BA 103/18
1
IN THE SPECIAL COURT FOR CBI AT GREATER BOMBAY
BAIL APPLICATION NO. 103 OF 2018
IN
REMAND APPLICATION NO. 138 OF 2018
(RC 05(A)/2018CBI, ACB, MUMBAI)
Takashi Osamu Kuroda
…Applicant/Accused no.2
Versus
The State (CBI, EOW, Mumbai)
CORAM :
DATED :
…Respondent
HIS HONOUR JUDGE SHRI S.R. TAMBOLI
(COURT ROOM NO.47)
13.02.2018
SPP Mr. J.K. Sharma for the CBI, EOW.
Advocate Ms. Yogini Abhay Ugale for the applicant/accused no.2
ORDER
1.
In the instant application, accused has prayed for bail under Section
439 of the Cr. P. C.
2.
Ld. Counsel for the applicant/accused submitted that the present
accused is arrested by CBI, ACB, Mumbai on 01.02.2018 under Sections 7
and 12 of the P.C. Act vide RC BA1/2018/A005 for the case registered vide
FIR dated 01.02.2018. The prosecution has already searched the premises
of the present accused as well as his office and prepared search
panchanama on 02.02.2018. As per the prosecution story the bill was
raised by the present accused in favour of coaccused Sanjeev Malhotra,
(hereinafter, he is referred as ‘accused no.3’ only for convenience), who is a
CA, for giving illegal gratification to the co accused Kalicharan Panda,
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(hereinafter, he is referred as ‘accused no.1’ only for convenience), who is a
Assistant Commissioner of Customs. Said illegal gratification was given for
giving favourable order with regard to acceptance of declared value of
goods imported by the present accused. CBI came to know this fact from
source information. FIR came to be lodged and amount of Rs. 2 lacs came
to be recovered from the accused no.1.
3.
He further submitted that the alleged bill of accused no. 3 raised on
company of the present accused is already seized by the investigating
agency. Hence, further custody of the accused is not necessary. It is no
where reflected in FIR or remand application dated 02.02.2018 that the
present accused had handed over any illegal gratification to the accused
no. 1. The alleged amount of illegal gratification of Rs. 2 lacs was
recovered from one polythene bag from the cabin of the accused no. 1.
Hence, there is no evidence of handing over the amount from the present
accused to the accused no.1. The illegal gratification cannot be connected
with the present accused in any manner. There is no evidence of it being
ever handed by the present accused at any time. There is no demand of
illegal gratification by any person from any complainant in the present
case. The entire case is based on alleged source information on 01.02.2018
at 11.00 hours by CBI, ACB, Mumbai and accused was arrested at 16.00
hours i.e. within five hours of information. These facts mentioned in FIR
and remand application falsify the case of the prosecution of any trap laid
by them in office of the accused no.1. The said trap is not laid by them on
any reliable information or any proof of demand of illegal gratification or
any proper investigation of information. The applicant is Japanese
national. He is residing in Mumbai since last 5 years with his family.
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4.
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He further submitted that Section 7 and 12 of the P.C. Act are not
attracted to the present accused. The present accused is private person.
Hence, his arrest under P.C. Act is misuse of law. Hence, he prayed to
release the accused on bail.
5.
PerContra, Ld. SPP for CBI, ACB, Mumbai submitted that the
accused no.1 demanded illegal gratification from the present accused
through accused no. 3 for handing over a favourable order with regard to
the acceptance of the declared value of the goods imported. The modus
operandi in the payment of illegal gratification is that the bill would be
raised by the present accused in the name of the accused no.3. The accused
no. 3 was encashing the cheque and he was handing over it to the present
accused for making payment of the illegal gratification of the accused no.1.
CBI learnt that the present accused was handing over the illegal
gratification of Rs. 2 lacs to the accused no.1 in the afternoon of
01.02.2018 in the presence of accused no. 3. Hence, FIR came to be
registered and trap came to be laid. At that time, accused no.1, present
accused and accused no. 3 were caught. The amount of Rs. 2 lacs was
seized from the inside bag from the cabin of the accused no.1. The
recorded conversation of the present accused and co accused shows the
demand of illegal gratification. The investigation is in progress. There is
every possibility of the tampering with the witnesses. Hence, he prayed
that the application of bail be rejected.
6.
To support his contention, Ld. Counsel for the applicant placed
reliance on the following decisions:
i) In B. Jayaraj vs. State of A.P., MANU/SC/0245/2014, Hon’ble
Apex Court observed that mere possession and recovery of the
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currency notes from the accused without proof of demand will not
bring home the offence under Section 7 and 13(1)(d) of the PC Act.
ii) In Krishan Chander vs. State of Delhi , MANU/SC/0003/2016,
Hon’ble Apex Court observed that mere acceptance of any amount
without the proof of demand would not bring the charge under
Section 7(1) and 13(1)(d) of the PC Act.
iii) In P. Satyanarayana Murthy vs. The Dist. Inspector of Police
and Ors., MANU/SC/1012/2015 similar observation has been made
by the Hon’ble Apex Court.
iv) Shashikant vs. Central Bureau of Investigation and Ors.,
MANU/SC/8639/2006
v) S. Murali Mohan and Ors. vs. State ,MANU/TN/3151/2017
vi) Vineet Narain and Ors. vs. Union of India (UOI) and Anr.,
MANU/SC/0827/1998
7.
In these cases, cited at paragraph 5 (iv) to (vi) Hon’ble Apex Court
and Hon’ble Madras High Court observed that the guidelines given in the
CBI Manual is mandatory.
8.
Relying on the aforesaid decisions, Ld. Counsel for the present
accused submitted that in the present case demand has not been proved.
Prosecution has not disclosed the source information. Preliminary inquiry is
not been made on the source of information. Prosecution has not stated
exactly about the manner in which the conversation was recorded. Hence,
there is no prima facie case against the accused.
9.
PerContra, Ld. SPP for CBI, ACB, Mumbai also placed reliance on
the decision of Hon’ble Apex Court. It is delivered in Vineet Narain’s Case
(Supra.) and submitted that after making proper inquiry, CBI unit has laid
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the trap.
10.
In Vineet Narain’s Case (Supra.) Hon’ble Apex Court observed as
under:
“12. The CBI Manual based on statutory provisions of the Cr.P.C. provides
essential guidelines for the CBI’s functioning. It is imperative that the CBI
adheres scrupulously to the provisions in the Manual in relation to its
investigative functions, like raids, seizure and arrests. Any deviation from the
established procedure should be viewed seriously and severe disciplinary action
taken against the concerned officials.
19. Before we refer to the report of the Independent Review Committee
(IRC), it would be appropriate at this stage to refer to the Single Directive issued
by the Government which requires prior sanction of the designated authority to
initiate the investigation against officers of the Government and the Public Sector
Undertakings (PSUs), nationalised banks above a certain level. The Single
Directive is a consolidated set of instructions issued to the CBI by the various
Ministries/Departments in this behalf. It was first issued in 1969 and thereafter
amended on many occasions. The Single Directive contains certain instructions to
the CBI regarding modalities of initiating an inquiry of registering a case against
certain categories of civil servants. Directive No. 4.7(3) in its present form is as
under :
“4.7(3) (i) In regard to any person who is or has been a decision making
level officer (Joint Secretary or equivalent or above in the Central Government or
such officers as are or have been on deputation to a Public Sector Undertaking;
officers of the Reserve Bank of India of the level equivalent to Joint Secretary or
above in the Central Government, Executive Directors and above of the SEBI and
Chairman & Managing Director and Executive Directors and such of the Bank
officers who are one level below the Board of Nationalised Banks), there should
be prior sanction of the Secretary of the Ministry/Department concerned before
SPE takes up any enquiry (PE or RC), including ordering search in respect of
them. Without such sanction, no enquiry shall be initiated by the SPE.
(ii) All cases referred to the administrative Ministries/Departments by CBI
for obtaining necessary prior sanction as aforesaid, except those pertaining to any
officer of the rank of Secretary or Principal Secretary, should be disposed of by
them preferably within a period of two months of the receipt of such a reference.
In respect of the officers of the rank of Secretary or Principal Secretary to
Government, such references should be made by the Director, CBI to the Cabinet
Secretary for consideration of a Committee consisting of the Cabinet Secretary as
its Chairman and the Law Secretary and the Secretary (Personnel) as its
members. The Committee should dispose of all such reference preferably within
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two months from the date of receipt of such a reference by the Cabinet Secretary.
(iii) When there is any difference of opinion between the Director, CBI
and the Secretary of the Administrative Ministry/Department in respect of an
officer up to the rank of Additional Secretary or equivalent, the matter shall be
referred by CBI to Secretary (Personnel) for placement before the Committee
referred to in Clause (ii) above. Such a matter should be considered and disposed
of by the Committee preferably within two months from the date of receipt of
such a reference by Secretary (Personnel).
(iv) In regard to any person who is or has been Cabinet Secretary, before
SPE takes any step of the kind mentioned in (i) above the case should be
submitted to the Prime Minister for orders.”
11.
In Amit Suresh Arya vs. Central Bureau of Investigation and Ors.,
MANU/MH/1345/2017, Hon’ble Bombay High Court observed as under:
“18. (iii) Considering the offences alleged, aggrieved person ought to have
lodged the report and based on source information not disclosed at any time,
complainant has no locus to lodge report alleging the offences of cheating,
forgery etc.:
Another ground on which criminal prosecution is assailed is regarding the
locus of complainant to lodge the complaint. Submission of the applicants is that
FIR is lodged on the basis of source information which has never been disclosed
at any time and for the offences particularly of cheating and forgery, it was
incumbent on the prosecution agency to disclose the source of information and
the name of informant. In support thereof, reliance is placed on the decisions of
the Hon’ble Supreme Court in Joseph Salvaraja vs. State of Gujarat and others,
MANU/SC/0719/2011 : (2011) 7 SCC 59 : [2011 ALL SCR 1601] and
Mohammed Ibrahim and others vs. State of Bihar and another,
MANU/SC/1604/2009 : (2009) 8 SCC 751.
21. The proposition of law relating to information in cognizable cases is
well settled and any person orally or in writing can set criminal law into motion.
In this background, we do not find any infirmity regarding the locus to lodge the
report. The third contention raised by the learned counsel for the applicants is,
therefore, negatived in the above background.”
12.
In
R.
Venkatakrishnan
vs.
Central
Bureau
of
MANU/SC/1411/2009, Hon’ble Apex Court observed as under:
Investigation,
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“179. In this regard, it must be emphasized that the submission of the
learned Counsel that the Banks have not initiated any proceedings and suffered
any loss and thus the judgment of conviction and sentence of criminal breach of
trust is wholly unsustainable cannot be accepted for more than one reason.
180. It is not the law that complaint petition under all circumstances must
be made by the Banks and Financial Institutions whose money had been the
subject matter of offence. It is also not the law that suffering of loss is a sine qua
non for recording a judgment of conviction. It is now trite that criminal law can
be set in motion by anybody. The prosecution was initiated on the basis of the
information received by the Central Bureau of Investigation. It would entitled to
do so not only in regard to its statutory powers contained in the Delhi Special
Police Act but it was also entitled to take cognizance in terms of the report
submitted by ‘Janakiraman Committee’. The money involved in the transfer is
public money belonging to Public Sector Banks.”
13.
Relying on the aforesaid decisions, Ld. SPP submitted that it is not
mandatory on the prosecution to disclose the source of information.
Criminal law can be set in motion by any person. The offence alleged
against the accused is serious. Hence, he payed to reject the application.
14.
There cannot be two opinions about the ratio laid down in aforesaid
cases. However, in the present case the prosecution is not coming with the
case that the present accused actively handed over the amount of Rs. 2 lacs
to the coaccused no.1.
15.
As per the story of the prosecution the amount of Rs. 2 lacs was
found in the cabin of the accused no. 1. Whether the said amount was
handed over to the present accused by the accused no. 3? Whether it was
the same amount? It is not brought on record.
16.
Further, in the present case nobody has complained about the
demand of illegal gratification. Prosecution is relying on the source
information. However, it does not appear that the source information has
been confirmed as per the ratio laid down in Vineet Narain’s Case
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(Supra.). Though it is not mandatory to disclose the source information,
CBI has to act as per the guidelines given in CBI manual. The FIR does not
prima facie shows about the steps taken by the CBI.
17.
Further, nobody has complained about the demand of the money by
the present accused. CBI has not raid handed while accepting the money
through present accused by coaccused. Counsel of the accused has relied
on the ratio laid down in B. Jayaraj’s Case (Supra.), Krishan Chander’s
Case (Supra.), and P. Satyanarayana’s Case (Supra.). As per the ratio
laid down in said cases, it is necessary to prove the demand of gratification.
As earlier stated, nobody has complained about the illegal gratification.
18.
Further, this court has passed order for releasing the coaccused
no.1. Therefore, on the ground of parity also accused is entitled for bail.
Already the premises of the present accused has been searched. The
amount from coaccused no.1 has been seized. Therefore, the presence of
the accused is not required for further investigation.
19.
The prosecution is coming with case that the accused may tamper
with the evidence. He may influence the prosecution witnesses.
20.
However, in this regard this court is of the view that the conditions
can be imposed on the accused. If the accused makes any attempt to
influence witnesses or tamper the evidence, the prosecution can still apply
for the cancellation of the bail. However, it cannot be a sole ground for
rejection of the bail.
21.
The offence alleged against the accused is punishable with
imprisonment of ten years. Considering all these facts, this court thinks it
proper to enlarge the accused on bail.
22.
In the result, this court pass the following order:
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ORDER
1. BA 103/18 is hereby allowed on following conditions:
i) Accused Takashi Osamu Kuroda be released on bail on
executing P. R. Bond of Rs. 2,00,000/ (Rs. Two Lacs Only) with
one or two surety/sureties in like amount.
ii) Accused shall attend the office of CBI once in a week i.e. every
Sunday from 10.00 a.m. to 5.00 p.m. till filing of the chargesheet.
iii) Accused shall not leave country of India without prior
permission of this court.
iv) Accused shall not interfere in the investigation in any manner.
v) Accused shall not tamper with the prosecution witnesses and
record relating to the offence.
vi) Accused shall deposit his passport with the office of CBI, EOW,
Mumbai.
2. Bail Application 103/18 is disposed off accordingly.
(S.R.TAMBOLI)
Special Judge (CBI)
Gr. Bombay.
13.02.2018
Dictated on
Transcribed on
Signed on
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGEMENT/ORDER”
UPLOAD DATE
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Name of the Judge
TIME
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10.48 a.m.
Nikita Yogesh Gadgil
HHJ Shri S.R. Tamboli (CR
No.47)
13.02.18
Date of Pronouncement of
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Judgement/order signed by P.O on
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14.02.18
15.02.18