Mahdoom Bava vs Central Bureau Of Investigation

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO……………OF 2023 (Arising out of SLP (Crl.) No.376 OF 2023)

MAHDOOM BAVA … APPELLANT(S)

VERSUS

CENTRAL BUREAU OF INVESTIGATION … RESPONDENT(S)

With

CRIMINAL APPEAL NO……………….OF 2023 (Arising out of SLP (Crl.) No.1534 of 2023)

CRIMINAL APPEAL NO……………….OF 2023 (Arising out of SLP (Crl.) No.3002 of 2023)

CRIMINAL APPEAL NO……………….OF 2023 (Arising out of SLP (Crl.) No.3027 of 2023)

JUDGMENT

V. RAMASUBRAMANIAN, J.

Leave granted.

2. Accused Nos. 2, 3, 10 and 14 in FIR No. RC 219 2019 E0006,

investigated by the Central Bureau of Investigation1, have come up

with the above appeals challenging the orders of the High Court of Signature Not Verified Digitally signed by

Judicature at Allahabad rejecting their applications for the grant of NIRMALA NEGI Date: 2023.03.20 17:16:43 IST Reason:

1For short, “CBI”

1 anticipatory bail.

3. We have heard learned counsel for the appellants and Shri

Vikramjeet Banerjee, learned Additional Solicitor General, appearing

for the respondent-CBI.

4. The First Information Report2 in this case was registered on

29.06.2019 at the instance of the Corporation Bank, for the alleged

offences under Sections 420, 467, 468, 471 read with Section 120B

IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of

Corruption Act, 1988. The gravamen of the allegations contained in

the FIR was, that a Company by name M/s NaftoGaz India Pvt. Ltd.,

secured certain credit facilities from a consortium of banks led by the

State Bank of India; that the facilities were secured by the creation of a

charge on movable properties and a mortgage of certain immovable

properties; that the account of the said Company was operated

properly till 27.07.2012, but started showing signs of sickness

thereafter; that the account was classified as NPA on 22.11.2012, with

an outstanding book-balance of more than Rs.92 crores; that the

account was classified by the Bank as fraudulent one on 03.02.2015;

that one of the properties mortgaged to the Bank, by third party

guarantors was later found to be involved in litigation, on account of

the defective title of the guarantors; that another property was found

2 For short, “FIR”

2 to have been grossly over-valued; that the Company had connived and

conspired with advocates and valuers hired by the consortium of

banks; and that therefore the promoters/directors of the Company, the

guarantors as well as those involved in the sanction of the loan were

guilty of the offences complained.

5. Though the FIR was lodged on 29.06.2019, none of the accused

was ever taken into custody by the respondent-CBI. It appears that all

the accused joined the investigation and cooperated with the

respondent. Therefore, after the completion of investigation, CBI filed

the final report on 31.12.2021.

6. After the CBI filed the final report on 31.12.2021, the Special

Court issued summons for the appearance of the accused on

07.03.2022. Therefore, apprehending arrest, the appellants moved

applications for anticipatory bail. The applications were rejected by the

Special Court and the rejection order was also confirmed by the High

Court. Therefore, the appellants are before this Court.

7. Accused No.2, namely Shri Mahdoom Bava, who is the appellant

in one of these appeals is stated to be the promotor/director of the

Company and he is alleged to be the kingpin. Accused No.3, namely

Shri Deepak Gupta is a third party who has allegedly given his

personal guarantee. The immovable property to which Shri Deepak

3 Gupta claimed title had been offered as security. According to the

prosecution, Shri Deepak Gupta claimed title to the property on the

basis of fictitious documents and that he had also already sold away

some portions of the property even before creating a mortgage.

8. Shri Akash Gupta, arrayed as Accused No.10 is alleged to have

created bogus bills and fake lorry receipts, in connivance with Accused

No.2, to enable the Company to have the bills discounted. Accused

No.14, namely Shri Yatish Sharma is alleged to have operated the

account of one M/s Shri Radhey Traders, to whom a huge amount had

been transferred from the account of another firm by name Aggarwal

Traders. It was alleged that the mobile phones whose numbers were

mentioned in the invoices of M/s Aggarwal Traders, were being used

by Shri Yatish Sharma.

9. On the strength of the aforesaid allegations, which are certainly

serious in nature, the prayer of the appellants for anticipatory bail is

opposed vehemently by the learned Additional Solicitor General. But

in our considered view there are at least three factors which tilt the

balance in favour of the appellants herein. They are:-

(i) Admittedly, the CBI did not require the custodial interrogation of the appellants during the period of investigation from 29.06.2019 (date of filing of FIR) till 31.12.2021 (date of filing of the final report). Therefore, it is

4 difficult to accept the contention that at this stage the custody of the appellants may be required;

(ii) In the reply/counter filed before the High Court, the CBI had taken a categorical stand that the Court had merely issued summons and not warrant for the appearance of the accused. In the case of Shri Deepak Gupta, CBI had taken a stand before the Special Court that “the presence of the accused is not required for the investigation but it is certainly required for trial” and that therefore he needs to be present. Therefore, all that the CBI wanted was the presence of the accused before the Trial Court to face trial. In such circumstances, to oppose the anticipatory bail request at this stage may not be proper; and

(iii) All transactions out of which the complaint had arisen, seem to have taken place during the period 2009-2010 to 2012-2013 and all are borne out by records. When the primary focus is on documentary evidence, we fail to understand as to why the appellants should now be arrested.

10. More importantly, the appellants apprehend arrest, not at the

behest of the CBI but at the behest of the Trial Court. This is for the

reason that in some parts of the country, there seems to be a practice

followed by Courts to remand the accused to custody, the moment

they appear in response to the summoning order. The correctness of

such a practice has to be tested in an appropriate case. Suffice for the

5 present to note that it is not the CBI which is seeking their custody,

but the appellants apprehend that they may be remanded to custody

by the Trial Court and this is why they seek protection. We must keep

this in mind while deciding the fate of these appeals.

11. In the case of the prime accused, namely Shri Mahdoom Bava, an

additional argument advanced by the learned Additional Solicitor

General is that he was involved in eleven other cases. But the

tabulation of those eleven cases would show that seven out of those

eleven cases are complaints under Section 138 of the Negotiable

Instruments Act, 1881 and three out of those seven cases are actually

inter-parties and not at the instance of the Bank. The eighth case is a

complaint filed by the Income Tax Officer and it relates to the non-

payment of TDS amount. The remaining three cases are the cases filed

by CBI, one of which is the subject matter out of which the above

appeals arise.

12. In view of the aforesaid, we are of the considered view that the

appellants are entitled to be released on bail, in the event of the Court

choosing to remand them to custody, when they appear in response to

the summoning order. Therefore, the appeals are allowed and the

appellants are directed to be released on bail, in the event of their

arrest, subject to such terms and conditions as may be imposed by the

6 Special Court, including the condition for the surrender of the

passport, if any.

Pending application(s), if any, stands disposed of accordingly.

…………………………….J. (V. Ramasubramanian)

…………………………….J. (Pankaj Mithal)

New Delhi March 20, 2023

7 ITEM NO.1501 COURT NO.15 SECTION II

S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl.) No(s). 376/2023

(Arising out of impugned final judgment and order dated 14-12-2022 in CRMABA No. 4251/2022 passed by the High Court Of Judicature At Allahabad)

MAHDOOM BAVA Petitioner(s)

VERSUS

CENTRAL BUREAU OF INVESTIGATION Respondent(s)

(IA No. 4828/2023 - EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT IA No. 7526/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES IA No. 7530/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

WITH

SLP(Crl) No. 1534/2023 (II) (IA No. 23014/2023 - PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES)

SLP(Crl) No. 3002/2023 (II) (FOR ADMISSION and I.R. and IA No.46726/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

SLP(Crl) No. 3027/2023 (II) (..FOR ADMISSION and I.R. and IA No.47085/2023-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT)

Date : 20-03-2023 These matters were called on for pronouncement of judgment today.

For Petitioner(s) Mr. Nagendra Singh, Adv.

Mr. Ashish Pandey, Adv.

Mr. Akash, Adv.

Mr. Naman Raj Singh, Adv.

Mr. Akash Chaudhary, Adv.

Mr. Ashutosh Bhardwaj, Adv.

Mr. Prateek Rai, Adv.

Mr. Subham Saxena, Adv.

Mr. Vishwa Pal Singh, AOR

Mr. Anshuman Sinha, Adv.

8 Mr. Vijay Kumar Pandey, Adv.

Mr. Vinay Prakash, Adv.

Mr. Niteen Kumar Sinha, AOR Mr. Udayan Sinha, Adv.

Mr. Hemant Mour, Adv.

Mr. Vivek Sharma, AOR

Mr. Sidharth Khattar, Adv.

Mr. Viresh B. Saharya, AOR Mr. Akshat Agarwal, Adv.

Mr. Akash Jain, Adv.

For Respondent(s) Mr. Arvind Kumar Sharma, AOR

Hon’ble Mr. Justice V. Ramasubramanian pronounced the judgment

of the Bench comprising His Lordship and Hon’ble Mr. Justice Pankaj

Mithal in terms of the Non-Reportable Judgment.

Leave granted.

The appeals are allowed in terms of the signed non-reportable

judgment. The operative portion of the judgment is as follows:

“Therefore, the appeals are allowed and the appellants are directed to be released on bail, in the event of their arrest, subject to such terms and conditions as may be imposed by the Special Court, including the condition for the surrender of the passport, if any.”

Pending application(s), if any, shall stand disposed of.

(RADHA SHARMA) (RENU BALA GAMBHIR) COURT MASTER (SH) COURT MASTER (NSH)

(SIGNED NON-REPORTABLE JUDGMENT IS PLACED ON THE FILE)

9