TaxTMI 
TaxTMI 
2021 (11) TMI 777
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....e of receiving the passport and also for issuance of 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....
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....rder dated 16.12.2020 primarily on the following grounds: - 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 th....
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....d by the State, had been withdrawn by stating that the petitioner and other co-accused had joined the investigation. 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 fil....
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....tinuity of such residence. This includes any absence that takes place during the statutory period before the applicant files the naturalization 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 d....
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....led under Section 482 of Cr.P.C., however, additional reasons have been given which were never agitated before the first Court or before the revisional Court. The pleas 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 a....
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....nexure C-2) vide which the non-bailable warrants have been issued, is sought to be placed by the Senior Counsel for the complainant, the said case has already been compromised 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 ....
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....titioner would return and in addition to the same, has submitted that the father and the mother of the petitioner are residing in India and the mother of the petitioner is ready to give a surety in favour of the petitioner 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 ....
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....ould not flee from the course of justice. The said issues/factors are being taken up for discussion hereunder: - ISSUES NOS.1 TO 3 (1). Pendency of CRM-M-33202-2020 filed by the complainant-Joginder Singh against the order of the Sessions Judge granting anticipatory 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 ....
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.... suffice it would to say, that the present case is based on documents and has civil tappings and the custodial interrogation of the Respondent Nos. 3 to 5would not be required and there is no circumstance much less, overwhelming circumstance to interfere with the well-reasoned order passed by the Sessions Judge. 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....
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....d case, the appellant therein was permitted to travel abroad. Para 2 of the said judgment is reproduced hereinbelow:- "2. The High Court declined to relax the conditions imposed by it for the grant of interim bail on the ground that an FIR has been registered against the appellant. Though the period during which the appellant sought to travel abroad has lapsed, the cause 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 fu....
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.... to be regulated by imposing suitable conditions for securing his presence during the trial. This Court, in the case of Utkarsh Pahwa Vs. Assistant Director (PMLA), Directorate of Enforcement, reported as 2019(1) Law Herald 870, had, after considering several judgments on the issue, observed that it can be safely concluded that in normal circumstances, permission could be granted to the 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) 2....
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....ant basic human right and the said right also extends to private life- marriage, family and friendship. Relevant portion of the said judgment is reproduced hereinbelow: - "5. The right to travel abroad is an important basic human right for it nourishes independent and self-determining creative character of the individual, not only by extending his freedoms of action, but also by extending the scope of his experience. The right also extends to private 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 v....
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....Indsur Global Limited under Section 138 of the Act of 1881 in various Courtsin Mumbai, Ahmedabad, Gurugram and Rewari. It is submitted that the value of dispute in the said cases is Rs. 25 crores. Reference has been made to Annexure C1, wherein the details of the said 41 cases are given. Para 2 of the said Annexure C1 is reproduced hereinbelow: - "2. That the applicant, with the leave of this Hon'ble Court, prays to place on record additional facts regarding 41 criminal 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 ....
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..../s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 07/05/22 19 CMM, Esplanade Court Mumbai Ss Cases SS/2302745/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 17.02.2022 20 CMM, Esplanade Court Mumbai Ss Cases SS/2293/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 07/03/22 21 CMM, Esplanade Court Mumbai Ss Cases SS/1797/2018 U/s 138 RW 141 NI Act Siemens Financial Services Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 10/01/22 22 CMM, Esplanade Court Mumbai Ss Cases SS/2121/2018 U/s 138 RW 141 NI Act Siemens Financial Services 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 ....
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....I Act M/s Yashu Iron Pvt. Ltd. Vs. Indsur Global Ltd. & Anr. 28.10.2021 It has been further submitted that the Hon'ble Supreme Court in Srichand P. Hinduja's case (Supra), had imposed conditions to the effect that the petitioners therein were directed to execute 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 in addition to the other conditions. Relevant portion of para 3 and para 7 of the said judgment are reproduced hereinbelow: - "3. For this purpose it was pointed out to the High Court, that if the accused are permitted to go abroad, it would affect the smooth progress of the trial and there are reasonable grounds to believe that they would not return back to India to face the trial. It is also pointed out that the appellants were Indian Nationals at the time of registration of the FIR and thereafter they 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. Gop....
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....d to be Rs. 25 crores by the learned Senior Counsel for the complainant. Although, learned Senior Counsel for the complainant has not been able to produce the complaints filed under Section 138 of the Act of 1881, which would have enabled this Court to come to a prima facie conclusion as to what is the total amount due and to what extent is the liability of the petitioner, however, on the other hand, even the learned Senior Counsel for the petitioner has not produced anything to affirmatively controvert the fact that the petitioner is an accused in the said 41 cases. The company in which the petitioner was on the Board of Directors, can be seen to be accused No.1 in the said complaints under Section 138 of the Act of 1881. There are other parties who have been made accused in the said cases, as is apparent from the title of the cases. In case, the petitioner is not involved in the said cases, even then it was incumbent upon the petitioner to produce the documents substantiating 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 ....
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....ith respect to which the Petitioner had allegedly committed cheating or fraud, nor there were any details of any case against the petitioner, rather it had come out that the petitioner and his family members had property in India and that earlier when the trial Court had granted him the permission to travel abroad, he had returned to India within the stipulated time. In the judgment passed by the Coordinate Bench of this Court in Utkarsh Pahwa's case (Supra), the relevant portion of which has been reproduced hereinabove, the petitioner therein had been directed to execute FDR/bank guarantee to the tune of Rs. 40 lacs even in a case where it was argued by the petitioner that he had sufficient liquid assets and immovable property in India and although, there were no serious objections raised with respect to the financial status of the petitioner therein. Further, another Coordinate Bench of this Court in Paramjit Singh and others Vs. State of Punjab, CRM-3400-2011, decided 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 h....
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.... shall execute a personal bond and a surety in the sum of Rs. 50 lacs each to the satisfaction of the trial Court, with an undertaking to appear immediately after the expiry of the period that he has been permitted to travel abroad i.e. after 28.04.2018. 18. Pursuant to the view taken by this Court, the order dated 01.02.2018 passed by the trial Court at Annexure P-8 is set aside." This Court is required to draw a balance between the right of the petitioner to travel abroad and also right of the prosecution to duly prosecute the petitioner so as to prevent him from evading the trial. From perusal of the various judgments passed by the Hon'ble Supreme Court of India as well as this Court, it is clear that paramount consideration is given to the conditions imposed upon the persons who have been granted the permission to go abroad, so as to ensure that they do not flee from justice. In the present case, keeping in view the facts and circumstances, moreso the fact that the petitioner does not own any property in his own name 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 petitio....