1 CRA-731-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL REVISION APPLICATION NO. 731 OF 2009 Shri Suryakant Gulabrao Helkar ... Petitioner (orig. accused No.4) Vs. 1. State of Maharashtra (at instance of CBI, ACB ,Mumbai) 2. C.B.I. .. Respondents Mr. A.P.Mundargi Senior Counsel i/b. Mr. Ganesh Gole,Advocate, for the petitioner. Ms. U.V.Kejriwal, APP, for the respondent No.1 - State. Ms. Rebecca Gonsalvez, Advocate, for the respondent No.2 - CBI. CORAM: J.H.BHATIA,J. DATE : 20th April, 2011. P.C. 1. This Revision is filed by the original accused No.4 challenging rejection of his application for discharge. 2. To state in brief, a FIR was lodged on 29.3.2005 by Mr. Suresh Bhandary, Chief Manager of Punjab National Bank, Cuffe Parade, Mumbai, alleging that Virendra Kumar Srivastav, the then Sr. manager of Punjab National Bank, Worli Sea Face Branch and one Vijay Mahagaonkar, the sole proprietor of 2 CRA-731-09.sxw M/s. Super Chemical Products and M/s. Laxmi Dry Cleaners, had entered into a conspiracy and said Vijay Mahagaonkar was granted term loan as well as bill discounting facility. A cash credit limit of Rs.30 lakh was given in the name of M/s. Super Chemical Products against equitable mortgage and he was also authorized to discount the bills against the Bank guarantee. Similar facility was given in the name of M/s. Laxmi Dry Cleaners. Later on, it was revealed that the property under equitable mortgage was already mortgaged with other financial institutiions and the documents pertaining the bank guarantee were fake. In this transaction, the Bank had suffered loss of Rs.124.60 lakh and the said amount was misappropriated by accused No.3 - Vijay Mahagaonkar. In the FIR it was contended that the present petitioner - Suryakant Helkar had introduced said Vijay Mahagaonkar to the Bank. On the basis of that, after investigation, charge-sheet was filed against accused Nos. 1 and 2, who are the Bank officers and accused No. 3 Vijay Mahagaonkar as well as the present petitioner, who is accused No.4. During investigation, it was revealed that the petitioner, who is accused No.4, had received amount of Rs.13.5 lakh from accused No.3 out of the loan amount received by him from the Bank. 3. According to the petitioner, he had no concern with the transaction between the Bank and the accused No.3 Vijay Mahagaonkar nor he had introduced 3 CRA-731-09.sxw said Vijay Mahagaonkar to the Bank. According to him, he had independently of the said transaction, certain transactions with accused No.3 and there is no material to frame any charge against him.. 4. After hearing the learned Counsel for the petitioner and the learned Counsel for the C.B.I., and perusal of record, it appears that except in the FIR dated 29.3.2005 filed by Shri Suresh Bhandary, Chief Manager, Punjab National Bank, Cuffe Parade, Mumbai, there is no evidence, oral or documentary, to show that the present petitioner had introduced Vijay Mahagaonkar, accused No.3 to the Bank. Shri Suresh Bhandary was working at Cuffe Parade office and not at Worli Sea Face Branch. Therefore, he could not have personal knowledge about introduction of accused No.3 Vijay Mahagaonkar to the Bank by the Petitioner. It is also conceded by the learned Counsel for the CBI that the present petitioner was neither a guarantor for the said loans nor he was a witness to any of the documents executed between the parties. One Nagesh Malge had introduced said Vijay Mahagaonkar and was also a guarantor of the loan given to Vijay Mahagaonkar. However, said Nagesh Malge was not made an accused in the present case. Only contention against the present petitioner is that out of the total advances of Rs.1,16,83,000/-, the present petitioner had received amount of Rs. 13.5 lakh. The learned Counsel for the petitioner has produced the extract from 4 CRA-731-09.sxw the account books maintained by the petitioner to show that he had transactions with Super Chemical Products and Laxmi Dry Cleaners of Vijay Mahagaonkar even prior to the loans were sanctioned in the present case and as per the said account, the petitioner had paid an amount of Rs.10.5 lakh and had received Rs. 13.5 lakh. The payments received by him were by cheque and the payments made by him were in cash and these payments in case purport to be supported by the receipts issued by the accused No.3 Vijay Mahagaonkar. The learned Counsel for the petitioner pointed out that several amounts must have been paid out of the loan obtained by accused No.3 Vijay Mahagaonkar from the Bank, but except the present petitioner, none of the other persons who had received the amounts, is made accused in the case. 5. The learned Counsel for the CBI contends that the documents, produced before this Court were not produced before the trial Court along with the application for discharge. According to the learned Counsel for the petitioner, these documents are only produced to show that there were several transactions between the parties and receipts were only as part of the said transaction. The learned Counsel contends that even if these documents are kept aside, the prosecution will have to explain why only present petitioner is chosen to be accused for being a receiver of Rs.13.5 lakh, while many other parties, including 5 CRA-731-09.sxw Shri Saibaba Sales, who had received receipt of Rs.15 lakh by two cheques, were not made accused. There is no explanation as to why other receivers of the amounts from the accused No.3 are not made accused. 6. In view of the above material, it appears that except receipt of Rs.13.5 lakh by the present petitioner from the accused No.3 Vijay Mahagaonkar, there is no other oral or documentary evidence to establish that the present petitioner was involved in the conspiracy among the accused Nos. 1 to 3. In view of the facts noted above, a strong suspicion could be against Nagesh Malge, who had introduced accused No.3 and who was also a guarantor, but he was not made an accused. As the petitioner had neither introduced Vijay Mahagaonkar to the Bank nor he was a guarantor nor he was a witness to the documents between the parties, it is impossible to come to conclusion that he was one of the conspirators merely because he had received amount of Rs.13.5 lakh by cheques from the accused No.3. If the receipts from the accused No.3 would be the criteria to make a person an accused in the case, then several other parties, who had received amounts from accused No.3 out of the loan taken by him from the Bank, could have been made accused in the present case. In view of the above circumstances, I find that there was no material to implicate the present petitioner and certainly there is no material to frame a charge against him. 6 CRA-731-09.sxw 7. In view of the above circumstances, Revision Application is allowed and the impugned order is set aside. The petitioner is hereby discharged from Special Case No.30/2007 arising out of FIR No. RC BA1/2005/A0013 registered at CBI, ACB, Mumbai. (J.H.BHATIA,J.)