BA No.534/2022
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Oral Order
CNR NO.: MHCC020106852022
IN THE SPECIAL COURT FOR CBI AT GREATER BOMBAY
BAIL APPLICATION NO.534 OF 2022
IN
REMAND APPLICATION NO.820 OF 2022
Mr. Amitava Dutta
Aged : 49 years, Occ : Service
Presently residing at : Flat No.1803,
Tower A2, Sarovar CHS, Kandivali (E),
Mumbai – 400 101
.. Applicant
Versus
CBI, STB, Mumbai
.. Respondent
Shri. Pranav Badeka, Advocate for applicant
Shri. Jitendra K. Sharma, SPP for respondent
CORAM :
S. H. GWALANI, SPECIAL JUDGE
COURT ROOM NO.48
DATED :
19th AUGUST, 2022
ORAL ORDER
Applicant/accused Amitava Dutta, has filed present application
for bail under section 439 of the Code of Criminal Procedure in Remand
Application No.820 of 2022 in R.C. No.3/S/2022/CBI/STB/Mumbai,
registered for offence under section 120B of the Indian Penal Code and
Section 7 of the Prevention of Corruption Act.
Case of the prosecution in brief as under :
2.
On 11.07.2022, first informant Hitesh Desai, received notice from
applicant to pay Rs.11,62,854/ towards employee’s contribution of the
company for the period July to September, 2019 which was not paid by
BA No.534/2022
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Oral Order
the first informant’s company. However, it was the case of first
complainant that amount due and payable from them is only
Rs.3,39,078/. Thereafter, first informant met the applicant/accused on
20th July, 2022, at the applicant’s office. At this meeting, first informant
informed applicant that due to technical issues, challan could not be
uploaded for which they had already informed the department vide
letter dated 11th December, 2019.
3.
Further case of the prosecution is that, applicant asked first
informant to submit a further representation on 25 th July, 2022. When
on 25.07.2022, first informant met the applicant with representation, at
that time, applicant asked him to settle the said notice by paying 15% of
the notice amount as a bribe. Thereafter, applicant suggested certain
changes in the representation and to meet him on 4th August, 2022.
4.
It is further alleged that applicant agreed to accept Rs.2,00,000/
(Rupees Two Lakhs only) as the first installment out of the total bribe
amount of Rs.2.91 lakhs on 5 th August, 2022 and remaining amount
afterwards. It is further alleged that after verification of first informant,
a trap was led on 05.08.0222 wherein applicant was caught red handed
while demanding and accepting Rs.2,00,000/ and said amount of
Rs.2,00,000/ was recovered from the applicant. Therefore, applicant
was apprehended and on 06.08.2022, at 1.00 hours was arrested by the
respondent.
5.
It is further alleged that during house search of applicant/
accused huge cash amount of Rs.20,18,300/ was recovered. Beside
this, amount of Rs.19,383/ appox from his purse and amount of
Rs.25,000/ was also recovered from the accused.
BA No.534/2022
6.
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Oral Order
After police arrest, applicant was remanded to judicial custody.
Now, by filing bail application applicant/accused has claimed that
allegations made against him are false and baseless and no prima facie
case is made out against him. He has falsely and wrongly implicated in
a false case and no offence under section 7 of the P. C. Act and section
120B of the IPC as alleged is made out against him. Arrest memo and
remand application preferred by the respondent is self contradictory.
7.
It is falsely alleged by respondent that amount of Rs.2,00,000/
was recovered from the applicant out of Rs.2,91,000/ as a first
installment and second was to be paid later. As such assuming without
admitting that amount of Rs.2,00,000/ is recovered from the applicant,
there is no requirement of the custody of the applicant and no purpose
will be served by languishing the applicant in jail.
8.
He further contended that all the evidence is documentary in
nature and verification of first informant was also done as claimed by
the respondent and there is no question of the applicant tampering and
hampering any evidence or witnesses. Therefore, further custody of the
applicant is not required. Applicant is a public servant and is easily
available and hence there is no question of delay or no availability of
him for any investigation. He has deep roots in society and there is no
question of him being absconding or not remaining present before this
Court for facing the prosecution. He undertakes that he shall remain
present before the Investigating Agency as and when called and shall
cooperate. Accordingly, applicant prayed in above terms.
9.
CBI strongly opposed the application by filing their reply vide
Exh.02, denied the contents of application and reiterated the case of
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Oral Order
the prosecution. It is contended that there is enough material to
corroborate the allegations including recorded conversation between
the accused and complainant, wherein he has demanded 25% of the
notice amount Rs.11,62,854/ and demanded Rs.2 lakhs as first
installment and remaining in next two week. There is recovery of Rs.2
lakhs from the possession of applicant/accused in presence of CBI team
members and independent witnesses. Thus, Recovery of Rs.2 lakhs from
possession of accused and pink colour solution of hand wash of accused
established receipt of bribe money. The procedure of recovery of the
default amount of Rs.11,62,854/ by ESIC, Mumbai is of civil nature.
Whereas, the instance case has been registered on a specific complaint
for demanding bribe to settle the said default amount by the accused
which is a criminal act. The demand and recovery of more than Rs.20
lakhs in cash from the house of accused established his role that he is
habitual in taking bribe. During custodial interrogation he could not
give satisfactory reply for keeping that much of cash amount with him,
though he is living alone in Mumbai, and his family is residing at
Kolkata. Investigation is at initial stage and statement of complainant,
shadow witnesses and other material witnesses are yet to be recorded.
Accused is highly influential and is second senior most officer in his
office. Several incriminating documents are yet to be recovered from
his office and statement of crucial witnesses are yet to be recorded and
if accused is released on bail there is strong apprehension that he may
influence the witnesses and may tamper with the other evidence which
is yet to be collected and therefore, may hamper the investigation.
Accordingly, prayed that instant application is devoid of merits and
liable to be dismissed in the interest of justice.
BA No.534/2022
10.
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Oral Order
Perused bail application, reply, remand application and case
diary. Heard Shri. Pranav Badeka, learned advocate for applicant/
accused and Shri. Jitendra K. Sharma, learned SPP for CBI at length.
They argued in terms of respective contention of party. During course
of argument, learned advocate for applicant has placed his reliance on
following case laws.
i.
P. Chidambaram Vs. Central Bureau of Investigation, (2020)
13 Supreme Court Cases 337.
ii.
Satender Kumar Antil Vs. Central Bureau of Investigation and
Another, 2022 SCC OnLine SC 825.
iii.
State of Maharashtra Vs. Nainmal Punjaji Shah and Another,
1969 (3) Supreme Court Cases 904.
iv.
Khatri and Others Vs. State of Bihar and others, (1981) 1
Supreme Court Cases 627.
v.
Ramkrishna Raghunath Burkule Vs. State of Maharashtra,
Vol II (1997) CCR 391, Hon’ble Bombay High Court.
vi.
Krushna Guruswami Naidu Vs. The State of Maharashtra,
(2011) 3 AIR Bom R 33.
vii.
In Re : Llewelyn Evans, AIR 1926 Bom 551.
BA No.534/2022
viii.
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Oral Order
Dr. Pradeep Kumar Vs. State of Karnataka, Criminal Petition
No.4535 of 2019 decided on 22.07.2019 by the Hon’ble Karnataka
High Court.
11.
I have gone through aforesaid authorities.
12.
During course of argument, learned SPP for CBI further submitted
that statement of witness Nitin Bandre, has been recorded under section
164 of Cr.P.C. In the said statement he has corroborated the story of
prosecution and also stated that before the present incident, he had also
collected such parcels and envelopes for 2 to 3 occasions as per order of
accused Amitava Dutta. Therefore, he claimed that opportunity may
kindly be granted to CBI to conduct the investigation and bail
application of the accused may kindly be rejected.
13.
At this stage, the Court has to consider nature and seriousness of
accusation, severity of offences, nature of evidence collected, character
and behaviour of the accused, possibility of tampering of evidence and
accused absconding. The existence of a prima facie case is only to be
examined. Detail discussion of evidence and elaborate documentation
of merits is to be avoided.
14.
In the case of Satener Kumar Anil (cited supra) the Hon’ble
Apex Court held that, “Liberty is one of the most essential
requirements of the modern man. It is said to be the delicate fruit
of a mature civilzation.
It is the very quintessence of civilized
existence and essential requirement of a modern man.” Further,
from the case of P. Chidambaram (cited supra) it is clear that “mere
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Oral Order
that any economic offence has been registered cannot be a sole
ground to refuse anticipatory bail or regular bail.”
15.
In present case, offences under section 120B of IPC and section 7
of the P. C. Act have been invoked in this crime. Punishment provided
for these offences is up to Seven Years. Role attributed to applicant is
that, he has demanded 15% of the notice amount Rs.11,62,854/ and
demanded Rs.2 lakhs as first installment and remaining in next two
week. Admittedly, there is recovery of Rs.2 lakhs from the possession of
accused in presence of CBI team members and independent witnesses.
Recovery of Rs.2 lakhs from possession of accused and pink colour
solution of hand wash of accused established receipt of bribe money. It
is to be noted that during investigation amount more than Rs.20 lakhs
in cash have been recovered from the house of accused. Pretrap and
post trap panchanamas have been drawn. Recovery of certain articles
and papers have been made.
16.
Present applicant/accused was arrested on 06.08.2022 at 1.00
hours. Initially, he was remanded to police custody and thereafter, on
10.08.2022, he has been remanded to judicial custody as per request
made by the prosecution/investigating agency. This itself shows his
custodial interrogation with police is not required. More so, during the
judicial custody of accused, statement of witness Nitin Bandre under
section 164 of Cr.P.C. was recorded by learned Addl. Chief Metropolitan
Magistrate. Investigating officer also recorded the statement of other
witnesses. He has also collected electronic evidence through mobiles
and voice specimen sample of accused and other were also taken.
BA No.534/2022
17.
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Oral Order
In above background and in view of the facts mentioned in
aforesaid paras, there is no need to have custodial interrogation of
applicant/accused. Learned advocate for applicant/accused submitted
that applicant is already suspended. CBI has also not disputed the said
fact. That being so, possibility of his getting access to the documents in
office is remote. So, prima facie at this stage, custodial interrogation of
this accused is now not necessary. So far as contention of respondent
that role of other conspirators as well as office Boy Nitin Bandre needs
to be investigated to find out any racket is involved, it can be done by
following due procedure. For that purpose, further incarceration of
applicant/accused is not required. Applicant is public servant and has
residences at Kandivali, Mumbai. In the facts of matter his possibility of
absconding does not appear to be well founded. So far as apprehension
of investigating agency in relation to influencing witnesses and
tampering with prosecution evidence is concerned; allegations in that
regard are vague and of general nature. Even otherwise same can be
addressed by imposing certain conditions. In the light of discussion
made above and in the facts of matter, I am inclined to exercise
discretion of granting bail to applicant/accused. Hence, I pass following
order.
ORDER
1.
Bail Application No.534 of 2022 is allowed.
2.
Applicant/accused Amitava Dutta be released on bail on his
executing P.R. Bond of Rs.50,000/ (Rupees Fifty Thousand only) with
one or more sureties in like amount.
3.
Applicant/accused shall not directly or indirectly make any
inducement, threat or promise to any person acquainted with the facts
of the case so as to dissuade him/her from disclosing such facts to the
Court or tamper with evidence.
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4.
He shall furnish his detailed permanent residential address and
native residence along with mobile number to the Court and
Investigating officer. In case of change of address and mobile number
he shall intimate the same in advance to the Court and Investigating
officer.
5.
He shall not abscond and make himself available for investigation
purpose and cooperate Investigating Officer in investigation and attend
the CBI Office, Mumbai as and when required by the Investigating
Officer until further order.
6.
He shall not leave India without prior permission of the Court.
7.
Accordingly, bail application stands disposed of.
SHYAM
HARIRAM
GWALANI
Date : 19.08.2022
Digitally signed
by SHYAM
HARIRAM
GWALANI
Date:
2022.08.20
17:27:31 +0530
(S. H. Gwalani)
Special Judge, CBI
Gr. Bombay
BA No.534/2022
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Oral Order
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
20.08.2022, 5.25 p.m.
UPLOAD DATE AND TIME
Mrs. S. P. Pawar
Stenographer (Grade I)
Name of the Judge (With Court H.H.J. Shri. S. H. Gwalani
Room No.)
C.R.No.48
Date of Pronouncement of
JUDGMENT/ORDER
19.08.2022
JUDGMENT/ORDER signed by P.O. 20.08.2022
on
JUDGMENT/ORDER uploaded on
20.08.2022