Delhi High Court: Chandra Dhari Singh, J., granted bail while referring to a catena of Supreme Court decisions with regard to the law on bail.
An application under Section 439 of the Code of Criminal Procedure, 1973 was filed seeking regular bail in an FIR registered for the offences punishable under Sections 406/420/120B of the Penal Code, 1860.
Factual Matrix
In 2014, Auto Web approached the complainant at the office of HDFC Bank Limited for the grant of Credit Facilities in the nature of Inventory Funding and Cash Credit Facilities by the complainant. It was represented that Auto Web was the ‘Authorized Dealer’ of Hyundai and engaged in the business of ‘sales’ and ‘service’ of vehicles manufactured by Hyundai since the year 2013.
Complainants processed and sanctioned the credit facilities on the basis of the request and representation made by the director of Auto Web. Consequent thereto, the loan agreement was executed between the complainant and Auto Web, in relation to the credit facilities.
The stocks of the vehicles (inventory) were the primary security of the complainant, in addition to the cross collateral. Accordingly, from time to time, on the request of Directors, existing facilities were modified/enhances/renewed and other facilities were granted on the basis of the documents. In the balance sheets of Auto-Web, it was shown that the company was generating profits.
As per the last enhancement/renewal, the complainant had sanctioned an amount of Rs 15 Crores towards Inventory funding, Rs 1.50 crores as CC Limit and adhoc limits of Rs 3.50 crore to Auto Web duly utilized said limits sanctioned by the complainant.
Based on the request of the accused persons for disbursal of funds, the complainant used to disburse the amounts directly into the account of manufacturer, whereupon the stocks (cars) got released to the dealer, which stock was hypothecated to the complainant.
Further, in terms of the arrangement between the complainant and Auto Web, proceeds from the sale of the inventory (Cars) were to be credited into the inventory funding account of the dealer for the purposes of repayment of the limits utilized by the dealer.
In 2019, the officials of the Bank noted stress in the accounts of Auto Web and certain gaps in the stock audit report.
After a point of time, the directors of Auto Web failed to regularize the accounts and remained evasive and thereafter started avoiding contact with the bank officials.
In 2020, upon reconciling accounts, it was found that Auto Web utilized a major portion of the credit facilities granted by the complainant towards the purchase of 143 vehicles amounting to Rs 11,40,75,861 from Hyundai.
The Bank found that the vehicles available in stocks was much less than the inventory received from the manufacturer, pursuant to the disbursals made by Complainant. Hence, there was a gap of about Rs 11.45 crores which was not accounted for.
The stock of only 34 Vehicles at 2.35 Crores was found available with accused persons and Vehicles amounting to Rs. 11.45 Crores had been found to been fraudulently misappropriated.
Therefore, the vehicles worth more than 11 crores which were purchased from the funds made available by the complainant had been sold by the accused without crediting the sale proceeds into the inventory funding account of the Bank.
It was clear that the vehicles purchased from the funds of the complainant had been illegally sold without crediting the payments to the complainant and the sale proceeds had been criminally misappropriated.
Accused/borrower illegally removed all the hypothecated vehicles and misappropriated an amount of Rs 13,60,72,600.
The petitioner/applicant was arrested on 5-8-2021, therefore the bail application before the Additional Sessions Judge and the same was dismissed.
Analysis, Law and Decision
In the present matter, the wife of the petitioner/applicant filed an affidavit in pursuance of the order of this Court and disclosed the mode of repayment to the financial institutions at his place/address of residence once he was enlarged on bail.
The investigation had been completed, charge sheet had been filed and the petitioner languished in jail since 5-8-2021.
All the incriminating evidences/materials against the Petitioner/Applicant were documentary in nature and had already been seized by the investigating agency. As per the statutory provisions, the maximum sentence for the offence punishable under Section 420 of the IPC was upto seven years.
Supreme Court in Joginder Kumar v. State of U.P., (1994) 4 SCC 260, had dealt with the contours of Article 21 of the Constitution of India with regard to the arrest of an accused to the effect that the power to arrest cannot be exercised in isolation, and that it must have justification for the exercise of such power, as no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person, without reasonable satisfaction reached after some investigation as to the genuineness and bonafides of a complaint and a reasonable belief qua the person’s complicity and the need to necessitate such arrest.
Further, in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, Supreme Court reiterated the value of the personal liberty enshrined under Article 21 of the Constitution of India. The Supreme Court further emphasized that the basic rule behind bail jurisprudence is “to bail not jail”. The Court went on to observe that it is our earnest hope that our courts will exhibit acute awareness of the need to expand that footprint of liberty and use our approach as a decision-making yardstick for further cases for the grant of bail.
High Court observed that the consequences of pre-trial detention are grave and keeping an under trial in custody would necessarily impact his right to defend himself during the trial in as much as he will be clearly denied the right to a fair trial, which was guaranteed under Article 21 of the Constitution.
Settled Law
The fraudulent and dishonest intention should be present since inception for an offence of Cheating.
In the present case, a non-payment of miniscule amount in comparison to the huge amounts paid over the years had been deliberately given a criminal colour.
Further, it was stated that since the investigation was complete, there was no apprehension of tampering with any documents, influencing witnesses or absconding from the trial. Hence, Court satisfied the triple test laid down by the Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791.
Bench noted that it was an admitted fact that the evidence to be adduced in the instant case was substantially documentary in nature, which were already in the custody of the Investigation Agency. The petitioner had been languishing in jail for more than five months.
Conclusion
High Court opined that the petitioner should be enlarged on bail.
The Bench held that,
Let the petitioner be released on regular bail pending trial on his furnishing of personal bond in the sum of Rs. 1,00,000/- (Rupees One Lacs only) with two solvent sureties of like amount to the satisfaction of the Trial Court, subject to the further conditions as follows:-
(a) he shall surrender his passport, if any, to the Investigating Officer and shall under no circumstances leave India without prior permission of the Trial Court;
(b) he shall cooperate in the trial and appear before the Trial Court of the case as and when required;
(c) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case;
(d) he shall provide his mobile number(s) and keep it operational at all times;
(e) he shall drop a PIN on the Google map to ensure that his location is available to the Investigating Officer;
(f) he shall commit no offence whatsoever during the period he is on bail;
(g) In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/Court concerned by way of an affidavit.
[Vikas Chawla v. State of NCT of Delhi, 2022 SCC OnLine Del 382, decided on 7-2-2022]
Advocates before the Court:
For the petitioner:
Mr Vikas Pahwa, Sr. Advocate with Mr Sumer Singh Boparai, Mr Abhishek Pati, Mr Sidhant Saraswat and Mr Shadman Siddiqui, Advocates
For the Respondent:
Ms Kusum Dhalla, APP for State Mr Tushar Jarwal, Mr Rahul Sateeja, Mr Ambar Bhushan and Mr Anurag Soan, Advocates for BMW Finance/Complainant
Mr Kunal Tandon and Mr Chetan Roy, Advocates for HDFC Bank/ Complainant