Case: S. Mohan Vs. Central Bureau Of Investigation

committed by the appellant Hiten P. Dalal. He has not acted contrary to the direction of any person who has entrusted these units to him and it is proved that it was the appellant Hiten P. Dalal himself who was the apparent owner of these units.12. As regards appellant S. Mohan who was one of the Asst. Vice- Presidents of CANFINA, the prosecution case is that he had telephonically informed PW 6 Mr. Vernekar to accept the CANCIGO Units. PW 6 Vernekar is an Officer of the Canara Bank who had been authorized by the Board Resolution to deal in Securities/Bonds and execute securities transactions on behalf of CANFINA. He deposed that he used to receive telephonic instructions from Bangalore and recorded these instructions in rough transaction sheets. He has proved the rough transaction sheets including the rough transaction sheet on which Ex-51A has been noted. PW-6 deposed that the Entry pertaining to purchase of CANCIGO Units of the face value of Rs. 33 crores from accused No. 4 was made on the basis of the instructions received from accused no. 3, namely, appellant S. Mohan. He also deposed that the appellant S. Mohan sent an Inter Branch Advice No. 32894 by which the funds were transferred from Bangalore to Bombay in order to facilitate the payment. He deposed that the date 6th February 1992 was written because CANFINA Bangalore had purchased CANCIGO Units of face value of Rs. 33 crores on 6th February 1992. He also deposed that appellant S. Mohan had told him that a sum of Rs. 25,01,67,129/- was recoverable from accused no. 4 against some transactions and that this amount was to be adjusted against the transaction of purchase of CANCIGO Units of face value of Rs. 33 crores. All these evidence would only show that the appellant S. Mohan was involved in the transaction. The prosecution could not prove that there was any illegality in these transactions. The only illegality pointed out by the learned Counsel for the CBI is that these CANCIGO Units were not liable to be transferred and the Andhra Bank and Andhra Bank Financial Services Limited could not have transferred it to the appellant Hiten P. Dalal. So long as the CANFINA has no grievance or complaintagainst the appellant S. Mohan that he acted contrary to their directions and accepted the CANCIGO Units and paid the money to the appellant Hiten P. Dalal, no offence is made out against the appellant S. Mohan either of Criminal Breach of Trust or conspiracy. In fact, PW 1 (Mr. Kini, Executive Vice President) has admitted that CANFINA used to regularly deal in CANCIGO Units, that neither the Audit nor RBI made any remarks regarding transactions relating to CANCIGO Units and all the transactions relating to CANCIGO Units were in the ordinary course of business. Neither Canara Bank nor CANFINA had initiated any disciplinary proceedings against him. They have also not disputed the genuineness of the CANCIGO Units which were got encashed by the appellant Hiten P. Dalal. 13. The Managing Director of CANFINA (K.N. Kamath) was examined as PW 16. He admitted that CANFINA did not file any complaint with CBI regarding purchase of CANCIGO Units of Rs. 33 crores; that according to CANFINA, the CANCIGO Units were purchased for valuable consideration in the normal course of business; that CANFINA stood by the transactions of purchase of CANCIGO Units of Rs. 33 crores; that CANFINA was not induced to purchase the CANCIGO Units of Rs. 33 crores by any false representation. 14. In the circumstances, no ingredient of criminal breach of trust is made out against either of the appellants.15. The prosecution also could not prove any conspiracy by these accused persons to commit any criminal acts. So long as there was no such evidence, the offence of conspiracy is not proved against these appellants.16. The appellant Hiten P. Dalal has been found guilty for the offence punishable under Section 411 alleging that he dishonestly received the stolen property or retained the same. No ingredients of this offence have been proved against him. So long as the prosecution admits that the CANCIGO Units worth Rs. 33 crores were purchased by making use of the money owned by him, they were not stolen property in the hands of the appellant Hiten P. Dalal. Neither, the Andhra Bank nor the Andhra Bank Financial Services Limited has any case that these CANCIGO Units were stolen by the appellant Hiten P. Dalal. As the offence of Criminal Breach of Trust is also not made, the conviction of the appellant under Section 411 is not sustainable and is liable to be quashed. So also, the appellant S. Mohan is not liable for the conspiracy to commit offence under Section 411 IPC.17. The appellant S. Mohan has been found guilty of offence punishable under Section 13(1) (c) and 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act. This appellant was one of the Asst. Vice-Presidents of the CANFINA dealing with CANCIGO Units. There is no allegation that he committed any illegality. The allegation against him is to the extent that he accepted the CANCIGO Units though they stood in the name of the Andhra Bank and Andhra Bank Financial Services Limited. These CANCIGO Units were worth Rs. 33 crores and they were accepted with the proper authorization by the higher authorities in the CANFINA. It is highly improbable to believe that appellant S. Mohan on his own decided to accept CANCIGO Units worth Rs. 33 crores without any instructions. CANFINA did not file any complaint alleging any unauthorized transaction carried out by him. Now it has been held by this Court that the entire transaction was legal and the CANFINA was entitled to the proceeds of these CANCIGO Units and not the "Custodian" under the Act. Therefore, the appellant S. Mohan is not guilty of the offence punishable under Section 13(1) (c ) and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. These two appellants were found guilty by the Special Court mainly on the ground that the CANCIGO Units issued by CBMF of the face value of Rs. 33 crores stood in the name of the Andhra Bank and Andhra Bank Financial Services Limited and the appellant Hiten P. Dalal was not entitled to get transfer of these CANCIGO Units and that the appellant S. Mohan (in Criminal Appeal No. 906 of 1998) was instrumental in such transaction and thus entered into a conspiracy with the accused no. 4. Both the appellants have been found guilty of offences punishable under Section 406 namely, Criminal Breach of Trust. It is important to note that, in the instant case, there was no complaint either by the Andhra Bank or the Andhra Bank Financial Services Limited that these appellants committed any criminal breach ofis true that if a person entrusted with property dishonestly misappropriates that property, such misappropriation in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made in regard to discharge of such trust, will be guilty of criminal breach of trust. According to the prosecution, both these appellants acted contrary to the express condition that these CANCIGO Units were not liable to be transferred within a period of one year and in spite of this, the Andhra Bank as well as Andhra Bank Financial Services Limited transferred the units in favour of the appellant Hiten P. Dalal and enabled him to encash the CANCIGO Units with the connivance of appellant S. Mohan and that constituted the offence of Criminal Breach of Trust. It was alleged that Accused No. 3 while employed by CANFINA, obtained for Accused No. 4, a pecuniary advantage of Rs. 33 crores by illegally purchasing CANCIGO Units and committed criminal breach of trust in regard to the employers funds of Rs. 33 crores. It is important to note that these Units were issued by CBMF. They had imposed restrictions regarding transfer of CANCIGO Units. They have not filed any complaint alleging that transfer of these Units by appellant Hiten P. Dalal was contrary to rules. There is no express law or statutory rules prohibiting the transfer of CANCIGO Units except the terms of the scheme framed by CBMF. They are not statutory rules and purely contractual. It is also pertinent to note that neither the Andhra Bank nor the Andhra Bank Financial Services Limited filed any complaint alleging that the appellant Hiten P. Dalal acted contrary to their directions. Nor did CANFINA complain that appellant S. Mohan had committed criminal breach of trust in regard to these transactions of CANCIGO Units.It is not disputed that CANCIGO Units worth Rs. 33 crores were purchased by Andhra Bank or Andhra Bank Financial Services Limited by making use of the money owned by the appellant Hiten P. Dalal. These two financial institutions impliedly agreed to lend their name and allowed the appellant Hiten P. Dalal to purchase CANCIGO Units in their name. It is also important to note that interest due on the CANCIGO Units worth Rs. 33 crores received from CBMF by Andhra Bank and Andhra Bank Financial Services Ltd. were credited to the account of the appellant Hiten P. Dalal. Therefore, it is clear for all practical purposes that the CANCIGO Units worth Rs. 33 crores were purchased by the appellant Hiten P. Dalal and he transferred these units to CANFINA and CBMF did not raise any objection in respect of transfer of the CANCIGO Units by the appellant Hiten P. Dalal. If at all, it was for the CBMF to raise any objection but they did not raise any objection for the transfer of the CANCIGO Units. It has been held by this Court in Canbank Financial Services Ltd. (supra) that the custodian was not entitled to get the value of the CANCIGO Units and that the CANFINA had a just right to possess the CANCIGO Units to the exclusion of Hiten P. Dalal. It is also not in dispute that CANFINA had succeeded in getting the proceeds of these CANCIGO Units. Therefore, no offence of Criminal Breach of Trust is committed by the appellant Hiten P. Dalal. He has not acted contrary to the direction of any person who has entrusted these units to him and it is proved that it was the appellant Hiten P. Dalal himself who was the apparent owner of these units.12. As regards appellant S. Mohan who was one of the Asst. VicePresidents of CANFINA, the prosecution case is that he had telephonically informed PW 6 Mr. Vernekar to accept the CANCIGO Units. PW 6 Vernekar is an Officer of the Canara Bank who had been authorized by the Board Resolution to deal in Securities/Bonds and execute securities transactions on behalf of CANFINA. He deposed that he used to receive telephonic instructions from Bangalore and recorded these instructions in rough transaction sheets. He has proved the rough transaction sheets including the rough transaction sheet on whichhas been noted.deposed that the Entry pertaining to purchase of CANCIGO Units of the face value of Rs. 33 crores from accused No. 4 was made on the basis of the instructions received from accused no. 3, namely, appellant S. Mohan. He also deposed that the appellant S. Mohan sent an Inter Branch Advice No. 32894 by which the funds were transferred from Bangalore to Bombay in order to facilitate the payment. He deposed that the date 6th February 1992 was written because CANFINA Bangalore had purchased CANCIGO Units of face value of Rs. 33 crores on 6th February 1992. He also deposed that appellant S. Mohan had told him that a sum of Rs. 25,01,67,129/was recoverable from accused no. 4 against some transactions and that this amount was to be adjusted against the transaction of purchase of CANCIGO Units of face value of Rs. 33 crores. All these evidence would only show that the appellant S. Mohan was involved in the transaction. The prosecution could not prove that there was any illegality in these transactions. The only illegality pointed out by the learned Counsel for the CBI is that these CANCIGO Units were not liable to be transferred and the Andhra Bank and Andhra Bank Financial Services Limited could not have transferred it to the appellant Hiten P. Dalal. So long as the CANFINA has no grievance or complaintagainst the appellant S. Mohan that he acted contrary to their directions and accepted the CANCIGO Units and paid the money to the appellant Hiten P. Dalal, no offence is made out against the appellant S. Mohan either of Criminal Breach of Trust or conspiracy. In fact, PW 1 (Mr. Kini, Executive Vice President) has admitted that CANFINA used to regularly deal in CANCIGO Units, that neither the Audit nor RBI made any remarks regarding transactions relating to CANCIGO Units and all the transactions relating to CANCIGO Units were in the ordinary course of business. Neither Canara Bank nor CANFINA had initiated any disciplinary proceedings against him. They have also not disputed the genuineness of the CANCIGO Units which were got encashed by the appellant Hiten P. Dalal.In the circumstances, no ingredient of criminal breach of trust is made out against either of the appellants.15. The prosecution also could not prove any conspiracy by these accused persons to commit any criminal acts. So long as there was no such evidence, the offence of conspiracy is not proved against these appellants.16. The appellant Hiten P. Dalal has been found guilty for the offence punishable under Section 411 alleging that he dishonestly received the stolen property or retained the same. No ingredients of this offence have been proved against him. So long as the prosecution admits that the CANCIGO Units worth Rs. 33 crores were purchased by making use of the money owned by him, they were not stolen property in the hands of the appellant Hiten P. Dalal. Neither, the Andhra Bank nor the Andhra Bank Financial Services Limited has any case that these CANCIGO Units were stolen by the appellant Hiten P. Dalal. As the offence of Criminal Breach of Trust is also not made, the conviction of the appellant under Section 411 is not sustainable and is liable to be quashed. So also, the appellant S. Mohan is not liable for the conspiracy to commit offence under Section 411 IPC.17. The appellant S. Mohan has been found guilty of offence punishable under Section 13(1) (c) and 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act. This appellant was one of the Asst.of the CANFINA dealing with CANCIGO Units. There is no allegation that he committed any illegality. The allegation against him is to the extent that he accepted the CANCIGO Units though they stood in the name of the Andhra Bank and Andhra Bank Financial Services Limited. These CANCIGO Units were worth Rs. 33 crores and they were accepted with the proper authorization by the higher authorities in the CANFINA. It is highly improbable to believe that appellant S. Mohan on his own decided to accept CANCIGO Units worth Rs. 33 crores without any instructions. CANFINA did not file any complaint alleging any unauthorized transaction carried out by him. Now it has been held by this Court that the entire transaction was legal and the CANFINA was entitled to the proceeds of these CANCIGO Units and not the "Custodian" under the Act. Therefore, the appellant S. Mohan is not guilty of the offence punishable under Section 13(1) (c ) and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act.