IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.387 OF 2001. WRIT PETITION NO.387 OF 2001. WRIT PETITION NO.387 OF 2001. Shrinivas Dattatraya Bendre. ..Petitioner. versus Central Bureau of Investigation Anti Corruption Bureau, Bombay) and State of Maharashtra. ..Respondents. .... Mr. A.S. Khandeparkar, for the Petitioner. Mr.J.C.Satpute, for the Respondent No.1. Mr.Y.S.Shinde, APP, for the Respondent No.2. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 21ST JULY,2008. : 21ST JULY,2008. : 21ST JULY,2008. ORAL JUDGMENT : 1. The learned Counsel appearing for the parties were heard on the last date. By this Criminal Writ Petition under Article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973, the Petitioner has taken an exception to the judgment and order dated 4th December 2000, passed by the learned Special Judge (CBI), Mumbai. 2. Heard the learned Counsel appearing for the - 2 - parties. It will be necessary to refer to the facts of the case in brief. The Petitioner was an employee of Bank of Maharashtra. On 1st April 1966, the Petitioner joined the employment of the Bank of Maharashtra. It is stated that on 17th August 1987, the Petitioner assumed the charge of the post of the Deputy General Manager, Bombay Metropolitan Zone and continued to hold the charge of the said post till 20th October 1988. 3. The Petitioner was charged with offence under sections 120B read with 420 of the Indian Penal Code and section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988. 4. It is alleged by the prosecution that Jayantilal Group of Companies was having various accounts with the Bank of Maharashtra, Nepean Sea Road Branch, Mumbai, and the said group of Companies enjoyed various credit facilities sanctioned by the said Bank from time to time. Shri Jayantilal L. - 3 - Shah and Shri Narendra L. Shah were operating the said accounts. It is alleged that the said Jayantilal L. Shah and Narendra L. Shah with one D.V. Jagtap, Branch Manager of the Nepeansea Road Branch, Shri S.M. Chitnis, General Manager operations and Shri D.P. Kanvinde, Deputy General Manager of Bank of Maharashtra and the Petitioner entered into a criminal conspiracy to cheat the Bank of Maharashtra. The allegation against the Petitioner and other Officers of Bank of Maharashtra was that the said persons entered into a criminal conspiracy with a view to cause wrongful loss to the Bank of Maharashtra by the sanction and disbursement of various credit facilities to the Jayantilal Group of Companies. 5. It is alleged that one of the group Companies, M/.s Kuber Enterprises Private Limited made a request for sanction of temporary overdraft of Rs. 5 lacs. The grant of said facility was recommended by Shri D.V.Jagtap and was sanctioned by Shri D.P. Kanvinde for a period of one month. It is alleged that the said sanctioned amount of temporary - 4 - overdraft was diverted to another account of the said group standing in the name of M/s. Lalchand Chhaganlal Foundation Trust. It is alleged that the Petitioner by writing a letter instructed the said Shri D.V.Jagtap to clear the temporary overdraft account by transferring the funds from the account of M/s. L.C.F Trust account of Shri J.L.Shah for the purpose other than the purpose sanctioned for. 6. It is alleged that Shri D.V.Jagtap recommended a proposal of M/s. Kuber Enterprises Private Limited for grant of a loan of Rs. 30 lacs. It is alleged against Shri D.V.Jagtap that he did not carry out proper verification and did not ask for search of the records of the property. It is alleged that after receiving recommendations from Shri D.V. Jagtap, the Petitioner ignored all the short-falls in the proposal and put up a note under his signature on the proposal to the effect "Recommended to Central Office on the following terms and conditions." Thereafter, he struck out the recommendation with instruction to redraft the same. However, it is alleged that the handwritten endorsement was typed in - 5 - verbatim and put before Shri S.M.Chitnis, the Deputy General Manager (Operations) camping at Mumbai. It is stated that the said S. M. Chitnis, General Manager (Operations) in his own handwriting put remarks on the proposal stating that the proposal can be considered and approved. He further remarked that as it was a group proposal, it will have to go to an Appropriate Authority. The allegation is that the Petitioner informed the Branch Manager that the said proposal was put up before the Executive Director, who has given consent to the said proposal. It is alleged that with a dishonest intention , the said Shri D.V. Jagtap allowed the disbursement of above sanctioned loan of Rs.30 lacs without seeking compliance of stipulated conditions of sanction. It is alleged that the Petitioner alongwith others entered into a criminal conspiracy with dishonest intention to cheat the Bank. 7. The Petitioner made an application before the learned Special Court for grant of discharge. The said application was rejected by an order dated 4th December 2000. - 6 - 8. The submission of the learned Counsel appearing for the Petitioner is that no offence was made out as against the Petitioner. It is submitted that the Petitioner had not sanctioned any loan or facility to the borrowers as in case he was not the sanctioning authority. He invited my attention to order of this Court passed in Criminal Writ Petition nos.1339/2005 and 136/2005 and 832/2005. He submitted that the proceedings against the two co-accused have been quashed by the said order. He also placed reliance on a decision of learned Single Judge of this Court dated 26th November 2001 [2002 All.M.R. (Cri.) 495] in Criminal Writ Petition filed by the Petitioner himself. His submission is that the learned Special Judge has glossed over the vital aspects of the case and has erroneously rejected the application for discharge filed by the Petitioner. It is submitted that the case was covered by the aforesaid decision rendered in the case by the Petitioner himself. 9. The learned Counsel appearing for the first - 7 - Respondent invited my attention to allegations made against the Petitioner by the prosecution and submitted that the prosecution needs to be given a chance to substantiate the allegations by adducing the evidence. The allegations are as regards commission of offence under the provisions of the Prevention of Corruption Act, 1947. It is submitted that no interference was called for with the impugned order. 10. I have considered the submissions. It must be stated here that it is not even the case of the prosecution that the Petitioner had any authority to sanction the loan or temporary overdraft facility. The allegation is that the Petitioner accepted the recommendation of Shri D.V.Jagtap, Branch Manager and forwarded the proposal to the higher Officer for approval. The said proposal was recommended by a higher Officer, Shri S.M.Chitnis and immediately thereafter, the Petitioner communicated the approval of the proposal to the borrower. 11. In so far as the amount payable to the Bank - 8 - is concerned, it appears that now there has been a settlement between the borrowers and the Bank and now no amount is payable to the Bank. It is stated that the prosecution against the co-accused has been quashed. The allegation of the prosecution in short is that : "That the above said persons entered into a criminal conspiracy with one another with dishonest intention to cheat Bank of Maharashtra in order to cause wrongful loss to the Bank and corresponding wrongful gain to themselves in the matter of sanction and disbursement of various credit facilities to Shri Jayantilal L.Shah and Narendra L. Jain in their one of the group accounts namely M/s. Janak Texturisers Pvt. Ltd." It will be necessary to refer to the decision of the learned Single Judge of this Court in the aforesaid case of the Petitioner himself. The Petitioner in the said case was also an Accused in a similar case. By the impugned judgement and order, the proceeding - 9 - against the Petitioner was quashed. In paragraph no.11 of the said decision, the learned Single Judge has observed thus :- "11. Another aspect of the matter is that merely because the loan is ultimately found to be a bad debt and suit is required to be filed for recovery, it does not necessarily mean that the person recommending the loan had dishonest intention. There should be something more on record to impute such intention to the recommending authority. Unfortunately the prosecution has not brought any material on record to suggest that the petitioner had suppressed any material fact or had not acted bonafide while sending recommendation with certain conditions. Merely because the petitioner did not recommend refusal of the proposal, it is not possible to impute malafides to him. He had taken necessary precaution to inform the superior authority that the sanction should be subject to certain conditions and as seen - 10 - from the statement of Mr. Bumkar, even from the letter of Mr.Gaonkar it was clear that Gaonkar did not feel that it was a proposal which was not fit for sanction. If later on when the matter is under investigation he gives opinion that it was not fit for sanction then on the basis of it, the charge of conspiracy or charge of being involved in offences punishable under section 420 IPC or section 5(2) r/w. section 5(1)(d) of the Prevention of Corruption Act, 1947, cannot be framed. The learned trial Judge has not considered all the aspects of the matter and was not even justified in his concluding remark that the petitioner has a role as an officer, without in any way trying to find out as to what was his role and therefore, the petitioner is, in my view, entitled to discharge." 12. What is held by the learned Single Judge in the said case is squarely applicable even to the present case. As stated earlier, the prosecution as - 11 - against some of the co-accused has already been quashed. The allegation against the Petitioner in the present case is that he recommended the proposal for the sanction of loan to his superior officer. This is also a case where the loan had turned out to be a bad debt. 13. The perusal of the impugned order passed by the learned Special Judge shows that the allegations made against the Petitioner have not been examined and without examination on material on record, the application for discharge made by the Petitioner has been rejected. It is not in dispute that the decision of the learned Single Judge in the other case of the Petitioner has become final as of today. Considering the role alleged against the Petitioner he could not have been charged with the conspiracy of being involved in offences under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 read with section 420 of the Indian Penal Code. 14. Considering the aforesaid discussion, the - 12 - Petition must succeed and the same is allowed in terms of prayer clauses (a) and (b). [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]