HC: The magnitude of the offence cannot be the only criterion for denying bail

  

On 25th October, a bench of of Delhi High Court consisting of Justice Subramoniam Prasad held that the magnitude of the offence cannot be the only criterion for denying bail. The object of bail is to secure the presence of the accused at the Trial. If there is no apprehension of interference in administration of justice in a criminal trial by an accused then a person should not be deprived of his liberty. Only a vague belief that he will tamper with evidence cannot be a ground to deprive a person of his liberty.

Facts of the case:

The petitioner is the managing director of AFSPL with whom the complainant opened Demat Accounts on behalf of its group companies namely DCEL bearing client ID 1006126 and OCL bearing client ID 1006129. The allegations against the petitioner were that he, in his capacity as the depository participant, was the custodian of the complainant’s securities valued at Rs. 344.07 Crores. However, the petitioner committed gross breach of trust by fraudulently transferring the said securities to his own accounts and accounts of his own companies in order to use them for his personal gain. This was done on the basis of forged and fabricated documents which not only kept the complainants in the dark but also made it seem as if the transactions, which were carried out by the accused, were authorized by the complainant.

Contention of the petitioner:

The following contention has been submitted by the petitioner:

1. It was submitted that the mutual fund units in question were voluntarily transferred by OCL and DCEL to three companies of the petitioner to utilize the dead assets of the company and offer the same as collateral, with a view to avail margin for trading.
2. It was also submitted that that on examination, the petitioner provided copies of the account opening forms and delivery instruction slips used for the alleged transactions of mutual funds.
3. It was also contented that bail is the rule and jail is the exception. He states that if the petitioner is made to suffer custody in the present case which is pending trial, then the same shall amount to inflicting punishment, which defeats the presumption of innocence.
4. It was further submitted that the investigation qua the petitioner is complete, for which the petitioner cooperated fully even when he was on interim bail. He states that the continuation of further investigation that is mentioned in the charge sheet is in relation to other potential accused persons and not the petitioner.

Contention of the respondent:

 

The following contention has been submitted by the respondent:

1. Mr Vijay Kumar Aggarwal, learned counsel appearing for the complainant, vide the forensic audit report clarified to the court that it had opened a Demat Account, only for the purpose of holding and redemption of mutual funds, and not a trading account for the purpose of any trade or to use the same as a margin.
2. It was also submitted that the petitioner received a premium of Rs. 380 Crores by using the mutual funds of Rs. 344.07 Crores of the complainant as his own margin money. He, therefore, submits that the petitioner along with other accused persons gained a sum of Rs. 380 crores illegally and wrongfully.
3. It was contended that the accused herein fraudulently entered incorrect credentials of the complainant in NSDL’s server, contrary to the one provided by the complainant through the Account Opening Forms that were submitted for the purpose of opening the Demat accounts.
4. It was submitted that the petitioner sent forged and fabricated client master list to the complainant and forged holding statements dated 31.03.2017 and 01.07.2017 with the purpose to give a false picture that correct details of the complainant vide KYC and Account opening forms were uploaded to NSDL’s server.

Observation and judgement of the court:

The following observation has been made by the hon'ble court: 

1. A perusal of the abovementioned judgment indicates that the magnitude of the offence cannot be the only criterion for denying bail. The object of bail is to secure the presence of the accused at the Trial.
2. Gravity of the offence cannot be the sole ground to deny bail to the accused. The investigation against the accused has been completed and the charge sheet has been filed as on 11.11.2019.
3. The accused herein as deep roots in the society and has agreed to cooperate with the conditions of bail.

In the view of the above, the court granted bail to the petitioner on furnishing a personal bond in the sum of ₹5,00,000/-

Read Judgment ; 

 

source ;  www.latestlaws.com

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(With input from news agency language)

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