TMI Blog2018 (9) TMI 2094X X X X Extracts X X X X X X X X Extracts X X X X ..... AR SINGH-I, JJ. For the Appellant : Kali Azad, Akshay Mohiley For the Respondent : G.A., Gyan Prakash ORDER Supplementary affidavit filed today on behalf of the revisionist is taken on record. Heard Sri Rohan Gupta, holding brief of Sri Akshay Mohiley, learned counsel for the revisionist and Sri Gyan Prakash, learned counsel for the C.B.I. And perused the record. By means of the present revision, the judgment and order dated 11.9.2018 passed by Special Judge, Anti Corruption (C.B.I.), Court No.1, Ghaziabad in Criminal Misc. Case No.4/2018 CBI -v- M/s Simbhaoli Sugars Ltd. And others, under Section 120-B read with Section 420 and 409 IPC alongwith Section 13/2 read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988, P.S.- C.B.I., BS FC, New Delhi, has been assailed. It has been prayed that the revisionist be permitted to travel abroad to Philippines for a period of 10 days, subject to reasonable conditions. The facts of the case are that an FIR was lodged on the basis of complaint made by one Shri Manohar Dhingra, Assistant General Manager, Oriental-Bank of Commerce, Meerut against the revisionist as well as other co-accused being FIR No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d based on the undertaking given by the company to the effect that inputs like seed, fertilizers and other necessary equipments etc. had been supplied by it to all the individual farmers. The farmers had to submit declaration stating therein that the proceeds of the loan amount was to be credited in the account of the company in lieu of the supply of the input materials equipments like seed, fertilizers and other necessary equipments etc. by the company to the farmers. Accordingly, the said declaration was submitted by all the borrower farmers. For implementing the scheme of financing farmers, Memorandum of Understanding (MoU) dated 18.1.2012 was executed between the company and O.P. No.3-Bank whereby the company had undertaken the responsibility of distributing the materials like seed, fertilizers and other necessary equipments etc to the farmers. The relevant clause of the MoU are reproduced hereinbelow :- 8.3 The sugar mill shall route the payment of sugarcane supplied by the borrower through his loan account opened by the borrower with the bank. 8.4 In case of any default on part of the company or its field functionaries or other employees in paying to the bank or routing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ile admitting its liability and requesting for charging of normal rate of interest had also admitted that the funds were utilized for payment of arrears of sugarcane supplied earlier to their mills and thus, had admitted diversion of funds for the purposes other than that agreed between the company and O.P. No.3-Bank, thus, committed the offence of fraud, cheating and criminal breach of trust. The accounts of the borrower farmers were also declared NPA (Non Performing Assets) on 31.3.2015. The company had committed breach of terms of MOU by diverting the funds for the purpose other than agreed apart. A recovery suit of Rs.112.94 crores was filed by the O.P. No.3-Bank in DRT (Debt Recovery Tribunal) against the company where the company was making payments in piecemeal and approached the Bank for the purpose of financing a fresh corporate loan to the tune of Rs.110.00 crores so that it could clear the entire liability of all those loans of the farmers which they had diverted. Upon acknowledgment of the liability by the company and converting the loan into secured loan, the company undertook to gradually reduce the bank's dues. A corporate loan of Rs.110.00 crores was sanctioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences unless there are chances of accused deliberately evading arrest and not appearing before the trial court despite issuance of NBW. In this case, Look Out Circular has been issued even though there was no hint or allegation that the revisionist would not be available for interrogation during investigation or during trial, if required and despite the fact that he had always been presenting himself before the Investigating Agency for the purpose of investigation. There is no possibility of the revisionist fleeing the country as he would leave his wife and daughter behind. He had sought only 10 days permission to leave the country which was badly needed for the purpose of conducting business abroad. It is further argued that CBI has failed to submit charge-sheet in the matter despite the FIR having been registered on 22.2.2018. He has relied upon law laid down in Saroj Kumar Poddar vs. State (NCT of Delhi) and Another , reported in 2007 (5) SCC 691 in which it has been laid down that for prosecution of the director of a company, a clear case has to be spelt out which is not the case in hand. As he had already left the company in September 2013 and had nothing to do with the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he guidelines for the issuance of the Look Out Circulars which provided that recourse to the Look Out Circular is to be taken in cognizable offence under IPC or other penal laws. The details in column IV in the enclosed proforma or regarding reason for issuing LOC's (Look Out Circular) must invariably be provided without which the subject of an LOC will not be arrested/detained. Therefore, it was clarified that a request for issuance of LOC would necessarily have to contain reasons for such request. Further it was held that the conditions precedent for arrest under Section 41 of the Code of Criminal Procedure without warrant as set forth in sub-sections (a) to (i) of Section 41(1) were wholly absent atleast on the date of the Look Out Circular. The legality or validity of LOC has to be adjudged having regard to the circumstances prevailing on the date on which the request of issuance of LOC has been made. It is further observed that FIR against the petitioner was lodged on 15.5.2017 while notice was issued on 15.6.2017 calling upon the petitioner to appear before the Station House Officer/Investigating Officer on 29.6.2017 and on the very next date i.e. 16.6.2017 the impugned L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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