Allahabad High Court
Avashesh Kumar vs State Of U.P. & Others on 30 May, 2013
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgment Reserved on 3.4.2013. Judgment Delivered on 30.5.2013. Criminal Revision No. 4261 of 2011. Avashesh Kumar .... Revisionist. Versus State of U.P. & others .... Opposite Parties. AND Criminal Revision No. 4246 of 2011. Rakesh Kumar Gupta .... Revisionist. Versus State of U.P. & others .... Opposite Parties. AND Criminal Revision No. 4488 of 2011. Mukesh Arora .... Revisionist. Versus State of U.P. & others .... Opposite Parties. Hon'ble Ramesh Sinha, J.
1. The aforesaid three criminal revisions arises out of Special Case No. 03 of 2008 (C.B.I. vs. Mukesh Arora & others) police station CBI SPE Dehradun under Sections 120-B, 420, 467, 468, 471 I.P.C. and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988 CBI, SPE, Dehradun challenging the impugned order dated 3.10.2011 passed by Special Judicial Magistrate (CBI) Ghaziabad by which the discharge application of the revisionists under Section 227/239 Cr.P.C. was rejected by trial court by a common order, hence all the three revisions on behalf of all the revisionists are being being decided by a common judgement by this Court.
2. Brief facts of the case are that a complaint was sent by opposite party no.4 M.M.P. Srivastava (the then Deputy General Manager, Allahabad Bank, Meerut) on 20.2.2006 to the Superintendent of Police (C.B.I) Special Police Establishment Indira Nagar, Dehradun. On the basis of the said complaint, an F.I.R. has been registered on 28.2.2006 at about 12:30 P.M. which was numbered as Case Crime No. RC0072006A0005 at police station CBI, SPE, Dehradun under Sections 120-B, 420, 468, 471 and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act 1988.
3. The allegations contained in the F.I.R. are that the Meerut City Branch of Allahabad Bank has the facility of A1-Trade Cell which is a single man window to facilitate trading loans to the small traders, therefore, only one officer of the Bank was authorized to mobilize to process of sanction and to do follow up and all related activities. In respect of the loans beyond the limit of the manager, the approval of the senior competent officers is required.
4. That during the year 2000 Sh. Mukesh Arora was posted and functioning as Manager, J.MG. Scale-1, pay-scale Rs. 7100- Rs. 13,560.00 at A1-Trade Cell, Meerut City Branch, Allahabad Bank. Shri Mukesh Arora during the year 2002 has sanctioned various credit proposals/loans to the various persons/borrowing firms.
5. Department investigations were carried out in respect of the following 7 credit proposals and it was revealed that these units/business establishments were found non existence and the ownership of the business units were not verified by Shri Mukesh Arora, the then Manager and following acts of omission and commission were found on his part:-
1. the documents such as certificates of the requisite licenses as per local laws were not obtained from the firms/properties.
2. the mandatory pre-credit surveys of the units were not conducted.
3. the stock statements at periodical intervals as pre requirements, of the units, were neither obtained and nor verified.
4. the sales figures submitted by the borrows were not cross checked on the basis of supporting documents.
5. the title deeds submitted by the proprietors of the firms as collateral security/mortgage were not physically verified as per bank's laid down procedures.
6. the chain of title deeds were also not procured before entertaining the title deeds and the end use verifications of the released loans were also not ensured. The details of the such 7 firms/properties who obtained loans is as under:-
1. M/s Shama Kirana Store
2. M/s BPL Scissors, Meerut.
3. M/s Liberty Rolling Shutters
4. M/s Meerut Trading Company, Meerut.
5. M/s Ramchander Sahay Bishan Swaroop
6. M/s Wintex Light & Video Library.
7. M/s Bharat Coal Company
6. The present revision relates to M/s Liberty Rolling Shutters It has been alleged that Abdul Rashid S/o- Abdul Hafiz R/o-Shahpeer Gate, Drad Gran, Meerut applied a cash credit overdraft limit of Rs. 4 lacs which was sanctioned by Sh. Mukesh Arora on 12.6.2002. The property situated at No.6 measuring 100 Sq. yds., Dwarka Puri, Bhumia Ka Pul, Meerut in the name of the proprietor was submitted as security. This account became sticky shortly after the sanction of the loan. During departmental investigation this unit and the mortgaged property were found non existent. The submitted title deed was found to be forged as it was not found registered in the books of Registrar, Meerut. Due to the omission of Mukesh Arora in physically verifying the mortgaged property the bank was cheated to the tune of Rs. 4 lacs by Abdul Rashid on the basis of the forged documents Mukesh Arora was duty bound to physically verify the existence of the property as well as the genuineness of the documents such as sale deed etc.
7. The above mentioned persons have thus cheated the bank on the basis of the forged and fabricated documents of the landed properties for mortgage to the bank, as collateral securities in order to obtain the overdraft/cash credit facilities. The role of the advocates/valuers, who had given the non encumbrances and valuation reports pertaining to the aforesaid mortgaged properties is also found suspicious, because the title deeds of the mortgaged properties were not found registered in the office of concerned sub registrars. The fraud on the face could be perpetrated owing to non-adhering of mandatory duty of visit of properties in question before release of advances by the said Mukesh Arora.
8. That from the aforesaid facts, it is apparent that Mukesh Arora, the then Manager, A1 Trade Cell, Allahabad Bank abused his official position and facilitated Aditya Bhushan, Asad Ali, Abdul Rashid, Abdul Rashid, Manoj, Safir Ahmad and Mohd. Rashid in obtaining the cash credit/overdraft loans on the basis of forged documents and thereby a loss to the tune of Rs. 25.79 was directly caused to the Allahabad bank and corresponding wrongful gain to himself or the borrowers.
9. On the said complaint the F.I.R. of the present case was registered against the revisionists.
10. The investigation was carried out by the CBI which recorded the statements of 24 witnesses during the course of investigation. Thereafter a charge-sheet was submitted against the revisionists under Sections 120-B, 420, 468, 471 and 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act and the Magistrate cognizance of the offence against the revisionist and summoned them for trial. In pursuance of the said summoning order, the revisionists have surrendered before the competent court and obtained bail by this Court. Thereafter a discharge application was filed by them which was rejected by the trial court by the impugned order and they were directed to surrender before the trial court so that charges may be framed.
11. From a perusal of the charge-sheet submitted against the revisionists during the investigation, it has revealed that Abdul Rashid S/o- Abdul Hafiz, R/o- Shahpur Gate Darudgran, Meerut opened a Currenct account Number 426 on 13.6.2002 by depositing a cash amount of Rs. 5000.00/- in the name and style of M/s Liberty Rolling Shutters, Meerut with the purpose of availing cash credit loan. This account was introduced by Shri Fais Mohammad, Prop. M/s Modern Light, Meerut at the instance of Shri Mukesh Arora, independent incharge of A1-Trade-Cell, Allahabad Bank, Meerut City Branch, Meerut. The opening of this account was allowed and authorized by Mukesh Arora under his own signature without obtaining any proof of existence of the business at the given address. Investigation has revealed that Mukesh Arora sanctioned a Cash Credit Over Draft limit of Rs. 20 lacs on 12.6.2002 to M/s Liberty Rolling Shutters, Meerut under O.D. Account Number 124. though the same was not eligible for the said loan since it was not registered under any of the following as per eligibility criteria of A1-Trade scheme:-
(a) Shops and establishment act
(b) Sales tax registration
(c) Drug License for retail trade
(d) Ration and civil supplies etc.
12. The investigation has also revealed the following facts:-
1. That the application-cum-appraisal form of the borrower was filled up by Mukesh Arora in his own handwriting on 8.6.2002 without any supporting documents. Only photograph and signatures of the borrower were obtained on the application-cum-appraisal form. Even the format for stock statement of the borrower was filled up by Mukesh Arora in his own handwriting against without any supporting documents. However the signature of the borrower was also obtained on the same.
2. That the application-cum-appraisal form does not disclose the requirement of any loan by the borrower. The application-cum-appraisal form should in fact contains coloumns from serial number 1.1 to 3.6 whereas the instant application-cum-appraisal form does not contain columns from serial number 1.5 to 3.2 which relates to important information about the borrower and its business. Thus material information be filled up by the borrowers in columns from serial number 1.5. to 3.2 were not filled.
3. That against column number 3.3. of application-cum-appraisal form which is meant for the details of securities offered, Mukesh Arora mentioned "Equitable Mortagage of shop value Rs. 7.53 lac. And Pledge of FDR Rs. 60,000.00". The investigation has further revealed that the borrower had not given any security and the said FDR was not in existence as on date of application dated 8.6.2002. The said FDR was prepared only on 17.6.2002. Thus Mukesh Arora himself has written deliberate false information in the application form of the borrower which shows his active connivance with the borrower.
4. That the Credit Declaration Form of the borrower was also filled up by Mukesh Arora in his own handwriting on 8.6.2002. Here also he provided false information about the securities to be mortgaged and pledged. Thus in this form also Mukesh Arora himself has deliberately provided false information in the application form of the borrower with the purpose of sanctioning loan to the said borrower. The loan was sanctioned by him on 12.6.2002.
5. That for computation of the bank finance on 12.6.2002 in this case Mukesh Arora worked but the loan amount as Rs. 4 lac on the basis of false information about the security.
6. That Credit Declaration Form of the Guarantor Shabbir Ahmed was also filled up by Mukesh Arora in his own handwriting without any supporting documents on 8.6.2002. Further he as Manager of the bank also wrote his folloing comments dated 12.6.2002 in the Credit Declaration Form of the Guarantor "Additional guarantee of Shabbir Ahmed may be accepted." The photograph of the guarantor Shabbir Ahmed affixed on the said Credit Declaration For was also attested by him.
7. That Mukesh Arora did not conduct any pre-credit survey/appraisal as required under the said scheme to ascertain the credibility/capability of the proposed borrower and the nature/position of the business for which loan may be extended.
8. That he obtained Sale deed of property No.6, Dwarika Puri, Bhumia Ka Pul, Lisari Gate, Meerut purported to be in the name of the borrower and he was required to thoroughly examine the chain of title deeds, genuineness of the title deeds from the Sub-Registrar office and after being satisfied about the title of the person offering the property as security he should have accepted the said security for the sanction of the said loan but he due to ulterior motive intertionally did not follow any laid down writtent instructions and the loan worth Rs. 4 lac was sanctioned to M/s Liberty Rolling Shutters, Meerut.
9. That the Registry of the Sale Deed of the property offered in the name of the borrower is fake as confirmed by the Registrar Office, Meerut. The guarantor Shabbir Ahmed S/o-Said Ahmed, Meerut R/o-206 Ghozian Maqbara, Meerut has also been found non-existent person.
10. That as per the procedure, after the receipt of application of the loan, the copy of the title deed of the said property offered to be mortgaged is sent to the empanelled lawyer of the bank through bank letter to get his report about the clear title of ownership of the property etc. and after the receipt of correct report of the empanelled advocate, the copy of title deed is sent to bank's empanelled valuer for assessing its market value. All this is done before the sanction of loan by the concerned Bank Officer. However in this case false Legal Opinion cum Non Encumbrance Certificate of empanelled advocate Avshesh Kumar in respect of the property of the borrower was obtained by Branch Manager on 3.6.2002 through his written request letter dated nil i.e. prior to submission of application of the borrower because the application for loan was submitted in the bank on 8.6.2002. The investigation has confirmed that the said Legal Opinion-cum-Non Encubrance Certificate of empanelled advocate Avshesh Kumar for the property of the borrower Abdul Rashid is false since the Office of Sub-Registrar, Meerut has intimated in writing that the sale deed in the name of Abdul Rashid does not exist. The GEQD has also confirmed the signature of Avshesh Kumar on the said Legal opinion.
11. That Mukesh Arora also obtained false valuation report dated 7.6.2002 for the valuation of borrower's property conducted by the Valuer M/s Rakesh Kumar Gupta on 7.6.2002 which was prior to receipt of the application of the loan dated 8.6.2002, despite the fact that the same was not empanelled with Allahabad Bank. Signature of Rakesh Kumar Gupta as Valuer has been confirmed by GEQD. It is also revealed that for the said valuation Abdul Rasheed the borrower accompanied the valuer.
12. The aforesaid fact and evidence clearly establish that Mukesh Arora entered into criminal conspiracy with the said borrower Abdul Rasheed, advocate Avshesh Kumar valuer Rakesh Kumar Gupta and Mohammed Rashid even before the submission of loan application with malafide intention to sanction the loan to the said borrower on third party fake title deed of non existing property.
13. That during investigation the revaluation of mortgaged property on the basis of said title deed was got done from the Allahabad Bank through an independent empanelled Valuer. The Valuer M/s Jain Associates, Meerut after physical inspection of the said site as per mortgaged Sale Deed gave a letter that the said property does not exist on ground and therefore he was not in a position to gave any valuation report. The Branch Manager S.L. Gurava also accompanied the said valuer and he has also stated that the said property is non existent.
14. That during investigation independent Valuer M/s Jain Associates also carried out a further joint check alongwith two independent Lekhpals, Meerut Sadar and Senior Manager/Branch Manager of Allahabad Bank of the said properties of the guarantors/borrowers but the same properties were not found in existence. Further the said title deed of mortgaged properties in this case for obtaining loan have been found to be fake as per Office records of Registrar Office and as per Office records of Nagar Nigam, Meerut as the same are not found registered/entered in their records.
13. Thus Shri Mukesh Arora, Abdul Rashid, Avshesh Kumar and Shri Rakesh Kumar Gupta have committed offences under section 120-B r/w 420,467,468,471 IPC and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 sanction for prosecution of Shri Mukesh Arora, Manager of the Bank is enclosed.
14. Heard Sri Vijai Prakash, learned counsel for the revisionist Avshesh Kumar, Sri Dileep Kumar, learned counsel for the revisionist Rakesh Kumar Gupta, Sri Amit Mishra, Advocate holding brief of Sri Manish Tewari, learned counsel for the revisionist-Mukesh Arora, Sri Anurag Khanna, learned counsel for the C.B.I., Sri Ashish Srivastava, learned counsel for the opposite party no.4 and learned A.G.A. for the State.
15. Sri Vijai Prakash, learned counsel for the revisionist Avshesh Kumar submits that the revisionist Avshesh Kumar is not named in the F.I.R. and he is an empanelled lawyer of the Allahabad Bank, Meerut and after receiving the document in question sent by co-accused Sri Mukesh Arora Manager of Allahabad Bank, he applied in the office of Sub-Registrar-Ist Meerut for inspection of Index-II for the period of 13 years to ascertain as to whether the property in question is free from encumbrances or not. He further submits that on 23.3.2002, the office of Sub-Registrar, Meerut issued a Talash Parman Patra on which the name of one Abdul Rashid is mentioned as owner of the plot in question. The said Talash Parman Patra was issued under Rule 327 of U.P. Registration Manual Part-III, a copy of the same has been annexed as annexure-4 to the accompanying affidavit. He further submits that after issuance of Talash Parman Patra by the office of Sub-Registrar, the revisionist has sent letter to the Bank Authorities, i.e., Sri Mukesh Arora, legal opinion on the basis of the document sent by the bank and Talash Praman Patra issued by the office of Sub-Registrar, a copy of the same has been annexed as annexure-5 to the accompanying affidavit.
16. He further submits that before the documents are to be sent to the revisionist, i.e., empanelled advocate, the property, i.e., either of the actual borrower or the mortgagor, it is the mandatory duty of the Branch Manager that the concerned properties must be physically examined by him and then the deeds be sent to the empanelled lawyer of his legal opinion, who has to give his legal opinion only on the basis of the letters of the bank and the documents submitted by the Branch Manager. He further submits that the empanelled lawyer is not supposed to go and physically verify the property in question. He further submits that from the averments made in the F.I.R. and charge-sheet, it is apparent that the physical verification has to be done only either by the Branch Manager or by the empanelled valuer and not by the empanelled lawyer. Thus the revisionist Avshesh Kumar cannot be held liable and prosecuted on the basis of the impugned charge-sheet. He further submits that while passing the impugned order, the learned Magistrate has not considered the role of the revisionist nor has considered the Talash Praman Patra issued by the Sub-Registrar on the basis of which the revisionist has submitted his legal opinion, hence the impugned order passed by the trial court rejecting the discharge application of the revisionist Avshesh Kumar is liable to the quashed. In support of his submissions, he has placed reliance on the judgment of the Apex Court in the case of Sajjan Kumar vs. C.B.I. reported in 2010 (71) ACC 611, P. Vijayan vs. State of Kerala & another reported in 2007 (3) Ker Lt 495 in which the Apex Court has observed the manner in which the discharge application has to be decided by the trial court and has submitted that the trial court has failed to consider the said judgments of the Apex Court and has rejected the discharge application of the applicant. He has further placed reliance on the judgment of the Apex Court with respect to the role of lawyers in a particular transaction, i.e., Central Bureau of Investigation, Hyderabad vs. K. Narayan Rao decided on 21 September 2012 in Crl. Appeal No. 41460 of 2012 arising out of SLP (Crl.) No. 6975 of 2011 decided on 21st September, 2012. He further submits that in view of the said judgments of the Apex Court, the case of the revisionist, who is an empanelled lawyer of the bank is liable to be discharge from the said offence, hence the impugned order should be set aside.
17. Sri Dileep Kumar, learned counsel for the revisionist Rakesh Kumar Gupta submits that the revisionist is a government approved valuer having registration No. I/1886. He is discharging his duty as empanelled valuer at State Bank of India and is carrying on the said profession since 1982 at Meerut. He further submits that Abdul Rashid has approached the revisionist for estimating the value of his property situate at 6 Dwarkapuri Meerut City. The requisite documents were produced by him and the revisionist after examination of the said documents visited the place where the property was situated and as per rules and regulations made the assessment of the value of the property and issued the valuation report about the said property on 7.6.2002. A copy of the valuation report is the part of documentary evidence submitted by the C.B.I. along with the charge-sheet. He has further pointed out that in the valuation report dated 7.6.2002 at the bottom specific note has been written that "This valuation does neither confer any title nor proof of title" and "All informations are based on informations supplied by the owner and collected on spot by me". He further submits that the valuation report issued by the revisionist has been furnished by Abdul Rashid before the Branch Manager of Allahabad Bank, namely, Mukesh Arora along with some sale deed pertaining to Kasra Nos. 3721, Dwarkapuri Bhomiyan Ka Pul Meerut City has also been furnished for the purposes of sanctioning the loan by the Allahabad Bank in favour of Abdul Rashid. He further submits that the revisionist has not prepared or issued any valuation report with respect to Kasra No. 3721 Dwarkapuri Bhomiyan Ka Pul Meerut City and the valuation report which has been submitted by the revisionist on 7.6.2002 is with respect to a commercial shop situated at 6-Dwarikapuri, Meerut City, hence the revisionist cannot be at fault if the said report has been submitted by the borrower Abdul Rashid along with other documents to the bank for sanctioning loan in his favour. The revisionist is also not the empanelled valuer of the Allahabad Bank. He has further pointed out that in the charge-sheet submitted by the C.B.I. statement of one S.L. Garua has been recorded, who has stated that the Branch Manager Mukesh Arora had obtained a false valuation report dated 7.6.2002 from the valuer Rakesh Kumar Gupta and on the basis of the said statement, the revisionist has been made accused. There is nothing else in the process of investigation which connect the complicity of the revisionist Rakesh Kumar Gupta with the alleged transaction or fraud. He further submits that no cogent reason has been recorded by the trial court for rejecting the application of discharge of the revisionist Rakesh Kumar Gupta. The factum that the valuation report of the property has been given to Abdul Rashid pertaining to his shop at 6 Dwarkapuri, Meerut and no investigation has been made to this effect that the valuation report prepared and issued by the revisionist to Abdul Rashid is not at all related to Khasra No. 3721 Dwarkapuri Bhomiyan Ka Pul, Meerut, hence no offence whatsoever is made out against him and the trial court while rejecting the discharge application of the revisionist Rakesh Kumar Gupta has not considered the said fact, hence the impugned order is liable to be set aside. Learned counsel for the revisionist Rakesh Kumar Gupta has placed reliance on the judgment of the Madras High Court in the case of L.N. Rajagopalan vs. State decided on 10.8.2009 in Crl. R.C. No. 1063 of 2008 in which it was held that valuer of the property cannot be held guilty, if any document relating to the property was found fake or forged. It was further pointed out that the said judgment was upheld by the Apex Court vide judgment dated 11.2.2011 while rejecting the S.L.P. preferred by the C.B.I. against the said judgment, a copy of the judgment passed in the S.L.P. has also been tagged from a perusal of which it is apparent that the S.L.P. filed against the said judgment was dismissed.
18. Sri Amit Mishra, Advocate holding brief of Sri Manish Tiwari, learned counsel for the revisionist Mukesh Arora submits that the revisionist Mukesh Arora, who has sanctioned the cash credit limit/overdraft limit under the A1-Trade Cell to the co-accused Abdul Rashid has sanctioned the said limit in discharge of his official duties on the basis of the documents submitted by the empanelled lawyer and valuer, hence he cannot be alone fastened with the liabilities of the said offences. He submits that 150 loans under the said Scheme were granted and no fraud was in those loans and only 7 loans with respect to aforesaid 7 units for which the impugned F.I.R. has been lodged in which certain irregularities have been committed may be a mistake on his part or at the most there can be said to be some negligence on his part but he cannot be prosecuted for the offence in question as the loans which have been sanctioned by him to the borrowers were sanctioned in discharge of his official duties.
19. On the other hand, Sri Anurag Khanna, learned counsel appearing on behalf of the C.B.I. has vehemently opposed the prayer for quashing the impugned order and has submitted that it was the Branch Manager Mukesh Arora, who has sanctioned the said loans had colluded with Avshesh Kumar empanelled lawyer and Rakesh Kumar Gupta, the valuer, who have submitted the forged N.E.C. (Non Encumbrance Certificate) and a false valuation report with respect to the property which was not in existence. He submits that Sri Avshesh Kumar empanelled lawyer submitted a false undated legal opinion and further forged 12 year document i.e. (Talash Praman Patra) of the property. On the basis of the forged report, loan was granted to private persons, namely, Abdul Rashid. He submitted that there was sufficient oral and documentary evidence against the revisionist and the trial court has rightly rejected the discharge applications of the revisionists as there was sufficient materials available against them which warrants their trial for the aforesaid offenses in order to bring home the guilt of the revisionist. The revisionist Mukesh Arora dishonestly granted loan of Rs. 4 lac in favour of Abdul Rashid and revisionist Rakesh Kumar Gupta also submitted a report prior to the date of loan application which was given with respect to the property which were not in existence, hence they have committed a cognizable offence for which they are liable to be prosecuted by the trial court. He further submits that so far the judgment of the Madras High Court relied upon by the learned counsel for the revisionist Rakesh Kumar Gupta cannot be held to be a law binding upon the sub-ordinate court as the Apex Court has dismissed the said S.LP. without giving any reasons and there is no merger of judgment of High Court with the order of the Supreme Court and has relied upon the judgment of the Apex Court in the case of Gangadhara Palo vs. Revenue Divisional Officer & another reported in (2011) 4 SCC 602 and has drawn the attention of the Court towards paras-5, 6 and 7 of the said judgment which are quoted hereinbelow:-
"5. We regret, we cannot agree. In our opinion, it will make no difference whether the review petition was filed in the High Court before the dismissal of the special leave petition or after the dismissal of the special leave petition. The important question really is whether the judgment of the High Court has merged into the judgment of this Court by the doctrine of merger or not.
6. When this Court dismisses a special leave petition by giving some reasons, however meager (it can be even of just one sentence), there will be a merger of the judgment of the High Court into the order of the Supreme Court dismissing the special leave petition. According to the doctrine of merger, the judgment of the lower court merges into the judgment of the higher court. Hence, if some reasons, however meagre, are given by this Court while dismissing the special leave petition, then by the doctrine of merger, the judgment of the High Court merges into the judgment of this Court and after merger there is no judgment of the High Court. Hence, obviously, there can be no review of a judgment which does not even exist.
7. The situation is totally different where a special leave petition is dismissed without giving any reasons whatsoever. It is well settled that special leave under Article 136 of the Constitution of India is a discretionary remedy, and hence a special leave petition can be dismissed for a variety of reasons. Hence, when a special leave petition without giving any reasons, there is no merger of the judgment of the High Court with the order of this Court. Hence, the judgment of the High Court can be reviewed since it continues to exist, though the scope of the review petition is limited to errors apparent on the face of the record. If, on the other hand, a special leave petition is dismissed with reasons, however meagre (it can be even of just one sentence), there is a merger of the judgment of the High Court in the order of Supreme Court. (See the decisions of this Court in Kunhayammed v. State of Kerala, S. Shanmegavel Nadar vs. State of T.N., State of Manipur vs. Thingujam Brojen Meetei and U.P. S.R.T.C. v. Omaditya Verma)."
20. In view of the above judgment the order of the Madras High Court has only a persuasive value.
21. Sri Ashish Kumar Srivastava, learned counsel appearing for the bank has also submitted that the investigation by the CBI is as per the modified instruction circular No. 7093/ADV/2001-2002/69 dated 26.12.2001. As per the procedure, after receipt of application of the loan, the copy of title deed of the property offered to be mortgaged is sent to the empanelled lawyer of the bank to get his report about the clear title of the property to be mortgage however after the investigation in the present matter it has come on record that a false legal opinion cum Non Encumbrance Certificate of empanelled lawyer Avshesh Kumar for the property of borrower Abdul Rashid was submitted to the Branch Manager. The investigation has confirmed that the said legal opinion cum Non Encumbrance Certificate submitted by the revisionist Avshesh Kumar for the property of the borrower Abdul Rashid is false since the office of Sub Registrar Meerut has intimited in writing that the sale deed in the name of Abdul Rashid does not exist. He further submits that revisionist Mukesh Arora, the then Manager A1 Trade Cell entered into criminal conspiracy with the borrower Abdul Rashid, laywer Avshesh Kumar and valuer Rakesh Kumar Gupta and even before the submission of loan application with malafide intention to sanction the loan to the said borrower on the third party fake title deed of non existing property, hence the trial court has rightly rejected the discharge application filed by the revisionists, hence no interference is called for this Court with the impugned order.
22. Sri Anurag Khanna learned counsel for C.B.I. has placed reliance on several judgments of the Apex Court with respect to the matters dealing with discharge applications, i.e., Kanti Shadra Shah vs. State of West Bengal reported in AIR (SC) 2000-0-522, Sanghi Brothers (Indore) Pvt. Ltd. vs. Sanjay Choudhary & others reported in (2008) 10 SCC 681 wherein it has been held that even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At the stage of framing the charge there was no necessity of formulating the opinion about the prospect of conviction. He has also placed reliance on the judgment of the Apex Court in the case of Sushil Suri vs. C.B.I. & another reported in (2011) 5 SCC 708 wherein it was held that merely because the dues of the Bank have been paid up, the revisionist cannot be exonerated from the criminal liability. The essential ingredient of the offence of criminal conspiracy defined in Section 120-A Proviso (2) I.P.C. is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event, unless the statute so requires, no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement.
23. Considered the submissions advanced by learned counsel for the parties and perused the record.
24. From a perusal of the record, it is apparent that the Credit Declaration Form of the borrower was filled up by Mukesh Arora in his own handwriting without any supporting document he on his own put the date as 8.6.2002. He further deliberately provided false information in the application form of the borrower with a purpose of sanctioning loan to the said borrower, he did not conduct the Pre-Credit Survey Appraisal as required under the said Scheme to ascertain the credibility of the proposed borrower and the nature/position of the business for which loan may be extended. Further he obtained a sale deed of a property No.6, Dwarikapuri Bhumi Ka Pul Meerut in the name of borrower and he was required to thoroughly examine the chain of title deeds, genuineness of the title deeds from the Sub office of Sub-Registrar and after being satisfied about the title of the persons offering the property as security, a registered letter should have been sent to him stating therein that the title deed of the property offered by him as security will be accepted after the property so offered is found to be valid and marketable but he due to ulterior motive intentionally did not follow any laid down written instructions and loan of Rs. 4 lacs have been sanctioned to M/s Liberty Rollings Meerut. The Circular No. 7093/ADV/2001-2002/69 dated 26.12.2001 of Allahabad Bank, Credit Department Head Office Kolkata pertains to documentation relating to mortgage by deposit of title deeds manual on mortgages. Chapter-II of this manual describes the guidelines relating to lawyer's search report-cum-non-encumbrance certificate. According to this manual there is a prescribed letter to be sent to the empanelled advocate are to submit their report pertaining to the property of borrower/guarantor by the Branch Manager. The format of this letter are given vide pages 25 to 26 of this manual. It is clearly mentioned in this format that the empanelled advocates are to submit their report pertaining to the property of borrower/guarantor. They are, inter alia, supposed to clearly mention that the borrower/guarantor has an absolute clear and marketable title over the property proposed to be mortgaged and the bank can create a valid charge on the property. Pages 30 to 34 of this manual provide the format in which the empanelled advocates are supposed to give legal opinion-cum-non-encumbrance certificate and legal scrutiny report to the Bank which also, inter alia, contains the certification that the borrower/guarantor is the present sole owner of the said property and he/she/they has/have a valid, clear, unassailable and marketable title in the property shown to be mortgaged and perfect/valid mortgage by deposit of title deeds can be created in favour of the Bank.
25. Sri Mukesh Arora preferred to accept the false Legal Opinion-cum-Non Encumbrance Certificate of empanelled advocate Sri Avshesh Kumar for the property of the guarantor which was submitted to the Branch Manager on his written request on an undated application which was inturn issued by the empanelled advocate Avshesh Kumar. Moreover the empeneled advocate Avshesh Kumar revisionist also did not submit his legal opinion-cum-non-encumbrance certificate in accordance with the provided format of the said circular and the Talash Parman Patra which was submitted by the empeneled advocate along with his legal opinion was alleged to be issued by the office of Sub-Registrar in favour of Abdul Rashid on 23.3.2002 is also a forged document which was on investigation/enquiry done by the CBI through Sub-Registrar was found to be a forged one as the concerned Sub-Registrar has given a statement that no property exceeded in the name of Abdul Rashid in lieu of which the loan has been sanctioned. The revisionist Mukesh Arora accepted the undated false legal opinion-cum-Non Encumbrance certificate of empanelled advocate Avshesh Kumar for the property of the borrower was also found to be forged one since the office of Sub-Registrar Meerut has intimated in writing that the sale deed in the name of Abdul Rashid does not exist. Similarly the Mukesh Arora also obtained a false valuation report dated 7.6.2002 for the valuation of the borrower's property conducted by the valuer Rakesh Kumar Gupta which was prior to receipt of the application of loan dated 8.6.2002 despite the fact that he was not empenelled with the Allahabad Bank. It was argued by the counsel for the Bank that the argument of Sri Dileep Kumar, learned counsel for the revisionist Rakesh Kumar Gupta, who has pointed out two documents, i.e., the valuation report dated 7.6.2002 and the sale deed with respect to a shop/property, i.e., 6-Dwarikapuri Meerut whereas the sale deed was with respect to a property numbered as 3721 Dwarikapuri Bhumia Ka Pul Meerut which was furnished was not verified by the revisionist and also not incorporated in its valuation report is a factual aspect of the matter and the same has to be considered by the trial court during the course of trial. There is a strong evidence available on record that the valuation report submitted by the revisionist Rakesh Kumar Gupta is with respect to the property situate at 6 Dwarikapuri Meerut which was stated to be a shop in the name of Abdul Rashid was placed before the bank for sanctioning the loan and the said property was found to be not in existence, hence at this stage it cannot be said that the revisionist Rakesh Kumar Gupta cannot be put at fault or there is no evidence against him for his prosecution is absolutely wrong.
26. The contention of Sri Vijay Prakash, learned counsel for the revisionist Avshesh Kumar does not appears to be hold good as there is cogent evidence available on record that Avshesh Kumar, who was an empanelled advocate of the bank had entertained an undated application from the revisionist Mukesh Arora of the borrower and has submitted a false legal opinion based on forged document, i.e., Talash Parman Patra which did not exist in the name of borrower Abdul Rashid as the concerned Sub Registrar has already stated that no such sale deed exist in the name of borrower with respect to the equitable mortgaged property, hence it cannot be said that no offence was committed by the empanelled advocate Avshesh Kumar. Similarly, the valuation report 7.6.2002 which was submitted by M/s Rakesh Kumar Gupta by revisionist Rakesh Kumar Gupta in facilitating the loan sanctioned to co-accused Abdul Rashid in collusion with the revisionist Mukesh Arora cannot be said to have committed no offence. The case law cited in support of his submission by learned counsel for the revisionist, i.e., C.B.I. vs. K. Narayan Rao (Supra) cannot be made applicable with respect to revisionist Avshesh Kumar as his connivance with the Branch Manager in submitting a forged document, i.e., Talash Parman Patra along with his false undated legal opinion strongly shows his active participation in facilitating the loan to the borrower with respect to the property which was not in existence causing financial loss to the bank as well as misuse of the public money.
27. Sri Anurag Khanna, learned counsel for the C.B.I. has drawn the attention of the Court towards paras-26 and 27 of the judgment which has been relied upon by Sri Vijay Prakash, learned counsel for the revisionist Avshesh Kumar in the case of C.B.I. vs. K. Narayan Rao which are quoted hereinbelow:-
"26. Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.
27. However, it is beyond doubt that a lawyer owes an "unremitting loyalty" to the interests of the client and it is the lawyer's responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with the criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 of I.P.C. along with other conspirators without proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein."
28. Applying the said principles, it cannot be said that empeneled lawyer had no role to play in getting the loan sanctioned to the borrower Abdul Rashid on a forged Talash Parman Pata which was submitted by him along with his undated false legal opinion due to which the revisionist Mukesh Arora had sanctioned the loan.
29. That from the act of all the three revisionists, it is crystal clear that the manner in which the loan was sanctioned by the revisionist Mukesh Arora on the forged Talash Parman Patra and valuation report with respect to the property which was not in existence goes to show that there was a conspiracy between all the three revisionists in getting the loan sanctioned to co-accused Abdul Rashid, who was not entitled for the same as per the A1 Trade Cell Scheme of the Bank causing huge financial loss to the bank and misused the public money in collusion with the bank official.
30. In view of the above observations, it cannot be said that there was no evidence against the revisionists which may warrant their trial but on the other hand it is apparent that there are strong suspicion about the commission of the offence and the involvement of the revisionists in the said offence at this stage cannot be ruled out, hence the impugned order passed by the trial court rejecting the discharge applications of the revisionists does not suffer from any infirmity, impropriety or illegality which may warrant any interference by this Court.
31. The revisions lacks merit and are accordingly dismissed.
Dated 30.5.2013 Shiraz.