Delhi High Court Grants Bail To Lawyer Gautam Khaitan In 2008 Embraer Bribery Case

The Delhi High Court has recently granted bail to a lawyer Gautam Khaitan in connection with the 2008 Embraer bribery case being probed by the Central Bureau of Investigation (CBI)

While the case was registered in the year 2016 for various offences under Prevention of Corruption Act and Indian Penal Code, Khaitan was arrested only recently on August 25. His bail plea was rejected by a trial court on September 3.

Justice Jasmeet Singh granted bail to Khaitan observing that he was not named in the FIR and that the allegations against him were only based on statements of various witnesses and official communications.

An agreement was signed between Brazilian aircraft manufacturer Embraer and Director of Centre for Air Borne System of DRDO on July 3, 2008 for 210 million US dollars. Three fully modified Embraer aircrafts were purchased by DRDO.

The FIR was registered against officials of the Central Government's Ministry of Defence, Embraer, a Singapore based company M/s Interdev Pte. Ltd and a UK-based arms dealer Vipin Khanna.

It was alleged that a sum of 5.76 million US dollars was paid to Khanna through the Singapore based company in the year 2009 for allegedly influencing the officials of Ministry of Defence and DRDO.

The counsel appearing for CBI argued before the court that the Director of the Singapore based company had stated that the 2009 agreement for receiving commission of 5.76 million US dollars was vetted by Khaitan.

Furthermore, it was also argued that Khaitan was allegedly coordinating with the Director for execution of the agreement between the company and M/s KRBL DMCC Dubai for routing the funds to the tune of 3.27 million US dollars out of the total 5.76 million US dollars.

The agency also alleged that there was an official communication from Embraer to the investigating officer indicating Khaitan's role in the matter.

Khaitan was denied bail by trial court on September 3 on the ground that there was allegation of commission or kickback to the tune of 5.76 million US dollars and that the investigation was at nascent stage because of lack of cooperation from foreign governments. It was also observed that the magnitude of the offence was too huge.

Disagreeing with the said observations, the High Court granted bail to Khaitan saying that it is not the magnitude of the amount but the magnitude of the offence and the prima facie involvement of the accused "which is a consideration for allowing or rejecting a bail plea".

"In the present case, the case is of the year 2016. Almost more than 6 years have elapsed and it cannot, by any stretch of the imagination, be held that the investigation is at a nascent stage. Six years is a long period of time," the court observed.

The court also said that the case dates back to 2016 and almost more than 6 years have elapsed and it cannot, by any stretch of the imagination, be held that the investigation is at a nascent stage. "Six years is a long period of time," it said.

On the aspect of the magnitude of amount involved, Justice Singh said that the same cannot be a consideration to deny the right of liberty to an individual.

"In the present case, the applicant has not been named in the FIR. The allegations against the applicant are only based on statement of various witnesses and official communications. The respondent should have and could have verified the same and in case the same were found substantial, the charge-sheet should have been filed," Justice Singh added.

The court observed that the triple test for grant of bail is satisfied by Khaitan as he had travelled abroad 42 times after registration of the FIR and had returned on every occasion and that there was no document showing that he tampered with evidence or influenced witnesses.

"Thus, the applicant satisfies the triple test," the court said while granting bail.

Senior Advocates PV Kapur and Siddharth Luthra appeared for Gautam Khaitan. SPP Ripu Daman Bhardwaj represented CBI.

Title: GAUTAM KHAITAN v. CENTRAL BUREAU OF INVESTIGATION

Citation: 2022 LiveLaw (Del) 977

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