CRIMINAL APPEAL No. 383 OF 2001(S.J.) Appeals against the judgment and order of conviction and sentence dated 10.10.2001 passed in Special Case No. 57 of 1986 arising out of R.C. No. 24 of 1986 by Sri Brij Nandan Sahay, Special Judge C.B.I., North Bihar, Patna. GOPI NATH BHOWMIK, Son of Late Girindra Nath Bhowmik, Resident of 76/C Rai Mohan Banerjee Road, P.S.-Baranagar Calucutta-700035 at present residing at Mohalla Durgasthan, Colony No. 1, P.S.-Katihar, District-Katihar. ………. (Appellant) Versus THE STATE OF BIHAR ………….. (Respondent) With CR. APP No. 406 OF 2001 (S.J.) JAI PRAKASH GOEL, Son of Sri Purushottam Lal Goel, Resident of V.I.P. Road Bagurhati Police Station Bagurhati Calcutta, West Bengal. …….. (Appellant) Versus THE STATE OF BIHAR ……….(Respondent) ----------- P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *************** Anjana Prakash, J. 1. The appellant, Gopi Nath Bhowmik of Cr. App. No. 383 of 2001 (S.J.) has been convicted for the offences under Section 418 of the Indian Penal Code and sentenced to RI for one year and under Sections 420 and 477 (A) of - 2 - the Indian Penal Code and sentenced to RI for two years and further under Section 5(i)(d) punishable under Section 5(ii) of the Prevention of Corruption Act, 1947 and sentenced to two years RI and the appellant, Jai Prakash Goel of Cr. App. No. 406 of 2001 (S.J.) has been convicted for the offences under Sections 120B and 420 of the Indian Penal Code and sentenced to RI for two years in Special case No. 57/1986 arising out of RC No. 24 of 1986 by a judgment dated 10.10.2001 by the Special Judge, CBI, North Bihar, Patna. 2. The case of the prosecution is that the appellant, Gopi Nath Bhowmik of Cr. App. No. 383 of 2001 as Branch Manager of Central Bank of India, Jalalgarh Branch entered into conspiracy with appellant Jai Prakash Goel and acquitted Parmeshwari Devi Goel partners of M/s Bhagwati Trading Company and misappropriated Rs. 1,51,399/- by disbursing cash credit loan to the non-existent firm against prescribed norms. The further allegation is that the appellant, Gopi Nath Bhowmik entertained - 3 - application of M/s Bhagwati Trading Company for wholesale trade in apple, onion, potato and orange etc. and without inquiring about its existence and financial status forwarded its loan application with his recommendation to the regional office of the bank even though the firm in question did not fulfil the conditions which were required and disbursed the loan amount of Rs. 1,51,399/- to the accused firm without complying with the directions specified by the Regional Office. 3. The prosecution to substantiate its charge examined 12 witnesses out of whom PW 1, A.K. Jha was the Vigilance Officer, Central Bank of India who stated about the procedure that a Branch Manager before giving cash credit was to verify the worthiness of the loanee and in a sweeping manner stated that the appellant had wrongly disbursed the loan to the loanee in the present case without adhering to the prescribed procedure. However, he conceded that he had not done any inquiry himself nor was he the Vigilance Officer in the present case. - 4 - In cross-examination he conceded that he was not aware as to whether the appellant, Gopi Nath Bhowmik as Branch Manager had followed the formalities or not and when he stated that the Rules had not been followed he meant the rules of the bank which is contained in the Circulars which however have not been brought on record. Importantly, he has stated that if an officiating Branch Manager receives the proposal for loan up to four lakhs he was to transmit the same to the regional office for sanction and he was not aware as to whether the cash credit granted to the loanee had been sanctioned with or without hypothecation. PW 2, B.K. Kulkarni is a formal witness merely on the point of grant of sanction for prosecution of the present appellant. PW 3, Md. Ajimuddin was the Branch Manager who took charge from appellant, Gopi Nath Bhowmik who has testified on the details of the application filed by the loanee for cash credit facility. He has specifically stated that once the appellant, Gopi Nath Bhowmik had received the application of the loanee, M/s - 5 - Bhagwati Trading Company he forwarded the same with his recommendation to the Purnia District Office and it was the Divisional Manager, P.C. Rawat who sanctioned the loan of four lakhs. He further stated that when he went to the site of Bhagwati Trading Company on 01.01.1985 he did not find existence of any stock so he sent a report about the same to the Divisional Office at Purnia on 02.01.1985. He specifically stated in his cross-examination that the Branch Manager had no powers to sanction loan and all processing have been done at the Divisional Office and the sanction advice had also been sent from the Divisional Office. His further information was that loanee had deposited Rs. 1,51, 399/- by May 1987. 4. PW 4, Bibhuti Nath Jha was the Agriculture Finance Officer in the bank and has stated that the Branch Manager had the power to grant cash credit advance and the appellant, Gopi Nath Bhowmik had done so to Bhagwati Trading Company. Further, it was the appellant, Gopi Nath Bhowmik who is said to have verified - 6 - and recommended cash credit loan of Bhagwati Trading Company and after having stated that the Branch Manager sends the loan proposal to the Divisional Office before sanctioning the loan he immediately recalls his statement and says that he did not know whether it was so. PW 5, Surendra Prasad was the Vigilance Officer, Central Bank of India and tendered. In cross- examination he said that he had done inquiry with regard to the complaint and it was the Divisional Office, Purnea through which the application for sanction for loan had been processed. 5. PW 6, Sumer Kumar Mukherjee was the Assistant Divisional Manager at the relevant time and proves the proposal of Bhagwati Trading Company for cash credit loan through Jalalgarh Branch and proves the same as Exhibits-3 and 3/1. He states that the sanction advice was in his writing which was on the endorsement of the Chief Manager, P.C. Rawat who was the Chief Officer and the advice was on his direction. He further categorically states that - 7 - a Branch Manager would have to comply with the orders of the Chief Manager. In cross- examination he has stated that he had no personal knowledge about Bhagwati Trading Company. PW 7, Pashupati Nath Gupta was the Accountant in the Divisional Office of the Central Bank of India but failed to identify the signature of the appellant, Gopi Nath Bhowmik on the proposal form on the ground that a long time had elapsed. 6. PW 8, P.N. Arora was the Chief Manager (Personnel) in Bank of India and has stated that a loanee normally takes loan from the bank falling within service area and he has merely stated about the formalities which are usually adhered to at the time of grant of loan but has not stated anything particular about the present case. In fact, he stated that he did not see the loan documents of the present case. However, he has stated that if any senior officer gives any orders to the branch office it has to be followed and in case the proposal from the branch office is not feasible the same can be rejected at the - 8 - higher level. 7. PW 10, Ganesh Thakur who was posted in Jalalgarh Branch has merely stated about the appellant having been posted at the branch. PW 11, C.N. Singh was also Branch Manager, Jalalgarh Branch and has proved the bank account of Bhagwati Trading Company and that on 07.05.1987 a sum of Rs. 1,51,399/- was deposited in account. PW 12, Daya Ram Singh Yadav was the Investigating Officer and has stated that the appellant, Gopi Nath Bhowmik had not followed certain conditions before sanctioning the loan amount but he was unable to say as to what was the condition which was not followed by the appellant. 8. Without losing sight of the charge against the appellants on a critical evaluation of the case one finds that the sole important question involved was whether the procedure in grant of loan to M/s Bhagwati Trading Company had been adhered to or not. However, on appraisal of the evidence adduced in the case one finds that the prosecution has failed to bring - 9 - any evidence as to (i) firstly what was the prescribed procedure in matters of grant of loan and (ii) secondly what were the lapses committed by the appellants. The fact that M/s Bhagwati Trading Company had made an application for loan and the appellant, Gopi Nath Bhowmik had forwarded is not denied by any party. However, merely having applied for loan and the same having been forwarded does not make out any offence whatsoever in absence of the prosecution bringing on record, the lapses committed in such processing of the loan application and disbursement of the same thereafter. 09. Moreover the prosecution witnesses have categorically stated that it was the Regional Office which had sanctioned the loan and once the same was done the appellant, Gopi Nath Bhowmik was duty-bound to follow the directions of the Regional Manager. Under the circumstances by no stretch of imagination can it be said that the appellant, Gopi Nath Bhowmik in any manner misused his official position in grant of loan. - 10 - 10. The prosecution has also failed to bring on record any evidence of any pecuniary advantage derived from this transaction and to the contrary there is positive evidence that the appellant, M/s Bhagwati Trading Company had deposited loan amount of Rs. 1,51,399/- in the Account. 11. In the result, both the appeals are allowed and the judgment of conviction and sentence is set aside. The appellants are discharged from the liability of their bail bonds. Patna High Court, Patna Dated 28 January, 2010. AFR/Vikash (Anjana Prakash, J.)