TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 777
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....f directions to the police officials to release the passport of the petitioner confiscated in FIR No.63 dated 17.02.2020 registered under Sections 420, 406, 120-B, 34 of the Indian Penal Code, 1860 (hereinafter to be referred as "the IPC") at Police Station Dharuhera, Rewari. The brief facts which have given rise to the filing of the present criminal miscellaneous petition are that the petitioner had made an application praying for grant of permission to visit USA for family reunion w.e.f. 18.12.2020 to 10.01.2021. It was the case of the applicant/petitioner that he had been granted the concession of anticipatory bail by the Court of Sessions Judge, Rewari and that the applicant/petitioner had already joined the investigation and that the applicant/petitioner is an Overseas Indian citizen having an Indian Passport No.N2419844 and is married to Mrs. Kimberly Marie, who is a citizen of USA having passport No.514439506 and out of the wedlock, the petitioner has a son named Ayan, who is also a US citizen by birth having passport No.506273592. It was averred that the wife and son of the petitioner are residing in Utah, a state in USA, at the address 584E, Southfork Drive, Draper, UT-84....
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....s: - i) The petitioner was not cooperating in the investigation. ii) The petition bearing CRM-M-33202-2020 for cancellation of bail granted to the petitioner had been filed before the High Court by the complainant i.e. Joginder Singh and the same was pending adjudication at that time. iii) The allegations against the petitioner were stated to be serious, inasmuch as after having been suspended from the Board of Directors as per the NCLT order dated 24.09.2019, the petitioner still placed two purchase orders and signed two PDC cheques in order to cheat the complainant. iv) If permitted, there was a possibility of the petitioner fleeing from the course of justice and not returning to India after release of his passport. v) There was no fundamental right of the petitioner to visit abroad and the permission to visit or not to visit a foreign country was to be decided on the basis of facts and circumstances of the case. The petitioner filed a Criminal revision against the order dated 16.12.2020 in the Court of Sessions Judge, Rewari. Before the Sessions Court, apart from reiterating the averments and arguments raised before the Chief Judicial Magistrate, Rewari, it was furthe....
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....Specific reference has been made to the said order which has been reproduced in the order dated 01.09.2021. It has been submitted that the reading of the said order would show that the factum of pendency of CRM-M-33202-2020 and non-cooperating in investigation and also the allegations based on the merits of the case against the petitioner, cannot possibly come in the way of the petitioner in being granted the permission to go abroad. It is further submitted that it is the fundamental right of every citizen of India, enshrined under Articles 19 and 21 of the Constitution of India, to move freely and to travel freely, including foreign travel, and thus, the same cannot be illegally curbed. It is submitted that the wife of the petitioner as well as son of the petitioner are both residing abroad and the petitioner has every right to travel abroad for conjugal union. Learned Senior Counsel for the petitioner has also further submitted that the question of non-cooperating in the investigation would not arise inasmuch as in the present case, the challan has already been filed after the completion of the investigation. Learned Senior Counsel for the petitioner has also relied upon the judg....
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....uralization application and any absence between the filing of the application and the applicant's admission to citizenship." On the basis of the said clause, it has been submitted that the absence of more than 6 months but less than one year, during the period for which continuous residence is required, is presumed to be a break in the continuity of such residence. On this aspect, further reference has also been made to Parvez Noordin Lokhandwalla's case (Supra) in order to state that as per the US Immigration and Nationality Act, 1952, the person concerned has to return for a short period for revalidating the green card. Specific reference has been made to sub-Clause (ii) of Clause (C) of the conditions prescribed. Relevant portion of the said judgment of Hon'ble Supreme Court in the abovesaid case containing the said condition is reproduced hereinbelow: - "On 26 June 2020, a Single Judge (Justice S. K. Shinde) expressed his inability to take up the IA for relaxation of the conditions attached to the grant of interim bail since the order dated 19 May 2020 had been passed by Justice A. S. Gadkari. The contention of the appellant, it may be noted, has been that under the conditio....
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.... with respect to the petitioner being a green card holder or his wife having to be operated for removal of her appendix, were never the points which were agitated before the Courts below. It is further submitted that in fact, the wife of the petitioner has already undergone the said operation and has now recovered and thus, the said point cannot be taken to permit the petitioner to go abroad. Learned Senior counsel for the Complainant and State have laid much emphasis on the fact that the plea of the petitioner is not bona fide and there is every possibility that the petitioner would not come back to India in case he is granted the permission to go abroad. It is submitted that the wife and son of the petitioner are citizens of America and that the petitioner has no property in India. Further, no details of bank accounts are forthcoming. It is further submitted that the amount due to the complainant is to the extent of Rs. 1,85,50,286/-. Further reference has been made to Annexures C1 and C2 which have been filed alongwith CRM-34170-2021. In Annexure C1, reference has been made to paragraph 2 to highlight the fact that there are as many as 41 cases pending against the petitioner an....
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....d and for that, reference has been made to the order dated 13.10.2021, which has been sent through Whatsapp and the same is taken on record. The said order is reproduced hereinbelow: - "TCI Fright Vs. Indsur Global 03-2018 Present:- Ms. Manju Rani, counsel for complainant. File put up on application for withdrawal the present complaint filed on behalf of complainant. By separate statement of complainant counsel Ms. Manju Rani stated that on the instruction of complainant company, he does not want to pursue the present complaint. Kindly same be dismissed as withdrawn. In view of statement, complainant counsel is allowed to withdraw the present complaint. File be consigned to the record room after due compliance. Announced in Daily Lok Adalat; (Sarita Solanki) Presiding Officer Daily Lok Adalat UID-HR0473 13.10.2021" Further, to rebut the reliance sought to be placed by the opposing counsel on the Chart as mentioned in Para 2 of Annexure C1, it has been stated that from the said chart, it is nowhere coming out that the petitioner is also an accused in the said cases, nor any fact or document has been produced to show that the petitioner is personally responsible for a....
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....er and that the mother of the petitioner has immovable property worth approximately Rs. 35 to Rs. 45 lacs which the petitioner and his mother are also ready to furnish as security and in case this Court desires, then an amount of Rs. 5,00,000/can also be furnished in the form of a bank guarantee by the petitioner. With respect to the local surety, reference has been made to Chapter 33 of the Cr.P.C., moreso Section 441 of Cr.P.C. to contend that no such conditions have been imposed under Section 441 of Cr.P.C. and thus, it has been prayed that the petitioner, who is residing in Mumbai, would not possibly be able to get a local surety in Rewari. It has been submitted that in the present case, an amount of Rs. 1,85,50,286/- is recoverable against the company in question, for which the proceedings are pending and apart from the argument which has been raised with respect to 41 other cases, it has been submitted that it is the dispute in the present case which is to be primarily seen by this Court while allowing an application, as has been moved in the present case. Reference has been made to judgment dated 28.09.2018 passed in CRM-M-41608-2018 titled Paramjit Kaur Vs. State of Punjab ....
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....ory bail to the petitioner, (2). Alleged non-cooperation of the petitioner in the investigation & (3). Merits of the allegations made against the petitioner, moreso with respect to placing of two purchase orders after the Board of Directors had been suspended vide order dated 24.09.2019 by the NCLT): - The petition bearing No.CRM-M-33202-2020, had been dismissed by this Court vide judgment dated 01.09.2021. While deciding the said case, the aspect with respect to the alleged non-cooperation of the petitioner in the investigation of the case had also been considered. The merits of the case, including the allegations with respect to two purchase orders having been placed by the petitioner after the Board of Directors had been suspended vide order dated 24.09.2019 by the NCLT, had also been considered. The relevant portion of the judgment dated 01.09.2021 is reproduced hereinbelow: - "xxx xxx xxx It has been observed in the impugned order that the two purchase orders dated 17.10.2019, which were placed on behalf of the accused-company had been cancelled on learning of the actual impact of the Order passed by the NCLT, Mumbai and no goods were ever supplied to the accused perso....
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..... Before parting, this Court wishes to point out that the aspect of non-joining of investigation has been duly defended by the Respondent Nos.3 to 5 by making a reference to the Order dated 04.01.2021 (Annexure R3/1) vide which the prosecution had withdrawn their application for cancellation of bail by stating that the respondent nos.3 to 5 have joined the investigation. The relevant portion of the said order dated 04.01.2021 is reproduced hereinbelow: "State of Haryana Vs. Amit Sureshmal Lodha etc. Present:-Sh. Harpal Singh, Public Prosecutor for the State. ASI Sandeep Kumar, PS Dharuhera in person. Sh. Vivek Tanwar, counsel for the respondents/accused. Sh. Vivek Tanwar, counsel for the respondents/accused appeared in person. ASI Sandeep Kumar with learned Public Prosecutor for the State vide his separate statement stated that the respondents in the present case have already joined into investigation and in view of the same, they do not wish to pursue with the application for cancellation of bail of applicants/accused Amit Sureshmal Lodha, Sureshmal Lodha and Indu Lodha and withdrawn the same. Heard. In view of the statement,present application for cancellation of bail....
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....e survives. The appeal raises interesting issues about the interface between the fundamental right to travel abroad and its curtailment under a judicial order as an incident to regulate conditions governing the grant of bail." In the present case, the primary plea raised by the petitioner is to meet his wife and son who are residing in USA. The said cause was existing at the time of filing of the application at the fist stage, at the time of arguments in the revision petition, as well as in the present petition. The cause thus, survives. Moreover, the petitioner cannot be deprived of his right to travel abroad and meet his family members, merely on account of the fact that the period for which he had initially sought the said permission, has lapsed. In the present case, the visit was not for a specific function/event, upon the finishing of which, the cause would cease to survive. For instance, in case a person has to travel abroad to attend the marriage of a near and dear one and the marriage has already been performed or to participate in a particular event and the said event has already taken place, then the cause, depending upon the facts and circumstances of the case, would ha....
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....e petitioner to travel abroad as the right to travel abroad is his fundamental right but the same is to be regulated by imposing conditions. The relevant portion of the said judgment is reproduced hereinbelow: - "5 The law governing the question of grant of permission to the petitioner for travelling abroad during the pendency of the trial has been elaborately discussed by this Court in authority of Paramjit Kaur vs. State of Punjab's case (supra) in which reliance was placed on Srichand P. Hinduja Versus State through CBI, New Delhi 2002(3) RCR (Criminal) 186 (SC), Arun Kapoor vs. State of Haryana 2004(4) RCR (Criminal) 594 (P&H), Brij Bhushan Singal vs. Central Bureau of Investigation 1994(3) RCR (Crl.) 498 (P&H), Anjal Kumar @ Angel Kumar vs. State of Punjab 2010(1) RCR (Criminal) 201 and Naginder Singh Rana vs. State of Punjab 2004(3) RCR (Criminal) 912 and on the basis of the said authoritative pronouncements of the Hon'ble Apex Court and this Court, it can be safely concluded that in normal circumstances, permission can be granted to the petitioner to travel abroad being his fundamental right to travel abroad, but the conditions are to be imposed for regulating and ....
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....e life; marriage, family and friendship are humanities which can be rarely affected through refusal of freedom to go abroad and clearly show that this freedom is a genuine human right. (See Mrs. Maneka Gandhi v. Union of India and Another (1978) 1 SCC 248). In the said judgment, there is a reference to the words of Justice Douglas in Kent v. Dulles 357 US 116 which are as follows: "Freedom to go abroad has much social value and represents the basic human right of great significance." Although, in the said case, there were no criminal proceedings pending against the appellant therein and the denial to go abroad was on account of lack of vigilance credence but the aforesaid observation of the Hon'ble Supreme Court is very relevant as it highlighted the right to freedom to travel. In the present case, although, the pleas raised by the petitioner before the Courts below, have been considered to be sufficient by this Court so as to entitle the petitioner to travel abroad, but it is always open to this Court while exercising its powers under Section 482 of Cr.P.C. to consider any additional/ancillary plea, and thus, in this case, the same may be considered so as to grant permission to....
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....minal cases pending against the petitioner and the petitioner's company, as listed in the table below:- Sr.No. Court Case type/Case No. Title as N.D.O.H. 1 CMM, Esplanade Court Mumbai Ss Cases SS/2300038/2020 U/s 138 RW 142 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 05/03/22 2 CMM, Esplanade Court Mumbai Ss Cases SS/2300855/2021 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 29.10.2021 3 CMM, Esplanade Court Mumbai Ss Cases SS/2300036/2020 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 04/10/21 4 CMM, Esplanade Court Mumbai SS/2301893/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 13.12.2021 5 CMM, Esplanade Court Mumbai Ss Cases SS/2301954/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 28.09.2021 6 CMM, Esplanade Court Mumbai Ss Cases SS/2301221/2019 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 24.02.2022 7 CMM, Esplanade Court Mumbai Ss Cases SS/2300890/2019 U/s 138 RW 141 NI Act Siemens ....
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....ervices Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 01/01/22 23 CMM, Esplanade Court Mumbai Ss Cases SS/1470/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 29.11.2021 24 CMM, Esplanade Court Mumbai Ss Cases SS/961/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 07/04/22 25 CMM, Esplanade Court Mumbai Ss Cases SS/2057/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 14.02.2022 26 CMM, Esplanade Court Mumbai Ss Cases SS/357/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 22.11.2021 27 CMM, Esplanade Court Mumbai Ss Cases SS/1137/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 04/03/22 28 CMM, Esplanade Court Mumbai Ss Cases SS/1468/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 29.11.2021 29 CMM, Esplanade Court Mumbai Misc Cases MISC/277/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 30.12.2021 30 CMM, Esplanade Court Mumbai Misc ....
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....have acquired British and Swiss Nationalities. Xxx xxx xxx 7. Considering the facts and circumstances, for the time being as an interim measure, the appellants, namely, Mr. Srichand P. Hinduja (in Crl. Appeal No...... of 2001 32 of 41 @ SLP (Crl) 1828/2001) and Mr. Gopichand P. Hinduja (in Crl. Appeal No..... of 2001 @ SLP (Crl) No. 1829 of 2001) are permitted to go abroad on the following conditions: 1. Both the appellants would execute a bond for a sum of Rs. 15 crores (rupees fifteen crores) each with a bank guarantee for the like amount to the satisfaction of the Special Judge; 2. On their behalf counsel will remain present on the date of posting of the matter and would not ask for adjournment on the ground that the appellants are not present in India. 3. The appellants will remain present before the Special Judge as and when their presence is needed in the case. 4. If there is any violation of the aforesaid conditions, it would be open to the Special Judge to pass appropriate orders for cancellation of bail of the appellants. 8. In any case, this order would not adversely affect further proceedings in the trial Court and the Court will deal with the matter withou....
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....bstantiating the same. Learned Senior Counsel for the complainant has referred to the order dated 28.07.2021 vide which non-bailable warrants had been issued to accused Nos.2 to 4 in complaint No.3 of 2018 titled as TCI Fright Vs. Indsur Global (Annexure C-2), to show that there are three more accused in Complaint No.3 of 2018, in addition to the Company in question, which are stated to be the petitioner, his mother and his father. While rebutting the said aspect, the Learned Senior Counsel for the Petitioner has referred to the order dated 13.10.2021 (which has been reproduced hereinabove), to state that the matter has been compromised but has not disputed the fact that the Petitioner was one of the three accused in the said complaint. Thus, while imposing conditions, this Court cannot be oblivious of the fact that there are 41 cases under Section 138 of the Act of 1881, as has been detailed hereinabove. In Srichand P. Hinduja's case (Supra), a bond for a sum of Rs. 15 crores each with a bank guarantee for the like amount to the satisfaction of the Special Judge was sought from the appellants who were granted the permission to go abroad on the said conditions. The said conditions....
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....ded on 23.02.2011 had granted permission to the petitioner therein to go abroad while imposing conditions including the condition/undertaking to the effect that in the event of failure to return from abroad, he would have no objection if the land measuring 64 kanals 9 marlas, which was owned by the petitioner therein, would be attached and disposed of in accordance with law. Relevant portion of the said judgment is reproduced hereinbelow:- "xxxxxx Learned counsel for the appellant-applicant has also stated that the land measuring 64 Kanals which is owned by the appellant-applicant is of substantial value and he is ready to keep the same as security for his return from England after a period of two months. Xxx xxx (i) That the appellant-applicant shall execute a personal bond and surety in the sum of Rs. 5 lacs to the satisfaction of the learned Chief Judicial Magistrate, Jalandhar with an undertaking to appear in Court soon after the expiry of two months from the date he shall leave the country. (ii) The appellant-applicant shall bind himself that he shall return from abroad and appear before the learned Chief Judicial Magistrate, Jalandhar. The appellant-applicant shall....
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....me in India and the wife and son of the petitioner also reside abroad and also keeping in view the offer made by learned Senior Counsel for the petitioner so as to prove his bonafide, the petitioner is allowed to go abroad for a period of one month subject to the following conditions: - 1) The petitioner shall furnish two sureties in the sum of Rs. 40 lacs each to the satisfaction of the concerned trial Court/Duty Magistrate for ensuring his return from abroad and appearance before the Court. 2) After the acceptance of the surety, the petitioner would indicate the 30 day period for which the petitioner wishes to go abroad, to the concerned trial Court/Duty Magistrate. The said period of one month should fall within the period of two months starting from the date of present order. The concerned trial Court/Duty Magistrate shall permit the petitioner to go abroad for a period of one month as indicated by the petitioner in case, the said period of one month is falling within two months from the date of this order and in case, the sureties so given are to the satisfaction of the concerned Magistrate/trial Court and in case, the petitioner also complies with the other conditions as ....