Delhi High Court – Orders
Sandeep Tilwani vs State Govt. Of Nct Of Delhi on 24 December, 2024
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 4648/2024
SANDEEP TILWANI .....Applicant
Through: Mr. Utkarsh Singh, Mr.
Mayank Gupta, Mr.
Humaid & Ms. Suajata
Kumari, Advocates.
versus
STATE GOVT. OF NCT OF DELHI .....Respondent
Through: Mr. Manoj Pant, APP for
the State.
Mr. Manmay Sarawagi,
Advocate for Complainant.
SI Ajay Moral (P.S.
EOW/Delhi).
CORAM:
HON'BLE MR. JUSTICE AMIT MAHAJAN
ORDER
% 24.12.2024
1. The present application is filed seeking regular bail in FIR
No. 220/2020 dated 18.12.2020, registered by Economic
Offences Wing, for offences under Sections 420/406 of the
Indian Penal Code, 1860 (‘IPC’). Chargesheet has been filed
against the applicant for the offences under Sections
406/420/467/468/471/474/120B of the IPC.
2. The brief facts of the case are that the complainant is a
Director of Cargomasters Logistics Pvt. Ltd which is engaged in
the business of freight forwarding and logistics services. The
applicant is a Director or J Sai Kripa Import & Export Co. Ltd.
and he used to act as a middle man between importers and
companies that provide freight services. It is alleged that in the
year 2018, the applicant assigned 74 bookings of 640 rice
containers to the complainant company to the tune of ₹11.2
crores. Although initial payments were made, however, the
payments were later stopped. Consequently, the complainant
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stopped the release of remaining Bill of Ladings. The applicant
allegedly induced the complainant into releasing the remaining 3
Bill of Ladings by sending copies of two Telegraphic Transfers.
It is alleged that the due payment as well as the payment against
the remaining 3 Bill of Ladings was not transferred by the
applicant. Later on, it was found that the Telegraphic Transfers
were never deposited in the concerned bank in Thailand. It is
alleged that the applicant cheated the complainant to the tune of
₹7 crores and did not make the necessary payments to the
complainant in connivance with the importers.
3. During investigation, documents were obtained from the
complainant and the images of the Telegraphic Transfers
received by the complainant were sent to FSL. The signatures of
the applicant on the same were found to be genuine.
4. The bail application preferred by the applicant was
dismissed by this Court on 07.03.2023 on noting the previous
involvements of the applicant and nature of allegations.
Subsequently, the applicant had withdrawn his 2nd bail
application before this Court on 20.10.2023.
5. The learned counsel for the applicant submits that the
applicant has been falsely implicated in the present case. He
submits that that the relationship between the parties is purely
commercial and the FIR is registered only on account of financial
losses faced by the complainant.
6. He submits that the applicant is only a middle man and his
only role was to introduce the seller and the buyers.
7. He submits that no supplementary chargesheet in relation
to the FSL result has been filed by the prosecution till date
despite seeking repeated extensions to do the same.
8. He submits that the cheated amount was initially alleged to
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be ₹11.2 crores, however, it was later alleged to be ₹6.91 crores.
9. He submits that the chargesheet is filed and no purpose
would be served by subjecting the applicant to further
incarceration. He submits that the chargesheet is devoid of any
cogent document to prove that any payment was received by the
applicant against the supplied material.
10. He further submits that there is nothing to show that the
complainant has been cheated or induced to enter into the
business transaction with the applicant.
11. Per contra, the learned Additional Public Prosecutor
(‘APP’) for the State submits that the applicant is a habitual
offender and he has committed similar offences in Thailand. He
submits that the applicant’s passport has already been seized by
the Court of Thailand.
12. He submits that the applicant has multiple passports and
there is a strong apprehension that he may abscond from India by
using the fake passports. He submits that fake IDs were also
recovered from the applicant.
13. He further submits that the applicant has changed his
address many times and he has no permanent address.
14. The learned counsel for the complainant also opposes the
grant of bail to the applicant. He submits that there are strong
apprehensions that the applicant will evade trial if he is granted
bail.
15. The learned counsel for the applicant contests the aforesaid
submissions. He submits that the applicant had only changed his
address once after demise of his father. He further submits that
the applicant was issued 3 passports only because the pages of
the passports were fully stamped.
16. He, however, submits that to assuage such apprehensions,
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the applicant is willing to adduce sureties in the sum of
₹50,00,000/- by his family members.
17. I have heard the counsel and perused the record.
18. It is settled law that the Court, while considering the
application for grant of bail, has to keep certain factors in mind,
such as, whether there is a prima facie case or reasonable ground
to believe that the accused has committed the offence; the nature
and gravity of the accusation; severity of the punishment in the
event of conviction; the danger of the accused absconding or
fleeing if released on bail; reasonable apprehension of the
witnesses being threatened; etc. However, at the same time, the
period of incarceration is also a relevant factor that is to be
considered.
19. It is alleged that the applicant has cheated the complainant
of almost ₹7 crores in connivance with the importers.
20. It is argued on behalf of the applicant that the FIR is based
on a business transaction and he was merely acting as a
middleman.
21. It is relevant to note that the bail of the applicant has
already been rejected by this Court on merits by way of order
dated 07.03.2023.
22. No fresh ground on merits has been argued by the
applicant.
23. While the allegations and defences will be seen during the
course of the trial, however, it is pertinent to note that the FIR
was registered way back in the year 2020. The applicant was
arrested on 25.04.2022 and he has remained in custody since
then.
24. Undisputably, the offence as alleged against the applicant
and the manner in which it is committed is serious in nature,
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however, the long period of incarceration is a relevant factor
which is to be kept in mind.
25. The Hon’ble Apex Court in a catena of cases has observed
that every day spent in custody can provide a new cause of action
for filing a bail application under certain circumstances. This
principle is part of a broader approach emphasizing that the law
prefers bail over jail, aiming to balance the rights of the accused
with the requirements of the criminal justice system. This leads
to the principle that each additional day in custody could
potentially alter the circumstances under which bail is
considered, thereby necessitating a fresh evaluation of the bail
application.
26. The Hon’ble Apex Court in the case of Union of India v.
K.A. Najeeb : AIR 2021 SC 712, has held that once it is obvious
that a timely trial would not be possible, and the accused has
suffered incarceration for a significant period of time, the courts
would ordinarily be obligated to enlarge them on bail.
27. The Hon’ble Apex Court in the case of Javed Gulam Nabi
Shaikh v. State of Maharashtra and Another : Crl.A.2787/2024
has observed as under:
“19. If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as
enshrined under Article 21 of the Constitution then the State
or any other prosecuting agency should not oppose the plea
for bail on the ground that the crime committed is serious.
Article 21 of the Constitution applies irrespective of the
nature of the crime.
20. We may hasten to add that the petitioner is still an
accused; not a convict. The over-arching postulate of
criminal jurisprudence that an accused is presumed to be
innocent until proven guilty cannot be brushed aside lightly,
howsoever stringent the penal law may be.”
28. On being pointedly asked, it is submitted that the charges
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have not been framed till now and repeated adjournments have
been sought by the prosecution to file the supplementary
chargesheet. More than an year has passed since the dismissal of
the applicant’s bail application by this Court and the trial is yet to
start. As noted above, the applicant has spent more than two
years in custody. There is no likelihood of the trial being
completed in near future. In such circumstances, incarceration of
the applicant for an endless period on account of non-
examination of witnesses falls foul of Article 21 of the
Constitution of India.
29. The object of jail is to secure the appearance of the
accused during the trial. Serious apprehensions have been raised
in regard to the applicant being a flight risk. It is alleged that the
applicant has multiple fake passports and fake IDs have also been
recovered from him.
30. Such apprehensions can be allayed by imposing
appropriate conditions. The prosecution is at liberty to open an
LOC against the applicant.
31. In view of the same, without commenting on the merits of
the case, the applicant is directed to be released on bail (if not in
custody in any other case) on furnishing a personal bond for a
sum of ₹50,00,000/- with two sureties for a sum of ₹50,00,000/-
respectively (one of the sureties must be a family member of the
applicant), subject to the satisfaction of the learned Trial Court/
Duty MM/ Link MM, on the following conditions:
a. The applicant shall cooperate in any further investigation
as and when directed by the concerned IO;
b. The applicant shall not directly or indirectly make any
inducement, threat or promise to any person acquainted
with the facts of the case or tamper with the evidence of
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the case, in any manner whatsoever;
c. The applicant shall under no circumstance leave the
country without the permission of the learned Trial Court;
d. The applicant shall appear before the learned Trial Court as
and when directed;
e. The applicant shall provide the address where he would be
residing after his release and shall not change the address
without informing the concerned IO/ SHO;
f. The applicant shall, upon his release, give his mobile
number to the concerned IO/SHO and shall keep his
mobile phone switched on at all times;
g. The applicant shall appear before the concerned IO/SHO
once every week.
32. In the event of there being any FIR/DD entry / complaint
lodged against the applicant, it would be open to the State to seek
redressal by filing an application seeking cancellation of bail.
33. It is clarified that observations made in the present order
are for the purpose of deciding the present bail application and
should not influence the outcome of the trial and also not be
taken as an expression of opinion on the merits of the case.
34. The bail application is allowed in the aforementioned
terms.
35. A copy of this order be sent to the FRRO for information.
AMIT MAHAJAN, J
DECEMBER 24, 2024
‘Aman’
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This is a digitally signed order.
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