1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 71 OF 2008 Shri Theodoro Antonio Agnelo Salvador D'Souza, son of Shri Antonio Vincent D'Souza, 66 years old, married, retired, residing in House No.59, Calvim, Carona, Bardez, Goa. .. Petitioner. V e r s u s 1. Shri Somnath Zuwarkar, son of Datta Zuwarkar, resident of Shankawadi, Taleigao, Panaji, Goa. 2. Shri Chandrahas Salkar, son of Nanu Salkar, resident of Dhuler, Mapusa, Bardez, Goa. 3. Shri Sadanand Palekar, son of Laxman Palekar, residing in House No.405, Durgawadi, Taleigao, Panaji, Goa. 4. Fariz Khan (absconding), resident of 86-2, S.V. Road, Panaji, Goa. 2 5. Rauf Khan (absconding), resident of 86-2, S.V. Road, Panaji, Goa. 6. Shri Shashikant Naik, son of Narayan Naik, residing in House No.95/4, Gharkul Co-operative Housing Society, Baigenium, Old Goa, Tiswadi, Goa. 7. Shri Ladu Gaonkar, son of Raya Gaonkar, House No.690, Opp. Patrav Bar & Restaurant, Alto Porvorim, Porvorim, Bardez, Goa. 8. M/s. Khan Realtors Pvt. Ltd. C-3 Regal Chambers, Boca-de-Vaca, Panaji, Goa. 9. The State of Goa through the Public Prosecutor attached to the Bombay High Court at Goa, having office at Panaji, Goa. The above are regd. postal addresses of the parties. .. Respondents. Mr. Ranjit Satardekar, Advocate for the petitioner. Mr. S.G. Bhobe, Advocate for the respondent no.1. Mr.T.P. Pereira, Advocate for the respondent no.2. Mr Arun Bras De Sa, Advocate for the respondent nos. 3 & 7. Ms. W. Coutinho, Public Prosecutor for respondent no.9. 3 Coram:- N.A. BRITTO, J. Date:- 6 th August, 2009. ORAL JUDGMENT 1. The petitioner who claims to have inherited certain shares of The Goa State Co.operative Bank Ltd. calls in question the order dated 7.5.2008 of the Learned Special Judge, Panaji, by which the Learned Special Judge has allowed the application for withdrawal of prosecution filed by the Learned Special Public Prosecutor. 2. The withdrawal of the case pertains to the loan of Rs. 50 Lacs sanctioned in favour of M/s. Khan Realtors Pvt. Ltd., accused no.8 in Special Case No.6/03 of which the accused nos. 4 and 5 were the Directors and who are presently absconding. The said loan was sanctioned and a sum of Rs.25 Lacs was disbursed on or about 23.3.96 when admittedly accused no.1 Somnath Zuwarkar was not the Chairman of the said Bank; and who was the then Chairman at that time is one Ramchandra Mule who is also the present Chairman of the said Bank. 4 The accused no.1 Somnath Zuwarkar became the Chairman of the said Bank in the December 1998 and during his tenure the question of disbursement of remaining Rs. 25 Lacs was considered and what was in fact done during his tenure is that documents of the second property which was mortgaged were obtained and after deduction towards interest only a sum of Rs. 6 Lacs was disbrused to the said accused nos. 4, 5 and 8. 3. A complaint came to be filed by the said Ramchandra Mule on or about 9.5.2001 against accused no.1 and others which complaint was investigted and a charge sheet was filed under sections 406, 409, 420, 465, 468, 471 r/w 120-B IPC and section 13 (1)(c) and (d) and section 13 (2) of the Prevention of Corruption Act, 1988. 4. There is no dispute that the petitioner herein on or about 8.7.08 adressed a letter to the said bank to challenge the order dated 7.5.08 but no action has been taken by the said Bank till date and therefore the petitioner is before this Court challenging the said order dt. 7.5.08. The said Ramchandra Mule appears to have lost sight of the fact that the 5 loan to respondent no.8 was sanctioned during his tenure as the Chairman of the said bank and not only that half of the amount of the loan was disbursed during his tenure. Obviously, therefore, he would not be interested in challenging the order of the Learned Special Judge dated 7.5.08. At the relevant time accused no.2 was the Chief Executive Officer of the Bank and accused nos. 3 and 7 were the Managers of the said Bank. 5. The Superintendent of Police has filed an affidavit and in the said affidavit he has stated that at the time of sanctioning of the loan there was a property admeasuring 17,775 sq.mts. situated at Boma village in Ponda Taluka which was mortgaged to the said Bank and its value in the year 1996 was Rs.62 Lacs. He has also stated that the second property having chalta no.43/Part admeasuring 1365 sq.mts. was situated at Boca de Vaca at Panaji. As per the said affidavit the total sum recovered towards the said loan given to M/s. Khan Realtors Pvt. Ltd. is Rs.13,28,587/-. In other words, the respondent no.8 would be liable to pay a sum of Rs.31 Lacs along with accrued interest. It is stated that both the properties which have been mortgaged in favour of the said 6 Bank could not be sold in public auction because the documents pertaining thereto are with the police. 6. Accused no.1 Shri Somnath Zuwarkar made an application on or about 18.6.07 to the Government enumerating the facts and circumstances under which a chargeshet came to be filed against him and which according to him was due to political pressure. The petitioner has stated that the said application was not favourably considered by the Director of Prosecution and the Home Department but nothing in support of the said averment has been filed on behalf of the petitioner. It appears that the Under Secretary (Home) had sought for the views of the Learned Public Prosecutor, who vide his application dated 5.3.08 had opined that although there was a prima facie case to frame a charge against the accused it would be difficult to prove the main ingredients constituting the offences of criminal breach of trust and cheating as the normal business of the Bank was to accept the deposits and grant loan and in case any loan had become a non performing asset the procedure for the recovery of the same had to be resorted. The Learned Special Public Prosecutor however left the matter for the Government to decide. 7 7. Thereafter the Learned Special Public Prosecutor filed an application on or about 11.4.08 withdrawing the prosecution of the said case. That was prior to the stage of arguments before framing of charge. The Learned Special Public Prosecutor reiterated what he had stated in the lst paragraph of his letter dated 5.3.08 and further submitted that after careful consideration and examination of the evidence and documents submitted by the investigating agency and after applying his mind to the facts of the case and perusing the relevant provisions of law and also after considering the decision of the Government for the withdrwal of the prosecution he was satisfied that this was a fit case to invoke the provision of section 321 of the Code (Code of Criminal Procedure, 1973). It was also stated by him that after considering entire facts of the case and material on record he was satisfied that for the interest of public and public policy and also in the interest of the Bank, the prosecution against the accused deserved to be withdrawn. There is no dispute atleast that the Law Minister as well as the Home Minister who is the Chief Minister had approved the withdrawal of the case. 8 8. The Learned Special Judge after considering the said application of the Learned Special Public Prosecutor passed the impugned order. It appears that on behalf of the accused Shri S. Bhobe had placed reliance on the case of Sheo Nandan Paswan V/s. State of Bihar and others (AIR 1987 SC 877) wherein the Apex Court has noted that a Magistrate was not required to pass a reasoned order nor assess the evidence to discover whether the case would end in conviction or acquittal, while deciding an application for withdrawl of prosecution. The Learned Special Judge then concluded that the Court had to be satisfied that the executive function of the Special Public Prosecutor was not improperly exercised or that it was not an atempt to interfere with the normal course of justice for illegitimate reasons or purposes. The Learned Special Judge held that the Learned Special Public Prosecutor had considered that it would be difficult to prove the offences and secure conviction of the accused, after having gone through the entire evidence on record and had satisfied himself that this was a fit case to invoke the provisions of section 321 of the Code. The Learned Special Judge, therefore, felt that he was not required to minutely assess the evidence on record to discover whether the case would end in 9 conviction or acquittal and the Government itself after considering the facts of the case and evidence on record has conveyed the approval to the Learned Special Public Prosecutor to withdraw from the prosecution and that there was nothing on record to doubt that the executive fucntion was improperly exercised by the Learned Special Public Prosecutor or that there was a attempt to intefere with the normal course of justice of for illegitimate reasons or purposes. 9. Shri. Satardekar, the Learned Counsel appearing on behalf of the petitioner, submtis that the Learned Special Public Prosecutor has not done the exercise which was required of him, and, the Learned Special Judge had not followed the parameters required to be complied with by the Court whilst considering an application for withdrawal. Learned Counsel further submits that the application of the Learned Special Public Prosecutor ought to have contained all grounds on which the withdrawal was sought. Learned Counsel further submits that there was a prima facie case made against all the accused and once there was a prima facie case made against the accused the Learned Special Public Prosecutor was not justified in applying for withdrawal of the case. 10 Learned Counsel further submits that once there was a prima facie case made out by the prosecution it was for the accused to rebut the same, in as much as even the Court could have called for the witnesses in case it was required. Learned Counsel hs placed reliance on the decisions in the cases of S. K. Shukla and others V/s. State of U.P. and others (2006 (1) SCC 314, Rahul Agarwal V/s. Rakesh Jain and another (2005) 2 SCC 377) and Abdul Karim and others V/s. State of Karnataka and others (2000 (8) SCC 710). 10. On the other hand, Shri Bhobe on behalf of the respondent no.1/accused no.1, has submitted, relying on second case of Sheo Nandan Paswan V/s. State of Bihar and others ( AIR 1987 SC 877), that the parameters for withdrawal have been laid down by the Apex Court in the said judgment which was passed in review while reviewing the judgment in the first case of Sheonandan Paswan V/s. State of Bihar and others (AIR 1983 SC 194). Learned Counsel Shri Bhobe submtis that the view expressed by the two Judges in the first case of Sheonandan Paswan V/s. State of Bihar and others (AIR 1983 SC 194) has been approved by five Judges or in any event by majority in the 11 second case of Sheo Nandan Paswan V/s. State of Bihar and others ( AIR 1987 SC 877). Learned Counsel also points out that the view of the Constitution Bench in the second case of Sheo Nandan Paswan has also been followed subsequently by the Apex Court in Rahul Agarwal (Rakesh Jain and another) (2005) 2 SCC 377). 11. In this case (Rahul Agarwal) the Apex Court has referred with approval to the observations of that Court in the case of State of Bihar V/s. Ram Naresh Pandey (AIR 1957 SC 389) wherein it was held that "the function of the Court, in granting its consent may well be taken to be a judicial function and it follows that in granting the consent the Court must exercise a judicial discretion but it does not follow that the discretion is to be exercised only with reference to materials gathered by the judicial method". The Court also referred to State of Orissa V/s. Chandrika Mohapatra (1976 SCC (Cri.) 584) wherein the Apex Court had observed that the paramount consideration in all the casess must be the interest of administration of justice. No hard and fast rule can be laid down nor can any categories of cases be defined in which consent should be granted or refused. It must ultimately depend on the 12 facts and circumstances of each case in the light of what is necessary in order to promote the ends of justice, because the objective of every judicial process must be the attainment of justice". Referring to Abdul Karim and others V/s. State of Karnataka ( 2000) 8 SCC 710) the Apex Court noted that what the Court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. 12. The decison of the Constitution Bench in the second case of Sheo Nandan Paswan was also followed by the Apex Court in Vijaykumar Baldev Mishra alias Sharma V/s. State of Maharashtra ((2007) 12 SCC 687) wherein reference has been made to the Constitution Bench judgment and it was osbseved that section 321 is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under section 321, the accountability of the person or persons concerned does not dissapear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of 13 malicious prosecution if the complaint is bereft of any basis. 13. The Apex Court in Abdul Karim and others V/s. State of Karnataka and others (2000) 8 SCC 710) stated as follows:- "The questions that we have posed above were put to the learned counsel for the State of Karnataka in the context of the State Government's decision to concede to the demand of Veerappan that prisoners in Karnataka Jails should be released. The answers do not satisfy us. We do not find on the record, including that placed before us in sealed covers, material that could give rise to a rasonable apprehension of such civil disturbances as justifies the decision to drop TADA charges against Veerappan and his associates, including the respondents- accused, and to release the latter on bail. There is nothing on the record which suggests that the possibility of reprisals against the witnesses who have already deposed against the respondents-accused or the effect on the morale of the law- 14 enforcement agencies were considered before it was decided to release the respondents-accused. There is also nothing to suggest that there was reason to proceed upon the basis that Veerappan would release Rajkumar when his demands were not being met in full. The Government of the State of Karnataka would appear to be unaware that once the respondents-accused were discharged from TADA charges, the deal was done; and that when they were released on bail they could not be detained further, whether or not Rajkumar was released in exchange. While we cannot assert that conceding to Veerappan's demands was a ploy of the Government of the State of Karnatka to keep him out of the clutches of the law, we do find that it acted in panic and haste and wihout thinking things through in doing so. That this is so, is clear from the fact that the demands were conceded overnight and also from the fact that the Government of the State of Karnataka did not ascertain the legal position that it was not for it but for the court to decide upon the release of persons 15 facing criminal prosecutions". 14. In the case of Rahul Agarwal V/s. Rakesh Jain and another (2005) 2 SCC 377), the Apex Court held that a withdrawl must be permitted only when valid reasons are made out for the same and in the interest of justice and the Court is required to consider all revelant circumstances and find out whether the withdrawal of the prosecution would advance the cause ofj ustice. Withdrawal can be permitted if the case is likely to end in an acquittal and the continuance of the case is only causing severe harassment to the accused. It can also be allowed if it is likely to bury the dispute and bring about harmony between the parties and the Court is required to consider all relevant circumtances (emphasis supplied). 15. In the case of S.K. Shukla and others V/s. State of U.P. and others (2006) 1 SCC 314, the Apex Court stated as follow:- "This petition is filed against the order passed by the State Government dated 29.8.2003 whereby the Public Prosecutor was directed to withdraw the POTA cases against the accused persons. An 16 application was moved by the Public Prosecutor for withdrawal of these cases before the Special Judge, though no order was passed permitting withdrawal of these cases. However, in view of our finding in SLP (Crl.) No.5609 of 2004, we cannot affirm the order of the State Government for withdrawal of these cases and consequential application made by the Public Prosecutor for withdrawal of these cases. The order passed by the Govenment dated 29.8.2003 as well as the application moved by the Special Public Prosecutor before the Special Judge, Kanpur Nagar cannot be sustained and accordingly the order passed by the State Goverment and the application moved by the Spcial Public Prosecutor before the Special Judge at Kanpur, both are rejected. In this connection our attention was invited to Sheonandan Paswan V. State of Bihar, Rajender Kumar Jain V. State, R.M. Tewari V. State (NCT of Delhi), Ayyub V. State of U.P. In these cases it has been laid down that the Public Prosecutor has to shoulder a greater responsibility for 17 withdrawal of the cases under section 321 Cr.P.C. In Sheonandan Paswan V. State of Bihar it was held: (SCC p.440). The settled law laid down by the Supreme Court has been that the withdrawal from the prosecution is an executive function of the Public Prosecutor and the ultimate decision to withdraw from the prosecution is his. Before an application is made under section 321, the Public Prosecutor has to apply his mind to the facts of the case independently without being subject to any outside influence. The Government may suggest to the Public Prosecutor that a particular case may not be proceeded with, but nobody can compel him to do so. However, Section 321 of the Code does not lay any bar on the Public Prosecutor to recieve any instruction from the Government before he files an application under that section. If the Public Prosecutor receives such instructions, he cannot be said to act under extraneous influence. On the contrary, the Public Prosecutor cannot file an application for 18 withdrawal of a case on his own without instruction from the Government, since a Public Prosecutor cannot conduct a case absolutely on his own, or contrary to the instruction of his client, namely, the Government. Unlike the Judge, the Public Prosecutor is not an absolutely independent officer. He is appointed by the Government for conducting in court any prosecution or other proceedings on behalf of the Government concerned. So there is the relationship of counsel and client between the Public Prosecutor and the Government. If the Government gives instructions to a Public Prosecutor to withdraw from the prosecution of a case, the latter after applying his mind to the facts of the case may either agree with the instructions and file a petition stating grounds of withdawal or disagree therewith having found a good case for prosecution and refuse to file the withdrawal petition. In the latter event the Public Prosecutor will have to return the brief and perhaps to resign, for, it is the Government, not the Public Prosecutor, who is in the know of 19 larger interest of the State". (emphasis supplied). The Public Prosecutor cannot act like a postbox or act on the dictates of the State Government. He has to act objectively as he is also an officer of the Court. At the same time the court is also not bound by that. The courts are also free to assess whether a prima facie case is made or not. The court, if satisfied, can also reject the prayer. However, in the present case we have examined the matter and found that there is a prima facie case to proceed against the accused persons under Section 4(b) of the Act and the other provisions of the Explosives or Arms Act, therefore, the sanction granted by the Government and application moved by the Public Prosecutor for withdrawal of the cases cannot be sustained. Hence Writ Petitions Nos. 132-34 of 2003 are accordingly allowed and the order of the State Government dated 29.8.2003 withdrawing the cases against the accused persons is quashed, likesise direction to the Public Prosecutor for withdrawing the cases from the court". 20 16. Shri Satardekar, Learned Counsel on behalf of the petitioner, also submtis that the said accused nos. 4 and 5 had forged the signatures of the owner on the power of attorney given by the owner of the property situated at Panaji. Shri Bhobe points out that even the alleged forgery is supposed to have done in the year 1996 when the loan was sanctioned and part disbursed during the tenure of the said Ramchandra Mule. However, this submission cannot be borne out from the records before this Court and one can only say that the Learned Public Prosecutor must have considered that aspect also when he considered the aspect of withdrawal. Although the Learned Public Prosecutor has stated that there was a prima facie evidence for framing of charge, I fail to understand, as to what prima facie evidence, could there have been agaisnt the accused Somnath Zuarkar when he was not the Chairman nor was he connected in any manner when the loan was sanctioned in the year 1996 during the Chairmanship of the said Ramchandra Mule and a part of it was disbursed. 17. For a person to be held guilty for cheating it must be shown 21 that his intention was dishonest at the time the loan was taken. That apart, that there was a prima facie case, cannot come in the way of withdrawal but the fact that available evidence would not be sufficient to secure a conviction is a good ground to withdraw a prosecution since otherwise, proceeding with such a case can only cause harassment to the accused and witnesses and waste public time and this is certainly not in the interest of justice. In Criminal Miscellaneous Application No. 151/09 in the case of Shri Dharma V.Chodankar and others by unreported judgment dated 28.7.09 this Court had an occasion to consider the law on the subject as laid down by the Constitution Bench as well as other decisions of the Apex Court. It may be stated that the Apex Court in the second case of Sheonandan Paswan (supra) has stated that under the scheme of the Code (a) the prosecution of the offender for a serious offence is primarily the responsibility of the executive; (b) the withdrawal is the executive function of the Public Prosecutor; (c) the discretion is his and of none else and he cannot surrender that discretion to anyone else; (d) the Government may only suggest that he may withdraw; (e) withdrawal can be made on the ground of paucity of evidence and also on other relevant grounds as well; (f) the Public 22 Prosecutor is an officer of the court and responsible to it; (g) the Court performs a supervisory function; (h) the court