IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 23 .12.2008 Coram The Honourable Mr. JUSTICE K.MOHAN RAM Crl.O.P. Nos.24756 and 26871 of 2008 and M.P.Nos.1, 1 and 2 of 2008 1. A.D.Sudhindhra, S/o. A.S.Dhattu Road The Chairman, M/s. Dhanus Technologies Ltd. 6B Mena Kampala Arcade 113/114 Sir Thiyagaraya Road T.Nagar, Chennai – 600 017 2. V.Narayanaswamy, S/o. Venkatesan The Managing Director, M/s. Dhanus Technologies Ltd. 6B Mena Kampala Arcade 113/114 Sir Thiyagaraya Road T.Nagar, Chennai – 600 017 3. D.S.Srinivasan, S/o. D.Seshagiri The Joint Managing Director M/s. Dhanus Technologies Ltd. 6B Mena Kampala Arcade 113/114 Sir Thiyagaraya Road T.Nagar, Chennai – 600 017 .... Petitioners in Crl.O.P.No.24756/2008 1.S.Venkatanarayanan 2.R.Suresh Kumar .... Petitioners in Crl.O.P.No.26871/2008 -Vs.- 1. Inspector of Police Central Bureau of Investigation BS & FC, Mumbai 2. State Bank of India Rep. by its Branch Manager No.1055 Munusamy Salai, K.K.Nagar (West), Chennai – 600 078 .... Respondents in both the Crl.O.Ps. Prayer:- Criminal Original Petitions filed under Section 482 of the Criminal Procedure Code praying for a direction to call for the records in RC No.5 (E) / 2008, dated 27.06.2008, pending on the file of the first respondent and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr. Abudu Kumar Rajaratnam, for, Mr. S.Vinodh Kumar, counsel for the petitioner in Crl.O.P.No.24756 of 2008 & Mr.R.Bhagawat Krishna, counsel for the petitioners in Crl.O.P.No.26871 of 2008 For 1st Respondent: Mr. N.Chandrasekaran, Spl. P.P., for CBI Cases. (in both Cases) - - - C O M M O N O R D E R The above Criminal Original Petitions have been filed by accused 3 to 5 and the other two accused, who are sought to be implicated in the case, to quash the First Information Report registered by the first respondent in R.C.No.5 (E) / 2008 against them. 2. The brief facts and the allegations as culled out from the First Information Report are set-out below:- (i) The petitioners in conspiracy with accused-Branch Managers of State Bank of India, Vivekananda House Branch and Personal Banking Branch (PBB) at K.K.Nagar of Chennai cheated the State Bank of India, Chennai, to the tune of Rs.9.30 crores in the matter of fraudulently availing 327 personal loans in the name of bogus and non-existing persons, who were claimed to be employees of Dhanus Technologies Limited. The accused State Bank Officials without verifying the existence of the persons sanctioned the loans by abusing their official position as public servant. Further, the personal loans sanctioned to so-called employees were later on clandestinely diverted to personal accounts of A-3 to A-5 and utilised for the purpose other than sanctioned for. Several bank accounts were opened at State Bank of India, Vivekananda House Branch, Chennai during the year 2006-2007 in the name of various persons who were shown as the employees of DTL. Most of these accounts were opened by using false identity and residence proof like bogus and forged 'Identity Card & Salary Slip' purportedly issued by DTL. The accounts were shown to have been introduced by Sri.A.V.Srinivasan, the then Director employee of the company. (ii) Sri. R.Suresh Kumar and Sri.Venkatnarayanan employees of DTL who are the petitioners in Crl.O.P.No.26871 of 2008 have filled up around 70% to 80% account opening forms in the name of fictitious persons showing them as employees of DTL as per the instructions of A-3 to A-5 who were the promoters of the company in which they work and they had to follow the instructions. They prepared fictitious loan applications in the name of such persons falsely showing them as employees of M/s. Dhanus Technologies Ltd. Immediately on sanction of loans, they transferred the loan amounts sanctioned in such fictitious names to the accounts of A-3 to A-5 who are the directors of the company as per their instructions. https://hcservices.ecourts.gov.in/hcservices/ (iii) Using bogus accounts, during 2006-2007, initially 127 applications for sanction of personal loan were made at State Bank of India, Vivekananda House Branch, Chennai. Such loans were dishonestly sanctioned and disbursed without the knowledge of the applicants. Thereafter, such loans were withdrawn either in cash mostly by Sri.R.Suresh Kumar, an employee of DTL or directly transferred to the personal savings accounts of the aforesaid five petitioners maintained at Punjab National Bank, North Usman Road Branch, Chennai. (iv) A partnership firm in the name and style of M/s. Sri Venkateshywara Enterprises, Chennai, was floated and its current account was opened at State Bank of India, Vivekananda House Branch, Chennai. In this account, Sri.R.Suresh Kumar and Sri.Venkatnaraynan (petitioners in Crl.O.P.No.26871 of 2008) employees of DTL were the authorised signatory and partners to operate the account. The personal loans taken in the name of at least 20 so-called fictitious employees of DTL to the tune of Rs.60 lacs were transferred and credited at the instance of A-3 to A-5 and therefore the same were given back to their company immediately. (v) That, in a similar manner by adopting similar modus operandi, another 20 applications were made at State Bank of India, Personal Banking Branch, KK Nagar, Chennai and the funds so sanctioned were transferred to the personal savings accounts of above petitioners maintained at Punjab National Bank, North Usman Road Branch, Chennai. (vi) On the basis of the aforesaid allegations a case is registered under Sections 120-B read with 420, 409, 468, 471 IPC and 13 (2) read with 13 (1) (C) and (d) of the Prevention of Corruption Act, 1988 against A-3 to A-5 who are also promoters / directors of M/s. Dhanus Technologies Limited (DTL), Chennai, and two Branch Managers of State Bank of India, Chennai namely Sri.N.Chandran and Sri.K.Ravi. 3. In both the above quash petitions the following similar contentions have been raised:- In the First Information Report the ingredients of the offences are not clearly made out; a pure civil transaction has been given a criminal colour to wreck vengeance and to harass the petitioners; the First Information Report proceeds on the assumption that a loan for a sum of Rs.9.30 crores was wrongly availed in connivance with the second respondent bank officials during the year 2006-2007 and there was a outstanding of Rs.6.94 crores on the date of registration of the First Information Report, i.e., on 27.06.2008 whereas a 'No Due Certificate' was issued by the second respondent as early as 29.02.2008 which is nearly six months prior to the date of registration of the First Information Report which clearly shows that the very registration of the First Information Report is contrary to https://hcservices.ecourts.gov.in/hcservices/ facts and the same is a pure abuse of the process of law; the first respondent has not taken sincere efforts to verify and investigate the source of their anonymous information and whether the said information is supported by material documents; no complaint has been lodged by the second respondent Bank which is really the aggrieved party, if at, all and since no offence has been made out the Bank has not lodged any complaint; had the first respondent verified the anonymous information with material documents available with the second respondent-Bank the case itself would not have been registered on the basis of the anonymous information; the first information report is liable to be quashed since the entire loan amount along with the interest has been paid without any outstanding and without availing any concession whatsoever; M/s. Dhanus Technologies Ltd., the company, stood as guarantor and made fixed deposits to the tune of Rs.5.25 crores as security for the loan amount sanctioned and that itself will clearly show that there was no element of cheating in the entire transaction; admittedly as there was no due from the company or from the petitioners herein no recovery proceedings have been initiated by the second respondent- Bank before any forum; in the light of the law laid down by the Apex Court in the case of Nikhil Merchant v. Central Bureau of Investigation and Another and reported in JT 2008 (9) SC 192 the first information report is liable to be quashed; since even six months prior to the registration of the case the entire loan transaction has been cleared and no loss whatsoever has been caused to the Bank and no disciplinary or other actions have been taken against A-1 and A-2-the Bank officials, who have sanctioned the loans and they have not been suspended from service. Inspite of paying the entire loan transaction with interest and without availing any concession and only because of the mala fide registration of the case the company and its Directors and employees are suffering huge and irreparable loss since the entire banking operations of the company have come to a stand still; the facts of the case makes it abundantly clear that the very registration of the case is a pure abuse of process of law. 4. The first respondent has filed a detailed counter statement inter-lia contending as follows:- To avoid the investigation of the criminal activities the petitioners have filed the above criminal original petitions to subvert the attention of investigating agency; all the offences alleged have been clearly made out from the allegations contained in the first information report; the information regarding the issuance of the 'No Due Certificate' by the second respondent-Bank and the repayment of the entire loan amount as early as 29.02.2008 prior to the date of registration of the First Information Report was not available to the first respondent at the time of the registration of the case and the first respondent was not aware of the same; even if the accused returns the Bank's funds which was obtained dishonestly and fraudulently the investigation has to continue; the source of the anonymous information need not be verified and the same is not relevant for the purpose of this case; the allegations in the first https://hcservices.ecourts.gov.in/hcservices/ information report clearly reveal the ingredients of the offence of criminal conspiracy, cheating, forgery and criminal breach of trust on the part of the petitioners; the fact that the company stood as a guarantor and made a fixed deposit of Rs.5,25 crores goes to show that the company was interested in taking loans; the compromise or repayment of the loan by the company does not vitiate the investigation. Since in Nikhil Merchant's case the Hon 'ble Apex Court exercised its power under Article 142 of the Constitution of India it was applicable to the facts of that case and the same is not applicable to the facts of the case on hand and finally it is contended that since already the process of investigation has started and sufficient oral and documentary evidence has been collected the above petitions are liable to be dismissed. 5. Learned counsel for the petitioners reiterated the aforesaid contentions put forth on behalf of the petitioners and further contended that admittedly since the second respondent-Bank had not suffered any financial loss whatsoever it has not lodged any complaint against the petitioners herein or against any officials of the Bank; similarly the second respondent has not taken any disciplinary proceedings against A-1 and A-2 the Managers of the two Branches who sanctioned the loans and they have not been placed under suspension and even today they are functioning as managers; admittedly only on the basis of an oral anonymous source information the case has been registered by the first respondent that too without verifying the actual facts from the second respondent-Bank; when admittedly the entire loan obtained from the two branches had been repaid as evidenced from the 'No Due Certificates' dated 29.02.2008 and 30.05.2008 issued by the Branch Manager, State Bank of India, K.K.Nagar Branch and the Branch Manager, State Bank of India, Vivekananda House Branch, Chennai – 5, respectively, the case has been registered on 27.06.2008 only without verifying as to whether any wrongful loss has been caused to the Bank. Learned counsel further submitted that a sum of Rs.5.25 crores which was deposited as fixed deposits as security for the sanction of the loan to the employees of the company had not been withdrawn even after the entire loan availed from both the branches were cleared even though lien marked on the deposits were cancelled. He further submitted that no offence whatsoever has been committed by the petitioners herein. He further submitted that unless the first information report is quashed the company which has come to a stand still because of the pendency of the case will have to be permanently closed which will not only result in great financial loss to the company and its share holders but it will adversely affect the interest of the employees and as a consequence thereof the employees will lose their jobs and further the valuable foreign exchange earned by the company to the Country will also be lost. 6. In support of the above said contentions the learned counsel for the petitioner relied upon the following decisions:- https://hcservices.ecourts.gov.in/hcservices/ (i) JT 2008 (9) SC 192 (Nikhil Merchant v. Central Bureau of Investigation & Anr). In this decision, in paragraphs 21, 23 and 24 the Hon 'ble Apex Court has laid down as under:- “21. The basic intention of the accused in this case appears to have been to misrepresent the financial status of the company, M/s. Neemuch Emballage Limited, Mumbai, in order to avail the credit facilities to an extent to which the company was not entitled. In other words, the main intention of the company and its officers was to cheat the Bank and induce it to part with additional amounts of credit to which the company was not otherwise entitled. 22... 23. In the instant case, the disputes between the Company and the Bank have been set at rest on the basis of the compromise arrived at by them whereunder the dues of the Bank have been cleared and the Bank does not appear to have any further claim against the Company. What, however, remains is the fact that certain documents were alleged to have been created by the appellant herein in order to avail the credit facilities beyond the limit to which the Company was entitled. The dispute involved herein has overtones of a civil dispute with certain criminal facets. 24. .... keeping in mind the decision of this Court in B.S.Joshi's case (supra) and the compromise arrived at between the Company and the Bank as also clause 11 of the consent terms filed in the suit filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of the same after the compromise arrived at between the parties would be a futile exercise”. (ii) (2003) 4 Supreme Court Cases 675 (B.S. JOSHI v. STATE OF HARYANA). In this decision, in paragraph 6, the Apex Court has observed as under:- “6. In Pepsi Foods Ltd. v. Special Judicial Magistrate (1998) 5 SCC 749 = 1998 SCC (Cri) 1400 this Court with reference to Bhajan Lal case 1992 Supp (1) SCC 335 = 1992 SCC (Cri) 426 observed that the guidelines laid therein as to where the court will exercise jurisdiction under Section 482 of the Code could not be inflexible or laying rigid formulae to be followed by the courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any court or otherwise to secure the ends of justice. It is well settled that these powers have no limits. Of course, where there is more power, it becomes necessary to exercise utmost care and caution while https://hcservices.ecourts.gov.in/hcservices/ invoking such powers.” (iii) Judgment, dated 16.10.2008 of the Hon 'ble Apex Court rendered in the case of Manoj Sharma v. State and others in Crl.A.No.1619 of 2008 (SLP (Cri) No.5265 of 2007. In this case the very question which came up for consideration before the Hon 'ble Apex Court was that whether a First Information Report under Sections 420, 468, 471, 34, 120-B IPC can be quashed either under Section 482 of the Cr.P.C. or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves. The Hon 'ble Apex Court while considering the aforesaid question basing reliance on the decision rendered in the case of B.S.Joshi v. State of Haryana and reported in (2003) 4 SCC 675 and Nikhil Merchant's case and the facts of that case, held as under:- “8. .... Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. 9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility. 10. We, accordingly, allow the appeal and set aside the order of the High Court and quash the criminal proceedings pending before the learned Additional Chief Metropolitan Magistrate, Karkardooma Court, Delhi, in FIR No.50 of 1997 dated 31st January, 1997, P.S. Vivek Vihar (East Delhi).” 7. Countering the aforesaid submissions the learned Special Public Prosecutor submitted that taking into consideration of the fact that about 325 fictitious loan have been availed by the petitioners and the ingredients of the offences alleged against the petitioners have been made out from the allegations contained in the First Information Report, at the stage of First Information Report, it is not open to this Court to quash the same. He further submitted that the facts of the case relating to the decisions referred to and relied upon by the learned counsel for the petitioners are entirely different. He further submitted that in Nikhil Merchant's case the Apex Court was exercising its power under Article 142 of the Constitution of India and as such the principles laid down therein cannot be applied to the facts of this case. He further submitted that though it may be true that the entire loan amount sanctioned by the two branches of the second respondent-Bank have been fully paid even before the registration of the first information report but that https://hcservices.ecourts.gov.in/hcservices/ by itself will not erase the offences already committed by the accused. He also reiterated the contentions put forth in the counter statement filed by the first respondent. 8. In support of his submissions the learned Special Public Prosecutor relied upon the following decisions:- (i) State of Haryana and others v. Bhajan Lal 1992 Supp (1) SCC 335 = 1992 SCC (Cri) 426. In this decision in paragraph 102 the Apex Court has set-out the categories of cases by way of an illustration wherein the extraordinary power under Article 226 of the Constitution of India and the inherent powers under Sections 482 of the Code can be exercised either to prevent the abuse of process of any Court or to secure the ends of any justice. Basing reliance on the said decision the learned Special Public Prosecutor submitted that the case on hand does not fall in any one of the categories of the cases enumerated by the Apex Court and therefore submitted that this is not a fit case where the inherent powers of this Court under Section 482 Cr.P.C. can be exercised. (ii) 2008 (4) CTC 745 (Lakhwant Singh v. Jasbir Singh). In this decision in paragraph 10 of the judgment it is laid down as follows:- “10. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 Cr.P.C., it is not permissible for the Court to act as if it was a Trial Court. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about the existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused”. (iii) 2003 (4) Supreme 466 (UNION OF INDIA v. PRAKASH P. HINDUJA & ANR.). In this decision in paragraph 19 it is laid down as follows:- “19. Thus the legal position is absolutely clear and also settled by judicial authorities that the court would not interfere with the investigation or during the course of investigation which would mean from the time of the lodging of the first information report till the submission of the report by the officer in charge of the police station in court under Section 173(2) CrPC, this field being exclusively reserved for the investigating agency.” 9. Though as laid down in the decision of the Apex Court rendered in the case of J.K.International v. State, Govt. of NCT of Delhi https://hcservices.ecourts.gov.in/hcservices/ reported in (2001) 3 SCC 462 before quashing the first information report the first informant or the defacto complainant as the case may be had to be put on notice and given an opportunity of hearing, since in this case, admittedly, the second respondent is neither the first informant nor the defacto complainant the service of notice on the second respondent is not considered necessary. Admittedly the second respondent has not preferred any complaint either before the first respondent or before any other Forum. Hence notice to the second respondent is dispensed with. 10. I have carefully considered the aforesaid submissions made by the learned counsel on either side, perused the allegations contained in the First Information Report and the other materials made available in the typed-set-of-papers and the decisions relied on and referred to above. 11. At the outset, it has to be pointed out that the allegations contained in the F.I.R. do primafacie reveal the ingredients of the offences under sections 120(b) read with 420, 409, 468, 471 IPC read with section 13(2) read with 13(1)(c) and (d) of the Prevention of Corruption Act 1988 and therefore the contentions to the contrary made by the learned counsel for the petitioner cannot be countenanced. But the main issue that arises for consideration in the above Criminal Original Petitions is as to whether this is a fit case where the inherent powers of this Court under section 482 Cr.P.C., should be exercised to quash the F.I.R. The main contention of the learned counsel for the petitioners is that the petitioners had never intended either to bcheat or misappropriate the funds of the second respondent Bank. The attendant facts and circumstances of the case dispel the presumption that the accused/petitioners herein ever intended to cheat or misappropriate the funds of the second respondent Bank. 12.The aforesaid submissions have been made by the learned counsel for the petitioners on the basis of the following facts and circumstances viz: 1.M/s. Dhanus Technologies Ltd., stood as guarantor and made fixed deposits to the tune of Rs.5.25 crores as security for the loan amount sanctioned to the employees; 2.The entire loan amounts have admittedly been repaid with interest and without availing any concession whatsoever even before initiation of any proceedings before any Forum by the second respondent; 3.As evidenced from the certificates issued by both the branches of the second respondent Bank, even much earlier to the registration of F.I.R. in this case on 26.7.2008, the entire loan amounts have been repaid; 4.Even after the entire amounts have been repaid, https://hcservices.ecourts.gov.in/hcservices/ the fixed deposits were not immediately closed, though the lien marked on such fixed deposits had been cancelled;