1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.188 OF 2009 Bharat Harsukhlal Shah .. Petitioner Vs CBI BS & FC Mumbai & Another .. Respondents WITH CRIMINAL REVISION APPLICATION NO.189 OF 2009 Alka Mahendra Pandey .. Petitioner Vs CBI BS & FC Mumbai & Another .. Respondents M.M. Vashi, Advocate for the petitioner H.V. Mehta and S.K. Shinde for respondent no. 1 Miss. A.T. Javeri, APP for State CORAM : A.S. OKA, J DATE : 18th JULY, 2009 P.C.: 1. Heard submissions of the learned counsel for the applicant in both revision applications. The challenge in these revision Rma revn188&189-09.sxw 2 applications is to the order passed by the learned Special Judge by which the application for discharge made by the applicants has been dismissed. The Criminal application No. 188 of 2009 has been filed by the accused no. 9 and the criminal application no. 189 of 2009 has been filed by the accused no. 5. 2. Dena Bank lodged a complaint with the Central Bureau of Investigation regarding fraud committed at New Marine Lines Branch by Gaurav Continental Trading Limited. The allegations in the complaint was that the said Gaurav Continental Trading Limited was the customer of the Dena Bank and the said bank had granted credit facilities to the said company. On the request of the said company, Dena bank had issued letters of credit from time to time. The allegations in the complaint relate to the certain letters of credit. The allegation relates to the letter of credit dated 11th September 2001 in the sum of Rs. 24,97,800/- which was opened in favour of M/s. Shree Trading Company by M/s. Gaurav Continental Trading Limited. It is alleged that bogus bills and delivery challans for purported sale of mulberry raw silk were prepared by the accused no. 9 on behalf of Rma revn188&189-09.sxw 3 M/s. Shree Trading Company and presented at the Bank of Saurashtra for discounting the same. The said Bank of Saurashtra after obtaining confirmation from accused no. 1, released the amount of Rs. 24,42,953/- in favour of M/s. Shree Trading Company. The allegation is that the accused no. 9, out of the amount of letter of credit, retained a sum of Rs. 3 lacs and transferred the amount of Rs. 21,42,953 on 20th September 2001 to the account of M/s. Gaurav Continental Trading Limited. The allegation of the prosecution is that the letters of credit were opened by the said the Gaurav Continental Trading Limited and M/s. Uma Petroproducts India Limited in favour of the various authorities. The proceeds of letters of credit were brought into accounts of M/s. Mahesh Kothari Shares and Stock Brokers Pvt Ltd and M/s. Alka Technolgies Broking Limited in which the accused no. 5 (applicant in Criminal Application No. 189 of 2005) is a director. The allegation is that the amounts under the letters of credit were fraudulently obtained by defrauding Dena Bank and other banks and the amounts were withdrawn by the accused no. 5. The allegation is that the accused no. Rma revn188&189-09.sxw 4 5 transferred some of the amounts to the co accused. The allegation against accused no.5 is that she has played vital role in defrauding Dena bank in connivance with the others. 3. The learned counsel for the applicants invited my attention to the chart annexed to the reply filed by the CBI. He submitted that the amounts payable under the letters of credit are available with Dena Bank and the said bank has not paid the amounts to the discounting bank. He pointed out that as far as applicant - accused no. 9 is concerned, he had delivered the goods to M/s. Gaurav Continental Trading Limited. The said company returned the said goods. He submitted that there is no material on record to show that the transaction of sale of goods was not a genuine transaction. He submitted that Dena bank has suffered no loss and in fact, the discounting banks which have suffered loss ought to have made a grievance. He submitted that there was no material for filing charge sheet to proceed against the accused no. 9. In case of accused no. 5, the learned counsel reiterated that the Dena Bank has suffered no loss. He submitted that merely because the accused no.5 has received Rma revn188&189-09.sxw 5 some amount,it cannot be said that she has committed any offence. He submitted that there was no material to proceed against the accused no. 5. The learned counsel appearing for CBI supported the impugned judgment and orders. 4. I have carefully considered the submissions. It must be noted that at this stage the case is at the stage of framing charges. The detailed scrutiny of evidence is not permissible at this stage. As far as accused no. 9 is concerned, the allegation against him is that bogus bills of raw silk were prepared by him and presented to the State Bank of Saurashtra. After the said accused got the proceeds of letters of credit amounting to Rs. 24,42,953/-, the accused no. 9 retained only sum of Rs. 3 Lacs for himself and transferred the balance amount to M/s. Gaurav Continental Trading Ltd in its account in another bank. The name of the said bank is Pen Urban Co-operative Bank Limited. The said amount was utilized by the said M/s.Gaurav Continental for clearing its other dues. The case of the prosecution is that the alleged delivery challans were found to be incomplete in various respects and in fact the address of the consignee and mode of transport had not Rma revn188&189-09.sxw 6 been mentioned on the alleged delivery challans. Therefore, the case of the prosecution is that the accused no. 9 did not deliver the goods to M/s. Gaurav Continental Trading Limited. The most important circumstance is that after letter of credit amount was released, only a minor part thereof was retained by the applicant and the balance was transferred to M/s. Gaurav Continental Trading Limited. In the circumstances, it cannot be said that there was no material to proceed against the accused no. 9. 5. As far as accused no. 5 is concerned, it must be here noted that there is material on record to show that the accused no. 5 is a director of companies M/s. Alka Securities Limited and Ganesh Kothari Shares and Stock Brokers Pvt Ltd. She is a partner of M/s. Tejas and Company. The prosecution is relying upon the 15 different transactions of letters of credit. The aforesaid companies have been been involved in 14 transactions. The allegation is that accused nos. 3 and 4 have connived with the accused no. 5 for defrauding Dena Bank and other banks. There is a charge of criminal conspiracy . The charge is of offence under Section 120(B) read with Section 409, 419, Rma revn188&189-09.sxw 7 420, 467, 468, 477 of IPC. The allegation is that the transaction relating to the letters of credit were not genuine transactions. 6. In the circumstances, the submission made by the learned counsel for the applicant that there is no loss caused to Dena Bank has no relevance at this stage when the case is at the stage of framing charge. There is sufficient material to proceed against accused nos. 5 and 9 and therefore, the learned Special Judge had rightly rejected the prayer for discharge. Hence, I pass the following order: O R D E R i. Revision applications are rejected. ii. It is, however, clarified that the observations made in this order are for limited purposes of examining legality and validity of the impugned order by which prayer for discharge was rejected. All contentions of the applicant on merits are kept open. iii. Relief of ad interim stay granted earlier on 23rd April 2009 will continue to operate for a period of 8 weeks from today. JUDGE Rma revn188&189-09.sxw 8 Rma revn188&189-09.sxw