Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 17 January, 2022
IN THE MATTER OF:
+ BAIL APPLN. 3750/2021
SUNDER SINGH BHATI ..... Petitioner
Through Mr. Pradeep Singh Rana, Mr.Ankit
Rana, Mr.Abhishek Rana, Mr.Nitish
Pande, Advocates
versus
THE STATE ..... Respondent
Through Mr. Amit Chadha, APP for the State
with SI Shiv Dev, P S EOW
AND
+ BAIL APPLN. 3921/2021
RAJESH MAHTO ..... Petitioner
Through Mr. Kumar Piyush Pushkar, Advocate
versus
STATE (NCT OF DELHI) ..... Respondent
Through Mr. Amit Chadha, APP for the State
with SI Shiv Dev, EOW
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
SUBRAMONIUM PRASAD, J.
1. The Petitioners seek regular bail in FIR No. 89/2019 dated 01.06.2019
registered at Police Station Economic Offences Wing for offences under
Sections 406/420/409/120B of the Indian Penal Code, 1860 ( hereinafter,
BAIL APPLN. 3750/2021 & Anr. Page 1 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
“IPC”).
2. The facts, in brief, leading up to these petitions are as follows:
a. A complaint was filed by ex-serviceman, Sh. Dharmender
Singh, stating that SMP IMPEX Pvt. Ltd. (Hello Taxi)
( hereinafter, “the Company”), and its Directors/Officials, Dr.
Saroj Mahapatra, Mr. Rajesh Mahto, Ms. Daisy Vijay Menon,
Mr. Sunder Singh Bhati and other unknown persons had
committed cheating and fraud.
b. It is stated that the Complainant had received a message and an
email from the Company stating that if he invested his money,
they would give him a 200% return within 1 year. The
Directors, Dr. Saroj Mahapatra and Rajesh Mahto called the
Complainant and invited him to Netaji Subhash Place where
they told him about the Company and explained their plans to
expand it on the lines of Uber/Ola. They told the Complainant
that the Company was registered with RBI and SEBI. They
further made the Complainant meet one Mrs. Daisy Vijay
Menon who showed the Complainant the plan of the Company.
c. It is stated that after much insistence, the Complainant invested
Rs. 9,00,000/-. Further, the Complainant‟s friends, namely
Rajesh Kumar, Rajender Singh, Yogender Singh, Umed Singh,
Ajay, Sunil also invested Rs. 15 to 20 lakhs. It is stated that on
th
the 10 of every month, instalment would be sent to the account
of the investors, however, after the first two months, no
instalment was made. On speaking with Harish Bhati and
Rajesh Mahto, the Complainant was informed that he would get
BAIL APPLN. 3750/2021 & Anr. Page 2 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
th th
the third instalment by 15 of the month, i.e. 15 March,
however, the third instalment was still not made. On calling the
Company, Saroj Mahapatra showed the Complainant a clip
from social media showcasing that the Company‟s accounts had
been frozen.
d. It is stated that the Complainant‟s money has not been returned
till date and that the accused do not pick up the calls of the
Complainant. Stating that the Complainant and many others
have been defrauded of their money, the complaint was filed on
the basis of which the instant FIR was registered.
e. The Petitioner in BAIL APPLN. 3750/2021 filed an
anticipatory bail application before the Ld. Trial Court which
was dismissed vide Order dated 03.08.2019. The Petitioner in
BAIL APPLN. 3750/2021 was declared absconder/proclaimed
offender on 17.02.2020 and was arrested on 09.12.2020.
Anticipatory bail application before this Court was dismissed as
infructuous vide Order dated 16.08.2021. Bail application under
Section 437 Cr.P.C. of Petitioner in BAIL APPLN. 3750/2021
was dismissed vide Order dated 05.07.2021. Bail application
under Section 439 Cr.P.C. of Petitioner in BAIL APPLN.
3750/2021 was dismissed by the Sessions Court vide Order
dated 23.09.2021.
f. An anticipatory bail application was filed by the Petitioner in
BAIL APPLN. 3921/2021 which was dismissed by the Ld.
Trial Court vide Order dated 19.09.2019. The Petitioner in
BAIL APPLN. 3921/2021 was declared absconder/proclaimed
BAIL APPLN. 3750/2021 & Anr. Page 3 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
offender on 17.02.2020 and was arrested on 22.08.2020. Bail
applications before the Ld. CMM and the Ld. ASJ, Rohini were
dismissed vide Orders dated 11.09.2020 and 24.09.2020,
respectively. After filing of chargesheet, yet again bail
application before the Ld. CMM was dismissed vide Order
dated 10.05.2021.
3. Mr. Pradeep Singh Rana, learned Counsel for Petitioner in BAIL
APPLN. 3750/2021, submits that the Petitioner has been languishing in jail
since 09.12.2020. He submits that no recovery has been made from the
Petitioner or at the instance of the Petitioner, and that, therefore, there is no
link tying the Petitioner to the alleged scam. He brings to the attention of this
Court that the Petitioner is neither an authorized signatory nor a director of
the accused Company, and that there is nothing to suggest that the Petitioner
was associated with the accused Company.
4. Mr. Rana submits that the Ld. Trial Court erred in observing that the
only investors who had gained from the scheme were relatives of the
Petitioner. He states that several of the alleged victims received up to 40-
50% of their invested amount within a month which buttressed the fact that
early investors had received significant returns from the accused Company.
Mr. Rana argues that it is not rational to assume that the Petitioner would
induce his own relatives to invest in a scheme if he possessed the intention
to scam people.
5. Mr. Rana submits that there is not an iota of evidence against the
Petitioner in BAIL APPLN. 3750/2021. He further relies on Sadhupati
Nageswara Rao v. State of Andhra Pradesh, (2012) 8 SCC 547-A to submit
that the essential ingredient for invoking both Sections 406 and 409 IPC is
BAIL APPLN. 3750/2021 & Anr. Page 4 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
„entrustment‟ and there is no evidence which suggests that the Petitioner had
ever been entrusted with any money or property. He further argues that the
FIR in the present case was registered two years ago and that till date the
investigation is nowhere near completion. Mr. Rana submits that the
declaration of PO is misconceived as the Petitioner had no intention to evade
the law and was merely exercising his legal remedy of seeking anticipatory
bail.
6. Mr. Pradeep Singh Rana, learned Counsel for the Petitioner in BAIL
APPLN. 3750/2021, further submits that there is hardly any complaint
which ascribes a distinct role to the Petitioner. He states that the trial is
likely to take a long while and that there is no allegation against the
Petitioner that he has threatened or approached the Complainant or any of
the witnesses. He, therefore, submits that the Petitioner is liable to be
granted regular bail.
7. Per contra, Ms. Meenakshi Chauhan, learned APP appearing for the
State in BAIL APPLN. 3750/2021, submits that the instant case involves the
cheating of a large-scale of money with total investors surpassing 900 and
the amount cheated being Rs. 14 crores. She vehemently opposes the instant
bail application, stating that the Petitioner in BAIL APPLN. 3750/2021 had
previously been declared PO and never joined investigation despite several
notices being issued to him. She submits that there are many statements of
witnesses/complainants under Section 161 Cr.P.C. that specifically name the
Petitioner and state that he took active part in the meetings/representations
for inducement.
8. Ms. Chauhan submits that the Petitioner is a direct recipient of the
cheated amount through his relatives and that Rs. 1.59 crores approximately
BAIL APPLN. 3750/2021 & Anr. Page 5 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
were transferred from the account of the accused Company to the accounts
of some known persons and then to the account of his son, Nitin Bhati, as
well as directly from the account of the accused Company to his nephew,
brothers and brother-in-law. She submits that there are other FIRs which
have also been registered against the Petitioner, and that as charges are yet to
be framed, it would be detrimental to the case to grant the Petitioner bail.
9. Mr. Kumar Piyush Pushkar, learned Counsel appearing for Petitioner
in BAIL APPLN. 3921/2021, submits that there is no evidence to indicate
that the Petitioner had induced the investors and concocted lies about RBI
authorization. He submits that the accused Company was incorporated in
2015 and was named Ayurvedic India, and that the Petitioner only joined the
accused Company on 26.06.2018 after the ownership and name was changed
and handed over to the promoters of SMP Impex Pvt. Ltd. (Hello Taxi). He
submits that the Ld. Trial Court has erred in failing to acknowledge that
most of the Complainants have not mentioned the name of the Petitioner
herein. Further, the learned Counsel submits that the Petitioner was merely a
non-executive director and that he only received Rs. 11 lakhs, which was his
remuneration, out of the alleged cheated amount of Rs. 250 crores.
10. Mr. Pushkar argues that the accused Company has suffered heavy
losses due to cheating, fraud and misappropriation by two of its Directors,
namely Daisy Vijay Menon and Saroj Mahapatra, and Yes Bank illegally
froze its accounts on 05.12.2018. He states that as a result, the money could
not be given to the investors and that the accused Company is still
committed to return the money to its investors. He further submits that even
the co-accused Saroj Mahapatra did not mention the Petitioner while his
statement under Section 161 Cr.P.C. was being recorded, which indicates
BAIL APPLN. 3750/2021 & Anr. Page 6 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
that the Petitioner did not play a major role in the accused Company.
11. Mr. Pushkar submits that the trial is likely to take a long while. He
submits that the Petitioner is the sole earning member in his family, and that
chargesheet as well as supplementary chargesheet have already been filed.
He further states that the evidence is primarily documentary in nature and
the same is already in the custody of the police. Therefore, further
incarceration of the Petitioner is not required and that the Petitioner is liable
to be granted regular bail.
12. Per contra, Mr. Amit Chadha, learned APP for the State appearing in
BAIL APPLN. 3921/2021, vehemently opposes the bail application and
submits that this case is a multi-victim scam. He submits that it over 900
investors are present with the cheated amount running into crores. He further
argues that statements under Section 161 Cr.P.C. of the
witnesses/complainants specifically name the Petitioner and that he was the
Director of the accused Company at the time of the commission of the
offences.
13. The learned APP for the State submits that the Petitioner was the
beneficiary of the cheated amount, and that a perusal of the bank replies
indicate that he was also the authorized signatory of the bank accounts of the
accused Company. He submits that the Petitioner took active part in the day-
to-day affairs of the accused Company. He further reveals that the
investigation had shown that the Petitioner had two PAN cards. Mr. Chadha
also submits that there are various other FIRs which have been registered
against the Petitioner and, therefore, he should not be granted bail.
14. Heard Mr. Pradeep Singh Rana and Mr. Kumar Piyush Pushkar,
learned Counsels appearing for the Petitioners in BAIL APPLN.3750/2021
BAIL APPLN. 3750/2021 & Anr. Page 7 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
and BAIL APPLN.3921/2021, respectively, Ms. Meenakshi Chauhan,
learned APP for the State in BAIL APPLN. 3750/2021, Mr. Amit Chadha,
learned APP for the State in BAIL APPLN. 3921/2021, and perused the
material on record.
15. The chargesheet as well as the supplementary chargesheet has been
filed. With regard to Petitioner in BAIL APPLN. 3750/2021, the chargesheet
and the supplementary chargesheet have been filed under Sections
406/409/420/120-B/174-A IPC and reveal that the Petitioner has been
associated with the accused Company since the very beginning and that he
actively participated in inducement of the public. It states that the Petitioner
and the other accused were dishonest from the inception and that at the time
of the booking, the Hello Taxi scheme had not been sanctioned and requisite
permissions had not been obtained. It states that family members of the
Petitioner were found to be benefitted from the funds transferred from the
accused Company. It states that notices were issued to the family members,
and they resorted to the defence that they invested in the scheme and the
money transferred was merely a profit. However, it was noted that the
Petitioner received the cheated money through the bank accounts of his
family members. It is further revealed that notices under Section 41A
Cr.P.C. were issued to the Petitioner, but he never joined the investigation,
and when efforts were made to arrest him, he was found absconding. It states
that the Petitioner was also declared PO. It states that many investors had
named the Petitioner in their complaints, and that ingredients of Section 420
IPC were made out against the Petitioner.
16. With regard to Petitioner in BAIL APPLN. 3921/2021, the
chargesheet and supplementary chargesheet have been filed under Sections
BAIL APPLN. 3750/2021 & Anr. Page 8 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
406/409/471/420/120-B/174-A IPC and reveal that the amount collected
from the investors is expected to be more than Rs. 240 crores and the
Petitioner was the Managing Director of the accused Company. It states that
the Petitioner never joined the investigation despite several notices under
Section 41A Cr.P.C. being issued to him. He was also found to be
absconding when efforts were made to arrest him. Accordingly, an NBW
was obtained against the Petitioner and he was declared an Absconder vide
Court order dated 17.02.2020. It further reveals that the Petitioner was in
conspiracy with the other Directors and that he was the authorized signatory
of the bank accounts of the accused Company. Further, during the
investigation, it was found that the Petitioner had two PAN cards. The
chargesheet states that the accused persons, including the Petitioner, made
false promises and received payments of crores of rupees from a large
number of people with no intention of returning the money or fulfilling the
promises. It states that by way of fraudulent misrepresentation, concealment
of material facts and false assurances, the general public was induced to
invest in the accused Company and part with their hard-earned money. It
states that ingredients of Section 420/409/120-B IPC are easily made out
against the Petitioner.
17. A perusal of the chargesheet, therefore, indicates that both the
Petitioners were involved in the multi-person scam involving more than Rs.
200 crores from the inception of the same and that both were instrumental in
misleading the public into investing in the scheme with no intention of
returning the money. There are more than 900 complaints till date which
have been made pertaining to the scam and the investigation has revealed
that the Petitioners played an integral role, right from inducing the public to
BAIL APPLN. 3750/2021 & Anr. Page 9 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
the siphoning off of the cheated money. Further, multiple other FIRs are also
pending against both the Petitioners. The gravity of the offences is such that
if the Petitioners are subsequently convicted, they will be liable to be
sentenced to undergo imprisonment for life.
18. However, gravity of the offence cannot be the sole ground to deny bail
to the Petitioners. In Sanjay Chandra v. CBI, (2012) 1 SCC 40 , the Supreme
Court had observed as under:
" 21 . In bail applications, generally, it has been laid
down from the earliest times that the object of bail is to
secure the appearance of the accused person at his
trial by reasonable amount of bail. The object of bail is
neither punitive nor preventative. Deprivation of
liberty must be considered a punishment, unless it is
required to ensure that an accused person will stand
his trial when called upon. The courts owe more than
verbal respect to the principle that punishment begins
after conviction, and that every man is deemed to be
innocent until duly tried and duly found guilty.
22 . From the earliest times, it was appreciated that
detention in custody pending completion of trial could
be a cause of great hardship. From time to time,
necessity demands that some unconvicted persons
should be held in custody pending trial to secure their
attendance at the trial but in such cases, “necessity” is
the operative test. In this country, it would be quite
contrary to the concept of personal liberty enshrined in
the Constitution that any person should be punished in
respect of any matter, upon which, he has not been
convicted or that in any circumstances, he should be
deprived of his liberty upon only the belief that he will
tamper with the witnesses if left at liberty, save in the
most extraordinary circumstances.
23 . Apart from the question of prevention being the
BAIL APPLN. 3750/2021 & Anr. Page 10 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
object of refusal of bail, one must not lose sight of the
fact that any imprisonment before conviction has a
substantial punitive content and it would be improper
for any court to refuse bail as a mark of disapproval of
former conduct whether the accused has been
convicted for it or not or to refuse bail to an
unconvicted person for the purpose of giving him a
taste of imprisonment as a lesson.
24 . In the instant case, we have already noticed that
the “pointing finger of accusation” against the
appellants is “the seriousness of the charge”. The
offences alleged are economic offences which have
resulted in loss to the State exchequer. Though, they
contend that there is a possibility of the appellants
tampering with the witnesses, they have not placed any
material in support of the allegation. In our view,
seriousness of the charge is, no doubt, one of the
relevant considerations while considering bail
applications but that is not the only test or the factor :
the other factor that also requires to be taken note of is
the punishment that could be imposed after trial and
conviction, both under the Penal Code and the
Prevention of Corruption Act. Otherwise, if the former
is the only test, we would not be balancing the
constitutional rights but rather “recalibrating the
scales of justice”.
25 . The provisions of CrPC confer discretionary
jurisdiction on criminal courts to grant bail to the
accused pending trial or in appeal against convictions;
since the jurisdiction is discretionary, it has to be
exercised with great care and caution by balancing the
valuable right of liberty of an individual and the
interest of the society in general. In our view, the
reasoning adopted by the learned District Judge, which
is affirmed by the High Court, in our opinion, is a
denial of the whole basis of our system of law and
BAIL APPLN. 3750/2021 & Anr. Page 11 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
normal rule of bail system. It transcends respect for the
requirement that a man shall be considered innocent
until he is found guilty. If such power is recognised,
then it may lead to chaotic situation and would
jeopardise the personal liberty of an individual.
*
46 . We are conscious of the fact that the accused are
charged with economic offences of huge magnitude.
We are also conscious of the fact that the offences
alleged, if proved, may jeopardise the economy of the
country. At the same time, we cannot lose sight of the
fact that the investigating agency has already
completed investigation and the charge-sheet is
already filed before the Special Judge, CBI, New
Delhi. Therefore, their presence in the custody may
not be necessary for further investigation. We are of
the view that the appellants are entitled to the grant of
bail pending trial on stringent conditions in order to
ally the apprehension expressed by CBI."
(emphasis supplied)
19. Therefore, the magnitude of the offence cannot be the only criterion
for denial of bail. The object of bail is to secure the presence of the accused
at the time of trial; this object is, thus, neither punitive nor preventative, and
a person who has not been convicted should only be kept in custody if there
are reasons to believe that they might flee from justice or tamper with the
evidence or threaten the witnesses. If there is no apprehension of
interference in administration of justice in a criminal trial by an accused,
then the Court should be circumspect while considering depriving the
accused of their personal liberty. Mere vague belief that the accused may
thwart the investigation cannot be a ground to prolong the incarceration of
BAIL APPLN. 3750/2021 & Anr. Page 12 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
the accused.
20. Most importantly, while the Petitioner in BAIL APPLN. 3750/2021
was arrested on 09.12.2020, the Petitioner in BAIL APPLN. 3921/2021 was
arrested on 22.08.2020. Both the Petitioners have been in custody for over a
year now. Chargesheet as well as supplementary chargesheet have been
filed, and all the evidence available is documentary in nature and in custody
of the investigating agency. Whether or not the cheated money was entrusted
to the Petitioners is a matter of trial and cannot be taken into consideration at
this juncture. This Court is, therefore, of the opinion that continued custody
of the Petitioners is no longer required and that both the Petitioners should
be enlarged on bail.
21. In light of the above observations, this Court is inclined to grant bail
to Petitioner in BAIL APPLN. 3750/2021 and Petitioner in BAIL APPLN.
3921/2021, subject to the following conditions:
a) Each petitioner shall furnish a personal bond in the sum of
Rs.1,50,000/- with two sureties of the like amount, one of them
should be a relative of the petitioner, to the satisfaction of the Trial
Court;
b) The Memo of Parties shows that the petitioner in BAIL
APPLN.3750/2021 is a resident of E-3, Road No.06 Gazipur Dairy
Farms, Gazipur, Delhi-110092 and the petitioner in BAIL
APPLN.3921/2021 is a resident of Flat No.125, Rose Apartment,
Sector-18B, Dwarka, New Delhi. The petitioners are directed to
reside at their respective address till further orders;
c) The petitioners are directed to report to the concerned Police
Stations thrice in a week i.e. on every Monday, Wednesday and
BAIL APPLN. 3750/2021 & Anr. Page 13 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55
Friday at 10:30 AM and they shall be released by 11:00 AM after
completing all the formalities;
d) The petitioners are directed to give all their mobile numbers
to the Investigating Officer and keep them operational at all times;
e) The petitioners shall not, directly or indirectly, tamper with
evidence or try to influence the witnesses in any manner;
f) In case it is established that the petitioners have tried to
influence the witnesses or tamper with the evidence, the bail
granted to the petitioners shall stand cancelled forthwith.
22. It is made clear that the observations made in this Order are only for
the purpose of grant of bail and cannot be taken into consideration during the
trial.
23. Accordingly, both the bail applications are disposed of, along with
pending application(s), if any.
SUBRAMONIUM PRASAD, J.
JANUARY 17, 2022
Rahul
BAIL APPLN. 3750/2021 & Anr. Page 14 of 14
Signature Not Verified
Digitally Signed
By:RAHUL SINGH
Signing Date:17.01.2022
18:55