*THE HONOURABLE SRI JUSTICE JUSTICE GOVINDARAJULU +Crl.P. No.2055 of 2006 & 6379 OF 2008 %31-12-2009 Crl.P.No.2055 of 2006 #R.Satyanarayana. ….petitioner Vs. $ State, CBI, rep by Public Prosecutor, High Court of A.P. Hyderabad. …. Respondent !Counsel for the petitioner : Sri K.R.K. Prasad Counsel for the Respondent: T.Niranjan Reddy <Gist : >Head Note: ? Cases referred: 1. AIR 1957 SC 592 2. AIR 1957 SC 458 3. AIR 1961 Supreme Court 578 4.1997(2) ALD (Crl.) 386(SC) *THE HONOURABLE SRI JUSTICE JUSTICE GOVINDARAJULU +Crl.P. No.2055 of 2006 & 6379 OF 2008 %31-12-2009 Crl.P.No.6379 of 2008 #Kota Jaya Sankaram. ….petitioner Vs. $ State, CBI, rep by Public Prosecutor, High Court of A.P. Hyderabad. …. Respondent !Counsel for the Petitioner: Sri Srinivas Reddy Counsel for the Respondent: T.Niranjan Reddy <Gist : >Head Note: ? Cases referred: 1. AIR 1957 SC 592 2. AIR 1957 SC 458 3. AIR 1961 Supreme Court 578 4.1997(2) ALD (Crl.) 386(SC) HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL PETITION Nos.2055 of 2006 and 6379 OF 2008 COMMON ORDER: These two criminal petitions are filed by the accused Nos.2 and 1 respectively for quashing charge sheet in C.C. No.22 of 2005 on the file of Special Judge for C.B.I cases, Hyderabad relating to offences punishable under Sections 120-B, 420 I.P.C and Sections 13(2)/13(1) (d) of the Prevention of Corruption Act. 2) A-1 worked as Branch Manager in Andhra Bank, M.G.Road Branch, Secunderabad. A-2 is Managing Director of M/s.Zental Drugs (P) Limited, Hyderabad. The respondent i.e., C.B.I filed charge sheet against A-1 to A-4 in Rc.37(A)/2003-Hyd, in the lower Court. A-2 applied for loans from A-1’s bank under Open Cash Credit (O.C.C) limits and In-land Letter of Credit (I.L.C) for purpose of running his factory at Yellampet. It is alleged that A-1 as Chief Manager of the Bank during the year 2000-01 conspired with A-2 to A-4 and sanctioned O.C.C of Rs.65,00,000/- and I.L.C of Rs.65,00,000/- to M/s.Zental Drugs(P) Limited for manufacturing of medicines and formulations, on the basis of equitable mortgage of fraudulently acquired property documents pertaining to house belonging to one of the co-obligants Arti Kashyap without her consent and knowledge and that subsequently on advice of Zonal Office, credit limits were reduced to 50% and that on 31.03.2001 A-1 purchased three cheques worth Rs.12.5 lakhs issued by M/s.Pharma Link, a fictitious firm in whose name account was opened by A-3 who was actually employee of A-2 and that the said purchase of cheques was made even though the account was over drawn by Rs.1.77 lakhs by that time and that later those cheques were returned unpaid and that in February, 2001 A-1 issued five I.L.Cs worth Rs.32.25 lakhs without ensuring genuine business transactions and those I.L.Cs were later devolved on the bank as they were not honoured by A-2 and that the bank was put to wrongful loss of Rs.74.33 lakhs causing corresponding gain to the accused. After investigation, C.B.I filed charge-sheet in the lower Court concluding that A-1 abused his official position and conspired with A-2 to A-4 and sanctioned and disbursed credit limits to A-2 without proper post sanction inspection and without ensuring proper end use of funds causing loss of Rs.74.33 lakhs to the bank and that the bank could not recover the loss since collateral security owned by Arti Kashyap was fraudulently obtained by A-2. According to the prosecution, Arti Kashyap of Mumbai who is owner of collateral security of plot No.1017, Survey No.403/1 (Old) and 120 and 102/1(new), Jubilee Hills Co-operative House Building Society, Jubilee Hills, Hakeempet village, Hyderabad and who is not associated with A-2’s company had no knowledge of creating equitable mortgage of her property. 3) While so, on filing private complaint filed by Special Power of Attorney holder of Arti Kashyap against A-1, A-2 and others, the XI Metropolitan Magistrate, Secunderabad referred the complaint to Mahankali Police of Secunderabad for investigation under Section 156(3) Cr.P.C. After investigation, the Sub Inspector of Police, Mahankali Police Station filed charge sheet in Crime No.32/2002 against A-1, A-2 and others in the same Magistrate Court and it was registered as C.C. No.524/2003 for offences punishable under Sections 419, 420, 468, 471, 474, 120-B, 506, 506/109 I.P.C. Averments in that case are to the affect that Jubilee Co-op House Building Society Limited executed sale deed in the year 1987 in respect of the above plot No.1017 of Jubilee Hills in favour of Arti Kashyap and that some impostor got released the pending document from the Sub-Registrar’s Office by paying requisite stamp duty and that several banks including A-1’s bank sanctioned loans on the strength of security of the said registered document in favour of 3rd parties including A-2’s company. 4) There is no dispute that in Lok Adalat conducted by the District Legal Services Authority, C.C. No.524/2003 was compounded as Arti Kashyap received the documents. Consequently the XI Additional Chief Metropolitan Magistrate, Secunderabad (after re-designation of earlier XI Metropolitan Magistrate, Secunderabad) acquitted some of the accused who were parties to the said compounding, including A-1 and A-2 herein. 5) It is contended by the senior counsel appearing for petitioners in both the petitions that in view of acquittal of the petitioners in C.C. No.524/2003, the present case in C.C. No.22/2005 on the file of Special Judge for C.B.I cases, Hyderabad cannot go on against the petitioners as it would amount to double jeopardy. On the other hand, it is contended for the respondent that in C.C. No.524/2003, C.B.I is not a party and that the offence of criminal misconduct under Section 13(2)/13(1)(d) of the Prevention of Corruption Act is not subject matter therein and that therefore, present C.C. No.22/2005 filed by C.B.I against the petitioners and others is not hit by the doctrine of double jeopardy. 6) In C.C. No.524/2003 the petitioners were not charged for offence under Section 13(2)/13(1)(d) of the Prevention of Corruption Act. Subject matter of C.C. No.524/2003 was only fraud played by an impostor in obtaining release of the pending document from the Sub- Registrar’s office standing in the name of Arti Kashyap of Mumbai and subsequent creation of equitable mortgages using the said fraudulently obtained document and obtaining loans by several persons including A-2’s company from several banks including A-1’s bank. Whereas, subject matter of C.C. No.22/2005 is the alleged conspiracy among A- 1 to A-4 and A-1 sanctioning OCC and ILC loans to A-2’s company on the strength of the said fraudulently obtained document and also A-1 fraudulently purchasing three cheques worth Rs.12.5 lakhs on behalf of A-2’s company which cheques were subsequently remained unpaid, even though by the time of the said bills purchase there was already overdraft of Rs.1.77 lakhs by A-2’s company over and above the sanctioned limits. Further, it is alleged in C.C. No.22/2005 that A-1 issued five ILCs worth Rs.32.25 lakhs without ensuring genuine business transactions, which ILCs were subsequently devolved on the bank as they were not honoured by A-2. Total loss to the bank was to the extent of Rs.74.33 lakhs from out of those transactions. The respondent in charge sheet in C.C. No.22/2005 specifically stated that subject matter herein did not include subject matter in Crime No.32/2002 and C.C. No.524/2003 of XI Metropolitan Magistrate, Secunderabad for offences punishable under Sections 419, 420, 468, 471, 474, 120-B, 506/109 I.P.C. Thus, primary subject matter in C.C. No.22/2005 is criminal misconduct on the part of A-1 in conspiracy with A-2 to A-4 punishable under Section 13(2)/13(1)(d) of the Prevention of Corruption Act and Section 120-B I.P.C. Neither offence punishable under Section 120-B IPC nor offence punishable under Section 13(2)/13(1)(d) of the Prevention of Corruption Act is subject matter of previous case in C.C. No.524/2003. In so far as offence punishable under Section 420 IPC is concerned, victim of fraud in C.C. No.22/2005 is Andhra Bank which is a Government of India undertaking, whereas victim of fraud in C.C. No.524/2003 was Arti Kashyap. Therefore, it cannot be contended that Section 420 IPC is common in C.C. No.22/2005 and C.C. No.524/2003. In my opinion, subject matters in C.C. No.524/2003 and C.C. No.22/2005 are entirely different and do not overlap each other. Therefore, it cannot be said that the petitioners are being jeopardised twice for the same offences. 7) In State of Madhya Pradesh V. Veereshwar Rao Agnihotri[1] after referring to an earlier decision in Parkash Gupta V. State of A.P[2] it was observed by the Supreme Court: “the offence of criminal misconduct punishable under S.5(2) of the Prevention of Corruption Act II of 1947 is not identical in essence, import and content with an offence under S.409 of the Indian Penal Code. The offence of criminal misconduct is a new offence created by that enactment and it does not repeal by implication or abrogate S.409 of the Indian Penal Code”. 8) In State of Bombay Vs. S.L. Apte[3] it was held by the Supreme Court that when the offences are distinct, there is no question of Rule as to double jeopardy as embodied in Article 20 (ii) of the Constitution being applicable. In that reported decision after examining facts of that case, it was held that offences punishable under Section 409 IPC and under Section 105 of the Insurance Act are not one and the same and therefore, two trials are not barred. 9) In A.A Mulla V. State of Maharashtra[4] the accused who were employees of Customs Department from whom gold biscuits were recovered, were tried for offence punishable under Section 409 IPC and were acquitted. Subsequently another prosecution was raid on the same accused for offence punishable under provisions of the Customs Act and the FERA. The Supreme Court of India held that subsequent prosecution of the same accused for offences punishable under the FERA are not barred by double jeopardy under Section 300 Cr.P.C as ingredients of offence punishable under Section 409 IPC are different from those offences. 10) Thus, both on facts as well as in law, contention of the petitioners does not stand to scrutiny. I find that there is no legal impediment for the respondent proceeding with prosecution in C.C. No.22/2005 on the file of Special Judge for C.B.I Cases, Hyderabad against the petitioners as the said case is not hit by doctrine of double jeopardy. 11) In the result, both the petitions are dismissed. _____________________________ SAMUDRALA GOVINDARAJULU, J December , 2009 Note: L.R.Copy to be marked (B/o)KSH [1] AIR 1957 SC 592 [2] AIR 1957 SC 458 [3] AIR 1961 Supreme Court 578 [4] 1997(2) ALD (Crl.) 386(SC)