Madras High Court
V.S.Vasan vs State By The Inspector Of Police on 26 August, 2014
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.08.2014 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL Crl.R.C.No.442 of 2014 V.S.Vasan ... Petitioner/A3 Vs State by the Inspector of Police SPE/CBI/EOW, Chennai. ... Respondent/Complainant PRAYER: This Criminal Revision Petition is filed under Section 397 r/w 401 of the Code of Criminal Procedure against the order passed by the Hon'ble XI Additional City Civil & Sessions Judge, CBI cases relating to Banks and Financial Institutions, Chennai on the Discharge Application filed by the Petitioner in Crl.M.P.No.1208 of 2013. For Petitioner : Mr.K.Suresh Babu For Respondent : Mr.N.Chandrasekaran Spl. P.P. For CBI ORDER
The Petitioner/Accused has preferred the instant Criminal Revision petition praying for passing of an order by this Court to call for the records in C.C.No.43 of 2009 on the file of the Learned X1 Additional City Civil & Sessions Judge, (for CBI cases relating to Banks and Financial Institutions), Chennai and to set aside the order passed in the Discharge Petition in Crl.M.P.No.1208 of 2013.
2. The Learned X1 Additional City Civil & Sessions Judge, (for CBI cases relating to Banks and Financial Institutions), Chennai while passing the impugned order in Crl.M.P.No.1208 of 2013 in C.C.No.43 of 2009 on 17.02.2014 had among other things observed that ' . . . The statement of witnesses recorded under 161 of Cr.P.C., especially the witnesses from Bank of Baroda and the relevant documents produced in support of the prosecution case for the alleged offence of criminal conspiracy and criminal misconduct, cheating, forgery, using of forged documents as genuine and other offences, against the Petitioner/Accused No.3 and others would clearly establishes, a prima facie case against the Petitioner/Accused No.3 for the above said offences to frame charges as alleged etc., and resultantly, dismissed the petition.'
3. Petitioner's Submissions:
The Learned Counsel for the Petitioner/A3 contends that the Respondent/Prosecution had failed to substantiate that the Petitioner knowingly, willfully and with connivance had committed or authorised or permitted the offence.
4. The Learned Counsel for the Petitioner submits that the Respondent/Prosecution had not produced any documentary evidence to substantiate that the petitioner is a Director of M/S.Pan Transports and Carriers Limited (A6).
5. According to the Learned Counsel for the Petitioner, the Respondent/Prosecution failed to bring any records to substantiate that the petitioner was in charge of the Company and was responsible for the conduct of business and the alleged offence was committed with the knowledge of the Petitioner.
6. The Learned Counsel for the Petitioner contends that Document 82, a letter of Assistant Registrar of Companies dated 18.03.2009 addressed to the Investigating Officer of the Respondent, cannot be relied in terms of Section 74(2) of the Indian Evidence Act, 1872 and in fact, the 11 documents enclosed by the Assistant Registrar of Companies in his letter dated 18.03.2009 are only photo copies of documents and not the certified copies of the documents and they were not signed and attested.
7. The Learned Counsel for the Petitioner projects an argument that the Respondent /Prosecution solely relies on the statements of L.W.15 (M.Kannan) & L.W.16 (K.S.Samundeeswari), who are officials of the Registrar of Companies, Chennai to implicate the Petitioner / A3 as Directors of M/s. Pan Transports and Carriers Limited (A6).
8. Advancing his argument, the Learned Counsel for the Petitioner submits that the ' Annual Reports' is a public document in terms of Sections 159, 163 and 610 (3) of the Companies Act, 1956 and indeed, Document 82, letter dated 18.03.2009 of the Assistant Registrar of Companies is not the Certified True Copy under the hand of the Registrar of Companies but the same is only a mere photocopy and as such, no reliance could be placed.
9. Expatiating his contentions, the Learned Counsel for the Petitioner takes a fervent plea that the 2nd and 5th Accused in the present case had filed 'Additional Grounds of Discharge' in Crl.M.P.No.5858 of 2013 with certain emphasis in regard to the validity of Document 82. However, it is represented on behalf of the Petitioner that the trial Court had not made an endeavour to peruse the said grounds because of the reason that in the impugned order in Crl.M.P.No.1504 of 2013 no reference was made about the document 82.
10. The Learned Counsel for the Petitioner submits that Document 2 is the Memorandum and Articles of Association M/s. Pan Transports and Carriers Limited (A6) and this document does not mention that the Petitioner as the Promoter Director of M/s. Pan Transports and Carriers Limited (A6).
11. The Learned Counsel for the Petitioner contends that every company is a 'separate legal entity' in the eye of Law and the 'Associate Companies' are a separate legal entities and also that, they were not arrayed as Accused in the instant case on hand. As such, the Petitioner cannot be made as an Accused in the present case.
12. It is represented on behalf of the Petitioner before this Court that Form 32 filed with the Registrar of Companies was not filed by the Respondent/Prosecution to show that the Petitioner is Director of M/s.Pan Transports and Carriers Limited.
13. The Learned Counsel for the Petitioner brings it to the notice of this Court that the 5th Accused in the present case invoked the 'Right to Information Act' with the Information Officer / Registrar of Companies praying for (a) the certified copies of the Annual Returns of Company No.25242, M/s. Pan Transports and Carriers Limited (A6) for the period 30.09.1997, 28.09.1998, 30.09.1999 and 30.09.2000 and (b) the certified copies of Form 32 of A6 company narrating the names of the Directors, the date of appointment and retirement.
14. Further, the reply dated 17.12.2013 of the Information Officer states that the Annual Returns for the aforesaid period were not available in the physical document maintained and also, the RTI reply dated 19.12.2013 of the Information Officer mentioned that form 32 relating to Sri Manikandan Roadways (P) Limited, now changed to M/s.Pan Transports and Carriers Limited (A6) was not filed online and further the same was not available in the physical document maintained.
15. The Learned Counsel for the Petitioner submits that none of the Original /Certified /Photo copy of documents relied on by the Respondent viz., D1 to D90 discloses that the Petitioner is responsible for the day today supervision and management of the said Company. In short, the plea of the Petitioner is that the Respondent /Prosecution without conducting a detailed investigation to appreciate the role of the Petitioner in the alleged offence had just without application of mind had named the Petitioner as an Accused in the present case.
16. The Learned Counsel for the Petitioner contends that the Deputy General Manager of Bank of Baroda in communication BR:ARMB:F-291:17/367 dated 28.03.2014 addressed to V.S.Vassan (A3) had stated the following:
Dear Sir, Re: Compromise settlement A/c. M/s. Pan Transports & Carriers P Ltd. Full and final
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We refer to our letter no.BOB:ARMB:F-291:17/323 dated 21.03.2014 advising the sanction of your compromise offer in respect of M/s. Pan Transport & Carriers P Ltd., offering a sum of Rs.100 Lakhs (Rupees: One Hundred Lakhs only) in full and final settlement of our dues which was duly accepted by you.
We acknowledge the receipt of Rs.100 Lakhs (Rupees: One Hundred Lakhs only) received on behalf of the company and inform you that M/s. Pan Transport & Carriers P Ltd., have settled our dues as per the compromise offer in full and final, duly sanctioned and accepted. As such the bank does not have any claim whatsoever against M/s.Pan Transport & Carriers P Ltd.
Yours faithfully, sd/.
(S.Devaseelan) Deputy General Manager.
and in view of the compromise settlement in full and final terms, the continuation of criminal proceedings before the trial Court would amount to an abuse of process of Law and therefore, prays for allowing the present Revision Petition in the interest of justice.
17. Respondent's Contentions:
In response, the Learned Special Public Prosecutor for the Respondent submits that on the basis of a written complaint dated 24.12.2008 of the Deputy General Manager, Bank of Baroda, Regional Office, (Chennai Metro) a case in R.C.12(E)/2008 was registered by CBI, EOW, Chennai against A1 to A6 and other unknown persons, under Sections 120-B r/w 420, 467, 468, 471 IPC and substantive offences thereof.
18. The Learned Counsel for the Respondent contends that during the year 1997-2002, A1 to A10 entered into criminal conspiracy to cheat Bank of Baroda, Chennai Branch, by using forged property documents with an intention to commit fraud by using those documents as genuine, which they knew that they were forged. And in fact, a charge sheet was filed on the file of the trial Court by the Respondent on 16.11.2009 against A1 to A10 for the offences punishable under Sections 120-B r/w 420, 467, 468 and 471 IPC and Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and substantive offences thereof.
19 The main contention advanced on behalf of the Respondent is that the Accused persons after fraudulently availing credit facilities diverted and misuse the funds and failed to repay the loan amount and thereby caused a wrongful loss of Rs.105.63 lakhs to the Bank of Baroda and corresponding wrongful gain to them.
20. The Learned Counsel for the Respondent submits that the charge sheet was filed on 16.11.2009 and that the veracity of the statements of L.W.15 (M.Kannan) and L.W.16 (K.S.Samundeeswari) can only be gone into by the trial Court at the time of their examination as competent witnesses. Furthermore, the document 82 has clearly established that the Petitioner and other Accused are the Directors of A6 Company. As a matter of fact, the documents do contain the original seal of the office of the Registrar of Companies and the same were furnished to the Respondent/CBI with a covering letter of L.W.15 (M.Kannan), Assistant Registrar of Companies. That apart, D-82 was filed by the Directors of A6 Company before the Registrar of Companies, Chennai, as such, the contention of the Petitioner that form 32 would reveal the names of the Directors of Company is an endeavour one. Moreover, the authenticity of document 82 can very well be decided before the trial Court in the main case only after examination of L.W.15.
21. The Learned Counsel for the Respondent contends that the complicity of the Petitioner and the role played by other Accused were specifically mentioned in the charge sheet and in fact, the D1 to D90 collected during the investigation by the Respondent are an authentic one in terms of the ingredients of the Indian Evidence Act, 1872.
22. The Learned Counsel for the Respondent submits that at the stage of framing of charge a Court of Law is only required to consider the police report under Section 173 Cr.P.C and the documents sent with it and further, the right of the Accused is of being heard and nothing beyond that. Also that, on that stage an Accused may be examined but i.e. Prerogative of the Court.
23. During the last leg of his argument, the Learned Counsel for the Respondent contends that the impugned order of the trial Court in Crl.M.P.No.1208 of 2013 in C.C.No.43 of 2009 dated 17.02.2014 is well within the ambit of Law.
24. Disposition:
It is to be borne in mind that at the stage of under Section 239 / 240 of Cr.P.C. it is the paramount duty of a Court to find out whether the allegations/charges are groundless or otherwise. Further, it is to be remembered that the stage of Section 239 Cr.P.C prior to the framing of the charge under Section 240 Cr.P.C is not expected to be a 'Dress Rehearsal of a trial' as per decision Angusami V. Kaleeswaran Ambalam, 1989 Mad LW (Crl) page 108.
25. No wonder, at the time of framing charge a Court of law is not to enter upon the process of appreciating the evidence by determining its credibility or worth as the case may be. Even, a pin pointed consideration of the possible/anticipated defences need not be undertaken at the stage of Section 239 Cr.P.C. At the early/initial stage, if there are strong materials which leads a Court of Law to think that there are enough grounds for presuming that the accused had committed an offence, then, it is not open to the Court to take a stand that there are no sufficient grounds for proceeding against the accused, as opined by this Court.
26. To put it precisely, where the available material on record discloses offence, an accused cannot be discharged as per decision Nitarpada Das V. Sudarsan Saranji, 1991 CrLJ 3012 (Ori).
27. In this connection, this Court very pertinently points out that a Court of Law at the time of passing the order of discharge cannot take into consideration any other documents including the documents produced by the accused. The acid test for determining whether the charge ought to be considered groundless is that where the materials are such that even if unrebutted make out no case whatsoever as per decision Om Prakash V. State, 1983 CrLJ 1151, 1153 (Cal-DB).
28. To put it succinctly, at the time of framing of charges, the probative value of the materials on record cannot be gone into by a Court and indeed, the material put forth/brought by the Prosecution has to be accepted as truthful one at that stage as opined by this Court.
29. It comes to be known that the trial Court had framed necessary charges against the accused and in law, after framing of charge/charges, there cannot be a 'Discharge' but only an acquittal based on a finding of not guilty resting on the merits of the case. At the time of framing of charges, it would suffice, if the materials on record supports triable issues. At the time of framing of charge, a Court of Law is not to indulge him meticulous appreciation of evidence and the same is impermissible in law in the considered opinion of this Court.
30. It is to be noted that there are no provisions in the Criminal Procedure Code, whereby accused person can be discharged once he is charge sheeted. Even if an accused at a subsequent stage settles the monetary claim of the Bank that cannot be a ground either to discharge from the main case or to quash the criminal proceedings initiated against him or others. Moreover, whether accused persons had 'Mens Rea' (guilty mind) or not can only be decided based on proper materials produced/adduced during the trial and as such, the concerned persons cannot invoke the 'Revisional powers' or 'Inherent powers' of this Court under Criminal Procedure Code in the considered opinion of this Court. It cannot be brushed aside that the materials gathered during investigation and evidence led in before the trial Court which decides the fate of accused persons in Criminal Law.
31. In view of the fact that the trial Court had framed charges against the concerned accused in C.C.No.43 of 2009 and this Court is of the considered view that the Petitioner/A3 is to take part in the trial proceedings of the main case. Viewed in that perspective, the Revision Petition fails.
32. In the result, the Revision Petition is dismissed. The order passed by the trial Court in Crl.M.P.No.1208 of 2013 in C.C.No.43 of 2009 dated 17.02.2014 is affirmed by this Court for the reasons ascribed in this Revision. Liberty is granted to the Petitioner/A3 to raise all factual and legal pleas and also to produce necessary documents before the trial Court in C.C.No.43 of 2009 and to avail appropriate remedy if he so desires / advised in the manner known to Law. Since the allegations in the FIR relate to the period 1997 2002, this Court, on the basis of Equity, Fair play, Good Conscience, even as a matter of prudence and also to promote substantial cause of justice, directs the trial Court to examine the witnesses in main case C.C.No.43 of 2009 pending on its file preferably on day today basis and also in terms of ingredients of Criminal Procedural Code and to complete the trial of the main case as expeditiously as possible.
26.08.2014 Index : Yes/No Internet: Yes/No sms To
1. State by the Inspector of Police SPE/CBI/EOW, Chennai.
2. XI Additional City Civil & Sessions Judge, CBI cases relating to Banks and Financial Institutions, Chennai M. VENUGOPAL,J., sms Pre-delivery order in Crl.R.C.No.442 of 2014 26.08.2014