IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE ELEVENTH DAY OF AUGUST TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE G.BHAVANI PRASAD CRIMINAL PETITION NO : 6031 of 2009 Between: A.S. Choudary (A-25) S/o. Late Bapineedu, M/s. Nava Bharat Enterprises Ltd., 76-3-654/A, Somajiguda, Hyderabad ..... PETITIONER AND 1 The State of Andhra Pradesh (CB-CID) rep. by its Public Prosecutor, Hyderabad. 2 The Prudential Cooperative Bank Limited, 8-1-381, R.P. Road, Secunderabad rep. by its Joint Registrar / Liquidator. .....RESPONDENTS Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the grounds filed therewith, the High Court will be pleased to call for the records pertaining to CC No.5/2003 on the file of Special Court cum I Addl. Metropolitan Sessions Judge, Nampalli, Hyderabad and quash the same so far as the petitioner is concerned The Petition coming on for hearing, upon perusing the Petition and the grounds filed in support thereof and upon hearing the arguments of Mr.T. NIRANJAN REDDY, Advocate for the Petitioner and of Mr. V. DHARMA SURI, Advocate for the 2nd respondent and of the Public Prosecutor, on behalf of the 1st Respondent. The Court made the following: ORDER: Heard Sri T. Niranjan Reddy, learned counsel for the petitioner, Sri V. Dharma Suri, learned Standing Counsel for the 2nd respondent and Sri A. Ramesh, learned counsel representing the learned Public Prosecutor for the 1st respondent. The petitioner, who happens to be the Chairman and Managing Director of M/s. Nava Bharat Enterprises Limited, is facing prosecution in C.C. No.5 of 2003 on the file of the Special Court-cum-I Additional Metropolitan Sessions Judge, Nampalli, Hyderabad in connection with the alleged offences punishable under Sections 120B, 420 and 409 of the Indian Penal Code and Section 5 of the Andhra Pradesh Protection of Depositors of Financial Establishments Act, 1999. The loans in favour of the company as well as individuals were alleged to have been sanctioned violating the norms and guidelines issued by the Reserve Bank of India. The petitioner, not only claiming innocence of the offences and also pleading the ingredients of the alleged offences to have not been made out by the material on record, has further submitted that the case against accused 15 to 23 in the same case, was permitted to be withdrawn under Section 321 of the Code of Criminal Procedure and they were acquitted on the ground that the entire loan amount was repaid. The petitioner also approached HDFC bank, which required production of title deed relating to the house No.8-2-325, Rod No.1, Banjara Hills, Hyderabad, as part of security to be provided by the petitioner for advancing to the petitioner the entire loan amount due to the Prudential Cooperative Bank, at the time of sanction of the loan and when the petitioner approached the said bank, he was directed to pay Rs.1.4 crore for release of the document and also produce proof of willingness of HDFC bank. The petitioner paid the amount on 01-05-2009 to the Prudential Cooperative Urban Bank Limited and also furnished willingness certificate from HDFC bank and accordingly, the Prudential bank agreed to cancel its rights in pursuance of the mortgage in respect of the said house, but stated that the document was seized by CBCID, which has to be approached for its return. The petitioner further stated that when he filed Criminal Petition No.116 of 2009 before this Court, he was directed on 16-07-2009 to approach the trial Court, but the trial Court dismissed Criminal M.P. No.673 of 2009 stating that the original document will be required for reference during trial. The petitioner submitted that when the 2nd respondent bank itself has no objection for release of the document and when the petitioner filed an undertaking before the trial Court that the document will be substituted with certified copy and that the petitioner will not dispute the genuineness of the document, the learned trial Judge should not have dismissed the application. The petitioner also relied on a decision of this Court in similar circumstances rendered in W.P. No.16943 of 2007, dated 17-07-2009. The allegations of fact made by the petitioner are not factually in dispute and Sri V. Dharma Suri, learned Standing Counsel for the 2nd respondent bank reiterated that the 2nd respondent has no objection for return of the document, if it enables the petitioner to repay the entire amount due from him to the 2nd respondent as promised. The trial Court in its order in Crl.M.P. No.673 of 2009, after extracting the contentions of both the parties and referring to the relevant provisions, was primarily of the opinion that the original document cannot be said to be not required for reference in the proceedings before the trial Court and the document in question will be necessary to be marked to prove the case against the petitioner and the other accused. While the petitioner’s admission in his affidavit about the genuineness of the document was noted, the trial Court was apprehensive that the other accused may not admit the document. The logic governing the order in W.P. No.16943 of 2007 appears equally applicable to the facts of the present case, more so, when such concession was extended to the other accused in the case, availing which, accused 15 to 23 have repaid the entire amount due from them to the 2nd respondent and also had the benefit of getting acquitted from the case on withdrawal under Section 321 of the Code of Criminal Procedure. If the petitioner were to repay all the balance amount due to the 2nd respondent, after already paying Rs.1.4 crore to the 2nd respondent towards the amount due from his company, the same would be to the benefit of the aggrieved depositors of the 2nd respondent and facilitating such payment by the petitioner will be in public interest and the interests of justice. In so far as the document in question is concerned, when an authenticated certified copy will be placed on record in these proceedings and when the petitioner, who is the Chairman and Managing Director of M/s. Nava Bharat Enterprises Limited, is alone the owner of the residential building in question, any prejudice to the further progress in prosecution due to the unavailability of the document cannot be foreseen, more so, when the petitioner admitted the genuineness of the original document. Even if it were required for purposes of being confronted to other accused or any witnesses during the progress of trial, the same will not be in the hands of an undisclosed person at an undisclosed place, but will be necessarily in the custody of HDFC bank and can be summoned to be produced before the Court from the said bank whenever required. Therefore, the conclusions of the trial Court in Criminal M.P. No.673 of 2009 cannot be concurred with and in the light of the undertakings of the petitioner, the concession of the 2nd respondent and the anxiety of the State being only confined to effective prosecution of the case before the criminal Court, which is not in any way jeopardized by return of the document, the request of the petitioner has to be conceded. The learned Standing Counsel for the 2nd respondent stated that the bank has already agreed to release this property from mortgage in view of the part payment made and the promise made to pay the balance and Sri T. Niranjan Reddy, learned counsel for the petitioner stated that the petitioner has already undertaken before the Court stating that the entire amount as received from the HDFC bank will be paid towards the loan and that the document will not be utilized for any other purpose. Though incidentally the petitioner also sought for quashing of the proceedings themselves, the material on record does not justify any inference that C.C. No.5 of 2003 or the evidence collected during investigation produced before the Court in that case by statutory investigating agency, do not disclose even, ex facie, any material to implicate the petitioner. As such, without going into the merits of the request of the petitioner in that regard, no relief of quashing the proceedings themselves can be granted in exercise of inherent jurisdiction, which is available only in rarest of rare cases. Similar is the request of the petitioner to dispense with his appearance in view of his age and ailments, which request is more appropriate to be made before the trial Court. Hence, the consideration herein is confined only to the request for return of the document in question. However, this order will not preclude the petitioner from again knocking at the doors of this Court, if he is so entitled to under Section 482 of the Code of Criminal Procedure during further stages of the same case. In the result, the document of title/documents of title relating to residential building No.8-2-325, Road No.1, Banjara Hills, Hyderabad in the custody of the trial Court shall be returned to the Liquidator of the 2nd respondent/Prudential Cooperative Bank Limited under proper acknowledgement on the petitioner furnishing certified copy/copies of such document/documents of title to the trial Court and the said Liquidator of the 2nd respondent/Prudential Cooperative Bank Limited is permitted to return the said document/documents of title to the petitioner after completion of the required formalities and under proper acknowledgement subject to the petitioner filing an undertaking affidavit to pay the entire amount that the petitioner will be receiving by way of loan from HDFC bank, to the credit of the amounts due from him or M/s. Nava Bharat Enterprises Limited to the Prudential Cooperative Bank Limited and to receive only the balance, if any, after full satisfaction of such amounts due to the Prudential Cooperative Bank Limited. The criminal petition is ordered accordingly. _____________________ G. BHAVANI PRASAD, J Date: 11-08-2009 Note: Issue C.C. by 13-08-2009 (Bo) Svv ASSISTANT REGISTRAR // TRUE COPY // SECTION OFFICER To 1.Two CC's to Public Prosecutor 2.Two CD Copies 3.One CC to Form-NIC-0GS/CRLP{MSN}