IN THE COURT OF SPECIAL JUDGE (CBI) FOR GREATER BOMBAY BAIL APPLICATION NO.630 OF 2017
IN CBI REMAND APPLICATION NO.861 OF 2017
Kamlesh Jethmal Shah, aged 37 yrs.
R/o. Siddhesh Bldg., ‘E’ Wing, 37th floor,
Flat No.374, Balram Street, Grant Road,
Mumbai 400 007. )..applicants/accused No.2
V/s.
The State (Through CBI/ACB, Mumbai.) )
No. RC BA/ 1/2017/A0027 Mumbai, )
dated 20/09/2017 )..Respondent/CBI, ACB
Appearance : Ld. Adv. Mr. Ashok Singh for applicants/accused No.2. SPP Mr. Fareed for the respondent/CBI, ACB, Mumbai. CORAM : H.H. THE SPECIAL JUDGE (CBI) SHRI VIVEK V. KATHARE
DATE : 13/10/2017 (C.R.NO.53) ORAL ORDER
1.This is consecutive second bail application filed by the applicant/accused No.2 Kamlesh Shah.
2.It is the prosecution case that the applicant/accused alongwith coaccused were arrested by the Officers of respondent on 22/09/2017, in connection with the offence vide FIR No. RC BA/
1/2017/A0027 Mumbai, for the offence punishable u/s.12, & the other
offences under the provisions of Prevention of Corruption Act, 1988.
3.Initially, the applicant/accused with co accused were remanded to Police Custody till 28/09/2017 and thereafter, were remanded to Judicial Custody.
4.It is further evident that vide Bail Application No.596/2017, the bail was refused to the present applicant/accused. However, by the same application, the co accused Prathmesh G. Masdekar was enlarged on bail by order dated 04/10/2017.
5.In nutshell, the prosecution case as unfold from the FIR would reveal that SP, CBI, ACB, Mumbai, received the written complaint from Mr. A. Mutthu (the original complainant), the Director of M/s. Saf Yeast Co Pvt. Ltd., alleging that on 16/09/2017, when he met accused No.1 in the case, who was Deputy Commissioner of Income Tax, for the income tax assessment of his company for the financial year 2014 2015, at that time, accused No.1 threatened the complainant that he will inform the Hon’ble Supreme Court about his adverse findings about the company having cheated French people so that the Court will take cognizance of his findings against the complainant in the matter which is pending before it.
Further, it is the prosecution case that accused No.1 showed to the complainant the complaint against his Company regarding the tax evasion and told that he will make the said complaint disappear and pass favourable assessment order without considering the said complaint and for the said purpose demanded bribe of Rupees Five Crores, which on the request of the complainant brought down to Rupees Three Crores by accused No.1.
6.It is further alleged that accused No.1 told the complainant that if, he was not in a position to arrange the said cash, then he is ready to accept the bribe amount in the form of bullion. Subsequently, accused No.1 introduced the present applicant/accused Kamlesh Shah, who is the Bullion Trader.
The verification panchnama dated 20/09/2017, further discloses that accused No.1 Jaipal Swami has
demanded the bribe amount of Rupees Three Crores and agreed to accept the same through cheques at the instance of present applicant/accused.
7.Subsequent to the rejection of first bail application, it appears that without urging any new ground, the present application has been filed interalia on the ground that the applicant/accused is being falsely implicated in the case, he has no any criminal antecedents to his discredit, either in FIR or in the complaint the name of applicant/accused Kamlesh Shah is not reflecting.
The applicant/ accused has deep roots in the society and has family to maintain and therefore, in the event of his release on bail, he would not abscond and would abide by the terms & conditions imposed by the Court.
8. (Exh.2). The respondent/CBI resisted the application by filing reply It is contended that the applicant/accused had voluntarily offered his services to accused No.1 Jaipal Swami, by way of accepting the bribe amount in the form of three cheques worth Rs.03,09,00,000/. The prosecution equally relied upon the transcription in respect of recorded conversation which clearly reveals the involvement of the present applicant/accused by way of his aiding & abetting the main culprit i.e. accused No.1 in the commission of offence by accepting the bribe amount by the public servant.
9.It is further submitted that the grounds urged in the present application have been dealt with by this Court in its order dated 04/10/2017 and for want of any change in circumstance present application deserves to be rejected.
10.Having heard the Ld. Counsels for both the parties. At the first instance, it needs to observe that merely because there is passage of time subsequent to the rejection of earlier bail application, there is no other change in circumstance brought on record by way of present application. On that count itself, the present application deserves to be rejected.
11.However, when the grounds have been raised again, it needs to be again delved into to certain extent.
12.The Ld. Counsel for the applicant/accused submitted that the applicant/accused had no knowledge of the transaction being made between the accused No.1 & the complainant and he was merely present at the office of accused No.1 at his request, where he was informed that the client of accused No.1 is willing to purchase the gold through the market and as the applicant/accused has roots in the gold
market, he has offered his services.
He had no role to play in the dealing with the complainant & accused No.1, except that he agreed to
issue the account details to the complainant so that the complainant could legally buy the gold by way of cheque payment. It is further submitted that the entire transaction between the complainant & the
applicant/accused, was purely a business transaction, wherein the complainant was to issue the cheque in favour of the applicant/accused and in turn, the applicant/accused would deliver the gold, which is the part of his routine business activities.
13.It is further submitted that the respondent have seized various articles & documents and there remains nothing to be further seized and therefore, no further custodial interrogation of the applicant/accused is necessitated.
14.As against this it is submitted by Ld. SPP that the transcription in respect of the recorded conversation between accused No.1, the complainant & the present applicant/accused clearly reveals
the prima facie involvement of applicant/accused in the commission of offence i.e. he aided & abetted the main accused by way of offering his services as a bullion trader and accepted the cheque worth Rupees 3.09 Crores under the pretext of purchase of bullion from the market.
15.As observed supra, the recitals of transcription of the recorded conversation prima facie reveals that the main accused No.1 Jaipal Swami used the services of the present applicant/accused Kamlesh Shah, a Bullion Trader, for allegedly purchasing the gold from the bribe amount which was offered in the form of three cheques, issued in the name of the firm of applicant/accused i.e. Sanghavi Bullion Pvt. Ltd.
16.The transcription of recorded conversation further reveals that when the complainant expressed his difficulty to pay bribe by way of cash, then the accused No.1 Jaipal Swami suggested the alternate
mode of payment of bribe i.e. by way of issuing the cheques in the name of applicant/accused Kamlesh Shah. For that purpose, the accused No.1 Jaipal Swami assured the complainant that he is having good relations with Bullion Trader i.e. the present applicant/accused, who was introduced with the complainant during the trap proceeding and the applicant/accused offered his services by way of accepting the bribe amount in the form of three cheques worth Rs.3.09 Crores in the name of his firm. In pursuance of the same, when the cheques were being offered to accused No.3 Prathmesh Masdekar, the office boy of applicant/accused No.2 Kamlesh Shah, he was caught red handed.
17.The contention of the applicant/accused that merely on a friendly call being given by accused No.1 Jaipal Swami, he entered into a picture i.e. by way of offering his services for purchasing the gold by a genuine customer and in pursuance of the same, he had tendered his account details etc. and accepted the cheques, which has no concern with the transaction or dealing between the complainant & accused No.1. However, the recitals of the transcription nowhere disclosed that the complainant had any intention to purchase the gold and that too from the accused persons. One fails to understand that as to why the complainant would have approached to accused No.1 Jaipal Swami with whom he is not having cordial relations on account of the dispute due to the earlier tax assessments. Admittedly, the applicant/accused Kamlesh Shah, the bullion trader was an unknown person so far the complainant is concerned. Admittedly, the main accused No.1 Jaipal Swami was not having cordial relations with the complainant, then it is quite unnatural that the complainant would have approached accused No.1 Jaipal Swami for purchasing the huge quantity of gold at the instance of applicant/accused No.2 Kamlesh Shah. Prima facie, the said defence is not acceptable.
18.The transcription in respect of recorded conversation between the trio would further reveal that accused No.1 Jaipal Swami had discussed with the present applicant/accused in presence of the complainant as to whether it would be proper to accept the amount in the form of bullion or cash to which the present applicant/accused had suggested the main accused to accept the same in form of bullion. Equally, the recitals of the transcription would reveal that accepting the bribe by showing it as purchasing the bullion by way of cheque would not create any doubt to the Assessment Authorities.
The applicant/accused further assures the complainant that he would adjust the bribe amount of Rupees Three Crores by way of raising the invoices and by way of increasing the rate & quantity of the articles accordingly. The said applicant/accused, as per the conversation, suggested to use the code language in respect of clearing of the cheques, so that nobody will entertain any doubt.
19. The above prima facie overwhelming evidence brought on record substantiate the deep rooted conspiracy between the applicant Kamlesh Shah & accused No.1 Jaipal Swami and the active complicity of the present applicant/accused in the commission of offence.
20.Considering the gravity of the offence and prima facie evidence on record showing the involvement of the applicant/accused in the commission of offence, the bail application deserves to be rejected, in terms of order below :
ORDER
1. Bail Application No.630/2017 in CBI Remand Application No.861/2017, is hereby rejected.
2. Application is hereby disposed off accordingly.
(Pronounced in open Court)
Mumbai: Date: 13/10/2017 (VIVEK V. KATHARE) Special Judge (CBI) Court Room No.53, Gr. Bombay. Dictated on : 13/10/2017. Transcribed on : 13/10/2017. Signed on : “Certified to be true and correct copy of the original signed order”. 23/10/2017 at about 12.10 noon (Mrs. Vidya Abhijit Mande) Stenographer (H.G.) Court Room No.53 Name of the Hon’ble Judge : Shri. Vivek V. Kathare
(Court Room No.53) Date of pronouncement of Judgment/Order : 13/10/2017. Judgment/Order signed by Hon’ble Judge on : 23/10/2017 Judgment/Order uploaded on : 23/10/2017. at about 12.10 noon
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