Gauhati High Court
Anil Tewari vs The State Of Assam And Anr on 1 May, 2025
Author: Parthivjyoti Saikia
Bench: Parthivjyoti Saikia
Page No.# 1/9
GAHC010105122022
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./495/2022
ANIL TEWARI
S/O SHRI MUNI RAJ TEWARI
PERMANENT ADDRESS- FLAT NO. T-41, BHARADWAJ APARTMENT,
BALSON CHAURAHA, PRAYAGRAJ (UP)
PRESENT ADDRESS-
FLAT NO. 9/503, EASTEND APARTMENT, MAYUR VIHAR PHASE 1
EXTENSION, NEW DELHI- 110096
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:D. M. MISHRA
THE THEN ASSISTANT MANAGER
PUNJAB NATIONAL BANK
ZOO ROAD
BRANCH
R.G. BARUAH ROAD
GUWAHATI-781005.
THROUGH HEAD OFFICE ADDRESS-
THE GENERAL MANAGER (HRDD)
PUNJAB NATIONAL BANK
HEAD OFFICE
DWARKA
NEW DELHI-110075
FOR SERVING THE SUMMONS OF HIGH COURT
GUWAHATI TO SHRI DM MISHRA
ASSISTANT GENERAL MANAGER
(SINCE RETIRED FROM BANK SERVICES)
Page No.# 2/9
Advocate for the Petitioner : MR N J DAS,
Advocate for the Respondent : PP, ASSAM, MR. A DHANUKA (R-2),MR. A GANGULY (R-2)
Linked Case : Crl.Pet./580/2021
PHANIDHAR TALUKDAR
SON OF LATE RATI KANTA TALUKDAR
PERMANENT RESIDENT OF HOUSE NO. 185
UDAY NAGAR
RAJIV GANDHI PATH
KHANAPARA
GUWAHATI-781022
IN THE DIST. OF KAMRUP (METRO)
ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP
ASSAM
2:DURGA MADHAB MISRA
ASSISTANT GENERAL MANAGER
BRANCH HEAD
PUNJAB NATIONAL BANK
ZOO ROAD BRANCH
R.G. BARUAH ROAD
GUWAHATI-781005
------------
Advocate for : MR. A K BHATTACHARYYA
Advocate for : PP
ASSAM appearing for THE STATE OF ASSAM AND ANR
Page No.# 3/9
:: BEFORE ::
HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA
O R D E R
01.05.2025 Heard the learned senior counsel Mr. A.K. Bhattacharyya assisted by Mr. D.K. Bhattacharyya and Mr. N.J. Das, learned counsel appearing for the petitioners. Also heard Mr. P. Borthakur, the learned Addl. Public Prosecutor as well as Mr. A. Ganguly, learned counsel appearing for their respective respondents.
2. These two applications under Section 482 read with Section 401 of the Code of Criminal Procedure (CrPC) are filed with prayers for quashing the criminal proceedings of G.R. Case No.692/2018 arising out of BI(EO) Police P.S. Case No.02/2018 pending in the court of Addl. Chief Judicial Magistrate, Kamrup (M), Guwahati.
3. The petitioner Phanidhar Talukdar is a builder by profession. He has a company named M/S Skye Scrapper Real Estate Pvt. Ltd. This company was registered under the Companies Act, 1956 having its registered office within the city of Guwahati. This company is engaged in construction of residential buildings and after construction, it used to sell the buildings/flats to different buyers.
4. The Board of Directors of the said company allowed the present petitioner, who is also one of the Directors of the said company, to appoint Shri Amarendra Kalita/Amendra Kalita as the Power of Attorney holder of the company. On the basis of the said Power of Attorney, Shri Amarendra Kalita/Amendra Kalita used to receive money from the buyers and he sold residential flats to different persons. However, Shri Amarendra Kalita/Amendra Kalita was not authorized to execute the sale deeds in favour of the buyers of flats nor he was empowered to enter into any agreement with any bank from which prospective buyers would take loans to buy flats.
5. M/S. Skye Scrappers Real Estate Pvt. Ltd. had constructed the building called Page No.# 4/9 Akash Residency at Beltola. Individual flats of the said building were sold to different buyers. The sale deeds were executed by the present petitioner Phanidhar Talukdar, on behalf of the company.
6. On 06.01.2018, Shri D.M. Misra, the Assistant General Manager of Punjab National Bank, Zoo Road Branch lodged an FIR before police. In the said FIR, it was alleged that the one Banwari Lal Pareek and Bhagawan Pareek had taken two loans, one of ₹83.00 lac and of ₹75.00 lac for buying Flat Nos.5-D and 5-E on the 5 th floor of Block No.B in Akash Residency. Both the loans were sanctioned on 25.01.2016 and on 04.06.2016. At the time of lodging the FIR, the outstanding dues to be paid by those two persons stood at ₹15567444.00.
7. For failure repay the loans, the loan accounts became NPAs and the Bank already initiated proceedings under the SARFAESI Act.
8. The informant has claimed that those two flats were sold by M/S. Skye Scrapper Real Estate Pvt. Ltd. in the year 2015 to Mrs. Priyanka Khemani Kanodia and to Mrs. Sushila Devi Khanodia by two registered sale deeds.
9. According to the informant, M/S. Skye Scrapper Real Estate Pvt. Ltd. had full knowledge that those two flats were sold by them to Priyanka Khemani Kanodia and to Mrs. Sushila Devi Khanodia. In spite of that, in the year 2016, this company favoured Banwari Lal Pareek to get the loans. According to the informant, the present petitioner and Banwari Lal Pareek had conspired together to cause financial loss to the company. The informant has stated that on the basis of the documents relating to the agreements between the present petitioner and Banwari Lal Pareek, the Bank had to approve the loan in favour of Banwari Lal Pareek.
10. After filing of the FIR, police started investigation and on conclusion of investigation, police filed the charge sheet against the present petitioner Phanidhar Talukdar being the Director of M/S. Skye Scrapper Real Estate Pvt. Ltd. and against Shri Anil Tewari who was the Bank official. In the charge sheet some other persons Page No.# 5/9 are also named as perpetrators of the offences under Section 120-B, 420,468 and 406 of the Indian Penal Code.
11. The primary allegation against the petitioner Phanidhar Talukdar is that he had entered into the agreement to sell Flat Nos.5-D and 5-E on the 5 th floor of Block No.B in Akash Residency, with Banwari Lal Pareek and on the basis of the said agreement, the Bank approved the loans in favour of Banwari Lal Pareek. According to the allegation, Phanidhar Talukdar had already sold the said two flats in Akash Residency to Priyanka Khemani Kanodia and to Mrs. Sushila Devi Khanodia. Thus, Phanidhar Talukdar had entered into a conspiracy with Banwari Lal Pareek to cause financial loss to the Bank.
12. The allegation against the petitioner Shri Anil Tewari is that at the time of approval of the loan by the Bank, he was serving at Guwahati as the Assistant General Manager of the Bank. He failed to exercise due diligence for which the loan had to be approved by the Bank and financial loss was caused to the Bank.
13. Thereafter, Phanidhar Talukdar had written a letter to the complainant Bank on 20.10.2018 whereby he wanted to settle the claim of the Bank on the bank account of Banwari Lal Pareek. Phanidhar Talukdar agreed to pay ₹55,000,00/- to the Bank towards final settlement of the loan account of Banwari Lal Pareek.
14. Accordingly, Phanidhar Talukdar paid ₹56,55,877/- to the Bank for settlement of the loan account of Banwari Lal Pareek. With the payment of the aforesaid money, the loan account stood at "Nil" as on 31.08.2021. The complainant Bank authority, by a letter dated 29.01.2021, informed M/S. Skye Scrapper Real Estate Pvt. Ltd. that the loan account standing in the name of Banwari Lal Pareek stood at 'Nil" as on 09.05.2019.
15. Before all those things, police concluded investigation and filed the charge sheet. Accordingly, on 05.09.2019, the court of the Addl. Chief Judicial Magistrate, Kamrup (M), Guwahati took cognizance of the offences under Section 120-B, 420,468 and 406 Page No.# 6/9 of the Indian Penal Code against the present two petitioners and some other persons.
16. According to the learned senior counsel Mr. Bhattacharyya, as Banwari Lal Pareek could not repay the loan, the entire prosecution story came into being. The petitioner Phanidhar Talukdar has settled the aforesaid dispute by paying a large amount of money and there is no dispute that the loan account of Banwari Lal Pareek now stands at "Nil".
17. Mr. Bhattacharyya further pointed out that the Bank would not have filed the present FIR, if it was successful in SARFAESI Act proceedings.
18. The learned counsel Mr. Das has submitted that the allegation against the petitioner Shri Anil Tewari is that he was not diligent enough before approval of the loan. Mr. Das has submitted that for dereliction of duty, no criminal case can be lodged against an employee of an organization.
19. The learned Addl. Public Prosecutor Mr. Borthakur has submitted that the petitioner Phanidhar Talukdar acted in mala fide manner and caused financial loss to the Bank.
20. The learned counsel Mr. Galguly has submitted that even if the loan account was finally settled, the petitioners are not entitled to get any relief from their criminal liability.
21. I have given my anxious considerations to the submissions made by the learned counsel of both sides.
22. The petitioner Phanidhar Talukdar after selling the Flat Nos.5-D and 5-E on the 5th floor of Block No.B in Akash Residency to Priyanka Khemani Kanodia and to Mrs. Sushila Devi Khanodia, again entered into an agreement with Banwari Lal Pareek to sell those two flats to him and on the basis of the said agreements, the informant Bank approved loans to Banwari Lal Pareek. He failed to repay the loans and the loan accounts became NPAs. The Bank wanted to proceed further under the SARFAESI Act Page No.# 7/9 but it failed because those two flats were already sold to Priyanka Khemani Kanodia and to Mrs. Sushila Devi Khanodia. Thereafter, the informant Bank and Phanidhar Talukdar have agreed to settle the loan account of Banwari Lal Pareek and accordingly, Phanidhar Talukdar paid ₹56,55,877/- to the Bank and the Bank accepted the money. The loan account of Banwari Lal Pareek stood at "Nil".
23. So far as the allegation brought against the petitioner Shri Anil Tewari is concerned, it is alleged that he was not carefully dealing with the documents before approving the loan to Banwari Lal Pareek. Mr. Das has pointed out to different documents available in the record to show that one lawyer named Mrs. Debojani Sil prepared the Title Investigation Report. The said lawyer also prepared other necessary documents, on the basis of which the loan was approved by the Bank. There is no allegation against the said lawyer that she had a mala fide intention to cause financial loss to the Bank.
24. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal , AIR 1992 SC 604. Paragraph 102 of the judgment reads as under:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the Page No.# 8/9 evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
25. The definition of criminal conspiracy states that when two or more persons agree to do or cause to be done an illegal act, it amounts criminal conspiracy. The essential ingredients of the offence of criminal conspiracy is the agreement to commit an offence. Whenever a person makes a false document with intention to cause damage to any person and if that document is used to cheat anyone, it is punishable under Section 468 of the Indian Penal Code.
26. Whoever by deceiving any person, fraudulently and dishonestly induced a person to deliver any property, it amounts to cheating.
27. In the instant case, Banwari Lal Pareek approached the Bank seeking loan and the Bank approved the loan after going through all the documents, which includes the agreement between the petitioner Phanidhar Talukdar and Banwari Lal Pareek. If any offence was committed, it was by Banwari Lal Pareek. The petitioner Phanidhar Talukdar is doing the business of building and selling residential flats. He enters into such agreements with many people. On the face of the record, there are no materials for a prima facie case against Phanidhar Talukdar. He even settled the loan account of Banwari Lal Pareek by paying a huge amount of money. If he had any intention to Page No.# 9/9 cause loss to the Bank, he would not have paid such a large amount of money.
28. So far as the allegations under Section 120-B, 420,468 and 406 of the Indian Penal Code brought against the petitioner Shri Anil Tewari is concerned, there is no materials for a prima facie case against him. He approved the loans only on the basis of different documents. Most of those documents were prepared by an empanelled lawyer of the Bank. He is not supposed to suspect the empanelled lawyer of the Bank. The only element available against the present petitioner Shri Anil Tewari is dereliction of duty. There are no materials for a prima facie criminal case against him.
29. Now, this Court is of the opinion that for the aforesaid reasons, there is no possibility of a conviction in the criminal case. Allowing such a criminal proceeding to continue before a trial court will be nothing but an abuse of the process of the court. This is a fit case for exercising the power under Section 482 of the Code of Criminal Procedure.
30. Accordingly, the criminal proceedings in respect of Phanidhar Talukdar and Shri Anil Tewari in respect of G.R. Case No.692/2018 arising out of BI(EO) Police P.S. Case No.02/2018 pending in the court of Addl. Chief Judicial, Magistrate, Kamrup (M), Guwahati, is quashed and set aside.
Both the Criminal Petitions are disposed of.
JUDGE Comparing Assistant