- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 210 OF 2000 Central bureau of ) investigation (ACB) ) Tana House, ) Nathalal Parekh Marg ) Mumbai - 400 039 ) Applicant Vs. 1. Chetan Ramniklal Shah 1st Floor, Kailash ) Lala Devidayal Road,) Mulund (West), ) Mumbai-400 080. ) 2. State of Maharashtra) Opponents Mr. H. V. Mehta, advocate for the Applicant. Mr. Rajesh More, APP for the respondent. *** CORAM : D. G. KARNIK, J. DATE : MARCH 10, 2008. ORAL JUDGMENT . By this revision petition, the petitioners takes exception to the judgment and order dated 13th March 1998 passed by the learned Special Judge, CBI, Greater Mumbai, discharging the respondent no.1. 2. The facts in brief are that the respondent no.1 - 2 - (hereinafter referred to accused No.2) is the co-owner and landlord of the property in question. Oriental Bank of commerce (hereinafter referred to as the bank) negotiated with the accused no.2 for renting his premises. After negotiations the bank agreed to take on rent the premises at the monthly rent at Rs.15/- per sq.ft. of the built up area, both the ground as well as the first floor. By its letter dated 7-4-1987 informed the accused no.2 that the bank agreed to all the terms and conditions subject to the final sanction by the Board. It appears that in the meanwhile accused no.2 started demanding increase in the rent. Mr. S. N. Malhotra, the Dy. General Manager of the bank, alleged ny in criminal conspiracy with the accused no.2 and dishonestly, recommenced the revised proposal for taking the premises on rent at the higher rate of Rs.26/- per Sq.foot per month for the ground floor and Rs. 20/- per Sq. ft. for the first floor. Furthermore, in the revised proposal according to the bank the total area of the premises was inflated by adding by 310 Sq. ft. Thus, the bank was put to a recurring loss of about Rs.6,200/- per month on account of the increase in the area and Rs.6 lakhs per annum on account of increase in the rent. According to the bank, Mr. Malhotra dishonestly obtained revised certificate of the built up - 3 - area of 1587 Sq. ft. and 2009 Sq. ft. for the ground and first floor area and also recommended payment of higher rent, contrary to the guidelines of the Reserve Bank of India. The bank took the premises on rent on the basis of the revised fraudulent proposal put up Mr. Malhotra and took possession of the premises on 2nd July 1989. The bank continues to be in possession of the premises till today. 4. On coming to know of the fraudulent nature of the proposal by Mr. Malhotra in collusion with accused no.2, the bank appears to have initiated action and the CBI (ACB) Bombay recorded a FIR on 31st January 1995 regarding the alleged offence by Mr. Malhotra. The accused No.2 was not shown as an accused in the first information report. However, after investigation, it appears, that charge sheet was filed against Mr. Malhotra, former Dy. General Manager of the bank as accused No.1 and the accused No.2. The accused No.2 filed application before the learned Special Judge for discharge on 13th August 1998, on the ground that no case for framing of charge was made out against him. When the matter came up for hearing and recording of evidence, if any, before charge, request was made for adjournment on the ground that Mr. S. C. Kapoor, another Dy. General - 4 - Manager of the bank had undergone surgery and was unable to attend the Court for couple of weeks. Adjournment was granted initially but the repeated request for adjournment was rejected. Before me it is stated that case against the accused No.2 is based on the breach of conditions of the circular of the R.B.I. and if circular is not produced and proved, there is no material against accused No.2. 5. In spite of sufficient opportunity being granted, the prosecution did not examine Mr. Kapoor, to prove the circular of Reserve Bank of India. It is not the case that the circular of R.B.I. is in possession only of Mr. Kapoor. Any officer in the bank could have produced and proved the circular. That was not done. As the circular was not proved and there was no material whatsoever to connect the applicant no.2 to the crime, the learned Special Judge allowed the application discharging accused No.2. 6. It is not disputed before me that in the absence of circular of the Reserve Bank of India and its proof there is no material on record to show that accused No.2 was in any way concerned with the alleged crime. It is also worthwhile to note that allegation of the bank is - 5 - that fraud was committed by showing excess area of the premises let out. If the contract of lease is contractual, and if the contract was obtained by fraud, it was for the bank to repudiate the agreement of lease obtained by fraud. The contract is not repudiated and still bank is in occupation of the premises and is paying the rent. 7. As regards the allegation that the bank agreed to pay rent in excess of what was originally proposed, it is clearly a transaction of commercial nature and by charging rent at a higher rate than initially proposed the accused No.2 has not committed any offence. He revised the offer for renting the premises by demanding increase in the rate and the bank accepted said offer. No ofence was committed by accused No.2 thereby. 8. In the circumstances, there was no material on record to proceed against the accused No.2. Section 239 Cr.P.C. provides that upon consideration of the record of the case and documents submitted therewith and after hearing the submissions of the accused and the prosecution, if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused. Learned Judge has held that - 6 - there was no material for prosecuting against the accused and I see no error in the said finding. In the circumstances, there is no merit in the Revision Application. The revision application is accordingly dismissed. Rule is discharged. Sd/- [D.G. KARNIK, J.]