[CASE NUMBER] 1 Surinder Pal [PRECEDENT] vs State of Punjab Present: Mr.[ENTITY], Advocate, for the petitioner Mr.[ENTITY], AAG, Punjab Mr.[ENTITY], Advocate, for complainant.
1. In response to the order dated 18.9.2013, another affidavit has been filed today in court by S.P. (Detective), [ENTITY], in which response of the Induslnd bank itself, to the averments made in the petition is given as under:-
" 2. As per petition and allegations of Mr. [ENTITY] that customer, Ms.[ENTITY]/[ENTITY], visited our [ENTITY] branch to open account of [ENTITY]/[ENTITY] on 03/10.2010 and gave Rs.7.00 lac to MB/Cashier, we have to state that Ms. [ENTITY]/[ENTITY] have not called on Branch Manager and/or Cashier on 3rd October, 2010. In fact that said account of [ENTITY]/[ENTITY] was opened in our system on 17/02/2011 and as per process branch do not/cannot accept any deposit unless the account is opened and maintained in the Branch. Incidentally we have to submit that, however, we would like to add that one account in the name of [ENTITY]/[ENTITY] was already in existence at the branch from 23.09.2010. As such, if any, could not have been deposited in the branch on 3rd Oct., 2010, for opening account in the name of [ENTITY]/[ENTITY], then the amount could have been deposited in the existing account and after opening of the account could have been transferred in the new account. But in fact no cash was deposited on 03.10.2010 in the account. Neither Branch Manager nor Cashier can accept the cash without entering it in system and issuing counter foil to the customer. Hence the allegations are false and are made after thought.
3. As regards allegation in the petition that Cashier issued a "kaccha receipt" for payment of Rs.4.00 lac against Rs.7.00 lac deposited on 03/10.2010 against "kaccha receipt" to [ENTITY], it is submitted that there is no system in the bank to issue kaccha receipt. The customer has to deposit cash by filing in the pay-in-slip in the format prescribed by the bank, the customer foil is stamped and initialed by the Cashier who accepts the cash. The kuccha receipt is not in bank's format nor counter signed by the Cashier with the stamp of the branch signature on kaccha receipt is not of the Cashier of the branch. Moreover, the "kaccha receipts" as available in police records are made on A4 sheet paper, handwritten and signed by [ENTITY] himself. We reiterate that bank has a pre-printed deposit slip voucher and cash payment voucher/cheque which are used for cash deposit and cash withdrawal/payment. As branch did not receive any cash as alleged on 3rd Oct. 2010, hence no receipt for cash deposit was issued by the branch.
4. Aviva Life Policies to the tune of Rs.2.90 lac have been sourced by [ENTITY] himself with mutual consent of said customer. We have already sent intimation to Surya-Aviva FPC to be present immediately in SSP office for his statement in this matter and secondly [ENTITY] has alrready left Aviva company two years back- (So we don't have records about [ENTITY]) "
2. The first part of the response is with regard to the statement made by the petitioner in para 3 of his petition, to the effect that he himself had brought complainant [ENTITY], her husband [ENTITY] along with their son [ENTITY] and one [ENTITY], to the bank, and had introduced them to the Bank Manager on 3.10.2010, for opening of two accounts, one in the name of the complainant and her husband [ENTITY] and another in the name of her husband [ENTITY]. They, as per the petition, had given Rs.7.00 lacs to the Manager/Cashier, but on the said date the accounts could not be opened, on account of lack of certain documents, but the Cashier had issued receipt of Rs.7.00 lacs to them. This part has been specifically denied by the bank, to the effect that no such cash was ever received and that no Manager or Cashier can accept cash without entering it in the system and issuing a counter foil to the customer.
3. Mr. [ENTITY] submits that, as a matter of fact, the bank itself has collaboration at the international level with Aviva Life Insurance Company and as such, it is not the petitioner who is involved in any kind of cash transaction but, in fact, whatever transactions are entered into by the bank on behalf of (or in collaboration with) Aviva Life Insurance Company, the bank takes its percentage of commission on the same and the possibility of bank officials being involved in some kind of fraud cannot be ruled out. He further submits that "kaccha receipts" were given by the Cashier and the stand of the bank is not tenable.
4. Learned State counsel has reiterated whatever he had earlier submitted, that involvement of other officers/officials of the bank has not been ruled out, but the petitioners' involvement is, at least, at this stage, seemingly probable and as such, to determine the case against all those, who are allegedly in connivance with the petitioner, and to go to the root of the matter, petitioners' custodial interrogation is very much required.
5. Mr. [ENTITY] on the other hand relies upon the judgments of the Supreme Court, as also of this court, i.e. (i) [PRECEDENT]; (ii) [PRECEDENT]; (iii) [PRECEDENT]; (iv) [PRECEDENT]; (v) [PRECEDENT]; and (vi) [PRECEDENT], to submit that in a case where there is alleged cheating/embezzlement/forgery involved and documentary evidence is already on record, no custodial interrogation is required.
In paras 3, 4, 17, 18 and 19 of [PRECEDENT]'s case (supra), it has been held as under:-
"3. Background facts, highlighted by the appellants, are as follows:
[ENTITY] and Citigroup Wealth Advisors (in short 'CWA') are two separate legal entities. [ENTITY] carries on banking activities and is incorporated under the [ACT] and is guided by the directions and guidelines of the Reserve Bank of India; whereas CWA is a wealth advisory body incorporated under the [ACT] and is regulated by the directions and guidelines as set out by SEBI and the Stock Exchanges.
Appellants' (who are employees of Citi Bank) prayer for anticipatory bail are based on the premises that the allegations in the complaint are purely of civil nature since arbitration proceedings have been initiated at the behest of both the complainant and CWA much prior to the institution of the criminal case.
The prayer was opposed by the State and the complainant. The High Court noted that the allegation in the FIR was to the following effect:
"A perusal of the FIR shows that an amount of Rs. 1.10 crores has been fraudulently withdrawn from the saving account of the complainant and shares worth Rs. 1.60 crores have been fraudulently withdrawn/embezzled from his demat account maintained in the City Bank with whom the petitioners were employed at the relevant time. The act of embezzlement is attributed to the petitioners and two other persons, who are employees of City Group Wealth Advisors India Private Limited. On these allegations, a case under [SECTION] and [SECTION] of the [ACT] in Police Station, Sector 3, Chandigarh was registered against the petitioners."
The High Court noted that this was not a case where any protection in terms of [SECTION] of Code was to be extended.
4. In support of the appeals, learned Counsel for the appellants submitted that the FIR was nothing but a sheer abuse of the process of the law. The entire case hinges on documentary evidence which cannot be tampered since the records are duly co-related with NSE/BSE and CWA and there cannot be apprehension of either the appellants tampering with the evidence or absconding since they are responsible officers and are willing to assist the investigation. It is further submitted that the complaint made by the complainant is not bona fide and has been filed with ulterior motive.
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17. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his dis-appearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under [SECTION] of the Code. The role of the investigator is well-defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under [SECTION] of the Code will amount to interference in the investigation, which cannot, at any rate, be done under [SECTION] of the Code. The above position was highlighted in [PRECEDENT].
18. We find that in the instant case this Court had in fact by order dated 30.5.2008 directed that the appellants shall not be arrested subject to the condition that they will join investigation. Strictly speaking the order does not fit in with the parameters indicated in [PRECEDENT]'s case (supra). Be that as it may, the order is in operation and we do not think it appropriate in the present case to make any variation.
19. We dispose of the appeals with the following directions:
(1) The investigation shall be completed within two months unless there is some practical difficulty in completing the same within that period.
(2) The appellants shall, as and when required by the investigating agency, appear before the investigating officer and shall cooperate in the investigation. (3) If any document is asked for the same shall be supplied unless the appellants are not in possession of the documents.
(4) In case the investigating officer feels that the non-
production of documents as called for has any relevance, that can certainly be taken note of while submitting the final form or the charge sheet as the case may be.
Needless to say that this order shall be operative till the charge sheet or the final form as the case may be is filed before the concerned court."
6. In paras 8, 9 and 10 of [PRECEDENT]'s case (supra), it has been held as under:-
"8. We may notice here that the provision with regard to the grant of anticipatory bail was introduced on the recommendations of the Law Commission of India in his 41st Report dated 24.09.1969. The recommendations were considered by this Court in a [ACT] Bench decision in the case of [PRECEDENT]. Upon consideration of the entire issue this Court laid down certain salutary principles to be followed in exercise of the power under [SECTION] [ACT] by the Sessions Court and the High Court. It is clearly held that the anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is made to the High Court or Court of Sessions it must apply its own mind on the question and decide when the case is made out for granting such relief. In our opinion, the High Court ought not to have left the matter to the Magistrate only on the ground that the challan has now been presented. There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security. The merits of these issues shall have to be assessed at the time of the trial of the accused persons and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of [SECTION] and [SECTION] [ACT]
9. In our opinion, the High Court committed a serious error of law in not applying its mind to the facts and circumstances of this case. The High Court is required to exercise its discretion upon examination of the facts and circumstances and to grant anticipatory bail "if it thinks fit". The aforesaid expression has been explained by this Court in [PRECEDENT]'s case (supra) as follows:
"The expression "if it thinks fit", which occurs in [SECTION] in relation to the power of the High Court or the Court of Session, is conspicuously absent in [SECTION]. We see no valid reason for rewriting [SECTION] with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life.
Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal."
10. The salutary provision contained in [SECTION] [ACT] was introduced to enable the Court to prevent the deprivation of personal liberty. It cannot be permitted to be jettisoned on technicalities such as "the challan having been presented anticipatory bail cannot be granted". We may notice here some more observations made by this Court in the case of [PRECEDENT] (supra) :
"We find a great deal of substance in Mr [ENTITY]'s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of [SECTION], especially when no such restrictions have been imposed by the legislature in the terms of that section. [SECTION] is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over- generous infusion of constraints and conditions which are not to be found in [SECTION] can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in [SECTION] must be saved, not jettisoned. No doubt can linger after the decision in [ENTITY], that in order to meet the challenge of [SECTION] of the [ACT], the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. [SECTION], in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a [ACT]al challenge by reading words in it which are not to be found therein."
7. The contention of Mr.[ENTITY], therefore, is that once documentary evidence is available, there is no need for custodial interrogation.
He further submits the cheque books of [ENTITY] have not been requisitioned by the investigating agency to determine the truth or falsehood of the statements, that separate sets of cheques were issued, one carrying the correct signatures and the other carrying forged signatures.
The reply to the above issue is to the effect, as given in the affidavit of the SP (Detective) filed today, that cheque numbers of the cheques issued by [ENTITY] herself and those on which the signatures are allegedly forged, are from different cheque books, as is obvious from the number series of the cheque books themselves. Further, as already given in the earlier affidavit, that [ENTITY] is stated to be signing her name with a `ee' between `j' and `t', whereas the allegedly forged cheques are carrying `i' between `j' and `t'.
8. Having considered the entire circumstances and in view of what has been stated above, and the fact that there are other complaints against the petitioner, the truth or falsehood of which is still to be established, I do not think that this is a case in which concession of anticipatory bail, which the petitioner has been enjoying for the last more than two months, can be extended any further.
Mr.[ENTITY] further submits that the petitioner having already joined investigation for the past two months, there is no need for vacating the order dated 19.7.2013.
9. I am unable to persuade myself to agree with that contention any longer. Prima facie, it does seem that the petitioner is withholding information from the investigating agency with regard to the truth of the entire matter, despite having joined the investigation. Further, whether or not there is a nexus existing, between the petitioner and other bank officers/officials and/or employees of Aviva Life Insurance Company and/or any other persons, has still to be determined by the investigating agency, which has not been able to do so, so far, despite more than two months having elapsed.
Hence, prayer is being made, for vacation of the interim order.
10. In view of the above given circumstances, this petition is dismissed and the interim order, granting concession of pre-arrest bail to the petitioner on 19.7.2013, is vacated.
However, nothing said herein above will be treated to be an expression on the merits of the allegations made against the petitioner or any other bank officials or otherwise. It is only an expression on the merits of whether the petitioner should be continued to be granted concession of pre-arrest bail or not, at this stage.
23.9.2013 ([ENTITY]) pk JUDGE