Jammu & Kashmir High Court
Nitin Kumar Tayal vs Cbi And Ors. on 28 September, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No. 34/2015 & IA No. 34/2015
Date of order:28.09.2018
Nitin Kumar Tayal. Vs. CBI and ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearance:
For the petitioner (s) : Mr. Rajneesh Oswal, Advocate.
For the respondent(s) : Ms. Monika Kohli, Advocate.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. This petition has been filed by petitioner, who is a approved property valuer of certain Banks including SBI, for quashing the order of trial Court dated 15.11.2014 whereby charges under section120-B read with section 419/420/467/468/471 RPC have been framed against him.
2. In the petition, it has been stated that the petitioner being the proprietor of M/s Tayal Associates which is the approved valuer of certain Banks, the State Bank of India sought for the valuation of the following properties from the petitioner:
a. Commercial cum Residential vacant Plot of land measuring 10 kanals comprising khasra no: 40 1 min situated at Village Chowadhi Jammu;
b. Commercial cum Residential vacant Plot of land measuring 10 kanals comprising khasra no: 1474 min situated at Village Chowadhi Jammu;
c. Commercial cum Residential Plot of land with double storey building constructed with 400 sq. Feet covered area at Village Tringla Ramban District Doda.
CRMC No.34/2015 Page 1 of 113. The petitioner deputed one Jasminder Singh, who was the employee of M/s Tayal Associates, for spot visit of the properties, who, along with his assistant Neeraj Gupta conducted the spot visit of all the properties mentioned hereinabove and handed over the valuation report to the Bank officials. It is stated that the State Bank of India in addition to the valuation done from the petitioner also conducted the valuation of the aforesaid properties from one Hem Raj Phonsa.
4. It is further stated that on information from the reliable source, the Central Bureau of Investigation (CBI) registered an FIR for the offences punishable under Sections 120-B read with 419/420/467/468 and 471 RPC that the fake and non-existent properties were furnished by the borrowers supported by forged fabricated revenue documents in order to obtain loan in which it was alleged that the gross over valuation was done by the valuer-petitioner in respect of the non-existent properties. The empanelled advocate also is alleged to have given the false search report. After completion of the investigation the challan against the petitioner and proforma respondents was filed before the Special Judge (Anti Corruption) CBI Jammu and later on the said challan was transferred to Sessions Judge Jammu as no offence was made out under Section 5(2) of P.C. Act. Learned Sessions Judge Jammu vide his order dated 15.11.2014 discharged the Empanelled Advocate as well as some other accused and framed charges against the petitioner under Sections 120-B read with 419/420/467/468 and 471 RPC.
5. Through the medium of this petition, the petitioner challenges the aforesaid order on the following grounds :
a. that there is no allegation against the petitioner for the commission of offence mentioned in the challan. It was his employee Jasminder Singh and other persons who visited the spot and made the site plans. It was on the spot visit conducted by the said Jasminder Singh the valuation report was prepared by the petitioner.
b. that there is allegation of over valuing the property. Petitioner submits that the Bank had got valuation of the properties done by other valuer-H. CRMC No.34/2015 Page 2 of 11 R. Phonsa and if the Bank was not satisfied the Bank could have rejected the report of the petitioner.
c. the other allegation leveled against the petitioner is that the valuation has been conducted on the non-existent properties. Counsel for the petitioner submits that the petitioner has prepared the valuation report only on the basis of spot visit and enquiry conducted by his employee on the basis of the property which was shown by the owner-
Parvez Ahmed Mir to Jasminder Singh and the petitioner had prepared the valuation report only on the basis of spot visit and enquiry conducted by Jasminder Singh. The property was shown by owner Parvez Ahmed Mir and on the basis of the identification of the property by the owner, the said Jasminder Singh conducted the enquiry. In fact there is no evidence on record that the petitioner was privy to any conspiracy to commit an offence as such. The Court below has not considered this vital aspect of the case and has the passed the order impugned.
6. Counsel for the respondent No.1 has filed the objections to the main petition as also to the application for grant of interim relief. It is stated in the objections that the petitioner in connivance with other accused persons with a common object to cheat SBI Kaluchak Branch Jammu has fetched a conspiracy in which the petitioner recommended the case of the other accused for sanctioning of loan of Rs. 2.00 crores as genuine. The loan amount was used by the accused for their own ends and no repayment was made to the bank as a result of which the loan account turned NPA causing loss to the exchequer. It is further stated that the bank had obtained the valuation reports of the properties proposed to be mortgaged with the bank from Nitin Kumar Tayal-petitioner who is an approved valuer of the bank. During the investigation, it is established that the gross overvaluation of the property was done by the valuer in respect of non-existent properties. Valuation of the non-building existing on the land of one Krishan Lal Singh was done by the petitioner and the land was shown as worth Rs. 1.84 crores and the building constructed over it was shown worth Rs.15.88 lacs. Moreover the valuation was done by the petitioner on the higher side out of which two properties costing CRMC No.34/2015 Page 3 of 11 more than Rs.2.00 crores does not exist. The valuation of the third property cost of which was shown as Rs.1.84 crores was valued worth Rs. 72.80 lacs only.
7. Heard rival contentions of parties and law on the subject.
8. Accusation against petitioner is that a partnership concerned styled as M/s Mir Associates Batote was established by Mohd. Iqbal Mir (A-1) and Parvez Ahmed Mir (A72) in 2002 and it was registered with the Registrar of Firms. It was dealing in contract works since its inception. Project work of Kandi Canal Medium Irrigation Project Doda was awarded to the said partnership concern in June, 2007. The project involved a cost of Rs. 23.68 crores. A-1 and A-2 approached R. K. Sapru, Branch Manager, SBI, Kaluchak to obtain facility of Rs. 2.00 crores on the pretext of promoting their contract works. A-1 and A-2 submitted false revenue documents in the form of fard intikhab jamabandi and Naksha dasti shajra in respect of khasra No.l474 and 401 to the Bank in order to fraudulently avail the loan. False certificates were obtained from the firms whose work was being executed. Mr. Sapru processed the loan case by filling in the application cum interview form for mortgage loan, in his own handwriting enclosing photographs of A-1 and A-2 along with those of two impersonators as guarantors and forwarded the same to Zonal office. The investigation revealed that A-1 and .A-2 had submitted fake, non- existent and fraudulently over valued securities supported by forged Fard Intikhab Jamabandi, Naksha Dasti Shajra and Khasra Girdawari fabricated by Des Raj Patwari (A-5) in order to fraudulently secure the loan, the collateral properties offered as security included:-
a) Commercial cum. residential vacant plot of land with boundary wall measuring 10 kanals under Khasra No. 401 min, Khewat No.17, Khata No. 148 min situated at village Chowadhi said to be belonging to one Major Singh.
The investigation established that Major Singh did not own any land in Village Chowadhi under the said Khasra, khewat and khata as he and other co sharers had sold their shares before 2007.
CRMC No.34/2015 Page 4 of 11b) Commercial cum residential vacant plot of land with boundary wall measuring 10 kanals comprising Khasra .No. 1474 min, khewat No. 26, Khata No. 493 min situated at Chowadhi Jammu, said to be belonging to Thoru Ram. Investigation established that Thoru Ram had only two kanals of land under Khasra No. 1474 min, khewat No.26, Khata No. 493, against 10 kanals of land shown as mortgaged to the bank, which had been sold by him before year 2007. .
c) Commercial-cum-.residential vacant plot of land with double storey building constructed with 4000 Sq. feet covered area situated at village Tringla, Tehsil Ramban, Distt. Doda, comprising Khasra No. 836 khewat No. 191 Khata No. 390 said to be belonging to A-1 and A-2. The investigation established that the land was vacant and no double storey building existed in the same. The area was agricultural and not commercial.
9. Investigation further revealed that accused/ petitioner herein Nitin Tayal (A7) approved valuer of the Bank made gross over-valuation in respect of collateral property in connivance with A-1 and A-2. A-7 (petitioner herein) assessed the value at exorbitant rates. Surinder Kumar Gupta approved valuer of the bank, who, assessed the value of said properties after the account became irregular reported that since the land was not available, no valuation could be fixed.
10. In respect of the land at village Tringla, it was found to be of the value of Rs.72.80 lacs whereas it had been valued at Rs.1.84 crores for land and Rs.15.88 lacs for the non-existent building by the Petitioner. The investigation thus established that A-1 and A-2, having dishonest intention of cheating the bank, hatched a criminal conspiracy with the rest of the accused and in furtherance of said conspiracy obtained forged/fake revenue documents of non-existing properties as also fake title investigation and valuation reports besides roping in A-3 and A-4 to impersonate as Major. Singh and Thoru Ram respectively leading to sanctioning and disbursement of loan worth Rs.2.00 crores to M/s Mir Associates, used the loan amount for their own ends resulting in the loan account turning NPA on 30.12.2009 with liability of Rs.l,64,79,664/-. The investigation revealed commission of offence u/s l20 -B r/w 419/420/467/468/471 RPC against the accused.
CRMC No.34/2015 Page 5 of 1111. Accordingly Charge sheet was laid before trial court after obtaining sanction for prosecution. The case was initially filed before Special CBI Court where the learned Judge took the view that adverting to the material assembled during investigation of the instant case it comes to fore that A-5 (Patwari), who is alleged to have forged Fard Intikhab Jamabandi and Naksha Dasti Shajra at the instance of A-9, for undue pecuniary advantage and also forged revenue documents of fake collateral securities at the time of marking lien of the mortgaged properties in favour of the Bank, was placed under suspension Vide order No. l900/PF/91-92/II/898-900 dated 30.12.2004 and attached to the office of Assistant Commissioner Nazool Jammu. No duty was assigned to him with effect from 1.3.2006 to 31.12.2007. It is during this period that he allegedly connived with A-9 a private person and prepared fake Fard Intikhab Jamabandi in respect of land and on the basis of such fabricated documents fraudulently prepared by A-5, loans worth Rs. 2.00 crores were disbursed to A-1 and A-2, who used the loan amount for their own ends making no repayment to the bank as a result of which the accounts turned NPA and the Bank suffered loss of Rs. 1.65 crores approx. The wrongful loss was caused to Bank/Exchequer as a result of fraudulent acts of commission attributed to A-5 who, though a public servant, was divested of official duties. So case was sent to Session Judge Jammu. The court below after hearing the parties discharged four accused namely K.S. Puri Advocate, Faheem Soukat Butt, Riaz Ahmed and Vijay Singh and framed charges against rest of accused including the petitioner herein.
12. The laws for quashing of charge/s and duty of court while framing of charge, delivered by Apex court reads as under:-
CRMC No.34/2015 Page 6 of 11In AIR 2014 SC 1106 in case titled Umesh Kumar v State of Andhra Pradesh, it held as under:-
"Code of criminal procedure -section 482 -instead of considering prima facie case-High court appreciating and weighing the materials on record -concluding that charge sheet could not have been filed against accused and further ,no charges could have been framed -virtually acting as an appellant court - approach illegal and erroneous.
A Constitution Bench of this Court reiterated a similar view in CBI & Ors. v. Keshub Mahindraetc., AIR 2011 SC 2037 observing that when the charges are framed, the court makes an endorsement till that stage. So charges are framed on the materials produced by the prosecution for framing the charges "at that stage". Such indication is necessary otherwise the provisions containedin Sections216, 323, 386, 397, 399, 401 etc. Cr.P.C., would be rendered nugatory and denuded a competent court of the powers under those provisions. The court cannot be restrained from exercising its powers either under Section 323 or Section 216 Cr.P.C."
In 2015 (3) CRIMES (SC) 89 in case titled The State rep. by the Inspector of Police Vs. Mariya Anton Vijay, it is held as under:-
"The question as to how, in what manner and to what extent, the inherent powers of the High Court under section 482 of the Code are exercised for quashing the registration of FIR/final report/charge sheet/complaint etc. are no more res integra and settled by several decisions of this Court.
One leading case on this question is Bhajan Lal's case (supra) and the other is S.B.Johari's case (supra) apart from many others.
So far as the case of Bhajan Lal (supra) is concerned, following proposition of law is laid down:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.CRMC No.34/2015 Page 7 of 11
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
As far as S.B. Johari (Supra) case is concerned, following proposition of law is laid down:
"4. In our view, it is apparent that the entire approach of the High Court is illegal and erroneous. From the reasons recorded by the High Court, it appears that instead of considering the prima facie case, the High Court has appreciated and weighed the materials on record for coming to the conclusion that charge against the respondents could not have been framed. It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is CRMC No.34/2015 Page 8 of 11 challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya, (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228 CrPC, the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the [pic]offence with which the accused could be charged. The court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh, (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal,(1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja,(1979) 4 SCC 274 and held thus: (SCC p. 85, para 7) "From the above discussion it seems well settled that at the Sections 227- 228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose sift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (emphasis supplied)
5....................................................................
13. In our view the aforesaid exercise of appreciating the materials produced by the prosecution at the stage of framing of the charge is wholly unjustified. The entire approach of the High Court appears to be as if the Court was deciding the case as to whether the accused are guilty or not...................."
13. Keeping the aforementioned principles of law in mind and applying the same to the facts of the case in hand, I am of considered opinion that Sessions Judge, while framing charge under section 269 of Cr.P.C. is obliged to scan the evidence collected during investigation for limited purpose for satisfying himself as to whether there are sufficient grounds to presume that accused has committed offence as is alleged. For the purpose of framing of charge, therefore, the Judge has to consider judicially whether on consideration of the materials on record, it can be said that the accused has been reasonably connected with the offence alleged to have been committed and that on the basis of said materials there is a reasonable probability of accused being found guilty of the offence as alleged. If the answer is in affirmative, the judge will be at liberty to presume "that the accused has committed an offence". Charge is first notice to the accused of an accusation made against him. It should be CRMC No.34/2015 Page 9 of 11 conveyed to him in sufficient clearness and certainty as to what the prosecution intends to prove and with which case the accused is to meet.
14. Section 4(c) of Code of Criminal Procedure defines a "charge" includes any head of charge when the charge contains more heads than one. As per Law a charge may be a precise formulation of a specific accusation made against a person of offence alleged to have been committed by him. The main purpose of framing charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of trial.
15. At the time of framing charge, the Court has to prima facie consider whether there is sufficient ground to proceed against the accused and Court is not required to appreciate whether the material produced is sufficient or not for convicting the accused.
16. Bare perusal of file and order of court below with regard to framing of charge, I find that court below has carefully scanned the evidence collected by investigating agency during investigation. There is enough material that accused-petitioner made gross overvaluation in respect of nonexistent properties in connivance with Mir brothers; these Mir brothers got fraudulently valuation of building contracted on the land of one Krishan Singh and shown the value of land as Rs.1.84 crores and that of building as Rs.15.88 lacs with connivance of petitioner Nitin Tayal. It was also found that Nitin Tayal with connivance of Mir brothers made mis-representation thereby showing the land in the vicinity of National Highway (1-A), Moti Mahal Restaurant, J.P Guest House and Military Check Post, whereas it was 1 ½ KM far from National Highway. Further petitioner being valuator of property showed that property have average commercial value, basic amenities viz. power, sewerage, water supply, metalled road, street light etc; but during investigation nothing of such amenities were found on spot. It has also come in investigation that land measuring 10 kanal each on the name of Major Singh and Thoru CRMC No.34/2015 Page 10 of 11 Ram under kh.no 1474 min situated at Chowadi, Jammu were not belonging to them; it has come during investigation that accused /petitioner shown valuation of land as commercial cum residential with double storey building under kharsa no. 836 measuring 18 k 8 m situated at village Tringla Ramban, on the name of Mohd Iqbal Mir and Parvez Mir, as 1.84 crores of land and that of building as 15.88 lacs, but there was no building in existence and valuation of land was done at exorbitant rate.
17. During course of argument, counsel for petitioner has brought to knowledge of the Court about certain contradictions and exaggerations in statements of prosecution witnesses. Now law is clear that these contradiction and exaggeration cannot be considered at the stage of framing of charge. It is not the case of petitioner that there is legal bar created in any law for framing of charges against him. In this way, there is enough material to frame the charge against the petitioner.
18. In view of what has been discussed above, this petition is dismissed.
(Sanjay Kumar Gupta) Judge Jammu 28.09.2018 Sunita CRMC No.34/2015 Page 11 of 11