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BA 153/2022 in RA 183/2022
MHCC020031172022
IN THE COURT OF SPECIAL JUDGE,CBI FOR GR.BOMBAY
AT BOMBAY
BAIL APPLICATION NO.153 OF 2022
IN
REMAND APPLICATION NO.183 OF 2022
IN
RC NO. 4/E/2017­CBI/EOB/MUMBAI
(CNR No.MHCC02­003117­2022)
Brijesh Lohiya
S/o. Sushil Lohiya
Occupation: Business,
Age 43 years,
Permanent resident of
1003/1004 A Wing,
Vastu Tower, Evershine Nagar,
Malad West,
Mumbai 400064
(Currently in Arthur Road Jail)
…. Applicant/Org.
Accused No. 4
V/s
Central Bureau of Investigation
(EOB), Mumbai
Through its Joint Director,
Economic Offence Wing, CBI Building,
11th Floor, Plot No. C­35A, ‘G’ Block,
Bandra Kurla Complex (BKC),
Near MTNL Exchange, Bandra (East),
Mumbai 400098.

…. Complainant
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BA 153/2022 in RA 183/2022
Appearances:
Ld S.P.P. Shri. J.K. Sharma for CBI, EOB, Mumbai.
Ld. Adv. Shri. Aabad Ponda @ Adv. Shri. Sajal Yadav I/b Adv. Shri. Raj
Raut for applicant.
CORAM : HIS HONOUR SPECIAL JUDGE
SHRI A.S. SAYYAD
CBI SPECIAL COURT (C.R.No.52)
(IN CHARGE OF C.R.No.47)
DATE : JUNE 03, 2022.
(DICTATED AND PRONOUNCED IN OPEN COURT)
: ORAL ORDER :
The applicant seeks his release on bail by way of this application
under section 439 of Cr.P.C. in connection with crime no. RC No.
4/E/2017 registered with CBI, EOB, Mumbai for the offences punishable
under section 120­B r/w 420, 467, 468, 471 of I.P.C. r/w section 13(2)
r/w 13(1)(d) of P.C. Act.
2.

Heard Ld. Advocate Shri. Aabad Ponda appearing for the
applicant and the Ld. SPP Shri. J.K. Sharma for the prosecution at the
length of considerable time.
Background of facts :
3.

On 13.05.2017 a case registered by the complainant against the
Directors and Proprietors of M/s. Stelkon Infratel Pvt. Ltd., M/s. Apollo
Enterprises, M/s. Kundan Trading, M/s. Disney International, M/s. Anek
Trading Pvt. Ltd., M/s. Lubeez Enterprises, M/s. Pawan Enterprises,
M/s. Lemon Trading Company, M/s. Padilite Traders, M/s. Fine Touch
Impex, M/s. Azure Enterprises, M/s. Seabird Enterprises and M/s. Iconic
Enterprises and unknown others and public servants for the offences
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BA 153/2022 in RA 183/2022
mentioned in the opening para of order. It is alleged that during 2014­
16, 13 entities i.e. 11 firms and 2 companies were floated by way of
using Import and Export Codes (IEC) in the name of fictitious or non­
existent. Further current accounts were opened in the name of said
entities in the various banks i.e. Punjab National Bank, Central Bank of
India, Corporation Bank, Canara Bank, Axis Bank, and E­State Bank of
Hyderabad now State Bank of India, Mumbai. At the point of relevant
time, false and fabricated import documents such as Bills of Entries,
Invoices, Bill of Lading etc. purportedly issued by Jawaharlal Nehru
Custom House (JNCH) Nhava Sheva, Mumbai and New Custom House
(NCH) Mumbai in the name of these enterprises before the banks
mentioned above and thereby fraudulently remitted foreign exchange in
US Dollar equivalent to Rs. 2252.82 crores to various entities at
Hongkong. It is alleged that the accused Mohd. Farooque, Mohd. Gaus,
Mohd. Husssain @ Raja, the present applicant, Kiran Kokare @ Sonu
Kalia and other accomplices induced poor and illiterate persons to share
their KYCs, by giving petty amount and using some KYCs documents
firms and companies were floated in their names making them Directors
and Proprietors of the said entities. The said accused persons opened
IEC, VAT and other registrations for the 13 entities (11 firms and 2
companies) and opened current accounts in the branches of Punjab
National Bank, Canara Bank, Corporation Bank, e­State Bank of
Hyderabad, Central Bank of India and Axis Bank at Mumbai. All the
accused including the present applicant in pursuance of their criminal
conspiracy collected huge amount of cash running into crores of rupees
from the various entities, who wanted to fraudulently forex remittance
at abroad. Specifically the unaccounted cash layered through various
Angadias, cheque discount brokers and the accounts of members of
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BA 153/2022 in RA 183/2022
Multistate Co­operative Societies viz. Renukamata, Vishwakalyan,
Mangaldeep, Venkatesh, Dyaneshwari and others. Further the said
unaccounted cash was credited through RTGS into the account of the
said 13 entities in the banks. It is alleged that the applicant being a
Custom House Agent (CHA) was actively involved in the instant fraud
which is evident from a property transaction which was purportedly
made in between the applicant and Smt. Aasma Farooque Shaikh in the
month of April 2017, by way of executing a Memorandum of
Understanding to purchase the company i.e. M/s. GLS Electronics
Industries Ltd. In such a way the applicant is one of party to huge
conspiracy alongwith other accused.
4.

This application was strongly resisted by the prosecution vide
reply Exh.2 contending therein that the gravity and nature of offence is
very serious as it is an economic offence. The present applicant has
actively involved in the alleged crime as there is a property transaction
of huge amount in between him and the other accused. The applicant is
close associate of prime accused Mohd. Fqrooque Shaikh. The applicant
used to hand over the format of Bill of Entries, Invoices, rubber stamps
of Custom officers in order to accommodate to the said illegal forex
transaction by way of forged documents i.e. Bill of Entries, Invoices, Bill
of Lading etc. purportedly issued by JNCH, Nhava Sheva, Mumbai.
There is a active complicity of the present applicant in the alleged crime
with other accused. There is a clinching material to show the complicity
of the present accused in the alleged crime while committing alleged
offence. Further investigation is ongoing. In case the applicant is
enlarged on bail, probability of absconding from court of justice may not
be ruled out.

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5.

BA 153/2022 in RA 183/2022
I have given my anxious consideration to the submissions made
by both the sides and perused the material on record.
6.

The Ld. Advocate appearing for the applicant vehemently
submitted that there are only 4 circumstances upon which the applicant
is implicated in the alleged case. It is submitted that period of offence
was to be shown took place during period 2014.­16. FIR was registered
on
13.05.2017,
investigating
agency
has
carried
out
detailed
investigation running in number of pages and has concluded
investigating and filed charge­sheet on 19.05.2022. According to Ld.
Advocate for the applicant this being a documentary case everything has
recovered during the investigation. It is submitted that there is no direct
concern of the present applicant with the other accused. Whatever
alleged transactions have been shown to be took place between the
applicant and the accused Mohd. Fqrooque Shaikh were through
account to account and not direct. The applicant is innocent and has not
prepared or forged document in collusion with the other accused. The
applicant had never provided any format and assisted the accused in
committing the alleged offence. The present accused is arrested after 5
years of registration on 22.02.2022 and since then he is behind bar. The
applicant is married and earning person of his family. Except him
nobody other is remained to look after his family. Now the investigation
is already completed and therefore no purpose would be served by
keeping behind bar the applicant. The sum and substance of the
argument of the Ld. Advocate for the applicant was that in
circumstances as above, the applicant would be entitled for bail. In
support of his submission, Ld. Advocate for the applicant relied upon
the following citation :
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Shelia Sebastian Vs. R. Jawaharaj & Anr. in Criminal Appeal No.
359­360 of 2010 decided on 11.05.2018, SCC 018 SCC OnLine SC
522.
By referring the citation supra, the Ld. Advocate prayed for allow the
application and to release the accused on bail.
7.

As against this, Ld. SPP for the prosecution while justifying its
reply Exh.2 submitted that the present accused is a close associate of the
prime accused viz. Mohd. Fqrooque Shaikh who committed huge fraud
in multiple crores. According to Ld. SPP in pursuance to conspiracy, the
present applicant has rendered his active participation to prime accused.
During the investigation it is revealed that the present applicant is
deeply involved in the alleged crime. There is a more than sufficient
evidence available against the present accused on record which shows
his active complicity of the present applicant in the alleged crime. This
being an economic and serious offence whereby the applicant alongwith
other accused committed huge fraud in multiple crores. The nature and
gravity of offence is very serious. The further investigation is going on.
Therefore, applicant would not be entitled for bail. While buttressing his
contention, the Ld. SPP for the prosecution relied upon various
authorities as follows :­
1.

Jameel Ahmad Vs. Mohammed Umair Mohammad Haroon
& Anr. reported in 2022 SC 222. Ld. SPP for the prosecution
supplied his emphasis on the principles and guidelines while
considering the bail application in the said judgment such as the
court amongst others, must consider the prima facie view of
whether the accused has committed the offence, nature of the
offence, gravity, likelihood of the accused obstructing in any
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manner or evading the process of justice. Grant of bail draws an
appropriate balance between public interest in the administration
of justice and protection of individual liberty in a criminal case.
The prima facie examination is on the basis of analysis of the
record, and should not be confused with examination in detail of
the evidence on record to come to a conclusive finding.
2.

Criminal Bail Application No. 3323 of 2021 in the matter of
Radha Kapoor Khanna Vs. CBI of Hon’ble High Court, Bombay.
3.

Akash Kumar Pathak Vs. State of Odisha, BLAPL No. 502 of
2021 decided on 17.06.2021 by the Hon’ble High Court Orissa.
4.

State of Bihar & Anr. Vs. Amit Kumar @ Bacha Rai in
Criminal Appeal No. 767 of 2017. The Hon’ble Supreme Court of
India, in para 34 of the said judgment held that economic offenes
constitute a class apart and need to be visited with a different
approach in the matter of bail. The economic offences having
deep rooted conspiracies and involving huge loss of public funds
need to be viewed seriously and considered as grave offences
affecting the economy of the country as a whole and thereby
posing serious threat to the financial health of the country.
Further in para 35 of the said judgment, it is alleged that while
granting bail, the court has to keep in mind the nature of
accusations, the nature of evidence in support thereof, the
severity of the punishment which conviction will entail, the
character of the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of the
accused at the trial, reasonable apprehension of the witnesses
being tampered with, the larger interests of the public/ State and
others similar considerations.

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By referring all these citations, the Ld. SPP prayed for rejection of the
application.
8.

I have carefully gone through the citations supra referred by both
the sides. Upon perusal of material available on record it appears that
the present applicant at the relevant time allegedly working as a Custom
House Agent (CHA). In view of the citations submitted by the Ld. SPP
for the prosecution while considering bail application, the court has to
considered the foremost and important fact such as the nature and the
gravity of the accusation, the antecedence of the applicant including the
fact as to whether he has previously undergone imprisonment on
conviction by the court in respect of any cognizable offence, the
possibility of the applicant to flee from justice and whether the
accusation has been made with the object of injuring or humiliating the
applicant by having him so arrested. The Ld. Advocate for the applicant
vehemently supplied his emphasis on mainly 4 circumstances such as an
FIR registered on 13.05.2017, accused was arrested on 22.02.2022,
investigation completed after 5 years and charge­sheet filed on
19.05.2022. Investigation is already completed and there is nothing
remained to probe with the present applicant. Applicant is married
person having responsibility of his family members, there is nothing
serious role played by this applicant. While buttressing his contention,
the Ld. Advocate tried to explain each and every circumstances which
emerges in paras from 1 to 160 of the charge in charge­sheet dated
19.05.2022.
9.

In view of the above submission of both the sides and in view of
the principles laid down in various cited decisions supra in respect of
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principles and guidelines while considering the bail application, it needs
to prima facie reassess as to what material reflects against the accused.
So far as the present applicant, it is alleged by the prosecution that the
present applicant is also one of the party of huge conspiracy in alleged
fraud with the prime accused Mohd. Fqrooque Shaikh. In para no.12 of
charge, the prosecution alleged that the present applicant being CHA
was privy to the conspiracy with Shri. Mohd. Fqrooque Shaikh and both
used to meet in their office and at the Hotel Sabalan and had
discussions. The present applicant hosts for Customs officers at this
hotel and arranged meeting with Shri. Mohd. Fqrooque Shaikh. In
addition to this, the applicant gave huge amount of cash of his clients to
Shri. Mohd. Fqrooque Shaikh for illegally sending in Forex to the parties
at Hongkong.

Further the applicant managed the officers of DRI,
Customs, to hush up the illegal activities committed by Shri. Mohd.
Fqrooque Shaikh in his imports and exports of Chinese goods and the
consequent forex payment.
10.

Whereas in para no.49 of charge of the charge­sheet, the
allegations against the applicant appears that after small scale imports
Mohd. Fqrooque Shaikh obtained ECC bill of entry of the said entities
with low value from the CHAs for preparing forged BE. When more Bes
are required, the applicant used for furnish the Bill of Entry No. of the
imports made by other entities. The applicant used to provide computer
generated format of Bes, rubber stamps of Customs officers, invoice
models of Chinese suppliers, Bill of Lading etc.
11.

In para no.54 of charge of the charge­sheet, it is alleged against
the applicant that subsequently Smt. Bushra and Smt. Nazneen
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prepared the invoice in the name of Chinese company, as
per the
format provided by the present applicant. In para no. 146 of charge of
the charge­sheet, serious allegations against the applicant appears that
the applicant acquired a company named M/s. GLS Electronic Industry
Pvt. Ltd. at Haridwar and had availed a Term Loan and CC loan from
SBI. The said loan became NPA on 24.12.2010 and bank took physical
possession of the factory under SARFAESI Act. Mohd. Fqrooque Shaikh
gage a letter through his wife Smt. Aasma Farooque Shaikh that she will
acquire the factory for Rs.9 crores and paid Rs.75 lacs through cheque
on 19.11.2016. The wife of Mohd. Fqrooque Shaikh paid Rs.9 crores
approximately in the said company’s account from her account held
with Induslnd Bank. The applicant has received approximately Rs.9.75
crores to Rs.10 crores in his company’s account from Mohd. Fqrooque
Shaikh through Aasma Farooque Shaikh.
12.

On careful perusal of the paras of charge­sheet cited supra, prima
facie it appears the active involvement of the applicant with the prime
accused Mohd. Fqrooque Shaikh in the alleged fraud. There are many
specific allegations made against the present applicant in respect of the
alleged fraud which is in multiple crores. There is a prima facie
clinching material to show the active complicity of the present applicant
in the alleged huge fraud. Keeping in mind as the above specific serious
allegations against the present applicant, this court is of the considered
opinion that though in this case charge­sheet has been filed but so many
facts remained to be unearth relating to allege fraud. No doubt, this is a
serious and economic offence relates to multiple crores, in such
circumstances this court is of the considered opinion that if the
applicant is enlarged on bail, probability of tampering the prosecution
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evidence and witnesses may not be ruled out. The argument of the Ld.
Advocate for the applicant was though appreciable on the facts of the
case, however, the active complicity of the applicant in the alleged
crime would not be entitled to applicant enlarge him on bail. An
application deserves to be rejected. Hence order :
ORDER
Bail Application No. 153 of 2022 is rejected and disposed of
accordingly.

Digitally
signed by
AKBARALI
AKBARALI SHABBIR
SHABBIR SAYYAD
SAYYAD
Date:
2022.06.03
16:43:11
+0530
Date : 03.06.2022
Dictated on
Transcribed on
Signed by HHJ on
: 03.06.2022
: 03.06.2022
: 03.06.2022
(A.S. Sayyad)
Special Judge (C.B.I.),
City Civil & Sessions Court,
Gr. Bombay.

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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE AND TIME
03.06.2022 (04.42 p.m.)

NAME OF STENOGRAPHER
MRS. K.Y. INAMDAR
(STENOGRAPHER)
Name of the Judge
(with Court Room No.)

Shri A.S. Sayyad
C.R. No.52
Date of Pronouncement of JUDGMENT/
ORDER
03.06.2022
JUDGMENT/ORDER signed by P. O. on
03.06.2022
JUDGMENT/ORDER uploaded on
03.06.2022