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Judgment
The petitioner is a finance company. It has disbursed a loan to respondent No.1. In discharge of its liability to repay the loan amount, a cheque
dated 5.12.2017, amounting to Rs.2,91,55,500/- was issued by respondent No.1, but vide memo dated 27.12.2017, the same was dishonoured. A legal
notice under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as ‘the Act’) was issued, but the cheque amount was
not paid within the statutory period, leading to filing of a complaint under Section 138 of the Act. Vide summoning order dated 7.2.2018, the
respondents were summoned for 27.4.2018. On this date, the respondents put in appearance through counsel and sought exemption from personal
appearance on various grounds. Respondent Nos.2 and 5 sought exemption on the ground of ill-health of the mother of respondent No.2 and
respondent Nos.3 and 4 sought exemption on the ground of their own ill-health. The matter was adjourned to 10.05.2018 on which date exemption was
again sought on behalf of respondent Nos.2 to 5. Meanwhile, the petitioner filed an application dated 1.5.2018 for putting respondent Nos.2 to 5 to
terms. It was prayed that the said respondents be directed to deposit their passports and not to leave the country without prior permission of the Court.
Vide impugned order dated 29.5.2018, application dated 1.5.2018 filed on behalf of the petitioner was rejected.
Notice of motion was issued vide order dated 11.7.2018, after noticing that the respondents had taken a loan of Rs.481.56 crores and their cheques
worth total of Rs.10.55 crores had been dishonoured, various complaints had been filed, but respondent Nos.2 to 5 failed to appear personally and seek
bail; the petitioner therefore, apprehended that respondent Nos.2 to 5 might flee the country. On the next date of hearing i.e. 30.7.2018, the
respondents put in appearance through counsel and sought time to file a reply. The case was adjourned to 31.8.2018 and interim directions were
issued restraining respondent Nos.2 to 5 from travelling abroad without permission of the Court.
Thereafter, on 02.08.2018, a miscellaneous application for modification/rectification of order dated 30.7.2018 was filed on behalf of respondent
Nos.2 to 5. It was stated therein that actual direction contained in order dated 30.7.2018 was that respondent Nos.2 to 5 would not travel abroad
without ‘informing’ the Court, but by a clerical error, the order records that the said respondents would not travel abroad without
‘permission’ of the Court. Since respondent Nos.4 and 5 were due to leave the country on 4.8.2018, an application dated 2.8.2018 was also filed
before the trial Court for advancing the date of hearing. Another application of even date was filed for grant of bail and a third application of even
date was filed for permission to travel abroad. Vide order dated 2.8.2018, the trial Court granted bail and permitted respondent Nos.4 and 5 to travel
abroad. Meanwhile, the application for modification/rectification of order dated 30.7.2018, was taken up in this Court in the post lunch session and
orally, it was conveyed to the parties that there is no clerical error in the order and that respondent Nos.2 to 5 were required to take ‘permission
from this Court’. Thus, application for modification/rectification was dismissed as not pressed. Thereafter, the petitioner filed an application for
issuance of appropriate directions during the pendency of the present petition alleging that respondent Nos.2 to 5 were attempting to over-reach the
Court. They were aware that this Court vide order dated 30.7.2018 had directed them not to travel abroad without the ‘permission of this
Court.’ Yet, an application was filed before the trial Court seeking permission to travel abroad and a similar application was also filed before
‘this Court’ allegedly for modification/rectification and during the course of arguments in the said application, ‘this Court’ had specifically
observed that permission of ‘this Court’ was required for travelling abroad. Moreover, even in the past, they had sought exemption from
personal appearance without seeking bail on a number of occasions. Their act and conduct demonstrates that respondent Nos.2 to 5 consider
themselves to be above the law and therefore, they should be put to adequate terms. A reply to this application has been filed, in which it is stated that
there is no attempt to over-reach. Order dated 30.7.2018 mentions ‘the Court’ and therefore, in deference to that order, respondent Nos.4 and 5
moved an application before the trial Court seeking permission to travel abroad. It was only during the course of the arguments on 2.8.2018 that it
transpired that permission had to be taken from ‘this Court’ for permission to travel abroad. By then, the application moved before the trial
Court had already been allowed. The Code of Criminal Procedure, 1973, permits the Magistrate to grant exemption from personal appearance to an
accused person and in exercise of the said power, the concerned Magistrate did grant exemption and therefore, it is wrong to suggest that respondent
Nos.2 to 5 are taking the Courts for a ride. Before seeking permission to travel abroad, respondent Nos.4 and 5 sought bail and complied with the
terms of the order granting bail. The actions of respondent Nos.2 to 5 have been within confines of law.
Learned senior counsel for the petitioner argues that respondents are indebted to the petitioner to the tune of Rs.746.14 crores. A number of
cheques issued by them for repayment of loan have been dishonoured. The respondents owe a huge amount of Rs.10,100 crores approximately to
various financial institutions/other entities and there are allegations of corporate fraud having been committed by the respondent Nos.2 to 5 leading to
investigations by Securities and Exchange Board of India and the Serious Fraud Investigation Organization. Thus, they are likely to flee the country
without repaying public money taken by them as loans. Further, they have been seeking exemption from personal appearance as a matter of routine,
even without taking bail on frivolous grounds. Their conduct shows their arrogant nature and their perception that they are above the law. Thus, even
though, the offence under Section 138 of the Act, is bailable, respondent No.2 to 5 be directed to deposit their passports and seek permission of the
Court before travelling abroad. The trial Court was in error in rejecting the application moved by the petitioner. Recent events in the country had
shown that well connected and wealthy people flee the country without repaying the loans taken by them and it would be in the interest of the country
at large, if appropriate conditions are imposed upon respondent Nos.2 to 5 restricting their movement. Reliance is placed upon a single bench judgment
of this Court passed in ‘CRM-M-45749-2018 (O&M) titled as Pritpal Singh Vs. State of Punjab and another decided on 13.2.2017’.
Learned senior counsel appearing for the respondents submits that respondent Nos.2 to 5 respect the law of this Court and have not violated the
same. Exemption from personal appearance was sought on account of inevitable circumstances and because the law permits the same. An offence
under Section 138 of the Act, is bailable and by virtue of Section 436(1) Cr.P.C., an accused has a right to be granted bail subject to terms imposed by
the Court/Arresting Officer. There is no sanction in law to imposition of conditions such as deposit of passports in bailable offences. Only if, an
accused violates a term of the bail such as failure to appear on a date of hearing, in exercise of jurisdiction Section 436 (2) Cr.P.C., the Court may
impose conditions. It is also argued that in exercise of jurisdiction under Section 482 Cr.P.C. this Court does not have the right to pass orders when
there is a specific provision in the Code of Criminal Procedure, 1973, governing the relief sought. The present case is not one of money laundering. It
is a simple cheque bounce case and the amount of default would not be a relevant consideration. The impugned order is legal and in accordance with
law and it deserves to be upheld. Reliance is placed upon ‘Vaman Narain Ghiya Vs. State of Rajasthan, 2009(1) RCR (Criminal) 473’, ‘State
of Punjab Vs. Davinder Pal Singh Bhullar and others, 2012(1) RCR (Criminal) 126’, ‘State Rep. by D.S.P, S.B. C.I.D., Chennai Vs. K.V.
Rajendran and others, 2008(4) RCR (Criminal), 278’ and ‘Satya Narayan Sharma Vs. State of Rajasthan, 2001(4) RCR (Criminal) 377.’
Section 436 of the Code of Criminal Procedure, 1973 is reproduced below:-
“436. In what cases bail to be taken.â€" (1) When any person other than a person accused of a non-bailable offence is arrested or detained
without warrant by an officer in charge of a police station, or appears or is brought before a Court, and is prepared at any time while in the custody of
such officer or at any stage of the proceeding before such Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, [may, and shall, if such person is indigent and is unable to furnish surety, instead of taking bail]
from such person, discharge him on his executing a bond without sureties for his appearance as hereinafter provided:
Provided further that nothing in this section shall be deemed to affect the provisions of sub-section (3) of section 116 [or section 446A].
[Explanation-where a person is unable to give bail within a week of the date of his arrest, it shall be a sufficient ground for the officer or the Court to
presume that he is an indigent person of the purposes of this proviso].
(2) Notwithstanding anything contained in sub-section
(1), where a person has failed to comply with the conditions of the bail-bond as regards the time and place of attendance, the Court may refuse to
release him on bail, when on a subsequent occasion in the same case he appears before the Court or is brought in custody and any such refusal shall
be without prejudice to the powers of the Court to call upon any person bound by such bond to pay the penalty thereof under section 446.â€
The language of the provision indicates that in a bailable offence, an accused person has a right to grant of bail provided said person is prepared to
give bail subject to furnishing bonds with or without sureties for securing his appearance. However, if the accused fails to comply with the terms of
the bail regarding time and place of attendance, the Court may refuse to release him on bail when he is next brought before it.
In Vaman Narain Ghiya’s case (supra), it has been held as under:-
“17. Chapter XXXIII consists of Sections 436 to 450. Sections 436 and 437 provide for the granting of bail to accused persons before trial and
conviction. For the purposes of bail, offences are classified into two categories, that is, (i) bailable, (ii) non-bailable. Section 436 provides for granting
bail in bailable cases and Section 437 in non bailable cases. A person accused of a bailable offence is entitled to be released on bail pending his trial. In
case of such offences, a police officer has no discretion to refuse bail if the accused is prepared to furnish surety. The Magistrate gets jurisdiction to
grant bail during the course of investigation when the accused is produced before him. In bailable offence there is no question of discretion for
granting bail. The only choice for the Court is as between taking a simple recognizance of the principal offender or demanding security with surety.
Persons contemplated by this Section cannot be taken in custody unless they are unable or unwilling to offer bail or to execute personal bonds. The
Court has no discretion, when granting bail under this section, even to impose any condition except the demanding of security with sureties.â€
In view of the unambiguous wording of Section 436 of the Code of Criminal Procedure, 1973, and its interpretation by the Supreme Court of India in
Vaman Narain Ghiya’s case (supra), there is no room for doubt that in a bailable offence an accused has an absolute right to bail provided he is
willing to give bail. Terms as to bail bonds and sureties can be imposed by the Court, but no condition can be imposed as the same would amount to
curtailing the statutory right under Section 436 Cr.P.C. The judgment of this Court in Pritpal Singh’s case (supra), cannot apply to the facts of this
case as in the said case the accused person did not appear before the trial Court on a particular date of hearing resulting in cancellation of his bail and
surety bonds. Thereafter, when the accused person was brought before the Court while granting bail condition of deposit of passport was imposed.
Adverting to the next contention of learned senior counsel for the petitioner that considering the huge liability of the respondents, restrictions should
be placed on their movements, I am of the view that allegations of serious fraud against respondent Nos.2 to 5 are still under investigation.
Proceedings under the relevant law are being taken. In case the concerned authorities feel that restrictions should be placed on their movements, they
would seek appropriate directions from the appropriate forum. I cannot rely on allegations made in other unrelated cases for the purposes of imposing
conditions in this case. No law has been cited in this regard and therefore, I hold that allegations of fraud are not germane to this case.
The contention of learned senior counsel for the petitioner that a large amount of public money is owed by the respondents and that this should be
a relevant consideration while granting bail, also cannot be accepted. The amount of default does not make a bailable offence non-bailable. The
principles governing grant of bail will not change depending upon the cheque amount. The argument is not supported either by the language of the
statute or by any other legal principle and accordingly, is rejected.
Learned senior counsel for the respondents has placed strong reliance upon the principle that jurisdiction under Section 482 Cr.P.C. cannot be
used to pass orders, where a specific provision exists governing the relief sought. His submission is that inherent power cannot be invoked to by-pass
inbuilt bar in Section 436(1) Cr.P.C. against imposition of conditions while granting bail in bailable offence. The contention of learned senior counsel is
sound and is based upon legal principle. The contention is also supported by judgments cited by him i.e.
‘Davinder Pal Singh Bhullar (supra), K.V Rajendran (supra) and Satya Narayana Sharma (supra). However, the question is whether this
proposition is applies to the facts and circumstances of this case ? In my opinion, it does not. The petitioner had filed an application for directions to
respondent Nos. 2 to 5 to deposit their passports and not to travel abroad without permission of the Court. This application does not mention any
provision of law under which the same was filed and is thus, relatable to Section 436 Cr.P.C. The application having been rejected vide impugned
order, the present petition under Section 482 Cr.P.C. has been filed challenging the same. Thus, it cannot be said that the inherent jurisdiction is being
invoked for the purpose of by-passing Section 436 Cr.P.C. An order passed by the trial Court is amenable to challenge under Section 482 Cr.P.C. and
under the facts and circumstances of this case, the argument of learned senior counsel for the respondents is rejected.
Finally, the parties have joined issue on whether the conduct of respondent Nos.2 to 5 deserves to be deprecated. The offence is bailable
undoubtedly, but to my mind, even in a bailable offence, on being summoned, the accused must immediately put in appearance and seek bail. Only
thereafter, they may seek exemption from personal appearance in case the circumstances so warrant. However, in the present case, respondent
Nos.2 to 5 appeared to seek bail only when they had to travel abroad. The trial Court continued to grant them exemption from personal appearance,
even though, the said exemption was sought on specious grounds such as ill-health of mother/mother-in-law. The trial Courts must not feel over-awed
by the financial status of a party and must act in accordance with law un-fazed by the status of a party before it. The Courts would do well to ensure
that the letter and spirit of law is obeyed under all circumstances.
So far as the allegations of the petitioner regarding, the attempt by respondent Nos.4 and 5 to over-reach the Court by approaching the trial Court
on 2.8.2018 and not bringing this fact to the notice of this Court while seeking modification/rectification of order dated 30.7.2018, suffice to say that I
am satisfied with the explanation given by the respondents. No further orders are necessary under the circumstances.
The petition is accordingly dismissed. The miscellaneous applications stand disposed of and the interim orders passed stand merged with the final
judgment. It is, however, directed that whenever respondent Nos.2 to 5 have to travel abroad, they shall inform the trial Court regarding the dates of
their travel, the purpose of the travel and the destination.