Himachal Pradesh High Court
Sandeep Kumar vs State Of Himachal Pradesh on 8 August, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF AUGUST, 2022
BEFORE
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HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) NO. 485 Of 2022
Between:-
SANDEEP KUMAR, AGED 37 YEARS,
S/O SH.AMAR CHAND HIRA,
PR/O HOUSE NO.1046, SECTOR 48-B,
CHANDIGARH. .....PETITIONER
PRESENTLY POSTED AS BRANCH
MANAGER, SBI DEHAR BRANCH,
TEHSIL DERABASSI, DISTRICT MOHALI,
PUNJAB.
(BY SH/SH.ANSHUL BANSAL & ANSHUL ATTRI,
ADVOCATES)
AND
STATE OF HIMACHAL PRADESH
.....RESPONDENT
(BY SH.HEMANT VAID, ADDITIONAL
ADVOCATE GENERAL)
Whether approved for reporting?
This petition coming on for pronouncement this day,
the Court passed the following:
ORDER
Petitioner has approached this Court, seeking bail under Section 438 Code of Criminal Procedure (in short 'Cr.P.C.'), in case FIR No.19 of 2021, dated 01.04.2021, registered in Police ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 2 Station Kotkhai, District Shimla, H.P., under Sections 420, 467, 468, 471, 406 and 120B of the Indian Penal Code (in short 'IPC').
2. Status report stands filed. Record was also made .
available. I have gone through the status report and record and have also heard learned counsel for the parties.
3. Prosecution case is that on 01.04.2021, a complaint, addressed to Superintendent of Police Crime Investigation Department, Police Headquarter, Shimla, submitted by complainant Mohi Ram, was received in Police Station Kotkhai, for registration of FIR, wherein it was alleged that complainant, in the year 2016, had applied for sanctioning home loan by submitting some documents, from State Bank of Patiala, Branch Deori Tehsil Kotkhai, District Shimla, at present named and styled as State Bank of India (SBI) after merger of the banks. As per complaint, the said loan was not sanctioned by the said bank despite repeated visits of complainant in the Branch of the Bank and, thereafter, applicant did not visit the said Branch of the Bank nor completed any formality, as required by the concerned Bank. As neither loan was sanctioned nor any information was given to the complainant, complainant never opened any account in the Bank.
4. It is further case of the complainant that in the year 2018, he started receiving notices from the concerned Branch of the Bank, after transfer of earlier Branch Manager Sandeep Kumar (petitioner herein) somewhere in Chandigarh, who, being the then Branch Manager, manipulated and forged documents ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 3 and got home loan sanctioned in the name of complainant, but the amount whereof was never received or drawn by the complainant.
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5. It has further been complained that bank officials transferred the amount to the account of some person named Rakesh Chauhan, resident of Kotkhai, who was not known to the complainant and, as such, amount, in the name of complainant, was withdrawn with active connivance of the bank officials and released to a person, who was not legally entitled to receive the same. On receiving this information from Cashier of the Bank, complainant suspected sanction of loan and, thus, visited the Branch of the Bank and disclosed that he never obtained any loan from the Bank.
6. As per complainant, this matter was kept unattended for some time in between 2016 and 2018, but after transfer of the aforesaid Branch Manager, complainant started receiving notices from the Bank. Whereupon, complainant visited the Branch of the Bank with his son and enquired the matter from the Branch Manager, asking him to show the documents and bank statements regarding transfer of amount in his account.
However, bank officials failed to show any document, as the complainant was not having Savings Bank Account in the said Bank.
7. It is further case of the complainant that on inquiry, it was revealed that one Sunder Lal (co-accused) son of Sh.Balak Ram, resident of Village Saran Dhar, P.O. Deori Khanethi, Tehsil ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 4 Kotkhai, District Shimla, H.P., in connivance with the then Branch Manager Sandeep Kumar-petitioner, had committed fraud by forging documents and signatures of the complainant for .
withdrawing huge amount i.e. `15,00,000/- and embezzled the said amount by creating false documents and causing issuance of Recovery Memo/letter to the complainant to repay the loan.
On having the aforesaid information, complainant came to know that he was cheated by officials of the Bank in connivance with aforesaid persons by drawing the amount in reference and, thus, he alleged that recoveries, being effected from him, were unauthorized and illegal and he was being harassed by the Bank.
With aforesaid facts, complainant requested to inquire into the matter and register FIR against the bank official and Sunder Lal.
8. On receiving aforesaid complaint, FIR was registered under Sections 420, 467, 468, 406 and 120B IPC.
9. During investigation, on the basis of documents obtained from the Bank, as per prosecution, it has been found that on 19.05.2016, a sum of `10,00,000/- was transferred from the loan account of complainant to his Savings Bank Account and on the same day i.e. 19.05.2016, the said amount was transferred from Savings Bank Account of complainant to Savings Bank Account of Rakesh Chauhan and a sum of `5,00,000/- was withdrawn from account of complainant on 24.05.2016.
10. On perusing Debit/NEFT Voucher related to withdrawal/transfer, it was found that Debit/NEFT voucher was ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 5 never signed by the complainant nor by any bank official whereas as reported by the Manager, the voucher related to withdrawal of `5,00,000/- was missing. On correspondence, .
inquiring about passing officer and transferring officer of the Bank about transfer/withdrawal, it, on the basis of reply, revealed that transfer/withdrawal vouchers were posted by Cashier Omesh Sharma, which were passed by the then Branch Manager petitioner-Sandeep Kumar. Omesh Sharma has left the job in 2019 and petitioner-Sandeep Kumar is Bank Manager in SBI, Dehar Branch Mohali.
11. To associate petitioner-Sandeep Kumar in the investigation, a notice was issued to him under Section 160 Cr.P.C. Thereafter, petitioner-Sandeep Kumar joined investigation on 04.03.2022, but after obtaining anticipatory bail from the Court. During interrogation, he disclosed that loan to the complainant was sanctioned through him and he had withdrawn/transferred the amount without obtaining signature and permission from the complainant and he admitted that NEFT/RTGS/Debit Voucher for `10,00,000/- was filled in by him.
Specimen handwriting of Sandeep Kumar has been obtained in the Court of learned Additional Chief Judicial Magistrate, Theog, and has been sent for comparison to State Forensic Science Laboratory (SFSL) Junga with writing on the voucher.
12. On investigation about the account to which `10,00,000/- were transferred, Rakesh Chauhan, holder of that account was asked to join investigation by issuing notice under ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 6 Section 160 Cr.P.C., but he did not join investigation, and on search at his home and other places, he was not traceable and he joined investigation after obtaining anticipatory bail on .
22.03.2022. During investigation, Rakesh Chauhan disclosed that in 2015 he was doing business of purchasing and selling Apples in Parla Mandi in partnership with Mohan Lal and they (Rakesh Chauhan and Mohan Lal) had sold Apples worth `24,00,000/- to Roshan Lal, but Roshan Lal could not make the said payment, but in 2016, offered to transfer his land measuring 8 biswas comprising in Khasra No.348/3, situated at Chak Dumehar, in lieu of that payment, to which they consented and Roshan Lal, on asking of Rakesh Chauhan, executed a Registry in favour of Mohan Lal.
13. It is further case of prosecution that Rakesh Chauhan, during interrogation, further disclosed that he and Mohan Lal had to recover their amount by selling aforesaid land and, therefore, he asked Mohan Lal to get Registry executed in his own name and after selling the land to distribute the sale proceeds. Accordingly, they contacted one Satya Prakash alias Deepak Shalta, resident of VPO Panog, Tehsil Kotkhai, to sell the aforesaid land, who matured the deal of land with Sunder Lal, resident of Khaneti (Kotkhai) for consideration of `24,00,000/-.
Sunder Lal paid `12,00,000/- to Mohan Lal, in cash, and `2,00,000/- cash to Rakesh Chauhan and, thereafter, transferred `10,00,000/- to the account of Rakesh Chauhan from the account of some Mohi Ram (complainant) whereafter, Mohan Lal, with ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 7 consent of Rakesh Chauhan, executed Registry in the name of Sunder Lal.
14. It has further been stated in the status report that .
Mohan Lal, partner of Rakesh Chauhan, was also associated in investigation and his statement under Section 161 Cr.P.C. was recorded, wherein he has reiterated and endorsed version of Rakesh Chauhan, disclosed by him, during interrogation after joining investigation.
15. Satya Prakash alias Deepak Shalta was also associated in investigation, who, in his statement, endorsed that on request of Rakesh Chauhan and Mohan Lal, he introduced Sunder Lal to them, whereafter, they sold land to Sunder Lal.
Further that Sunder Lal had disclosed to Satya Prakash that he (Sunder Lal) was purchasing the land alongwith his friend, who was Manager in the Bank at Khaneti. Roshan Lal, associated in investigation, in his statement, endorsed the fact that he had to make payment to Mohan Lal about sale and purchase of Apples, but he could not pay the same and, therefore, he sold the land to Rakesh Chauhan and Mohan Lal by executing Registry in the name of Mohan Lal.
16. It has been further stated in status report that during investigation, Rakesh Chauhan stated that he received `10,00,000/- from Sunder Lal through Manager Sandeep Kumar (petitioner) with respect to sale consideration of land.
17. On receiving documents from Tehsildar Kotkhai, it was found that vide Sale Deed No.15/16, Roshan Lal had sold ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 8 land to Mohan Lal, which was further sold by Mohan Lal to Sunder Lal vide Sale Deed No.207/2016. These Registries did not contain name of Roshan Lal and, therefore, it has been .
alleged that Roshan Lal was misleading the police.
18. According to prosecution, petitioner-Sandeep Kumar in connivance with Roshan Lal and Sunder Lal had committed the offence and is not cooperating in the investigation and, therefore, prayer for rejection of his bail has been made. It is further case of the prosecution that in the year 2018, `1,02,000/-
and `1,50,000/- have been transferred to the loan account of Mohi Ram as repayment, from the accounts of Ajay Kumar and Rajneesh Ranta respectively and Sandeep Kumar has admitted filing the vouchers with respect to the said transfer. These vouchers did not contain signatures of account holder. Specimen handwriting of the petitioner, on comparison at SFSL, Junga, has matched with writing of the vouchers of transfer of the aforesaid amount from accounts of Ajay Kumar and Rajneesh Ranta and vouchers with respect to transfer of `10,00,000/- in favour of Rakesh Chauhan and withdrawal of `5,00,000/- from the account of Mohi Ram have been deliberately destroyed by petitioner-
Sandeep Kumar. In their statements, account holders Ajay Kumar and Rajneesh Ranta, have stated that the aforesaid transfer of amount from their accounts to the account of Mohi Ram was made without informing them. According to status report, petitioner-Sandeep Kumar is not producing the vouchers.
::: Downloaded on - 08/08/2022 20:02:19 :::CIS 919. Learned counsel for the petitioner has submitted that as per information received through Right to Information Act (in short 'RTI') with respect to HR Hand Book Volume-2 of SBI .
updated as on 31.12.2021, duties to sort and keep vouchers, index and maintain records and supply records as per requisition is of Record Keeper-cum-Cashiers/Record Keepers/Cashiers. He has further submitted that, in present case, Cashier was Omesh Sharma, who has left the job of the Bank and has not been associated in the investigation and has been spared from arraying as an accused despite the fact that as per Bank Norms, he was responsible for keeping the vouchers. Information received under RTI has been placed on record.
20. Learned Additional Advocate General has also placed on record communications received from the Regional Manager of SBI, Shimla, whereby it has been informed that as per data available, no Record Keeper was posted for record maintenance in Deori Branch in 2016 and no employee was posted as such and record register was not maintained in the said Branch in the year 2016 and further that as per HR Rules Book, in absence of Record Keeper in the Branch, onus of proper handling and maintaining the vouchers rests with Branch Manager and, therefore, Branch Manager was responsible for proper maintenance and upkeep of the vouchers. In response, learned counsel for the petitioner has submitted that though no Record Keeper was posted in the Branch at the relevant point of time, but Cashier was appointed and working in the Branch at that ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 10 time and Clause 3.8.3.3 of Rules, describing duties of Cashier, clearly contemplates that duty to sort and keep vouchers, in absence of Record Keeper is of the Cashier and, therefore, .
information supplied by the Manager is not in consonance with Rules Book.
21. Learned counsel for the petitioner has further submitted that from the averments made in the complaint, it is apparent that Mohi Ram had applied for loan and he was having not only Loan Account but Savings Bank Account also in the Bank. Whereas, in the complaint, he has completely denied existence of his Loan account and bank account and further that Sunder Lal is a close relative of Mohi Ram and application alongwith documents in support thereof, to obtain loan, was submitted by Mohi Ram himself. As per complainant, he received notices in the year 2018 and onwards. He received notices in the years 2018, 2019 and 2020. However, he not only remained silent till April 2021, but also made repayment of loan during this period and he and Sunder Lal being close relatives, connived with each other, who are now trying to implicate the petitioner and others, had obtained loan from the bank and transferred the amount to the account of Rakesh Kumar as a sale consideration and now in order to avoid repayment of the loan, trying to rope the petitioner in a false case.
22. It has further been submitted that plea taken in the complaint that complainant was not having any Loan or Savings Bank Account, is contrary to true factual matrix, and further ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 11 statement by the complainant that his loan was not sanctioned or sanctioned without his knowledge is also a false excuse, as after receiving notice, complainant himself has made repayment .
of loan to the bank, by depositing `1,70,000/-, `15,000/- and `2,00,000/- on 27.12.2018, 02.01.2019 and 28.01.2020, but now suddenly he has taken 'U' turn after three years and lodged a false complaint with due deliberations, in order to get rid of loan case.
23. It has further been submitted by learned counsel for the petitioner that co-accused Rakesh Chauhan has already been enlarged on bail.
24. Without commenting on merits of the rival contentions of the parties, but considering entire facts and circumstances placed on record for the purpose of adjudication of bail petition, taking note of factors and parameters propounded by the Courts including Supreme Court, necessary to be considered at the time of adjudication of bail, I find that at this stage, petitioner may be enlarged on bail.
25. Accordingly, present petition is allowed and order dated 03.03.2022 granting anticipatory bail to the petitioner is confirmed, subject to his furnishing personal bond in the sum of `1,00,000/- with one surety in the like amount, to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioner/accused at the time of trial:-
::: Downloaded on - 08/08/2022 20:02:19 :::CIS 12(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner shall not directly or indirectly .
make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) that the petitioner shall not misuse his liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) that the petitioner shall not leave the territory of India without prior permission; and
(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if any, in future.
26. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and ::: Downloaded on - 08/08/2022 20:02:19 :::CIS 13 thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
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27. In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
28. Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.
Instructions/93-IV.7139 dated 18.03.2013.
29. Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
30. Petition is disposed of in aforesaid terms.
31. Copy dasti.
32. Petitioner is permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the trial Court/authorities concerned, and the said Court/authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), Judge.
August 8, 2022 (Purohit/sd) ::: Downloaded on - 08/08/2022 20:02:19 :::CIS