1 APPLN 4495 & ors.sxw vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.575 OF 2010. in CRIMINAL APPLICATION NO.4495 OF 2010 Rashmi Sanjeev Bangad .. Applicant - versus The State of Maharashtra .. Respondent. and Mr. Nilesh Vallabhadas Dhanani .. Intervener. WITH CRIMINAL APPLICATION NO.3152 OF 2010 Rajgopalan Shridhar .. Applicant versus The State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO.4495 OF 2010 Rashmi Sanjeev Bangad .. Applicant versus The State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO.4672 OF 2010 Sanjeev Ganpati Prasad Bangad .. Applicant versus The State of Maharashtra .. Respondent WITH CRIMINAL APPLICATION NO.455 OF 2010 IN CRIMINAL APPLICATION NO.3152 OF 2010 Rajgopalan Shridhar .. Applicant versus 2 APPLN 4495 & ors.sxw The State of Maharashtra .. Respondent and Synefra Engineering & Constructions Ltd. through Mr. Nilesh Vallabhdas Dhanani .. intervener. WITH CRIMINAL APPLICATION NO.578 OF 2010 IN CRIMINAL APPLICATION NO.4672 OF 2010 Sanjeev Ganpatiprasad Bangad .. Applicant versus The State of Maharashtra .. Respondent and Mr. Nilesh Vallabhadas Dhanani .. Intervener. Mr. R.C. Chitnis, Senior Counsel with Mr. Ashish Sawant with Mr. Tejas Dande for the Applicants in Application NO.4495 of 2010 and 4672 of 2010. Mr. Satish Maneshinde i/b Mr. Ranjeet V. Sangale for applicant in Application NO.3152 of 2010. Mr. Amit Desai, i/b Mr. S.P. Kadam, for intervenor in Application Nos 455 of 2010, 575 of 2010 and 578 of 2010. Mrs. P. P. Shinde, APP for the Respondent State in all the matters. CORAM: R.C. CHAVAN, J. DATED: 28th October, 2010 P.C. 1. Criminal Application No.578 of 2010 not on board. Mentioned. Taken on board. 2. Applicants in the above three Criminal Application Nos 3 APPLN 4495 & ors.sxw 4495 of 2010, 4672 of 2010 and 3152 of 2010, seek their enlargement on bail. 3. Criminal Application Nos 455 of 2010, 575 of 2010 and 578 of 2010, are filed for being added as respondent in above applications and for being permitted to intervene in these matters 4. Rajgopalan Shridhar seeks bail in crime No.387 of 2009, registered on 18th September, 20098, for the offences punishable under Sections 403, 408, 418, 420, 464, 471, 477 (A) read with 34 of the Indian Penal Code, on the report filed by intervener on behalf of Suzlon Ltd, registered at Bund garden police station, Pune in respect of which two chargesheets running into thousands of pages have already been filed. 5. Rajgopalan Shridhar-applicant in Criminal Application No.3152 of 2010, is arrayed as accused No.1. Applicant Sanjay Bangad, in Criminal Application No.4672 of 2010, is arrayed as accused No.2, and applicant Rashmi Bangad in Criminal Application NO.4495 of 2010 is arrayed as accused No.5 in the chargesheets which have been filed . 6. Accused Nos 3 and 4 are the Officers of employer M/s Suzlon Ltd. Accused No.6 is a Korean national. 7. Learned APP states that the investigation is still going on and there is possibility of further final reports being filed. 8. Rajgopalan Shridhar was working as Chief Manufacturing 4 APPLN 4495 & ors.sxw Officer and Sanjeev Bangad was working as General Manager Logistic with Suzlon Energy. Suzlon was required to use shipping services for the exports. They used to send consignments either through shipping companies or even by chartering ships. It is not in dispute that there used to be spare space or capacities available on ships chartered or consignments booked by Suzlon. Suzlon stopped and discontinued its shipping operations. It is the case of applicants-accused that Suzlon started its shipping work through companies like Genus, RS Wind, Sea Wind, S. S. Ocean Wind. Learned counsel for the intervener, however, submits that after the discontinuation of shipping activities by Suzlon Ltd, they opened subsidiary by name S.E. Shipping and started all their shipping activities through that company. Since accused Nos 1 and 2 were Officers of Suzlon, they used to deal with all these activities. They charged higher amounts to Suzlon and diverted difference to their own companies like Genus, R.S. Wind , Sea Wind etc. They also likewise diverted the amounts collected by them towards utilization of spare capacities in ships chartered by Suzlon . These amounts were transferred to R.S. Wind, Genus, Sea Wind, SS Ocean Wind. 9. It is applicants’ case that since some cases had been filed in U.S. Courts, Suzlon got shipping activities routed through these companies like R.S Wind etc, to avoid complications. The 5 APPLN 4495 & ors.sxw applicants were trusted executives of Suzlon. Accused No.5 Rashmi, wife of accused No.2 Sanjeev Bangad, was allegedly managing day to day affairs of Genus and ESSR shipping (which is proprietary concern and has nothing to do with another shipping company Essar Shipping having similar by same name). The applicants are alleged to have siphoned of huge amounts, moving them to overseas accounts, and even stashed cash overseas . 10. Written complaint was made on 18th August,2009 on behalf of Suzlon Energy Ltd and it was alleged that there was fraud of Rs.32 crores in which the applicants were involved. On 18th September, 2009, offence was registered and investigation commenced and in course of investigation, amount which has been defrauded has escalated to Rs. 75 crores and according to Investigating Officer, it is expected to escalate further. Investigating Officer has already secured requisite permissions for getting relevant information from banks abroad. Sum of about Rs. 14 crores has already been seized, from the accounts of all these three applicants. 11. In this context, learned counsel for the applicants , seek enlargement on bail. 12. Learned counsel for the applicant Rashmi submits that the investigation is already over, chargesheet running into thousands of pages has been filed, and the case, therefore, is 6 APPLN 4495 & ors.sxw unlikely to be taken up for hearing early. The applicant Rashmi, therefore, claims bail. 13. Her learned counsel placed reliance on a judgment in Bhagirathsinh Judeja, -vs- State of Gujarat AIR 984, 372, where the Honble Supreme Court considered the question of grant of bail and observed that it is well settled by catena of the decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The Court further observed that the only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. Therefore, according to learned counsel since she has her children at Pune where she is residing permanently, the applicant Rashmi is unlikely to be unavailable for trial. 14. As far as Sanjeev Bangad is concerned, learned counsel submitted that since the investigation is complete and the chargesheet has been filed and since trial is not likely to be taken up immediately, there is no reason for detaining Sanjeev Bangad any further since that would amount to punishing him before trial. 15. As far as Rajgopalan Shridhar is concerned, learned counsel for the applicant submitted that the applicant is ready to have himself radio collared at his own cost to set at rest 7 APPLN 4495 & ors.sxw apprehensions of his not being available/traceable . He submitted that the evidence collected is in the form of documents, and therefore, there is no likelihood of evidence being tampered. He pointed out that on 5th May, 2008, there was an invoice and agreement with the company R.S. Wind, on behalf of Suzlon S.E. Shipping. R.S. Wind is company in which the applicant Rajgopalan is a Director and Shareholder. He submitted that if Suzlon had nothing to do with RS Wind, there would be no question of payment of 500 thousand Singapore Dollars by S.E. Shipping to R.S. Wind which is company incorporated in Singapure. Learned counsel for the intervenor submitted that this was perfectly valid agreement whereby consultancy fees were paid to RS Wind. He submitted that this type of adjustment was made to cover compensation package to Rajgopalan. He impliedly suggested that the company is also indulging in activities which would amount to aiding tax evasion under the glossy term of tax management. 16. The learned counsel for the applicant Rashmi and Sanjeev also relied on the judgment of Delhi High Court in case of Anil Mahajan -vs- Commissioner of Customs and another, 2000 CRI . J. 2094. Delhi High Court had summarized the position as to grant of bail in para 14 of the judgment which reads as under:- 14. The legal position emerging from the above discussion 8 APPLN 4495 & ors.sxw can be summarised as follows :- a) Personal liberty is too precious a value of our Constitutional System recognised under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for th cost to the individual and the community. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution. b) As a presumably innocent person the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. a man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the exception. c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. d) Bail is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the accused person before he is convicted. e) Judges have to consider applications for bail keeping 9 APPLN 4495 & ors.sxw passions and prejudices out of their decisions. f) In which case bail should be granted and in which case it should be refused is matter of discretion a matter of discretion subject only to the restrictions contained in S.437(1) of the Criminal Procedure Code. But the said discretion should be exercised judiciously. g) The powers of the Court of Session or the High Court to grant bail under S.439() of Criminal Procedure Code are very wide and unrestricted. The restrictions mentioned in S.437(1) do not apply to the special powers of the High Court or the Court of Session to grant bail under S.439(1). Unlike under S. 437(1), there is no ban imposed under S.439(1) against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. However, while considering an application for bail under S.439(1), the High Court or the Court of Session will have to exercise its judicial discretion also bearing in mind, among other things, the rationale behind the ban imposed under S.437(1) against granting bail to persons accused of offences punishable with death or imprisonment for life. (h) There is no hard an fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial 10 APPLN 4495 & ors.sxw verdict. Any one single circumstance cannot be treated as of universal validity or an necessarily justifying the grant or refusal of bail. (i) While exercising the discretion to grant or refuse bail the Court will have to take into account various considerations like the nature and seriousness of the offence; the circumstances in which the offence was committed; the character of the evidence; the circumstances which are peculiar to the accused; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of accused repeating the offence; the history of the case as well as the stage of investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be exhaustively set out. However, the two paramount considerations are (i) the the likelihood of the accused fleeing from justice and (ii) the likelihood of the accused tampering with prosecution evidence. These two considerations in fact relate to ensuring a fair trial of the case in a Court of justice and hence it is essential that due and proper weight should be bestowed on these two factors. (j) While exercising the power under S.437 of the Criminal Procedure Code in cases involving non bailable offences except cases relating to offences punishable with death or imprisonment for life, judicial discretion would always be exercised by the Court in 11 APPLN 4495 & ors.sxw favour of granting bail subject to sub sec.(3) of S.437 with regard to imposition of conditions, if necessary. Unless exceptional circumstances are brought to the notice of the Court which might defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. (k) If investigation has not been completed and if the release of the accused on bail is likely to hamper the investigation , bail can be refused in order to ensure a proper and fair investigation. (l) If there are sufficient reasons to have a reasonable apprehension that the accused will flee from justice or will tamper with prosecution evidence he can be refused bail in order to ensure a fair trial of the case. (m) The Court may refuse bail if there are sufficient reasons to apprehend that the accused will repeat a serious offence if he is released on bail. (n) For the purpose of granting or refusing bail there is no classification of the offences except the ban under S.437(1) of the Criminal Procedure Code against grant of bail in the case of offences punishable with death or life imprisonment. Hence there is no statutory support or justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. When the Court has been granted discretion in the matter of granting bail and when there is no statute prescribing a special treatment in the case of a particular offence the Court cannot classify the cases and say that in particular 12 APPLN 4495 & ors.sxw classes bail may be granted but not in others. not only in the case of economic offences but also in the case of other offences the Court will have to consider the larger interest of the public or the State. hence only the considerations which should normally weight with the Court in the case of other non bailable offences should apply in the case of economic offences also. it cannot be said that bail should invariably be refused in case involving serious economic offences. (o) Law does not authorise or permit any discrimination between a foreign National and an Indian National in the matter of granting bail. What is permissible is that, considering the facts and circumstances of each case, the Court can impose different conditions which are necessary to ensure that the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national. 17. Learned counsel for the applicant, therefore, submitted that the applicants are entitled to be bailed out. As rightly pointed out by the learned APP, first though charge sheets have been filed, investigation is not yet complete and still going on. Further ramifications of the fraud which the applicants have played are being gone into by the Investigating Officer and Investigating Officer is in process of getting the some important information in respect of funds siphoned out of the country. Secondly as pointed out by learned APP, if the applicants had merely set up front companies at the instance of Suzlon itself because of some law suit 13 APPLN 4495 & ors.sxw in U.S. Courts, applicants would have brought back assets of those companies to Suzlon, rather than, indulging in money laundering, closing companies etc. Thirdly learned counsel for intervener pointed out that the applicant Sanjeev Bangad and Rashmi Bangar, were in the process of securing information to have some trusts created in order to settle abroad. Applicant Rajgopalan had also assumed fictitious name Rodney Marsh, whose address was however, the place where Rajgopalan resides in Pune. Therefore, the possibility of applicants not being available for trial by leaving India cannot be ruled out. Learned counsel for intervener pointed out that there is prima facie material to show that some funds are stashed in Dubai and submitted that though on paper, leaving India requires passport, criminals leaving for Dubai always do not use this route. Therefore, according to him if bailed out, it would be difficult for the authorities to bring the applicants to book. 18. Considering the nature of evidence collected and particularly the attempt of the applicants to siphon out funds and park them abroad, the possibility of their not making themselves available for trial cannot be ruled out. Given the magnitude of fraud, temptation to jump bail would be high. Therefore, as held in case of Anil Mahajan (supra), to secure attendance of accused, they are not entitled to bail. All the three applications are, therefore, rejected. 14 APPLN 4495 & ors.sxw 19. Learned counsel for the applicant is right in pointing out that though almost 13 months have passed, investigation is still going on. Investigation has to come to an end sometime or the other. If any further items of fraud are found out, a separate offence could be registered unless it is a part of same chain. It would be better to try the accused immediately on charge of even one item of misappropriation if sufficient evidence is already available. The prosecution may move the Session Judge to get this matter assigned preferably to the Chief Judicial Magistrate or Additional Chief Judicial Magistrate, by relieving him of other burden of his work so that this case can be taken to its logical end and people who break law do not boost of their faith in the judicial system due to interminable delays. 20. If there is any change in the circumstances, the applicants would always be at liberty to apply for bail. (R. C. CHAVAN, J.)