A.Y. Nasser vs State by D.S.P. of C.B.I. - S.C.B., Madras

T.S. Arunachalam, J.—This petition has been riled u/s 438, Cr.P.C. for the release of the petitioner on bail, in the event of his arrest in R.C.

No. 19 of 1987 on the file of C.B.I. - S.C.B., Madras, in the interests of justice.

The averments in the petition, seeking bail, in the event of arrest, are as follows : The, petitioner, A, Y. Nasser, is the son of late A. R. Ahmed

Yaseen who was a reputed businessmen at Madras and was the Chairman and the Managing Director of about five private limited Companies.

After the death of A. M. Ahmed Yaseen on 4-7-1987. The petitioner succeeded him as the Chairman and the Managing Director of all the

Companies. Till the death of his father, the petitioner was taking part only in the activities of Jet Wings Travels (I) Ltd., and not in the other

Companies. According to the petitioner, in the last week of December, 1989, while he was in Hongkong in connection with his business activities,

he was informed by the family members that the D.S.P. of CBI, had searched his residential and office premises in connection with the investigation

in R.C. No. 19 of 1987. The petition states that R.C. No. 19 of 1987 relates to seizure of alleged fake special bearer bonds, in a suit case which

had arrived at Madras from Singapore on 9-5-1985. The crime has been registered against (1) Sashikumar (2) Elangovan and (3) Philips

Selvester Elangovan is stated to be an employee of M/s. Orient Travels, Madras, with which the petitioner has nothing to do. However, Philips

Selvester is an employee of Jet Wings Travels (I) Ltd., Philips Selvester was arrested in 1985 by the Customs Officials and after preliminary

investigation, the case was transferred to the C.B.I. The C.B.I. arrested Philips Selvester in or about April, 1989 and released him on 14-4-1989.

After a short lull, Philips Selvester was again summoned to the Office of the C.B.I. and thoroughly interrogated. He and Elangovan were

threatened. The petitioner, therefore, apprehends arrest in the guise of interrogation.

Mr. K. A. Panchapagesan, the learned counsel appearing for the petitioner contended that the petitioner had nothing to do with the suit case

intercepted by the Customs authorities on 9-5-1985, since the petitioner is neither the consigner nor the consignee. The consignee appear to be

one Sashi Kumar, who is shown as accused No. 1 in R.C. No. 19 of 1987. The respondent has searched his residential premises and office

without any basis. If the petitioner is allowed to be arrested, he would be put to great shame and is reputation in the business circle, would be

seriously affected.

It was also contended by the learned counsel for the petitioner, that the crime has been registered for offence under sections 120B, 489A and

C. I.P.C. The offence u/s 489C, I.P.C. is bailable. Section 489-A, I.P.C. relates to counterfeiting currency notes or bank notes. This case does

not relate to counterfeiting currency notes. The bearer bonds, which are alleged to be fake and forged bonds, cannot fall within the category of

bank notes and therefore, the ingredients of the offences under which the crime had been registered not having been prima made out, there can be

no impediment to release the petitioner on bail, in the event of his arrest. He has brought to my notice. Section 24 of the Reserve Bank of India

Act, 1934 read with Section 22 of the Act, to show that bank notes solely of right issued by the Reserve Bank, shall be of the denominational

values, of two rupees, five rupees, ten rupees, twenty rupees, fifty rupees, one hundred rupees, five hundred rupees, one thousand rupees, five

thousand rupees and ten thousand rupees or of such other denominational values, not exceeding ten thousand rupees, as the Central Government

may, on the recommendation, of the Central Board specify in this behalf. He would also refer to Section 269TT of the Income Tax Act, 1981,

relating to mode of repayment of certain deposits. This section reads that no company including a banking company, co-operative society or firm

shall repay to any person any deposit otherwise than by an account payee cheque or account payee bank draft, where the amount of the deposit,

or where the amount of the deposit is to be repaid together with any interest, the aggregate of the amount of the deposit and such interest, is ten

thousand rupees or more. Therefore, he would contend that the person in whose name the bearer bonds stand would be able to obtain payment

only by an account payee cheque or on account payee bank draft and therefore, the identity of the payee as well as the person from whom the

payee had not obtained the bearer bonds cannot be disputed with regard to their identity. He would also refer to the dictionary meaning of ''bank

note'' to impress that the word ''bank note'' would mean a promissory note or engagement for payment of money to the bearer on demand issued

by a person carrying on business of banking.

Opposing the grant of anticipatory bail, Mr. S. Sriramulu, the learned counsel for the respondent contended that though the crime had been

registered for offences under sections 120-B and 489A and 489C. I.P.C. investigation has disclosed offences of forgery of bearer bonds and

cheating. The value of the bearer bonds involved, is about sixty crores of rupees, which appear to have been printed outside India and forwarded

to this country, for being sold. This transaction is bound to seriously affect the economy of the country. There is prima facie material available to

show that, when the bearer bonds were dispatched from Singapore, it was Philips Selvester, who had assumed the fake names of Sashi Kumar or

Ahmed and the petitioner had accompanied the said Sashi Kumar and Ahmed and had also issued cheques in respect of the concerned invoices to

facilitate the dispatch of forged bearer bonds to India. By his photograph, mixed with several other photographs, the petitioner has been identified

by witnesses outside India as the person involved in the forged bond transaction and its dispatch. The serious attempts to trace Sashi Kumar, who

is consignee in India of the bearer bonds, disclosed that the address given in Kerala State was a bogus address and correspondence to Sashi

Kumar to that address had been returned with an endorsement that no such person was available. The third accused, Philips Selvester is

admittedly an employee of the petitioner, and if the petitioner were to be released on bail, in the event of arrest, the investigation in this serious

crime will be hampered. Therefore, a strenuous plea is made on behalf of the prosecution, that the petitioner will not be entitled to the discretionary

order of release on bail, in the event of his arrest.

The relevant considerations governing the court''s decision in the grant of anticipatory ball had been the subject matter of a few pronouncements

by the apex Court. The consideration u/s 438, Cr.P.C. is materially different from those when an application for bail is made by a person arrested

in the course of investigation, as also by a person, who has been convicted and his appeal is pending before the higher Court, where ball is sought

during the pendency of the appeal. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court must be cautious

and circumspect is exercising such power of a discretionary nature. In a serious crime of the nature alleged by the prosecution, in this case, very

compelling circumstances must be made out for granting bail to the petitioner and that too when the investigation is stated to be in progress.

The prosecution has placed before me the photograph of the petitions, who has been identified as the person who had accompanied Sashi

Kumar and issued cheques in respect of certain invoices. On my direction, the learned counsel for the petitioner, produced the photographs of the

petitioner A. Y. Nasser and I am prima facie satisfied, that the person identified by the witnesses outside India as the person who had

accompanied Sashi Kumar, was alone other than the petitioner. Therefore, the role played by the petitioner outside India will have to be

investigated. One cannot overlook the nature and seriousness of the offence, the character of the evidence as well as the peculiar circumstances of

the petitioner having been responsible according to the prosecution, in forwarding forged bearer bonds from abroad to India. In the background

the apprehension of the prosecution of the possible hampering of the investigation, in the event of the release of the petitioner on bail, on his arrest,

cannot be brushed aside, as not being a relevant consideration. The larger interest of the public and the economy of the country cannot also be lost

sight of. The petitioner''s counsel urged that if the dates of the petitioners alleged movement outside India were disclosed, he would satisfy this

Court, that the petitioner could not have been present there. The stage is not only premature, but it also appears that an attempt is being made, for

a possible alibi.

I find an explanation attached to Section 489A, I.P.C. The explanation reads as follows:-

For the purpose of this section and of Sections 489B. 489C, 469D and 489E the expression ""bank-note"" means a promissory note or engagement

for the payment of money to bearer on demand issued by any person carrying on the business of banking in any part of the world, or issued by or

under the authority of any State or Sovereign Power, and intended to be used as equivalent to, or as a substitute for money.

It will be too early to go into the meaning of the expression ''bank-note'' and its applicability to the bearer bonds, which are the subject matter of

this prosecution, in the light of the explanation to the section. However, even if bank note will not take in its fold the bearer bond, investigation has

disclosed offences under sections 468, 471, 420, I.P.C. as well. We cannot go by the label in the first information report regarding the nature of

offences, but by substance brought on record through investigation about the nature of the offences revealed on further probe. The investigation

reveals tat the bearer bonds, which are the subject-matter of this prosecution, are counterfeit bonds. The special bearer bonds themselves do not

contain the names of the payee and any person who produces the bond will be entitled to get the proceeds thereof. It is true as pointed by the

learned counsel for the petitioner, that the payment will be by account payee cheques or drafts. This cannot solve the problem for the offenders,

according to the prosecution, are those who have forged the special bearer bonds and involved themselves in the sale of such bonds to innocent

purchasers, not only the purchasers are cheated, but also the economy of the country is jeopardised. The purpose of issuing special bearer bonds

was to bring out the black money, and canalise it for productive purpose since it had become a serious threat to National Economy. I am satisfied

that this is not a case where the petitioner could be released on bail, in the event of his arrest. This petition is dismissed.

Petition dismissed.