BA 100/18
1
IN THE SPECIAL COURT FOR CBI AT GREATER BOMBAY
BAIL APPLICATION NO. 100 OF 2018
IN
REMAND APPLICATION NO. 138 OF 2018
(RC 05(A)/2018CBI, ACB, MUMBAI)
Sanjeev Raghunath Malhotra
…Applicant/Accused no.3
Versus
The State (CBI, EOW, Mumbai)
CORAM :
DATED :
…Respondent
HIS HONOUR JUDGE SHRI S.R. TAMBOLI
(COURT ROOM NO.47)
13.02.2018
SPP Mr. J.K. Sharma for the CBI, EOW.
Advocate Mr. Sujit Shelar for the applicant/accused no.3
ORDER
1.
In the instant application, accused has prayed for bail under Section
439 of the Cr. P. C.
2.
Ld. Counsel for the applicant/accused submitted that the present
accused has been arrayed as accused no. 3 in RC 05(A) CBI, ACB, Mumbai
and was arrested on 01.02.2018 for commission of the alleged offences
under Sections 7 and 8 of the PC Act, 1988. As per the prosecution case,
coaccsued no.1 is a Assistant Commissioner of Customs. Refund & TAR,
Audit (CRA) had demanded and illegal gratification from the accused no.
2, who is a director of M/s Hope (India) Polishing Works Pvt. Ltd. And M/s
Hope (India) Diamond Trading Company Pvt. Ltd. The amount was
demanded through the present accused for issuing favourable order with
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regard to the acceptance of the declared value of goods imported. On the
basis of the source information FIR came to be registered and trap came to
be laid. The amount of Rs. 2 lacs was seized from the cabin of the accused
no.1.
At that time, accused no. 1 and accused no. 2 and the present
accused came to be arrested. The amount of Rs. 9 lacs came to be seized
from the residence of the present accused.
3.
He further submitted that the present accused is a CA by profession
since several years and is respected person. The present accused and his
brother stay in the same permission i.e. Bunglow at Andheri. The applicant
stays on 1st floor and his brother stays on the ground floor of the said
bunglow. The said brother is heart patient and had been operated for heart
disease, earlier and therefore, he always keeps substantial cash amount in
his residence for emergency. Out of cash amount of Rs. 9 lacs shown
recovered from the said premises, an amount of Rs. 6 lacs is owned by the
said brother of applicant. Rs. 3 lacs shown recovered from the premises of
the applicant on the 1st floor is his cash in hand and keep in the house for
the day to day expenses and for other major expenses or an emergency.
The present accused and his brother had given satisfactory explanation
about the possession of the said cash amount. The said cash amount is
nothing to do with the commission of alleged offences. All the alleged
incriminating documents have been seized by the investigating agency. The
matter has been completely investigated so far as the present accused is
concerned. The present accused has his own residential premises and office
premises and since several years he is as practicing CA. He has deep roots
in the society. He will not abscond if he is released on bail. Hence, he
prayed that the accused be released on bail.
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4.
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PerContra, Ld. SPP for CBI, ACB, Mumbai submitted that the
accused no.1 demanded illegal gratification from the accused no. 2 through
present accused for handing over a favourable order with regard to the
acceptance of the declared value of the goods imported. The modus
operandi in the payment of illegal gratification is that the bill would be
raised by the accused no.2 in the name of the present accused. The present
accused was encashing the cheque and he was handing over it to the
accused no. 2 for making payment of the illegal gratification to the accused
no.1. CBI learnt that the accused no. 2 was handing over the illegal
gratification of Rs. 2 lacs to the accused no.1 in the afternoon of
01.02.2018 in the presence of present accused. Hence, FIR came to be
registered and trap came to be laid. At that time, present accused, accused
no. 1 and 2 were caught. The amount of Rs. 2 lacs was seized from the
inside bag from the cabin of the accused no.1. The recorded conversation
of the present accused and co accused shows the demand of illegal
gratification. The investigation is in progress. There is every possibility of
the tampering with the witnesses. Hence, he prayed that the application of
bail be rejected.
5.
To support his contention, Ld. Counsel for the applicant placed
reliance on the following decisions:
i) In B. Jayaraj vs. State of A.P., MANU/SC/0245/2014, Hon’ble
Apex Court observed that mere possession and recovery of the
currency notes from the accused without proof of demand will not
bring home the offence under Section 7 and 13(1)(d) of the PC Act.
ii) In Krishan Chander vs. State of Delhi , MANU/SC/0003/2016,
Hon’ble Apex Court observed that mere acceptance of any amount
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without the proof of demand would not bring the charge under
Section 7(1) and 13(1)(d) of the PC Act.
iii) In P. Satyanarayana Murthy vs. The Dist. Inspector of Police
and Ors., MANU/SC/1012/2015 similar observation has been made
by the Hon’ble Apex Court.
iv) Shashikant vs. Central Bureau of Investigation and Ors.,
MANU/SC/8639/2006
v) S. Murali Mohan and Ors. vs. State ,MANU/TN/3151/2017
vi) Vineet Narain and Ors. vs. Union of India (UOI) and Anr.,
MANU/SC/0827/1998
6.
In the cases, cited at paragraph 5 (iv) to (vi) Hon’ble Apex Court and
Hon’ble Madras High Court observed that the guidelines given in the CBI
Manual is mandatory.
7.
Relying on the aforesaid decisions, Ld. Counsel for the accused
submitted that in the present case demand has not been proved.
Prosecution has not disclosed the source information. Preliminary inquiry is
not been made on the source of information. Prosecution has not stated
exactly about the manner in which the conversation was recorded. Hence,
there is no prima facie case against the accused.
8.
PerContra, Ld. SPP for CBI, ACB, Mumbai also placed reliance on
the decision of Hon’ble Apex Court. It is delivered in Vineet Narain’s Case
(Supra.) and submitted that after making proper inquiry, CBI unit has laid
the trap.
9.
In Vineet Narain’s Case (Supra.) Hon’ble Apex Court observed as
under:
“12. The CBI Manual based on statutory provisions of the Cr.P.C. provides
essential guidelines for the CBI’s functioning. It is imperative that the CBI
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adheres scrupulously to the provisions in the Manual in relation to its
investigative functions, like raids, seizure and arrests. Any deviation from the
established procedure should be viewed seriously and severe disciplinary action
taken against the concerned officials.
19. Before we refer to the report of the Independent Review Committee
(IRC), it would be appropriate at this stage to refer to the Single Directive issued
by the Government which requires prior sanction of the designated authority to
initiate the investigation against officers of the Government and the Public Sector
Undertakings (PSUs), nationalised banks above a certain level. The Single
Directive is a consolidated set of instructions issued to the CBI by the various
Ministries/Departments in this behalf. It was first issued in 1969 and thereafter
amended on many occasions. The Single Directive contains certain instructions to
the CBI regarding modalities of initiating an inquiry of registering a case against
certain categories of civil servants. Directive No. 4.7(3) in its present form is as
under :
“4.7(3) (i) In regard to any person who is or has been a decision making
level officer (Joint Secretary or equivalent or above in the Central Government or
such officers as are or have been on deputation to a Public Sector Undertaking;
officers of the Reserve Bank of India of the level equivalent to Joint Secretary or
above in the Central Government, Executive Directors and above of the SEBI and
Chairman & Managing Director and Executive Directors and such of the Bank
officers who are one level below the Board of Nationalised Banks), there should
be prior sanction of the Secretary of the Ministry/Department concerned before
SPE takes up any enquiry (PE or RC), including ordering search in respect of
them. Without such sanction, no enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative Ministries/Departments by CBI
for obtaining necessary prior sanction as aforesaid, except those pertaining to any
officer of the rank of Secretary or Principal Secretary, should be disposed of by
them preferably within a period of two months of the receipt of such a reference.
In respect of the officers of the rank of Secretary or Principal Secretary to
Government, such references should be made by the Director, CBI to the Cabinet
Secretary for consideration of a Committee consisting of the Cabinet Secretary as
its Chairman and the Law Secretary and the Secretary (Personnel) as its
members. The Committee should dispose of all such reference preferably within
two months from the date of receipt of such a reference by the Cabinet Secretary.
(iii) When there is any difference of opinion between the Director, CBI
and the Secretary of the Administrative Ministry/Department in respect of an
officer up to the rank of Additional Secretary or equivalent, the matter shall be
referred by CBI to Secretary (Personnel) for placement before the Committee
referred to in Clause (ii) above. Such a matter should be considered and disposed
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of by the Committee preferably within two months from the date of receipt of
such a reference by Secretary (Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before
SPE takes any step of the kind mentioned in (i) above the case should be
submitted to the Prime Minister for orders.”
10.
In Amit Suresh Arya vs. Central Bureau of Investigation and Ors.,
MANU/MH/1345/2017, Hon’ble Bombay High Court observed as under:
“18. (iii) Considering the offences alleged, aggrieved person ought to have
lodged the report and based on source information not disclosed at any time,
complainant has no locus to lodge report alleging the offences of cheating,
forgery etc.:
Another ground on which criminal prosecution is assailed is regarding the
locus of complainant to lodge the complaint. Submission of the applicants is that
FIR is lodged on the basis of source information which has never been disclosed
at any time and for the offences particularly of cheating and forgery, it was
incumbent on the prosecution agency to disclose the source of information and
the name of informant. In support thereof, reliance is placed on the decisions of
the Hon’ble Supreme Court in Joseph Salvaraja vs. State of Gujarat and others,
MANU/SC/0719/2011 : (2011) 7 SCC 59 : [2011 ALL SCR 1601] and
Mohammed Ibrahim and others vs. State of Bihar and another,
MANU/SC/1604/2009 : (2009) 8 SCC 751.
21. The proposition of law relating to information in cognizable cases is
well settled and any person orally or in writing can set criminal law into motion.
In this background, we do not find any infirmity regarding the locus to lodge the
report. The third contention raised by the learned counsel for the applicants is,
therefore, negatived in the above background.”
11.
In
R.
Venkatakrishnan
vs.
Central
Bureau
of
Investigation,
MANU/SC/1411/2009, Hon’ble Apex Court observed as under:
“179. In this regard, it must be emphasized that the submission of the
learned Counsel that the Banks have not initiated any proceedings and suffered
any loss and thus the judgment of conviction and sentence of criminal breach of
trust is wholly unsustainable cannot be accepted for more than one reason.
180. It is not the law that complaint petition under all circumstances must
be made by the Banks and Financial Institutions whose money had been the
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subject matter of offence. It is also not the law that suffering of loss is a sine qua
non for recording a judgment of conviction. It is now trite that criminal law can
be set in motion by anybody. The prosecution was initiated on the basis of the
information received by the Central Bureau of Investigation. It would entitled to
do so not only in regard to its statutory powers contained in the Delhi Special
Police Act but it was also entitled to take cognizance in terms of the report
submitted by ‘Janakiraman Committee’. The money involved in the transfer is
public money belonging to Public Sector Banks.”
12.
Relying on the aforesaid decisions, Ld. SPP submitted that it is not
mandatory on the prosecution to disclose the source of information.
Criminal law can be set in motion by any person. The offence alleged
against the accused is serious. Hence, he payed to reject the application.
13.
There cannot be two opinions about the ratio laid down in aforesaid
cases. However, present accused seems to be CA. He has not been raid
handed while handing over the amount to the accused no. 2 for giving it
to accused no. 1. He has also offered explanation about the seizure of the
amount from his residential premises. It seems that the amount and
documents have been already seized.
14.
The FIR does not disclose that the reliable information was received
either from any person or from any other source like telephonic
conversation. The ratio laid down in Vineet Narain’s Case (Supra.) shows
that the CBI has to take certain steps after receipt of the source
information. Though it is not mandatory to disclose the source information,
CBI has to act as per the guidelines given in CBI manual. The FIR does not
prima facie shows about the steps taken by the CBI.
14.
Further, nobody has complained about the demand of the money by
the present accused. CBI has not raid handed while accepting the money by
accused no. 1 from accused no.2.
15.
Counsel of the accused has relied on the ratio laid down in
B.
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Jayaraj’s Case (Supra.), Krishan Chander’s Case (Supra.), and P.
Satyanarayana’s Case (Supra.). As per the ratio laid down in said cases, it
is necessary to prove the demand of gratification. As earlier stated, nobody
has complained about the illegal gratification.
16.
Prosecution is coming with case that the conversation has been
recorded. However, said reply is cryptic. Prosecution has not given the
mobile numbers and the time of recording of the conversation. It has not
given the details of the dialogues exchanged in between accused. Said fact
also does not find place in the FIR.
17.
Already IO has seized the amount from the cabin of the accused
no.1. Residential premises of the present accused has been searched and
amount of Rs. 9 lacs has been recovered. Therefore, accused is not required
for further investigation. The offence alleged against the accused is
punishable with imprisonment upto ten years.
18.
The prosecution is coming with case that the accused may tamper
with the evidence. He may influence the prosecution witnesses. However,
in this regard this court is of the view that the condition can be imposed on
the accused. If the accused makes any attempt of influence witnesses or
tamper the evidence, the prosecution can still apply for the cancellation of
the bail. However, it cannot be a sole ground for rejection of the bail.
19.
This court has already passed the order for releasing the accused no.
1 and 2. Accused is resident of Mumbai. He is a CA by profession. The
offence alleged against the accused is in regard to the conspiracy. The
investigation will require much time. Considering all these facts, this court
thinks it proper to enlarge the accused on bail.
20.
Considering all above circumstances, application deserves to be
BA 100/18
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allowed. In the result, this court pass the following order:
ORDER
1. BA 100/18 is hereby allowed on following conditions:
i) Accused Sanjeev Raghunath Malhotra be released on bail on
executing P. R. Bond of Rs. 2,00,000/ (Rs. Two Lacs Only) with
one or two surety/sureties in like amount.
ii) Accused shall attend the office of CBI once in a week i.e. every
Sunday from 10.00 a.m. to 5.00 p.m. till filing of the chargesheet.
iii) Accused shall not leave country of of India without prior
permission of this court.
iv) Accused shall not interfere in the investigation in any manner.
v) Accused shall not tamper with the prosecution witnesses and
record relating to the offence.
2. Bail Application 100/18 is disposed off accordingly.
(S.R.TAMBOLI)
Special Judge (CBI)
Gr. Bombay.
13.02.2018
Dictated on
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100/18
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No.47)
13.02.18
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