Punjab-Haryana High Court
Vipin Kumar Dua vs The Union Territory Of Chandigarh … on 9 April, 2021 IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH.

CRM-M-42110-2020
Date of decision: 09.04.2021

VIPIN KUMAR DUA …..Petitioner

Versus

THE UNION TERRITORY OF CHANDIGARH THROUGH PUBLIC
PROSECUTOR …..Respondent

CORAM: HON’BLE MR. JUSTICE ARUN KUMAR TYAGI

Argued by : Mr. Sunil Fernandes, Advocate;
Mr. Karan Nagrath, Advocate;
Mr. Viraj Gandhi, Advocate;
Mr. Adarsh Dubey, Advocate and
Mr. Darpan Wadhwa, Advocate
for the petitioner.

Mr. Ashu Mohan Punchhi, Public Prosecutor with
Mr. Anupam Bansal, Addl. Public Prosecutor
for U.T., Chandigarh.

Mr. Rajesh Garg, Sr. Advocate with
Mr. Arun Sharma, Advocate
for the complainant.

(Order pronounced through video conferencing)

****

ARUN KUMAR TYAGI, J.

1. The petitioner has filed the present (first) petition under

Section 439 of the Code of Criminal Procedure, 1973 for grant of

regular bail in case FIR No. 70 dated 29.07.2020 registered under

Sections 408, 420 and 120 B of the Indian Penal Code, 1860 (for short

‘the IPC’) at Police Station North, Chandigarh to which Sections 467,

468 and 471 of the IPC were added later on.

2. Sh. Sushil Singla, Managing Director of M/s Supreme

Securities Limited submitted written complaint to the Senior

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Superintendent of Police, Chandigarh against Vipin Kumar Dua,

Regional Manager (the petitioner); Ankur Moudgill, Assistant

Manager; Priya Sharma, Senior Executive and Sukhchain Singh, Field

Executive – employees of M/s Supreme securities Limited working in

its Sector 8-C Branch. In the complaint, it has been inter-alia alleged

that all the above said four accused persons were responsible for the

day to day business of the branch and to maintain the accounts books in

due course of the business. Accused Nos. 1 to 4 have misappropriated

and embezzled amount of, at least, Rs. 4,91,61,424/- which amount was

in their possession as property of the Company as its employees/agents.

The breakup of the amount of Rs. 4,91,61,424/- is (i) Rs. 91,97,400/- as

foreign currency given to Ashu Forex + (ii) Rs. 13,71,750/- outstanding

in the books of Ashu Forex + (iii) Rs. 20,43,880/- as foreign currency

given to Jupiter Forex (net amount receivable as per books of accounts

of the company from Jupiter Forex being Rs 20,41,700/-) + (iv) Rs.

80,30,692/- withdrawn from ICICI Bank Account + (v) Rs

2,78,07,425/- equivalent foreign currencies + (vi) Rs. 6,96,616/-

available as cash in the Branch + (vii) Rs. 15,841/- withdrawn from

Kotak Mahindra Bank. The complainant accordingly requested for

registration of FIR against them under the appropriate penal provisions

of law and recovery of the embezzled/misappropriated amount. The

police investigated the case and arrested the petitioner on 14.09.2020

and on completion of investigation filed charge-sheet against him.

3. The petitioner being in custody has filed the present

petition for grant of regular bail.

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4. The petition has been opposed by the respondent U.T.

Chandigarh in terms of status report by way of affidavit of Sukhraj

Katewa, DSP-EOW, Chandigarh and also by the complainant but no

reply to the petition has been filed by the complainant.

5. I have learned arguments addressed by learned Counsel for

the petitioner, learned Public Prosecutor and Additional Public

Prosecutor for U.T. Chandigarh and learned Senior Counsel for the

complainant and gone through the relevant record.

6. Learned Counsel for the petitioner have argued that the

petitioner made complaints dated 21.05.2020 and 22.05.2020 to the

Reserve Bank of India and the Enforcement Directorate respectively

highlighting the various illegalities and violations of the foreign

exchange regulations and anti money laundering guidelines being

committed by M/s Supreme securities Limited. The petitioner has been

implicated in false criminal case by lodging the present FIR due to

sheer malice and enmity towards him and to punish and penalize him

for being a whistle blower protesting against flagrant and deliberate

violation of laws by his employers for the sake of earning profits. The

petitioner had resigned on 28.04.2020 and his employment was

terminated on 15.07.2020. Accusations of embezzlement of huge sums

of money have been levelled against the petitioner without any

documentary proof what so ever. The bank accounts as well as all cash

transactions were managed and controlled by the head office. The

credentials/passwords of the bank accounts were available with the

head office of the Bank. Duplicate set of the safe vault keys for the

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Chandigarh Branch was available with the Managing Director. Three

CCTV Cameras were installed in the premises of the Branch. The

Auditors appointed by the head office periodically conducted audits.

Discrepancies of such magnitude as alleged in the FIR, in the physical

stock of currencies as well as the amounts in the bank accounts, would

not have missed the Company’s attention which by itself makes the case

of the prosecution doubtful. The petitioner had sent e-mails disclosing

the amounts due to and against M/s Supreme Securities Limited and

there was no concealment regarding the same on his part. The

allegations regarding preparation of forged bogus statements and

receipts in connivance with other accused are wrong. The petitioner

joined investigation as and when called and fully co-operated in the

same. The petitioner is alleged to be involved in forgery of stamps

which were alleged to have been recovered from his house but no such

recovery of stamps was made in search of his house conducted first

time and recovery was subsequently made on search conducted second

time from the garage of the petitioner’s house, which was unlocked and

easily accessible to others. The petitioner was illegally arrested in

breach of the statutory provisions of Section 41 A (3) of the Code of

Criminal Procedure, 1973 and law laid down in Arnesh Kumar Vs.

State of Bihar (2014) 8 SCC 273. The petitioner was subjected to

custodial interrogation and no recovery of foreign currency was made

from him. There is no substantive evidence in proof of embezzlement

of the amounts by the petitioner. There are no reasonable ground to

believe that the petitioner has committed any the alleged offences. No

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prima facie case is made out against the petitioner regarding

commission of alleged offences. The evidence in entirety is in

electronic form and cannot be tampered with. On completion of

investigation qua the petitioner challan has been filed but no effective

proceedings have taken place despite expiry of more than seven

months. It is settled law that bail is the rule and jail an exception. The

petitioner has deep roots in the society and is the sole bread earner for

his family comprising his mother, wife and minor son aged about 13

years. His elderly and ailing mother, who is 75 years old and lives with

him, requires due care and medical attention. The petitioner is also

suffering from various ailments including hypertension and renal stone.

There is no likelihood of of the petitioner absconding during trial. The

trial is likely to take long time and no useful purpose will be served for

further detention of the petitioner in custody. Therefore, the petitioner

may be granted regular bail during the pendency of the trial.

7. In support of his arguments learned Counsel for the

petitioner has placed reliance on judgments in Arnesh Kumar Vs. State

of Bihar (2014) 8 SCC 273 (Supreme Court); Sanjay Chandra Vs.

CBI (2012) 1 SCC 40 (Supreme Court); Criminal Appeal No. 113 of

1960 titled Naini Gopal Lahiri and others Vs. State of Uttar Pradesh

(Supreme Court) decided on 08.05.1964; Hardiya Ranjan Vs. State of

Bihar (2000) 4 SCC 168 (Supreme Court); Criminal Appeal No. 227

of 2018 (arising out of SLP (Criminal) No. 151 of 2018 titled

Dataram Singh Vs. State of Uttar Pradesh and others decided on

06.02.2018 (Supreme Court) and Bail Application No. 945 of 2020

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titled as Firoz Khan Vs. State (NCT of Delhi) decided on 29.05.2020

by Delhi High Court.

8. On the other hand, learned Public Prosecutor and

Additional Public Prosecutor and learned Senior Counsel for the

complainant have submitted that officials of M/s Supreme Securities

Limited on instructions of Audit Department visited the branch office

on 04.05.2020 which was locked and on telephonic information called

the petitioner who told them that keys of the locker were with co-

accused Priya Sharma and Sukhchain Singh who refused to come on

which the petitioner gave system generated foreign currency and cash

sheet signed by him. On 29.05.2020, the locker was opened in the

presence of the petitioner and huge discrepancy was observed in stock

as per written statement given by the petitioner and actual stock as per

physical verification. Further discrepancy was also observed in forged

and actual bank statements of ICICI Bank and Kotak Mahindra Bank.

On an earlier occasion co-accused Ankur Moudgill was caught with

foreign currency by officials of Enforcement Directorate at the shop of

M/s Budhiraja, Sector – 22, Chandigarh on 06.12.2017. The petitioner,

co-accused Ankur Moudgill and Priya Sharma followed the case

without any intimation to the Head Office. The petitioner, in

connivance with co-accused Priya Sharma, Ankur Moudgill and others

cheated M/s Supreme Securities Limited by forging the statements of

bank accounts, making bogus entries in the ledger of the company and

forged the signatures of sellers on purchase invoices/receipts. On search

22 stamps of various offices pertaining to money changers were

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recovered from house of the petitioner. The concerned money changers

denied having issued any kind of stamps to officials of M/s Supreme

Securities Limited or anybody else and the said stamps were made for

preparing of false sale invoices. The petitioner and his co-accused also

forged the signatures on purchase invoices and receipts as mentioned in

the status report. The petitioner allegedly handed over a parcel on

21.03.2020 to Patiala Branch allegedly containing foreign currency

worth Rs. 91,97,400/- but the petitioner did not visit Patiala Branch and

even the concerned Branch Manager was not found to be at Patiala on

the alleged date and time and on opening the parcel was found not to

contain any currency. There is cogent evidence to prima facie show

involvement of the petitioner in commission of the alleged offences. No

explanation has been offered by the petitioner for the shortages of

foreign currency and also regarding disposal thereof. The petitioner has

committed serious economic offences which also affect the economy

and constitute class apart and have to be viewed seriously. In view of

the nature of accusation and gravity of the offences, the petitioner does

not deserve grant of regular bail. Therefore, the petition may be

dismissed.

9. Now, it is well settled that the object of detention during

investigation and trial is not punishment but to secure presence of the

accused during investigation and trial. Bail is the rule and committal to

jail is an exception as held in Gurbaksh Singh Sibbia and others v.

State of Punjab : 1980(2) SCC 565. Accused is presumed to be

innocent till proved to be guilty. Detention in custody may be a cause of

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great hardship to the accused as he may, besides being subjected to the

psychological and physical deprivations of jail life, lose his job, be

prevented from contributing to the preparation of his defence and

burden of his detention may fall heavily on the innocent numbers of his

family as held by Hon’ble Supreme Court in Moti Ram v. State of M.P.

: (1978)4 SCC 47.

10. While considering the question of grant of bail, the Court

has to keep in mind (i) whether there is any prima facie or reasonable

ground to believe that the accused had committed the offence; (ii)

nature and gravity of the charge; (iii) severity of the punishment in the

event of conviction; (iv) danger of the accused absconding if released

on bail; (v) character, behaviour, means, position and standing of the

accused; (vi) likelihood of the offence being repeated; (vii) reasonable

apprehension of tampering with evidence and intimidating witnesses

and (viii) danger of course of justice being thwarted by grant of bail.

(See State of U.P. v. Amarmani Tripathi, (2005)8 SCC 21; Sanjay

Chandra v. CBI : 2012(1) SCC 40 and Bhadresh Bipinbhai Sheth v.

State of Gujarat and another : 2016(1) SCC 152).

11. However, socio-economic offences have deep rooted

conspiracies affecting the moral fibre of society and causing irreparable

harm and the same have to be viewed seriously. Reference in this

regard may be made to State of Bihar and another Vs. Amit Kumar @

Bachaha Rai : 2017 (13) SCC 751 and Rohit Tandon Vs. Directorate

of Enforcement : 2018(11) SCC 46.

12. In Criminal Appeal No. 320 of 2021 (Arising out of SLP

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(Criminal) No. 2545 of 2020 titled Naveen Singh Vs. State of Uttar

Pradesh and another decided on 15.03.2021 Hon’ble Supreme Court

has held that seriousness of the offence is one of the relevant

considerations while considering the grant of bail and in that case bail

was declined in offences triable by Judicial Magistrate First Class in

view of seriousness of the offences.

13. The questions as to the facts of the case satisfying the

essential ingredients and constituting the alleged offences and as to

commission of the alleged offences by the petitioner and his co-accused

and their guilt or innocence have to be determined on the basis of

evidence to be produced during trial and cannot be

determined/adjudged at this stage by this Court.

14. In view of the observations made by Hon’ble Supreme

Court in State of Bihar and another Vs. Amit Kumar @ Bachaha Rai

: 2017 (13) SCC 751; Rohit Tandon Vs. Directorate of Enforcement :

2018(11) SCC 46 and Criminal Appeal No. 320 of 2021 (Arising out

of SLP (Criminal) No. 2545 of 2020) titled Naveen Singh Vs. The

State of Uttar Pradesh and Another decided on 15.03.2021 and the

facts and circumstances of the case, nature of accusation and prima

facie evidence against the petitioner showing his involvement in

commission of the alleged offences, serious nature of the offences

involving fraudulent transactions regarding exchange of foreign

currency affecting the national economy as well besides the

complainant, the quantum of sentence which conviction may entail,

likelihood of the petitioner absconding, intimidating the witnesses

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and/or tampering with evidence, danger of course of justice being

thwarted by grant of bail and also the fact that the trial can be ordered

to be expedited by issuing appropriate directions for expeditious

conclusion thereof, but without in any manner expressing any opinion

on merits of the case as the same may seriously prejudice either of the

parties, I am of the considered view that the petitioner does not deserve

grant of regular bail.

15. In view of the above, observations in Arnesh Kumar Vs.

State of Bihar (2014) 8 SCC 273 (Supreme Court); Sanjay Chandra

Vs. CBI (2012) 1 SCC 40 (Supreme Court); Criminal Appeal No. 113

of 1960 titled Naini Gopal Lahiri and others Vs. State of Uttar

Pradesh (Supreme Court) decided on 08.05.1964; Hardiya Ranjan

Vs. State of Bihar (2000) 4 SCC 168 (Supreme Court); Criminal

Appeal No. 227 of 2018 (arising out of SLP (Criminal) No. 151 of

2018 titled Dataram Singh Vs. State of Uttar Pradesh and others

decided on 06.02.2018 (Supreme Court) and Bail Application No. 945

of 2020 titled as Firoz Khan Vs. State (NCT of Delhi) decided on

29.05.2020 by Delhi High Court are not of any help to the petitioner

so far as the question of grant of regular bail to him is concerned.

16. Accordingly, the present petition for grant of regular bail

to the petitioner is dismissed.

17. However, in view of the observations made by Hon’ble

Supreme Court in Doongar Singh Vs. State of Rajasthan 2018 (1)

RCR Criminal 256; State of U.P. Vs. Shambhu Nath Singh and

others, 2001 (2) R.C.R. (Criminal) 390; Hussain and another Vs.

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Union of India 2017(2) RCR Criminal 312 and Thana Singh Vs.

Central Bureau of Narcotics 2013(1) R.C.R(Criminal) 861, the trial

Court is directed to expedite the trial and conclude prosecution

evidence preferably within a period of four months, subject to easing

out of restrictions imposed to prevent spread of infection of Covid-19

and instructions regarding physical hearing/consent to virtual hearing,

by conducting trial on day to day basis by allocating block of dates for

the trial as directed by Hon’ble Supreme Court and by issuing coercive

process for securing presence of the prosecution witnesses if so

required.

18. In case of non-appearance of prosecution witnesses, the

trial Court shall take appropriate action against the concerned

prosecution witnesses absenting without any lawful excuse by filing

complaint under Section 174 of the Indian Penal Code, 1860 or taking

proceedings under Section 350 of the Cr.P.C. against them.

19. The observations made by this Court are strictly for the

purpose of disposal of the present petition and nothing in this order

shall be treated as expression of any opinion on merits of the case so as

to bind or influence the trial Court in adjudication of question of guilt

or innocence of the petitioner.

20. A copy of this order be sent to the trial Court concerned for

requisite compliance.

09.04.2021 (ARUN KUMAR TYAGI)
kavneet singh JUDGE

Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No

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