Criminal Application No.4356 of 2009

28th June, 2011

Petitioner Counsel: Mr. K.V. Saste
Respondent Counsel: Mr. Amit Desai,Ms.Neha P. Bhide
Other Counsel: Mr. Shirish Gupte,Mr. Subodh Desai,Ms. Vijayalaxmi Kulkarni

Cases Cited:
Adri Dharan Das Vs. State of W.B., (2005) 4 SCC 303 [Para 19]
Saluddin Abdulsamad Shaikh Vs. State of Maharashtra, (1996) 1 SCC 667 [Para 19]
Puran Vs. Rambilas and another, (2001) 6 SCC 338 [Para 19]
Prashant Kishor Mehta Vs. State of Maharashtra, Dt.23.4.2008 [Para 19]
Ravindra Saxena Vs. State of Rajasthan, (2010) 1 SCC 684 [Para 19]
The State of Maharashtra Vs. Sanjay s/o. Moreshwar Damle and others, 1999 Cri.L.J. 3806 [Para 19]

JUDGMENT

JUDGMENT :- Heard rival submissions at length on earlier dates on this application for cancellation of anticipatory bail granted by the Additional Sessions Judge-3, Pune directing release of the present respondent-original accused, to be released on bail in the event of his arrest in a crime likely to be registered under Sections 406, 420, 467, 468 of Indian Penal Code on the report of the ICICI Prudential Life Insurance Company with Economic Offences Wing of Crime Branch, Pune.

2. Being aggrieved by the said order of anticipatory bail passed on 30th April, 2009, the State of Maharashtra had preferred the present application for cancellation of the said bail. The original complainant ICICI Prudential Life Insurance Company Ltd., is intervener in the present matter and represented by learned Senior Counsel Mr.Shirish Gupte. Present respondent/accused is represented by learned Senior Counsel Shri Amit Desai.

3. At the threshold it may be mentioned that the said challenge to the impugned order passed by the Additional Sessions Judge-3, Pune is on the law point and also on the merits of the matter. On the law point, it is submitted that considering the ratios propounded by the Hon'ble Apex Court and also by various High Courts in various cited decisions, there should not have been a blanket order of granting anticipatory bail in the event of arrest of the present respondent herein. Considering the mandate of law as developed by such decisions, reference to which shall be made hereunder at the appropriate place, the anticipatory bail should have been only till the filing of the chargesheet and then there should have been an opportunity for the Court seized of the matter to reappraise the factual position whether to release the accused on bail or to take him in custody. On the facts of the matter, it is strongly submitted on behalf of the State and also on behalf of the Intervener that there should not have been grant of relief of anticipatory bail when the factual position, then prevailing, was that even the FIR was not lodged against the present respondent and he had preferred an application before the Sessions Court only on apprehension of his arrest in the matter that would have been lodged against him. In other words, it is submitted that when the investigation in the matter was going on with the Economic Offences Wing, Crime Branch, Pune and there was no any specific First Information Report against the present respondent, there was no cause arisen for the learned Sessions Court to allow the application protecting the respondent in the event of his arrest.

4. Prior to discussing the rival submissions on the above mentioned two points of challenge, certain factual position is required to be narrated in order to have proper perspective of the matter and in order to ascertain whether under such peculiar circumstances the anticipatory bail earlier granted by the Sessions Court, Pune is required to be continued or whether it is to be continued for the limited period and then to ask the respondent to appear before the concerned Court after filing of the chargesheet to apply for regular bail.

5. The facts can be narrated in nutshell are to the effect that on or about 7th March, 2009 there was a complaint made to the Economic Offences Wing, Crime Branch, Pune by the present intervener ICICI Prudential Life Insurance Company against the present respondent and his wife for taking action against them for the offence punishable under Sections 417, 420, 465, 468 and 471 read with Section 34 of Indian Penal Code. Allegedly the said complaint was lodged for taking action against the respondent and his wife as they had indulged in cheating and preparation of fabricated documents and thereby availed pecuniary benefit to the tune of more than Rs.3 crores and odd in their favour by way of commission/prize money on account of securing certain insurance policies from one Pravin Doddanavar, his cousin brother Dr.Ramesh Doddanavar and wife of Ramesh Dr.Savitri Doddanavar.

6. Again at this juncture, it must be mentioned that out of the similar allegations so far as the agreement of insurance agency is concerned, an arbitration proceeding is filed by the ICICI Prudential Life Insurance Company before this High Court, which is pending before the appropriate Bench and reportedly said amount of Rs.3 crores had been seized under the orders of the said Bench. Infact, prior to such arbitration proceedings, during pendency of the matter under enquiry/investigation before the Economic Offences Wing, Crime Branch, Pune, said amount of Rs.3 crores which was deposited in the fixed deposit account with HDFC Bank in the name of the wife of the present respondent, has already been freezed by the EOW. As such by order of EOW and also by order of another Bench of this Court, said amount of Rs.3 crores is under seizure and not being allowed to be utilized by the present respondent and his wife.

7. Sometime on 5th November, 2008 or thereabout, the wife of the present respondent was taken as a business partner in ICICI Prudential Life Insurance, whereas prior to that on or about 9th May, 2006 present respondent was taken as Insurance Advisor by ICICI Prudential. At this juncture, it must be mentioned that during the arguments in support of the present application for cancellation of anticipatory bail much is argued regarding two names by which the present respondent is known i.e. Ishan Vasant Deshmukh @ Shri Prasad Vasant Kulkarni. However, without going much into this aspect of the two names, suffice it to say that there were steps taken by the respondent to change his name and as such the papers had been accepted by the ICICI Prudential Life Insurance Company and he has been taken on the panel as insurance advisor.

8. In the present case, there was alleged desire of Pravin Doddanavar, his cousin brother Dr.Ramesh Doddanavar and wife of Ramesh, Dr.Savitri Doddanavar to invest some amount in liquid funds and as such they had asked the present respondent who was working for them and assisting them in such investments, to look for suitable options. Accordingly there were few meetings and in which the officials from ICICI Prudential Life Insurance Company such as one Vinay Joshi, present respondent and Doddanavars took part. It was agreed that certain amounts in crores are to be invested and on such investments certain loans were required to be raised for the business of the Doddanavars. The allegations are that instead of investing the amounts in liquid funds, proposal was put before the Doddanavars by present respondent to take the insurance policies of "Premier Life Pension".

9. Sometime on 7th October, 2008 an amount of Rs.10 crores was invested in Premier Life Pension policy for Pravin Doddanavar with ICICI Produential Life Insurance Company, Pune Branch. Pravin had talk with his brother Dr.Ramesh initially on 4th October, 2008, and arrangement was made by giving applications and cheques for investment of Rs.1.5 crores by Dr.Ramesh for purchase of Premier Life Pension policy with ICICI Prudential Company, Pune Branch. The cheque issued by Dr.Ramesh was dishonored on account of stop payment orders sent by Dr.Ramesh on the say of Pravin Doddanavar. This stoppayment recourse was taken as Pravin Doddanavar found out that on purchase of said Premier Life Pension policies, it was not possible to get any loan in foreign currency or otherwise. As such, there was stop payment instruction and initial cheque of Rs.1.5 crores was dishonored. On 24.10.2008 Premier Life Pension policy for Rs.50 lakhs was obtained in the name of Dr.Savitri Doddanavar and relevant applications and cheques were given to the ICICI Prudential Life Insurance, Pune Branch. It is pertinent to note that though the earlier cheque for Rs.1.5 crores was dishonored for stop payment, fresh cheque for the same amount was given by Dr.Ramesh on or about 22nd October, 2008 and as such Premier Life Pension policy for Rs. 1.5 crores was issued. Thus, three separate policies were issued on the respective names of Pravin Doddanavar, Dr.Ramesh Doddanavar and Dr.Savitri Doddanavar respectively for Rs.10 crores, Rs.1.5 crores and Rs.50 lakhs. Said policy numbers are respectively 10126084 (Pravin), 10110197 (Dr. Ramesh) & 10243007 (Dr. Savitri).

10. Even after taking the above mentioned policies, probably at the instance of the present respondent, Pravin Doddanavar was insisting for getting loan in foreign currency however he was informed by the respondent and officers of ICICI Prudential Life Insurance Company that on the strength of such policy of Premier Life Pension, such financial assistance could not be given. As such, apparently on 17.10.2008, Pravin Doddanavar applied to Belgaom Branch of ICICI Prudential Life Insurance Company for refund of the policy 10126084. It is pertinent to note that instead of applying to Pune Branch, he applied to Belgaum Branch where he was residing and stationed at Belgaum. It is also significant to note that subsequently on 22.10.2008 handwritten letter was given to the ICICI Prudential Life Insurance Company, Belgaum Branch signed by Pravin Doddanavar requesting to continue with Premier Life Pension policy and to ignore the letter of cancellation earlier given. Infact apparently on the same day, a fresh cheque of Rs.1.5 crores was given by Dr.Ramesh Doddanavar for obtaining Premier Life Pension policy though earlier orders were given by Pravin asking for cancellation of the policy numbers 10126084 (Pravin) and 10110197 (Dr.Ramesh).

11. According to the submissions and the case of the present respondent, he assisted Pravin by providing him with the draft email after knowing that Pravin wants to cancel the policies and wants to withdraw the amount blocked under such policies. During the arguments, learned Senior Counsel Shri Amit Desai had produced copies of such emails, one sent by the respondent giving draft to Pravin and another one sent by Pravin to the grievance cell of ICICI Prudential.

12. Again on 6.11.2008 the respondent gave three typed letters which are bearing the date significantly 3rd October, 2008, for changing the Premier Life Pension policies to Life Stage Pension policies. Said letters were typewritten however bearing the signatures of the respective persons i.e. Pravin Doddanavar, Dr.Ramesh Doddanavar and Dr.Savitri Doddanavar. It is significant to note that the signatures on the said letters, which were sent to ICICI Prudential Life Insurance Company, Pune Branch were verified by the concerned office staff of ICICI Prudential Life Insurance Company and accepting such letters as genuine and expressing desire of the concerned persons, three new policies of Life Stage Pension plan were issued with following respective numbers i.e. 10332567 (Pravin), 10332568 (Dr.Ramesh) & 10332566 (Dr.Savitri).

13. According to the complaint and according to the representations made by Doddanavars to ICICI Prudential Life Insurance Company, said three letters dated 6.11.2008 were fabricated and prepared by the present respondent in connivance with the officers of the ICICI Prudential Life Insurance Company, Pune Branch. As such, on 4th December, 2008, Pravin Doddanavar sent a email to ICICI Prudential asking for refund of the money after cancellation of the policies earlier taken under the scheme Premier Life Pension. This email was followed by another email dated 14.12.2008 giving all the details as to desire since inception for investing the amount in liquidity funds and not in any insurance pension plans as has been done by the respondent and some office bearers of the ICICI Prudential Life Insurance Company. By such last email dated 14.12.2008 Doddanavars expressed their unwillingness for conversion of Premier Life Pension policies to Life Stage Pension policies and asked for refund of the entire invested amount i.e. total Rs.12 crores.

14. Apparently such desire of Doddanavars was accepted by ICICI Prudential and infact the amount of Rs.12 crores has been refunded to respective persons. Apparently it is so done even during the investigation in the matter of lodging of the complaint with EOW, Crime Branch, Pune and still during the investigation of Swargate police station which was in progress. Significantly enough such amounts were paid taking the words of Doddanavars as truthful and presuming that the present respondent is the person who had fabricated said documents.

15. During the arguments, this Court enquired with the learned Senior Counsel Shri Shirish Gupte for ICICI Prudential as to what had prompted the ICICI Prudential to immediately refund the said amount of Rs.12 crores which was invested in the scheme of Life Stage Pension policies and when the freelook period was already over much earlier concerning three policies of initial scheme of Premier Life Pension which were taken in October, 2008. On this, it is answered, on instructions, that such money was refunded probably in order to keep good relations with the Doddanavars being valued customers.

16. In the opinion of this Court, when such type of matter of alleged fraud was under investigation by Swargate police station and when infact there was also investigation by EOW, Crime Branch, Pune, and when there were allegations even by Pravin Doddanavar alleging involvement of one Vinay Joshi, a Senior Official from ICICI Prudential Life Insurance Company, such type of immediate refund of Rs. 12 crores even after the freelook period, prompts this Court to consider the arguments advanced on behalf of the respondent as to some conspiracy involving the officers of the ICICI Prudential Life Insurance Company.

17. On the above factual position if the actions taken by ICICI Prudential are considered, it must be mentioned that initially on 7th March, 2009 complaint was lodged to EOW, Crime Branch of Pune and subsequently said matter was transferred to Swargate police station and an independent FIR came to be lodged on 31st August, 2009 by the officials of ICICI Prudential Life Insurance Company. It was probably done on the assumption that the letter dated 6.11.2008 bearing purported signatures of Pravin Doddanavar, Dr.Ramesh Doddanavar and Dr.Savitri Doddanavar were forged and fabricated by the present respondent. This was more so that as on the strength of said letters, there was conversion of policies under Premier Life Pension to Life Stage Pension plan and in view of such conversion, as per the Rules and the scheme under Life Stage Pension plan the agent i.e. the present respondent was entitled to certain commission/gifts and as such was paid an amount of Rs.3 crores and odd by electronic transfer and by cheque. Suffice it to say that certain percentage by way of commission and other amount by way of gift in kind was the usual procedure to be given to the person bringing the business to ICICI Prudential Life Insurance Company. However, admittedly an amount of Rs.2 crores and odd was deposited in the account of present respondent maintained with the ICICI Prudential Life Insurance Company, Mumbai and such amount was given by payorder and allegedly brought by one Vinay Joshi officer of ICICI Prudential Life Insurance Company.

18. On this aspect, the allegations of present respondent are significant inasmuch as according to him he was told by said Vinay Joshi to withdraw the said amount which was deposited in his bank account and give the entire amount in cash to Vinay Joshi, as part of it was to be given to Pravin as a kick back and part of it was to be taken by Vinay Joshi. It is further argued that the respondent was not agreeing to do so as it was against the norms regarding such investments and as such he refused to accede to the demands of Vinay Joshi and Pravin Doddanavar and as such has been falsely implicated in the present matter. While deciding the present application for cancellation of anticipatory bail, this argument is required to be construed and given weightage in order to cancel or modify the relief of anticipatory bail given in favour of the respondent.

19. From the above the factual position can be crystallized to the effect that on 7th March, 2009 there was a complaint to EOW, Crime Branch, Pune by ICICI Prudential Life Insurance Company, and apprehending the arrest at the hands of EOW for the alleged offences of cheating and forgery, the respondent applied for anticipatory bail before the Additional Sessions Judge, Pune. Said application was allowed and infact a blanket order was passed giving protection to the respondent vide order dated 30th April, 2009. By that time, infact there was no actual filing of the First Information Report/complaint and matter was still under enquiry/investigation by EOW inasmuch as the formal FIR came to be lodged on 31st August, 2009 with Swargate police station. This non-filing of the FIR during pendency of the anticipatory bail application was much emphasized by learned Senior Counsel Shri Shirish Gupte arguing for ICICI Prudential Life Insurance Company. It is submitted that there could not have been a blanket order of protection in favour of the respondent though such protection could have been granted for a limited period i.e. to say till filing of the chargesheet or otherwise. Reliance was placed on the ratios of the following authorities by rival parties :

[1] (2005) 4 Supreme Court Cases 303 [Adri Dharan Das Vs. State of W.B.]

[2] (1996) 1 Supreme Court Cases 667 [Saluddin Abdulsamad Shaikh Vs. State of Maharashtra]

[3] (2001) 6 Supreme Court Cases 338 [Puran Vs. Rambilas and another]

[4] Decision of this High Court [Coram:V.C.Daga,J] dated 23.4.2008 in Prashant Kishor Mehta Vs. State of Maharashtra.

[5] (2010) 1 Supreme Court Cases 684 [Ravindra Saxena Vs. State of Rajasthan]

[6] 1999 Cri.L.J. 3806 [The State of Maharashtra Vs. Sanjay s/o. Moreshwar Damle and others]

20. After going through the ratios propounded by the above authorities and as legal position is now crystallized, both the learned Senior Counsels agreed to the situation that in specific given cases considering the circumstances, the Court can grant anticipatory bail even if there is no registration of FIR. However, such grant of anticipatory bail could not have been given forever and it should have been for a limited period and when the matter of the nature like the present one wherein the investigation is still going on such relief should only be till the completion of the investigation. If such crystallized position is to be borne in mind as argued by learned Counsel, in the opinion of this Court the impugned order should not have been passed in the manner in which it was passed by the Additional Sessions Judge, Pune giving blanket protection to the respondent. As such, suitable modification in the said order is required to be done as per the final order hereunder appearing.

21. On merits, in view of the above discussion and the factual position and considering the arguments on behalf of the respondent as to his major ailment and suffering from heart trouble and his immediate prolonged hospitalization, it would not be in the fitness of the situation to entirely do away with the protection against the arrest and subject the present respondent for police custody. In other words, the matter of the present nature involving documentary evidence and mainly ascertainment as to who has forged the letters dated 6.11.2008, do not warrant custody of the present respondent at this stage of the matter. However, by limiting the protection till filing of the chargesheet, the respondent is required to be protected to approach the concerned Court which would be seized of the matter on filing of the chargesheet to apply for regular bail. In that event, there would be opportunity to the concerned Court to deal with the material collected during the entire investigation and available at the filing of the chargesheet for deciding the requirement of custody or otherwise of the present respondent.

22. In view of these observations, present application is disposed of with following order

::: O R D E R :::

[i] Criminal Application No.4356 of 2009 is partly allowed and accordingly disposed of. The order dated 30th April, 2009 passed by the Additional Sessions Judge3, Pune is modified to the following extent;

[ii] The anticipatory bail order granted vide order dated 30th April, 2009 passed by the Additional Sessions Judge-3, Pune shall be effective till the filing of the chargesheet in C.R. No.357 of 2009 of Swargate police station, Pune;

[iii] On filing of the chargesheet, present respondent shall apply for regular bail before the concerned Court which is seized of the matter;

[iv] Concerned Court shall deal with such application for regular bail according to law and as per the material brought to the said Court by way of filing of the chargesheet;

[v] Said concerned Court shall not be influenced by any observations made in the present order so far as merits of the said application for regular bail are concerned.

Ordered accordingly.