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BA 104-22 in CR 60-17
BEFORE THE DESIGNATED COURT UNDER THE M.P.I.D. ACT
CITY CIVIL & SESSIONS COURT, MUMBAI
BAIL APPLICATION NO. 104 OF 2022
(CNR No. MHCC020005222022)
IN
C.R. No. 60 OF 2017
Mr. Kapil S/o. Surendra Mittal
Aged about 38 years,
Residing at 1/4687 Street No.4, Balbir Nagar
Extension, Shahdara, Delhi 110032,
presently lodged at Arthur Road Jail
]
]
]
]
]… Applicant/Accused
Versus
The State of Maharashtra.
Through Inspector Incharge,
EOW Wing, Unit9,
]
]
]… Respondents
Appearances:
Ld. Advocate Ashok M. Saraogi for Applicant.
Ld. SPP Mrs. Tendulkar for the State/ Respondents.
CORAM : HIS HONOUR JUDGE
SHRI C. V. MARATHE
(Court Room no. 7)
DATED : 17th January, 2022.
ORAL ORDER
1.
The applicant/suspected accused Mr. Kapil S/o. Surendra
Mittal (hereinafter “the applicant”) is seeking his release on bail under
Section 439 of the Code of Criminal Procedure, 1973 in connection with
C.R. No.301 of 2017 registered with Malad Police Station which was
subsequently transferred to EOW vide C.R. No. 60 of 2017 under
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BA 104-22 in CR 60-17
Sections 420, 465, 467, 468, 471, 120B of Indian Penal Code
(hereinafter “IPC”).
2.
The prosecution case reflected from the chargesheet is as
under :
The F.I.R. was lodged by Chief Regional Officer (Sales),
Mumbai, Ashok Kailasnath Upadhyay of ICICI Bank on 08.08.2017
against the Directors of M/s. Leeway Logistics Ltd. (hereinafter “the
Company”). Between August 2012 to February 2016 the Company
obtained loan of Rs.19,97,58,162/(Rupees Nineteen Crores Ninety
Seven Lakh Fifty Eight Thousand One Hundred Sixty Two only) for
purchasing 175 forklifts. Out of said loan, Rs.15,35,66,919/(Rupees
Fifteen Crores Thirty Five Lakh Sixty Six Thousand Nine Hundred
Nineteen only) was repaid and loan of Rs.4,61,85,243/(Rupees Four
Crore Sixty One Lakh Eighty Five Thousand Two Hundred Forty Three
only) for 35 forklifts was outstanding. Since 2016, the Company
stopped paying the installments of the loan and on inquiry by the bank,
it was revealed that loan was obtained on the basis of forged
documents.
On 27.10.2015, the main accused Sanjay Satishkumar
Sinha (hereinafter “the main accused”) and other accused met Ankit
Soni, Relationship Manager of bank and applied for loan of
Rs.54,00,000/(Rupees Fifty Four Lakh only) for 4 forklifts. They
submitted invoices of M/s. Kamal Sales Corporation (hereinafter “Kamal
Sales”). On 29.10.2018, a cheque of Rs.53,75,200/(Rupees Fifty Three
Lakh Seventy Five Thousand Two Hundred only) was given for
purchase of forklifts in the name of Kamal Sales. The said amount was
transferred to the account of the said Kamal Sales at Ratnakar Bank,
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BA 104-22 in CR 60-17
Barakhamba, New Delhi through RTGS. Hypothetication for the loan
was lodged with the Registrar of Companies against the name of the
Company. Again fresh application was made for purchase of 31 forklifts.
The
loan
was
sanctioned
on
23.02.2016
and
amount
of
Rs.4,01,96,150/(Rupees Four Crore One Lakh Ninety Six Thousand
One Fifty only) was transferred in the bank account of Kamal Sales at
ICICI Bank, Naya Bazar branch, New Delhi. It was mentioned that the
Company was buying forklifts of M/s. Godrej Boyce Manufacturing
Company Ltd. and it was also mentioned that M/s. Hyundai Motor
India Private Ltd. and M/s. MercedesBenz Ltd. had given contracts to
the Company and forklifts were necessary to comply with those
contracts. Out of outstanding loan of Rs.4,61,85,243/ (Rupees Four
Crore Sixty One Lakh Eighty Five Thousand Two Hundred Forty Three
only) only Rs.20,25,155/(Rupees Twenty Lakh Twenty Five Thousand
One Hundred Fifty Five only) was repaid and remaining amount was
misappropriated.
Kamal Sales is a fictitious Company. No such Company was
found on the given address. The amount deposited in the account of
Kamal Sales was diverted to the account of the Company and thereafter,
it was siphoned off. M/s. Hyundai Motor Ltd. and M/s. MercedesBenz
Ltd. had never given contracts to the Company. Some of the amounts
deposited in the account of Kamal Sales were diverted into M/s. Vishal
Enterprises, Ram Traders, Jitesh Enterprises, Yuvank Trading, Shreeji
Traders. Those amounts were withdrawn and cash was mis
appropriated.
In the course of investigation, it was revealed that applicant
Kapil Mittal prepared bogus invoices cum challans of Kamal Sales,
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BA 104-22 in CR 60-17
proprietor of Kamal Sales Shivkumar Kushvah signed 62 blank papers
on the say of the applicant Kapil Mittal, out of misappropriated amount
Rs.2,87,21,600/ (Rupees Two Crore Eighty Seven Lakh Twenty One
Thousand Six Hundred only) was transferred in the account of the
Company’s account in the Bank of India and the said bank account
number was given by the applicant’s brother Bobby Mittal to Punit
Lamba.
3.
Ld. Advocate for the applicant submits that the main
accused is already released on bail by Hon’ble Bombay High Court on
23.06.2021 in Criminal Bail Application no.678 of 2020, the main
accused repaid more than Rs.2.30 Crores to the bank. He has further
invited my attention to the fact that the main accused allegedly
committed offence upon the advise of his Financial Advisor not the
present applicant, who is merely a Chartered Accountant, and had no
role of whatsoever nature in the commission of offence. He has further
submitted that investigation with the applicant is completed by the
police and on 31.12.2021 he has been granted judicial custody and no
purpose will be served by keeping him behind bars for long period. Ld.
Advocate for the applicant has further argued that though the
prosecution has applied Sections 465, 467, 468, 471 of I.P.C., the said
provisions covered “false documents” prior to amendment but, after the
amendment the same has been removed from the purview of the
provisions of forgery. He further submits that the applicant was not
beneficiary of the transactions, the money traveled into various other
bank accounts of various other parties and then came back to the main
accused. Lastly, he has prayed to release the applicant on bail by stating
that investigation of the case is already completed and presence of the
applicant can be secured by imposing conditions.
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4.
BA 104-22 in CR 60-17
Ld. SPP argues that the applicant and other accused
persons have done an illegal act by entering into criminal conspiracy,
the applicant prepared false invoices of Kamal Sales to obtain loan from
the bank, he received misappropriated money for his wrongful gain
and investigation against the applicant is not yet completed, therefore,
bail application be rejected.
5.
I have considered above submissions. It can not be doubted
that the prosecution prima facie establishes that the loan was disbursed
for purchasing forklifts but the amount was transferred to Kamal Sales
which was never in existence and which was not authorized dealer of
M/s. Godrej Boyce Manufacturing Company Ltd. From the order of the
Hon’ble Bombay High Court in Criminal Bail Application no. 678 of
2020, it can be seen that the main accused took the responsibility and
made attempts to deposit the misappropriated amount with the bank.
He has already deposited Rs.2.30 Crores to show his bona fide. Though,
the prosecution alleges that the applicant played vital role in preparing
false invoices of Kamal Sales, the loan money was routed through
various entities to the account of Company. As per the prosecution case,
the applicant received financial benefits from the transactions relating
to the misappropriated amount. In other words, as per the prosecution
case, the applicant issued false invoices of Kamal Sales for some
financial benefit though the main brain and beneficiary was accused
Sanjay Satishkumar Sinha. He is already released on bail. It is not the
prosecution case that the applicant was previously convicted in any
offence much less has any FIR against him. Custodial interrogation of
the applicant is over and he is in judicial custody from 31.12.2021. The
trial of the case is likely to take a very long time. Considering above
aspects, I am inclined to grant bail to the applicant. To take care of
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BA 104-22 in CR 60-17
apprehensions of the Investigating Agency, stringent conditions can be
imposed on the applicant while releasing him on bail. Hence, following
order :
ORDER
1. Bail Application No. 104 of 2022 is allowed and disposed off.
2. In connection with C.R. No.60/2017 registered with E.O.W. Unit
I, (previous C.R. No.301/2017 registered with Malad Police
Station, Mumbai), the applicant is directed to be released on bail
on his furnishing PR bond in the sum of Rs.1,00,000/(Rupees
One Lakh only) with one or two sureties in the like amount.
3. The applicant shall deposit his passport, if any, and if not
deposited already with any other Investigating Agency to the
Investigating Officer of this case before being released on bail.
4. The applicant shall not leave India without prior permission of
the Trial Court.
5. The applicant shall furnish his residential address and contact
details and also change in those in future, if any, to the
Investigating Officer.
Digitally signed by
CHANDRASHEKHAR
CHANDRASHEKHAR VIJAYKUMAR
VIJAYKUMAR
MARATHE
MARATHE
Date: 2022.01.19
14:57:08 +0530
Date : 17.01.2022
Dictated on
Transcribed on
Signed on
: 17.01.2022
: 18.01.2022
: 18.01.2022
( C. V. Marathe )
Addl. Sessions Judge,
City Civil & Sessions Court,
Mumbai.
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BA 104-22 in CR 60-17
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT /ORDER”
On 19.01.2022 at 2.55 p.m.
UPLOADED DATE AND TIME
Mrs. G. P. Acharekar
NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.)
H.H.J. C. V. Marathe
C.R. No.07
Date of Pronouncement of Judgment/Order
17.01.2022
Judgment /Order signed by P.O. on
18.01.2022
Judgment/Order uploaded on
19.01.2022