1
Common Order in BA 844/2020 & BA 845/2020
IN THE COURT OF SPECIAL JUDGE FOR CBI AT GREATER BOMBAY
MHCC020068142020
BAIL APPLICATION CBI NO.844 OF 2020
(R.C. No.219/2020/E004/CBI/EOнI/New Delhi)
Kapil Wadhawan
Residing at : 13th, 14th, 15th and 16th floor,
D.B. Breeze, Khar (West)
Mumbai н 400 052.
Versus
Central Bureau of Investigation
CBI, EOUн1, Camp Office, 10th Floor,
CBI Office, Bandra Kurla Complex,
Mumbai.

.. Applicant
.. Respondent
ALONGWITH
MHCC020068162020
BAIL APPLICATION CBI NO.845 OF 2020
(R.C. No.219/2020/E004/CBI/EOнI/New Delhi)
Dheeraj Wadhawan
Residing at : 13th, 14th, 15th and 16th floor,
D.B. Breee, Khar (West),
Mumbai н 400 052.
Versus
Central Bureau of Investigation
CBI, EOUн1, Camp Office, 10th Floor,
CBI Office, Bandra Kurla Complex,
Mumbai.

.. Applicant
.. Respondent
Mr. Amit Desai, Ld. advocate for both the applicants.
Mr. Ashok Kumar Bagoria, Ld. SPP for CBI.

2
Common Order in BA 844/2020 & BA 845/2020
CORAM :
S.U.WADGAONKAR
SPECIAL JUDGE (CBI)
(COURT ROOM NO.47)
DATED :
31st JULY, 2020.
COMMON ORDER
Bail Application No.844 of 2020 is filed by applicant/accused
Kapil Wadhawan and Bail Application No.845 of 2020 is filed by
applicant/accused Dheeraj Wadhawan seeking default bail under
Section
167(2)
of
Criminal
Procedure
Code.

Both
these
accused/applicants were arrested on 26.04.2020 in connection with the
FIR R.C. No.219 of 2020. They were produced before the Court on
27.04.2020. According to the applicants/accused they are entitled for
bail under the provision of Section 167(2) of Cr.P.C in view of failure of
prosecution/CBI to file report as contemplated under Section 173(2) of
Cr.P.C. within the prescribed period of 60 days.
2.

Both applications are arising out of same crime and factual matrix
is almost on same footing, so it is preferred to decide common order.
3.

It is to be noted that the FIR R.C. No.219/2020 dated 07.03.2020
was registered against accused/applicants and others for the offences
punishable under Sections 420 r/w 120нB of the Indian Penal Code and
Sections 7, 12, 13 (1) (d) r/w 13(2) of the Prevention of Corruption
Act. Both the accused/applicants were produced before the Court on
27.04.2020. According to the averments in the application statutory
period of 60 days under Section 167(2) of the Code was getting over on
26.06.2020. On 25.06.2020 a chargesheet was filed which was not as
required in law. The purported chargesheet was neither accompanied
by any statement of witnesses under Section 161 or any documents of
which the prosecution was placing reliance upon. Further purported
chargesheet indicates that the investigation was affected due to the
3
Common Order in BA 844/2020 & BA 845/2020
pandemic Covidн19, so investigation is sought to be get open with
liberty to file supplementary chargesheet under Section 173(8) of
Cr.P.C.
4.

According to the Ld. Senior Counsel for the accused/applicants,
the incomplete chargesheet was filed on 25.06.2013, which was not a
complete chargesheet. The documents as required were came to be
filed on 09.07.2020. So an indefeasible right had accrued to the
accused/applicants to be released on default bail under Section 167(2)
of the Code and the accused/applicants to avail the right, have filed the
present applications on 30.06.2020.
5.

Ld. Senior Counsel relied on the decision in Satya Narain
Musadi Vs. State of Bihar, (1980) 3 SCC 152, wherein it is held that
It is obligatory upon the police officer to forward alongwith
report all the documents or relevant extracts thereof, on which
the prosecution proposed to rely and the statements recorded
under Section 161 of all the witnesses of whom the prosecution
proposed to examine as witnesses at the trial.
6.

According to him the aforesaid legal proposition has been
affirmed by the Constitution Bench of the HonТble Supreme Court in K.
Veeraswami Vs. Union of India and Ors., (1991) 3 SCC 655, wherein
it is held that the report/chargesheet is complete if it is accompanied
with all the documents and statement of witnesses as required by
Section 172(5) of the Code.
7.

Further he placed reliance in the case of Rakesh Kumar Paul Vs.

State of Assam, (2017) 15 SCC 67, wherein it is held that н
‘the right for Уdefault bailФ has ripened into the status
of indefeasibility, it cannot be frustrated by the prosecution
on any pretext. No subterfuge should be resorted to, to
defeat the indefeasible right of the accused for Уdefault
bailФ during the interregnum when the statutory period for
4
Common Order in BA 844/2020 & BA 845/2020
filing the chargesheet or challan expires and the submission
of the chargesheet or challan in court.
8.

According to the Ld. Advocate for accused/applicants in view of
law laid down by the HonТble Supreme Court/ Hon’ble High Court, the
report under Section 173 is considered as complete only when
accompanied by all the documents and all the statements recorded
under Section 161 of Cr.P.C. that shall be referred to and relied upon by
the prosecution. According to Ld. Senior Counsel, nonнcompliance of
Section 173(2) and (5) results in default bail under Section 167(2) of
the Code. So in support of his submission he placed reliance on those
cases, which are decided by HonТble Bombay High Court Sunil
Vasantrao Phulbande Vs. State of Maharashtra, (2002) 3 Mh. L.J.
689 ; Ranjeet Manohar Machrekar Vs. State of Maharashtra in Cr.
BA No.509 of 2014 decided by Hon’ble Bombay High Court by order
dated 14.07.2014 ; Manik Chaugule Vs. State of Maharashtra, 2017
SCC Online Bom 3402. After going through these cases it indicates
that accused were prosecuted under the provision of NDPS Act and the
chargesheet was filed without material document i.e. Report of
Chemical Analyzer. So the Court held that the Chemical Analyzer
Report is a material document and the chargesheet rendered incomplete
and such filing of chargesheet amounts to failure to file the same which
in turn confers on the accusedТs right to be released on bail under
Section 167(2) of the Code.
9.

Further he placed reliance in the case of Venkatareddy Vs. State
of Andhra Pradesh, 1993 SCC Online AP 567, wherein the Court
released accused on default bail as on the date of completion of
prescribed period the chargesheet was not in the official custody of
Court. Further he placed reliance in the case of Achpal @ Ramswaroop
and Anr. Vs. State of Rajasthan, (2019) 14 SC 599, wherein default
bail under Section 167 (2) is granted when chargesheet is returned by
5
Common Order in BA 844/2020 & BA 845/2020
the Magistrate for technical fault and there was no chargesheet on
record on the expiry of 90th day.
10.

According to the Ld. counsel for accused/applicants, in view of
the law laid down by the HonТble Supreme Court and the HonТble High
Courts it is clear that purported chargesheet filed in present case on
25.06.2020 was not a report within the mandate of Section 173 and
therefore, the accused/applicants should be released on default bail
under Section 167(2) of the Cr.P.C.
11.

Countering the contention of accused/applicants, Ld. SPP for CBI
submitted that the chargesheet was filed within the period of 60 days.
It was a complete chargesheet in the eye of law.

Once the proper
chargesheet was filed, there is no right for the accused to seek default
bail. The accused/applicants are not entitled for default bail on the
pretext that police report submitted under Section 173(2) has to
accompany the documents, statements mentioned in Section 173(5) of
the Code.

Ld. SPP for CBI relied on the decision in the case of
Narendra Kumar Amin Vs. CBI & Anr. in Criminal Appeal
No.94/2015 arising out of SLP (Cri.) No.9599/2013 decided by
Hon’ble Supreme Court on 15.01.2015. The facts of reported case
and the facts of the present case are similar and identical one. In the
reported case the period was getting over on 03.07.2013.

The
prosecution before the expiry of prescribed period of 03.07.2013, filed
report as contemplated under Section 173(2) but the documents and
statements of witnesses relied by the prosecution against accused were
came to be filed after the expiry of prescribed period on 08.07.2013.
The Hon’ble Court considered the question, whether the chargesheet
filed in terms of Section 173(2) of Cr.P.C. but unнaccompanying with
the documents and statements under Section 173(5) of the Code could
be said to be complete chargesheet and in that context the Court held
6
Common Order in BA 844/2020 & BA 845/2020
that filing of police report containing particulars as mentioned under
Section 173(2) amounting to completion of filing of report. The Hon’ble
Supreme Court confirmed the order of rejection of default bail of
accused raised on the ground that the police report is without statement
of witnesses and documents.
12.

In the light of above submission the main aspect emerged for
consideration that whether report/chargesheet filed by CBI in present
case on 25.06.2020 under Section 173(2) of the Code could be said to
be a complete chargesheet for the consideration of default bail, as it was
not accompanied with documents and statements of witnesses as
contemplated under Section 173(5) of the Code.
13.

In the present case the chargesheet submitted on 25.06.2020 is
set out all the details as required by Section 173(2) of the Code. The
name of the accused is mentioned, the nature of offence is mentioned,
the list of documents is mentioned, the list of witnesses is mentioned. It
is also stated that there was a sufficient evidence to proceed against
accused. There was enough prima facie material available from the
chargesheet filed under Section 173(2) of the Code to apply Court its
mind. The details of investigation carried by the investigation agency
was mentioned. Role of each accused was described and investigating
officer expressed opinion that the accused persons were found to be
involved in the suspected offences.
14.

From the above discussion it could be culled out that though
documents mentioned in Section 173(5) are part of the chargesheet,
they for some reasons not accompanied with the report under Section
173(2) of the Code at the time of filing it before Court. Police
report/chargesheet submitted under Section 173(2) of the Code upon
investigation it is necessary requirement to be complied with by
7
Common Order in BA 844/2020 & BA 845/2020
forwarding documents and statement of witnesses. But merely because
they were not forwarded simultaneously with the report sent under
Section 173(2) of the Code such police report was not stand invalid or
vitiated. (The requisite documents were filed on 09.07.2020.)

The
present case is identical with the facts in the case Narendra Amin
(supra), therefore, ratio laid down in the case of Narendra Amin
(supra) is squarely applicable to the present case, as issue fallen for
consideration before HonТble High Court in the case of Narendra Amin
in regard to the default bail under Section 167 of the Code. In that case
also the chargesheet as contemplated under Section 173(2) of Cr.P.C. is
filed within the prescribed time but the statements of witnesses and
documents were came to be filed after the prescribed period. The
HonТble Court held that the filing of police report containing the
particulars under Section 173(2) amounting to completion of filing of
the report.

It is pertaining to note that the Hon’ble Court also
considered the Constitution Bench Judgment in K. Veeraswami case
(supra) and distinguish the same.
15.

Ld. Senior Counsel for the accused/applicants submits that the
reliance placed by the prosecution on Narendra Amin case, the case is
misplaced as same is contrary to the Constitution Bench Judgment in K.
Veeraswami and is per incuriam. According to him in Narendra Amin
judgment it states that the observations made by the Constitution Bench
in K. Veeraswami case was not made in the context of police report
under Section 2(r) r/w Section 173(2) (5) and (8) of the Code.
According to him, the judgment of K. Veeraswami and Satya Narain
Musadi (supra) it is clear that the findings in Narendra Kumar Amin
case is exнfacie contrary and liable to be ignored. According to him, it is
well settled that in the case of conflict between benches of Supreme
Court, the lower Court must follow the decision of larger bench in the
8
Common Order in BA 844/2020 & BA 845/2020
case of the Constitution bench.
16.

It is to be noted that after going through the K. Veeraswami case,
which is decided by Constitution Bench, wherein question arose before
HonТble Court in context of Section 5 (e) of Section 5(1) of the PC Act.
Consequently, argument was advanced that the public servant is
entitled to an opportunity before the investigating officer to explain the
alleged disнproportionality between assets and non sources of income.
The investigating officer is required to consider his explanation and
chargesheet filed by him must contained such averments. The failure to
mentioned that averment would vitiate the chargesheet. In that context
the HonТble Court laid down what is requirement of chargesheet, so the
facts are distinguishable. Controversy arose in present case in regard to
default bail as contemplated to Section 167(2). The issue of default bail
is not before the Constitution Bench. Accordingly the Devision Bench of
Narendra Amin case also considered the judgment of K. Veeraswami
and distinguish the same. So the submission advanced by Ld. Senior
Counsel for the accused that Narendra Amin judgment is contrary to the
law, which could be ignored is not assist to him.
17.

Furthermore, the judgment of Satya Narain Musadi (supra) is
also distinguishable from the fact of present case as controversy before
HonТble Court is in regard to the validity of police report under Section
173(2) of the Code and taking cognizance of the offence on the basis
thereof by the magistrate in context to Section 11 of the Essential
Commodities Act.

The Section provided that no Court shall take
cognizance of any offence punishable under this Act except of report in
writing of the facts constitute the said offence made by a person, who is
public servant. Further the case of Manu Sharma Vs. State (NCT of
Delhi), (2010) 6 SCC 1 is also distinguishable to the facts of the
present case as the HonТble Court laid down the principles in regard to
9
Common Order in BA 844/2020 & BA 845/2020
the requirement of Section 173(5) is obligatory and the investigating
officer has to forward the statement of witnesses and documents
alongwith the chargesheet.

The said principle is laid down while
deciding the issue that the role of public prosecutor and his duties.
18.

Ld. Senior counsel for the accused submits that in purported
chargesheet investigation with regard to the fundamental allegations
are incomplete. He referred Para 49н50 of the chargesheet.

The
chargesheet filed on 25.06.2020, was only filed with the purpose of
circumventing and right to statutory bail which accrued upon
applicants/accused under the provision of Section 167 of Cr.P.C. In this
context he referred the case of Rakesh Kumar Paul (supra). After
going through the chargesheet it indicates that the investigation is
required to be kept open with respect to valuation of collateral
properties and other aspects. It is to be noted that after going through
the report same is sufficient to apply the judicial mind and secondly,
prima facie offences are made out against the accused for the alleged
offence. Section 173(8) of the Code empowers the investigating officer
to submit a further report if he is able to collect further evidence.
Further reference is made of the judgment referred by CBI in Dinesh
Dalmia Vs. CBI, (2007) 8 SCC 770. The Hon’ble Supreme Court while
dealing with the question of right to bail under Section 167(2) that so
long as a chargesheet is not filed within the meaning of sub Section (2)
of Section 173 of the Code, investigation remains pending. Necessary
corollary is therefore that the filing of chargesheet in terms of Section
173(2) marked as end of pending investigation. Right under Section
167(2) does not revive only because the further investigation remains
pending within the meaning of sub Section (8) Section 173 of the Code.
So in these circumstances, in the present case it cannot be said that the
chargesheet is incomplete, as the factum of further investigation is kept
10
Common Order in BA 844/2020 & BA 845/2020
open.
19.

While dealing with the case referred by applicants in Rakesh
Kumar Paul case the Hon’ble Court observed that the the Court kept
open the application of default bail pending for some days, so that in
the meantime the chargesheet is submitted to defeat the indefeasible
right accrued to the accused. In that context the ratio is laid down, so
same is not applicable to the present case.

It is to be noted that
judgment relied and decided by the HonТble High Court Sunil
Phulbade, Ranjit Machrekar and Manik Chougule (referred supra),
are distinguishable as those cases are related to the prosecution of
NDPS Act, wherein the Chemical Analysis Report in regard to the
narcotic substance, which is a prime basis of crime is not filed with
chargesheet. So Court came to the conclusion that it is incomplete
chargesheet and released the accused on default bail those cases are
distinguishable.

Furthermore, otherwise also judgment of HonТble
Supreme Court in the case of Narendra Amin would prevail over them.
The judgment referred by Ld. Counsel for accused is distinguishable as
in the case of Achpal @ Ramswaroop and Matchumari China in both
the cases there was no chargesheet on record on expiry of 90 days as
chargesheet is returned by the Court for technical fault, so the Court
held that appellants entitled to default bail.
20.

Ld. Advocate for the accused/applicants submits that it is
imperative that the earlier decision to Narendra Amin case referred by
him including Constitution Bench Judgment in K. Veeraswami be
applied and followed in view of the decision in Sundeep Kumar Bafna
Vs. State of Maharashtra and Anr., (2014) 16 SCC 623, wherein it is
held as under :
11
Common Order in BA 844/2020 & BA 845/2020
’19…….it is often encountered in High Courts that two or
more mutually irreconcilable decisions of the Supreme Court are
cited at the Bar. We think that the inviolable recourse is to apply
the earliest view as the succeeding ones would fall in the category
of per incuriam.’
21.

Further he referred the judgment of Devision Bench of HonТble
Bombay High Court in the case of Prakash Gobindram Ahuja Vs.
Ganesh Pandharinath Dhonde and Ors., (2016 SCC Online Bom
8884) has held as follows :
У177…..As a result, we answer the question No.5 to the
effect that, in case of conflict between the decisions of Coн
ordinate Benches, it is not the later but the earlier one in point of
time, which should be followed and applied by the Subordinate
Courts to the facts and circumstances of a case before it, unless,
ofнcourse, earlier decision is considered and explained in the later
decision.Ф
22.

It is to be noted that in the light of above discussion the judgment
of Narendra Amin (supra) has already considered the Constitution
Bench judgment in K. Veeraswami. Furthermore, while dealing with
fallen issue in present case, the judgments referred on behalf of
accused/applicants are dealt with and those are distinguishable from
the facts of present case. So the cited case of Sudeep Kumar Bafna and
Prakash Ahuja is of no avail to the accused/applicants.
23.

Thus, in view of above discussion non accompanying the
documents and statements of witnesses with the chargesheet which was
filed on 25.06.2020 did not anyway is a incomplete chargesheet for the
purpose of consideration of default bail. Accordingly, no grounds are
made out or no right is existed to grant default bail to the
accused/applicants.
24.

I would like to consider alternative submission made by Ld. SPP
for CBI in nutshell. According to him, otherwise also a chargesheet is
came to be filed against accused for the offence punishable under
12
Common Order in BA 844/2020 & BA 845/2020
Section 409 r/w 120нB of IPC which is punishable for imprisonment for
life, so prescribed period to file chargesheet as contemplated under
Section 167(2) is 90 days, which was getting over on 25.07.2020. The
prosecution has filed principal chargesheet as well as documents before
that, so no right accrued to the accused as contemplated under Section
167(2) for default bail.
25.

Ld. advocate for the accused/applicants submits that there is a
mere reference to Section 409 of IPC in Para No.51 of the purported
chargesheet. There is no averment or allegations of any УentrustmentФ
of any property or conversion of any property, which are ingredients
essential for an offence under Section 409.

A mere reference to a
Section without any averments or allegations or making of mere blad
allegations does not make out a prima facie case.

DHFL being the
owner of property and itself being an accused, no criminal breach of
trust could have been committed as an owner cannot commit breach of
trust of his own property. An owner as a matter of law cannot be
entrusted with his own property.
26.

In support of his submission he placed reliance in the case of
Chelloor Mankkal Narayan Ittiravi Namboodiri Vs. State of
TravancoreнCochin, AIR 1953 SC 478 ; Velji Raghavji Patel Vs. State
of Maharashtra, (1965) 2 SCR 429 ; CBI Vs. Duncans Agro
Industries Ltd., (1996) 5 SCC 591. The sum and substance of the ratio
laid down in above case is that, to constitute the offence under Section
405 of Indian Penal Code, the first requirement is that accused was
entrusted with some property or with any dominion or power over it.
An owner of property in whichever way uses his property and with
whatever intention will not be liable for misappropriation. Even if he is
not the exclusive owner thereof (considered the issue of partnership).

13
27.

Common Order in BA 844/2020 & BA 845/2020
Further Ld. Senior counsel for accused submits that a loan does
not constitute any entrustment for the purpose of Section 405 of IPC. In
this context the judgments are placed in P. Uday Kumar Vs. State of
Jharkhand in Cri. Appeal No.2121 of 2010 decided on 25.10.2010 ;
Satishchandra Ratanlal Shah Vs. State of Gujarat, (2019) 9 SCC
148; Ashok C. Gandhi Vs. State of Gujarat, (2011 SCC Online Guj.
5818), wherein it is held that the amount was given as a loan and such
the amount given cannot be said to have been entrusted to the accused.
When the dispute arises out of loan transaction between parties, a mere
breach of promise does not constitute the offence of criminal breach of
trust.
28.

According to Ld. Senior Counsel for accused/applicants Section
409 has been introduced without basis and to deprive the applicants of
their right to bail.

He referred Para No.12 of the say placed by
prosecution, where it indicates that the CBI has filed the chargesheet
within the prescribed period of 60 days. So he claimed that even in say
also CBI is not claiming constitution of offence of Section 409 of IPC.
29.

Considering the submission it is to be considered whether prima
facie an offence punishable under Section 409 r/w 120(B) of IPC is
made out. It is an admitted fact that the investigating officer has not
made any whisper in his say pertaining to the constitution of offence
punishable under Section 409 of IPC. It is well settled that the
omissions committed by investigating officer does not assist to the
accused if otherwise case is made out by the probable evidence. So not
mentioning of or making the whisper of Section 409 in say by
investigating officer does not assist to the accused if case is otherwise
made out. After going through the chargesheet Para No.51 indicates
that the above facts constitutes the offence under Section 120(B) r/w
409 of IPC. It means that the investigating officer considered the facts
14
Common Order in BA 844/2020 & BA 845/2020
enumerated in Para No.1 to 50 of the chargesheet.
30.

The sum and substance of the allegations leveled against accused
are that, a criminal conspiracy was hatched during the month of April to
June, 2018 among Rana Kapoor, then Promoter/Director of M/s Yes
Bank Limited, accused/applicant Dheeraj Wadhawan, who is the
Director of M/s RKW Developers Private Limited, accused/applicant
Kapil Wadhawan, Promoter/Director of M/s Diwan Housing Finance
Corporation Limited (DHFL) and others which includes family members
of Rana Kapoor. Pursuant to the said criminal conspiracy M/s. Yes Bank
Limited invested Rs.3700/н crores in the short term debentures of M/s.
DHFL. Simultaneously Kapil Wadhawan through M/s DHFL paid a
kickback of Rs.600/н crores to Rana Kapoor and his family members in
the grab of builder loan of Rs.600/н crores to M/s DOIT, owned by
family members of Rana Kapoor. Loan was sanctioned by M/s. DHFL to
M/s DOIT on the basis of mortgage of a subнstandard property having
very meager value. M/s DHFL has not redeemed the amount of
Rs.3700/н crores. Further, M/s Yes Bank Limited also sanctioned loan of
Rs.750/н crores to M/s RKW Developers which is a DHFL Group
Company and Dheeraj Wadhawan, who is the Director of it. (According
to the further investigation, loan taken by M/s Belief Relators Private
Limited which is the company of Dheeraj Wadhawan and loan funds
were siphoned from this company through M/s RKW Developers.) Loan
was sanctioned for the purpose of Bandra Reclamation Project, Mumbai.
Whole amount was siphoned off by Kapil Wadhawan since entire
amount was transferred by M/s RKW Developers to M/s. DHFL without
making investment in Bandra Reclamation Project. Thus, it alleged that
prima
facie
disclose
the
commission
of
offences
against
accused/applicants and others. Further allegations indicates that the
sanction of loans either by Yes Bank or DHFL, wherein gross violation of
15
Common Order in BA 844/2020 & BA 845/2020
rules and regulations.
31.

Here
I
would
like
to
clarify
that
charge
is
against
accused/applicant with the aid of Section 120нB of IPC r/w Sec. 409 of
IPC. So, I would like to discuss the alleged misdeeds committed by Rana
Kapoor pursuant to the criminal conspiracy with accused/applicants
and others. Status of Rana Kapoor is the then Promoter/Director of M/s
Yes Bank Limited. So in this scenario the allegations and state of facts
itself sufficient to attract the essential ingredients to constitute the
offence of criminal breach of trust that accused had dominion over the
property. As at the relevant point of time Rana Kapoor was the head of
institution of Yes Bank and had the dominion over the financial affairs
of institution. So, there is no necessity to make specific averments in
respect of entrustment or dominion over the property. The allegations
also indicates that this transaction took place in violation with the
prescribed rules and regulations.

This facts itself are sufficient to
constitute prima facie ingredients of offence punishable under Section
420 as well 409 of the IPC.
32.

One
of
the
submissions
advanced
on
behalf
of
accused/applicants is that the DHFL as a owner cannot commit the
breach of trust of its own property. It is to be noted that prima facie
Kapil Wadhawan or Rana Kapoor have controlling the affairs of the Yes
Bank or DHFL. The Yes Bank is a artificial person, which works through
its CEO/officers. In regard to the commission of offence of criminal
breach of trust in the present case the victims or aggrieved person is the
public at large, who invested/deposited money in those Yes Bank or
DHFL or having shares. So in this peculiar facts of the case the cited
cases on behalf of accused that owner cannot commit the breach of trust
on its own property, is not applicable to the present case.

16
33.

Common Order in BA 844/2020 & BA 845/2020
One of the submissions and cited cases pertaining to the fact that
the loan transaction does not constitute the offence of criminal breach
of trust. It is to be noted that in the present case either investment by
Yes Bank in DHFL or sanction of loans by Yes Bank to the companies of
accused/applicants is with a fraudulent and dishonest intention and
violating the rules and regulations. So in this scenario the said
transactions are not regular and plain transactions of loan. So
submissions as well as cited cases referred supra are distinguishable
from the present case.
34.

In view of above discussion, there is prima facie ingredients are
available on record to constitute the ingredients of offence under
Section 409 r/w 120нB of IPC. So in this scenario the prescribed
punishment for the offence punishable under Section 409 is life
imprisonment, thereby prescribed period of 90 days as contemplated
under Section 167(2) of the Code was getting over on 25.07.2020. The
chargesheet is filed on 25.06.2020. The documents and statements are
filed on 09.07.2020, so same is within the prescribed period if we
considered the offence punishable under Section 409 of IPC. So on this
ground also accused are not entitled for default bail.
35.

Today Ld. advocate for the accused/applicants placed order in
Criminal Application No.LD/VC/OCR/186/2020 dated 28.07.2020,
wherein while remitting the present case before Magistrate, this Court
has made prima facie observation about the constitution of offence
punishable under Section 420, 409 r/w 120(B) of IPC, wherein the
Hon’ble High Court held that those observations made only for the
purpose of remitting the proceeding. The course opened to the
Metropolitan Magistrate with the case in accordance with the law
without the impugned observations. It is to be noted that hereinabove
for the consideration of bail applications, it is necessary to deal with the
17
Common Order in BA 844/2020 & BA 845/2020
factum that whether offence punishable under Section 409 of IPC is
made out or not. Accordingly this Court has answered in regard to Sec.
409 of IPC herein above. Same discussion is prima facie discussion
which is for the the purpose of consideration of bail applications only.
So, as per the observations and decision of Hon’ble High Court, the
Metropolitan magistrate is to proceed with the case in accordance with
law without any influence of observations made herein above in the
discussion of bail application in regard to the reference of Sec. 409 of
IPC.
36.

In the light of above discussion no grounds are made out to
enlarge the accused/applicants on default bail. In the result, both the
applications are liable to be rejected. In the result, I proceed to pass
following order :
ORDER
1. Bail application of accused Kapil Wadhawan bearing No.844 of
2020 is rejected.
2. Bail application of accused Dheeraj Wadhawan bearing No.845
of 2020 is rejected.

31.07.2020
Dictated on
Transcribed on
(S.U.WADGAONKAR)
Special Judge (CBI)
Gr.Bombay
: 31.07.2020 & on earlier dates.
: 31.07.2020 & on earlier dates.

18
Common Order in BA 844/2020 & BA 845/2020
УCERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDERФ
UPLOAD DATE AND TIME
NAME OF STENOGRAPHER
NAME OF THE JUDGE
: 31.07.2020 AT 3.42 PM
: MRS. K.S. JADHAV
HHJ Shri.S.U. Wadgaonkar
(C.R.No.47)
Date of Pronouncement of Order 31.07.2020
Order signed by the P.O. On
31.07.2020
Order uploaded on
31.07.2020