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TMI Blog2023 (11) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... Andhra Pradesh State Skill Development Corporation's (APSSDC) Chairman, Crime No. 29 of 2021 was registered by the CID. The report asserts that APSSDC, established on 13.12.2014 by G.O.Ms. No. 47 (HE) (EC.A2) Department, collaborated with SIEMENS on a project to impart Hi-end technology to trainers. APSSDC sent a team to evaluate existing SIEMENS Centres of Excellence in Gujarat. Negotiations resulted in the agreement to establish SIEMENS Centre of Excellence, Technical Skill Development Institutions, and Skill Development Centres in clusters. ii. Six clusters were formed at the inception for Rs. 546,84,18,908/-, with SIEMENS and Design Tech providing a grant-in-aid of 90%, i.e., Rs. 491,84,18,908/-, and the Government's share thereof 10%, i.e., Rs. 55,00,00,000/-. A Memorandum of Agreement (MoA) was signed between APSSDC and SIEMENS under G.O.Ms. No. 4, dated 30.06.2017. Subsequently, a tax investigation by the Additional Director General, GST, Pune, regarding CENVAT credit claims by M/s. Design Tech Systems Private Limited and M/s. Skillar Enterprises India Private Limited exposed a significant financial scam by SIEMENS and Design Tech involving funds allocated to APSSD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pradesh and the current Leader of the Opposition, aged about 73, and National President of the Telugu Desam Party (TDP), was not initially named in the FIR during its registration. Several accused individuals, including those specifically implicated (Nos. 6, 8, and 10), were granted anticipatory and regular bail, with none presently in custody. The petitioner contends that his addition as an accused was malicious and politically motivated, executed through a memo on 08.09.2023, utilizing Sections 34 and 37 of the IPC. The petitioner asserts that his sudden, strategically timed arrest is aimed at obstructing him and his party from campaigning for the upcoming State Elections, with the State resorting to this arrest to derail his public outreach efforts. iii. The petitioner, a senior citizen aged about 73, has a medical history of long-standing diabetes and hypertension. His arrest allegedly violated the procedures outlined in Section 50 of the Cr.P.C. Notably, the petitioner has a medical record of Hypertrophic Cardiomyopathy, Diabetes Mellitus, and Vitiligo. Regular check-ups by a longstanding team of doctors are necessary for monitoring his heart/cardiac and skin conditions. Giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor General of Goods and Services Tax Intelligence to the government. However, no action was taken by the then government. Subsequently, an inquiry was ordered by DG, ACB, AP, in response to a whistleblower petition dated 05.06.2018, entrusted to Mr. N. Venkateswara Rao, DSP, ACB, AP. Unfortunately, the inquiry was not conducted until the petitioner's regime ended. Continuing the inquiry, letters dated 09.02.2021 and 22.02.2021 were sent to APSSDC within ACB, A.P. Based on the Forensic Audit Report and the MD of APSSDC's request, the Principal Secretary on 11.07.2021 directed ADGP, CID, AP to investigate. ACB officials, including Mr N. Venkateswara Rao, DSP, and Mr Giribabu, Inspector of Police, examined and collected documents from APSSDC. iii. The present complaint revolves around the misappropriation and transfer of Rs. 370 Crores into various shell companies, from which the petitioner and other accused withdrew the funds in cash. Notably, the Securities and Exchange Board of India (SEBI) conducted an independent investigation into the existence of shell companies in India, submitting a report dated 07.08.2017. Through an independent examination, the Income Tax author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ching the petitioner to remove the bank guarantee clause. The petitioner, demonstrating knowledge, intent, oversight, and control, facilitated the removal of the bank guarantee clause from the final agreement. APSSDC allowed this at the petitioner's instruction. Once funds were disbursed to Design Tech, they were promptly transferred to shell companies, such as PVSP IT Skills/Skillar Enterprises Pvt. Ltd., Allied Computers International (Asia) Ltd., M/s. Patrick Info Services Pvt. Ltd., M/s. IT Smith Solutions Pvt. Ltd., M/s. Inweb Services Pvt. Ltd., M/s. Knowledge Podium, M/s. Talent Edge, who had raised bogus invoices upon SISW/Design Tech, issued bogus invoices to SISW/Design Tech. viii. The petitioner's claim of lacking prior approval for investigation under Section 17-A of the PC Act is to be dismissed as misconceived. The penal provisions are prospective, and Article 20 of the Constitution prohibits retrospective criminal laws. Section 17-A of the PC Act does not protect the petitioner, as his actions were unrelated to official functions and solely pursued personal benefit. ix. A prima facie case against the petitioner has been clearly established. The Remand Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and party members by filing false complaints and making press/media statements against the witnesses. Following the petitioner's arrest on 09.09.2023, co-accused Mr Sumon Bose (A.6) and Mr Vikas Khanvelker (A.8) sought to derail the investigation by addressing the media and making false allegations. Bail cancellation petitions were filed against Mr Vikas Khanvelker (A.8). The investigation revealed significant cash deposits into TDP party accounts during the period corresponding to the offence timeline, involving misappropriation of APSSDC funds and their diversion to various accused, including Hawala transactions. 7. Moreover, the nature of cash deposits, primarily in Rs. 500 and Rs. 1000 between November 2016 and January 2017, raised suspicions, especially considering the demonetization of these denominations announced on 08.11.2016. Notices under Sections 160 & 91 of Cr.P.C. were sent to the General Secretary-cum-Treasurer, TDP on 31.10.2023 and 04.11.2023 and to the State President of TDP to furnish the Books of Accounts for the said cash deposits. In turn, fresh notices dated 13.11.2023 were sent to the State President of TDP and the General Secretary of TDP with a requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on reported in State of Bihar & Anr v. Amit Kumar Alias Bachcha Rai (2017) 13 SCC 751, wherein the Hon'ble Supreme Court held that: "11. Although there is no quarrel with respect to the legal propositions canvassed by the learned counsel, it should be noted that there is no straitjacket formula for consideration of grant of bail to an accused. It all depends upon the facts and circumstances of each case. The Government's interest in preventing crime by arrestees is both legitimate and compelling. So also is the cherished right of personal liberty envisaged under Article 21 of the Constitution. Section 439 of the Code of Criminal Procedure, 1973, which is the bail provision, places responsibility upon the courts to uphold procedural fairness before a person's liberty is abridged. Although "bail is the rule and jail is an exception" is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail". 12. He further relied on a decision reported in Central Bureau of Investigation v. Santosh Karnani & Anr. 2023 SCC online SC 427, the Hon'ble Apex Court held that: "23. In Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598:2002 SCC (Cri) 688] and Puran v. Rambilas [Puran v. Rambilas, (2001) 6 SCC 338 : 2001 SCC (Cri) 1124])." 14. In a decision reported in Sat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner sought the suspension of his remand as interim relief. On 14.09.2023, the petitioner filed Crl. M.P. No. 1167 of 2023 before the Special Judge, seeking regular and interim bail. On 22.09.2023, this Court dismissed Criminal Petition No. 6942 of 2023. Subsequently, the petitioner filed SLP (Crl) No. 12289 of 2023 before the Hon'ble Supreme Court. On 22.09.2023, the Special Judge granted police custody of the petitioner for two days until 24.09.2023 through Crl. M.P. No. 1108 of 2021. On 25.09.2023, the respondent filed another application, seeking an additional 15 days of police custody for the petitioner, but this request was rejected on 09.10.2023. Furthermore, the Special Judge dismissed the application for regular bail filed by the petitioner on the same day, 09.10.2023. 18. To better understand the case and weigh the arguments made by both sides, this court views that narration of the admitted facts would help decide the petitioner's application. i. The Chairman of the APSSDC lodged a report dated 07.09.2021, and C.I.D. registered a case in Crime No. 29 of 2021. Admittedly, the APSSDC was incorporated by G.O.Ms. No. 47 (HE) (EC.A2) Department, dated 13.12.2014. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sarath & Associates, and on the request of the M.D. of APSSDC to entrust the case to the C.I.D., A.P., the Principal Secretary dated 11.07.2021, ADGP, C.I.D., A.P. was directed to investigate the matter. 21. The Prosecution contends that the funds amounting to Rs. 370 Crores were swindled/transferred into various shell companies from where different accused persons, including the petitioner herein, withdrew the amount in cash. No material is placed to substantiate the contention that the petitioner had withdrawn the amount in cash, as contended. On the other hand, it is the prosecution case that during the investigation, the bank account transactions statements of T.D.P. have been obtained from Union Bank of India, Jubilee Hills Branch, Hyderabad and bank accounts of Bank of Baroda, Jubilee Hills Branch, Hyderabad, for the period from 01.06.2014 to 31.12.2018. It is not in dispute that the petitioner is the former Chief Minister of Andhra Pradesh, and he is presently the Leader of the Opposition and the National President of the Telugu Desam Party. 22. According to the prosecution, a thorough analysis of cash deposits into the mentioned accounts revealed significant amounts depo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pex Court referred a decision in Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail." 26. Regarding A.1, this Court observed in Crl.P. No. 7263 of 2021 that there are no prima facie-specific allegations against him, confirming interim bail granted on 20.12.2021. For A.2, in Crl.P. No. 7217 of 2021, the court noted that he gave an undertaking to cooperate with the investigating agency, suffers from old age ailments, and has already been granted bail. A.3, according to the order in Crl.P. No. 7258 of 2021, was granted pre-arrest bail as the allegations against him were limited to not placing relevant files before the concerned authority. 27. As for A.6 and A.8, this Court, in orders dated 17.01.2022 in Crl.P. No. 7339 of 2021 and Crl.P. No. 31 of 2022, stated that there are no specific allegations that A.6 swallowed APSSDC funds or diverted them to personal accounts. A.8 also had no specific allegations in the F.I.R. or remand repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll the students that they have been trained. The service certificates issued by the other companies would go to show that the monies are being spent on the training programmes." 32. The learned Additional Advocate General for the Respondent-State highlighted that a review of the chat transcript (SMS and WhatsApp messages) between Mr Bose and Mr Khanvelkar, owner of Design Tech, confirms multiple similar transactions executed from December 31, 2014, to January 2016. However, the chat transcript messages involving the exchange of currency note numbers as tokens do not establish the relevance of WhatsApp messages between Mr. Bose and Mr. Khanvelkar to the present transaction. The Memorandum of Agreement (MoA) was entered in between APSSDC and SIEMENS, dated 30.06.2017, under G.O.Ms. No. 4 of the Skill Development Entrepreneurship and Innovation (Skills) Department. The Prosecution has not linked the WhatsApp messages to the present transaction, and it remains unclear how these messages connect to the petitioner/A.37 in the alleged transactions. The Prosecution acknowledges that the source of cash received and the purpose of this transaction could not be determined from the messages. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rely on our report do so entirely at their own risk (Except Regulatory Authorities). (k) Information obtained during the search on the identified databases (internet) is included in this report without any further verification. Ascertaining the reasons or genuineness or completeness/correctness of such information was beyond the scope of this engagement." 36. The disclaimer provided by S&A emphasizes its significance. Nevertheless, it is crucial to underscore that the petitioner cannot be held accountable for the discrepancies highlighted in the report. It remains to be clarified how the differences outlined in the report can be deemed the fundamental cause for the alleged misappropriation of funds. 37. As per the material on record, the Authorized Signatory of SIEMENS addressed a letter dated 17.05.2023 to C.I.D., Government of Andhra Pradesh, responding to the question as to whether SISW provided any Grant-in-Aid in this project, which reads as follows: "Response: As the Grant-in-Aid, i.e. 90% Grant-in-Aid as mentioned in the Government Order, was not required to be provided by SISW for the APSSDC Project, so, SISW did not provide 90% grant-in-aid on total project cost for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated in the discussions. The team submitted a report on the activities of SIEMENS and Design Tech in the State of Gujarat with the following observations: "SIEMENs is a reputed company working with Design Tech, and implementation of the Project in Gujarat is satisfactory. The training facilities proposed to be set up in Andhra Pradesh will immensely benefit the students/trainees by imparting employable skills to the students/trainees and making available the required skilled workforce in the State of Andhra Pradesh. These trainees can also avail themselves of global employment opportunities with the skills acquired in these facilities. Therefore, the entire amount of Rs. 270 Crores available in the P.D. Account of the Corporation may be released immediately to retain the interests of the SIEMENS in the project." 41. The Prosecution has not alleged that Smt. K. Sunita and her team submitted an incorrect report, and actions were taken against them. The petitioner's counsel argues that the respondent should acknowledge the project's goodwill, aimed at equipping students with skills, benefiting approximately 2,13,000 students. While it is undisputed that around 2 lakhs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have been committed, the same should be rectified. When there exists a reasonable apprehension in the mind of the State, having regard to the overall situation including the post-haste manner in which actions had been taken, to cause an inquiry to be made and suspend the process of making appointments till the result of such inquiry is obtained, such a decision on its part per se cannot be said to be an act of arbitrariness or unreasonableness." 44. Learned Additional Advocate General for the Respondent-State, relied on a decision reported in Ramveer Upadhyay & Anr. V. State of U.P 2022 SCC Online 484, wherein the Hon'ble Supreme Court held that: "30. The fact that the complaint may have been initiated by reason of political vendetta is not in itself grounds for quashing the criminal proceedings, as observed by Bhagwati, CJ in Sheonandan Paswan v. State of Bihar. It is a well-established proposition of law that a Criminal prosecution if otherwise justified and based upon adequate evidence, does not become vitiated on account of mala fides or political vendetta of the first informant or complainant. Though the view of Bhagawati, CJ in Sheonandan Paswan (supra) was the mino ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dia) Pvt. Ltd. before Assistant Director of Enforcement, Hyderabad Zone, Hyderabad. Those statements do not show prima facie the complicity of the petitioner in the commission of the offence. At this stage, it is not necessary to go into the correctness or otherwise of the statements made by those persons, which were recorded subsequent to the registration of the crime against the officials of M/s.SIEMENS Industry Software (India) Pvt. Ltd. This Court views that while considering an application seeking bail, it cannot enter into an in-depth analysis of the case so as to hold a mini-trial of the case. It is also unnecessary to give lengthy reasons at the time of granting bail. This is a matter that will, of course, be dealt with by the trial Judge. 48. The learned Additional Advocate General for the Respondent-State argues that the Memo filed by the petitioner regarding his present medical condition is in contravention of the bail conditions. The Court, however, has directed the petitioner to provide details about the treatment received and the hospital where he was treated, in a sealed cover, to the Superintendent, Central Prison, Rajamahendravaram, at the time of his surrender. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge ailments. This Court was pleased to grant interim bail to the petitioner in this crime, based on his health reports, as per Orders of this Court in I.A. No. 1 of 2023 and I.A. No. 3 of 2023 from 31.10.2023 to 28.11.2023. All these facts are an indication that there is no apprehension that the petitioner/A.37 would abscond or would hamper the trial. 51. The learned Senior Counsel for the petitioner contends that under Section 439 of Cr.P.C., the Court can impose conditions while granting bail, but such conditions must balance the liberty of the accused and not result the arbitrary deprivation of the right to carry out normal activities. In support of his contention, he relied on a decision reported in Parvez Noorddin Lokhandwalla V. State of Maharashtra and another. (2020) 10 SCC 77, the Hon'ble Apex Court held that: "14. The language of Section 437(3) CrPC, which uses the expression "any condition ... otherwise in the interest of justice" has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting to any available means of publication subject again to such restrictions as can be legitimately imposed under Art. 19(2). The success of democracy depends upon free, fair, honest and independent press." 53. Learned Senior Counsel for the petitioner further relied on a decision reported in Romesh Thappar v. State of Madras AIR 1950 SC 124, wherein the majority of the Judges of the Hon'ble Supreme Court on freedom of the press and its limitation held that: "Freedom of Speech and expression includes freedom of propagation of ideas, and that freedom is ensured by the freedom of circulation. The Constitution, in formulating the varying criteria for permissible legislation, imposes restrictions on the fundamental rights enumerated in Art. 19(1) has placed in a distinct category those offences against public order which aim at undermining the security of the State or overthrowing it and made their prevention the sole justification for legislative abridgement of freedom of speech and expression. Thus, nothing less than endangering the foundations of the State or threatening its overthrow could justify curtailment of the rights to freedom of speech and expression, while the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Advocate General that Respondent-State has no intention to proceed against the petitioner, as apprehended by the petitioner, regarding his arrest until the objective of this Court order in I.A. Nos. 1 & 3 of 2023 in Crl.P. No. 7951 of 2023 is fulfilled. As the said undertaking was given based on the orders, as referred to above, it is needless to observe that it is binding on both parties. As such, this Court views that the said condition is to be relaxed from 29.11.2023 onwards. 56. This Court directed the petitioner, while disposing of interim bail application on medical grounds, to place the details about his treatment in a closed cover to the Superintendent, Central Prison, Rajamahendravaram, at the time of his surrender. In view of granting of regular bail, this Court views that a direction can be given to the petitioner to file such medical record before the Special Court, Vijayawada, on or before 28.11.2023. 57. Accordingly, the interim bail granted to the petitioner/A.37 vide common order dated 31.10.2023 is made absolute, and the petitioner/A.37 is ordered to be released on regular bail on the bail bond already furnished by him in respect of this case. However, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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