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No auto bail entitlement u/s 438 Cr.P.C should seek regular bail u/s 439 Cr.P.C

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 81

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 58109 of 2019

Applicant :- Abhimanyu Pratap Singh Tyagi And Another

Opposite Party :- C. B. I

Counsel for Applicant :- Ronak Chaturvedi

Counsel for Opposite Party :- Sanjay Kumar Yadav

Hon’ble Dinesh Kumar Singh-I,J.
1. Supplementary affidavit filed today is taken on record.

2. Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Ronak Chaturvedi, learned counsel for the applicants and Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav learned counsel for the CBI.

3. This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in RC No. 219 of 2018 E0005, under section 420, 467, 468, 471, 120-B IPC Police Station CBI EO-I, New Delhi, District Ghaziabad, during the pendency of investigation.

4. The present case was registered against the accused-applicants along with co-accused on the basis of written complaint of Shri Umesh Kumar Bhalla, Dy. General Manager, Canara Bank, Circle Office, New Delhi, alleging therein that during May, 2015, M/s. Saigon Infratech Pvt. Ltd. and its director Shri Rajesh Mehta, in connivance with other directors, namely, Neeraj Tyagi (applicant no. 1), Abhimanyu Pratap Singh Tyagi (applicant no. 2) and Vivek Bareja obtained Fund Based Loan of Rs. 400 lakhs and Non Fund Based Loan of Rs. 950 lakhs (Total Rs. 1350 lakhs) and submitted forged property document as collateral security of Plot No. J-13, Kailash Colony, New Delhi area measuring 462 Sqr. Yards registered in the name of Shri Rajesh Mehta vide Sale Deed No. 3624 dated 25.04.2001 and its chain documents and thereby caused loss to Canara Bank to the tune of Rs. 10.49 crores as on 01.06.2017. During July, 2016, the bank received a complaint from Shri Rajender Sharma, regarding the genuineness of the documents of the property with respect to J-13, Kailash Colony, Delhi, which was mortgaged with the bank as Shri Rajender Sharma claimed that he along with four other partners were owners of the said property by virtue of the Sale Deed dated 10.04.2008. The Bank sought opinion on the original Sale Deed dated 25.04.2001 from Panel Advocate Shri B.B. Tyagi, who vide report dated 28.07.2016 observed that the Sale Deed No. 3624 dated 25.04.2001 mortgaged with the Bank was not genuine. He further confirmed that Shri Rajesh Mehta had already sold the said property to one Shri Rajender Sharma and others vide Sale Deed No. 5670 dated 10.04.2008 i.e. prior to creation of equitable mortgage in favour of the Bank. Moreover, the accused borrowers did not repay the loan amount which was obtained on the basis of forged property document, which rendered the account NPA on 01.06.2017 with outstanding Rs. 10.49 crores. The matter was investigated at length by the Central Bureau of Investigation (for short ‘C.B.I.’) and it was revealed that accused-applicant nos. 1 and 2 were directors of M/s. Saigon Infratech Pvt. Ltd. and were having 100% shares in the said company and were also the main beneficiary of the money fraudulently availed on the basis of forged documents. They were also the authorised signatories of M/s. Saigon Infratech Pvt. Ltd. They had full knowledge about the forged documents and are therefore, responsible for causing the Canara Bank loss to the tune of Rs. 10.49 crores.

5. It is argued by the learned counsel for the applicants that the allegation against the applicants are concocted. M/s. Saigon Infratech Pvt. Ltd. (In short M/s. SIPL) is a registered company which carries out work of construction business which includes construction of Highway, Hospitals etc. The applicants are Directors of the said company. The applicant no. 1 is having 30% share of the company while the applicant no. 2 is having 70% share of the company. Around 2014, the company needed some financial assistance for which the applicant no. 2 wanted to purchase an immovable asset on the basis whereon financial assistance could be granted to him. Therefore, he came in contact with Mr. Rajesh Mehta through local property dealers and Mr. Rajesh Mehta showed desire to sell his property bearing no. J-13, Kailash Colony, New Delhi. In this regard various meetings took place between the applicants and Mr. Rajesh Mehta who himself represented to be the owner of the aforesaid property and showed the papers of his title. The applicant no. 2 had visited the said property and found that the same was occupied by Rajesh Mehta and after being satisfied about the genuineness of the claim of Rajesh Mehta, an agreement was executed between the applicant no. 2 and Rajesh Mehta in respect of the said property on 08.11.2014 for a sum of Rs.4.51 crores out of which an amount of Rs.163.59 lacs was paid to Rajesh Mehta through cheque. But agreement to sell which was entered between them was executed on the basis of assurance given by Rajesh Mehta that the property is free from all encumbrances. On the basis of the said agreement to sell, the loan could be extended to the company and as such the procedures for availing the financial assistance were initiated. The bank officials who were known to Rajesh Mehta apprised the applicant no. 2 that in case Rajesh Mehta gets inducted as the Director of the company, loan could be granted as the property was belonging to Rajesh Mehta, as the company of the applicants was in process of availing loan facilities from the Canara Bank to meet out its urgent requirement to complete the work and because the banks normally accept the personal guarantee of the Directors of the said company. Rajesh Mehta was inducted as a Director in the company of the applicants. However, the ownership of the property i.e. J-13, Kailash Colony, New Delhi was not transferred in the name of the applicants by that time. Thereafter the loan application was preferred under the signature of the applicant no. 2 and Rajesh Mehta. The affidavit signed by Rajesh Mehta and the title deed was also deposited in the bank by him on 30.04.2015. In the year 2016, one Rajendra Sharma contacted the applicant no. 2 informing him that the property regarding which he has entered into an agreement to sell with Rajesh Mehta, actually belonged to him as Rajesh Mehta had executed a sale deed in favour of Rajendra Sharma in the year 2008 on 10.04.2008. The applicant was not aware that Rajesh Mehta was not submitting genuine property documents in the Bank as security for the guarantee given by him for the financial facilities availed by M/s. SIPL. The applicants were completely unaware that the property never belonged to Rajesh Mehtra as original sale deed was handed over by Rajesh Mehta to the bank officers which was duly verified by the bank through its legal panel of Mr. Jitendra Kumar Jha.

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The verification of the Legal Scrutiny Report was duly verified by legal audit team through another panel lawyer namely Arvind Kumar Singh. From these facts, it is quite evident that not only the applicants but the bank was also quite sure about the veracity of chain of the documents of Rajesh Mehta in respect of the property in question. The applicant no. 2 after coming to know that Rajesh Mehta had committed fraud with the applicants’ company, immediately issued a show cause notice/legal notice to Rajesh Mehta for clarification of title/ownership of the said property and as soon as the applicants came to know regarding fraud committed by Rajesh Mehta, they immediately approached the Bank and a police complaint was filed by the applicant no. 2 dated 14.09.2016 which was received on 15.09.2016 at P.S. Sector 20, Noida, Gautam Budh Nagar. On 07.10.2016 Rajesh Mehta had tendered his resignation to the company and the same was recorded by the Registrar of the Company on 04.11.2018. It is pertinent to mention here that Rajendra Sharma and others persuaded the applicant no. 2 to enter an agreement to sell dated 18.10.2016 with them in order to collect a hefty amount of Rs.95.00 lacs from the applicant no. 2. Further they discouraged the applicants to take legal action against Rajesh Mehta. The applicant no. 2 in order to clear the title of the property in question, signed an MOU/settlement of deed dated 18.10.2016 with Rajendra Sharma, Suresh Kumar Yadav, Surendra Kumar, Umed Singh and Ram Kumar in order to resolve the dispute between Rajesh Mehta and Rajendra Sharma and its partners. When the process of settlement was going on, it further came to the knowledge of the applicant no. 2 that erstwhile owner of the property i.e. Om Prakash Mehta father of Rajesh Mehta had also entered into an agreement to sell with Harpal Singh and handed over some of the original title document to Harpal Singh. The applicant no. 2 asked Surendra Kumar and Rajendra Kumar Sharma regarding the same and they entered into a settlement dated 17.12.2016 wth Harpal Singh, wherein Harpal Singh had agrred to relinquish his right in the property for a consideration of Rs. 75,00,000/- The negotiation between the applicant no. 2 and Harpal Singh settled for Rs. 40,00,000/- out of which Rs. 5,00,000/- was paid to him and a cheque of Rs. 35,00,000/- was given subsequently. The sale deed could not be executed as it came to the knowledge of the applicants that one Bijender Singh is also having claim in the said property by virtue of legal agreement dated 13.08.2008. As there were already various claimants of the said property which have to be settled by applicant no. 2 prior to the execution of agreement dated 18.10.2016, revealing of the new facts of Sri Bijender Singh having interest in the said property created doubt in the mind of the applicant no. 2 regarding the competence of Rajesh Mehta to sell the said property and the applicant no. 2 requested Rajendra Sharma and his partners to firstly resolve the matter with Bijender Singh, only then he will execute the sale deed with them. When the applicant came to know that Rajesh Mehta had not submitted genuine property papers to the bank, the applicant no. 2 immediately inform the bank vide letter dated 28.07.2016 for recall of the property and securing it with fresh security acceptable to the bank, but the bank did not give any response to it. On 22.06.2017, the applicants had proposed for substituting the mortgage property with some other properties situated at Dehradoon numbered as Khasra No. 177 (ka) (kha) village Dhanaula Rain, Forest Fun and Food Field Sahastra Dhara Dehradoon and second property, Forth Floor Raj Plaza, Dilaram, Ram Bazar, Rajpur Road, Dehradoon, but the bank did not give any response to the offer given by the applicant. After several communications with the bank for substituting the fresh collateral properties for mortgaging, one another option was given to the bank to allow them to get the title of the disputed property number J-30, Kailash Colony, New Delhi, but the bank did not respond to the bona fide attempts to the applicants. The applicants had further proposed to settled the dispute in O.T.S. Proposal and requested the bank that the applicants would settle the claim on full and final basis for Rs. 400 lakhs but the bank authorities did not respond to the applicants’ proposal.

The applicants were therefore, the ultimate victim in the entire situation who have been defrauded by the other person and in order to protect the interest of the bank and to save the company’s business and goodwill, the applicant no. 2 personally negotiated with all the parties and personally deposited the original registered sale deed dated 21.04.2001 and 08.04.2008 with the bank in order to see that the bank may not suffer due to their aforesaid wrongful act. Despite all possible steps having been taken by the applicants to protect the interest of everybody including the bank the applicants have been wrongly made accused by the bank. Further it is mentioned that the applicant did not misuse the facilities given by the bank and they have used the loan only for business purposes. It is also not the case that they have not made any re-payment or caused any loss to the bank, as the applicants have already paid Rs. 1,64,25,206/- and the amount due is only Rs. 3,47,54,796/-. Apart from this, an amount of Rs. 1,45,49,105/- was still lying with the bank in the form of fixed deposit. Besides an amount of Rs. 85,08,347/- has been charged on account of interest and other charges by the bank since the blockage of the account. The C.B.I. after conducting investigation in the present case submitted charge sheet on 21.08.2019 against M/s SIPL through its Director Neeraj Tyagi, Neeraj Tyagi, Rajesh Mehta, Abhimanyu Pratap Singh Tyagi, under Section 120-B read with Section 420, 467 468, 471 I.P.C. whereon cognizance order dated 09.09.2019 was challenged by the applicants before this Court by filing an application under Section 482 Cr.P.C. No. 38658 of 2019 which was rejected by this Court vide order dated 24.10.2019, however, it was directed that since non-bailable warrants were issued against the applicants, it was provided that if the applicants appear before the trial court within a period of 30 days and seek bail, the same shall be disposed of in accordance with law, but if they do not appear before the court concerned within the said period, the court shall be at liberty to resort to take all coercive steps. The said order dated 24.10.2019 was further modified vide order dated 06.11.2019 in which the applicants were granted 30 days more time to surrender and move an application for bail. The applicants had filed a Special Leave to Appeal (Crl) No. 10394 of 2019 before Hon’ble Apex Court, against the judgment and order dated 24.10.2019 passed by this Court which was dismissed by the Hon’ble Apex Court vide order dated 25.11.2019, however, the interim protection granted was extended by further period of four weeks from that date.

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6. The applicants thereafter filed an application seeking anticipatory bail before the District & Sessions Judge, Ghaziabad which was rejected vide order dated 11.12.2019 on the sole ground that as the charge-sheet in the matter has been filed before the trial court, as per judgment of Hon’ble Supreme Court in Satpal Singh Vs. State of Punjab, 2018 (13) SCC 813, the anticipatory bail of the applicants was not maintainable. The said application was dismissed mechanically without going through the facts and ground of the anticipatory bail application and also ignoring the judgment of Hon’ble Supreme Court in the case of Bharat Choudhary Vs. State of Bihar, AIR 2003 SCC 4662 and Ravindra Saxena Vs. State of Rajasthan, 2010 (1) SCC 684 wherein the Hon’ble Supreme Court has clearly held that in certain facts and situation courts can grant anticipatory bail even if the charge sheet has been filed. It is noteworthy that the question pertaining to the limitation of period of protection granted under Section 438 Cr.P.C. as to whether the life of anticipatory bail should end at the time and stage when the accused is summoned by the court, is still engaging the attention of the Hon’ble Supreme Court in the case of Sushila Aggarwal & others Vs. State (NCT of Delhi) and another, 2018 (7) SCC 731. In this matter, the judgment of Satpal Singh (Supra) referred by the Special Judge in his order dated 11.12.2019 has also been mentioned by Hon’ble Supreme Court and as such this could not have been the sole ground for holding that the anticipatory bail application of the applicants was not maintainable. Further, it is mentioned that during course of investigation the applicant fully cooperated with the investigating agency and furnished all documents which were sought by the investigating agency. The applicants have appeared before it and rendered full cooperation and have never evaded any notice. C.B.I. did not feel need to arrest the applicants during investigation, the applicants have been falsely implicated due to misunderstanding. Further it is mentioned that the applicants themselves are victims of fraud and have not committed any illegality. They are renowned businessmen of the society and are in fear of arrest. They shall remain present before the trial court as and when directed by it, nor would they tamper any witness nor would they leave India without permission of the Court and were willing to furnish securities and undertakings to the satisfaction of the Court.

From the side of the applicant reliance has been placed upon Ravindra Saxena vs. State of Rajasthan, (2010) 1 SCC 684 wherein it has been laid-down that section 438 contains a salutary provision which has been introduced to prevent deprivation of personal liberty. It cannot be jettisoned on technicalities such as challan having been filed, the court must exercise its discretion judiciously. Anticipatory bail can be granted at any time so long as the applicant has not been arrested. He has then relied upon Bhadresh Bipinbhai Seth vs. State of Gujarat and another, (2016) 1 SCC 152 in which it has been laid-down that while considering application for grant of anticipatory bail, court is not concerned with feasibility of framing charge or merits thereof as that would be a matter before trial court for arriving at finding on evidence. Once charge is framed, question for consideration by court in application under section 438 Cr.P.C. is whether in the circumstances of the case, the applicant is entitled to anticipatory bail or not. He has then relied upon Bharat Chaudharay and another vs. State of Bihar and another, (2003) 8 SCC 77 in which it has been held that the factors to be taken into consideration for grant of anticipatory bail are the gravity of the offence and the need for custodial interrogation. The mere fact of taking of cognizance or filing of charge-sheet is not by itself bar against grant of anticipatory bail. He has also relied upon Sushila aggarwal and others vs. State (NCT OF DELHI) AND ANOTHER, (2018) 7 SCC 731, in which it has been held that whether anticipatory bail should be for a limited period of time, due to conflicting opinions of different Benches of Hon’ble Supreme Court, matter has been referred to Larger Bench of Hon’ble Supreme Court for authoritative decision.

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7. From the side of CBI grant of anticipatory bail has been vehemently opposed and has argued that this Court vide order dated 24.10.2019 had rejected the application of the applicants moved u/4 482 Cr.P.C. No.38658 of 2019 whereby quashing of the proceedings against them were prayed for and after rejecting the said application, a liberty was given looking to the fact that NBW had been issued against the applicants that, they should appear before the trial court within 30 days and seek bail but instead of surrendering before the trial court and seek bail, they misused the said liberty granted to them and moved modification application no. 1 of 2019 for seeking 30 days more time to surrender before the trial court which too was allowed by this Court vide order dated 6.11.2019 but even that indulgence granted by this Court was not availed and instead of appearing before the trial court, they chosen to approach Hon’ble Supreme Court by filing a Special Leave to Appeal (Criminal) No. 10384 of 2019 which vide order dated 25.11.2019 too has been dismissed making observation therein that interim protection granted shall remain extended for further period of four weeks from the said date of dismissal. But even now, the applicants instead of surrendering before the trial court and seek bail, have chosen to move for anticipatory bail against the provision of law laid-down by the Apex Court in Lavesh vs. State (NCT OF DELHI) (2012) 8 SCC 730 in paragraph nos. 10 and 12 following is held:

“10. According to the prosecution, if we look into all the above particulars coupled with the supplementary statements, it has been clearly made out, particularly, insofar as the appellant is concerned, that there was a definite allegation against him. Further, the appellant and other family members subjected the deceased to cruelty with a view to demand dowry, right from the date of marriage and also immediately before the date of her death.”

“12) From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declared as “absconder”. Normally, when the accused is “absconding” and declared as a “proclaimed offender”, there is no question of granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of Section 82 of the Code is not entitled the relief of anticipatory bail.”

8. In view of the above law, looking to the fact that NWB has been issued against the applicants, hence they would not be treated to be cooperating with the trial as they are not surrendering before the trial court rather are seeking anticipatory bail.

9. Further learned counsel for CBI has relied upon the judgment of Hon’ble Supreme Court in case of Satyapal Singh Vs. State of Punjab, AIR 2018 SC 201, paragraph no. 14 of which is quoted here-in-below.

“14.. In any case, the protection under Section 438, Cr.P.C. is available to the accused only till the court summons the accused based on the charge sheet (report under Section 173(2), Cr.P.C.). On such appearance, the accused has to seek regular bail under Section 439 Cr.P.C. and that application has to be considered by the court on its own merits. Merely because an accused was under the protection of anticipatory bail granted under Section 438 Cr.P.C. that does not mean that he is automatically entitled to regular bail under Section 439 Cr.P.C. The satisfaction of the court for granting protection under Section 438 Cr.P.C. is different from the one under Section 439 Cr.P.C. while considering regular bail.”

10. After having considered the arguments of the learned counsel for the parties and having gone through the rulings cited above, I am of the view that looking to the fact that the applicants were 100% share holder of the company in question, it cannot be disbelieved that they would be having knowledge about the sale deed of the property in question to be forged one. There does not appear to be any motive for the co-accused Rakesh Mehtra to mortgage the said property in order to gain benefit for the company in which he was not having any share.

11. While considering the application moved under section 482 Cr.P.C. No.38658 of 2019, this Court has already expressed its opinion about strong case being made out against the accused-applicants and also taking into consideration the fact that NBW has been issued against them, they were given 30 days time to appear before the court to seek regular bail which time was further got extended by the applicants by moving a modification application no. 1 of 2019 which too was allowed and additional time of 30 days to surrender before the trial court was granted vide order dated 6.11.2019 but both these indulgences have not been availed by the applicants and thereafter they went to Hon’ble Supreme Court to file SLP against this Court’s order dated 24.10.2019 which too has been dismissed by the Apex Court vide order dated 25.11.2019 and simultaneously further interim protection of four weeks was granted which too has not been availed by the accused-applicants by surrendering before the trial court and seek regular bail, it appears to be an abuse of process of court/law by the accused-applicants by nor surrendering before the trial court and seek regular bail instead of that application for anticipatory bail has been moved. I do not find any good ground to grant anticipatory bail to the accused-applicants in the present case on merits either.

12. Since there is dispute with respect to the fact as to whether after submission of charge-sheet, the anticipatory application should be entertained or not, without going into controversy of the said matter, I find that on merits it is not a fit case in which the anticipatory bail requires to be granted considering the conduct of the accused-applicants.

13. The anticipatory bail application is accordingly rejected.

Order Date :- 3.1.2020

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