Allahabad High Court
Hariom Gupta vs Central Bureau Of Investigation ... on 2 December, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38956 of 2019 Applicant :- Hariom Gupta Opposite Party :- Central Bureau Of Investigation Through Superintendent Of Police And Another Counsel for Applicant :- Prateek Rai,Chandan Sharma Counsel for Opposite Party :- Sanjay Kumar Yadav Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri Rajeev Lochan Shukla, learned counsel for the applicant, Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for CBI as well as learned AGA for the State and perused the material placed on record.
2. This bail application has been moved seeking bail in Case No.01 of 2019 (CBI vs. Hariom Gupta and others) arising out of FIR No. RC 219 2017 E 0012 dated 20.06.2017 under section 120-B, 420, 467, 468, 471 IPC P.S. CBI/EO-1, New Delhi, during the pendency of trial.
3. The main thrust of the argument of the learned counsel for the applicant is that he is not a partner of the firm in question and he is stated to have misidentified the property which was mortgaged with the Bank for obtaining the credit/loan. It has not been made clear from the side of the prosecution as to which property was shown by him which was meant to be mortgaged and subsequently mortgaged the other property, the said other property has also not been made clear and there is absolute ambiguity in this regard in the prosecution evidence. He has further argued that Rewati Singh's signatures are said to be forged on the partnership deed but no such report from the Forensic Science Lab has been obtained till date. Further, it is argued that the applicant had left the partnership firm on 02.04.2014 and rejoined the same on demise of one partner, Smt. Indra Gupta on 16.08.2015. During the present transaction in question, he was not partner in the firm but has been falsely implicated showing him to be patron of the firm. It is further argued that in charge-sheet which is annexed at page 160 of the paper book in paragraphs nos. 16.5, 16.12, 16.13, 16.14, 16.17 some transactions have been shown and the amount of the same had been shown credited in the personal account of the applicant but in this regard, it is argued that there was no such bar that such kind of transaction would not be made in view of there being no stipulation in terms and conditions. Such kind of money transactions which involved transaction from the personal account of the applicant would not constitute any offence. It is not an allegation of the prosecution that the money/debt which was taken for a certain purpose was misapplied, rather it is a case of the applicant that the entire money which was taken on debt was used for the same purpose for which it was taken and that simply because the business transaction has failed and the account went NPA, the applicant has been falsely implicated. The accused-applicant is lying in prison since 2.8.2019 and has no criminal history. There are other means available for the Bank to realize the amount of debt such as resorting to proceeding under SARFAESI Act. Hence, the applicant should be released on bail. He has also argued that the co-accused Santosh Kumar Gupta alias Santosh Gupta has already been granted bail by a Coordinate Bench of this Court vide order dated 10.5.2019 in Crl. Misc. Bail Application No.19735 of 2019, copy of which has been produced which is taken on record.
4. From the side of the learned counsel for CBI, the bail has been strongly opposed and it has been stated that the applicant was all along involved in the proceedings of the firm in question and the amount from the account of firm has been credited on several occasions to the account of the applicant which clearly shows that he is the main culprit. His quitting the firm for a certain period and rejoining the same would not absolve him of his guilty and several paragraphs have also been cited indicating his involvement, in the charge sheet. It was argued by the learned counsel for the CBI that in bail order dated 10.05.2019 of the co-accused, it has been clearly mentioned by the Court that co-accused Keshav Gupta, Rewati Singh, Hari Om Gupta, who are named in the FIR and bank officials, their cases are distinguishable from the case of the co-accused Santosh Kumar Gupta.
5. I have heard rival contentions of the both the side and have gone through the entire record and find that the charge-sheet have been submitted in this case against the accused-applicant as the main accused. A case was registered as RC 219 2017 E 0012 dated 20.06.2017 on the basis of one complaint made by Sri Santosh Rao More, AGM and Branch Manager, Agra Branch of Small Industries Development Bank of India (SIDBI) against the applicant and two others under section 120-B read with section 420 IPC and 13 (2) read with section 13 (1)(d) of P.C. Act, 1988 with the allegation that the co-accused Keshav Gupta (A-2), partner of M/s. Janta Ayurvedic Aushadhi Pratishthan (hereinafter referred to as M/s JAAP) along with accused-applicant approached SIDBI, Agra Branch vide application dated 20.03.2015 for availing financial assistance in the form of term loan to the extent of Rs.500/- lacs for manufacturing, production process and supply of Ayurvedic and Herbal Products and Medicines etc. However, a term loan of Rs.450/- lacs under Secured Business Loan (SBL) Scheme was sanctioned by the said Branch after approval by Regional Credit and Settlement Committee (RCSC-GM-ROLK), Circle Office, Lucknow. The loan was sanctioned against the registered mortgage of property owned by co-partner Rewati Singh i.e. the vacant land situated at khasra 30 Mi, 31, 32, 33, 34/1 and 35 of Mauja Gailana Mustquil, Tehsil and District Agra having area of 1.0940 hectares and personal guarantee of all the partners of M/s. JAAP i.e. Keshav Gupta, Smt. Indira Gupta (since expired) and Rewati Singh. The said loan was availed on the basis of misrepresentation of location of mortgaged property which was having original value of Rs.4-5 lacs. The applicant and co-accused Keshav Gupta had submitted forged and fabricated documents i.e. ITR of M/s. JAAP, address proof of accused Rewati Singh, partnership deed and balance sheets. Further, after disbursement of loan amount, the firm and its partner defrauded the bank in connivance with the each other. Borrowers in pursuance of a well knit criminal conspiracy siphoned off the funds disbursed by the Bank to them to the tune of Rs.433.42 lacs as on (10.08.2016) and no assets as required were credited by them. Investigation revealed that accused-applicant along with co-accused Keshav Gupta (A-2) visited SIDBI, Agra branch with a proposal for availing Credit facility of Rs.500 lacs for M/s JAAP and during discussion with SIDBI, Agra Branch Head Manoj Srivastava, accused-applicant represented himself as patron of business and told that co-accused Keshav Gupta is his nephew and wanted to avail credit facility for his partnership firm and offered mortgage of property owned by Rewati Singh i.e. vacant land mentioned-above and also offered personal guarantee of co-accused Keshav Gupta, Smt. Indira Gupta and Rewati Singh.
6. In paragraph no. 165 of the charge sheet, the Investigating Officer has noted the documents from sl.no. 1 to 7 which were submitted by the accused-applicant along with co-accused Keshav Gupta while applying loan. The Investigation revealed that co-accused Keshav Gupta had submitted partnership deed dated 02.04.2014 executed among Keshav Gupta (60%), Smt. Indira Gupta (since expired) (10%) and accused Rewati Singh (30%) as partners of M/s. JAAP and it was mentioned therein that they were carrying on business as partner under partnership deed dated 04.06.2012. M/s. JAAP was also enjoying credit facilities of a total amount of Rs.243 lacs as on 30.9.2015 in Bank of India, Kamla Nagar, Agra. But as per partnership deed submitted with the Bank of India, Kamla Nagar, Agra executed on 04.06.2012, accused applicant (50%), co-accused Keshav Gupta (20%), Smt. Seema Gupta (20%) and Smt. Indira Gupta (10%) were partners of M/s. JAAP. As per record of PNB, Vijay Nagar Branch, Agra, the applicant was partner with other co-accused namely, Keshav Gupta and Indira Gupta in M/s. JAAP since 15.10.2013 and account operation was to be done by accused applicant jointly with any one other partner. From both the partnership deeds submitted at Bank of India and PNB nowhere Rewati Singh was shown as partner of M/s. JAAP which proves that partnership deed was forged showing Rewati Singh as partner with intention to cheat the bank, which was submitted to SIDBI. Thus, the applicant along with other co-accused cheated SIDBI Bank as well as Rewati Singh. It was also revealed from the investigation that on 23.3.2015 Manoj Srivastava, AGM and Imran Hasan, A.M. along with accused-applicant and other co-accused (common friend of the applicant) went to Kachoura for visit to the manufacturing unit of M/s JAAP where they showed the manufacturing unit of M/s. JAAP to the bankers and thereafter the same persons went to Gailana, Agra to visit site of property to be mortgaged. In the meantime, Anil Kumar Goyal, empanelled Advocate and Pradeep Potdar empanelled Valuer of the Bank also accompanied him and the accused-applicant showed them alongwith co-accused, an open land adjacent to Rangji Heights Building and purportedly identified it to be the land of accused Rewati Singh. On the basis of this pre-sanction inspection visit a report dated 23.3.2015 was prepared by Manoj Srivastava, AGM and Imran Hasan, A.M. It also revealed in investigation that for sanction of this loan, Anil Kumar Goyal, empanelled Advocate had submitted his legal scrutiny report to Branch Manager, SIDBI stating therein that he had obtained search certificate from, Sub-Registrar Office and Revenue Office for non-encumbrance on property in which in his writings he had mentioned the boundaries of the property as "E-60 feet wide road, W-Nai Abadi Colony, N-others land, S-Multi-storied building known as Rangji Apartments". While giving report, the empanelled Advocate was under the impression that he was searching/verifying the title of the property which was shown to him, but in fact it was not so. It has been established that empanelled Advocate visited the property but he was fraudulently shown some other property by the accused persons which was actually not mortgaged with the Bank and he also gave report about the title of the said property, its being clear and marketable, because he was provided documents pertaining to the property of lesser value which was actually mortgaged with the Bank, hence even empanelled Advocate was also cheated by the accused-applicant. In the same way, empanelled Valuers were also cheated by the accused-applicant and other co--accused. Further, it revealed in investigation that after sanction of loan on 27.3.2015, a letter of request was received from M/s. JAAP for disbursement of loan amount of Rs.4,35,00,000/- signed by co-accused Keshav Gupta and on the same day Keshav Gupta has also submitted a Bank Mandate Form from PNB issued by , Manager, PNB, Vijay Nagar, Agra along with crossed cheque of M/s. JAAP which was signed by the accused-applicant. On 28.3.2015 the mortgaged deed was registered in Sub Registrar Office executed between Manoj Kumar Srivastava, AGM and Rewati Singh owner of property to be mortgaged. It was also revealed that on 31.3.2015 a first and final disbursement note was prepared by Manoj Srivastava, AGM and Imran Hasan, A.M. and the loan of Rs.435 lacs was granted under Secure Business Loan for MSMEs. The loan could have been utilized for tangible and intangible business need such as capital expenditure, servicing new orders, renovation of property/assets reimbursement against self financed assets acquired owned in last one year, funding of intangibles, brand building/marketing, R&D inorganic business growth or any other bonafide business need etc. The said loan was disbursed in Account No. 1656002100023192 of M/s. JAAP maintained by PNB Vijay Nagar, Agra. In this account the accused-applicant and co-accused Keshav Gupta were authorized signatory. The co-accused Keshav Gupta had also submitted false certificates for utilization of loan amount by M/s. JAAP to SIDBI. It also revealed from investigation that disbursement of the loan amount was diverted fraudulently, the account of which has been mentioned in paragraph no.16.13 of the charge sheet under three sub heads. It is further revealed in the investigation that for availing credit facilities from SIDBI, Agra co-accused Keshav Gupta along with application form dated 20.3.2015 submitted balance sheet of various dates of M/s. JAAP purportedly audited by C.A., Brajesh Gupta but Brajesh Gupta had stated that he had no CA firm by that name and was working with M/s. PMS and Co. from 01.11.2011 as partner and that he had not prepared any balance sheet of M/s. JAAP. The investigation revealed that the balance sheet of M/s. JAAP for the year 2012, 2013 and 2014 were also submitted to the Bank of India, Kamla Nagar, Agra (from where also M/s. JAAP was enjoying credit facility). Investigation also revealed that while obtaining the credit facility, co-accused Keshav Gupta submitted a photocopy of passbook of account no. 50245014456 bearing name of Rewati Singh who was shown as partner of M/s. JAAP but it was revealed in investigation that the account no. 50245014456 did not belong to Rewati Singh rather the same belonged to one Het Singh. Further it is revealed that under signature of co-accused Keshav Gupta, copy of income tax return of M/s. JAAP for assessment year 2015-16 digitally signed by Keshav Gupta, where as the actual ITR for assessment year 2015-16 of M/s. JAAP has been digitally signed by the accused-applicant. This forged ITR copy was submitted in SIDBI, Agra to hide the factum of the applicant being a partner of M/s. JAAP. Santosh Kumar Gupta has also emerged as a conspirator in this matter who was present at the time of inspection of the land to be mortgaged and had contacted valuer M.C. Garg to get the valuation report arranged and played vital role when the mortgage deed was executed. It further revealed that Rewati Singh had already made an agreement to sell his land in the name of Pradeep Yadav in the year 2006 for Rs.4.25 lacs and that in the year 2014 Hakim Singh was contacted by accused Santosh Kumar Gupta for purchasing the said land for the accused-applicant. At that time, Hakim Singh had already told them that the said land lay in the Yamuna river bed, still both the accused persons agreed for purchase of the said property for Rs.16.00 lacs. In the document still the original owner of the property was Rewati Singh so his consent was taken but he had already made power of attorney in the year 2006 and he did not make any objection. He was then taken to Sub Registrar Office by accused Santosh Kumar Gupta for mortgage deed of the said land in favour of SIDBI Bank under the impression that the sale deed of the land was to be executed. For the purchase of this land, the accused Santosh Kumar Gupta and the applicant paid an amount of Rs.11.00 lacs to Hakim Singh and Pradeep Yadav and the remaining amount as agreed was never paid by the accused persons. It was further revealed that Rewati Singh was in fact cheated by accused applicant and co-accused who took him to the office of Sub Registrar, Agra under the impression that a formal sale deed was to be registered in regard to the same land for which he had already executed power of attorney in favour of Pradeep Yadav. However, on 28.03.2015 in the office of Sub Registrar, Agra, fraudulently a mortgage deed in favour of SIDBI, Agra was got registered from him and on the basis of the same M/s. JAAP succeeded in availing credit facilities from SIDBI, Agra showing Rewati Singh as one of the partners of M/s. JAAP.
7. The above role which has been shown is indicating the involvement of the accused-applicant in commission of this offence which pertains to taking credit facility limit to the tune of Rs.435 lacs by mortgaging a property which was of much lesser value while the property which was actually shown to be mortgaged was of much higher valuation. This was done in order to obtain huge/bigger amount as debt from SIDBI, Bank Agra.
8. The argument of the learned counsel for the applicant that he did not remain partner of the said firm during the period when this transaction took place, does not appear to be a sound argument as subsequent to demise of one partner, the applicant has admitted to have become again a partner of the said firm and had deep interest in the said partnership firm. It is further argued that the business has failed for certain external reason because of which the account went NPA and the realization of loan amount could have been made by resorting to proceedings under SARFESI Act, also does not appear to be a genuine argument because that could only take care of recouping the money by Bank which is said to have been cheated but for criminal aspect of it, to get culprit convicted, it appears that FIR has been lodged. Possibility cannot be ruled out of the involvement of the accused-applicant. He is having strong interest in the business of the firm in question. This matter involves huge amount which has been taken from the Bank and has not been repaid, therefore the offence comes in the category of Economic Offences which are to be taken very seriously. The Hon'ble Supreme Court in Y.S. Jagan Mohan Reddy vs. CBI (2013) 7 SCC 439, in paragraph nos. 34 and 35 following is held:
"34) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
"35) While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."
9. In view of above position of law, I do not find it to be an appropriate case in which indulgence of bail should be granted. Accordingly, bail is refused.
Order Date :- 2.12.2019 AU