Subhash Vidyarthi, J.

1. On 14.03.2023, after hearing learned counsel for the applicant and learned A.G.A. for the State this court had passed the following order:

"1. Heard Sri Anurag Khanna Senior Advocate assisted by Sri. Nadeem Murtaza Advocate, the learned counsel for the applicant and Sri Anurag Kumar Singh, the learned counsel for the Central Bureau of Investigation.

2. The instant application has been filed seeking anticipatory bail for the applicant in Criminal Case No. 65443 of 2022 arising out of FIR number RC 0532021E0006 of 2021 under sections 120 B, 420, 467, 468, 471 IPC at police Station CBI-SCB Lucknow, District Lucknow.

3. The FIR was lodged on 23/03/2021 on the basis of a complaint dated 19/03/2021 filed by the Chief Regional Manager of Indian Overseas Bank against M/s Viva Merchants Private Limited, Sharad Bhartia and Deen Dayal Bhartia (the applicant) regarding a fraud committed in respect of an account. The complaint states that the account holder M/s Viva Merchants Pvt. Limited is a group company of Messers Frost International Ltd, and the group account of M/s Frost International has already been reported as fraud on 30/01/2019. The complaint alleged that many invoices and foreign offices in which M/s Viva Merchants Private Limited was dealing, seem to be fake and in some cases, there was no actual transfer of goods and the transfer took place only on papers.

4. The complaint further states that the account of M/s Viva Merchants Pvt. Limited became NPA when letters of credit where devolved, export proceeds were not received and company could not deposit the overdue amount. The business of the company is spread across the globe. The sale and purchase transactions of the company were not genuine. The documents of title to goods should have been received from the LC accepting bank by registered post, but documents have been obtained by the party directly from the LC accepting bank which is wrong practice. Credit report as well as genuineness certificate for the exporters was not submitted by the company, sufficient margin necessary for hedging was not made available by the company on demand. All inward remittances from the overseas buyers were received in the current account with no earmarking, hence there was a chance of diversion of funds. The LCs which had devolved, were having the same buyer as with other group member and genuineness certificate of the buyers was not submitted by the party.

5. The FIR lodged on the basis of the aforesaid complaint, alleges that M/s Viva Merchants Private Limited and its promoters/directors entered into a criminal conspiracy and cheated the complainant bank to the tune of ` 15.80 crore is by diverting/siphoning off the loan proceeds on the strength of fake and fabricated documents. The FIR further alleges that the company was undertaking unusual transactions with its associate/other companies without carrying out actual business on the basis of fake and fabricated invoices and thereby misutilised the sanctioned credit limit and caused wrongful loss to the complainant bank.

6. The CBI has submitted a charge-sheet on 30/06/2022 wherein it is stated that M/s Fareast Distribution and Logistics Pvt. Ltd., Singapore and M/s Gulf Distribution Ltd, Hong Kong are sister concerns and are owned by the same person Rajesh Bothra and both companies were having a common address and, therefore, the claim of the company that it had purchased/imported goods from M/s Fareast Distribution Logistics Pvt. Ltd. and sold/exported the same to M/s Gulf Distribution Ltd, was just an adjustment of the entries/funds. The charge-sheet further states that the company Viva Merchants Pvt. Limited and its directors were the actual beneficiaries out of the defrauded amount of ` 15.80 Crores. The company through its directors, in criminal conspiracy with each other as well as Sujay U. Desai, in order to deceive the bank, had accepted descrepant/bogus documents knowing that the same were not genuine and there was no movement of the goods as reflected in the documents presented before the Indian overseas Bank, Kanpur. Further, the company with mala fide intention and with intent to achieve the bank had accepted the discrepant/bogus papers received under the alleged LC despite the fact that the same were not in accordance with the terms of the contract/LC which is evident from the bill of leading, certificate of origin, pre-shipment certificate etc . Moreover, the documents like Bill of leading and pre-shipment certificate were bearing the references of alleged LC which was not in existence as on the date of issuance of such bill of leading/pre-shipment certificate.

7. The charge-sheet specifically states that Sujaya Desai was looking after the overall trade and financial activities of the Frost group of companies, including M/s Viva Merchants Private Limited. He used to contact Rajesh Bothra for procuring alleged sale contracts for import of goods from M/s Fareast Distribution and Logistics Pvt. Ltd. Singapore and purchase contracts from M/s Gulf Distribution Ltd, Hong Kong for export of goods for Frost group companies, including M/s Viva Merchants Private Limited. As such, he was aware that LC was got realised without any actual import/export business. Sujay U. Desai in India and Rajesh Bothra in Hong Kong/Singapore used to play a pivotal role in the questioned matter. The charge-sheet further states that M/s Fareast Distribution and Logistics Pvt. Ltd. based in Singapore was responsible for procuring the alleged documents namely bill of leading, certificate of origin, pre-shipment certificate etc. under the alleged letter of credit No. 20/2018, which was found to be bogus. The charge-sheet says that further investigation is kept open to ascertain the role of overseas companies M/s Fareast Distribution and Logistics Pvt. Ltd. Singapore, M/s Gulf Distribution Ltd Hong Kong, M/s landmark Clearing and Forwarding LLC, UAE and Shri Rajesh Bothra.

8. On 23/08/2022, the court issued an order summoning the accused persons to face the trial. The applicant filed an application for anticipatory bail, which was rejected by means of an order dated 16/ 12/2022 passed by the special Judge, CBI (Central), Lucknow and thereafter the instant application for anticipatory bail has been filed before this Court.

9. In the affidavit filed in support of the application for anticipatory bail, it has been stated that the company Viva Merchants Pvt. Ltd. was incorporated in the year 2006 by the applicant along with his son co-accused Sharad Bhartia for trading in paper and other products. 2011, the company started merchanting trade business and on 16/08/2011, the board of directors of the company passed a resolution authorising Sujay U. Desai, a director in Frost International Ltd., "to assist and advise the company in merchanting trade business, as he is responsible and well-versed with the trade and the concerned buyers/sellers and is wholly looking after similar trade in "Frost group of companies". It has further been stated in the affidavit that the applicant continued to look after the paper trading business and he was not involved in the MT business, which was entirely managed and controlled by M/s Frost International Ltd and its employees.

10. Sri. Anurag Khanna has submitted that investigation qua the applicant has been completed and the CBI has already filed a charge-sheet against the applicant. The applicant fully cooperated with the investigation and he was not arrested during investigation and, therefore, there is no need for taking the applicant in custody after completion of investigation. He has further submitted that the applicant is a senior citizen suffering from various diseases and he is having no criminal history. He has further submitted that the applicant has been implicated in the present case merely because he is a director of the company and there is no allegation of commission of any act by the applicant, which may amount to an offence.

11. Sri. Khanna has further submitted that co accused Sujay U. Desai has been granted bail in SFIO and ED cases arising out of the same set of transactions, where the provisions for grant of bail are very stringent.

12. Per Contra, Sri Anurag Kumar Singh, the learned counsel for CBI, has submitted that it is a matter relating to commission of economic offence and such matters are to be dealt with caution. He has submitted that CBI has filed three cases arising out of the same set of transactions, namely, case number RC 0532021E0004 of 2021, RC 0532021E0005 of 2021 and RC 0532021E0006 of 2021 and in cases No. four and five of 2020 one, bail applications of co-accused Sujay U. Desai have been rejected by means of orders dated 21/09/2022 passed by this Court in Anticipatory Bail Applications No. 1345 of 2022 and 1346 of 2022 respectively and, therefore, the applicant's anticipatory bail application is also liable to be rejected. He has further submitted that a charge-sheet has already been submitted against the applicant as the charges against him have been found to be established in investigation and on this ground also, the anticipatory bail application is liable to be rejected. Further submission of Sri Singh that merely because Sujay U. Desai had been authorised to assist and advise the company and empty business, the responsibility of the applicant for the acts of the company is not washed away.

13. Sri Singh has submitted that the present case falls in category D, i.e., economic offences not covered by the special Acts, defined by the Hon'ble Supreme Court in Satender Kumar Antil versus CBI, (2021) 10 SCC 773 [LQ/SC/2021/3291 ;] and in such matters, the accused person has to move on application for bail after putting in appearance before the court and his submission is that as per the law laid down by the Hon'ble Supreme Court in Satender Kumar Antil, the application for anticipatory bail cannot be entertained.

14. In Sanjay Chandra v. CBI, (2012) 1 SCC 40, [LQ/SC/2011/1492] the Hon'ble Supreme Court held that:

"40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.

46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."

(emphasis supplied)

15. In Satender Kumar Antil v. CBI, (2021) 10 SCC 773, [LQ/SC/2021/3291 ;] the Hon'ble Supreme Court laid down some guidelines and categorized the offences in four categories. The offence in question falls in category D, i.e., "Economic offences not covered by Special Acts."Persons charged for offences under category D, who were not arrested during investigation and who had cooperated throughout in the investigation, are not required to be produced before the court at the time of submission of the charge-sheet and on appearance of the accused in court pursuant to process issued, their bail application to be decided on merits. However, there is no bar against such persons filing an application for anticipatory bail and by means of the order dated 28.07.2021 passed in the aforesaid case, which arose out of rejection of an application for anticipatory bail, the arrest of the petitioner Satender Kumar Antil was stayed. The following observations made by the Hon'ble Supreme Court in the order dated 28.07.2021 are very pertinent:-

"... the system which is sought to be followed specially in the State of Uttar Pradesh is that even if a person is not arrested during investigation, on charge sheet being filed, more so, in such cases of CB a person is sent to custody and thus, his appearance and applying for bail would have resulted in his being sent to custody. Prima facie, we cannot appreciate why in such a scenario is there a requirement for the petitioner being sent to custody."

16. So far as rejection of anticipatory bail application of other accused persons in other cases is concerned, it is to be noted that (i) the same were not filed in the present case (ii) allegations against those accused and the applicant are not the same and (iii) the principal of parity does not apply in case of rejection of bail application.

17. What prima facie appears at this stage is that the charge-sheet states that the company Viva Merchants Private Limited and its directors were the actual beneficiaries out of the defrauded amount of ` 15.80 close and the company had accepted descrepant/bogus documents knowing that the same were not genuine and there was no movement of the goods as reflected in the documents presented before the Indian Overseas Bank, Kanpur. The charge-sheet states that documents like Bill of leading and pre-shipment certificate were bearing the references of alleged LC which was not in existence as on the date of issuance of such bill of leading/pre-shipment certificate.

18. There appears to be no charge that any offending document was fabricated by the applicant and there appears to be no charge of any specific act committed by the applicant, which may amount to an offence.

19. The charge-sheet specifically states that Sujay U. Desai was looking after the overall trade and financial activities of the Frost group of companies, including M/s Viva Merchants Pvt. Ltd. Sujay U. Desai in India and Rajesh Bothra in Hong Kong/Singapore used to play a pivotal role in the questioned matter. The charge sheet further states that M/s Fareast Distribution and Logistics Pvt. Ltd. based in Singapore was responsible for procuring the alleged documents namely bill of leading, certificate of origin, pre-shipment certificate etc. The charge-sheet says that further investigation is kept open to ascertain the role of overseas companies M/s Fareast Distribution and Logistics Pvt. Ltd. Singapore, M/s Gulf Distribution Ltd Hong Kong, M/s Landmark Clearing and Forwarding LLC, UAE and Shri Rajesh Bothra.

20. The affidavit states that the applicant is a senior citizen aged about 64 years, having no criminal history and he has cooperated in the investigation, which is has been completed as against the applicant, while investigation against the other accused persons is still continuing and the trial is not likely to commence soon.

21. Sujay U. Desai has been granted bail in SFIO and ED cases arising out of the same set of transactions, where the provisions for grant of bail are very stringent.

22. The matter requires further consideration and the Central Bureau of Investigation may file a counter affidavit within a period of four weeks.

23. Considering the aforesaid facts and circumstances of the case, this Court is of the view that the applicant deserves to be granted an interim protection. Accordingly, it is provided that in case the petitioner is arrested till the next date of listing, he shall be released on bail on furnishing two sureties for Rs. 1,00,000/-each and a personal bond for the like amount, subject to the following conditions:-

(i) The applicant will not tamper with the evidence during the trial.

(ii) The applicant will not influence any witness.

(iii) The applicant will appear before the trial court on the dates fixed, unless personal presence is exempted.

(iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence.

(v) that the applicant shall not leave India without the previous permission of the Court.

24. List this case week commencing 17.04.2023"

2. Although counter and rejoinder affidavits have been filed in this case, but nothing has come to light which may persuade this court to take a view, other than the view taken at the time of granting interim anticipatory bail to the applicant.

3. The learned A.G.A. could not point out any violation of the conditions of interim anticipatory bail committed by the applicant.

4. In view of above, the interim order dated 14.03.2023 is made absolute and the anticipatory bail application is allowed.