IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11 .03.2011 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.R.C.Nos.1427 to 1431 of 2007 Crl.R.C.No.1427 of 2007 State Represented by SPE/CBI/EOW/Chennai .. Petitioner Vs 1.M/s.Kiran Machines No.11, Thangavel Street Gokulam Colony T.Nagar, Chennai rep. By its Managing Partner P.Mohanraj 2.P.Mohanraj S/o.P.Paduvamani Nadar Managing Partner M/s.Kiran Machines .. Respondents Crl.R.C.No.1428 of 2007 State Represented by SPE/CBI/EOW/Chennai .. Petitioner Vs 1.P.Dhanraj 2.Gabriel De Prasad .. Respondents Crl.R.C.No.1429 of 2007 State Represented by SPE/CBI/EOW/Chennai .. Petitioner Vs. Jesu Nelson S/.o.P.Thangaraj Proprietor M/s.Himan Industrial Needs Residing at No.6 Old Mahabalipuram Road Sholinganallur Chennai – 600 096 ...Respondent https://hcservices.ecourts.gov.in/hcservices/ Crl.R.C.No.1430 of 2007 State Represented by SPE/CBI/EOW/Chennai ... Petitioner Vs. S.Rajkumar S/o.Late N.Selvaraj Managing Partner M/s.Bobcock Engineering Corporation and Partner M/s.Neotech Co., Residing at No.3, Ganesh Nagar Apartment Annex Sholinganallur Chennai – 600 096 ...Respondent Crl.R.C.No.1431 of 2007 State Represented by SPE/CBI/EOW/Chennai ... Petitioner Vs. E.Rajagopal S/o.Elian Managing Partnet M/s.Neotech Company Residing at No.24 Sumathi Apartments 57, New Boag Road T.Nagar Chennai – 600 017 ...Respondent Criminal Revision Cases filed under section 397 and 401 of Criminal Procedure Code praying to set aside the orders in Crl.M.P.Nos.93 to 97 of 2006 in C.C.No.10 of 2005 dated 15.06.2007 on the file of the Additional Special Judge for CBI Cases, Chennai. For Petitioner : Mr.N.Chandrasekaran Spl.Public Prosecutor for CBI Cases For Respondents: Mr.J.Pothiraj ORDER These Criminal Revision Cases have been filed by the State represented by SPE/CBI/EOW,Chennai against the orders of the learned trial Judge, namely the IX Additional Judge, City Civil Court https://hcservices.ecourts.gov.in/hcservices/ (Special Judge for CBI Cases), Chennai, dated 15.06.2007 in Crl.M.P.Nos.93 to 97 of 2006 in C.C.No.10 of 2005 on the file of the said Court. 2. Crl.M.P.No.93 of 2006 was filed by M/s. Kiran Machines and P.Mohanraj, Managing Partner of Kiran Machines, who had been arraigned as Accused Nos. 1 and 2 in the above said calendar case. Crl.M.P.No.94 of 2006 was filed by P.Dhanraj and Gabriel De Prasad, who had been arraigned as Accused Nos.3 and 4 in the said calendar case. Crl.M.P.No.95, 96 and 97 of 2006 were filed by Jesu Nelson, S.Rajkumar and E.Rajagopal, who had been arraigned as Accused Nos.6, 7 and 8 in the above said calendar cases respectively. All the five criminal miscellaneous petitions were filed under Section 239 Cr.P.C seeking discharge. The learned IX Additional Sessions Judge (Special Judge for CBI Cases), Chennai, after enquiry, allowed all the five petitions by a common order dated 15.06.2007 discharging all the above said persons in respect of the charge sheeted offences, namely offences under Sections 120-B r/w.420, 409, 467, 468, 471 IPC and under sections 13(2) r/w.13(1)(d) of the Prevention of Corruption Act, 1988. 3. Challenging the discharge of Accused Nos.1 and 2, the State has come forward with Crl.R.C.No.1427 of 2007. As against the discharge of Accused Nos.3 and 4, the State has come forward with Crl.R.C.No.1428 of 2007. As against the discharge of A6, A7 and A8 respectively Crl.R.C.No.1429, 1430 and 1431 of 2007 have been filed. 4.Without there being any complaint from a disclosed identifiable person, a case was registered by CBI in F.I.R.No.RC.I/ (E)/2003 /CBI/BSFC/CNI dated 25.02.2003 on the file of the Special Police Establishment, Central Bureau of Investigation, Economic Offences Wing, III Floor, "A" Wing, Rajaji Bhavan, Besant Nagar, Chennai – 600 090. After completion of investigation, a final report was submitted against Accused Nos.1,2,3,4,5 (T.R.Nagarajan), 6, 7 and 8 alleging commission of offences punishable under Sections 120-B r/w. 420, 409, 467, 468, 471 IPC and Section 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988 and substantive offences thereof. The same was taken on file by the Court below as C.C.No.10 of 2005. On appearance, all the accused persons, except A5 - T.R.Nagarajan, filed petitions under Section 239 Cr.P.C seeking discharge. All those applications were taken on file by the learned trial Judge as Crl.M.P.Nos.83 to 97 of 2006 in C.C.No.10 of 2005, which were disposed of by a common order dated 15.06.2007 discharging the said accused persons in respect of the charge sheeted offences. The same is impugned in these criminal revision cases. 5. The common order in respect of each one of the above said criminal miscellaneous petitions are challenged separately in these criminal revision cases. As all the criminal revision cases are connected and they have arisen from the common order disposing of the https://hcservices.ecourts.gov.in/hcservices/ Criminal Miscellaneous Petitions 93 to 97 of 2006 in C.C.No.10 of 2005 on the file of the trial Court, all these criminal revision cases were taken up for joint hearing and are being disposed of by a common order. 6. The gist of the prosecution case, as revealed by the contents of the final report, is as follows: (i) M/s.Kiran Machines (A1) is a firm of which P.Mohanraj (A2) is the Managing Partner. P.Dhanraj and Gabriel De Prasad (A3 and A4) are other partners. Jesu Nelson is the Proprietor of M/s.Himan Industrial Needs and S.Rajkumar is the Managing Partner of M/s.Bobcock Engineering Corporation. He is also a partner of New Tech. Co. of which A7 Rajagopal is the Managing Partner. One T.R.Nagarajan and one R.Bangarusamy were the Senior Managers of Dena Bank, Alwarpet Branch at various spells during the period concerned in this case. (ii) A2 to A8 entered into a criminal conspiracy with the above said Bangarusamy, the then Senior Manager of Dena Bank, Alwarpet Branch, Chennai with the object of cheating Dena Bank by getting various credit facilities extended to M/s.Kiran Machines (A1) on the basis of forged and fabricated documents regarding valuation of the properties given as collateral securities. Pursuant to the said conspiracy, showing the value of the factory site of A1 at 602, Sholinganallur admeasuring 406 cents to be Rs.1.86 Crores, whereas the value of the factory site was only Rs.16.25 lakhs according to the guidelines value and on conducting independent valuation in 2003, the factory land was valued at Rs.1,01,50,000/-. Credit facilities were obtained in favour of A1 to a larger amount. Similarly, two other properties, namely a vacant land at Chemmanchery Village and a flat at No.9, Gardenvilla Apartments, 34/1, Manapakkam were also given as securities for getting the credit facilities by showing their values at Rs.10,00,000/- each, whereas they were worth Rs.3.59 lakhs and 4.78 lakhs respectively. By thus showing the escalated values of the properties offered as security, a total credit facility of Rs.2 Crores was obtained and as on 10.10.2001, a sum of Rs.4,04,62,840/- towards the financial assistance extended on bill purchase facilities and Rs.1,78,20,561/- in respect of cash credit account were outstanding. In order to avail the credit facilities, forged and fabricated valuation certificates were obtained from M/s.Spectrum Surveyors Inc., a non existing concern. (iii) After availing the credit facilities, two firms were floated by the partners of M/s.Kiran Machines (A1) showing their trusted employees and close relatives as partners, in the name and style of M/s. Himan Industrial Needs and M/s.Metals India and the funds from the cash credit account of A1 were diverted to the said firms by transferring a sum of Rs.4.63 crores to M/s.Himan Industrial Needs and Rs.2.25 Crores to M/s.Metal India. M/s. Himan Industrial https://hcservices.ecourts.gov.in/hcservices/ Needs, of which A6 is shown to be the Proprietor and M/s.Metal India were fictitious firms floated by A2 to A4 in the names of their employees or close relatives. In the pretext of payment of cost of raw materials supplied to the above said firms, A2 to A4 had withdrew Rs.2.03 crores from the cash credit account of A1 firm. Thus, practicing fraud upon Dena Bank, the Accused 1 to 8 committed IPC offences alleged in the final report. In addition to that A5- T.R.Nagarajan and R.Bangarusamy, former Senior Managers of Dena Bank, Alwarpet Branch, Chennai had also committed offences under the Prevention of Corruption Act, namely offence punishable under Sections 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 and the other accused persons are deemed to have committed that offence also, as it was committed in pursuance of the conspiracy between A2 to A8 and the said Bangarusamy. (iv) After completion of investigation, before the submission of the final report, the CBI applied for sanction to the competent authority for prosecuting the said Bangarusamy, who had then been occupying the position of Deputy General Manager of Dena Bank, as the alleged act constituting the offence were said to be committed in discharge of his official functions and also in accordance with the compliance of the requirement provided under Section 19 of the Prevention of Corruption Act. Admittedly, the competent authority refused to accord sanction for prosecuting the above said Bangarusamy. Therefore, the CBI chose to submit a final report arraying the respondents in these criminal revision cases (A1 to A4 & A6 to A8) and A5-T.R.Nagarajan, as the accused. In fact, CBI chose to file the charge sheet against the said Nagarajan (A5) without obtaining an order of sanction stating that since the said Nagarajan had, by the time of filing the charge sheet, retired from service, no sanction for prosecution was necessary. As such the case was taken on file by the trial Judge as C.C.No.10 of 2005. (v) After appearance of parties, except A5, other accused persons filed petitions for discharge. So far as T.R.Nagarajan (A5) is concerned, he died on 21.02.2006 and hence the charges against him stand abated. That is the reason why the other accused persons alone filed the petitions seeking discharge. The learned Special Judge, after considering the materials in the light of the submissions made on either side, came to the conclusion that Accused 1 to 4 and 6 to 8 were entitled to discharge and allowed all the petitions. The said orders are challenged in the present criminal revision case. 7. The arguments advanced by Mr.N.Chandrasekaran, learned Special Public Prosecutor for CBI Cases and by Mr.J.Pothiraj, learned counsel for the respondents were heard. The materials available on record were also perused. 8. The State, through Central Bureau of Investigation, is the petitioner in all the criminal revision cases. The trial Court https://hcservices.ecourts.gov.in/hcservices/ discharged all the accused persons, who are alive, by the impugned common order dated 15.06.2007. The same is challenged in these criminal revision cases. The case of the prosecution is that Dena Bank was cheated by the accused persons to the tune of Rs.2 Crores by availing credit facilities to M/s.Kiran Machines (A1), a firm, by submitting forged valuation certificates regarding the value of the properties offered as collateral security and by diverting the funds of A1 firm to other fictitious firms floated by A2 to A4 and drawing cash from the cash credit account in the pretext of making payment to such fictitious firms for the supply of raw materials. It is pertinent to note that the respondents herein are sought to be prosecuted for an offence punishable under Section 120-B IPC r/w. Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act also. In this regard, the public servant who is said to have committed the said substantive offence, namely Bangarusamy, was not made an accused, since the competent authority declined sanction for prosecuting him. The other public servant, who was sought to be prosecuted was T.R.Nagarajan, arraigned as A5. In the final report it was stated that since he had retired from service, no sanction was necessary. But it must be seen that Section 19 of the Prevention of Corruption Act is different from Section 197 Cr.P.C. Section 197 Cr.P.C provides an embargo on the Court to take cognizance of the offence alleged to have been committed by a public servant, while acting or purporting to act in discharge of his official duty without the sanction of the Government concerned. No doubt, it is true that for prosecuting Nagarajan, no sanction under Section 197 Cr.P.C shall be needed, as he was no longer a public servant on the date of institution of the case by the CBI. But the requirement of an order of sanction for prosecution in respect of an act committed by a public servant, which is punishable under the provisions of Sections 7, 10, 11, 13 and 15 of Prevention of Corruption of Act, shall be applicable even after the person ceased to be a public servant. Whatever it be, whether such a prosecution without the sanction of the competent authority can be maintained has lost its significance and it has turned out to be academical, since A5 is no more and the charges against him stand abated as he died on 21.02.2006. 9. When both the persons who were sought to be prosecuted for the offence punishable under Sections 120-B and under sections 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988, could not be prosecuted because of the absence of sanction against one and the abatement of charges against the other, the prosecution of the other accused persons for the offence under Section 120-B read with sections 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988 shall be without any fruitful result. Allowing the case to proceed further will amount to allow an abuse of process to continue. So far as the other offences alleged in the charge sheet, namely offences punishable under Sections 420, 409, 467, 468 and 478 IPC are concerned, the offence under Section 420 IPC is a compoundable offence. Admittedly, the entire amount due to the Bank was https://hcservices.ecourts.gov.in/hcservices/ subsequently paid and the debt was totally discharged and the Bank also is not having any interest in prosecuting the respondents herein. Therefore, no prosecution for the offence under Section 420 IPC after such compounding shall be allowed to proceed. So far as the offence under Section 409 IPC is concerned, there is no entrustment of property or dominion over the property, to say that the same was misappropriated by the respondents herein. There is also no prima facie material to show forgery and use of the forged document as genuine one for the purpose of availing credit facilities. The main allegation is to the effect that Accused 1 to 4 had shown inflated values of the properties offered as collateral securities, with the fraudulent and dishonest intention of causing wrongful loss to the Bank and wrongful gain to themselves by availing credit faculties. 10. Admittedly, the value of the factory site was given as Rs.1.86 Crores. Its extent is 4 acres and it is in Sholinganallur village. The guideline value, which is available with the Sub- Registrar, is for the limited purpose of collecting stamp duty and registration fees and it cannot be equated with or substituted for the market value. Even as per the independent valuation done by the bank officials, the value of the property was Rs.1,01,50,000/-. The same will show the under valuation by the Investigating agency. According to the prosecution, the vacant land at Chemmanchery Village and the flat at Gardenvilla Apartments, which were worth Rs.3.59 lakhs and 4.78 lakhs, was valued by the respondents 1 to 4 at Rs.10 lakhs each. However, it is not the case of the prosecution that the security offered was insufficient and the bank was not able to realize the amount due to it. Admittedly on the date on which recovery was sought to be made, the value of the securities were several times more than the amount due to the bank and respondents 1 to 4 were able to settle the claim of the bank for a sum of Rs.435.34 lakhs. The Bank had filed a case for recovery of the amount in O.A.Nos.647 of 2001 and 657 of 2001 on the file of DRT, Chennai. In the said cases, a settlement was arrived at and on payment of a sum of Rs.435.34 lakhs, the bank filed a full satisfaction memo and accordingly an order was passed, which reads as follows:- "The applicant bank has filed separate memos of full satisfaction in respect of the above two cases stating that the defendants have paid a total sum of Rs.435.34 lakhs (four hundred and thirty five lakhs and thirty four thousand only) towards full satisfaction of their dues in the present OAs. The applicant bank has received the said amount as full and final settlement of its dues and the bank has also issued a "No Dues Certificate" to the defendants. The applicant bank further prays to record the settlement of the OA claim as settled out of Court and dismiss both the Original Applications. https://hcservices.ecourts.gov.in/hcservices/ The memos are signed by the counsel for the applicant bank as well as the Senior Manager of he applicant bank. Therefore, the present memos are taken on record. Settlement is approved and the OAs are finally disposed as settled out of Court and withdrawn. No order as to costs. Send copy of the order to the parties." 11. The said order was passed much before the filing of the charge sheet. The Investigating agency, without considering the same and without referring to the same and also without considering the fact that the bank is not interested in prosecuting the accused and that the case itself was registered based on source information and not based on the specific compliant of the bank officials, has chosen to submit the final report aiming at the prosecution of the respondents for the above said offences. 12. All the above said aspects have been clearly analysed by the Court below and the Court below has arrived at a correct conclusion that the materials are not enough to make the respondents herein to face prosecution for the offences and that they are entitled to be discharged for the charge sheeted offences, namely offences under Sections 120-B r/w.420, 409, 467, 468, 471 IPC and under sections 13 (2) r/w. 13(1)(d) of the Prevention of Corruption Act, 1988. This Court does not find any defect or infirmity in the order passed by the learned trial Judge. There is no scope for interference with the same. There is no merit in the criminal revision cases and the same deserve to be dismissed. 13. In the result, these criminal revision cases (Crl.R.C.Nos.1427 to 1431 of 2007) are dismissed and the common order passed by IX Additional Judge, City Civil Court (Special Judge for CBI Cases), Chennai in Crl.M.P.Nos.93 to 97 of 2006 in C.C.No.10 of 2005 is confirmed. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar gpa To 1.IX Additional Judge, City Civil Court (Special Judge for CBI Cases), Chennai https://hcservices.ecourts.gov.in/hcservices/ 2.The Public Prosecutor Madras High Court 1 cc to Mr.J.Pothi Raj, Advocate, Sr.No.18583 Crl.R.C.Nos.1427 to 1431 of 2007 TRM {CO} TP/29.3.2011. https://hcservices.ecourts.gov.in/hcservices/