TMI Blog2022 (1) TMI 1172X X X X Extracts X X X X X X X X Extracts X X X X ..... disbursed by the complainant to Respondent No.2 and its company M/s LMJ Logistics Limited. The said amount was disbursed for its own use. All these allegations and the material collected during the course of the investigation which are being part of the charge sheet and supplementary chargesheet are not taken note of by the High Court and the High Court has just simply ignored the same and has released Respondent No.2 on bail by simply observing that case arises out of a commercial transaction and the dispute is of a civil nature. Therefore, the High Court has not at all taken into consideration the relevant considerations while grant of bail. Even the High Court has not at all taken note of the reasoning given by the learned Sessions Court while rejecting the bail application of Respondent No.2. Whether the High Court is at all justified in releasing Respondent No.2 on bail? - HELD THAT:- In the instant case, while dealing with the application of the accused for grant of bail, the High Court completely lost sight of the basic principles enumerated above. The accused, in the present case, is alleged to have committed a heinous crime of killing an old helpless lady by stra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 14.09.2020 passed by the High Court of Delhi at New Delhi in Bail Application No.2442 of 2020 by which the High Court has allowed the said application preferred by the Respondent No.2 herein and has directed that he be released on bail in connection with FIR No.128 of 2019 PS Economic Offences Wing in New Delhi for the offences under Sections 409, 420, 467, 468, 471 and 120B IPC, the original complainant has preferred the present appeal. 2. That the appellant herein a non-banking financial company (NBFC) lodged an FIR/complaint with the Economic Offences Branch, New Delhi against the company M/s Sri Aranath Logistics Limited (formerly known as M/s LMJ Logistics Limited), Respondent No.2 herein Jayant Kumar Jain Managing Director and others for the offences under Sections 409, 420, 467, 468, 471 and 120B IPC. It was alleged against the accused Respondent No.2 herein that he is the Managing Director of M/s Aranath Logistics Limited engaged in the business of multi commodity trading of agricultural and non commodities agricultural. That by way of written agreement accused availed loan credit fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of 25 crores was siphoned off and transferred to other shell companies and how the said amount was used by the Respondent No.2 for other companies. Vide order dated 04.08.2020 by a detailed speaking order, the learned Sessions Judge dismissed the bail application. That thereafter, respondent no.2 accused filed the present bail application before the High Court. The detailed status report was filed on behalf of the I.O. It was also submitted that the charge sheet has been filed against Respondent No.2 and other co accused. The detailed status report was filed pointing out how a sum of ₹ 25 crores to be used by M/s LMJ Logistic Limited was transferred to shell and other companies such as M/s LMJ Logistic Limited and how a systematic fraud was committed. Despite the above, by the impugned judgment and order, the High Court has directed to release Respondent No.2 on bail merely on the ground that the case arises out of a commercial transaction and is based on documents already seized. 3. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court directing to release Respondent No.2 accused on bail, the original complainant has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail application seriously, this Court may not cancel the bail. 4.2 It is further submitted by Shri Rohatgi, learned Senior Advocate for Respondent No.2 that in the present case out of ₹ 25 crores, ₹ 15 crores were transferred to the sister concern LNJ International Limited and the sister concern paid off its loan which cannot be said to be an offence. 4.3 Shri Rohatgi, learned Senior Advocate on behalf of Respondent No.2 accused has heavily relied upon the decisions of this Court in the case of Dolat Ram vs. State of Haryana, (1995) 1 SCC 349; X vs. State of Telangana, (2018) 16 SCC 511; Prabhakar Tewari vs. State of U.P., (2020) 11 SCC 648 as well as the decision of this Court in the case of Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 in support of his submissions that once the bail has been granted by the High Court and/or the Court below the same may not be cancelled unless it is found that the accused has violated any of the terms and conditions of the bail order and/or has misused any liberty shown to him while releasing him on bail and/or there are any other peculiar circumstances. 4.4. Making the above submissions it is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ension was shown that the petitioner is a flight risk . The case arises out of a commercial transaction and is based on documents that already stand seized. The petitioner has already approached the NCLT where a moratorium on the assets/properties has been declared and an IRP has been appointed. The complainant has already approached NCLT. 9. From the aforesaid it can be seen that while releasing the Respondent No.2 on bail the High Court has not at all adverted to and/or considered the nature of accusation and the material found/collected during the course of investigation and the serious allegations of siphoning off the huge amount through various shell companies. The High Court has not at all dealt with and/or considered any of the allegations and/or material collected during the course of the investigation which were specifically pointed out and mentioned in the status report filed by the I.O. From the status report and even the charge sheet/supplementary charge sheet papers it has been found during the course of the investigation that a sum of ₹ 25 crores was disbursed by the complainant to Respondent No.2 and its company M/s LMJ Logistics Limited. The said a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further transferred to LMJ International Limited on the same day. During the course of the investigation, it has been found that an amount of ₹ 99,98,874/ and ₹ 98,74,563/ were transferred in the account of Sairam Agrocorp Pvt. Ltd. and consolidated amount of ₹ 1,98,72,914/ was further transferred to LMJ International Limited on the same day. It has been further found that an amount of ₹ 99,96,387/was transferred to Vasudev Agro Foods Pvt. Limited and it was further transferred to LMJ International Limited on the same day. Thus, it has been found that the credit facility to the tune of ₹ 25 crores availed by M/s LMJ Logistics Limited were not used for any business purposes i.e., sale purchase of agri or non agri products but it has been rotated through shell entities and immediately transferred to other company M/s LMJ International Limited to square off the liabilities through the shell companies. During the course of the investigation/further investigation it has been revealed that Sairam Agrocorp Pvt. Ltd. and Vasudev Agro Foods Pvt. Ltd. are fake and shell companies and they do not exist at the registered address. During the course of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. [ See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT of Delhi [(2001) 4 SCC 280], and Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598]. 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are: (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) prima facie satisfaction of the Court in support of the charge. (See Chaman Lal v. State of U.P., (2004) 7 SCC 525) 10.2 In Anil Kumar vs. State (NCT of Delhi), (2018) 12 SCC 129 , it is observed and held by this Court that while granting bail, the relevant considerations are, (i) nature of seriousness of the offence; (ii) character of the evidence and circumstances which are peculiar to the accused; and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may make on the prosecution witnesses, its impact on the society; and (v) likelihood of his tampering. 10.3 In the case of Prahlad Singh Bhati vs. NCT of Delhi Ors., (2001) 4 SCC 280, it is observed and held by this Court that the jurisdiction to gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused has been released on bail as far as back on 14.09.2020 and that thereafter there are no allegations of misusing the liberty and therefore the bail may not be cancelled and reliance placed upon the decisions of this Court referred to hereinabove more particularly in the case of X (Supra) are concerned at the outset it is required to be noted that this is a case where it is found that the order passed by the High Court releasing the accused Respondent No.2 on bail has been passed mechanically and without adverting to the relevant facts and without considering the nature of accusation and allegations and the nature of the gravity of the accusation. Even in the decisions which are relied upon by Shri Rohatgi, learned Senior Advocate appearing on behalf of Respondent No.2, there is no absolute proposition of law laid down by this Court in the aforesaid decisions that once the bail is granted by the High Court, though the High Court could not have granted the bail, in absence of any allegation of misuse of liberty and/or breach of any of the conditions of the bail, the bail cannot be set aside when grant of bail is itself subject matter of challenge in appeal/revision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC p. 513, para 12) 12. It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of, or bail is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court. 12.2 Thus, as per the law laid down by this Court where a Court while considering an application for bail fails to consider the relevant factors, an Appellate Court may justifiably set aside the order gran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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