HON’BLE SRI JUSTICE N. RAVI SHANKAR CRIMINAL PETITION No.3627 of 2011 ORDER:- Petitioner herein Dr.Joseph V. George is the 7th accused (A-7) in C.C.No.1730 of 2010 on the file of the Court of the XIV Additional Chief Metropolitan Magistrate, Hyderabad (trial Court). 2. The point that arises for determination in this petition is whether the petitioner is entitled for return of his passport from the trial Court in order to enable him to travel abroad i.e. to go to certain countries in connection with the activities or business of his institution i.e. Garden City Education Trust and College situated at Bangalore. 3. The point arises in the following circumstances. As already mentioned supra petitioner herein is A-7 in C.C.No.1730 of 2010. The said case arises out of Crime No.RC(S)/2005-CBI/HYD. The offences alleged against this petitioner and the other accused are those punishable under S.120-B read with S.420 IPC and S.420 IPC i.e. conspiracy to commit cheating and cheating. To determine the point it is necessary to note the prosecution version. Its version is that A-1 Dr.Helmuth Schuster was a member of the Board of Skoda Auto and also Chairman of Volkswagen Pension Trust and he conducted some negotiations with the Government of Andhra Pradesh for setting up a car manufacturing unit in Andhra Pradesh and A-2, Sri Ashok Kumar Jain, a resident of New Delhi was the Chief Officer of the Volkswagen India Project. A-3 is a company called M/s.Vashishta Wahan Private Limited (VWPL) and A-4 is one of the Directors of the VWPL while A-5 is his sister-in-law and at the relevant time she was the proprietrix of a concern called M/s.KR International located in Chennai. A-6 is one of the two directors of the VWPL and the other director is A-4. It is stated that A-1 to A-7 entered into a criminal conspiracy and cheated the Government of Andhra Pradesh in the name of setting up a car plant and drew or received an amount of Rs.11,67,40,000/- from the Government of Andhra Pradesh. The further version is that they did not set up the car plant and subsequently used the money for their own purposes and all the details of the offences committed by all accused are mentioned in the charge sheet and it is not necessary to state them in detail for the purpose of this order. 4. So far as the role of this petitioner/ A-7 is concerned, it is stated that after receiving the sum of Rs.11,67,40,000/- from the Andhra Pradesh Industrial Infrastructure Corporation (APIIC) of the Government of Andhra Pradesh on 13.01.2005, A-1 to A-6 in collusion with A-7 paid a sum of Rs.5 crores out of it on 15.02.2005 to this petitioner i.e. A-7 under a memorandum of understanding under which this petitioner agreed to select or buy certain lands for setting up the service centres of the car plants in question at Bangalore. The case is pending and it is seen that A-1 and A-4 are yet to be traced. 5. When the case is pending before the trial Court, this petitioner filed Crl.M.P.No.3977 of 2010 for anticipatory bail i.e. under S.438 Cr.P.C. That petition was allowed by the Court of the I Additional Metropolitan Sessions Judge, Hyderabad (Sessions Court), by order dated 28.12.2010 on certain conditions. One of the conditions was that this petitioner should deposit his passport before the trial Court along with the surety bonds for the amounts ordered in the said order and it is seen that the petitioner complied with the said order. The matter was pending at that stage. 6. Thereafter the petitioner again filed Crl.M.P.No.711 of 2011 in the form of seeking relaxation of conditions imposed in Crl.M.P.No.3977 of 2010 before the Sessions Court which granted him anticipatory bail seeking return of the passport on the plea that he has to go various countries in connection with the business activities of his school and therefore his passport is required and he further pleaded that after completion of his work abroad he would come back and would appear and face the trial. The Sessions Court after hearing both sides i.e. the petitioner and the prosecuting agency which is CBI dismissed that petition on 08.04.2011. The main contention of the CBI/State was that if the passport of the petitioner is returned to him and if he is allowed to go abroad he may settle down in a country with which our country has no extradition treaty and thereafter it will become difficult for the prosecution to secure his presence. It appears that this contention of the prosecution weighed with the learned Sessions Judge. Further he also observed that at the time of seeking anticipatory bail the petitioner submitted before the Court that he was even ready to deposit his passport and consequently he cannot seek return of passport and seek relaxation of conditions in that behalf. Holding so, the learned Sessions Judge dismissed that petition. Having failed there to secure the passport and the permission to go abroad the petitioner has now come up with this petition before this Court. 7. Sri Padmanabha Reddy, the learned Senior Counsel, mainly pointed out that though it is a fact that the petitioner received a sum of Rs.5 crores from the other accused especially those concerned with the concern VWPL (A-3 in the case), he has nothing to do with the alleged acts of cheating committed by the other accused and that soon after he came to know about the present case he refunded the sum of Rs.5 crores received by him to the authorities and this itself suggests that he is totally innocent and that the CBI police have falsely implicated him and consequently he should be permitted to have the return of his passport and go abroad. On the other hand, the learned Standing Counsel for the CBI who appeared in this Court vehemently opposed this petition on the very same plea which was taken before the Sessions Court. Further speaking about the complicity of the petitioner, he pointed out that soon after the receipt of Rs.11,67,40,000/- from the Government of Andhra Pradesh, the other accused concerned have transferred a sum of Rs.5 crores which is more than half of it to the petitioner and this itself suggests that the petitioner has also a role in the cheating. He also argued that A-1 and A-4 are yet to be traced and in these circumstances the petitioner’s request should not be considered. In the light of the above rival contentions the point is now taken up. 8. All the circumstances and contentions relevant to the point have been set out supra. It may be noted that VWPL and those associated with it have admittedly withdrawn Rs.11,67,40,000/- or were paid that amount by the Government of Andhra Pradesh through APIIC on 13.01.2005. According to the prosecution after withdrawing the above amount VWPL and those connected with it did not take any steps to start the car plant and no factory or other establishment was constructed in the State of Andhra Pradesh. Without taking any steps in that behalf, as pointed out by the learned Standing Counsel for the CBI, this VWPL transferred a sum of Rs.5 crores on 15.02.2005 to petitioner. The remaining amounts were transferred to the accounts of A-2, A-4 and A-5 and also a Switzerland incorporated company. Thus what should be noted is that normally when the accused have received a huge amount of Rs.11,67,40,000/- from the Government of Andhra Pradesh they should have taken steps to start the car plant. This they did not do and instead they transferred Rs.5 crores to the petitioner on 13.01.2005 ostensibly for the purpose of acquiring lands for setting up service centres for the cars to be manufactured. In a case where person or company intends to start a car plant they will take steps to establish service centres after the plant is established and the factory is ready to roll out the cars manufactured but not before the plant is set up. In my opinion this circumstance may prima facie show evidence of cheating on the part of all the accused. Thus the contention of Sri Padmanabha Reddy that the petitioner has refunded the amount of Rs.5 crores by itself cannot be a ground to accept his contention. It may be noted that even according to his own version the petitioner is heading an institution at Bangalore and he might have thought it fit to repay the amount knowing the consequence of not repaying it for himself and his institution. Of-course, this is not to be treated as a final opinion on the merits of the matter and the guilt or innocence of the petitioner or accused have to be decided only on the basis of the evidence let in in the trial. This is however the first minus point for the petitioner. 9. Sri Padmanabha Reddy then argued that A-1 and A-4 are yet to be arrested and it is not known at what time police are going to arrest them and when the trial of the case will start and therefore the petitioner should be permitted to go abroad by returning his passport to him. I am unable to agree with this contention. It is the specific plea of the CBI that if the petitioner goes abroad and settles down in a country with which our country has no extradition treaty it becomes very difficult to secure his presence. This contention of the CBI cannot be brushed aside. Sri Padmanabha Reddy pointed out that the petitioner has got his own institution at Bangalore and vast property and he is even ready to furnish bank guarantee for a considerable amount to secure his presence. It may be noted that if the petitioner flees away and settles down in a country with which our country has no extradition treaty, our judicial system can at best forfeit the amount but it will be very difficult to put him on trial though it is not impossible. Hence the above aspect becomes the second minus point for the petitioner. 10. So far as the plea of the petitioner that A-1 and A-4 are not yet arrested and the case may take several years for completion of trial, that is also not a ground for returning the passport to the petitioner. It is always open for the petitioner and the other accused who are attending the Court to seek for splitting up of the case and request the trial Court to take up the case against them and it is for that court to decide the matter. That apart it should be noted that when the petitioner applied for anticipatory bail he agreed to abide by any condition imposed by the learned Sessions Judge who granted the anticipatory bail and after giving such an undertaking and after obtaining anticipatory bail the petitioner has now come up with this petition seeking relaxation of the conditions and requesting for return of the passport to go abroad. Hence I am of the opinion that the above request of the petitioner cannot be considered and in my opinion the learned Sessions Judge was right in rejecting the request. 11. Accordingly for all the aforesaid reasons the point is decided in the negative and this petition is dismissed. ______________________ N. RAVI SHANKAR, J 09th June 2011 CVRK