1. By way of this petition, the petitioner seeks anticipatory bail in connection with the First Information Report being I- C.R. 11210015230232 / 2023 registered with D.C.B. Police Station, Surat City for the offences punishable u/s 409, 420, 34 and 120B of the IPC.

2. Brief facts of the case are as under:-

2.1 The complainant Mr. Jitendra Natvarbhai Patel is an employee of Mr. Balkrishna Agrawal, a Chartered Accountant by profession. It is averred that the complainant is doing miscellaneous work in the office of Mr. Agrawal.

2.2 The complainant intended to buy an office in Dubai and therefore, contacted one Mr. Abdullah Sabbir Hussain Kureshi (accused no. 1) - a resident of Dubai, U.A.E., through Mr. Sanjaybhai Rai - friend of Mr. Agrawal. It is alleged that Mr. Abdullah is a property broker in Dubai, who assured Mr. Agrawal to find a good and suitable office for him. It is further alleged that Mr. Agrawal enquired about the price of the office, to which Mr. Abdullah said that there is one office, which has come for sale in his hands, and the sale consideration amount would be around 12.00 Lakhs Dirhams equivalent to about INR 3.00 Crores. It is further alleged that Mr. Abdullah informed Mr. Agrawal that he (Mr. Agrawal) should hand over Rs. 3.00 Crores in cash to his brother Mr. Aadil Sabbir Hussain Kureshi (accused no. 2) at Surat, and that he shall arrange the amount sent to Dubai through "Hawala", which will be then delivered to the owner of the office in order to complete the transaction. Mr. Abdullah said that he will charge 2% of the sale consideration as his brokerage.

2.3 That in the month of May, 2023, Mr. Agrawal went to Dubai for his business purpose and personally met Mr. Abdullah, who showed the office to Mr. Agrawal. Since Mr. Agrawal liked the office, he informed Mr. Abdullah to talk to the owner of the office, and get the transaction completed. At that time also, Mr. Abdullah (A-1) informed Mr. Agrawal that he should handover Rs. 3.00 Crores in cash to his brother Mr. Aadil (A-2) in Surat, and rest will be taken care of.

2.4 That on 18.06.2023, Mr. Agrawal again visited Dubai for the purpose of purchase of the office and personally met Mr. Abdullah, where-after, he called the complainant and informed that he has confirmed the transaction of purchase of office with Mr. Abdullah and the complainant should hand over Rs.3.00 Crores - arranged by Mr. Agrawal to Mr. Aadil, and therefore, the complainant talked to Mr. Aadil a couple of times for the payment. It is then alleged that on 23.06.2023, Mr. Aadil had come to the office of the complainant together with his friend Mr. Sahilkhan Mehmoodkhan Pathan (accused no. 3) and in the presence of the complainant and Mr. Deepak Agrawal brother of Mr. Balkrishna Agrawal - received Rs.3.00 Crores in cash from the complainant and Mr. Deepak Agrawal.

2.5 That after the said payment, Mr. Agrawal stayed back in Dubai for about 08 days, but, Mr. Abdullah did not get the sale of office completed and did not give the possession thereof. Therefore, Mr. Agrawal returned to Surat. Thereafter, on 03.07.2023, Mr. Agrawal talked with Mr. Abdullah when Mr. Abdullah assured to return the amount of Rs.3.00 Crores to Mr. Agrawal. However thereafter, when Mr. Agrawal tried to call Mr. Abdullah, Mr. Aadil and Mr. Sahil Pathan on their mobile numbers, they were found to be switched off. It is alleged that upon doing personal inquiry, it was found by the complainant that Mr. Abdullah had called his brother Mr. Aadil and their father Mr. Sabbir Hussain to Dubai. Therefore, the complainant had filed a complaint / application with the Surat Police against the said accused persons [somewhere in the month of Aug/Sept., 2023]. At that time, Mr. Abdullah contacted Mr. Agrawal through his known persons in Surat, and informed to return the said amount of Rs.3.00 Crores and to arrive at compromise, and accordingly Mr. Abdullah repaid Rs.25,00,000/- to Mr. Agrawal and assured to make the balance payment within 10 to 15 days.

Therefore, the complainant withdrew the said complaint.

2.6 Thereafter, since Mr. Abdullah completely stopped contact with Mr. Agrawal, and did not repay the balance amount of Rs.2.75 Crores, and has also called his brother Mr. Aadil to Dubai, the instant FIR came to be lodged. However, while concluding the entire narration, the complainant has abruptly stated that "I have got information that the amount of Rs.3.00 Crores received by Mr. Abdullah was sent to Dubai by "Hawala" with the help of Mr. Mohammad Shoeb Abdul Gafar Kapadia" the petitioner. "This content is in vernacular language. Kindly email us at info@legitquest.com for this content." In this manner, the petitioner has been implicated in the FIR as accused No.4.

2.7 Heard learned Senior Counsel Mr. IH Syed appearing with learned advocate Mr. B.B. Chokshi for the petitioner, learned advocate Mr. HA Dave for the original complainant and learned APP appearing for the State.

3. Learned Senior Counsel Mr. Syed would submit that the present petitioner has not played any active role in commission of the offence, the investigating officer is acting in connivance with the complainant. He would further submit that the persons, who are involved in commission of the offence are arraigned as witnesses, but the present petitioner, who has not played any active role, has been falsely involved in the offence, present petitioner has not committed any offence, as alleged.

4. Learned Senior Counsel would further submit that the entire transaction is purely of civil nature, whereby, the complainant was required to recover Rs.2.75 crore from the accused Nos.1 to 3 under non-concluded commercial transaction of purchase of office at Dubai and this civil transaction has been given cloak of criminal transaction. He would further submit that the role of the present petitioner alleged in the offence is that he is the person, who has transferred the alleged amount to the account of the main accused at the instructions of some persons, who arraigned as witnesses.

5. Learned Senior Counsel would further submit that the present petitioner has not obtained any financial gain from the transaction. He would further submit that the accused Nos.1 to 3, namely, (1) Abdulla Shabbir Hussain Qureshi (2) Adil Shabbir Hussain Qureshi and (3) Sahilkhan Pathan in connivance with each other have committed forgery and have siphoned the amount of the complainant. He would further submit that the present petitioner has no connection with said transaction nor obtained any benefit. He would further submit that as per the allegation made in the FIR, the petitioner by way of "Hawala" has transferred the amount in favour of accused Nos.1 to 3. Therefore, it is submitted that the present petitioner, who has not played any active or passive role in commission of the offence, should be granted anticipatory bail.

6. It is further argued that the present petitioner is physically disabled person. According to the certificate issued by the Central Government, the petitioner suffers from 75% disability on both legs. Moreover, the petitioner is ready and willing to extend all cooperation in investigation of the offence. It is further argued that at the most, the petitioner can be considered as broker, who has transferred the money from Surat to Dubai on the instructions of accused Nos.1 to 3 and obtained certain commission. He would further submit that the petitioner is ready and willing to deposit said amount, which is obtained as commission.

7. While reiterating earlier submission, learned Senior Counsel Mr. Syed would submit that it is the accused Nos.1 to 3 who have siphoned the money of the complainant. The present petitioner has at the most played role of middleman. The persons, at whose instance the money is transferred to Dubai are arraigned as witness, whereas the role of the present petitioner comes from the statement of such witnesses, who have been actively involved in the commission of the offence. It is further argued that the petitioner is permanent resident of Surat and he owes movable and immovable property in Surat and thus, there is no flight-risk; that the petitioner would be available for investigation as well as trial and thus, this Court should protect the personal liberty of the petitioner, who has not played any direct role in commission of the offence. The petitioner, who is physically disabled, should not bear stigma for the arrest for such alleged offence.

8. Above submissions are argued to exercise discretion to grant anticipatory bail to the petitioner.

9. As against, learned advocate Mr Hardik Dave for the complainant would submit that it is an economic offence and the petitioner played very active role in "Hawala". He would further submit that the independent witnesses have named the present petitioner. It is not alleged that these witnesses have any grudge or enmity with the petitioner, so the petitioner has been falsely involved. In these facts and circumstances since huge amount of around Rs. 3 crore is involved in the "Hawala" scam, it is a fit case for custodial interrogation. He would further submit that other accused are living in Dubai, the present petitioner is living in India, and he is the only link available at this juncture for proper investigation of the offence. He would further submit that it the petitioner is granted anticipatory bail, he will flee to Dubai alike accused Nos.1 to 3. Thus, there is high risk. Thus, he submits that no ground is made out to exercise extraordinary jurisdiction for grant of anticipatory bail in economic offences. Thus he submits to dismiss this petition.

10. Joining the argument of learned advocate Mr Dave, learned APP would submit that looking to the facts of the case where huge amount of around Rs. 3 crore has been siphoned away by the accused No.1 to 3, who are living in Dubai, and considering the role of the present petitioner, who has facilitated accused Nos.1 to 3 to siphon away around Rs. 3 crores by “Hawala”, custodial interrogation is required in the present matter. Thus present petitioner cannot be granted anticipatory bail. The above submissions are canvassed to dismiss the petition.

11. No other and further arguments have been canvassed.

12. At the outset, from perusal of the records, what appears that the accused No.1 is living in Dubai and he has given false promises to the complainant that he will buy good Office for Balakrishna Agrawal at Dubai and upon such false promises, he operated through their brother accused No.2 and one more dealer i.e. accused No.3. The amount is fixed at Rs. 3 crores. The present petitioner comes in the picture when he has facilitated the accused Nos.1 to 3 for transferring Rs. 3 crore (in Dirham) by "Hawala". Thus it appears that the present petitioner is one of the persons who is operating "Hawala" scam and transferring huge amount from India to outside. Thus, prima facie case is made out from reading the FIR. The amount involved in the offence is around Rs. 3 crore, which is a huge amount and is unquestionably transferred to Dubai from India through the present petitioner. The petitioner is the only person in India, who is a part of the entire scam and racket. Other accused have already left India and now they are leaving in Dubai. All accused are part of the entire scam. It was a collective effort on the part of the accused, entire scam including transferring huge amount through “Hawala” is systematically designed. Present petitioner played lead role in transferring huge amount from India to Dubai by operating “Hawala”.

13. Though prima facie, it appears that it is a private dispute of siphoning away Rs. 3 crore, in fact, what appears that "Hawala" scam is operating at the instance of the present petitioner and is affecting public exchequer. It is an economic offence and huge amount of Rs. 3 crore has been transferred to the foreign nation through the present petitioner. Looking to the role played by the petitioner, no case is made out to exercise extraordinary jurisdiction.

14. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused, but several other purposes. Power u/s 438 of the Code is an extraordinary power and the same has to be exercise sparingly in appropriate and fit case. This privilege should be extended only in exceptional cases. It is a judicial discretion conferred upon the court, and it is to be properly exercised after application of mind as to the nature and gravity of the accusation, possibility of the applicant fleeing from justice and other factors to decide whether it is a fit case for grant of anticipatory bail.

15. While considering the case for grant of anticipatory bail, balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation, and there should be prevention of harassment and humiliation and unjustified detention of the accused. The court is required to evaluate the entire available material against the accused carefully. The role of the accused is also to be comprehended.

16. As noted earlier, there is economic offence affecting the economy of the country. In case of Directorate of Enforcement v. Ashok Kumar Jain reported in (1998) 2 SCC 105, [LQ/SC/1998/26 ;] it was held that in economic offence, the accused is not entitled to anticipatory bail. The relevant observation reads as under:-

“81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”

17. Recently, in case of Directorate of Enforcement Vs. M. Gopal Reddy reported in 2023(3) Scale 272 while reiterating principle that in economic offence, the Court should be slow in exercising discretion u/s 438 of the Code, in para 6 and 7, it has been held that:-

“6. Even otherwise on merits also, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is erroneous and unsustainable. While granting the anticipatory bail to respondent No. 1 the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offence(s) under the Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. As per the investigating agency, they have collected some material connecting respondent No. 1 having taken undue advantage from Srinivas Raju Mantena. From the impugned judgment and order passed by the High Court, it appears that the High Court has considered the matter, as if, it was dealing with the prayer for anticipatory bail in connection with the ordinary offence under IPC.

6.1 Now so far as the submissions on behalf of respondent No. 1 that respondent No. 1 was not named in the FIR with respect to the scheduled offence and that the other accused are discharged/ acquitted is concerned, merely because other accused are acquitted, it cannot be a ground not to continue the investigation against respondent No. 1. An enquiry/investigation is going on against respondent No. 1 with respect to the scheduled offences. Therefore, the enquiry/investigation itself is sufficient at this stage.

6.2 While granting the anticipatory bail, what is weighed with the High Court and what is observed by the High Court is as under:

"A careful reading of the aforesaid legal position and in the light of the circumstances of the case on hand, which clearly indicates that the 1st respondent has a doubt regarding the involvement of the petitioner in commission of the crime and he is being summoned for disclosure and in case of his nondisclosure of any material, on the pretext of noncooperation, the 1st respondent may proceed to arrest him. The petitioner is a retired employee aged about 60 years and is a permanent resident of Hyderabad, Further, major part of the investigation has been completed with respect to the incriminating documents and digital devices, which have already been seized. Hence, there may not be a chance of tampering with the investigation at this stage, because as rightly pointed out by the learned Senior Counsel for the petitioner that a criminal case has already been filed against the other accused and the same is pending before the Special Court at Bhopal.”

6.3 From the aforesaid, it can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences alleged against respondent No. 1. As per the catena of decision of this Court, more particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC.

7. Considering the overall facts and circumstances of the case and the reasoning given by the High Court and as observed hereinabove, the rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 herein in connection with F. No. ECIR / H * YZO / 36 / 2020 dated 15.12.2020 is unsustainable. Consequently, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is hereby quashed and set aside. Respondent No. 1 be dealt with in accordance with law. However, it is observed and made clear that after respondent No. 1 is arrested, if he files any regular bail application, the same be considered in accordance with law and on its own merits and considering the material collected during enquiry/investigation of the case. Present appeal is accordingly allowed. No costs.”

18. Considering the overall facts and circumstances, prima facie involvement of the petitioner in commission of "Hawala" scam is made out, by which around Rs.3 crore has been transferred from India to Dubai. Alleged “Hawala” transaction whiff of offence of money laundering also. The role attributed to the petitioner is also important. As observed herein above, ie is the main person, through whom the entire money of around Rs.3 crore has been transferred from India to Dubai and considering the gravity of the offence, no case is made out by the petitioner to exercise extraordinary jurisdiction. The fact of the case demands custodial interrogation of the petitioner. Under the circumstances, the petitioner is not entitled for anticipatory bail.

19. For the foregoing reasons, present petition fails and stands dismissed.