1 APPLN 5792 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5792 OF 2010. Rajesh Sharma .. Applicant -versus The Central Bureau of Investigations and anr .. Respondents. Mr. Umesh Lalit, Senior Counsel with Mr.Harshad Ponda, for the Applicant. Mr. Ejaz Khan and Mandar Goswami, for CBI, Mr. Yogesh Nakhwa and Mrs P. P. Bhosale, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 6th January, 2011 P.C. 1. The applicant who has been arrested in connection with R.C. 11/E/2010, CBI, EOW, Mumbai, seeks enlargement on bail in the context of following facts. 2. The applicant is the Chairman and Managing Director of the Company known as Money Matters Financial Services. According to applicant the company acts as consultant for securing finances to persons or entities who are in need of such finances. The applicant company receives a small commission for processing documents and providing necessary information to secure finances from the banks and other financial institutions. According to 2 APPLN 5792 OF 2010 applicant there is absolutely no involvement of applicant in any bribery. 3. The applicant was apprehended because telephonic conversation of the applicant with some persons in the financial institutions showed that extraneous considerations were pressed in order to influence the decisions of the financial institutions in granting loans. The applicant’s associates, namely Mr. Suresh Gathani, Mr. Sanjay Sharma, in the applicant’s Company Money Matters, have been admitted to bail in the offences in which, they were cited as co-accused. The applicant has been admitted to bail in R.C. 9/E of 2010. Learned Special Judge, however, refused bail to the applicant in this crime. 4. Learned Senior Counsel for the applicant submits that the applicant had withdrawn all the applications for anticipatory bail on the understanding that investigation in this case would be over by 9th December,2010. This has been recorded by the learned Special Judge, in his order dated 9th December,2010 on remand Application No.47 of 2010. He had observed in para 7 that he found substance in submission of Shri. Ponda, that the applicant had withdrawn his anticipatory bail application with the understanding that CBI would not claim any further custody. As rightly pointed out by the learned Special Public Prosecutor for CBI, that this need not be equated with the time to complete entire 3 APPLN 5792 OF 2010 investigation. He further submitted that 9th December, 2010 was at worst to be the outer limit for seeking custodial interrogation of the accused by Investigating agency. Therefore, to say that the investigation is now over and therefore, the applicant should be bailed out would be incorrect. 5. Learned Senior Counsel for the applicant next submitted that the Vice President and Executive Directors of the applicant’s company have already been bailed out. He also points out that the persons who are alleged to have been bribed namely Mr. Naresh Chopra of LIC of India, Ramchandra Nair of LIC of India, Maninder Sing Johar of Central Bank of India, have already been admitted to bail. Thus, the persons who are alleged to have received bribe through the applicant, have been released on bail. According to the learned Senior Counsel there is absolutely no necessity of keeping the applicant in jail. He further submits that the fear that if bailed out, applicant would be able to influence the witnesses is misplaced since the applicants associates are already on bail and if witnesses have to be influenced that would have been done by now. 6. Learned Special Prosecutor submits that the investigating agency has been able to trace out part of the trail of money, but the investigation agency has not been able to collect information about link from the applicant company to the Hawala 4 APPLN 5792 OF 2010 agent and has not been able to know who was conduit from Mumbai to Delhi. He submits that if the applicant is bailed out, it would be difficult to trace out this part. It is, however, not clear to me as to how the investigation agency would get to the Hawala dealer when the applicant is in Magisterial Custody or how it would be prevented from reaching the hawala agent, if the applicant is bailed out. . 7. Learned Senior Counsel, for the applicant submits that if those, who are alleged to have taken bribes and so are involved in offence punishable under section 13(2) r/w 13(1) and 13(1)(d) of the Prevention of Corruption Act, which attract imprisonment of 7 years, have been bailed out, the applicant who is likely to be charged for the offence punishable under Section 7, 12, 13(2) of the Prevention of Corruption Act, which attract minimum punishment of imprisonment of five years could not be denied bail. He submits that this Court in Khemlo Sakharam Sawant -vs – State reported in 2002 (1) Bom. C.R. 689, had dealt with a case of a similar middleman, who had offered bribe of Rs. 15,00,000/- on behalf ofone Nirmala Sawant, and had been denied bail by the Court of Sessions. This Court, observed that the Sessions Court while rejecting bail, was influenced more by morality than law. According to learned counsel, the observations of the Special Judge in the present case in refusing bail to the 5 APPLN 5792 OF 2010 applicant while the principal offenders, who had allegedly received bribes have been admitted to bail, depicts similar attitude. 8. Learned Senior Counsel, submits that in this case, the the Chairman and Managing Director of Central Bank of India, has himself issued a statement that there was absolutely no irregularity in finance made to M/s Lavasa, Suzlon and M/s Vatika. Therefore, according to him, if there is no irregularity there would be no question of showing any favour and consequently no offence under section 13 of the Prevention of Corruption Act. If that be so, there would be no question for the offence punishable under Section 12 of the Act being made out against the applicant. Learned Counsel submitted that the stand of the learned Special Public Prosecutor that this is a big scam in which many more things are likely to be found out would have to be rejected since inquiry would have to be restricted to what has been recorded in the F.I.R., namely allegations of bribery in financing or advancing loans to the three concerns Lavasa, Suzlon and Vatika. 9. I have considered these arguments. Firstly, FIR is not an encyclopedia and therefore, investigation may reveal something more than what is mentioned in the F.I.R. Therefore, limiting investigating agency to the allegations in the FIR may not be necessary at this stage. Secondly merely because the applicant’s associates have been bailed out or principal offenders who have 6 APPLN 5792 OF 2010 received bribes have been bailed out in other crimes as well as this crime, it does not follow that the applicant too be bailed out because he seems to be kingpin around whom finances provided by several financial institutions revolves. Thus, their being bailed out does not entitle applicant to bail on the ground of parity. Therefore, complicity of the applicant which is a common factor and link between financers and those who are in need of finances would have to be probed and so he cannot claim to be bailed out. Thirdly from absence of irregularity in processing documents for financing it does not follow that there could be no bribery, because it is unfortunate that people are forced to pay money for what they are legitimately entitled to. Here grant of loan is not a matter of right but rests in the discretion of the financial institutions and therefore the possibility that there were consideration other than legal requirements need not be ruled out at this stage of investigation. Therefore, there is no question of admitting the applicant to bail. The application is rejected. (R. C. CHAVAN, J.)