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Bail Application No. 959/2018
CNR No. MHCC02­016614­2018
IN THE COURT OF SPECIAL JUDGE FOR C.B.I.
FOR GREATER BOMBAY AT MUMBAI
BAIL APPLICATION NO. 959 OF 2018
IN
REMAND APPLICATION NO. 1234 OF 2018
(R.C. No. BSM/2018/E/0004­CBI/BS & FC/Mumbai)
MR. MOHINDER KUMAR SHARMA,
S/o. Shri. Bakshi Ram Sharma,
Age 54 years, working as Chief
Internal Auditor in Punjab National
Bank having permanent address A­25,
New Dhauladhar Colony, Lower Barol,
Post Office Dari, Dharamshala,
Himachal Pradesh and presently
residing at 202, Adarsh Society,
near Wadala Telephone Exchange,
Dadar (E), Mumbai.

Applicant/
Orig. Accd. No. 12
V/s.
THE CENTRAL BUREAU OF
INVESTIGATION, Bank Securities &
Fraud Cell, Mumbai.

Respondent/
Orig. Complainant
CORAM :
H.H. THE SPECIAL JUDGE,
SHRI. JAYENDRA C. JAGDALE,
(C. R. No. 51).

DATED :
19th January, 2019.

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Bail Application No. 959/2018
Mr. Aabad H.H. Ponda, Ld. Adv. for the applt./original accd. no. 12.
Mr. Omprakash, Ld. S.P.P. for the CBI/Respdt.

ORAL ORDER
1
This is an application placed by the applicant/original
accused no. 12 Mr. Mohinder Kumar Sharma for regular bail u/sec. 439
of the Code of Criminal Procedure against whom the offences
punishable u/sec. 120­B r/w 409 & 420 of Indian Penal Code, 1860 r/w
section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 have
been registered by Central Bureau of Investigation, BS & FC, Mumbai.
2
Heard arguments advanced by Ld. Advocate for the
applicant/original
accused
no.

12
CBI/Respondent.

The Ld. Advocate for applicant/accused has
reiterated the contents of application.

and
Ld.

S.P.P.

for
the
The prosecution has strongly
objected to grant prayer in the application. It has given say on the
application on record vide Ex­2. I have perused the application and
documents produced on record on behalf of the applicant/accused. I
have also perused the say filed on record by the prosecution.
3
The applicant/accused has submitted through this bail
application that he was arrested by CBI on 18/12/2018. He was posted
and functioning as Chief Internal Auditor in Punjab National Bank, Mid
Corporate Branch, Brady House, Mumbai during the period from
26/11/2015 to 15/07/2017. He was required to report non­checking
and
reconciliation
of
all
SWIFT
messages
data/information entered in the CBS system.

with
related
to
The accused persons
facilitated issuance of unauthorized/fraudulent LOU, whereby the
accused company viz. M/s. Chandri Paper & Allied Products Pvt. Ltd.

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Bail Application No. 959/2018
accrued wrongful gain and wrongful loss of Rs. 9,09,63,956.48 to
Punjab National Bank, Mumbai.

The offences for which, the
applicant/accused is charged do not fetch any death term.

The
applicant/accused was Chief Concurrent Auditor in the bank governed
by guidelines issued by the Inspection and Audit Division of Bank.
Auditing and reporting are done strictly as per the e­RBIA template
provided by the Inspection and Audit Division of Bank. As a Concurrent
Auditor, apart from the periodical reports, daily reports have also been
submitted to his controlling office. To have an access for SWIFT, one
requires user­id and password of the same. The applicant/accused has
not been provided with any such user­id/password.

There was
unlimited power given to accused Gokulnath Shetty, which was noticed
only in February 2018 by Punjab National Bank top management after
LOUs became due and the scam was revealed and a circular dated
12/02/2018 giving user based limit for issue of LOUs. There was no
system of checks and balances for the purposes of ensuring that SWIFT
messages had to be sent under the control of one person.

The
applicant/accused had never worked in Forex Department of the bank.
The applicant/accused had limited access of viewing the CBS. CBS was
not integrated with the SWIFT and therefore any transaction entered in
SWIFT would not be reflected in CBS.

The applicant/accused has
abused his official position as a public servant and dishonestly
performed his duty improperly thereby facilitated the perpetration of
fraud of Rs. 9,09,63,956.48 on Punjab National Bank, MCB, Brady
House, Mumbai and wrongful gain to M/s. Chandri Paper & Allied
Products Pvt. Ltd. The present FIR was registered on 09/03/2018, but
the applicant/accused arrested after 9 months.

The investigation in
present case is complete as far as the present applicant/accused is
concerned. The entire case is based on documents and nothing has
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Bail Application No. 959/2018
been recovered or discovered at the instance of applicant/accused. He
is not a beneficiary to any of the proceeds of entire crime. On the basis
of mere suspicion without any material on record, no criminal liability
can be fastened as against the present applicant/accused.

He is a
patient of known diabetes with history of jaundice and detected HCV Ab
Positive. He is continuously on medication with restricted diet. In the
result, the applicant/accused has prayed to allow the application.
4
The prosecution has filed its reply and submitted that as
per complaint dated 09/03/2018 lodged by Shri. Avneesh Nepalia,
DGM, Punjab National Bank, Zonal Office, Mumbai, during April 2017,
Shri. Gokulnath Shetty, the then Dy. Manager and Shri. Manoj
Hanumant Kharat, Single Window Operator, both from Punjab National
Bank, Brady House, Mumbai entered into a criminal conspiracy with
Shri. Aditya Rasiwasia and Shri. Ishwardas Agarwal, both Directors of
M/s. Chandri Paper and Allied Products Pvt. Ltd., Mumbai and
unknown others in the matter of dishonest and fraudulent issuance of
two Letters of Undertaking (LOUs) for USD 560444.44 and USD
860867.38 respectively, totalling to USD 1421311.82 (equivalent
amount of Rs. 9,09,63,956.48), favouring SBI, Antwerp, Belgium on
25/04/2017, the object of which to cheat Punjab National Bank, MCB,
Brady House, Mumbai. The said two LOUs were fraudulently issued to
M/s. Chandri Paper & Allied Products Pvt. Ltd., Mumbai without any
sanctioned credit limit to the company and also no 110% margin was
provided by the said company.

The accused bank officials without
obtaining required request application, documents and approval of the
authorities thereto and without making entries in the bank system,
transmitted to the overseas banks. The applicant/accused was posted
as Concurrent Auditor in Forex Department of Punjab National Bank,
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Bail Application No. 959/2018
MCB, Brady House, Mumbai during November 2015 to July 2017. He
dishonestly and deliberately did not report on checking and
reconciliation of all SWIFT transactions with related data/information
entered into CBS System by the accused bank officials posted in Foreign
Exchange Department.

The applicant/accused was arrested on
18/12/2018 in this case. The case is at crucial stage of investigation
and there is every reason to believe that the arrested accused would
resort to all means for thwarting the investigation by tampering with
the evidence that remains to be collected and influence the witnesses,
which is highly detrimental to the case. Hence, the Ld. SPP for CBI has
prayed to reject the application.
5
Herein, I would like to refer the case of Nimmagadda
Prasad v/s. Central Bureau of Investigation [2013 DGLS (Soft.)
404], wherein the Hon’ble Lordships of Hon’ble Supreme Court of India
have specifically described the considerations for bail application and
observed 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 punishment which conviction will entail, the character of the
accused, the circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of accused at the trial,
reasonable apprehension of the witnesses being tampered with, the
larger interests of public/State and other similar considerations.
6
In view of the abovementioned criteria, it is important to
mention that the prosecution has not raised any point that there is
difficulty for securing the presence of accused at the time of trial. The
prosecution has not raised any point regarding the larger interests of
the State or similar kind of consideration. A vague statement made by
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Bail Application No. 959/2018
the prosecution that at this crucial stage of investigation, the arrested
accused would thwart an investigation by tampering with the evidence
that remains to be collected and influence the witnesses.
7
It is clear from the record that the investigation against the
present applicant/accused is complete and charge­sheet has already
been filed against him. The apprehension expressed by the prosecution
that the applicant/accused may thwart the investigation by tampering
the evidence and influence the witnesses, however no details have been
given by the prosecution as to which witnesses, the applicant/accused
may influence and what kind of evidence, the applicant/accused may
tamper. The applicant/accused himself undertakes to co­operate with
the police and remain present whenever required. In short, these are
vague allegations and on the basis of such vague allegations, the
personal liberty of applicant/accused can not be curtailed. There is no
any proper reason to keep the applicant/accused in judicial custody for
indefinite time. Moreover, I have already mentioned that the charge­
sheet has already been filed in the matter.

Therefore, the
applicant/accused is require to be released on bail subject to certain
conditions. Hence, the application deserves to be allowed. Accordingly,
I proceed to pass the following order :­
ORDER
1
Bail Application No. 959/2018 in R.A. No. 1234/2018
(R.C. No. BSM/2018/E/0004­CBI/BS & FC/Mumbai) is hereby allowed.
2
The applicant/original accused no. 12 MR. MOHINDER
KUMAR SHARMA is hereby directed to be released on executing P.R.
Bond of Rs. 50,000/­ (Rupees Fifty Thousand Only). Further, he is
hereby directed to furnish one or more sureties of the like amount
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Bail Application No. 959/2018
within two months.
3
The applicant/accused is directed not to leave India
without obtaining prior permission from this Court.
4
Further, till furnishing surety, the applicant/accused is
directed to surrender his passport, if any, with CBI.
5
The applicant/accused is directed to furnish his permanent
address as well as permanent contact numbers to the CBI.
6
The applicant/accused is directed to furnish addresses of
his two relatives and their permanent addresses and contact numbers to
the CBI.
7
The applicant/accused is further directed not to tamper
with the prosecution evidence and to assist in disposal of trial.
8
The applicant/accused shall not commit any offence while
on bail.
9
The applicant/accused is hereby directed to remain present
before investigating officer on every Tuesday in between 10.00 a.m. to
4.00 p.m. till further order.
10
Breach of any of the above conditions will amount to
cancellation of bail granted to the applicant/accused.

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11
Bail Application No. 959/2018
The applicant/accused is hereby allowed to be released
provisionally after furnishing cash bail of Rs. 50,000/­, temporarily for
the period of two months.
12
Bail Application No. 959/2018 in R.A. No. 1234/2018
stands disposed of accordingly.
(Order dictated and pronounced in open court.)

(Jayendra C. Jagdale)
The Special Judge for CBI,
City Civil & Sessions Court,
Gr. Bombay.

Dated : 19/01/2019
Dictated on
Transcribed on
Signed on
Delivered to Certified
Copy Section on
: 19/01/2019
: 19/01/2019
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:
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Bail Application No. 959/2018
“Certified to be true and correct copy of the original signed
judgment/order”.
Upload Date & Time : 19/01/2019 at 5.37 p.m.
Smt. G. K. Kotawadekar
Name of the Stenographer
H.H.J. SHRI. JAYENDRA C. JAGDALE (C. R. No. 51)
Date of pronouncement of judgment/order :­19/01/2019
Judgment/order signed by the P.O. on :­19/01/2019
Judgment/order uploaded on :­19/01/2019