Madhya Pradesh High Court
Sudhir Kumar Kad vs Central Bureau Of Investigation on 25 March, 2022
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
1 MCRC.7320.2022
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 25th OF MARCH, 2022
MISC. CRIMINAL CASE No. 7320 of 2022
Between:-
SUDHIR KUMAR KAD S/O SHRI KEVAL KRISHAN KAD
AGED ABOUT 60 YEARS,
OCCUPATION: RETIRED
28, VIJAY NAGAR RAHIMPUR ROAD,
HOSHIYARPUR, PUNJAB
POLICE STATION MODEL TOWN
HOSHIYARPUR (PUNJAB)
.....PETITIONER
(BY SHRI ANIL KHARE SR. ADVOCATE with MS PALLAVI KHARE,
ADVOCATE)
AND
CENTRAL BUREAU OF INVESTIGATION
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GAURAV SINGH CHAUHAN, DY. GOVT. ADVOCATE)
This application coming on for orders this day, Hon'ble Shri Justice
Satyendra Kumar Singh passed the following:
ORDER
This is first application filed under Section 438 of Cr.P.C. for grant of anticipatory bail to the applicant, as he is apprehending his arrest in connection with Crime No.RC0082018A0016/2018 registered at Police Station- CBI/ACB, District Bhopal (M.P.) for offences punishable under Sections 120-B, 420 and 471 of IPC and also under Section 13(1)(d) r/W 13(2) of Prevention of Corruption Act.
2 MCRC.7320.2022 Prosecution story, in brief is that proprietor of M/S Jain Industries Pankaj Kothari alongwith Narendra Prajapati and the other co-accused persons in connivance with the present applicant and the other bank officials of Punjab National Bank, Kanthal Branch, Ujjain hatched a conspiracy to cheat the bank and to embezzle the public money. Pankaj Kothari submitted a loan application alongwith forged documents to the bank for cash credit limit of Rs. 320 lakhs. He hypotheticated the coal purchased from the loan amount and amount receivable from debtors as a primary security with the bank. Narendra Prajapti has mortgaged his land as collateral security in favour of the bank. Applicant being Senior Manager of the aforesaid bank had processed and recommended sanction of fund i.e. cash credit of Rs. 320 lakhs against the forged documents without going into the genuineness of the documents. Applicant and the other bank officials did not bother to verify the antecedents of borrower and also the capability of the borrower to run his business. Thus, they deliberately accepted fraudulent and highly optimistic projected sales figures for the financial years 2013-14 for a firm showing a business history of only one year. Applicant and other bank officials abuse their position and deliberately overlooked the mismatch mentioned in the audit balance sheet and VAT returns enclosed in the loan file. Business premises shown to be visited by the bank officials during pre-sanction visit was neither in the possession of borrower nor with the guarantor. There was no coal yard of M/S Jain Industries and it was also found that no coal existed at the given address of godown and finally the loan got sanctioned by co-accused Dinesh Kumar, the then Chief Manager, thereby making a wrongful gain to Pankaj Kothari. After sanctioning of the cash credit limit of Rs. 320 lakhs by the bank on 13.09.2013, the borrower withdrew the entire 3 MCRC.7320.2022 sanctioned amount before 01.09.2013. The funds were rotated among different firms and companies of Shubham Group owned and managed by Narendra Prajapati. Thus, thereby making a loss to the bank for Rs. 320 crores by embezzlement of public money and intentionally causing wrongful gain to the co-accused persons.
Learned counsel for the applicant submits that initially applicant's name was neither reflected in the FIR nor in the complaint. Applicant only processed and recommended the said loan application of M/s Jain Industries. Applicant has been made an accused on the whims and fancies of the investigating authorities without understanding the role played by him and other bank officials while sanctioning the loan. Profile of the borrower was checked and due process was followed by the applicant and there was no error on his part. Valuation of the property was assessed by the empanelled valuer Rajesh Shrivastav. Business premises visited by the applicant during pre-sanction visit belongs to the borrower and same was on rent. Applicant was posted in Kanthal branch till 08.04.2014. Therefore, responsibility for the present applicant ended on 08.04.2014 and the allegations of increase of credit limit and verification of stock, subsequent to sanction of loan cannot sustain against the applicant. Sanctioned amount of Rs. 320 lakhs has been recovered by selling the IP for Rs. 340 lakhs.
Learned counsel for the applicant further submits that seven other criminal cases of similar nature were also registered against him wherein he was initially arrested on 24.02.2020. FIR of this case was registered on 16.01.2018 and during investigation of this case, he was in judicial custody and he co-operated in the investigation. He was not being arrested intentionally in this case and after last order dated 07.09.2021 granting bail to him, chargsheet has been filed. He did not 4 MCRC.7320.2022 misuse the liberty granted to him in other cases. His custodial interrogation or custodial trial is not required in the matter and therefore, in the aforesaid circumstances, applicant is entitled for grant of anticipatory bail.
Learned counsel for the respondent-State/CBI has opposed the application by submitting that the applicant had a close association with the main borrower. Non-bailable arrest warrant has been issued against him and, therefore, he is required to appear before the Court and apply for regular bail. He placed reliance on the judgment passed in the case of State of Madhya Pradesh Vs. Pradeep Sharma [(2014) 2 SCC 171 and Lavesh Vs. State of (NCT of Delhi)[(2012) 8 SCC 730] and also of this Court passed on 16.06.2021 in M.Cr.C. No. 17219/2021 in the case of Rajesh Prajapati Vs. The State of M.P., wherein by placing reliance on the case of Salauddin Abduls Samad Shaikh Vs. State of Maharashtra [AIR 1996 SC 1042], wherein it was ordered to the accused to appear before the Court and apply for cancellation of warrant and get for regular bail.
In rejoinder, learned counsel for the applicant submits that findings with regard to grant of anticipatory bail in the case of Salauddin(supra) has been over ruled by the Hon'ble Supreme Court in the case of Shushila Aggrawal and others Vs. State (NCT of Delhi) and other [(2020) 5 SCC 1 (para 88)]. Full Bench of this Court in the case of Nirbhay Singh and Anr Vs. State of Madhya Pradesh [1995 MPLJ 296] has very categorically held that application for anticipatory bail is maintainable even after issuance of warrant of arrest.
Learned counsel for the applicant further submits that instant application for grant of anticipatory bail was filed on 04.02.2022 i.e. before issuance of warrant of arrest. In identical seven other criminal 5 MCRC.7320.2022 cases, regular bail has been granted to him by different orders. Hence, applicant deserves to be protected against arrest.
Heard the learned counsel for the parties and perused the record and citations relied upon by learned counsel for the parties.
In the present case, this fact is undisputed that FIR was lodged on 16.01.2018 and in similar other criminal cases registered against the applicant, he was in custody since 24.04.2020 to 07.09.2021 i.e. during investigation of this case.
Learned counsel for the respondent/CBI has no where challenged the fact that during investigation, applicant cooperated in the investigation and his custodial interrogation or custodial trial is no more required in the matter as in other similar cases, regular bail has been granted to him by different orders. Allegations made against the applicant are similar to that of other similar criminal cases. So far as the maintainability of the applicant for grant of anticipatory bail is concerned, findings rendered in the case of Salauddin Abdul Smad Sheikh(supra) have been over ruled in the case of Shushila Aggrawal (supra). In the case of Nirbhay Singh (supra), full Bench of this Court has prescribed the procedure to be followed where anticipatory bail is granted for issuance of non-bailable warrant which is as follows:
14. In our opinion, the conflict between an order or anticipatory bail and non-bailable warrant has to be met in a pragmatic manner striking a balance between individual's right to personal freedom and the invocation of right of the police and the procedure required to be followed by a Magistrate. Where an order of anticipatory bail is passed after issue of non-bailable warrant of arrest by a Magistrate, the duty of the police officer entrusted with execution of the warrant would be to 6 MCRC.7320.2022 arrest the person and produce him before the Magistrate who thereupon shall deal with the accused as required by the order of anticipatory bail.
15. In view of what we have indicated above, we are in respectful agreement with the view taken by the High Court of Punjab and Haryana that an application under Section 438 Criminal Procedure Code would be maintainable even after the Magistrate issued process under Section 204 or the stage of committal of the cse to the Sessions Court or even at a subsequent stage, if circumstances justify the invocation of the provision.
In view of the aforesaid discussion, considering the over all facts and circumstances of the case, this Court is of the view that appellant deserves protection against arrest. Hence, without expressing any opinion on merits of the matter, this application is allowed.
It is directed that in the event of arrest of the applicant, he shall be enlarged on anticipatory bail upon his furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees one lakh only) with one solvent surety in the like amount to the satisfaction of the Arresting Officer for his appearance before the Trial Court on all dates and for complying with the conditions enumerated under sub-section (2) of Section 438 of the Code of Criminal Procedure.
This application is allowed and stands disposed of. Certified copy, as per Rules.
(Satyendra Kumar Singh) Judge sh/-
SEHA Digitally signed by SEHAR HASEEN DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH R INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, postalCode=452001, st=Madhya Pradesh, 2.5.4.20=900ec6fc757798eaeb3df 7a32860bd3298415a4d1c2d9143 HASE 6213f2568c8f27da, pseudonym=F50E66F24169404D6 C1C89B398467A979218326F, serialNumber=E7DBBA955B262C0 4B8413251CE7FB6F0B7DBA610C5 7F1559C08BF6C6F5DD40D4, EN cn=SEHAR HASEEN Date: 2022.03.26 18:45:59 +05'30'