MANISH KUMAR AGARWAL Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) The instant revision petition is directed against the order dated 24 th May, 2011 passed by the Learned ACMM rejecting the Petitioner's application for grant of permanent exemption and allowing the application of CBI for separation of trial and recording of evidence in the absence of the coaccused Daminder Singh Batra under Section 299 Cr.P.C.

(2.) Briefly the case of the prosecution is that the Petitioner is a qualified Chartered Accountant and was working with Rajinder Steels Ltd. While working as such on 8 th August, 1995 he requested for disbursement of Rs. 10 crores furnishing along therewith Auditor's certificate for advance to the suppliers, proforma invoice of M/S. Technomac Engineers Pvt. Ltd. and the Industrial Enterprises (Regd.), performance guarantee of M/S. R.M. Machine, The Industrial Enterprises and insurance of the equipment. The Petitioner further represented that the equipments to be acquired under ECS were ready for delivery from its supplier and would be received on or before 31 st August, 1995. As per the allegations M/S. R.M. Machine Pvt. Ltd. a group company of the co-accused D.S. Batra was shown as one of the suppliers of M/S. Rajinder Steels Ltd. The equipments mentioned in the proforma invoice were not supplied and on the strength of forged invoices loan of Rs. 15 crores was got approved and misappropriated. In Company Petition No. 44/1998 the Hon'ble High Court of Judicature at Allahabad vide its order dated 18 th September, 2006 directed CBI to register and investigate the charges of fraudulent diversion of bank's funds. On this FIR No. RC.BD1/2007/E/0003 under Section 120-B read with Section 420/468/471 IPC was registered. The CBI filed charge-sheet against Daminder Singh Batra and the Petitioner for the above-mentioned offences. The Petitioner filed an application under Section 205 read with Section 317 (1) Cr.P.C. for grant of permanent exemption from appearance on 21 st December, 2009. The grounds urged in the application inter-alia were that the Petitioner was working as VicePresident of ABG Shipyard Ltd. based at Mumbai, his only son was suffering from autism and requires regular care, he was attending hearings regularly since 19 th January, 2008, and has incurred huge expenditure on it; the coaccused is absconding, and he would be represented by the Advocate and would not seek any adjournment on the ground of absence of the Petitioner. On 20 th October, 2010 an application was filed by the CBI under Section 299 Cr.P.C. for separation of trial and recording of evidence in absence of coaccused Daminder Singh Batra, as extradition request qua him had been sent to the concerned authority for sending it further to the Government of USA.

(3.) Learned counsel for the Petitioner contends that Section 223 Cr.P.C. ordains conducting of a trial of two accused in conspiracy together and merely because the other accused is not available at the moment, the trials of the two conspirators cannot be separated. It is contended that for separation of trial under Section 299 Cr.P.C. a prima facie finding has to be returned that the co- accused was absconding which is missing in the impugned order. Further in a case where extradition proceedings are going on and the whereabouts of the accused are known, it cannot be said that he is "absconding". Reliance is placed on Jayendra Vishnu Thakur Vs. State of Maharashtra and Anr., 2009 7 SCC 104 to contend that the trial cannot be split under Section 299 Cr.P.C. Reliance is also placed on Nirmal Singh Vs. State of Haryana, 2000 4 SCC 41; Kadiri Kunhahammad Vs. State of Madras, 1960 AIR(SC) 661; State of Karnataka Vs. Narsa Reddy, 1987 4 SCC 170; Jitendra Narottam Das Mehrotra & Ors. Vs. State and Ors., 2004 1 Crimes 108; A.E. Pinto & Ors. Vs. C.B.I., 2002 63 DRJ 697. It is contended that the Learned ACMM separated the trial contrary to the law laid down by the Hon'ble Supreme Court, this Court and the statutory provisions contained under Section 299 and 223 of Cr.P.C. The separation of trial would cause prejudice to the case of the Petitioner as he has been alleged to be a conspirator and the main offence has been committed by accused No.1.