Himachal Pradesh High Court
Neelkanth vs State Of Himachal Pradesh on 24 August, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1854 of 2023 Reserved on : 21.08.2023 .
Decided on : 24.08.2023
Neelkanth ...Applicant
Versus
State of Himachal Pradesh ...Respondent
of
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
rt Whether approved for reporting?1 For the applicant : Mr. Vinod Thakur & Mr. Mohar Singh, Advocates.
For the respondent : Mr. Tejasvi Sharma, Additional Advocate General with Ms. Leena Guleria, Deputy Advocate General.
S.I. Ashok Rana, Additional SHO, Police Station, Nalagarh, is present along with record.
Virender Singh, Judge ApplicantNeelkanth has filed the present application under Section 438 of the Code of Criminal Procedure (hereinafter referred to as 'CrPC'), seeking the indulgence of this Court to direct the Police/Investigating 1 Whether Reporters of local papers may be allowed to see the judgment? Yes.
::: Downloaded on - 24/08/2023 20:40:56 :::CIS 2Officer to release him on bail, in the event of his arrest, in case FIR No.310 of 2019, dated 25 th October, 2019, .
registered with Police Station, Nalagarh, District Solan, H.P., under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code (hereinafter referred to as the 'IPC').
2. According to the applicant, he is an innocent of person and has falsely been implicated in this case. He has nothing to do with the offence, for which, he has been rt named as accused.
3. According to the applicant, he is permanent resident of the address, as mentioned in the application and is having deep roots in the society. According to the applicant, he is not having any criminal antecedents.
4. In the application, certain undertakings have been given, on behalf of the applicant, for which, he is ready to abide by, in case, any direction is issued to the Police/Investigating Officer, under Section 438 Cr.PC.
5. When put to notice, the police has filed the status report on 25.7.2023, on the directions of this Court, disclosing therein that complainant has filed the petition under Section 156(3) Cr.PC, in the Court of learned ::: Downloaded on - 24/08/2023 20:40:56 :::CIS 3 Judicial Magistrate First Class, Court No.2, Nalagarh, with the following contents: .
5.1. The applicant/complainant is a body corporate established under the Regional Rural Banks Act, 1976. It has its Head Office at Jail Road, Mandi, District Mandi, H.P., having branches all over Himachal Pradesh and of amongst other branches, it has a branch in Nalagarh, Tehsil Nalagarh, District Solan, H.P. rt 5.2. The present complaint is being filed through Sh. Surender Kumar Rana, who is presently posted as Senior Manager, Himachal Pradesh Gramin Bank, Branch Office, Nalagarh, Tehsil Nalagarh, Distt. Solan H.P., and duly authorized by the competent authority to institute file the present complaint to conduct the proceedings thereof.
5.3. During the period w.e.f. 2012 till 2014, 44 loan transactions in the Nalagarh Branch of the Complainant Bank relating to 36 Borrowers have been detected involving disbursements of Rs. 501.11 Lac to them/or their respective suppliers/dealers, as per their respective authority letter(s), after they had duly executed the Loan documents in favour of the ComplainantBank.
::: Downloaded on - 24/08/2023 20:40:56 :::CIS 45.4. Later on, it was found that either the securities against disbursement of loan have not been created by the .
concerned Borrower's in most of these loan accounts or the securities have been found to be missing or those Borrowers have submitted forged documents to get the disbursement of the loan, putting the huge public money of at risk.
5.5. The advanced loan amount under the loan rt accounts have been found to be credited in different accounts owned by Amarjeet and his agents, with various banks, as per the authority given by the respective Borrower(s). Furthermore, these Borrowers had not been making the repayment of the loan installments with interest, charges, expenses, etc. Consequently, the Complainant Bank has recalled the loan amounts from the concerned Borrowers.
5.6. On their failure to make the repayments in their respective loan accounts, as per their duly executed respective loan documents, the ComplainantBank has initiated legal proceedings (Civil suit for Recovery/Recovery proceedings before Debt Recovery Tribunal/Complaint ::: Downloaded on - 24/08/2023 20:40:56 :::CIS 5 under Section 138 Negotiable Instruments, Act/SARFAESI Act).
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5.7. In Internal Fact Finding proceedings against the concerned Officer(s) of the ComplainantBank, in these loan transactions, the then Branch Manager Sh. R.P. Singh was found to be guilty of irregularities, negligence, lapses, of etc. for noncreation of hypothecated securities/missing hypothecated securities in these loan transactions, and as rt such, he has been dismissed from the service.
5.8. Shri Vijay Kumar Garg, General Manager and Shri Manoj Kumar Singh, Vigilance Officer visited BO Nalagarh to meet a delegation of some customers on their request. In the visit report dated 25.08.2017, 21 cases of fraud amounting Rs.249 lac were identified, of which FIR has been already filed in 4 loan accounts, amounting Rs.70 lac, these accounts have been reported as fraud to NABARD on 07.09.2017.
5.9. The detailed audit of loan accounts sanctioned during the tenure of Sh. R.P. Singh was got conducted by Internal Senior Auditor of Punjab National Bank, Zonal Audit Office, Shimla. The visit report was sent to Branch ::: Downloaded on - 24/08/2023 20:40:56 :::CIS 6 Manager to verify the securities and report any missing securities present status of all the loans. Upon receipt of .
reply by Branch Manager, 24 loan accounts of 19 persons involving 253.53 lac were identified wherein primary securities were missing.
5.10. The disbursement of these 36 fraud of cases/money trail was investigated, after submission of report. However, certain allegations of corruption are now rt being leveled against Sh. R.P. Singh, Sh. Amarjeet Singh and other unknown persons, thus, calling for an independent investigation from a wellequipped agency.
5.11. It is pertinent to mention here that this complaint shall not, in any manner, prejudice the aforementioned legal proceedings initiated/to be initiated by the ComplainantBank for recovering its dues from the Borrowers/Guarantors (if any).
5.12 Since, huge public money is involved in the matter, a high level investigation be ordered to competent investigating agency thoroughly, in the matter, to tinearth the truth and to bring all the culprits to the book, who have conspired together to cause wrongful loss to the ::: Downloaded on - 24/08/2023 20:40:56 :::CIS 7 ComplainantBank, to cheat, play fraud upon the ComplainantBank and miss appropriated the loan amount .
and/or used the same, for the purposes other than, for which, it was advanced to/or on behalf of the Borrowers and on other grounds, as and when, they are found during investigation, than you are requested to direct to of investigate the matter and subsequently, lodge FIR/S against the culprits to safeguard the Bank's interests rt including the huge public money.
5.13. These accounts have been marked as NPA. In case the involvement of any public servant is found during the course of investigation, he must also be brought to the book. All the relevant loan documents are available with the bank and held in safe custody of the bank.
5.14. In order to redress their grievances, the complainant Bank made complaint to The Superintendent of Police CID/Economic Offences Wing, Police Headquarters, Shimla, on 25.03.2019 to investigate and take action against the accused under the provisions of Law. However, till date, no action has been taken by the said department.
::: Downloaded on - 24/08/2023 20:40:56 :::CIS 85.15. Hence, this application, is being filed with a prayer to issue direction to competent investigating agency .
to lodge complaint/criminal case Under Sections 120B, 420, 468 & 471 of IPC & under Sections 13 of the Prevention of Corruption Act, 1988, for cheating, forgery, misappropriation and criminal breach of trust amounting of to Rs.501.11 Lac, relating to 36 other enabling provisions of Indian Penal Code against the accused persons above rt named be registered & the matter be inquired & investigated against the accused persons and they may be arrested & punished accordingly, in the interest of justice.
6. Learned Judicial Magistrate First Class, Nalagarh, has directed the Police to register the FIR.
7. Consequently, the FIR, in question, has been registered and the investigation was entrusted to ASI Dev Raj, I.O., Police Station Nalagarh.
8. During investigation, the I.O. had obtained the relevant papers, pertaining to 36 persons, who have been named, as accused in the FIR. Attested copies of those papers have been supplied to Police by the Branch Manager, on 2.1.2020. Main accused, in this case, ::: Downloaded on - 24/08/2023 20:40:56 :::CIS 9 according to the Police, is Raj Pal, who remained posted, as Branch Manager from 2011 to 2013. He has sanctioned .
the loan to 36 persons, regarding which, the allegations have been levelled in the FIR.
9. While sanctioning the loan, the Branch Manager has not checked the pre and post disbursement of conditions. The bills submitted by the persons, who have obtained the loan from the Bank, were found as fraud.
rt After registration of the FIR, in the year 2019, main accused Raj Pal Singh has gone underground.
10. Raj Pal Singh was found at Rakkar Colony, Una and was arrested on 17.7.2023, at 7.00 p.m. During investigation, he has deposed that antecedents of the forms, to whom, the loan was sanctioned were not verified.
11. During investigation, it was also found that accused, during his posting at Nalagarh, had disbursed loan of Rs.471.45 lac, without following the proper procedure. On the basis of the departmental inquiry, he was dismissed from the service.
12. During investigation, it has been found that Neelkanth Kapoor (applicant) had obtained loan of Rs.2.50 ::: Downloaded on - 24/08/2023 20:40:56 :::CIS 10 lac, on 18.6.2012, but, not utilized the same for the purpose, for which, it has been obtained.
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13. On the basis of the above facts, by passing the interim protection to the applicant, he was directed to join the investigation.
14. In the supplementary status report, filed on of 27.7.2023, it has been mentioned that the applicant, in pursuance of the directions of this Court, has joined the rt investigation. According to the status report, the applicant has disclosed to the police that he had obtained the loan of Rs.2.50 lac, for purchase of computers, but those computers, were not installed and submitted the bill from the firm Shree Jee Traders, Nalagarh, which is allegedly owned by his brother. The amount was transferred in his account. The said firm, according to the status report, is neither registered, nor dealing with the sale of computers.
15. In the status report filed on 1.8.2023, it has been mentioned that the applicant has joined the investigation.
16. In the status report filed on 21.8.2023, it has been mentioned that accused Raj Pal Singh, has been ::: Downloaded on - 24/08/2023 20:40:56 :::CIS 11 released on bail by the Court of learned Additional Chief Judicial Magistrate, Nalagarh, on 18.8.2023.
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17. Lastly, it has been mentioned that the applicant has joined the investigation and nothing is to be recovered from him. Only his specimen signatures are to be obtained by producing him in the Court.
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18. No doubt, the applicant has been named as accused in a very serious offence, but, presumption of rt innocence is still available to the applicant, as, except for the present case, no criminal history of the applicant has been pleaded or argued.
19. The applicant is permanent resident of Nalagarh, as such, there is no apprehension that, in case, interim order is made absolute, he may not be available for the trial or he may not join the investigation.
20. When the police is coming forward with the plea that no recovery is to be made from the applicant, then, dismissing the application would amount to convict the applicant, prior to trial. Pretrial punishment is prohibited under the law. Punishment can only be imposed, after the full fledged trial.
::: Downloaded on - 24/08/2023 20:40:56 :::CIS 1221. The role allegedly played by the applicant in the commission of the alleged crime will be proved .
by the prosecution during the trial.
22. Moreover, considering the fact that the main accused, in this case, has already been released on bail, then, there would be no justification in rejecting the of present bail application.
23. Considering the factual position, as mentioned rt in the status report, this Court is of the view that the Police is not able to make out a case against the applicant for custodial interrogation. As such, the interim order dated 25th July, 2023, passed by this Court, is hereby made absolute. Therefore, it is ordered that the applicant be released on bail, in the event of his arrest, in case FIR No.310 of 2019, dated 25th October, 2019, registered with Police Station, Nalagarh, District Solan, H.P., under Sections 420, 467, 468, 471 and 120B of the IPC, on his furnishing personal bail bond, in the sum of ₹30,000/, with one surety of the like amount, to the satisfaction of the Investigating Officer. This order, however, shall be subject to the following conditions:
::: Downloaded on - 24/08/2023 20:40:56 :::CIS 13a) That the applicant will join the investigation of the case, as and when, called for, by the Investigating Officer, in accordance with law;
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b) The applicant will not leave India, without prior permission of the Court;
c) That the applicant will not, directly or indirectly, make any inducement, threat or promise to any person, acquainted with the facts of the case, so of as to dissuade him/her from disclosing such facts to the Investigating Officer or the Court; rt and
d) That the applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application.
22. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.
23. The applicant is directed to move regular bail application, when charge sheet will be filed in the Competent Court of Law.
::: Downloaded on - 24/08/2023 20:40:56 :::CIS 1424. It is made clear that the respondentState is at liberty to move an appropriate application, in case, any of .
the bail conditions, is found violated by the applicant.
( Virender Singh ) Judge of August 24, 2023(ps) rt ::: Downloaded on - 24/08/2023 20:40:56 :::CIS