Gujarat High Court
Ajaybhai Mahendrakumar Gandhi vs State Of Gujarat on 22 February, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/12801/2011 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 12801 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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AJAYBHAI MAHENDRAKUMAR GANDHI
Versus
STATE OF GUJARAT
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Appearance:
MR SAMIR J DAVE for the PETITIONER(s) No. 1
MR APURVA A DAVE for the RESPONDENT(s) No. 2
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR for the
RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 22/02/2018
ORAL JUDGMENT
1. By this application, under section 482 of the Cr.P.C. 1973, the applicant - original accused seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of the Criminal Case No. 4412 of 2011 pending in the Court of the learned Addl. Chief Metropolitan Magistrate, Page 1 of 33 R/CR.MA/12801/2011 JUDGMENT Court No.5, Ghee Kanta, Ahmedabad City arising from a first information report dated 28/10/2010 lodged by the respondent no.2 herein at the Karanj Police Station, Ahmedabad City registered as CR No.I-178/2010 for the offence punishable under sections 406 and 420 of the I.P.C.
2 The first information report lodged by the respondent no. 2 reads as under:
"I, Gulam Mohhammed Fateh Mohhammed Kagzi, Aged:
57 years, Occupation: Service, Resident of P/2, 5th floor, Rose Flat, near Sardarkunj Society, Bahai Centre, Shahpur, Ahmedabad, Mobile No.9879375148, on being personally asked, give my complaint that I am residing at the above mentioned address with my family and serving in the State Bank of India since 30 years, and at present, I'm serving in the Pattharkuwa Branch of SBI as an accountant since last 4 years.
One Ranaji Prabhuji Chauhan, resident of Dudhwali Pole,Gheekanta Ahmedabad is holding an account in our Paththarkuwa Branch and he frequently used to come to our branch for some cash transactions and, therefore, the Branch Manager Shri Ajaybhai and the other staff members of our branch knew him. In the month of February, 2009, said Ranaji came to our branch with one Navnitbhai Prabhudas Patel and took a fixed deposit of Rs.10 Lakh in the name of Navnitbhai and his wife Indiraben and later on I came to know that he took another fixed deposit of Rs.8 Lakh.
Thereafter, in the month of March, 2009, said Ranaji visited the Bank for the purpose of obtaining loan on the fixed deposit receipt took by Navnitbhai and at that time, he met with one Ajaybhai Gandhi who was serving as a Branch Manager. At that time, the loan paper were prepared by the Branch Manager, Shri Ajaybhai and one bank officer of the said branch Shri D.N. Bokade and granted an overdraft facility to Ranaji, by which, the amount of Rs.7 Lakh was withdrawn in parts from the Page 2 of 33 R/CR.MA/12801/2011 JUDGMENT fixed deposit of Rs.10 Lakh running in the name of Shri Navnitbhai. In the last April or May, 2010, Navnitbhai Patel came to our branch and as per his say, as he has never instructed Ranaji to take a loan of Rs.7 Lakh nor he has put his signature on any papers, then how Ranaji took loan of Rs.7 Lakh from his fixed deposit. Since it is not possible to take loan without the papers which Navnitbhai might have given to Ranaji, we inquired into the same and started searching for the papers but the papers were not traceable. The said papers were usually kept in the custody of the Branch Manager. Till today, it is not coming out whether there is any officer of our branch, who helped Ranaji directly or indirectly in getting the said loan. However, somehow, Ranaji managed to get a loan of Rs.7 Lakh from the fixed deposit receipt of Navnitbhai and, as such, has committed the offence of cheating and criminal breach of trust. Hence, by way of this complaint, I request to inquire into the same and if any officer of our branch is involved in the said crime, the same will also be looked into. My witnesses are the bank officers."
3. Thus, from the plain reading of the first information report, it appears that, at the relevant point of time, the applicant herein was serving as the Branch Manager of the Bank. One Ranaji Prabhuji Chauhan (co-accused) used to frequently visit the Bank in connection with the bank transactions. Ranaji also had a bank account in the said branch. The applicant herein, as the branch Manager, knew Ranaji very well. The other Bank employees also knew Ranaji very well as he used to frequently visit the branch. Ranaji one day came with one Navanitbhai Patel and his wife Indiraben at the branch of the Bank. Navnitbhai Patel and his wife jointly took a fixed deposit of Rs.10 Lakh and later one another fixed deposit of Rs.8 Lakh. It appears that in 2009, Ranaji, somehow, managed fraudulently in collusion with the applicant and others to get an overdraft facility in his favour on the strength of the fixed deposit receipt of Navnitbhai and his wife. Over a period of time Ranaji availed of benefit of Rs 7 Lakh by Page 3 of 33 R/CR.MA/12801/2011 JUDGMENT way of overdraft. Navanitbhai and his wife came to know about the same and therefore they came to the Bank and inquired as to on what basis the Bank had sanctioned the overdraft facility in favour of Ranaji on the basis of the fixed deposit of Rs. 10 Lakh running in the joint name of Navnitbhai and his wife Indiraben. With this, the fraud surfaced. The first information report came to be registered and investigation was carried out by the Police .
4. In the course of the Investigation, the police recorded the statement of Navnitbhai dated 02.01.2011 as well as his wife Indiraben Patel. The Statement of Navnitbhai is extracted hereunder;
"I, Navnitbhai Prabhudas Patel, Aged: 58, Occupation:
Service, resident of 3/8 Vivek Apartment, Nr. Sanghvi High School, Pragati Nagar Road, Naranpura, Ahmedabad, Mobile No. 65243789.
On being personally asked, state that I am residing at the above mentioned address with my family and serving as a peon in the P.W.D. Department, C- Block, Apna Bazar, Lal Darwaja.
On being asked as regards the complaint filed by Gulammohammed Fatehmohammed Kagzi, Aged: 57, Occupation: Service, resident of P/2, 5th Floor, Rose Flat, Near Sardarkunj Society, Bahai Center, Shahpur, Ahmedabad as C.R. No.I-178 of 2010 with the Karanj Police Station for the offence punishable under sections 406 and 420 of the IPC, I hereby state that;
Except the above mentioned house, situated at the above mentioned address, we have one another house situated at Dudhvali Polie, Ghee Kanta as House No.452. We also have one another house in the same Pole as house No.423/6. That since last ten years, the said house was given on rent to one Ranaji Prabhuji Chauhan, resident of Village Bhorda, Taluka: Zalore, Rajasthan.
Page 4 of 33R/CR.MA/12801/2011 JUDGMENT Before that, he was residing in another house of the same Pole. So, I knew him and because of that the house was given on rent to him.
There were other properties situated in the same Pole, which were of the joint ownership of me and my brothers. We sold the said properties, from which, I got an amount of Rs.18 Lakh in my share. As I wish to keep the said amount in the fixed deposit, I told about the same to one Ranaji. Ranji, in turn, told me that he knew the manager of the Paththarkuwa Branch and took me to the said Branch, where he introduced me with one Ajay Gandhi, the Branch Manager. Therefore, on 17.02.2009 an amount of Rs.10 Lakh, was deposited in the fixed deposit of my and my wife and, thereafter, on 21.02.2009 and 24.02.2009 respectively, an amount Rs.4 Lakh each came to be deposited in the fixed deposit of my sons for a period of 1000 days.
Thereafter, I went to the Paththarkuwa Branch for obtaining a loan of Rs.3 Lakh on my fixed deposit of Rs.18 lakh. For this purpose, I met with one bank officer Shri Saksena and told him about the same. However, he told me to first produce the original receipt, then the loan will be sanctioned. So, again, I went to the Bank with the original receipt. At that time, Mr. Saksena, informed me that there already exist a loan of Rs.7 Lakh from your account. I was shocked that though I have not taken any loan, then who took the loan on my name. In this regard, I met with the Branch Manager Shri Parmar. He informed me that you, yourself, has given loan to Ranaji by transferring the money from your account to his. Hence, I took my tenant Ranaji before the Branch Manager and at that time, in the presence of Shri Parmar, Ranaji said that Shri Ajay Gandhi has sanctioned the overdraft facility of Rs.7 Lakh to him. Immediately, earlier branch manager, Shri Gandhi was informed about the same. He rushed to the Paththarkuwa Branch at about 10:00 O' clock in the night. On being asked to him, he stated that he had sanctioned the loan on my signature. He also stated that the loan papers were with me but on searching the record, the papers were not found. At the request Branch Manager of Mr. Parmar, one week time was given to find out the papers. Since I did not want to keep my deposit in the said Bank, I gave an application for withdrawing the same but the Manager, Shri Parmar told me that you Page 5 of 33 R/CR.MA/12801/2011 JUDGMENT have already withdrawn an amount of Rs.7 Lakh and on being repaying the said amount, the money will be given to you. Hence, I had not withdrawn or transferred any amount. In this regard, I also made an application to the Zonal Office, State Bank of India, Ambavadi. They told me that as you have the original receipt, you will get your money back. One Mr. Jani had recorded my statement in this regard but did not carry out any procedure to give my money back.
Thereafter, on 03.08.2010, at about 12:30 p.m., the manager Ajay Gandhi and one Karkun Mr. Kadri came to my house. At that time, I was present at the house along with my wife and son Keyur. Said Ajay Gandhi told me that he would deposit an amount of Rs.3 Lakh in my bank account and the balance amount of Rs. 3 Lakh he would recover from Ranaji and hand it over to me. However, I told him that I want the entire amount of Rs.10 Lakh with interest. Hence, they left the house. Thereafter, said Ajaybhai called me two to three time on my resident number as well as on my office number and made a request to withdraw the application and also told that if you will not do the same, I will lose my job. But, I refused to withdraw my application. Later on, I came to know that one Gulammohammed Fatehmohammed Kagzi, serving as an accountant in the Paththarkuwa Branch has lodged the complaint with the Karanj Police Station.
5. The police also recorded the statement of Keyur Patel, i.e., the son of Navnitbhai. The statement of Keyur is extracted hereunder;
"I, Keyurbhai son of Navnitbhai Patel, Aged:24 years, Occupation: Job, Resident of 3/8 Vivek Apartment, Hashmukh Colony, besides Vikas Mandli House, Pragati Nagar Road, Near Sanghavi High School, Naranpura, Ahemdabad, Mobile No.9601428507, on being personally asked, state that I am residing with my father and mother at the above mentioned address and doing job in the C.A. Office, Law Garden.
Today on being personally asked by you regarding one FIR no.178/2010 registered under sections 406 and 420 Page 6 of 33 R/CR.MA/12801/2011 JUDGMENT of the IPC by the complainant namely Mr. Gulam Mohammed Fatehmohammed Kagzi, who is working as an accountant at the Pattharkuwa Branch of the State Bank of India, I hereby state that ;
In the Pattharkuwa Branch of the State Bank of India, my father namely Navnitbhai Prabhudas Patel and my mother namely Indiraben Navnitbhai Patel hold a joint account in their name and me and my brother namely Maulikbhai also hold an account in the said bank and in my and my brother's account, there was a fixed deposit of Rs.4 lakh each and Rs. 10 Lakh was kept in the account of my mother and father. As my father was in need of money, he went to the Pattharkuwa Branch of the State Bank of India for obtaining the loan from the joint account maintained by them and on being inquired about the loan, he was informed by the bank that from your account a loan of Rs.7 lakh has already been taken, hence the loan cannot be granted and on being heard the same, my father called me on our residential number and told me to come to the bank with the bank receipt of our Tankara Account. So, I went there on 15/03/2011 at abouty 7:00 PM with my mother and handover the receipt to my father. The Bank officials told that you have already taken the loan from your account and also told us that as the loan papers were not traceable, come after a week. Thereafter, I along with my father went to the bank for two to three times, but neither the loan was granted nor any papers upon which the loan was taken were shown to us.
Thereafter, on 03.08.2010 one Mr. Kagzi working in the said bank along with the previous manager of the Branch, Mr. Ajaybhai Gandhi, came to our house at about 12:30 P.M. At that time, me, my mother and my father were present at the house. Mr. Gandhi trying to persuade my father to withdraw the application and also told that I will pay Rs.3.50 lakh and the remaining Rs.3.50 lakh we will recover from Mr. Ranaji. However, my father told him that he will not withdraw the application until the entire amount of Rs.10 Lakh will not pay to him. Hence they left our house but said that if you will not withdraw your application, I will lose my job. As such, both Ajaybhai Gandhi and Ranaji, in collusion with each other, have withdrawn an amount of Rs. 7 lakh from my father's Page 7 of 33 R/CR.MA/12801/2011 JUDGMENT account."
6. The statement of Laxmanbhai who took over as the Branch Manager from 16th December, 2009 is also relevant, and is extracted hereunder;
"I, Laxmnbhai Gandabhai Parmar, Aged:45 years, Occupation:Job, Residing at B/36, Asal Residency, Behind Parimal Society, Near Kirtidham Tirth Mandir, Chandkheda, Ahemdabad City, Mobile No.7600038067, on being personally asked states that, I am residing at the above mentioned address along with my family and from 16/12/2009 working as the Branch Manager of the Pattharkuwa Branch of the State Bank of India. Before me, one Mr. N.R. Makwana was the branch manager and before him MR. Ajay Gandhi was the branch manaeger. So, during the years of 2008 and 2009, they were the branch managers.
Today, upon investigating me, I state that one FIR has been registered at Karanj Police Station vide FIR No. 178/2010 under sections 406, 409 of IPC by the complainant namely Mr. Gulam Mohammed Fateh mohammed kagzi, resident of P/2, 5th Floor, Rose Flat, Behind Sardarkunj Society, Bahai Sanater, Shahpur, Ahemdabad that, in the month of March 2009 and thereafter, in the Pattharkuwa branch situated at the Relief Road of State Bank of India, the witness namely Mr. Navneetbhai Prabhudas Patel, residing at 3/8, Vivek Apartment, Behind Sanghavi High School, Pragatinagar Road, Naranpura, Ahemdabad holds an account. In that account, I by helping the bank officials directly or indirectly made an overdraft of Rs. 7 lakh out of the fixed deposit of Rs. 10 lakh and as such the accused in this matter namely Ranaji Prabhuji residing at Tankara, Dudhvali Pole, Ahmedabad has withdrawn in parts an amount of Rs.7 lakh as a loan from the Bank and in this regard a complaint has been lodged at the Karanj Police Station and on being asked regarding this, I state that on 18.05.2010 I was present at the Paththarkuwa Branch as the Branch Manager and at that time, Navnitbhai Prabhudas Patel came before me with an application addressed to the Branch Manager for the purpose of withdrawing the amount of fixed deposit. In the said Page 8 of 33 R/CR.MA/12801/2011 JUDGMENT application, it was mentioned that on 17.02.2009, one joint fixed deposit of Rs.10 Lakh was taken for the period of 1000 days. The maturity date of this fixed deposit is 14.11.201... , but we want to withdraw this deposit and some other particular were also mentioned there and I had seen that application and on being checked in the computer, it was found that there already exist a loan of Rs.7 Lakh on his fixed deposit of Rs.10 Lakh. So, I informed Navnitbhai that one Ranaji Prabhuji Chauhan has taken a loan of Rs.7 Lakh on your fixed deposit. He told that the said Ranaji is my tenant, but I have not given any fixed deposit receipt to him for the purpose of obtaining the loan. So, I called upon Ranaji Prabhuji Chauhan and on being inquired about the loan of Rs.7 lakh, he said that, at the relevant point of time, Navnitbhai himself had given me the fixed deposit receipt for obtaining the loan of Rs.7 Lakh. He also made an affidavit dated 19.05.2010 in this regard. He was asked to repay the amount but no money was repaid.. In fact, when we came to know that Ranaji was not found at his residence and also at his shop situated near the Prakash Talkies and is flew away, we conducted an inquiry through our Bank Officer Shri M... and during the inquiry, it was informed to take legal action against Mr. Ranaji Prabhuji Chauhan. At the time when Navnitbhai came to Bank for withdrawing money, it was found that the papers produced by Ranaji Prabhuji for obtaining loan were not traceable It came to our notice that obtaining the loan., the papers were lost from 12.05.2009. These papers remained under the custody and control of the Branch Manager and from there the papers were lost. At that time, Mr. Ajay Gandhi was serving as the Branch Manager and, therefore, it was his responsibility to look after the same. Therefore, Mr. Gulammohammed Fatehmohammed Kagzi, Bank Accountant of our Bank, lodged a complaint against Ranaji Prabhuji Chauhan before the Karanj Police Station with the allegation that the he fraudulently and in collusion with the other employees of the Bank, got an amount of Rs.7 Lakh as a loan from the Fixed Deposit Receipt of Rs.10 Lakh running in the name of Navnitbhai."
7. Mr. B.B Naik, the learned senior counsel assisted by Mr. Samir Dave, the learned counsel appearing for the applicant, vehemently submitted that no case worth the name is made Page 9 of 33 R/CR.MA/12801/2011 JUDGMENT out from the papers of the charge-sheet to put the applicant- accused on trial. Mr. Naik submitted that at the relevant point of time when the alleged offence was committed, the applicant was the Branch Manager. The overdraft facility was sanctioned by the original accused No.1 Mr. Bokade, who was serving as one of the officers in the Branch. Mr. Naik submitted that the loan application was received, processed and recommended for sanction by Mr. Bokade. It is further pointed out that the overdraft facility was sanctioned on 25th March, 2009 by the first informant. According to the rules and regulations of the Bank, a security was created on the FDR by Mr. Bokade. This was approved and affirmed by the present applicant. The loan documents were in the custody and control of the Manager, Branch Operation, namely, Mr. Kagzi, i.e,. the first informant. It is further pointed out that although there are allegations that the loan papers were destroyed and were not available till the last, yet, the applicant had nothing to do with the same. It is submitted that the loan papers remained in the custody of the Manager, Branch Operation, i.e., the first informant. Mr. Naik further submitted that a departmental inquiry was initiated against the applicant on the very same charges. To put it in other words, according to Mr. Naik, on the very same charge, as reflected from the papers of the charge-sheet, the departmental inquiry was initiated and, ultimately, the applicant was ordered to be exonerated. In the departmental inquiry, all that was attributed to the applicant was negligence in discharge of his duties. Mr. Naik submitted that if the applicant came to be exonerated from the departmental inquiry, wherein the burden of proof is on the basis of preponderance of probability, then how is the prosecution going to prove the case against the applicant beyond the Page 10 of 33 R/CR.MA/12801/2011 JUDGMENT reasonable doubt. In such circumstances, referred to above, the learned senior counsel prays that there being merit in this application, the same be allowed and the proceedings of the Criminal Case, referred to above, be quashed.
8. On the other hand this application has been vehemently opposed by Mr. Dave the learned counsel appearing for the respondent no. 2 -original first informant as well as by Ms. Thakkar the learned APP appearing for the State.
9. Both the learned counsel submitted that more than a prima facie case is made out to put the applicant on trial. It is submitted that there are materials on record sufficient enough to frame the charge. It is further submitted that the conduct of the applicant accused itself is sufficient to point a finger towards his guilty mind, i.e., the mens rea. Both the learned counsel submitted that if the applicant was no way concerned with what has been alleged or what transpired in the Bank, then there was no need for him to frequently visit the house of Navnitbhai and beg before him to withdraw his complaint. The statement of Navnitbhai Patel and his son Keyurbhai is indicative of the fact that the applicant visited the house of Navnitbhai and tried to persuade him to withdraw his application with a further assurance that the applicant would deposit an amount of Rs.3.50 Lakh in the account of Navnitbhai, and the balance amount of Rs.3.50 Lakh he would be recovered from Ranaji and paid to Navnitbhai.
10. The learned APP appearing for the State pointed out something very important. From the papers of the investigation, the learned APP took out an affidavit said to have been affirmed by Ranaji, wherein he has stated that he Page 11 of 33 R/CR.MA/12801/2011 JUDGMENT had paid Rs. 2 Lakh to the applicant herein for the purpose of obtaining the overdraft facility on the basis of the FDR. This affidavit of Ranaji was sent to the Investigating Officer. It is submitted that although the charge-sheet has not been filed for the offence under section 120-B of the IPC, i.e. for the criminal conspiracy, yet the materials on record would indicate that there was a well hatched conspiracy by the accused persons. The confession of the Original Accused No.2-Ranaji, involving the applicant herein, would be admissible under section 10 of the Evidence Act. It is submitted that as the charge-sheet has been filed, all that has been stated in the charge-sheet, should be presumed to be true.
11. In such circumstances referred to above, the learned counsel appearing for the first informant as well as the learned APP for the State submitted that there being no merit in this application, the same be rejected.
12. The case on hand is a warrant triable case. Chapter-XIX of the Code of Criminal Procedure, 1973 provides for trial of warrant cases by Magistrates. Sections 239 and 240 of the Cr.P.C are relevant so far as the matter on hand is concerned. Section 239 is extracted hereunder;
"239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing Page 12 of 33 R/CR.MA/12801/2011 JUDGMENT
13. Section 240 is extracted hereunder;
"240. Framing of charge.
(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried."
14. At the stage of framing charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. If there is a ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame the charge against him for committing that offence. In the aforesaid context, I must take note of the observations of the Supreme Court in State of Maharashtra vs. Som Nath Thapa, AIR 1996 SC 1744 as contained in para 31. Para 31 is extracted hereunder;
"31. Let us note the meaning of the word "presume". In Black's Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law "presume" means "to take as proved until evidence to the contrary is forthcoming" , Stroud's Legal Dictionary has quoted in this context a certain judgement according to which "A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged." (Emphasis supplied). In Law Lexicon by P. Page 13 of 33 R/CR.MA/12801/2011 JUDGMENT Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.
15. If the allegations are absurd or do not make out any case, or if it can be held that there is abuse of process of law, the proceedings can be quashed, but if there is a triable case, the court does not go into the reliability or otherwise of the version or the counter-version. In Amit Kapoor vs. Ramesh Chander, 2012 (8) SCC 460, it was observed ;
"27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
27.5. Where there is an express legal bar enacted in any Page 14 of 33 R/CR.MA/12801/2011 JUDGMENT of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong"
with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even Page 15 of 33 R/CR.MA/12801/2011 JUDGMENT broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. (Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 :
AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; [pic]Ganesh Narayan Hegde v.
S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 :
1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 :
2001 SCC (Cri) 275]; M. Krishnan v. Vijay Singh [(2001) 8 Page 16 of 33 R/CR.MA/12801/2011 JUDGMENT SCC 645 : 2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]). 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
16. Applying the aforesaid principles of law to the materials on record, can it be said that the charge against the applicant-
accused is groundless. To put it in other words, whether the material considered, in the light of the arguments, can lead to the view that the charge against the accused is groundless.
17. Section 239, Cr.P.C. lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in my opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in S.239, Cr.P.C. means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.
18. The learned author Shri Sarkar in his Criminal P.C., 5th Edition, on page 427, has opined as : -
"The provision is the same as in S.227, the only difference being that the Magistrate may examine Page 17 of 33 R/CR.MA/12801/2011 JUDGMENT the accused, if necessary, of also S.245. The Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and documents mentioned in S.173; (ii) examining the accused, if necessary and (iii) hearing the arguments of both sides he thinks the charge against him to be groundless, i.e., either there is no legal evidence or that the facts do not make out any offence at all."
19. In short, it means that if no prima facie case regarding the commission of any offence is made out, it would amount to a charge being groundless.
20. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra, AIR 1972 SC 545 : (1972 Cri LJ 329), the Supreme Court has stated about the ambit of S.251(A)(2) of the Cr.P.C. 1898, which is in pari materia with the wordings used in S.239, Cr.P.C. as follows : -
"It cannot be said that the Court at the stage of framing the charge has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused. The order framing the charges does substantially affect the person's liberty and it cannot be said that the Court must automatically frame the charge merely because the prosecuting authorities by relying on the documents referred to in S.173 consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."
In para 15, the Supreme Court has stated as :-
"Under sub-sec. (2), if upon consideration of all the documents referred to in S.173, Criminal P.C. and examining the accused, if considered necessary by the Magistrate and also after hearing both sides, the Page 18 of 33 R/CR.MA/12801/2011 JUDGMENT Magistrate considers the charge to be groundless, he must discharge the accused. This sub-section has to be read along with sub-sec.(3), according to which, if after hearing the arguments and hearing the accused, the Magistrate thinks that there is ground for presuming that the accused has committed an offence triable under Chap. XXI of the Code within the Magistrate's competence and for which he can punish adequately, he has to frame in writing a charge against the accused. Reading the two sub-sections together, it clearly means that if there is no ground for presuming that the accused has committed an offence, the charges must be considered to be groundless, which is the same thing as saying that there is no ground for framing the charges ."
Thus the word 'groundless' as interpreted by the Supreme Court means that there is no ground for presuming that the accused has committed an offence.
The Supreme Court had again dealt with this aspect of the matter in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, AIR 1980 SC 52. The Supreme Court has stated in the said case as :-
"At this stage, even a very strong suspicion found upon materials before the Magistrate , which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence." -
The suspicion referred to by the Supreme Court must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged. Therefore, the words "a very strong suspicion" used by the Supreme Court must not be a strong suspicion of a vascillating mind of a Judge. That suspicion must be founded upon the materials placed before the Magistrate which leads him to form a presumptive opinion about the existence of the factual ingredients constituting the Page 19 of 33 R/CR.MA/12801/2011 JUDGMENT offence alleged.
Section 239 has to be read along with Section 240 Cr.P.C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the charge (allegations) he may frame charge in accordance with Section 240 Cr.P.C. But if he finds that the charge (the allegations or imputations) made against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of law, like Section 468 Cr.P.C., the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused. Indeed in a case where the Magistrate takes cognizance of an offence without taking note of Section 468 Cr.P.C., the most appropriate stage at which the accused can plead for his discharge is the stage of framing the charge. He need not wait till completion of trial. The Magistrate will be committing no illegality in considering that question and discharging the accused at the stage of framing charge if the facts so justify.
The real test for determining whether the charge should be considered groundless under Section 239 of the Cri.P.C. is that whether the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under Section 239 Cri.P.C. The trial Court will have to consider, whether the materials relied upon by the prosecution against the applicant herein for the purpose of framing of the charge, if unrebutted, make out any case at all.
21. The circumstances emerging from the record of the case, prima facie, indicate the involvement of the accused in the alleged offence. Having regard to the materials on record, it cannot be sid that the charge against the applicant accused is groundless. There are triable issues in the matter. If there are triable issues, the court is not expected to go into the veracity Page 20 of 33 R/CR.MA/12801/2011 JUDGMENT of the rival versions. Having regard to the materials on record, it cannot be said that the criminal proceedings are abuse of court's process.
22. Let me now look into the order passed by the Appellate Authority so far as the departmental proceeding is concerned.
23. In the departmental inquiry, the following were the imputations;
"(I) It is alleged that you have authorized under your used ID 1720198 in the system on 25.3.2009 a third party overdraft limit of Rs.7.00 lacs to Shri Ranaji Prabhuji Chauhan against STDR No.30683000099 dated 17.2.2009 for Rs. 10 Lacs standing in the joint names of Smt. Indiraben N. Patel and Shri Navnit P. Patel without entering the loan amount in the sanction register and without consent of the depositors. This fact was corroborated by Smt. Indiraben Patel, one of the depositors. Subsequently, the overdraft account turned NPA and the bank is exposed to a loss of Rs.7.00 lacs plus interest.
(II) It is alleged that while authorizing the loan against the said STDR, you failed to obtain the original STDR as security duly discharged by the joint deposit holder s and also failed to take undertaking from the joint deposit holders of STDR that they had no objection in sanctioning overdraft to a third party. As per extant instruction, the depositors offering the deposit receipts as security should give an undated discharge by signing on a revenue stamp pasted on the reverse of the deposit receipt.
(iii) It is observed that the documents pertaining to the said overdraft are not available on branch record. It is alleged that you failed to ensure obtention of proper loan documents before authorizing the overdraft against the said STDR in the system. It is also alleged that if at all the documents were obtained by the branch, you failed to take necessary action to handle with care the loan Page 21 of 33 R/CR.MA/12801/2011 JUDGMENT documents to ensure the safekeeping of documents under proper custody. Thus you were found negligent in arranging safe keeping of loan documents as mentioned above and are considered responsible for eventual loss of loan documents at the branch.
(iv) It is alleged that the above acts of omission and commission on your part has exposed the Bank to a financial loss of Rs.7.38 Lacs."
24. The findings recorded by the appellate authority are as under;
"(i) The charge is with regard to authorizing the lien without observing the procedure of entering the documents in the loan sanctioned register and without confirming as to whether the depositor had given his consent for loan against his deposit. An arrangement letter duly acknowledged by the depositor (s) and/or the borrower (in case o third arty loans) is required to be obtained. Further, as per extant instructions, the loan documents are to be kept under single custody of authorized official as in the case of other loan documents in personal banking department as no security forms are involved in case of TDR/STDR advice. The appellant has stated that the loan documents were filed and account fed in the system by Shri Bokade (1743554) and the said loan was sanctioned by another officer Shri G.M. Kagzi (17434554) presently working at Idar Branch) (Shri Bokade was compulsorily retired from service in another case on 28.2.10). Though, as per delegation of powers, loan against third party terms deposits are required to be sanctioned by the branch manager only i.e. Shri Gandhi in this case. It is a fact that the advance in question was sanctioned by Manager (Operations) and not by Branch Manager as per procedure. Hence it stands to reason that Shri Gandhi did not exercise caution at the relevant time and did not ensure that proper loan documents were available. The other points regarding action taken by depositor under sec. 138 of NI Act do not have direct bearing on the inaction of the appellant. The charge was held as proved.
(ii) The circular instructions relating to documents for loan against balance in deposit accounts. (TDR/STDR Page 22 of 33 R/CR.MA/12801/2011 JUDGMENT etc) vide NBG/S&P/Advances/2005-06 dated 30.5.2005 do not envisage obtention of any affidavit. Further, as per circular above, there is no necessity to maintain security register and security ledger as the STRD/TDR is no more a security form but a mere advice and is not required to be obtained from the depositor and also there is no requirement to obtain the depositor's signature on the reverse of the STDR advice in token of having discharged the same in bank's favour. To this extent, the imputation does not seem to be properly established.
However, I feel that Shri Gandhi should have still exercised caution, called for the documents and verified the genuineness of third party loan before authorizing the lien against the deposit in the system, particularly, so inasmuch as he, as the Branch Manager, was required to sanction such loans, against TDRS/securities in third party names. The requirement of Manager (Operations) to keep custody of documents does not absolve Shri Gandhi of his lapse.
(iii) The official could not produce any proof that the documents for the loan were available at the time of authorizing the lien against the deposit or anything thereafter. His contention regarding subsequent incumbents is not tenable as the documents are not traceable till date. The Bank has also filed a case against the borrower and the borrower is reported to be in jail. The possibility of recovery of bank's dues will be decided on the basis of outcome of the case. As of now there is a possible loss to the bank. The appellant has stated that he was at the branch till 96.2009 and the account became NPA in Feb. 2010. The account had switched between IRAC code 02 and 04 on several occassions during the period since Feb. 2010 based on the credits/transactions in the account (servicing periodical interest) and therefore the argument of the appellant is not valid. The bank's chances of recovery are put in peril in the absence of availability of loan documents. Notwithstanding the extenuating factors as mentioned above by the appellant, as the branch manager should have exercised more caution while dealing with the loans against the security standing in the name of third parties as such loans were to be sanctioned by the branch manager only.
(iv) It is a fact that there is a possible loss to the bank Page 23 of 33 R/CR.MA/12801/2011 JUDGMENT as on date.
The points mentioned by the appellant also suggest that there was a money transaction between the third party borrower and the depositors as evidenced by the cheque issued in favour of the depositor by Shri Chauhan probably for the repayment of the loan availed. However, the said cheque was returned unpaid and the depositor is reported to have filed a case under sec. 138 of NI Act. The responsibility of Shri Gandhi as the branch manager need not be stressed, as a vigilant action on his part at the relevant time could have averted the difficult position in which the bank is placed."
25. I am of the considered opinion that merely because the applicant-accused came to be discharged or rather exonerated from the departmental proceedings, by itself, is not sufficient to discharge him from the criminal prosecution, more particularly, having regard to the materials on record.
26. The submission of Mr. Naik with regard to exoneration of the applicant-accused in the departmental inquiry is without any merit. Exoneration in the departmental proceeding, ipso facto, would not lead to exoneration in a criminal case. I can do no better to answer this issue raised by the learned senior counsel appearing on behalf of the applicant, then to refer to and rely upon a decision of the Supreme Court in the case of State (NCT) of Delhi vs. Ajaykumar Tyagi 2012 (9) SCC
685. In the said case, Ajaykumar Tyagi was working as a Junior Engineer with the Delhi Jal Board. One Surindersingh, a constable with the Delhi Police applied to the Delhi Jal Board for water connection in the name of his wife. The application for grant of water connection was cleared by the Assistant Engineer and the file was sent to said Ajaykumar Tyagi.
Constable Surindersingh lodged a report with the Anti
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Corruption Branch alleging that the accused demanded bribe of Rs.2,000/- for clearing the file and a sum of Rs.1000/- was to be paid initially and the balance amount after the clearance of the file. On the basis of the information lodged, a trap was laid and the accused accepted the bribe of Rs.1,000/-. In respect of the same incident, a departmental proceeding was also initiated against the accused and the article of charges was served on him. The inquiry officer submitted its report and found the allegation to have not been proved. However, before the Disciplinary Authority could take any final decision as regards the report of the Inquiry Officer, the High Court, on an application filed by the accused under section 482 of the Cr.P.C, terminated the criminal proceedings on the ground that the accused had been exonerated in the departmental proceeding. The order of the High Court came to be challenged before the Supreme Court. In para-15 of the judgement, the Court framed the question involved in the matter. Para-15 is extracted hereunder;
"Now we proceed to consider the question of law referred to us, i.e., whether the prosecution against an accused, notwithstanding his exoneration on the identical charge in the departmental proceeding could continue or not?.
27. In para-16, the Supreme Court noted the contention of the learned counsel appearing for the accused as well as the learned counsel appearing for the State. Para 16 is extracted hereunder;
"Mr. Sharma, with vehemence, points out that this question has been settled and set at rest by this Court in the case of P.S. Rajya (Supra), which has held the field since 1996, hence at such a distance of time, it is Page 25 of 33 R/CR.MA/12801/2011 JUDGMENT inexpedient to reconsider its ratio and upset the same. Mr. Attry, however, submits that this Court in the aforesaid case has nowhere held that exoneration in the departmental proceeding would ipso facto terminate the criminal proceeding."
28. The Supreme Court, thereafter, proceeded to hold that the exoneration in the departmental proceeding, ipso facto, would not lead to exoneration of an accused in a criminal case. The relevant observations are extracted hereunder;
"17. We have given our anxious consideration to the submissions advanced and in order to decipher the true ratio of the case, we have read the judgment relied on very closely. In this case, the allegations against the delinquent employee in the departmental proceeding and criminal case were one and the same, that is, possessing assets disproportionate to the known sources of income. The Central Bureau of Investigation, the prosecutor to assess the value of the assets relied on the valuation report given later on. This Court on fact found that "the value given as basis for the charge- sheet is not value given in the report subsequently given by the valuer."
This would be evident from the following passage from paragraph 15 from the judgment:
"15.......According to the learned counsel the Central Vigilance Commission has dealt with this aspect in its report elaborately and ultimately came to a conclusion that the subsequent valuation reports on which CBI placed reliance are of doubtful nature. The same view was taken by the Union Public Service Commission. Even otherwise the value given as basis for the charge-sheet is not the value given in the report subsequently given by the valuers."
16. Thereafter, this Court referred to its earlier decision in the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, and reproduced the illustrations laid down for exercise of extraordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 of the Code of Criminal Procedure for quashing the criminal Page 26 of 33 R/CR.MA/12801/2011 JUDGMENT prosecution. The categories of cases by way of illustrations, wherein power could be exercised either to prevent the abuse of the process of the court or otherwise to secure the ends of justice read as follows:
"(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 Act concerned (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 Act concerned, 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 Page 27 of 33 R/CR.MA/12801/2011 JUDGMENT 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."
The aforesaid illustrations do not contemplate that on exoneration in the departmental proceeding, the criminal prosecution on the same charge or evidence is to be quashed. However, this Court quashed the prosecution on the peculiar facts of that case, finding that the said case can be brought under more than one head enumerated in the guidelines. This would be evident from paragraphs 21 and 22 of the judgment, which read as follows:
"21. The present case can be brought under more than one head given above without any difficulty.
22. The above discussion is sufficient to allow this appeal on the facts of this case."
19. Even at the cost of repetition, we hasten to add none of the heads in the case of P.S. Rajya (Supra) is in relation to the effect of exoneration in the departmental proceedings on criminal prosecution on identical charge. The decision in the case of P.S. Rajya (Supra), therefore does not lay down any proposition that on exoneration of an employee in the departmental proceeding, the criminal prosecution on the identical charge or the evidence has to be quashed.
20. It is well settled that the decision is an authority for what it actually decides and not what flows from it. Mere fact that in P.S. Rajya (Supra), this Court quashed the prosecution when the accused was exonerated in the departmental proceeding would not mean that it was quashed on that ground. This would be evident from paragraph 23 of the judgment, which reads as follows:
"23. Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the Report of the Central Vigilance Commission, exonerating the Page 28 of 33 R/CR.MA/12801/2011 JUDGMENT appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27- 3-1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs." (underlining ours) From the reading of the aforesaid passage of the judgment it is evident that the prosecution was not terminated on the ground of exoneration in the departmental proceeding but, on its peculiar facts.
21. It is worth mentioning that decision in P.S. Rajya (supra) came up for consideration before a two- Judge Bench of this Court earlier, in the case of State v. M. Krishna Mohan, (2007) 14 SCC 667. While answering an identical question i.e. whether a person exonerated in the departmental enquiry would be entitled to acquittal in the criminal proceeding on that ground alone, this Court came to the conclusion that exoneration in departmental proceeding ipso fact would not lead to the acquittal of the accused in the criminal trial. This Court observed emphatically that decision in P.S. Rajya (supra) was rendered on peculiar facts obtaining therein. It is apt to reproduce paragraphs 32 and 33 of the said judgment in this connection:
"32. Mr Nageswara Rao relied upon a decision of this Court in P.S. Rajya v. State of Bihar [1996 (9) SCC 1]. The fact situation obtaining therein was absolutely different. In that case, in the vigilance report, the delinquent officer was shown to be innocent. It was at that juncture, an application for quashing of the proceedings was filed before the High Court under Section 482 of the Code of Criminal Procedure which was allowed relying on State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335] holding: (P.S. Rajya case [1996 (9) SCC 1, SCC p.9, para 23)] "
23. Even though all these facts including the report of Page 29 of 33 R/CR.MA/12801/2011 JUDGMENT the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued."
Ultimately this Court concluded as follows:
"33. The said decision was, therefore, rendered on the facts obtaining therein and cannot be said to be an authority for the proposition that exoneration in departmental proceeding ipso facto would lead to a judgment of acquittal in a criminal trial."
23, This point also fell for consideration before this Court in the case of Supdt. of Police (C.B.I.) v. Deepak Chowdhary, (1995) 6 SCC 225, where quashing was sought for on two grounds and one of the grounds urged was that the accused having been exonerated of the charge in the departmental proceeding, the prosecution is fit to be quashed. Said submission did not find favour with this Court and it rejected the same in the following words:
"6. The second ground of departmental exoneration by the disciplinary authority is also not relevant. What is necessary and material is whether the facts collected during investigation would constitute the offence for which the sanction has been sought for."
23. The decision of this Court in the case of Central Bureau of Investigation v. V.K. Bhutiani, (2009) 10 SCC 674, also throws light on the question involved. In the said case, the accused against whom the criminal proceeding and the departmental proceeding were going on, was exonerated in the departmental proceeding by the Central Vigilance Commission. The accused challenged his prosecution before the High Court relying on the decision of this Court in the case of P.S. Rajya (supra) and the High Court quashed the Page 30 of 33 R/CR.MA/12801/2011 JUDGMENT prosecution. On a challenge by the Central Bureau of Investigation, the decision was reversed and after relying on the decision in the case of M. Krishna Mohan (supra), this Court came to the conclusion that the quashing of the prosecution was illegal and while doing so observed as follows:
"In our opinion, the reliance of the High Court on the ruling of P.S. Rajya was totally uncalled for as the factual situation in that case was entirely different than the one prevalent here in this case."
24. Therefore, in our opinion, the High court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence.
25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different Page 31 of 33 R/CR.MA/12801/2011 JUDGMENT entities. Further they are not in the same hierarchy. "
29. Thus, in view of the above, the argument of the learned senior counsel with regard to the applicant being exonerated from the departmental proceeding and, therefore, the criminal proceedings also should be quashed, should fail.
30. In the aforesaid context, I may also refer to and rely upon one another decision of the Supreme Court in the case of Susanta Kumar Dey vs. Union of India,, 2010 Cr.L.J., 1171. The relevant observations are extracted hereunder;
"Mr. Bikash Bhattacharya, learned senior counsel appearing for the petitioners, submits that the charge- sheets issued to all the appellants in the departmental proceedings are identical to the charge leveled against them in the CBI Court. Learned counsel makes a reference to the synopsis of the charge-sheets and compares the same with the charge-sheets in the departmental proceedings and submits that both are almost identical. The petitioners having been exonerated departmentally, criminal proceedings cannot continue. In support of his submissions learned counsel relied on the judgment of the Supreme Court in the case of P.S. Raiya vs. State of Bihar, 1996 ( 9) SCC 1.
19. Upon a conspectus of the judgements refered above we are of the view that the law laid by the Supreme Court is well settled. Criminal and departmental proceedings are entirely different from each other and they operate in different fields and have different objectives. Acquittal or exoneration from one such proceeding does not ipso facto lead to either the delinquent on the accused (as the case may be) being absolved of his liability to face charges in the other proceeding be it criminal or departmental."
31. I do not propose to go into the issue with regard to the affidavit in the form of extra-judicial confession filed by Ranaji Page 32 of 33 R/CR.MA/12801/2011 JUDGMENT Chauhan (accused No.2) stating therein on oath that he had paid an amount of Rs.2 Lakh to the applicant-accused herein for the purpose of getting the overdraft facility sanctioned. It appears that such affidavit was sent to the Investigating Officer. The affidavit was sent to the Investigating Officer much before Ranaji came to be arrested. However, the same was sent after the first information report was registered. I am not going into the argument of the learned APP with regard to section 10 of the Evidence Act. This affidavit is not a part of the charge-sheet. Ultimately, in the course of the trial, if the prosecution decides to rely upon the same one way or the other by producing it through the Investigating Officer, then the relevancy and the admissibility of the same may be looked into by the Trial Court in accordance with law, more particularly, keeping in mind the provision of section 10 of the Evidence Act.
32. For the foregoing reasons, this application fails and is hereby rejected. Rule is discharged. The ad-interim order, granted earlier, stands vacated.
33. It goes without saying that any observations touching the merits of the case are purely for the purpose of deciding the question whether the criminal proceedings should be quashed at this stage or not and shall not be construed as an expression of the final opinion in the main matter. The innocence or the guilt of the accused shall be decided strictly on the basis of the evidence that may be led by the prosecution as well as the defence in the course of the trial.
(J.B.PARDIWALA,J) Vahid Page 33 of 33