Full Judgment
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI A.B.A. No.1152 of 2017 Rahul Kumar Shankarka …… Petitioner Versus The State of Jharkhand through the C.B.I. ……Opposite Party ----- With A.B.A. No. 1480 of 2017 Arun Kumar Singh …... Petitioner Versus The State of Jharkhand through the C.B.I. …....Opposite Party With A.B.A No. 1591 of 2017 Harjeet Singh …...Petitioner Versus The State of Jharkhand through the C.B.I. …... Opposite Party With A.B.A No. 3017 of 2017 Akash Agarwal …...Petitioner Versus The State of Jharkhand through the C.B.I. …...Opposite Party CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH ----- For the Petitioner :M/s A.K. Chaturvedy, Indrajit Sinha, Vikash Kumar Advocates For the CBI : Mr. K.P. Deo, S.C. ----- C.A.V. on 11.09.2017 Delivered on 19/09/2017 Anant Bijay Singh, J.
Since all the anticipatory bail applications arose from the same RC Case No. 05(A)/2015-R, they are being heard together and disposed of by this common order.
2. The petitioners are apprehending their arrest in connection with RC Case No. 05(A)/2015-R, the case registered under Sections 120B r/w 420 of the IPC, 1860 an u/s 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988.
3. ABA No. 1152/2017 has been filed by the petitioner, namely, Rahul Kumar Shankarka. In this case learned counsel for the petitioner has submitted that the after investigation the CBI has submitted final form and the court below vide order dated 05.12.2016 took cognizance against the petitioner. It was further submitted that petitioner is not named in the FIR.
4. The investigation reveals that the petitioner, namely, Rahul Kumar Shankarka, Sujit Kumar Bhadani and Vivek Pandey are the 2 Proprietor of M/s Shanti Construction and they have obtained two housing loans from Punjab National Bank on the basis of forged documents in the name of one employee Sri Dixit Chakraborty and one private person, namely, Anand Jal without their knowledge. The loan proceeds were initially credited in the account of M/s JMD Construction owned by Ram Janam Sharma with PNB, Shakshi Branch, Jamshedpur and subsequently transferred to the account of the petitioner-Rahul Kumar Shankarka maintained with the PNB, Mango Branch, Jamshedpur.
5. Learned counsel for the petitioner has submitted that during the course of investigation petitioner was not arrested by the CBI and the CBI after investigation, submitted final form. It is further submitted that vide Annexure-4 the PNB. Mango, Branch vide its letter dated 28.07.2016 has issued a certificate to the petitioner-Rahul Kumar Shankarka that the loan account of Sri Anand Jal and Sri Dixit Chakraborty has been closed after receiving entire OTS offer amount from his side on 25.07.2016. Hence deserves anticipatory bail.
6. On the other hand, learned Standing Counsel appearing on behalf of the CBI has submitted that it is a matter of deposition of loan amount but the admitted case is that on the basis of the forged document the aforesaid loan amount has been sanctioned. Hence petitioner does not deserves bail.
7. ABA No. 1480/2017 has been filed by the petitioner, namely, Arun Kumar Singh. In this case learned counsel for the petitioner has submitted that final form has been submitted against the petitioner and the cognizance has been taken which reveals that petitioner is one of the Director of M/s Gauri Gautam Construction Pvt. Ltd and he obtained 28 housing loans from the PNB, Mango Branch on the basis of forged documents in the name of their employees and other private persons. The said amount were credited in the account of M/s Gauri Gautam Construction Pvt. Ltd and M/s Gauri Associates and both were maintained with the PNB, Mango Branch, Jamshedpur.
8. The investigation further reveals that out of 28 housing loans, repayment has been made in 13 instances and the said loan account have been closed on 16.11.2015 i.e. after registration of the case by 3 CBI. The remaining 15 loans account are outstanding. The said 28 flats as stated to be located in Gautam Apartments, Kadma, Jamshedpur. The total amount dues with the bank is Rs.1,75,31,274.
9. The investigation further reveals that the housing loans were sanctioned by Gopal Singh Jha petitioner in ABA No. 1826/2017 on the basis of fake IT return submitted by Rohit Singh, Arun Kumar Singh, Akash Agarwal and Gauri Devi all Directors of M/s Gauri Gautam Construction Pvt. Ltd in the name of the aforesaid borrowers. It was submitted that the entire business was being looked after by Rohit Singh S/o Gauri Devi. In this after completion investigation final form has been submitted and cognizance has been taken on 05.12.2016.
10. On that other hand, learned Standing Counsel for the CBI opposed the prayer for bail of the petitioner and submitted that petitioner is one of the Directors of Gauri Gautam Construction Pvt. Ltd. And on the basis of forged documents he obtained housing loan causing huge loss to the bank. Hence petitioner does not deserves anticipatory bail.
11. ABA No. 1591/2017 has been filed by the petitioner, namely, Harjeet Singh. In this case learned counsel for the petitioner has submitted that petitioner is a business man having a proprietorship firm in the name of Maa Sherawali Associates, now Bhawani Bharat Gas Agency, Ghatsila, East Singhbhum and the aforesaid firm was looking after the Iron Ore Transportation business of Iron Mineral, Bhuwneshwar, Odissa in the name of Maruti Export & Alloys registered by Ministry of Commerce, Govt of India.
12. It was further submitted that the prosecution has not taken into consideration that the petitioner had provided loan due to friendly relationship to M/s Gauri Gautam Construction Pvt. Ltd and its sub contractor company, namely, Sarala Construction proprietor Mr. Akash Agrawal (petitioner in ABA No. 3017/2017) and huge money worth Rs.43,50,000/- in between April, 2010 till June, 2010 from his current account with the Axis Bank, Jamshedpur and out of the aforesaid amount the Gauri Gautam Construction Pvt. Ltd has paid Rs.10,50,000/- on 25.08.2010 and Sarala Construction has paid 4 Rs.9,50,000/- on 11.06.2010 and for the rest of money the petitioner is entitled to from the aforesaid construction firms. It was further submitted that petitioner is not named in the FIR. Lastly it is submitted that the petitioner has been falsely implicated in this case and he deserves bail.
13. Learned Standing Counsel for the CBI while opposing the prayer for bail of the petitioner has referred the relevant portion of the final form at page 56 which reveals that the petitioner was acting as a middle man on behalf of M/s Gauri Gautam Construction Pvt. Ltd and use to contact the prespective borrowers and bring them in touch with Rohit Singh. He has also stood as guarantor in the loan accoutn of Navin Kumar Mishra which was sanctioned on the basis of fake IT Returns and building permit and it also emerged that he had received an amount of Rs.10.5 lacs from the account of M/s Gauri Associates and thus he is a beneficiary of the fraudulent loan amount. Hence he does not deserves bail.
14. ABA No. 3017/2017 has been filed by the petitioner, namely, Akash Agarwal. In this case learned counsel for the petitioner has submitted that petitioner is not named in the FIR but during course of investigation he has been made accused in this case. It was submitted that petitioner was working in the Gauri Associates as a Contractor but due to non payment of the dues the proprietors of M/s Gauri Associates agreed to give him some shares of M/s Gauri Gautam Construction Pvt. Ltd and they added the name of the petitioner as Directors of the firm in the year 2009 and he denied the allegation that some papers of the bank or the housing loan were recovered from his house and it is also submitted that he had co-operated the CBI in the investigation. Hence he deserves bail.
15. On that other hand, learned Standing Counsel for the CBI while opposing the prayer for bail of the petitioner has referred the relevant portion of the final form which reveals that petitioner is one of the Director of M/s Gauri Gautam Construction Pvt. Ltd and he obtained 28 housing loans from the PNB, Mango Branch on the basis of forged documents in the name of their employees and other private persons. The said amount were credited in the account of M/s Gauri Gautam 5 Construction Pvt. Ltd and M/s Gauri Associates and both were maintained with the PNB, Mango Branch, Jamshedpur. Out of 28 housing loans, repayment has been made in 13 instances and the said loan account have been closed on 16.11.2015 i.e. after registration of the case by CBI. The remaining 15 loans account are outstanding to the tune of Rs.1,75,31,274. Hence petitioner does not deserves bail.
16. After hearing the parties and also going through the admitted fact that the CBI during course of investigation has collected materials against the petitioners and submitted final form, thereafter cognizance has already been taken by the trial court.
17. The Hon'ble Supreme Court while granting anticipatory bail in the case of “ Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others” reported in (2011) 1 SCC694has observed as under:
“112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring of humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and 6 concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
18. In the facts and circumstance of the case and also the the observation made by the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre (supra), I am of the view that since the trial will take some time to its conclusion, I inclined to admit the petitioners, on bail, and the above named petitioners (in all the four anticipatory bail applications) are directed to surrender in the Court below on 08.11.2017 and in the event of their arrest or surrender, the Court below shall enlarge the above named petitioners, on bail, on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) each with two sureties of the like amount each to the satisfaction of learned Special Judge, CBI, Ranchi, in connection with R.C. Case No. 05(A) of 2015-R, subject to the conditions as laid down under Section 438(2) of the Cr.P.C., subject to the further condition as follows:- i. All the petitioners shall deposit Rs.25,000/- each before the Secretary District Bar Association, Civil Court, Jamshedpur in its Welfare Fund on or before 06.11.2017 and the aforesaid amount will be used for the welfare of the Members of Bar Association. The Secretary will issue receipt of the aforesaid deposition and, thereafter, petitioners will appear before the court below on 08.11.2017 and furnish their bail bonds alongwith the receipt of the aforesaid deposition of amount. 7 ii. The court below is directed to accept the bail bonds of the petitioners after deposition of the aforesaid amount by the petitioners. iii. The petitioners are further directed to deposit their Passport, if any, in the court below and they will remain physically present as and when required by the court below and co-operate in the trial, till framing of charge. If petitioners want any exemption from their personal appearance, they will have to take prior permission from the court below, failing which the trail court will be at liberty to proceed for cancellation of bail of the petitioners in accordance with law. ( Anant Bijay Singh, J.) Raman