CRM-M-3304-2021 (O&M) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CRM-M-3304-2021 (O&M)
Date of decision : 09.11.2021

Amit Sureshmal Lodha

...Petitioner

Versus

State of Haryana

...Respondent

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

Present: Mr. Satvik Verma, Sr. Advocate with

Mr. Harsh Gokhale, Advocate and
Mr. Raghav Kakkar, Advocate for the petitioner.

Mr. Praveen Bhadu, AAG, Haryana.

Mr. B.S. Rana, Sr. Advocate with

Mr. Nayan Deep Rana, Advocate for the complainant.

****

VIKAS BAHL, J.

This is a petition filed under Section 482 of Cr.P.C. for

setting aside the order dated 16.12.2020 (Annexure P-2) and order dated

08.01.2021 (Annexure P-1) passed by the Court of Chief Judicial

Magistrate, Rewari and Sessions Judge, Rewari, respectively, whereby an

application for grant of permission to visit United States of America (for

short “USA”) and to release the passport of the petitioner has been

dismissed and the criminal revision filed against the said order has also

been dismissed. Further, a prayer has been made in the petition to allow

the petitioner to visit USA for a period of 30 days from the date of

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receiving the passport and also for issuance of directions to the police

officials to release the passport of the petitioner confiscated in FIR No.63

dated 17.02.2020 registered under Sections 420, 406, 120-B, 34 of the

Indian Penal Code, 1860 (hereinafter to be referred as “the IPC”) at

Police Station Dharuhera, Rewari.

The brief facts which have given rise to the filing of the

present criminal miscellaneous petition are that the petitioner had made

an application praying for grant of permission to visit USA for family

reunion w.e.f. 18.12.2020 to 10.01.2021. It was the case of the

applicant/petitioner that he had been granted the concession of

anticipatory bail by the Court of Sessions Judge, Rewari and that the

applicant/petitioner had already joined the investigation and that the

applicant/petitioner is an Overseas Indian citizen having an Indian

Passport No.N2419844 and is married to Mrs. Kimberly Marie, who is a

citizen of USA having passport No.514439506 and out of the wedlock,

the petitioner has a son named Ayan, who is also a US citizen by birth

having passport No.506273592. It was averred that the wife and son of

the petitioner are residing in Utah, a state in USA, at the address 584E,

Southfork Drive, Draper, UT-84020 and that the petitioner is residing in

India at Omkar Building Off. Annie Besant Rd. Worli Mumbai and that

the petitioner wanted to visit his wife and son for conjugal union and in

order to comply with the directions imposed under Section 438(2) of the

Code of Criminal Procedure (hereinafter to be referred as “the Cr.P.C.”),

the petitioner was taking the prior permission of the Court and had, thus,

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filed the said application. It was further averred that the parents of the

petitioner were permanently residing in India and even the company

owned by the petitioner and the other assets were also in India. It was

stated that the petitioner undertook not to violate the conditions of bail

and further, to return the passport to the Investigator on his arrival back to

India. With the said averments, the application was filed before the Chief

Judicial Magistrate, Rewari. Additional Public Prosecutor had opposed

the said application on the ground that the petitioner was not cooperating

in the investigation and also that the present case was a case under

Sections 420, 406, 120-B, 34 of the IPC,and the order of the National

Company Law Tribunal (for short ‘NCLT’) was passed against the

petitioner and also that he was not the authorized signatory of the

company and the signatures were withdrawn on 24.09.2021 but the

petitioner had placed two purchase orders on 17.10.2019 and had also

signed two PDC cheques in order to cheat the complainant who had

supplied the waste and scrap material. Application was also opposed on

the ground that the petition bearing case No.CRM-M-33202-2020 titled

as Joginder Singh Vs. State of Haryana and others, had been filed against

the anticipatory bail granted to the petitioner by the Sessions Court and

the said case was pending before this Court. Additional Public Prosecutor

had also pointed out that there were chances of the petitioner fleeing from

the course of justice as he was an Overseas Indian Citizen and his wife as

well as his son were US citizens and in case, conjugal union was the

ultimate/main objective sought, then the wife and son of the petitioner

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could also visit India instead of the petitioner going to USA for the family

union.

The Chief Judicial Magistrate, Rewari, after considering the

said averments and also after hearing the parties, dismissed the

application vide order dated 16.12.2020 primarily on the following

grounds: -

i) The petitioner was not cooperating in the investigation.

ii) The petition bearing CRM-M-33202-2020 for cancellation of bail

granted to the petitioner had been filed before the High Court by

the complainant i.e. Joginder Singh and the same was pending

adjudication at that time.

iii) The allegations against the petitioner were stated to be serious,

inasmuch as after having been suspended from the Board of

Directors as per the NCLT order dated 24.09.2019, the petitioner

still placed two purchase orders and signed two PDC cheques in

order to cheat the complainant.

iv) If permitted, there was a possibility of the petitioner fleeing from

the course of justice and not returning to India after release of his

passport.

v) There was no fundamental right of the petitioner to visit abroad and

the permission to visit or not to visit a foreign country was to be

decided on the basis of facts and circumstances of the case.

The petitioner filed a Criminal revision against the order

dated 16.12.2020 in the Court of Sessions Judge, Rewari. Before the

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Sessions Court, apart from reiterating the averments and arguments raised

before the Chief Judicial Magistrate, Rewari, it was further argued that

the petitioner would return by 30th of January, 2021. Since, the period

earlier sought was fast elapsing and the application of the petitioner had

not been allowed by the Chief Judicial Magistrate, Rewari, thus, the

revised permission to visit USA for a period ranging from 09.01.2021 to

30.01.2021 was sought. The said revision petition was also dismissed

primarily on the following grounds:-

1) The petitioner was not cooperating in the investigation of the case.

2) The petition under Section 482 of Cr.P.C., challenging the grant of

anticipatory bail to the petitioner, was pending before this Court.

3) If permitted, there was a possibility of the petitioner fleeing from

the course of justice and not returning to India after release of his

passport.

The abovesaid two orders are the subject matter of challenge

in the present petition.

Learned Senior Counsel for the petitioner has vehemently

argued that the reasons given by the Courts below for rejection of the

application of the petitioner are either non-existent as on the present date,

or are irrelevant, or are against the settled principle of law. It has been

submitted that the primary reason of rejection given by both the Courts

below was the pendency of CRM-M-33202-2020 which had been filed by

the complainant-Joginder Singh against the order of grant of anticipatory

bail to the petitioner and the said fact is no more relevant inasmuch as this

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Court vide judgment dated 01.09.2021 has dismissed the said petition

filed by Joginder Singh. Reference has been made to the said order which

has been annexed as Annexure P-17. It has been pointed out that while

dismissing the said petition, all the aspects, moreso the aspect with

respect to the fact that two purchase orders were placed on 17.10.2019, as

well as the fact that the petitioner had not allegedly joined the

investigation, have already been considered and the said grounds have

been rejected, after noticing the fact that the said two purchase orders

dated 17.10.2019 were in fact cancelled after the petitioner had learnt the

true import of the order dated 24.09.2019 and after considering the order

dated 04.01.2021 passed by the Sessions Judge, Rewari vide which the

application for cancellation of bail of the petitioner moved by the State,

had been withdrawn by stating that the petitioner and other co-accused

had joined the investigation. Specific reference has been made to the said

order which has been reproduced in the order dated 01.09.2021. It has

been submitted that the reading of the said order would show that the

factum of pendency of CRM-M-33202-2020 and non-cooperating in

investigation and also the allegations based on the merits of the case

against the petitioner, cannot possibly come in the way of the petitioner in

being granted the permission to go abroad. It is further submitted that it is

the fundamental right of every citizen of India, enshrined under Articles

19 and 21 of the Constitution of India, to move freely and to travel freely,

including foreign travel, and thus, the same cannot be illegally curbed. It

is submitted that the wife of the petitioner as well as son of the petitioner

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are both residing abroad and the petitioner has every right to travel

abroad for conjugal union. Learned Senior Counsel for the petitioner has

also further submitted that the question of non-cooperating in the

investigation would not arise inasmuch as in the present case, the challan

has already been filed after the completion of the investigation. Learned

Senior Counsel for the petitioner has also relied upon the judgment of the

Hon’ble Supreme Court titled Parvez NoordinLokhandwalla Vs. State of

Maharashtra and another, reported as (2020)10 SCC 77 to contend that

even at the appellate stage and at the stage of petition having been filed

under Section 482 of the Cr.P.C., the relief with respect to the petitioner

travelling abroad can be granted even in case the time period for which

the initial travel was sought has elapsed, moreso, when the cause

survives. In the present case, it is submitted that since the primary cause

was re-union with the family, thus, cause survives even in case, the

period mentioned before the Chief Judicial Magistrate i.e. 18.12.2020 to

10.01.2021 as also revised period mentioned before the Sessions Court

i.e. 09.01.2021 to 30.01.2021, has elapsed.

Learned Senior Counsel for the petitioner has submitted that

in fact, in addition to the abovesaid reasons, there is an additional reason

for which it is necessary for the petitioner to go abroad. For the said

purpose, reference has been made to the order dated 16.06.2021 passed

by the Coordinate Bench of this Court. In the said order, it had been

contended that for maintaining the validity of the green card, which has

been issued in favour of the petitioner, the petitioner is required to visit

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America and failing the same, serious prejudice would be caused to the

rights of the petitioner. Learned Senior Counsel for the petitioner has

drawn the attention of this Court to Annexure P-6 which is the permanent

resident card of the petitioner, specifically stating that the said card would

expire on 06.04.2023 and also prima facie proving the petitioner to be a

permanent resident of USA since 02.04.2011. Further reference has been

made to Annexure P-14 wherein Chapter-3 of the US Citizenship and

Immigration Services has been provided. Specific reference has been

made to Clause 1 which appears at page 205 of CRM-31171-2021 and

the relevant portion of the said clause has been reproduced hereinbelow:-

“1. Absence of More than 6 Months (but Less than

1 Year)
An absence of more than 6 months (more than
180 days) but less than 1 year (less than 365 days)
during the period for which continuous residence is
required (also called “the statutory period”) is
presumed to break the continuity of such residence.
This includes any absence that takes place during the
statutory period before the applicant files the
naturalization application and any absence between
the filing of the application and the applicant’s
admission to citizenship.”

On the basis of the said clause, it has been submitted that the

absence of more than 6 months but less than one year, during the period

for which continuous residence is required, is presumed to be a break in

the continuity of such residence. On this aspect, further reference has also

been made to Parvez Noordin Lokhandwalla’s case (Supra) in order to

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state that as per the US Immigration and Nationality Act, 1952, the

person concerned has to return for a short period for revalidating the

green card. Specific reference has been made to sub-Clause (ii) of Clause

(C) of the conditions prescribed. Relevant portion of the said judgment of

Hon’ble Supreme Court in the abovesaid case containing the said

condition is reproduced hereinbelow: -

“On 26 June 2020, a Single Judge (Justice S. K.

Shinde) expressed his inability to take up the IA for
relaxation of the conditions attached to the grant of
interim bail since the order dated 19 May 2020 had been
passed by Justice A. S. Gadkari. The contention of the
appellant, it may be noted, has been that under the
conditions prescribed by the US Immigration and
Nationality Act 1952, he has to return for a short period
for revalidating the Green Card. Among them are the
following:
“(C) An alien lawfully admitted for permanent
residence in the United States shall not be regarded as
seeking an admission into the United States for
purposes of the immigration laws unless the alien-
(i) has abandoned or relinquished that status,
(ii) has been absent from the United States for
a continuous period in excess of 180 days,
(iii) has engaged in illegal activity after
having departed the United States,
(iv) has departed from the United States while
under legal process seeking removal of the
alien from the United States, including
removal proceedings under this chapter and
extradition proceedings,

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(v) has committed an offense identified in

section 1182(a)(2) of this title, unless since
such offense the alien has been granted relief
under section 1182(h) or 1229b(a) of this title,
or is attempting to enter at a time or place
other than as designated by immigration
officers or has not been admitted to the United
States after inspection and authorization by an
immigration officer.”

On the basis of the abovementioned condition, it has been

submitted that serious prejudice would be caused to the rights of the

petitioner with respect to his permanent residency in the USA, if he is not

granted the said permission.

Learned Senior Counsel for the petitioner has further

submitted that in fact, the wife of the petitioner had to undergo an

operation for removal of her appendix and for the said aspect, the

petitioner has referred to the medical record (Annexure P-5).

Per contra, learned counsel for the State as well as learned

Senior Counsel for the complainant-Joginder Singh, have vehemently

opposed the present petition. It has been submitted that the petitioner has

been constantly changing the period for which the petitioner wishes to go

abroad. Initially the said period was 18.12.2020 to 10.01.2021 and during

the course of revision filed, it was changed to the period ranging from

09.01.2021 to 30.01.2021. It has been pointed out that at the first stage,

reason stated for going abroad was conjugal union. In the present petition

filed under Section 482 of Cr.P.C., however, additional reasons have been

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given which were never agitated before the first Court or before the

revisional Court. The pleas with respect to the petitioner being a green

card holder or his wife having to be operated for removal of her appendix,

were never the points which were agitated before the Courts below. It is

further submitted that in fact, the wife of the petitioner has already

undergone the said operation and has now recovered and thus, the said

point cannot be taken to permit the petitioner to go abroad.

Learned Senior counsel for the Complainant and State have

laid much emphasis on the fact that the plea of the petitioner is not bona

fide and there is every possibility that the petitioner would not come back

to India in case he is granted the permission to go abroad. It is submitted

that the wife and son of the petitioner are citizens of America and that the

petitioner has no property in India. Further, no details of bank accounts

are forthcoming. It is further submitted that the amount due to the

complainant is to the extent of Rs.1,85,50,286/-. Further reference has

been made to Annexures C1 and C2 which have been filed alongwith

CRM-34170-2021. In Annexure C1, reference has been made to

paragraph 2 to highlight the fact that there are as many as 41 cases

pending against the petitioner and the company in question i.e., M/s

Indsur Global Limited, under Section 138 of the Negotiable Instruments

Act, 1881 (hereinafter to be referred as “the Act of 1881”) in various

courts in Mumbai, Ahmedabad, Gurugram and Rewari. It is contended

that the approximate aggregate value of dispute in the said cases is Rs.25

crores. Further reference has also been made to Annexure C2 which is

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order dated 28.07.2021 in which, in the case titled TCI Freight Vs. Indsur

Global i.e. complaint No.3 of 2018, non-bailable warrants have been

issued to accused Nos.2 to 4 for 04.01.2022. It is the contention of

learned Senior Counsel for the complainant that the said accused Nos.2 to

4 includes the present petitioner, although, the complaint in the said case

under Section 138 of the Act of 1881 is not available. Reliance has been

placed upon judgment of the Hon’ble Supreme Court in Srichand P.

Hinduja Vs. State through CBI, New Delhi reported as 2002 (3) RCR

(Criminal)186 to contend that in the abovesaid case, even where the

permission to go abroad was granted, the petitioners were directed to

execute a bond for a sum of Rs.15 crores each with a bank guarantee for

the like amount to the satisfaction of the Special Judge, in addition to the

other conditions. It is submitted that in the said case, the entire dispute

was with respect to an amount of Rs.1437 crores but the kickback amount

was of Rs.64 crores. It is submitted that in the present case, the petitioner

whose wife and son are residing abroad, and does not have any property

in India and is also facing several cases, in all likelihood, would not come

to India in case permission to go abroad is granted.

Learned counsel for the State has further highlighted that

even assuming, the petitioner is to be allowed to go abroad, then also,

apart from other conditions,the petitioner should be directed to give a

local surety inasmuch as the petitioner is residing in Mumbai and the FIR

has been registered in Rewari. However, the fact that in the present case,

challan has been presented, has not been disputed.

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Learned Senior Counsel for the petitioner, in rebuttal to the

said argument, has submitted that as far as the reliance on order dated

28.07.2021 (Annexure C-2) vide which the non-bailable warrants have

been issued, is sought to be placed by the Senior Counsel for the

complainant, the said case has already been compromised and for that,

reference has been made to the order dated 13.10.2021, which has been

sent through Whatsapp and the same is taken on record. The said order is

reproduced hereinbelow: -

“TCI Fright Vs. Indsur Global 03-

2018
Present:- Ms. Manju Rani, counsel for complainant.
File put up on application for withdrawal the present
complaint filed on behalf of complainant. By separate
statement of complainant counsel Ms. Manju Rani stated that
on the instruction of complainant company, he does not want
to pursue the present complaint. Kindly same be dismissed as
withdrawn. In view of statement, complainant counsel is
allowed to withdraw the present complaint. File be consigned
to the record room after due compliance.
Announced in Daily Lok Adalat; (Sarita Solanki)
Presiding Officer Daily Lok Adalat
UID-HR0473
13.10.2021”

Further, to rebut the reliance sought to be placed by the

opposing counsel on the Chart as mentioned in Para 2 of Annexure C1, it

has been stated that from the said chart, it is nowhere coming out that the

petitioner is also an accused in the said cases, nor any fact or document

has been produced to show that the petitioner is personally responsible

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for any amount as is stated to be outstanding. It is stated that the figure

which has been given by learned Senior Counsel for the complainant, to

the effect that the dispute in the said cases is about Rs.25 crores, is not

even remotely borne out from the record. No documents in support of the

said Chart have been annexed other than Annexure C2 regarding which a

specific answer has already been given. No objections have been taken

with respect to the pendency of the said cases before the Courts below, as

the allegations with respect to the alleged dishonor of two cheques which

were raised before the Courts below were with respect to the dispute with

the complainant and the said cheques were also dishonoured as the same

were sought to be encashed at the time when the order of admission of

insolvency had already been passed and thus, the cheques could not have

been credited. Further, with respect to the outstanding amount of

Rs.1,85,50,286/-, it has been argued that the same has been considered by

this Court in its order dated 01.09.2021 passed in CRM-M-33202-2020

and that the complainant representing his company M/s Yashu Iron

Private Limited had lodged his complaint before the Interim Resolution

Professional (hereinafter to be referred as “IRP”) and the same figures at

Sr. No.4 in Column No.B under the heading “Operational Creditors” and

the amount claimed by the company of the complainant therein is

Rs.1,85,50,286/-. Further reference has also been made with respect to

independent forensic audit of the company so as to state that no fraud was

found to have been committed as per the provisions of IBC, 2016 and that

the purchase orders were also in the name of the petitioner company and

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not in the individual name of the petitioner or the other accused.

With respect to the argument raised by the learned Senior

Counsel for the complainant and the State to the effect that the petitioner

would not come back to India in case the permission to go abroad is

granted, learned Senior Counsel for the petitioner has submitted that the

petitioner undertakes to abide by all the conditions which are imposed by

this Court and also assures the Court that the petitioner would return and

in addition to the same, has submitted that the father and the mother of

the petitioner are residing in India and the mother of the petitioner is

ready to give a surety in favour of the petitioner and that the mother of

the petitioner has immovable property worth approximately Rs.35 to

Rs.45 lacs which the petitioner and his mother are also ready to furnish as

security and in case this Court desires,then an amount of Rs.5,00,000/-

can also be furnished in the form of a bank guarantee by the petitioner.

With respect to the local surety, reference has been made to Chapter 33 of

the Cr.P.C., moreso Section 441 of Cr.P.C. to contend that no such

conditions have been imposed under Section 441 of Cr.P.C. and thus, it

has been prayed that the petitioner, who is residing in Mumbai, would not

possibly be able to get a local surety in Rewari. It has been submitted that

in the present case, an amount of Rs.1,85,50,286/- is recoverable against

the company in question, for which the proceedings are pending and apart

from the argument which has been raised with respect to 41 other cases, it

has been submitted that it is the dispute in the present case which is to be

primarily seen by this Court while allowing an application, as has been

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moved in the present case. Reference has been made to judgment dated

28.09.2018 passed in CRM-M-41608-2018 titled Paramjit Kaur Vs.

State of Punjab to show that in the said case, the petitioner was permitted

to go abroad on the execution of a personal bond in the sum of

Rs.5,00,000/- with the undertaking that the petitioner was to report back

on or before 15.02.2019 and also with further right to the trial Court/Duty

Magistrate to impose any further conditions. Reference has also been

made to judgment dated 20.04.2018 passed by the Coordinate Bench of

this Court in CRM-M-15550-2018 titled Surender Singla Vs. State of

Haryana in which permission to travel abroad was granted subject to

deposit of Rs.2,00,000/- with the trial Court in addition to the undertaking

specifying conditions of forfeiture.

This Court has heard the learned counsel for the parties and

has perused the record.

On the basis of the observations made in the impugned

orders, the objections raised by the learned Senior Counsel for the

complainant and learned counsel for the State and also the arguments

raised by the learned Senior Counsel for the petitioner, the following

issues/factors arise for consideration in the present case: -

1) Pendency of CRM-M-33202-2020 filed by the complainant-

Joginder Singh against the order of the Sessions Judge granting

anticipatory bail to the petitioner.

2) Alleged non-cooperation of the petitioner in the investigation.

3) Merits of the allegations made against the petitioner, moreso with

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respect to the placing of two purchase orders after the Board of

Directors had been suspended vide order dated 24.09.2019 by the

NCLT.

4) Change of period with respect to which permission is sought for

going abroad inasmuch as before the Chief Judicial Magistrate,

period was stated to be from 18.12.2020 to 10.01.2021 and before

the Sessions Court, it was stated to be from 09.01.2021 to

30.01.2021 and in the present petition, it is stated to be 30 days

from the date of receiving the passport.

5) The question as to whether the Petitioner has a right to go abroad

based on the pleas raised in the present petition.

6) In case, permission is to be granted, then the conditions, which are

required to be imposed on the petitioner so that the petitioner

would not flee from the course of justice.

The said issues/factors are being taken up for discussion

hereunder: -

ISSUES NOS.1 TO 3
(1). Pendency of CRM-M-33202-2020 filed by the complainant-
Joginder Singh against the order of the Sessions Judge granting
anticipatory bail to the petitioner,
(2). Alleged non-cooperation of the petitioner in the investigation &
(3). Merits of the allegations made against the petitioner, moreso with
respect to placing of two purchase orders after the Board of Directors
had been suspended vide order dated 24.09.2019 by the NCLT): -

The petition bearing No.CRM-M-33202-2020, had been

dismissed by this Court vide judgment dated 01.09.2021. While deciding

the said case, the aspect with respect to the alleged non-cooperation of the

petitioner in the investigation of the case had also been considered. The

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merits of the case, including the allegations with respect to two purchase

orders having been placed by the petitioner after the Board of Directors

had been suspended vide order dated 24.09.2019 by the NCLT, had also

been considered. The relevant portion of the judgment dated 01.09.2021

is reproduced hereinbelow: -

“xxx xxx xxx

It has been observed in the impugned order that the
two purchase orders dated 17.10.2019, which were
placed on behalf of the accused-company had been
cancelled on learning of the actual impact of the Order
passed by the NCLT, Mumbai and no goods were ever
supplied to the accused persons by the complainant party
on the basis of the above two orders. The said fact is not
disputed before this Court. It is further observed in the
impugned Order that all documents relating to the case
are in the office of the accused-company which is now
under the control of the IRP. It was also observed that
the custodial interrogation is not required because the
entire case is based upon documentary evidence.
Conditions with respect to furnishing of bonds to the
satisfaction of the Investigating Officer and not to leave
the country without prior permission of the Court and
other conditions have also been imposed. The Sessions
Judge, Rewari has referred to the facts of the case as well
as, arguments raised by both sides and has granted
anticipatory bail by a reasoned order. This Court finds
that there is no circumstance much less, strong or
overwhelming circumstance to set aside the impugned
Order.
It is further observed that with respect to every

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argument raised/allegation made by the Learned Senior

Counsel for the Petitioner,there is a plausible
argument/defence put forth by the Learned Senior
Counsel for the Respondent No. 3 to 5. With respect to
the argument on behalf of the Petitioner that the two
purchase orders were given on17.10.2019, i.e. after the
passing of the Order dated 24.09.2019, it has been
argued on behalf of the Respondent no 3 to 5 that
admittedly, no goods were received in pursuance of the
same and the said orders were cancelled after the Order
passed by the NCLT, Mumbai was uploaded on the
website and the true impact of the same was understood
and in case, the accused persons had any fraudulent
intention, then they would not have written Letters
dated30.10.2019 and 20.11.2019 informing the
complainant-company about the passing of the aforesaid
orders.
Xxx xxx xxx
From the above, it is apparent that for every
argument/allegation raised, there is a plausible
argument/defense put up. This Court does not wish to
give an affirmative finding on the same, lest, it would
prejudice the case of either of the parties. For the
present, suffice it would to say, that the present case is
based on documents and has civil tappings and the
custodial interrogation of the Respondent Nos. 3 to
5would not be required and there is no circumstance
much less,overwhelming circumstance to interfere with
the well-reasoned order passed by the Sessions Judge.
Before parting, this Court wishes to point out that
the aspect of non-joining of investigation has been duly
defended by the Respondent Nos.3 to 5 by making a

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reference to the Order dated 04.01.2021 (Annexure R3/1)

vide which the prosecution had withdrawn their
application for cancellation of bail by stating that the
respondent nos.3 to 5 have joined the investigation. The
relevant portion of the said order dated 04.01.2021 is
reproduced hereinbelow:
“State of Haryana Vs. Amit Sureshmal Lodha etc.
Present:-Sh. Harpal Singh, Public Prosecutor for
theState.
ASI Sandeep Kumar, PS Dharuhera in
person.
Sh. Vivek Tanwar, counsel for the
respondents/accused.
Sh. Vivek Tanwar, counsel for the
respondents/accused appeared in person. ASI
Sandeep Kumar with learned Public Prosecutor for
the State vide his separate statement stated that the
respondents in the present case have already joined
into investigation and in view of the same, they do
not wish to pursue with the application for
cancellation of bail of applicants/accused Amit
Sureshmal Lodha, Sureshmal Lodha and Indu Lodha
and withdrawn the same. Heard. In view of the
statement,present application for cancellation of
bail stands dismissed as withdrawn. File be
consigned to record room after due compliance.
January 04, 2021”
Moreover, the Learned Senior Counsel for
Respondent nos. 3 to5 has stated that the Respondent
Nos. 3 to 5 are and will always be ready to join the
investigation and to cooperate with the Investigating
Officer. Further, a period of 8 months has elapsed since

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the passing of the impugned order and there are no

allegations against the answering respondents that they
are either trying to influence the witnesses or have
misused the concession of anticipatory bail granted to
them.”

A perusal of the order reproduced hereinabove would show

that reliance has also been placed upon the order dated 04.01.2021 vide

which the prosecution had withdrawn their application for cancellation of

bail by stating that the petitioner and other co-accused had joined the

investigation. Moreover, it is an admitted case of both the parties that in

the present case, the investigation has been completed and the challan has

been filed. Further, on the question of merits, the allegations in the

present case are not such so as to disentitle the petitioner to travel abroad.

Thus, the first three issues are decided in favour of the petitioner and it is

held that the said three issues would not come in the way of the petitioner

being granted the permission to travel abroad.

ISSUE NO.4. Change of period with respect to which permission is

sought for going abroad inasmuch as before the Chief Judicial
Magistrate, period was stated to be from 18.12.2020 to 10.01.2021 and
before the Sessions Court, it was stated to be from 09.01.2021 to
30.01.2021 and in the present petition, it is stated to be 30 days from the
date of receiving the passport: -

In para 2 of the judgment passed in Parvez Noordin

Lokhandwalla’s case (Supra), the Hon’ble Supreme Court has

categorically observed that though the time period for which the appellant

therein had sought permission to travel abroad had lapsed, the cause

survived and thus, in the said case, the appellant therein was permitted to

travel abroad. Para 2 of the said judgment is reproduced hereinbelow:-

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“2. The High Court declined to relax the conditions

imposed by it for the grant of interim bail on the ground that
an FIR has been registered against the appellant. Though
the period during which the appellant sought to travel
abroad has lapsed, the cause survives. The appeal raises
interesting issues about the interface between the
fundamental right to travel abroad and its curtailment under
a judicial order as an incident to regulate conditions
governing the grant of bail.”

In the present case, the primary plea raised by the petitioner

is to meet his wife and son who are residing in USA. The said cause was

existing at the time of filing of the application at the fist stage, at the time

of arguments in the revision petition, as well as in the present petition.

The cause thus, survives. Moreover, the petitioner cannot be deprived of

his right to travel abroad and meet his family members, merely on

account of the fact that the period for which he had initially sought the

said permission, has lapsed. In the present case, the visit was not for a

specific function/event, upon the finishing of which,the cause would

cease to survive. For instance, in case a person has to travel abroad to

attend the marriage of a near and dear one and the marriage has already

been performed or to participate in a particular event and the said event

has already taken place, then the cause, depending upon the facts and

circumstances of the case, would have invariably lapsed. Thus, the said

issue No.4 is also decided in favour of the petitioner.

ISSUE NO.5: The question as to whether the Petitioner has a right to

go abroad based on the pleas raised in the present petition.

In the present case, the petitioner had initially made a prayer

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to go abroad primarily on the ground of conjugal union since he is an

overseas Indian Citizen and his wife as well as his son are residing in

Utah, a state in USA,at the address 584E, Southfork Drive, Draper, UT-

84020 and also on account of the wife of the petitioner having undergone

an operation for removal of her appendix for which reliance has been

placed upon the medical record (Annexure P-5) and subsequently, an

additional factor, with respect to petitioner being a permanent resident of

United States of America and the said residency having an expiration date

of 06.04.2023 and in order to keep his rights of said residency alive, him

being required to visit USA,has for the first time been raised in the

present petition filed under Section 482 Cr.P.C.. For substantiating the

prejudice that might be caused to the petitioner, reference has been made

to Chapter-3 of the US Citizenship and Immigration Services (Annexure

P-14) as well as the judgment of Hon’ble the Supreme Court in Parvez

Noordin Lokhandwalla’s case (Supra), relevant portion of which has been

reproduced hereinabove.

Learned Senior Counsel for the complainant and learned

counsel for the State have raised an objection to the raising of an

additional plea by the Petitioner in the present petition filed under Section

482 Cr.P.C. This Court is of the view that the pleas which were raised

before the Courts below were in fact, sufficient to entitle the petitioner to

travel abroad inasmuch as it is the right of every individual to meet his

wife and son, residing abroad and the said right could not be curtailed, on

account of pendency of a criminal case against the individual, as the

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petitioner in this case. The said right, however, is to be regulated by

imposing suitable conditions for securing his presence during the trial.

This Court, in the case of UtkarshPahwa Vs. Assistant

Director (PMLA), Directorate of Enforcement, reported as 2019(1) Law

Herald 870, had, after considering several judgments on the

issue,observed that it can be safely concluded that in normal

circumstances, permission could be granted to the petitioner to travel

abroad as the right to travel abroad is his fundamental right but the same

is to be regulated by imposing conditions. The relevant portion of the said

judgment is reproduced hereinbelow: -

“5 The law governing the question of grant of permission

to the petitioner for travelling abroad during the pendency of
the trial has been elaborately discussed by this Court in
authority of Paramjit Kaur vs. State of Punjab's case (supra)
in which reliance was placed on Srichand P. Hinduja Versus
State through CBI, New Delhi 2002(3) RCR (Criminal) 186
(SC), Arun Kapoor vs. State of Haryana 2004(4) RCR
(Criminal) 594 (P&H), Brij Bhushan Singal vs. Central
Bureau of Investigation 1994(3) RCR (Crl.) 498 (P&H),
Anjal Kumar @ Angel Kumar vs. State of Punjab 2010(1)
RCR (Criminal) 201 and Naginder Singh Rana vs. State of
Punjab 2004(3) RCR (Criminal) 912 and on the basis of the
said authoritative pronouncements of the Hon'ble Apex
Court and this Court, it can be safely concluded that in
normal circumstances, permission can be granted to the
petitioner to travel abroad being his fundamental right to
travel abroad, but the conditions are to be imposed for
regulating and securing his presence during the trial.
6. Keeping in view the said ratio of the aforesaid

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authority of Paramjit Kaur vs. State of Punjab's case

(supra), which is applicable to the facts of the present case,
in which also the permission has been sought by the
petitioner to travel abroad for a short duration for attending
the marriage ceremony of his childhood friends and the
supporting documents have also been placed on record, I
grant permission to petitioner Utkarsh Pahwa to travel
abroad for attending the marriage ceremony of his
childhood friends Jay at Bangkok during the period from
25.1.2019 to 28.1.2019 and marriage ceremony of Medha
Alhuwalia at Turkey from 08.2.2019 to 09.2.2019 subject to
following conditions:-
(i) that the petitioner shall not seek extension of
the period of his stay abroad at any ground
whatsoever except in case of medical emergency and
shall return to India from 1st trip by 29.1.2019 and by
10.2.2019 from the second trip.
(ii) that the petitioner shall not visit any other
country except Thailand and Turkey.
(iii) that the petitioner shall not in any manner
tamper with the evidence of the prosecution;
(iv) that the petitioner shall submit copy of his
passport before visit and on return, within one week
shall produce his passport in the court for placing on
record its copy in respect of his said visit record;
(v) that the petitioner shall execute FDR/bank
guarantee to the tune of Rs. 40 Lacs. This amount
shall be returned to the petitioner when he will come
back from his trips.
7. Resultantly, petition is allowed in the above terms
and the impugned order dated 2.1.2019 is set aside.
8. Since the main case has been decided, the pending

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CM, if any, also stands disposed of.”

The Hon’ble Supreme Court of India in judgment titled

Satish Chandra Verma Vs. Union of India and others, reported as 2019

(2) SCT 741, has also held that the right to travel abroad is an important

basic human right and the said right also extends to private life- marriage,

family and friendship. Relevant portion of the said judgment is

reproduced hereinbelow: -

“5. The right to travel abroad is an important basic human

right for it nourishes independent and self-determining
creative character of the individual, not only by extending
his freedoms of action, but also by extending the scope of his
experience. The right also extends to private life; marriage,
family and friendship are humanities which can be rarely
affected through refusal of freedom to go abroad and clearly
show that this freedom is a genuine human right. (See Mrs.
Maneka Gandhi v. Union of India and Another (1978) 1 SCC
248). In the said judgment, there is a reference to the words
of Justice Douglas in Kent v. Dulles 357 US 116 which are
as follows:
“Freedom to go abroad has much social value and
represents the basic human right of great significance.”

Although, in the said case, there were no criminal

proceedings pending against the appellant therein and the denial to go

abroad was on account of lack of vigilance credence but the aforesaid

observation of the Hon’ble Supreme Court is very relevant as it

highlighted the right to freedom to travel. In the present case, although,

the pleas raised by the petitioner before the Courts below, have been

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considered to be sufficient by this Court so as to entitle the petitioner to

travel abroad, but it is always open to this Court while exercising its

powers under Section 482 of Cr.P.C. to consider any additional/ancillary

plea, and thus, in this case, the same may be considered so as to grant

permission to the petitioner to travel abroad. The additional plea raised

with respect to the petitioner being a permanent resident of USA since

02.04.2011 which is to expire on 06.04.2023, as is apparent from

Annexure P-6, as also on the basis of the relevant Chapter of the US

Citizenship and Immigration Services, as also the judgment of Hon’ble

the Supreme Court in Parvez Noordin Lokhandwalla’s case (Supra), goes

to show that non-grant of the said permission to the petitioner to go

abroad could cause prejudice to the right of the petitioner with respect to

his permanent residency. Thus, the said issue is also decided in favour of

the petitioner.

ISSUE NO.6: In case, permission is to be granted, then the conditions,

which are required to be imposed on the petitioner so that the petitioner
whould not flee from the course of justice.

Learned Senior Counsel for the complainant as well as

learned counsel for the State have very vehemently stated that in the

present case, the primary ground for opposing the application for

permission to go abroad is that it is certain that the petitioner would not

come back to India, in case permission is granted to the petitioner to go

abroad. On the said aspect, it has been highlighted that the wife and son

of the petitioner are citizens of America and the petitioner is a permanent

resident of U.S. since 02.04.2011 and that the petitioner does not have

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any immovable property in India. It is further highlighted that, as is

apparent, there is no substantial amount in the bank accounts of the

petitioner and since there are several cases pending against the petitioner,

there is every possibility that the petitioner has filed the present

application just to flee from the country, never to come back. The

complainant has stated that an amount of Rs.1,85,50,286/- is due to the

complainant and there are 41 cases pending against the petitioner and the

company in question i.e., M/s Indsur Global Limited under Section 138 of

the Act of 1881 in various Courtsin Mumbai, Ahmedabad, Gurugram and

Rewari. It is submitted that the value of dispute in the said cases is Rs.25

crores. Reference has been made to Annexure C1, wherein the details of

the said 41 cases are given. Para 2 of the said Annexure C1 is reproduced

hereinbelow: -

“2. That the applicant, with the leave of this Hon'ble

Court, prays to place on record additional facts regarding
41 criminal cases pending against the petitioner and the
petitioner's company, as listed in the table below:-
Sr. Court Case type/Case Title as N.D.O.H.
No. No.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/2300038/2020 Services Pvt. Ltd. Vs.
U/s 138 RW 142 Indsur Global Ltd. &
1 NI Act Anr. 05/03/22
CMM, Esplanade Ss Cases Siemens Financial 29.10.2021
Court Mumbai SS/2300855/2021 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
2 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/2300036/2020 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
3 NI Act Anr. 04/10/21

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CMM, Esplanade Ss Cases Siemens Financial 13.12.2021

Court Mumbai SS/2301893/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
4 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial 28.09.2021
Court Mumbai SS/2301954/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
5 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial 24.02.2022
Court Mumbai SS/2301221/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
6 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/2300890/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
7 NI Act Anr. 04/01/22
CMM, Esplanade Ss Cases Siemens Financial 16.12.2021
Court Mumbai SS/2301924/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
8 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial 21.01.2022
Court Mumbai SS/2300870/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
9 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial 21.01.2022
Court Mumbai SS/2300477/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
10 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial 25.11.2021
Court Mumbai SS/2300550/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
11 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/2300103/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
12 NI Act Anr. 01/02/22
CMM, Esplanade Ss Cases Siemens Financial 15.12.2021
Court Mumbai SS/2300148/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
13 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial 20.12.2021
Court Mumbai SS/2300041/2019 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
14 NI Act Anr.

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CMM, Esplanade Ss Cases Siemens Financial 13.01.2022

Court Mumbai SS/2302874/2018 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
15 NI Act Anr.
CMM, Esplanade Misc Cases Siemens Financial 19.01.2022
Court Mumbai MISC/230247/20 Services Pvt. Ltd. Vs.
19 U/s 138 RW Indsur Global Ltd. &
16 141 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial 28.09.2021
Court Mumbai SS/2302520/2018 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
17 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/2302586/2018 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
18 NI Act Anr. 07/05/22
CMM, Esplanade Ss Cases Siemens Financial 17.02.2022
Court Mumbai SS/2302745/2018 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
19 NI Act Anr.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/2293/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
20 Act Anr. 07/03/22
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/1797/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
21 Act Anr. 10/01/22
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/2121/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
22 Act Anr. 01/01/22
CMM, Esplanade Ss Cases Siemens Financial 29.11.2021
Court Mumbai SS/1470/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
23 Act Anr.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/961/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
24 Act Anr. 07/04/22
CMM, Esplanade Ss Cases Siemens Financial 14.02.2022
Court Mumbai SS/2057/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
25 Act Anr.

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CMM, Esplanade Ss Cases Siemens Financial 22.11.2021

Court Mumbai SS/357/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
26 Act Anr.
CMM, Esplanade Ss Cases Siemens Financial
Court Mumbai SS/1137/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
27 Act Anr. 04/03/22
CMM, Esplanade Ss Cases Siemens Financial 29.11.2021
Court Mumbai SS/1468/2018 U/s Services Pvt. Ltd. Vs.
138 RW 141 NI Indsur Global Ltd. &
28 Act Anr.
CMM, Esplanade Misc Cases Siemens Financial 30.12.2021
Court Mumbai MISC/277/2018 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
29 NI Act Anr.
CMM, Esplanade Misc Cases Siemens Financial
Court Mumbai MISC/1123/2018 Services Pvt. Ltd. Vs.
U/s 138 RW 141 Indsur Global Ltd. &
30 NI Act Anr. 11/04/22
CMM, Esplanade Ss Cases Schenker India Pvt. Ltd.
Court Mumbai SS/2239/2017 U/s Vs. Indsur Global Ltd. &
138 RW 141 NI Anr.
31 Act 07/12/21
MM Court, CC/96416/2018 Crystal Foundary 21.10.2021
Ahmedabad U/s 138 RW 142 Falaksis Pvt. Ltd. Vs.
N.I. Act Indsur Global Ltd. &
32 Anr.
AMM, SS/14105/2018 Ashapura International 25.10.2021
Ballardpier U/s 138 N.I. Act. Ltd. Vs. Indsur Global
33 Mumbai Ltd. & Anr.
JMFC/Gurugram NACT 03/2018 TCI Freight Vs. Indsur
34 NI Act Global Ltd. & Anr. 04/01/22
AMM Bandra, Ss Cases SS SBI Global Factors Ltd.
Mumbai 1253/2018 U/s Vs. Indsur Global Ltd. &
138 RW 141 NI Anr.
35 Act 11/01/22
MM Court, CC/96439/2018 Crystal Foundary 21.10.2021
Ahmedabad U/s 138 RW 142 Falaksis Pvt. Ltd. Vs.
NI Act Indsur Global Ltd. &
36 Anr.
CMM, Esplanade Ss Cases Schenker India Pvt. Ltd.
Court Mumbai SS/2239/2017 U/s Vs. Indsur Global Ltd. &
138 RW 141 NI Anr.
37 Act 07/12/21

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MM Court, CC/96427/2018 Crystal Foundary 21.10.2021

Ahmedabad U/s 138 RW 142 Falaksis Pvt. Ltd. Vs.
NI Act Indsur Global Ltd. &
38 Anr.
CJM, Rewari NI Act/2733/2019 M/s Yashu Iron Pvt. Ltd. 28.10.2021
U/s 138 RW 142 Vs. Indsur Global Ltd. &
39 NI Act Anr.
CJM, Rewari NI Act/2701/2019 M/s Yashu Iron Pvt. Ltd. 28.10.2021
U/s 138 RW 142 Vs. Indsur Global Ltd. &
40 NI Act Anr.
CJM, Rewari NI Act/140/2020 M/s Yashu Iron Pvt. Ltd. 28.10.2021
U/s 138 RW 142 Vs. Indsur Global Ltd. &
41 NI Act Anr.

It has been further submitted that the Hon’ble Supreme Court

in Srichand P. Hinduja’s case (Supra), had imposed conditions to the

effect that the petitioners therein were directed to execute a bond for a

sum of Rs.15 crores each with a bank guarantee for the like amount to the

satisfaction of the Special Judge in addition to the other conditions.

Relevant portion of para 3 and para 7 of the said judgment are reproduced

hereinbelow: -

“3. For this purpose it was pointed out to the High

Court, that if the accused are permitted to go abroad, it
would affect the smooth progress of the trial and there
are reasonable grounds to believe that they would not
return back to India to face the trial. It is also pointed
out that the appellants were Indian Nationals at the time
of registration of the FIR and thereafter they have
acquired British and Swiss Nationalities.
Xxx xxx xxx
7. Considering the facts and circumstances, for the time
being as an interim measure, the appellants, namely,
Mr. Srichand P. Hinduja (in Crl. Appeal No...... of 2001

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@ SLP (Crl) 1828/2001) and Mr. Gopichand P. Hinduja

(in Crl. Appeal No..... of 2001 @ SLP (Crl) No. 1829 of
2001) are permitted to go abroad on the following
conditions:
1. Both the appellants would execute a bond
for a sum of Rs. 15 crores (rupees fifteen crores)
each with a bank guarantee for the like amount
to the satisfaction of the Special Judge;
2. On their behalf counsel will remain present
on the date of posting of the matter and would
not ask for adjournment on the ground that the
appellants are not present in India.
3. The appellants will remain present before
the Special Judge as and when their presence is
needed in the case.
4. If there is any violation of the aforesaid
conditions, it would be open to the Special Judge
to pass appropriate orders for cancellation of
bail of the appellants.
8. In any case, this order would not adversely
affect further proceedings in the trial Court and
the Court will deal with the matter without being
influenced in any way by this order or any
observations made in the order passed by the
High Court.
9. This interim measure is upto 20th August,
2001 and the matter be listed before this Court
on 7th August, 2001 for further hearing and
directions.

Ordered accordingly.”

On the other hand, learned Senior Counsel for the petitioner

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has relied upon judgment of the Coordinate Bench of this Court in

Paramjit Kaur’s case (Supra), wherein the petitioner was permitted to go

abroad on the execution of only one personal bond in a sum of

Rs.5,00,000/- with an undertaking that she would report back on or

before 15.02.2019. Further, reference has also been made to Surender

Singla’s case (Supra) to state that in the said case, permission was granted

subject to deposit of only Rs.2,00,000/- with the trial Court.

This Court has considered the arguments of the counsel for

the parties on the present issue, which is of utmost importance. The

amount due to the complainant is stated to be Rs.1,85,50,286/-. This

Court is aware of the fact that it is a debatable issue as to whether the

petitioner would be personally liable to pay the said amount or not or if it

is the company in question which has to pay the said amount. There are

41 cases under Section 138 of the Act of 1881 stated to be pending

against the petitioner and the company M/s Indsur Global Limited and the

amount involved in the same is stated to be Rs.25 crores by the learned

Senior Counsel for the complainant. Although, learned Senior Counsel

for the complainant has not been able to produce the complaints filed

under Section 138 of the Act of 1881, which would have enabled this

Court to come to a prima facie conclusion as to what is the total amount

due and to what extent is the liability of the petitioner, however, on the

other hand, even the learned Senior Counsel for the petitioner has not

produced anything to affirmatively controvert the fact that the petitioner

is an accused in the said 41 cases. The company in which the petitioner

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was on the Board of Directors, can be seen to be accused No.1 in the said

complaints under Section 138 of the Act of 1881. There are other parties

who have been made accused in the said cases, as is apparent from the

title of the cases. In case, the petitioner is not involved in the said cases,

even then it was incumbent upon the petitioner to produce the documents

substantiating the same. Learned Senior Counsel for the complainant has

referred to the order dated 28.07.2021 vide which non-bailable warrants

had been issued to accused Nos.2 to 4 in complaint No.3 of 2018 titled as

TCI Fright Vs. Indsur Global (Annexure C-2), to show that there are three

more accused in Complaint No.3 of 2018, in addition to the Company in

question, which are stated to be the petitioner, his mother and his father.

While rebutting the said aspect, the Learned Senior Counsel for the

Petitioner has referred to the order dated 13.10.2021 (which has been

reproduced hereinabove), to state that the matter has been compromised

but has not disputed the fact that the Petitioner was one of the three

accused in the said complaint. Thus, while imposing conditions, this

Court cannot be oblivious of the fact that there are 41 cases under Section

138 of the Act of 1881, as has been detailed hereinabove. In Srichand P.

Hinduja’s case (Supra), a bond for a sum of Rs.15 crores each with a bank

guarantee for the like amount to the satisfaction of the Special Judge was

sought from the appellants who were granted the permission to go abroad

on the said conditions. The said conditions were imposed with respect to

a case in which the dispute was stated be involving an amount of Rs.1437

crores and the alleged kickback was of Rs.64 crores. Thus, the said

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conditions cannot ipso facto be applied to the present case. Reliance

placed by the learned Senior counsel for the petitioner on Paramjit Kaur’s

case (Supra) to contend that only a personal bond amounting to

Rs.5,00,000/- was sought from the Petitioner in the said case, does not

further the case of the petitioner inasmuch as in the said case, there was

no argument raised that the petitioner therein had several cases against

her nor any outstanding amount had been stated with respect to which

fraud or cheating at the hands of the petitioner therein could be alleged,

nor it had been stated that the petitioner therein did not have any

immovable property in India. In fact, in the said case, the petitioner

therein had earlier gone to Canada and had returned to India in

accordance with the permission granted and the conditions imposed and

even the proceedings in the trial Court as well as in the civil litigation had

been stayed. In fact, in the case of Brij Bhushan Singal, which was

considered in the said case, the security sought from the accused therein

was for a sum of Rs.25 lacs. Even in Surender Singla’s case (Supra),

relied upon by the learned Senior Counsel for the petitioner, neither there

were any details of the amount with respect to which the Petitioner had

allegedly committed cheating or fraud, nor there were any details of any

case against the petitioner, rather it had come out that the petitioner and

his family members had property in India and that earlier when the trial

Court had granted him the permission to travel abroad, he had returned to

India within the stipulated time. In the judgment passed by the

Coordinate Bench of this Court in Utkarsh Pahwa’s case (Supra), the

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relevant portion of which has been reproduced hereinabove, the petitioner

therein had been directed to execute FDR/bank guarantee to the tune of

Rs.40 lacs even in a case where it was argued by the petitioner that he had

sufficient liquid assets and immovable property in India and although,

there were no serious objections raised with respect to the financial status

of the petitioner therein. Further, another Coordinate Bench of this Court

in Paramjit Singh and others Vs. State of Punjab, CRM-3400-2011,

decided on 23.02.2011 had granted permission to the petitioner therein to

go abroad while imposing conditions including the condition/undertaking

to the effect that in the event of failure to return from abroad, he would

have no objection if the land measuring 64 kanals 9 marlas, which was

owned by the petitioner therein, would be attached and disposed of in

accordance with law. Relevant portion of the said judgment is reproduced

hereinbelow:-

“xxxxxx
Learned counsel for the appellant-applicant has also stated
that the land measuring 64 Kanals which is owned by the
appellant-applicant is of substantial value and he is ready to
keep the same as security for his return from England after a
period of two months.
Xxx xxx
(i) That the appellant-applicant shall execute a personal
bond and surety in the sum of Rs.5 lacs to the satisfaction of
the learned Chief Judicial Magistrate, Jalandhar with an
undertaking to appear in Court soon after the expiry of two
months from the date he shall leave the country. (ii) The
appellant-applicant shall bind himself that he shall return

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from abroad and appear before the learned Chief Judicial

Magistrate, Jalandhar. The appellant-applicant shall furnish
one surety in the sum of Rs.5 lacs to the satisfaction of the
learned Chief Judicial Magistrate, Jalandhar for his visit
abroad and then to appear before the said Court. (iii) The
appellant-applicant shall file an undertaking that in the
event of his failure to return from abroad, he would have
no objection if the land measuring 64 Kanals 9 Marlas as
mentioned in the Jambandi for the year 2004-05 (Annexure
P5) is attached and disposed of in accordance with law. On
return from abroad, the conditions as imposed upon the
appellant-applicant for going abroad will become
inoperative and the appellant-applicant shall continue to be
bound by the old bonds and sureties that have been furnished
by him while being released on bail on 30.11.2010.”

In another case, titled Dr. Mangal Singh Sandhu Vs. State

of Punjab, reported as2018(2) Law Herald 1077, the Coordinate Bench

of this Court, while allowing the petitioner to go abroad, directed the

petitioner therein to execute a personal bond and surety in the sum of

Rs.50 lacs each to the satisfaction of the trial Court. Relevant portion of

the said order is reproduced hereinbelow: -

“16. In the totality of the circumstances, prayer of the

petitioner seeking permission to proceed to Canada is
accepted to the extent of according permission to proceed
abroad upto 28.04.2018.
17. Petitioner shall execute a personal bond and a
surety in the sum of Rs.50 lacs each to the satisfaction of
the trial Court, with an undertaking to appear immediately
after the expiry of the period that he has been permitted to
travel abroad i.e. after 28.04.2018.

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18. Pursuant to the view taken by this Court, the order

dated 01.02.2018 passed by the trial Court at Annexure P-8
is set aside.”

This Court is required to draw a balance between the right of

the petitioner to travel abroad and also right of the prosecution to duly

prosecute the petitioner so as to prevent him from evading the trial. From

perusal of the various judgments passed by the Hon’ble Supreme Court of

India as well as this Court, it is clear that paramount consideration is

given to the conditions imposed upon the persons who have been granted

the permission to go abroad, so as to ensure that they do not flee from

justice.

In the present case, keeping in view the facts and

circumstances, moreso the fact that the petitioner does not own any

property in his own name in India and the wife and son of the petitioner

also reside abroad and also keeping in view the offer made by learned

Senior Counsel for the petitioner so as to prove his bonafide, the

petitioner is allowed to go abroad for a period of one month subject to the

following conditions: -

1) The petitioner shall furnish two sureties in the sum of Rs.40 lacs

each to the satisfaction of the concerned trial Court/Duty

Magistrate for ensuring his return from abroad and appearance

before the Court.

2) After the acceptance of the surety, the petitioner would indicate the

30 day period for which the petitioner wishes to go abroad, to the

concerned trial Court/Duty Magistrate. The said period of one

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month should fall within the period of two months starting from the

date of present order. The concerned trial Court/Duty Magistrate

shall permit the petitioner to go abroad for a period of one month as

indicated by the petitioner in case, the said period of one month is

falling within two months from the date of this order and in case,

the sureties so given are to the satisfaction of the concerned

Magistrate/trial Court and in case, the petitioner also complies with

the other conditions as mentioned in the present order.

3) The petitioner shall give an undertaking that the petitioner shall

return from abroad on the date so specified and appear before the

concerned trial Court/Duty Magistrate for the purpose of trial and

would not seek any extension with respect to the same.

4) Upon the acceptance of the sureties and also upon giving the

undertaking, as directed aforesaid and after specifying the date of

return in the aforesaid manner, the passport of the petitioner shall

be released to him and he would be permitted to go abroad.

5) During the period of the petitioner being abroad, the personal

appearance of the petitioner shall be exempted and the petitioner

shall be permitted to appear through his counsel. However, the

petitioner would not be entitled to raise the objection that the

evidence had been led in his absence.

6) The petitioner shall not dispute his identity.

7) The petitioner shall not in any manner tamper with the evidence of

the prosecution.

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8) The petitioner shall not visit any other country except USA, during

the said period for which the permission to travel abroad has been

granted by this Court.

9) The petitioner on returning, within five days from the date of

return, shall produce his passport before the concerned trial

Court/Duty Magistrate.

10) On return, the petitioner shall continue to be bound by the old

conditions which were imposed while releasing the petitioner on

bail and the conditions imposed for his going abroad, as have been

detailed in this order, shall cease to operate.

Accordingly, Issue No. 6 stands decided, and the present

petition is disposed of in the abovesaid terms.

All the pending miscellaneous applications, if any, shall also

stand disposed of in view of the abovesaid judgment.

09.11.2021 (VIKAS BAHL)

Pawan JUDGE

Whether speaking/reasoned:- Yes/No

Whether reportable:- Yes/No

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