned straightaway was concerned it was set-aside by this Court subject to condition that revisionist shall surrender before the court below within 30 days. In view of the law laid down Amrawati and another Vs. State of U.P. Reported in 2004 (57) ALR 390, the said order was passed by this Court on 12.5.2014, copy of the same is annexed as annexure no.7 on page 93-94 of the accompanying affidavit. The applicant thereafter surrendered before the court concerned on 10.6.2014 and his bail application was rejected by the Special Judge, Anti Corruption, C.B.I, Ghaziabad on 11.6.2014. Hence the present bail application before this Court.
14.It has been argued by Sri V.P. Srivastava, learned Senior Advocate that the applicant is a partner of M/s Glitter Overseas Ltd. which is 100% export oriented unit for gold, jewellery and work as an associate MMTC in accordance with the gold loan scheme issued by Jt. Chief Controller of Imports & Exports vide R.E.P. Circular No.22/88 dated 15.6.1988. As per aforesaid scheme the applicant is manufacturer of gold ornaments and the foreign buyer placed order for purchase of golds from MMTC and on the choice of foreign buyer the manufacturer collected gold from MMTC. The applicant being manufacturer made the ornaments according to order and after manufacturing informed the MMTC who after fixing the rate of ornaments as per international market prepared the bill giving all the details of ornaments like fairness, quantity, purity and weight etc. The packing credit is also claimed by MMTC from Indian Bank. After preparing all the relevant documents the manufacturer or his representative along with officials of MMTC puts the ornaments so manufactured, for approval before the custom officers who verified the fairness, weight, purity, quantity etc. After approval/appraising of the ornaments from the custom department, there is no control or ownership of the manufacturer over the ornaments manufactured by him. The MMTC is the exporter and not the applicant and his firm thus the allegations contained in the FIR is false and on account of fault of MMTC or in connivance of the employees of MMTC with foreign buyers making forgery in airways bill the sale proceed could not be collected as such the MMTC to save their skin made false allegations against applicant and his firm. The applicant is aged about 60 years old and he is heart patient and under regular treatment since 2000 till date and has no criminal history.
15. It was further urged that co-accused Bali Ram Singh who has conspired with the applicant in doing the forgery in airways bills, has already been granted bail by the court below on 1.5.2003, hence the applicant is also entitled to be released on bail. The applicant is in jail since 10.6.2014.
16.Sri N.I. Jafri, learned counsel for the C.B.I vehemently opposed the prayer for bail and submitted that the incident has taken place between 1992-95 and the FIR of the incident was lodged on 26.8.1998 by the C.B.I after information received from it's reliable sources regarding illegal activities of the applicant in collusion with MMTC authorities causing loss of more than 1.50 crores to MMTC. He submitted that C.B.I during the investigation has collected strong evidence against the applicant which shows that he has colluded with Bali Ram Singh and MMTC authorities so that the goods in question would directly reach to foreign buyers instead of bank in question which were required to obtain to sale proceeds of the gold exported and thereafter receiving the payment the goods be delivered to foreign buyers. It was argued that co-accused Pawan Kumar Verma who was resident of U.S.A. was also colluding with the applicant in committing the crime and charge sheet was submitted against him. Pawan Kumar Verma had once visited India and his passport no.111321277 was seized and the same was deposited in the Court with the list of documents as D-112 at the time of filing of charge sheet. He managed to escape from India by manipulating another passport. The said co-accused is still absconding and Red Corner Notice has been issued against him as he has fled to U.S.A. to avoid the trial. He submitted that the co-accused Bali Ram who was proprietor of Innovative International also conspired with the applicant and made forged entries in the carbon copy of the said Airways bills. The applicant in connivance with Bali Ram changed the name of the consignee on the original three shippers copy of Airway Bill from M/s Devji Pursottam Jewellers and Co. to Bank of Oman Ltd. Diera Dubai by typing XX over it and affixed fake seal of TOSA against the amended portion to give impression of a genuine amendment. Applicant submitted the said amended Airway Bill along with E.P copy of shipping bill and GR to MMTC showing the export was made in the name of the bank but in reality the Airway Bill submitted earlier to Airlines AAI and customs contained the name of buyer as consignee. The MMTC negotiated the shipping documents through Oriental Bank of Commerce, New Delhi with Bank of Oman Ltd. With the instructions to deliver documents against payment. The negotiable documents were returned unpaid by the foreign bank through letter dated 11.4.1994 and hence MMTC had to sustain a loss of Rs. 1509684 approximately towards packing credit of 4 kg. of gold. Similarly other Airway Bills were also forged by the applicant along with the co-accused Bali Ram and huge loss was caused to MMTC in similar other transactions.
17. It was pointed out by learned counsel for the C.B.I that the investigation further disclosed that applicant as a proprietor of Himanshu Jewellers a Domestic Tariff Area associate of MMTC submitted an application on 21.4.1993 for release of packing credit limit of Rs.25 lakhs along with the collectoral security papers of Rs.21.13 lakhs. The application was processed by V. Chandermouli, Dy. General Manager mark and recommended for grant of packing credit limit of Rs.21 lakhs. P.K. Rao who recommended for grant of 6 kg. of gold loan and packing credit limit of Rs.40 lakhs were as the requirement of party was only Rs.25 lakhs and the same was approved by Shri Y.N. Bhargava. Accused Jagdish Kumar as proprietor of M/s Himanshu Jewellers executed an undertaking with MMTC on 21.5.1993 regarding the realisation of export proceeds from the buyer and availed 6 kg. of gold from MMTC.
18.Learned counsel for the C.B.I further argued that the case pertains to the year 1992-95 and the cognizance of the offence was taken in the year 2003 but the applicant in order to linger on the trial had challenged the summoning order in a revision before this Court and obtained an interim order on the ground that the N.B.W were directly issued against him at the time of taking cognizance which were bad in the eye of law. For the last 11 years the applicant had been able to delay the trial and has only surrendered after summoning order dated 17.1.2003 was confirmed by this Court upholding his prosecution in the present case and he has surrendered on 10.6.2014 which shows that the applicant had avoided the trial of the case which pertains to the year 1992 to 1995 and 19 years have lapsed since the commission of the crime and the matter has been lingering on and one of the co-accused Pawan Kumar Verma is still absconding and if the applicant is released on bail, there is every likelihood that the trial would further be delayed on one count or the other and the prosecution of the applicant would loose its significance and the applicant would go scot free who has put the M.M.T.C to a huge pecuniary loss between the year 1992-1995.
19.Considered the submissions advanced by learned counsel for the parties. From the allegations made in the FIR and the material collected during the course of investigation in the charge sheet, it is apparent that the applicant was the ultimate beneficiary of the transaction in question and he in connivance with the co-accused persons cause loss to M.M.T.C worth more than crore of rupees between the year 1992-1995 and one of the co-accused Pawan Kumar Verma with whom the applicant was instrumental in causing huge loss to M.M.T.C is still absconding and Red Corner Notice has been issued against him. The co-accused Bali Ram had also conspired with the applicant by forging airways bills and tempering with the name of the consignee by mentioning the name of foreign buyer in place of concerned Bank to whom the sale proceeds should have been first paid and then the consignment in question would have been delivered to foreign buyer. There appears to be active involvement of the applicant in the present crime. The conduct of the applicant further reflects that his intention to avoid the trial of the case for the last 11 years by committing such a crime and causing huge loss to M.M.T.C in collusion with it's officials against whom offences is also disclosed as has been found by C.B.I during the course of investigation but for want of sanction for prosecution by the competent authority of M.M.T.C, they have not been charge sheeted and their names only finds place in column two of the charge sheet. This Court has also upheld the prosecution of the applicant by confirming summoning order passed against him by the trial court. The present case further reflects the conduct of an accused who has been instrumental in prolonging the trial by misusing the process of law at his own whims so that the trial may not reach its logical end.
20.Without expressing any opinion on the merits of the case and considering the submissions advanced, I find that no good ground is made out for enlarging the applicant on bail.
21.The bail application of the applicant Jagdish Kumar, involved in case crime no.R.C.2 (E) of 1998 u/s 120-B, 420, 471 IPC, P.S. EOW-II-DLI, district Gautam Budh Nagar is, accordingly, rejected.
22.However, the trial court is directed to expedite the trial and conclude the same strictly in compliance of the provision of Section 309 Cr.P.C preferably within the period of eight months from the date of production of the certified copy of this order before the trial court, if there is no legal impediment.
23.The Registrar General of the Court is directed to send the certified copy of this order to the trial court for it's compliance forthwith.
24.It is needless to say that the trial court is at liberty to separate the trial of the applicant and proceed in accordance with law, if any, of the accused fails to appear before it.
Order Date :- 8.8.2014 Gaurav