IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 14.10.2008 Coram The Honourable Mr. JUSTICE K.MOHAN RAM Criminal Revision Case No.1081 of 2008 and M.P.No.1 of 2008 V.P.Raghavendra Rao .... Petitioner (A 3) -Vs.- Inspector of Police Special Crime Branch Central Bureau of Investigation Rajaji Bhawan, Besant Nagar, Chennai – 90 .... Respondent (Complainant) Prayer:- Criminal Revision Case filed under Sections 397 and 401 of Cr.P.C., to set-aside the order passed by the Learned Principal Special Judge for CBI Cases, Chennai, in M.P.No.440 of 2007 dated 27.06.2008 and discharge the petitioner from C.C.No.225 of 1997 pending on the file of the learned Principal Sessions Judge for CBI Cases. For Petitioner : Mr. K.Srinivasan For Respondent : Mr. N.Chandrasekaran, Spl.P.P., for CBI Cases. O R D E R The petitioner who is the third accused in C.C.No.225 of 1997 on the file of the learned Principal Special Judge for CBI Cases, City Civil Court, Chennai and facing trial for the offences under Sections 120-B read with 420, 468 and 471 read with 468 IPC and after framing of charges by the trial court filed Criminal Crl.M.P.No.440 of 2007 under Sections 227, 239 and 245 of the Cr.P.C., seeking discharge, but the same was dismissed by order dated 27.06.2008 passed by the learned Special Judge for CBI Cases, Chennai, being aggrieved by that the above Criminal Revision Case has been filed. 2. The allegation as against the petitioner/ A-3 is that he introduced the first and second accused to the Chairman of the Indian Bank to avail DABP Credit facilities by A-1 and A-2 by furnishing fabricated documents to the Indian Bank. The main contentions raised by the petitioner before the trial court were that, he has been falsely implicated in the case; a reading of the entire statement of witnesses and a perusal of the documents do not https://hcservices.ecourts.gov.in/hcservices/ reveal any iota of evidence to implicate the petitioner in the case; not a single witness has stated that the petitioner forged or fabricated any document for the purpose of availing credit facilities from the Bank by the accused persons; the petitioner was not the beneficiary of the loan transaction; the Bank itself by its letters dated 12.11.1994 and 11.08.1995 had written to the Investigating Agency that the complaints lodged by them on 04.01.1994 against the accused be treated as withdrawn as the party has completely adjusted their liabilities at both the Branches and further the Bank could recover the full amount in both the cases on the assurance of the Management that the complaints lodged by the CBI would be withdrawn and further the Indian Bank had written to the Reserve Bank of India that none of the Bank officials were involved in the fraudulent activities in connivance with the borrowers and no loss is caused to the Bank. 3. The discharge petition was opposed by the respondent contending that the petitioner alongwith the other accused entered into the conspiracy during the year 1991 at Chennai and other places and in pursuance of the said conspiracy the said persons availed bill facility by submitting false and fabricated documents to the Indian Bank, East Abiramapuram Branch; after investigation, charge sheet was filed against the petitioner and the other accused; charges were framed against the petitioner and other accused persons by the trial court on 29.06.2001 and the prosecution has examined three witnesses and in support of the prosecution case, they were cross examined by the counsel for the petitioner at length and therefore the question of discharge will not arise at that stage. It was further contended that the repayment of the swindled amount will not exonerate the accused from the criminal liability, hence the charge sheet was filed against the petitioner and the other accused; the petitioner in furtherance of the criminal conspiracy had introduced A-1 and A-2 to the Chairman and Managing Director of the Indian Bank with a dishonest intention to cheat the Bank and the major share of the loan amount availed by the Bank has been received by the petitioner in his account as part of the said conspiracy. It was further contended that having not filed any discharge application before framing of the charges the present application which is admittedly filed after the framing of the charges is not maintainable. The further contention was that only after perusing the entire oral and documentary evidence and after coming to the conclusion that a prima facie case is made out the charges were framed against the accused and as such the petition is liable to be dismissed. 4. The learned Principal Special Judge after elaborately considering the submissions made by the learned counsel on either side dismissed the petition by observing in paragraph 22 as under:- “22. In this case charges have been framed against the petitioner and others after satisfying that there is a prima facie case against the petitioner and others. Witnesses have also been examined. The contentions raised in this petition were also raised in the petition filed by this petitioner in Crl.O.P.No.31357/2002 to https://hcservices.ecourts.gov.in/hcservices/ quash the proceedings in C.C.No.225/97 . The Hon&ble High Court had not accepted the contentions raised by the petitioner and dismissed the petition. The above order of the Hon'ble High Co9urt through challenged by way of filing Special Leave to appeal (Crl.) No.3871/2006 was withdrawn by the petitioner and therefore the above SLA (Crl.P.No.3871/2006 was dismissed as withdrawn. As already stated there are materials available against the petitioner . Under the circumstances stated above, it is held that the petitioner/A3 cannot be discharged for the reasons stated in the petition. Hence this Petition is dismissed.” 5. Learned counsel for the petitioner submitted that the dismissal of the earlier quash petition filed by the petitioner in Crl.O.P.No.31357 of 2002 and the withdrawal of Special Leave to Criminal Appeal No.3871 of 2006 with liberty to file a discharge petition could not have been relied upon by the Principal Special Judge as reasons for dismissing the discharge petition. Learned counsel basing reliance on the following decisions of the Apex Court, namely:- (i)(1977) 2 Supreme Court Cases 699 (State of Karnataka v. L.Muniswamy) (ii)(1996) 9 Supreme Court Cases 766 (Satish Mehra v. Delhi Administration) (iii)(2008) 4 Supreme Court Cases 582 (Madan Mohan Abbot v. State of Punjab) (iv)AIR 1996 Supreme Court 2452 (C.B.I. v. Duneans Agro Industries Ltd., Calcutta) strenuously contended that when admittedly the entire loan amount due to the Bank has been settled down by the first and second accused and the Bank itself had admittedly addressed letters to the Investigating Agency informing the Investigating Agency that they are withdrawing the complaints, no useful purpose will be served by continuing with the trial of the case. Learned counsel further based reliance on the latest judgment of the Apex Court rendered in the case of Nikhil Merchant v. Central Bureau of Investigation & Another in Criminal Appeal No.1302 of 2008 (S.L.P. (Crl.) No.6355 of 2005). 6. Countering the said submissions the learned Special Public Prosecutor for the respondent submitted that as early as on 29.06.2001, five charges have been framed and the accused is being tried for the offences under Sections 120-B read with 420, 420, 468, 471 and 471 read with 468 IPC and already three witnesses have been examined and at this stage the petitioner is not entitled to seek discharge. Learned Special Public Prosecutor further submitted that the petitioner did not file a discharge petition at the earliest but has filed the present discharge petition after framing of charges; all the points raised here were already raised in the earlier quash petition filed by the petitioner in Criminal Original Petition No.31357 of 2002 and the same have been considered and rejected and the order passed therein was challenged before the Apex Court but the petitioner chose to withdraw the https://hcservices.ecourts.gov.in/hcservices/ appeal and thereafter has filed the discharge petition. Learned Special Public Prosecutor further submitted that the reasons assigned by the learned Principal Special Judge for dismissing the discharge petition cannot be said to be either erroneous or illegal. Learned Special Public Prosecutor submitted that the decisions relied upon by the learned counsel for the petitioner are not applicable to the facts of this case. 7. Learned Special Public Prosecutor basing reliance on the decision of the Apex Court reported in AIR 1973 Supreme Court 799 (Amar Chand v. Shanti Bose and another) strenuously contended that once the trial before the lower Court has commenced, the High Court ordinarily will not interfere with the trial. Learned Special Public Prosecutor basing reliance on the decision of the Apex Court reported in (1996) 9 Supreme Court Cases 766 (referred to supra), which has been relied upon by the learned counsel for the petitioner, submitted that the said decision has been over-ruled by the Apex Court in the decision reported in 2005 Supreme Court Cases (Cri) 415 (State of Orissa v. Debendra Nath Padhi) and further submitted that no right is conferred on the accused to produce the documents in his possession to prove his defence at the time of framing of charges and the accused/petitioner herein is not entitled to base reliance on the letters written by the defacto complainant to the Investigating Agency at this stage. Learned Special Public Prosecutor also relied upon a decision of the Apex Court reported in 2002 (3) Supreme 207 (Inspector of Police, CBI v. B.Raja Gopal and others) and submitted that the mere fact that the entire amount due to the Bank had been paid by the borrower (accused 1 and 2) was not enough for discharging the accused from the charges or for quashing the criminal proceedings. 8. I have carefully considered the said submissions made by the learned counsel on either side. 9. It is pertinent to point out that all the contentions put forth before the trial court and before this Court in the above revision were raised in the quash petition filed in Criminal Original Petition No.31357 of 2002. The learned Single Judge of this Court after elaborately considering the contentions put forth by the petitioner and another co-accused rejected all the contentions and considering the decisions of the Apex Court reported in AIR 1996 Supreme Court 2452 (referred to supra) and another decision of the Apex Court reported in (1996) 9 Supreme Court Cases 766 (referred to supra) dismissed the quash petition by observing as under:- “22. It is found that P.W.2 is virtually in the box. If at all the third accused had any grievance, he would have filed an application to discharge him from the proceedings even before the Trial Court framed the charges. Both of them have come to this Court after the trial has begun. 23. As there is sufficient material, at any rate, to frame the charges as against the petitioners, the Court https://hcservices.ecourts.gov.in/hcservices/ finds that the criminal proceedings as against the petitioners cannot be quashed”. The said order of the learned Judge was challenged before the Supreme Court in Special Leave to Appeal (Criminal) No.3871 of 2006 but the same was dismissed by the order dated 31.03.2006 by the Apex Court which reads as follows:- “Learned counsel for the petitioner wants to withdraw the petition stating that, if so advised, the petitioner shall move for discharge of the petitioner. The special leave petition is dismissed as withdrawn”. 10. The contention of the learned counsel for the petitioner is that only by getting liberty from the Apex Court discharge petition was filed by the petitioner before the trial court and therefore the dismissal of the quash petition or the Special Leave Petition cannot stand in the way of the trial court considering the contentions put forth by the petitioner in the discharge petition. This Court is unable to accept the contention of the learned counsel for the petitioner. All the contentions put forth in the discharge petition and now raised before this Court were raised and rejected by the learned Judge of this Court by dismissing the quash petition in Criminal Original Petition No.31357 of 2002. A perusal of the materials made available before this Court shows that the witnesses examined by the Investigating Agency have categorically spoken to the effect that the petitioner / second accused also joined the A-1 and A-2 in approaching the Indian Bank seeking the credit facility accommodation. If the petitioner had not introduced A-1 and A-2 who did not possess the necessary credit worthiness the Indian Bank would not have advanced the loan or made available the credit facilities to A-1 and A-2. 11. It has to be pointed out that it has not been seriously contended by the learned counsel for the petitioner that there are totally no materials to frame the charges against the petitioner but the main thrust of the submission is that when the entire loan amount has been repaid by the main accused (A-1 and A-2) the third accused / petitioner herein who is alleged to have introduced A-1 and A-2 to the Chairman of the Bank to avail the loan facilities has to unnecessarily face the trial, which according to the learned counsel for the petitioner, will amount to harassment. In support of the said contentions, as aforesaid, the learned counsel for the petitioner relied upon the decisions of the Apex Court reported in (2003) 4 Supreme Court Cases 675 (B.S.Joshi and Ors. v. State of Haryana and another), AIR 1996 Supreme Court 2452 (referred to supra) and Nikhil Merchant v. Central Bureau of Investigation & Another in Criminal Appeal No.1302 of 2008 (S.L.P. (Crl.) No.6355 of 2005). 12. It is no doubt true that in Nikhil Merchant v. Central Bureau of Investigation & Another in Criminal Appeal No.1302 of 2008 (S.L.P. (Crl.) No.6355 of 2005), the Apex Court has referred to and relied upon (2003) 4 Supreme Court Cases 675 (referred to supra) and AIR 1996 Supreme Court 2452 (referred to supra) to quash the similar criminal cases on the ground that the dispute between https://hcservices.ecourts.gov.in/hcservices/ the accused company and the Bank have been settled and the compromise decree was passed by the Civil Court and the claim of the Bank has been settled in its entirety. But a careful reading of the said decision shows that the Hon'ble Apex Court was pleased to quash the proceedings only by exercising its powers under Article 142 of the Constitution of India. In paragraph 23 of the said decision the following question has been posed:- “The question which is required to be answered in this case is whether the power which independently lies with this Court to quash the criminal proceedings pursuant to the compromise arrived at, should at all be exercised?” The very question itself gives the answer that the Hon'ble Apex Court had quashed the criminal proceedings only by exercising its power under Article 142 of the Constitution. Therefore this Court is of the considered view that when admittedly all the contentions raised in the discharge petition and before this Court were raised and rejected by this Court in Crl.O.P.No.31357 of 2002 and the S.L.P. filed there-against has been withdrawn and admittedly three witnesses have already been examined and as laid down by the Apex Court in the decision reported in 1973 Supreme Court 799 (referred to supra) once a trial has commenced the proper course to be adopted is to allow the proceedings to go on and to come to its logical conclusion one way or the other, it is not open to this Court to interfere at this stage and it is not proper for this Court to interfere with the order passed by the learned Special Judge. 13. Hence this Court is of the considered view that the reasons assigned by the learned Principal Special Judge for CBI Cases for dismissing the discharge petition do not suffer from any irregularity or illegality and as such this Court is not inclined to interfere with the same. 14. For the said reasons, the above Criminal Revision Case fails and the same is dismissed. Consequently the connected MPs are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. srk To 1. The Principal Special Judge for CBI Cases, Chennai https://hcservices.ecourts.gov.in/hcservices/ 2. The Inspector of Police, Special Crime Branch Central Bureau of Investigation, Rajaji Bhawan, Besant Nagar, Chennai – 90 1 cc to Mr.K. Srinivasan, Advocate, Sr. 57787 Crl.R.C.No.1081 of 2008 & M.P.No.1 of 2008 BV (CO) kk 21/10 https://hcservices.ecourts.gov.in/hcservices/