Madras High Court
S.Ellappan vs State Represented By on 8 November, 2016
Author: P. Velmurugan
Bench: P. Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 02.11.2016
JUDGMENT PRONOUNCED ON : 08.11.2016
CORAM:
THE HONBLE MR. JUSTICE P. VELMURUGAN
Crl.R.C.No.545 of 2016
and
Crl.M.P.No.3643 of 2016
S.Ellappan ... Petitioner
-vs-
State represented by
Additional Superintendent of Police,
SPE : CBI : ACB : Chennai,
RC/38/A/2010 ... Respondent
This Criminal Revision is filed under Sections 397 r/w. 401 of Cr.P.C. seeking to set aside the order of dismissal dated 12.01.2016 made in Crl.M.P.No.1148 of 2012 in C.C.No.2 of 2012 on the file of the XI Additional City Civil Judge, CBI Cases, Chennai.
For Petitioner : Mr.S.Ratnakaran
For Respondent : Mr.K.Srinivasan
Special Public Prosecutor for CBI
O R D E R
This Criminal Revision is directed against the order of dismissal dated 12.01.2016 in Crl.M.P.No.1148 of 2012 in C.C.No.2 of 2012 on the file of the XI Additional City Civil Judge, CBI Cases, Chennai.
2. The brief allegations in the charge sheet are that the accused entered into a criminal conspiracy having the common object to sanction / obtaining disbursement of various loans dishonestly and fraudulently to ineligible borrowers, in violation of established norms of Indian Bank governing the loans; by exceeding the prescribed financial power limits of A3 and without having any genuine purpose in the borrowing of loans ensuring and monitoring end use and thus, dishonestly and fraudulently to cheat the Indian Bank by using the forged loan documents as genuine and also caused wrongful loss to Indian Bank / to misappropriate the funds of customers entrusted with the bank officials and having dominion over the funds of the customers and bank funds by corrupt or illegal means and by public servant, abusing the official position by the aforesaid bank officials / part-time non-official Director of Indian Bank, MRC Nagar Branch and Indian Bank, Sterling Road Branch, Chennai and to obtain undue pecuniary advantage to the private persons besides themselves.
3. In furtherance of the aforesaid criminal conspiracy, A6 while functioning as part-time non-official Director of Indian Bank, by abusing his official position as such, introduced A1 and A2 to A3, A4 and A15 and exerted his undue influence over the bank officials in the matter of issue of loans to A1, A2 and their associates and also signed as an introducer in the Opening Form of Bank Accounts, viz., Account No.829884272 in the name of All India Christian Liberation Front with A1 as its Chairman on 02.04.2009 Current Account No.836286331 in the name of St. Thomas Apostle Trust, represented by its Chairman A1 on 18.06.2009 and for the Savings Bank Account No.830113544 in the name of A2 on 05.04.2009 with Indian Bank, MRC Nagar Branch, Chennai and the same were authorised by A3 / noted by A4. There is no identification proof for the opening of the aforesaid account in the name of A2. There is no signature of the branch officials in the Account Opening Form. The Columns relating to ''Bank's use'' is also kept blank.
4. On completion of investigation in Crime No.RC/38/A/ 2010, SPE : CBI : ACB, Chennai, filed the charge sheet under Section 173 (2) Cr.P.C against A1, A2, A3, A4, A5, A6, A7, A8, A9, A10, A11, A12, A13, A14 and A15 under Sections 120(B) r/w. 409, 420, 468 r/w.471 IPC and under Sections 13(2) r/w. 13(i)(d) of the Prevention of Corruption Act, 1988 before XI Additional Special Judge for CBI Cases, Chennai, on 24.01.2012 and the same was taken on the file in C.C.No.2 of 2012.
5. After taken on file and pending for framing charge, the petitioner herein filed discharge petition in Crl.M.P.No.1148 of 2012 before the trial Court. After hearing both sides, the same was dismissed on 12.01.2016.
6. Aggrieved with the order passed by the trial Court, the petitioner has filed the present Revision Petition before this Court on the ground that the entire transaction is purely civil in nature and no offence is made out as alleged by the respondent. The documents furnished by the petitioner were originals and based on the original documents, the bank has initiated SARFAESI proceedings. The petitioner's loan account has been tampered and the loan amount was raised to Rs.20,00,000/- without the consent of the petitioner and the same was disbursed to several accounts by the bank officials. The trial Court, without considering the materials placed before it, mechanically dismissed the discharge petition by simply holding that the issues have to be decided during trial. There is no prima facie case against the petitioner to proceed for trial.
7. The case of the prosecution as against this petitioner is that in furtherance of the aforesaid criminal conspiracy, on 18.11.2009, A3 had sanctioned/disbursed OD secured loan in Account No.863335480 for Rs.20 lakhs in favour of the petitioner, for which A2 was the guarantor. The loan has been sanctioned without obtaining and processing the loan application as per norms of the Indian Bank, such as, no loan application, credit appraisal report etc. In the loan documents, the petitioner has signed and it was partly prepared by A3. In demand promissory note prepared by A3, there are over writings with regard to the loan amount and the ''words for Rs.5 lakhs'' (struck off) found corrected to Rs.20 lakhs. The entire loan amount was misutilised by the petitioner in conspired with A2, for whom the loan was sanctioned. On 18.11.2009, Rs.4.10 lakhs and on 21.12.2010, Rs.25,000/- was paid to A2. On 14.03.2010, Rs.2 lakhs from this account to the account of A5, wife of A6 was transferred, and the amount was disbursed in furtherance of the aforesaid criminal conspiracy, on 11.02.2010, Rs.11,40,623/- from this account was transferred to issue Demand Draft favouring M/s. TVH Estates on behalf of Shri.T.R.Gopalakrishnan. Thus, the loan was sanctioned without obtaining basic documents and proper verification by A3 and the entire loan proceeds were misutilized by the petitioner in connivance with A3, A2 and other accused. The charges have been framed against the accused including this petitioner by the trial Court on 04.03.2016 and two witnesses have been examined. The trial of the case is in progress.
8. The learned counsel for the petitioner would submit that the documents furnished by the petitioner before the Bank were originals and based on the original documents, the Bank has initiated SARFAESI Proceedings. The petitioner's loan account has been tampered and the loan amount was raised to Rs.20,00,000/- without the consent of the petitioner and the same was disbursed to several accounts by the bank officials. Further, there is no prima facie materials available against this petitioner to proceed further. The trial Court failed to look into these aspects and dismissed the petition. The order passed by the trial Court is liable to be set aside.
9. The learned Additional Public Prosecutor would submit that from the materials placed before the trial Court, it is clear that there is a prima facie case to proceed this case against this petitioner. The trial Court has considered all the materials placed before it and came to the conclusion that there was a prima facie material to frame the charges and dismissed the application; there is no illegality or impropriety in the order passed by the trial Court. Therefore, the Criminal Revision is liable to be dismissed.
10. Heard both sides and considered the submissions made by the counsel for both sides and perused the records placed before this Court, carefully.
11. On perusal of the records, it is admitted fact that this petitioner availed a loan from Indian Bank. But according to the prosecution, all the accused entered into criminal conspiracy, by availing the OD facility of Rs.20,00,000/- without fulfilling the bank norms and misutilised the entire loan proceeds in connivance with other accused including the accused bank officials and caused loss to the Bank. According to the petitioner, his account was tampered and the loan amount was raised without his consent. The entire transaction is purely in civil nature and no offence is made out as against this petitioner.
12. Considering the facts and circumstances of the case, as already stated that, from the admitted facts and on perusal of the charge sheet, it is clear that there are certain allegations against this petitioner under Sections 120(b) r/w. 409, 420, 468 r/w.471 IPC and under Sections 13(2) r/w. 13(1)(d) of Prevention of Corruption Act, 1988. Further, from the materials produced by the prosecution under Section 173 of Cr.P.C to this petitioner, there are prima facie materials available to proceed the case against this petitioner.
13. Further if one sees Sections 239 and 240 of Cr.P.C, if the Court comes to a conclusion that the case put up against the accused is groundless, if unrebutted it would not warrant conviction, there is no sufficient material to frame the charge, to put it simply, there is no prima facie case as against the accused, the Court has to discharge the accused. But if it is otherwise, there is a ground to proceed further, the Court has to frame the charges.
14. In the instant case, as already stated, there are materials to show that the accused entered into criminal conspiracy, by availing the OD facility of Rs.20,00,000/- without fulfilling the bank norms and misutilised the entire loan proceeds in connivance with other accused including the accused bank officials and caused loss to the Bank. At this stage, this Court can have the impression that they might have committed the offence and the probative value of the materials cannot be tested. All these defences can be taken during the trial and not at the stage of framing charges.
15. No doubt, the benefit of doubt always goes in favour of the accused. But at the same time, at the stage of framing charges under Sections 239 of Cr.P.C, the benefit of doubt goes in favour of the prosectuion. That is even a suspecian drawn on incriminating materials is enough to frame a charge against the accused. At this stage, this Court can have the impression that she or he might have committed the offence. Further at this stage, probative value of the materials cannot be tested.
16. Considering the facts and circumstances of the case, this Court bearing in mind the important fact that as far as the present stage is concerned, there are enough materials to implicate the petitioner in this case and further the charge sheet as laid down in the present case in C.C.No. 2 of 2012 for the offence under Sections 120(B) r/w. 409, 420, 468 r/w.471 IPC and under Sections 13(2) r/w. 13(i)(d) of Prevention of Corruption Act, 1988 cannot be ignored and this Court comes to an irresistable and inescapable conclusion that there are enough materials in the form of records to bring home the role played by this petitioner. Therefore, the petition filed by the revision petitioner before the trial Court seeking to discharge him from the case in C.C.No. 2 of 2012 in Crl.M.P.No.1148 of 2012 is liable to be dismissed. Under the above said circumstances, the dismissal order passed by the trial Court in Crl.M.P.No.1148 of 2012 in C.C.No. 2 of 2012 dated 12.01.2016, does not suffer from any material irregularity or patent legal infirmity in the eye of law.
17. In fine, the Criminal Revision Petition is dismissed. The order passed by the learned trial Judge in Crl.M.P.No.1148 of 2012 in C.C.No. 2 of 2012 dated 12.01.2016 is confirmed. Consequently, connected Miscellaneous Petition is closed.
18. Since the alleged commission of offence is in the year of 2008 and the Calendar Case is of the year 2012, the trial Court is directed to expeditiously dispose the case, preferrably within six months from the date of receipt of a copy of this order. Both the learned Additional Public Prosecutor and the learned defence counsel will give their co-operation to the trial Court to complete this case in time and it is made clear that the learned trial Judge, uninfluenced by the observations made in this order, will dispose of C.C.No.2 of 2012 on merits in accordance with law.
Mra 08.11.2016
P. VELMURUGAN, J.
mra
Pre-delivery Judgment
in
Crl.R.C.No.545 of 2016
08.11.2016
http://www.judis.nic.in