Jharkhand High Court
Sanjay Kumar Dalmia @ Sanjay Kumar Damia ... vs The State Of Jharkhand on 12 April, 2024
Author: Ratnaker Bhengra
Bench: Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Criminal Appeal (SJ) No. 574 of 2022
Sanjay Kumar Dalmia @ Sanjay Kumar Damia son of Late Gopi Krishan Dalmia,
resident of Dalmia Awash, Ward No. 06, Saraikella, P.O. & P.S.- Saraikella, District-
Saraikella-Kharsawan, State- Jharkhand ..... ....... Appellant
Versus
The State of Jharkhand ... ... Respondent
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PRESENT HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Ms. Amit Kumar Das, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
For the Bank : Mr. Krishna Murari, Advocate
: Mr. Md. Asghar, Advocate
: Mr. Raj Vardhan, Advocate
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Reserved on 20.12.2023 Delivered on 12 / 04/2024
Re: I.A. No. 7599 of 2022, I.A. No. 222 of 2023 & I.A. No. 2549 of 2023 The Interlocutory application being I.A. No. 7599 of 2022 and I.A. No. 222 of 2023 is being filed under section 389(1) of the Code of Criminal Procedure, 1973 by the appellant for grant of bail during pendency of the present appeal and I.A. No. 2549 of 2023 has been filed by the appellant for enlarging him on provisional bail for medical treatment of his wife.
2. Here it is pertinent to note that appellant had earlier filed I.A. No. 7599 of 2022 for suspension of sentence in this Criminal Appeal, however, this Court vide order dated 30.08.2022 had ordered that the said Interlocutory Application shall be considered at the time of hearing. Thereafter, appellant had again filed I.A. No. 222 of 2023 for suspension of sentence during pendency of the present appeal.
3. The instant Criminal Appeal has been preferred on behalf of the appellant against the judgment of conviction dated 13.07.2022 and order of sentence dated 19.07.2022 passed by the learned Special Judge, Anti-Corruption Bureau, West Singhbhum at Chaibasa, in Vigilance Case No. 09 of 2020, arising out of Saraikella P.S. Case No. 119 of 2019, whereby and whereunder the appellant has been convicted under Section 406/34 of the Indian Penal Code and sentenced him to undergo R.I. for a period of 3 years and fine Rs. 20,000/- and in default of payment of fine to serve further R.I. for 3 months, appellant was further convicted under Section 409/34 of the 2 Indian Penal Code and sentenced him to undergo RI for a period of 7 years and a fine of Rs. 20, 000/- and in default of payment of fine to serve further RI for 3 months, the appellant was further convicted under Section 420/34 of the Indian Penal and sentenced to undergo RI for a period of 3 years and a fine of Rs. 20,000/- and in default of payment of fine to serve further RI for 3 months and the appellant was further convicted under Section 12 of the P.C. Act, 1988(duly amended in 2018) and sentenced to undergo RI for a period of 7 years and a fine of Rs. 50,000/- and in default of payment of fine to serve further RI for 6 months. The appellant has been directed to deposit Rs. 4,14,30,000/- with 10% annual interest as compensation in terms of Sec. 357 (1)(d) of Cr.P.C. to the State Co-operative Bank, Saraikella, Branch from the date of sanction of the loan up till its realization, however, the sentences were ordered to run concurrently and period undergone by the appellant during the investigation and trial of this case to be set off in terms of Section 428 of the Criminal Procedure Code.
Arguments of the learned counsel for the appellant
4. Learned counsel for the appellant submitted that the learned trial court failed to appreciate that so far as the bank is concerned, it is stated that Rs. 4.14,30,000/- was transferred through various transactions in 04 bank accounts details of which is mentioned in the FIR. Neither Billion Mishra nor Suchindra Gope nor the partners/Directors of M/s. Pintu Engineering Company Limited or M/s. Saurabh Engineering has been made accused in this case. The documents exhibited by the prosecution suggest that there were commercial transactions between the said Firms and the Sanjay Kumar Dalmia since much prior to the commission of the alleged offence and, therefore, until and unless the prosecution is able to complete the chain by either arraying the account holders of the 04 accounts being account no. 20012111 of accused Suchindra Gope, account no. 100207 of M/S Saurabh Engineering, account no. 100110 of Ms. Pintu Engineering Construction Pvt. Limited and Bilion Mishra JV Account No. 100193, appellant Sanjay Kumar Dalmia could not have been arrayed as an accused. Neither during the course of investigation the said four account holders were interrogated nor they were made accused in this case nor they have been examined as prosecution witness. The prosecution has failed to explain under what circumstances these persons had not been made accused and the present accused, in whose account the prosecution claims that the said money was subsequently transferred, has been made accused. The possibility of genuine transaction, if any, out of the loan standing commercial relations between the Sanjay Kumar Dalmia and the 3 said accused persons cannot be ruled out. In fact there were no such transaction, as alleged by the prosecution and the same has not been proved by the prosecution with cogent evidence. The prosecution witnesses have admitted that the Sanjay Kumar Dalmia was having the highest transactions in the said branch and there was sufficient cash credit also in his account and, therefore, the prosecution having failed to either examine the account holders of the 04 accounts maintained in the names of M/s. Billion Mishra, Ms. Saurabh Engineering, M/s. Pintu Engineering construction Pvt. Limited and M/s. Suchindra Gope, cannot be said to have proved the charges against the present accused.
5. Learned counsel for the appellant further submitted that the learned trial court failed to appreciate that the prosecution has failed to prove that the 11 bank accounts in which the money was ultimately transferred from the account of M/s. Billion Mishra, M/s. Suchindra Gope, M/s. Saurabh Engineering and M/s. Pintu Engineering construction Pvt. Limited was maintained in the name of the Sanjay Kumar Dalmia and in absence thereof, the basic charge against the accused Sanjay Kumar Dalmia fails. This apart, apparently, there is absolutely nothing on record to suggest that the Sanjay Kumar Dalmia had in furtherance of any criminal intent caused transfer of any amount in his account. Even if the prosecution story is presumed to be correct, that does not itself prove the culpability of the present accused, inasmuch as the witnesses examined by the prosecution have not even whispered anything about any previous meeting of mind between Sanjay Kumar Dalmia and other accused persons who are claimed to have made the said transactions in the banking system and in absence thereof, there is absolutely nothing on record to suggest any conspiracy. It is specific case of the prosecution that the transactions have been done by Sunil Kumar Satpathy and Sandip Sen and, therefore, it cannot be said that the Sanjay Kumar Dalmia was somehow responsible and had knowingly got the said money transferred when the prosecution witnesses have further stated that neither the Sanjay Kumar Dalmia gave any letter requesting for credit of the said amount in his account nor the investigating agency has been able to suggest any document in the nature of deposit forms or any other document bearing the signature of the Sanjay Kumar Dalmia requesting for either such credit or for issuance of any certificate regarding closure of the account, rather the prosecution witnesses admitted that the Sanjay Kumar Dalmia has never voluntarily tried to get any of the loan accounts closed. In these view of the matter, the prosecution has failed on both counts -- (A) in proving that the 1 1 LAD accounts where the amount was transferred belonged to the Sanjay Kumar Dalmia and, (B) 4 Sanjay Kumar Dalmia had any role in the process of transfer of the said amount of Rs. 4,14,30,000/- or part thereof either in the accounts of Billion Mishra, Sachindra Gope, M/S. Saurabh Engineering or M/s. Pintu Engineering construction Pvt. Limited or Sanjay Kumar Dalmia had played any role in the subsequent transfer from these accounts to the alleged 11 accounts claimed to have been maintained in the name of Sanjay Kumar Dalmia.
6. Learned counsel for the appellant further submitted that learned trial court failed to appreciate that there is no evidence on record to prove that there was common intention among the accused persons, who are facing trial, to commit alleged occurrence. In this case, one of the charges framed against accused persons is under section 34 of Indian Penal Code. The materials and evidence available on case-record do not prove a case under section 34 of Indian Penal Code, against accused persons. The prosecution has failed to prove ingredients of section 34 of Indian Penal Code as consistently held by Apex Court, common intention contemplated by Section 34 of Indian Penal Code presupposed prior concert and it requires meeting of minds. It requires a pre-arranged plans before a man can by vicariously convicted for criminal act of another. The criminal act must have been done in furtherance of the common intention of all the accused. The non-seizure of so called desktop / computer and hard disk from the Saraikella Branch Co-operative Bank makes the prosecution case about the existence of a prior concert and prearranged plan extremely doubtful. The prosecution has not explained its failure to seize so called desktop / computer and hard disk from the Saraikella Branch Co-operative Bank. The prosecution has withheld the important material documents which could have thrown light on the alleged occurrence. Hence, this is case for drawing adverse inference against the prosecution. So prosecution has failed to prove ingredients of Section 34 of Indian Penal Code.
7. Learned counsel for the appellant further submitted that the learned trial Court failed to appreciate that there is no evidence on record to prove that any amount was entrusted by any branch of Jharkhand State Co-operative Bank to Sanjay Kumar Dalmia and he had converted the same to his own use. There is no evidence on record to prove that Sanjay Kumar Dalmia had cheated any person or any Branch of Jharkhand State Co-operative Bank. The case of prosecution has collapsed as per provision laid down under section 64 and 65 of the Indian Evidence Act.
8. Learned counsel for the appellant further submitted that the learned trial Court failed to appreciate that the root element of prosecution case against Sanjay Kumar Dalmia is that his 11 LAD COM (Loan Against Deposit) accounts have been 5 illegally closed. It is pertinent to mention here that so called 11 LAD COM Accounts of Sanjay Kumar Dalmia have not come on record and exhibited. The prosecution has failed to prove that said 11 LAD COM accounts of Sanjay Kumar Dalmia had been closed and said 11 LAD COM Accounts of Sanjay Kumar Dalmia was neither seized by the police nor produced by any officer or staff of co-operative Bank to the police.
9. Lastly learned counsel for the appellant has drawn the attention of this court in Supplementary Affidavit in I.A. 7599 of 2022 and submitted that the appellant Sanjay Kumar Dalmia has deposited Rs. 65,37,500/-to the victim bank in compliance of order passed by this court in B.A. No 4934 of 2021dated 15-7-2021. In this Supplementary Affidavit orders dated 24.02.2022, 30.04.2022 and order dated 23.05.2022 passed in Vigilance Case no. 09/2020 has been annexed showing payment of Rs. 65,37,500/-. Learned counsel submitted that in total Rs.87,37,000/- has been deposited by the appellant to the victim bank.
Arguments of Jharkhand State Co-operative Bank
10. Learned Counsel for Jharkhand State Co-operative Bank submitted that the prosecution case, as per typed report of the informant Pradeep Kumar Samal (Branch Manager), Jharkhand State Co-operative Bank Limited, Seraikella Branch, in nut shell, is that earlier inquires held by the department vide Letter No. 1380, dated 03.05.2019, issued by the Office of the Registrar, Co-operative Society, Jharkhand and Letter No. 1143 (Anu) dated 01.0 7.2019, issued by the Joint Director cum Joint Secretary, Agriculture, Animal Husbandry and Co-operative Department, Jharkhand Ranchi, in which the inquiry team found a huge sum of Rs.4,14,30,000/- misappropriated from the Jharkhand State Co-operative Bank Limited, Sarikella Branch. Such misappropriation has been done by the former Branch Manager Sunil Kumar Satpathy and other officers of the Bank in collusion with the co-accused Sanjay Kumar Dalmia by liquidating his loan accounts by showing illegal collection by debiting amounts from different bank accounts of the Jharkhand State Co-operative Bank Limited, in the following manners-
I. On 03.06.2017 a sum of Rs. 75,26,000/-credited in the account no. 100193 of Billion Mishra by way debiting the same amount in the Account No. 7052 of Jharkhand State Co-operative Bank Limited of Chaibasa Headquarter. II. On 03.06.2017, a sum of Rs. 55,24,000/- credited in the account no. 100193 of Billion Mishra by way debiting the same amount in the Account No. 7042 of Jharkhand State Co-operative Bank Limited of Bistupur Branch. III. On 06.06.2017 a sum of Rs.22,55,000/- credited in the account no.100193 of 6 Billion Mihsra by way debiting the same amount in the Account No. 7038 Jharkhand State Co-operative Bank Limited of Chandil Branch. IV. On 03.06.2017, a sum of Rs.39, 62,500/- credited in the account no. 100193 of Billion Mishra by way debiting the same amount in the Account No. 7039 Jharkhand State Co-operative Bank Limited of Rajnagar Branch. V. On 03.06.2017,a sum of Rs.55,27,000/- credited in the account No. 20012111 of Sachindra Gope by way of debiting the same account in the Account No. 7052 of Jharkhand State Co-operative Bank Limited of Chaibasa Headquarter. VI. On 06.06.2017, a sum of Rs.45,26,000/- credited in the account no. 200121 1 1 of Sachindra Gope by way of debiting the same account in the Account No. 7034 of Jharkhand State Co-operative Bank Limited of Chakrahdapur Branch. The aforesaid amounts which were credited in the account of Sachindra Gope, transferred in different loan accounts viz, Account no. 50131, 50130 and 50125 of co-accused Sanjay Kumar Dalmia.
VII. On 03.06.2017, a sum of Rs. 35,72,000/- credited in the account no. 100207 of Saurabh Engineering by way of debiting the same account in the account no. 7050 of JSCB limited of Jagugora Branch.The aforesaid amount which was credited in the account of Saurabh Engineering transferred in loan account No. 50135 of accused Sanjay Kumar Dalmia and closed the loan account. VIII. On 03.06.2017 , a sum of Rs.85,37,500/- credited in the account no.100110 of Pintu Engineering Construction Private Limited, by way of debiting the same account in the Account No. 7048 of Jharkhand State Co-operative Bank Limited of Behragora Branch. The above amount was transferred in the account of Sanjay Kumar Dalmia in his loan A/C 50126 and 50127.
11. Learned counsel further submitted that most of the threshold of misdeeds of Kaushal Kumar Sinha is that he was proprietor of Saurabh Engineering whose account no. 103710027 at JSCB Ltd. Seraikela Branch has been used for siphoning the huge amount of Rs.35,72,000/- by way of liquidating the loan account no. 103750135 of co- accused Sanjay Kumar Dalmia. It is relevant to mention here that the said amount has been withdrawn through cheque with proper signature of Kaushal Kumar Sinha and this shows the equal connivance of appellant with other culprits in the matter. Learned counsel lastly submitted that in view of the aforesaid facts and circumstances, the appellant shall not be enlarged on bail.
Arguments of Special Public Prosecutor
12. On the other hand learned Special Public Prosecutor appearing for the State has 7 submitted that department vide Letter No. 1380, dated 03.05.2019, issued by the Office of the Registrar, Co-operative Society, Jharkhand and Letter No. 1143 (Anu) dated 01.07.2019, issued by the Joint Director cum Joint Secretary, Agriculture, Animal Husbandry and Co-operative Department, Jharkhand Ranchi, in which the inquiry team found a huge sum of Rs.4,14,30,000/- misappropriated from the Jharkhand State Co-operative Bank Limited, Seraikella Branch, in which loan account of Sanjay Kumar Dalmia has been closed after showing forged recovery of the loan amount of Rs. 4,14,30,000/-.It was found that such misappropriation was done by the former Branch Manager Sunil Kumar Satpathy and other officers of the Bank in collusion with the co-accused Sanjay Kumar Dalmia by liquidating his loan accounts by showing forged recovery by debiting amounts from different bank accounts of the Jharkhand State Co-operative Bank Limited. The Spl.P.P, has reiterated details of such misappropriated amount as given by the learned counsel for the Jharkhand State Co- operative Bank. Learned counsel further submitted that there is specific allegation of misappropriation of huge public money by showing fake recovery and closure of loan account by crediting the same in loan account. The contention of the appellant that there is no misappropriation of bank money is falsified by the documentary evidence available on record. Rs.4,14,30,000/- was transferred from the office Accounts of seven different branches of Jharkhand State Co-Operative Bank in four intermediary accounts. Then, Rs.3,94,00,666/- was transferred in 11 pending LAD accounts of Sanjay Kumar Dalmia in Seraikella Branch of Jharkhand State Co-operative Bank Limited by means of 12 different cheques and rest amount was used by Sanjay Kumar Dalmia and his partner and proprietor of Saurabh Engineering works Sri Kaushal Kumar Sinha. The alleged cheque was passed by branch manager Sunil Kumar Sathpathy. Learned Counsel further submitted that case is based on documentary evidence and illegal bank transaction in connivance with the bank officials are on record. It is fairly well settled provision in law that actual mode of entrustment or misappropriation is not to be proved by the prosecution. Once entrustment is proved, it is for the accused to prove as to how the property was dealt with and for this learned counsel has relied on judgment N. Bhagwan Pillai vs State of Kerela reported in AIR 2004 SC 2317. During course of enquiry all the witnesses along with the relevant documents have supported the alleged occurrence, wherein huge defalcation of public money to the tune of more than 4,14,30,000/- crores of rupees and the present appellant was beneficiary of illegal transfer of the money at the relevant time. Learned counsel further submitted that this is a case larger conspiracy and at every 8 stage, charge sheeted accused persons have especially the then in- charge Branch Manager, assistant of Seraikella Branch, Assistant Chief Manager and other officials have misused their official positions. The CCTV footage of the accused persons working before the office hour and transferring the money in different account is corroborated with the record available in Bank CBS System and time is also registered and corroborative in nature and apart from that 65 B Certificate is also available in record as Annexure X. Para-90 of PW-14 clearly suggest that all the transaction were made through computer and IP addresses which was used for transfer is only for the computer for which it was generated for that time in the whole world, hence it is a genuine proof of illegal transfer of the money by the accused person. Lastly learned counsel submits that application of the appellant is vexatious and cannot be allowed as it is devoid of any merit.
CONCLUSION
13. I have heard learned counsel for the appellant, learned counsel for state-Spl.P.P. and learned counsel for the informant Bank and gone through the facts and evidences of the case. From the evidence, I find that there is allegation that a huge sum of money of Rs. 4,14,30,000/- was misappropriated from the Jharkhand State Co- operative Bank Limited Sararikella Branch, in which Loan Account of the appellant Sanjay Kumar Dalmia was closed after showing forged recovery of the loan amount of Rs. 4,14,30,000/-. This huge amount was misappropriated by the appellant in connivance with the bank officials. Hence, noting the finding of the enquiry team regarding collusion between the accused persons and misappropriation and seeing the nature and gravity of offence, the I.A. No. 7599 of 2022 and I.A. No. 222 of 2023 filed by the appellant for his suspension of sentence are rejected at this stage.
14. I.A. No. 2549 of 2023 filed by the appellant for enlarging him on provisional bail for medical treatment of his wife has become infructuous due to lapse of time and therefore it is dismissed as infructuous.
15. I.A. No. 7599 of 2022 and I.A. No. 222 of 2023, are dismissed, at this stage.
(Ratnaker Bhengra, J.) Jharkhand High Court, Ranchi Dated: 12/ 04 /2024 Sharda/NAFR