Crl.M.No.12837-M of 2009 #1# IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of order: 02.11.2010 Crl.M.No.12837-M of 2009 Surender Kumar Kapoor and another ....Petitioners Versus The Central Bureau of Investigation, Chandigarh ....Respondent And Crl.M.No.14193-M of 2009 Santosh Kumar and others ....Petitioners Versus The Central Bureau of Investigation, Chandigarh ....Respondent CORAM: HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. V.K. Jindal, Advocate for the petitioners. Mr. S.S. Sandhu, Advocate for the respondent. JASWANT SINGH, J This order shall dispose of two petitions under Section 482 Cr.P.C bearing Crl.M.No.12837-M of 2009 filed by the loanee-Proprietor etc of M/s Sawhney International Trade Links and Crl.M.No.14193-M of 2009 filed by the employees of the Bank arising out of FIR No.35/94- 1CHD dated 22.8.1994 registered under Sections 120-B read with Sections 420/477A IPC and 468/471 with Section 13(2) of Prevention of Corruption Act, 1988, P.S CBI, Chandigarh involving common questions of facts and law. With the consent of the parties, facts are being taken from Crl.M.No.12837-M of 2009. It is alleged in the petition that the respondent-CBI registered FIR referred above on the basis of source and the copy of the same is apended as P.1, against (i) S.K. Goel, the then Branch Manager, State Bank of Patiala, Gurgaon, (ii) Ashok Goel, the then Field Officer, State Bank of Crl.M.No.12837-M of 2009 #2# Patiala, Gurgaon, (iii) Parveen Khush, Dealing Clerk, State Bank of Patiala, (iv) Surinder Kumar Kapoor, Prop. M/s Sawhney International Trade Links and (v) M/s Sawhney International Trade Links and the brief allegations are as under: During the year 1989, S.K. Goel, Ashok Goel and Parveen Khush entered into a criminal conspiracy with the present petitioners- Surender Kumar Kapoor, Proprietor M/s Sawhney International Trade Links, C-1, Aditi Apartments D, Janakpuri, New Delhi-petitioner No.1 and Smt Shashi Kapoor, authorized signatory of M/s Sawhney International Trade Links, C-1, Aditi Apartments D-, Janakpuri, New Delhi-petitioner No.2, with the object to cheat the bank and in pursuance of the said conspiracy, they knowingly, dishonestly and wilfully purchased 5 forged and fabricated bills for a total amount of Rs.17,69,343/- under the Over Draft Bill Credit (ODBC) limit from M/s Sawhney International Trade Links (for short “M/s Sawhney International”) and caused loss to the bank. The above named bank officials also allowed M/s Sawhney International to withdraw an amount of Rs.9.5 lacs under the C.C Hypothecation Limit and Rs.2.41 lacs against a letter of credit knowing fully well that there was no stock in the godown of M/s Sawhney International. It was disclosed that the following five bills of M/s Sawhney International which were earlier purchased and payment released through the concurrent account of the firm were shown outstanding as on 6.6.90 amounting to Rs.17,69,347/-. “Sr.No. Bill No. Amount 1. 10447 Rs.1,45,829/- 2. 1066 Rs.99,511/- 3. 1076 Rs.6,04,954/- 4. 1078 Rs.6,13,304/- 5. 1092 Rs.3,05,749/-” Crl.M.No.12837-M of 2009 #3# The allegation against one of the Bank officials-Parveen Kumar was that he did not obtain copy of the Railway Receipt/Goods Receipt at the time of accepting the forged and fabricated bills. It is submitted that sum and substance of the allegations, is that they were negligent in discharge of their duties for not properly verifying, inspecting receipt status of goods/godown. It is alleged in the petition that the amount of loan in dispute was a secured amount against collateral property and as such there was no question of submitting forged and fabricated bills of goods for the release of amount. The allegations that the Bank could not release/recover the aforesaid disputed amount from the petitioners/proprietor firm is without any substance. It is further submitted that there was no criminal conspiracy at all as the basic ingredients of Section 120-B IPC are missing. It is further submitted that the petitioners are senior citizens and for the last 10 years trial is pending for prosecution evidence and more than 25 witnesses are yet to be examined. Twenty years have already elapsed but the trial has not been completed and the petitioners are unnecessarily been harassed and dragged into litigation as they have already entered into a compromise with the bank. The matter has been finally settled vide letter dated 1.2.2006 (P.2). It is further submitted that O.A filed by the bank before Debt Recovery Tribunal, Chandigarh (in short DRT), Chandigarh has been withdrawn by the bank in view of full and final settlement and copy of the order dated 15.5.2006 is Annexure P.3. There is no dispute as on date between the bank and the petitioners and no loss has been caused to the bank and that is why bank voluntarily comprised the matter with the petitioners and in view of the judgment of Hon'ble Supreme Court in case Crl.M.No.12837-M of 2009 #4# titled Nikhil Merchant Versus Central Bureau of Investigation, 2008 (4) RCR 102, the present petition deserves to be allowed being a squarely covered matter. Notice of the petition was issued to the respondent-CBI and they filed their reply and have inter-alia pleaded that the petitioners have entered into criminal conspiracy with the above mentioned bank officials and cheated the bank to the tune of Rs.17,89,963/- and also committed forgery of documents. Under preliminary objections, it was submitted that on the basis of source information, the instant case was registered against the accused petitioners on 22.8.1994 and chargesheet in the case was filed on 13.10.99. The charges were framed against the accused petitioner on 15.5.2001 and the case is at prosecution evidence stage. The accused petitioners have adopted delaying tactics to avoid the trial by filing the present application. The case was registered on the basis of source information and the bank has no right to withdraw the criminal proceedings against the accused petitioners and that the petitioners have committed serious offences of criminal conspiracy, cheating and forgery. On merits inter-alia it is submitted that the accused-petitioners entered into criminal conspiracy with the public servants and presented 15 forged and fabricated ODBC bills which were purchased by accused public servants, bank officials. S.K. Goel, Branch Manager did not conduct any inspection of the factory of the accused-petitioner in the year 1990 although it was obligatory to conduct the inspection each month as per sanction order dated 14.3.89. Sh. A.K. Goel, Field Officer submitted a false report regarding his visits on 30.7.90 and 7.8.90 to the effect that ODBC bills Crl.M.No.12837-M of 2009 #5# amounting to Rs.30 lacs of M/s Sawhney International were pending for payment in the office of Chief Accounts Officer, Department of Supplies, DGS&D, New Delhi, whereas actually no such bills were pending for payment. Submission of 15 forged and fabricated ODBC bills to the State Bank of Patiala by the accused-petitioners and resultantly purchase of these forged bills by the accused public servants, and giving credit on the basis of these forged bills tantamount to criminal conspiracy and cheating and dishonest intention on the part of the accused. Had the forged bills not been submitted there would have been no question of loss to the bank. Out of 57 witnesses, only 17 are required to be examined. There is no delay on the part of CBI while examining the prosecution witnesses, rather the petitioners are delaying the matter on one pretext or the other and that is why the trial has not been completed and the petitioners cannot be allowed to take benefit of this. Offences are not compoundable. It is further submitted that the CBI is not averse to a direction being issued to the learned trial Court to conclude the trial within a time bound period as there is no intention to delay the matter on the part of the prosecution. It is still further submitted that any settlement between the bank and the accused petitioners does not absolve the accused petitioners from criminal proceedings, rather it strengthens the case of the prosecution that the accused petitioners entered into criminal conspiracy with accused public servants of bank and cheated the bank on the basis of forged and fabricated documents. Learned counsel for CBI cites Smt Rumi Dhar v. State of West Bengal and another 2009(2)RCR (Criminal) SC 704, State of Madhya Pradesh v. Rameshwar and Others, 2009(2) RCR (Criminal) SC 709 and Central Bureau of Investigation v. A. Ravishankar Prasad Crl.M.No.12837-M of 2009 #6# & Others 2009(3) RCR (Criminal) 466. After hearing learned counsel for the parties and perusing the paper book, I am of the considered opinion that there is no merit in both the petitions and the same deserve to be dismissed for the following reasons: The undisputed facts, which emerge from the rival contentions of both the parties are that the incident is of 1989-90. FIR was registered on 22.8.1994, report U/s 173 Cr.P.C was presented on 13.10.1999, charges were framed on 15.5.2001, case is at evidence stage and out of 57 prosecution witnesses, 17 are yet to be examined. No doubt, the petitioners were issued “No Objection Certificate” dated 1.2.2006 (P.2) and the matter has been compromised with the bank and as on today, nothing is pending against the petitioners/Proprietor Firm. O.A No.924/2001 filed by the Bank against the petitioners-accused before the Learned Debts Recovery Tribunal, Chandigarh has been disposed of on 15.5.2006 (P.3) and the learned DRT recorded as under: “Since the applicant bank has already received the entire compromise amounts towards full and final satisfaction of its claim, satisfaction is recorded. O.A is allowed to be withdrawn. OA stands disposed off.” The argument that the case of the accused-petitioners is covered by the judgment rendered by Hon'ble Supreme Court in case titled Nikhil Merchant v. Central Bureau of Investigation is not acceptable. In that case Nikhil Merchant was accused No.3 and the Company in respect of which he was former Managing Director, M/s Neemuch Emballage Ltd Mumbai was accused No.4 and the other three accused were bank officials of Andhra Bank. Accused No.4 Company was granted financial assistance by Andhra Bank, Opera House Branch under various facilities. On account Crl.M.No.12837-M of 2009 #7# of default in repayment of the loans, the bank filed suit for recovery and on 19.12.1995, complaint was made by the General Manager and Chief Vigilance Officer of the Bank on the basis whereof investigations were undertaken by CBI which filed chargesheet in the court of Special Judge on 30.12.1998. In that case, loan was advanced to the accused company between 1986 and 1989, suit for recovery of the unpaid dues was filed by Andhra Bank in 1992 and two years thereafter the complaint was lodged by the Bank on 19.9.1994 and the charge sheet was filed by CBI four year later on 30.12.1998. On the basis of compromise the appellant-Nikhil Merchant filed application for discharge from the criminal complaint. Said application was rejected by the Special Judge, CBI, Great Bombay vide order dated 11.12.2002 and the same was challenged before the Bombay High Court in Crl.R.A No.49 of 2005 alongwith several other Writ Petitions filed by the other accused. The High Court rejected the prayer of discharge from the criminal case and in these circumstances matter went to the Hon'ble Supreme Court. In nutshell it was held that since the matter has been compromised between the bank and the Company and all outstanding dues have been cleared and bank does not have any claim against the Company and the dispute involved herein has overtones of a civil dispute with certain criminal facets. Subsequently, Nikhil Merchant's case (supra) has been considered in Rameshwar's case (supra) and it was explained that in that case Hon'ble Supreme Court has taken recourse to Article 142 of the Constitution and after considering the same, it was held in para 39 as under: “The judgments referred to by Mr. Tankha regarding the tendency to convert civil disputes into criminal cases to Crl.M.No.12837-M of 2009 #8# pressurize the accused, are unimpeachable, but the same will not apply to the facts of this case where a conspiracy to cheat the Bank is alleged.” Even in A Ravishankar Prasad's case (supra), the judgment of Nikhil Merchant was referred to by Hon'ble Supreme Court and it was held in para 46 as under: “Before parting with the case we would like to observe that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceeding in the facts of this case.” In Smt Rumi Dhar's case (supra), Hon'ble Supreme Court in para 23 has held as under: “The jurisdiction of the Court under Article 142 of the Constitution of India is not in dispute. Exercise of such power would, however, depend on the facts and circumstance of each case. The High Court, in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure, and this Court, in terms of Article 142 of the Constitution of India, would not direct quashing of a case involving crime against the society particularly when both the learned Special Judge as also the High Court have found that a prima facie case has been made out against the appellant herein for framing charge.” Keeping in view the facts and circumstances discussed hereinabove, merely that trial is pending for the last more than nine years and Bank has issued “No Objection Certificate” dated 1.2.2006 (P.2) is no ground to quash the FIR and consequential proceedings resulting therefrom. However, taking into account the fact that sufficient time has elapsed since the trial had commenced, learned trial Court is directed to expedite the conclusion of the trial preferably within a period of six months from the receipt of certified copy of the order. Both the petitions are dismissed. November 02 , 2010 ( JASWANT SINGH ) manoj JUDGE