Delhi District Court
State vs . Praveen Kumar Jain And Ors. on 17 July, 2018
IN THE COURT OF SH. PRAYANK NAYAK, MM02,
KKD/SHD/DELHI.
R.No. 82476/16
FIR No. 510/05
PS : Seemapuri
17.07.2018
State Vs. Praveen Kumar Jain and Ors.
At 4.00 PM.
Present: Counsel for complainant.
Vide this order, I shall dispose off the application u/s 300 Cr. P. C, filed by the accused persons.
It is stated in the application that the accused/applicant Jeevan Lal Gupta doing the job of Bank Manager with State Bank of Patiala and was working in the same capacity at the Brauti Branch of the bank in Himachal Pradesh. At that time, offences u/s 420/468/471 r/w Section 120B IPC were alleged to have been committed by him in conspiracy with the other accused persons. An FIR has been registered on the allegations that the accused entered into a criminal conspiracy with the other accused persons, Directors of the company High Voltage Magnet Wire at Brauti, Himachal Pradesh and disbursed loan against the collateral security of the registered sale deeds of the property belonging to the complainant. The other accused persons had represented that they were the registered owner of the property belonging to the complainant and on the State Vs. Praveen Kumar and Ors. Page No. 8 of 8 similar facts, FIRs bearing no.511,515,516,523,527/2005 were also registered at PS Seemapuri on the complaints made by the respective complainants, who also alleged that the applicant/accused had mortgaged their properties while disbursing loan to the above noted company.
On the basis of FIR, a common criminal investigation was made by the police. The FIRs were different, six charge sheets u/s 173 IPC were filed before the concerned court. As per the chargesheet, the accused/applicant is alleged to have committed offences u/s 420/468/471 r/w Section 120B IPC and Section 34 IPC. It is also stated that the Court has framed charge u/s 420/468/41 r/w Section 120B IPC against the applicant/accused vide its order dated 22.02.2012. It is also stated that the CBI had registered an FIR on 30.04.2007, on the basis of the complaint made by the Chief Manager, State Bank of Patiala, Asset Recovery Branch. The CBI has submitted the charge sheets on 18.04.2008 in the CBI Court at Simla . The applicant/ accused was tried by the CBI Court after the competent authority granted the requisite sanction. During the proceedings arising out of the FIR, this Hon'ble Court was intimated about the proceedings on the same charges pending in the CBI Court at Simla. The proceedings at the CBI Court at Simla could not be concluded before the framing of charges by this Hon'ble Court.
The complainant on the basis of whose complaint, the FIR has been lodged was also one of the witnesses in the CBI Court at Simla and deposed as witness. The CBI Court at Simla after taking in to consideration all the evidences including the complainant, has acquitted applicant/charges of all the State Vs. Praveen Kumar and Ors. Page No. 8 of 8 charges qua which the applicant/accused is being tried by this Court. A copy of judgment and order dated 03.08.2012 acquitting the applicant/accused of the same charges which he is being tried by this Court.
It is further stated that this Court in the terms of provisions of the Code of Criminal Procedure is left with no jurisdiction to continue with the trial on the ground that the applicant has been acquitted of the same charges arising out of the same transaction, same facts by the court having jurisdiction to try cases filed by the CBI. The continuance of the trial, will militate against the constitutional principle of protection against the double jeopardy i.e. article 20 (2) of the Constitution of India which principle has been incorporated in the statutory provision u/s 300 (1) of the Code of Criminal Procedure.
It is also argued that the applicant is a public servant within the meaning of Section 197 of the Code of Criminal Procedure, relying upon the ratio of law laid down in the case titled Union of India Vs. Ashok Kumar Mitra, AIR 1995 SC 1976. There is no dispute about the fact that the applicant at the time, was functioning as the Branch Manager of the bank which finally disbursed the loan after it was duly approved by the competent authority. The loan was sanctioned only after the legal search report of the ownership of the properties being offered as collateral securities had been obtained by the lawyer of the roster of the bank. Therefore, the applicant had disbursed the loan in discharge of his official functions. It is prayed to drop all the charges and put an end to the trial of the applicant/accused in view of the unqualified acquittal of all the charges by the Hon'ble CBI Court at Simla, Himachal Pradesh. Other accused persons State Vs. Praveen Kumar and Ors. Page No. 8 of 8 have filed applications seeking discharge on the ground of double jeopardy. They have argued that the CBI Court Simla has acquitted them of the charges arising out of same transaction and based on same facts. They have also submitted that in view of the judgment of CBI Court, Simla, the present case cannot continue. In support of the contentions, accused persons have relied upon the judgment of Hon'ble Supreme Court in CBI Vs. Ramesh Gelli and Ors., dated 23.02.2016, State of Karnataka through CBI Vs. C. Nagarajaswamy and Sangeetaben Mahinder Bhai Patel Vs. State of Gujarat.
Ld. APP for the State has argued that in the present case the complainant is different and that the judgment of CBI Court, Simla will not operate as a bar for the present trial. He has also argued that the present case is based upon the different ingredients and even if, the facts are similar and the transaction is same, application is liable to be dismissed. He has placed reliance upon the judgment of Hon'ble Supreme Court in Sangeetaben Mahindra Bhai Patel Vs. State of Gujarat and State of Jharkhand Vs. Lalu Prasad.
Arguments heard. Record perused.
It is alleged against the accused persons that they had entered in to a criminal conspiracy for procuring loan from State Bank of Patiala, Himachal Pradesh and used forged power of attorney regarding property of complainant, situated at Dilshad Garden, Delhi. I have also perused the judgment of the CBI Court at Shimla. The said judgment has been rendered on the basis of chargesheet filed by the CBI. The said chargesheet was filed upon the complaint made by the State Bank of Patiala regarding criminal conspiracy for State Vs. Praveen Kumar and Ors. Page No. 8 of 8 obtaining credit facilities from the bank. While the present case has been filed on the basis of complaint filed by complainant regarding cheating and forgery. Clearly, in both the cases, the complainants are different.
While the case before the CBI Court has been filed with respect to conspiracy/cheating of the bank i.e. State Bank of Patiala, the present case pertains to cheating and forgery committed with respect to complainant Laxmi Narayan Sharma. Hence, it is clear that ingredients of both the offences are the same, even though the offences are based on same facts. In this regard, it is relevant to refer to the judgment of Hon'ble Supreme Court in case titled Sangeetaben Mahindra Bhai Patel Vs. State of Gujarat, wherein it was held that "In view of the above, the law is well settled that in order to attract the provisions of Article 20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section 71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as well as in the latter case must be the same and not different. The test to ascertain whether the two offences are the same is not identity of the allegations but the identity of the ingredients of the offence. Motive for committing offence cannot be termed as ingredients of offences to determine the issue. The plea of autrefois acquit is not proved unless it is shown that the judgment of acquittal in the previous charge necessarily involves an acquittal of the latter charge".
Hence, though the allegations are identical, however, the ingredients of both the offences are different. The ingredients of the offences, which was tried by CBI court, was cheating of the bank as well as criminal conspiracy to State Vs. Praveen Kumar and Ors. Page No. 8 of 8 commit forgery and cheating qua the bank. While the present case deals with the offence of cheating qua the complainant and with the criminal conspiracy with respect to the same. It is clear that the judgment of acquittal of the CBI court does not involve acquittal of the charge of cheating the complainant. Victims being different, offence cannot be said to be same. Hence, the application does not pass the test laid down by the Hon'ble Supreme Court as stated above.
It is also relevant to note that the conspiracy in both the cases are different, though it may the part of the general conspiracy. IN this regard, the position has been clarified by Hon'ble Supreme Court in case titled state of Jharkhand through SP, CBI Vs. Lalu Prasad @ Lalu Prasad Yadav, in Criminal Appeal No.394 of 2017, wherein it was held that "39. The modus operandi being the same would not make it a single offence when the offences are separate. Commission of offence pursuant to a conspiracy has to be punished. If conspiracy is furthered into several distinct offences there have to be separate trials. There may be a situation where in furtherance of general conspiracy, offences take place in various parts of India and several persons are killed at different times. Each trial has to be separately held and the accused to be punished separately for the offence committed in furtherance of conspiracy. In case there is only one trial for such conspiracy for separate offences, it would enable the accused person to go scotfree and commit number of offences which is not the intendment of law."
Hence the accused persons are not entitled to benefit of section 300 State Vs. Praveen Kumar and Ors. Page No. 8 of 8 Cr.P.C.
Ld. Counsel for accused Sh. J.P. Gupta has argued that the present case cannot proceed qua accused J.P. Gupta as previous sanction for his prosecution has not been obtained. He has submitted authority to the effect that a bank employee is a public servant and hence sanction would be required for his prosecution.
The accused J.P. Gupta in this case has been charged with criminal conspiracy alongwith the offence of cheating and forgery. In the case titled State Of H.P vs M.P.Gupta decided on 9 December, 2003, Hon'ble Supreme Court has observed that "Above views are reiterated in State of Kerala v. Padmanabhan Nair (1999 (5) SCC 690). Both Amrik Singh (supra) and Shreekantiah (supra) were noted in that case. Sections 467, 468 and 471 IPC relate to forgery of valuable security, Will etc; forgery for purpose of cheating and using as genuine a forged document respectively. It is no part of the duty of a public servant while discharging his official duties to commit forgery of the type covered by the aforesaid offences. Want of sanction under Section 197 of the Code is, therefore, no bar".
Further, in case titled Rajib Ranjan & Ors. Vs. R. Vijay Kumar [Criminal Appeal No(S). 729732 of 2010, it was held by Hon'ble Supreme Court that "The ratio of the aforesaid cases, which is clearly discernible, is that even while discharging his official duties, if a public servant enters into a State Vs. Praveen Kumar and Ors. Page No. 8 of 8 criminal conspiracy or indulges in criminal misconduct, such misdemeanor on his part is not to be treated as an act in discharge of his official duties and, therefore, provisions of Section 197 of the Code will not be attracted".
In light of the aforesaid legal position, no sanction u/s 197 Cr.P.C is required since the charges of criminal conspiracy, forgery and cheating have been invoked against accused J.P. Gupta.
Lastly, counsel for accused J.P. Gupta has stated that doctrine of issue estoppel would be applicable in favour of the accused and thus this court is bound by the finding arrived at by the CBI court. However, in this regard it has to be mentioned that principle of estoppel does not bar a trial or conviction but merely precludes this court from accepting an evidence which will disturb the finding of fact by the CBI court. Hence, the present trial is not barred by issue estoppel.
Now to come up for PE on 21.08.2018.
(Prayank Nayak) MM02/KKD/SHD/Delhi 17.07.2018 State Vs. Praveen Kumar and Ors. Page No. 8 of 8