Gujarat High Court
Rajiv Ranjan Das S/O Nitay Chandra Das vs State Of Gujarat & on 27 June, 2017
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/CR.MA/15057/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 15057 of 2012
With
CRIMINAL MISC.APPLICATION NO. 18427 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE BIREN VAISHNAV
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAJIV RANJAN DAS S/O NITAY CHANDRA DAS....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR HARDIK H DAVE, ADVOCATE for the Applicant(s) No. 1
MR JIGAR D DAVE, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 27/06/2017
ORAL JUDGMENT
1. Criminal Misc. Application No. 15057 of 2012 is filed by the Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Aug 20 07:47:07 IST 2017 R/CR.MA/15057/2012 JUDGMENT applicant, Shri Rajiv Ranjan Das who was working as Assistant General Manager with Bank of India, Ahmedabad Main Branch at the relevant time, seeking quashing of the complaint filed before the learned Metropolitan Magistrate vide M. Case No. 1/2008 interalia alleging offences punishable under sections 406, 467, 468, 470, 471 and 120B of Indian Penal Code as well as the subsequent filing of charge sheet.
2. Criminal Misc. Application No. 18427 of 2012 has been filed seeking cancellation of bail qua respondent no. 2 therein
- applicant of Criminal Misc. Application No. 15057 of 2012.
3. The facts resulting into filing of the present applications are as under:
3.1 The complainant, Dilipbhai Gokalbhai Patel was in the business of construction. He along with accused no. 2 Vishal Kamaria purchased a bungalow, demolished the same and on the site of the land constructed an office building. The new complex was named as Gokul Palace. Accused no. 2 Vishal Kamaria was made Chairman of Gokul Owners Association.
The original complainant however though associated with the Gokul Owners Association had his own firm known as Parth Constructions. It was with a joint venture that the complainant and the accused had set up this office complex.
3.2 It came to the notice of the complainant that on 02.11.2004, accused no. 2 had given notice in a daily newspaper 'Sandesh' for title clearance of some shops. The allegation in the complaint is that this advertisement for obtaining title clearance of the shops was given without the Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Aug 20 07:47:07 IST 2017 R/CR.MA/15057/2012 JUDGMENT notice or consent of the complainant. Based on this title clearance, loan was obtained from Bank of India, Laldarwaja Branch on 23.12.2004.
3.3 During the course of the investigation of the complaint, it was found that one Maitri Health Care Private Limited - accused no. 1 qua whom the loan of Rs. 3.25 crores was sanctioned by Bank Of India was a company incorporated on 15.10.1998 and was carrying out activities manufacturing pharmaceuticals formulations. The bank officials sanctioned the loan and for the loan so sanctioned, certain shops were mortgaged on 27.12.2004 in compliance of the bank's norms. These shops so mortgaged were in the premises of Gokul Complex. The officers of the bank which included the applicant of Criminal Misc. Application No. 15057 of 2012 sanctioned the loan on the basis of the title clearance given and also on the basis of the documents vetted by the bank's Advocate Shri. G.J. Bhatt on 01.01.2005.
3.4 The loan having not been repaid by accused no. 1 - Maitri Health Care Private Limited, the bank resorted to proceedings of sealing the shops in question. It was at this point of time that the shop owners came to know that the accused no. 2 had resorted to mortgaging of the shops which otherwise belonged to innocent shop owners of the complex in connection with the loan that Maitri Health Care Private Limited had availed. According to the complainant, accused no. 2 was the mastermind behind such offering of security of the shop which were otherwise sold to various people. Sealing of shops at the hands of the bank on default of loan was, therefore, at the behest of such forgery and fraudulent Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Aug 20 07:47:07 IST 2017 R/CR.MA/15057/2012 JUDGMENT exercise that the accused no. 2 had indulged in. The complainant therefore filed the aforesaid complaint against Maitri Health Care Private Limited and accused no. 2.
3.5 Subsequently, based on the investigation, charge-sheet was filed and the officers of the bank were also roped in for having sanctioned such loan without due verification. Faced with such criminal prosecution based on the charge sheet, one of the officers of the bank - the then Assistant General Manager has approached this court seeking quashing of the complaint on the ground that the exercise of sanction of the loan was done in accordance with the norms of the bank and after having seen the documents which were otherwise vetted by the advocate of the bank.
4. Mr. K.B. Anandjiwala, learned Senior Advocate appearing with Mr. Hardik Dave, learned advocate for the applicant in Criminal Misc. Application No. 15057 of 2012 contended that the applicant was an Assistant General Manager of the Bank who had sanctioned loans based on the verification carried out in accordance with the bank's norms and therefore he could not have been held liable for such penal action under sections 406, 409, 420 of Indian Penal Code.
4.1 Mr. Anandjiwala presses into service a report of the Chief Vigilance Officer, Bank Of India, Mumbai dated 16.07.2008 who had after having carried out an investigation into the advance of such a loan to accused had found as under:
"Evaluation of evidence :Page 4 of 9
HC-NIC Page 4 of 9 Created On Sun Aug 20 07:47:07 IST 2017 R/CR.MA/15057/2012 JUDGMENT The allegation that bank has not verified the genuinity of title deeds is disproved by various documents title clearance reports, valuation reports etc. (marked as Anne B- 1 to B-3, Annex C-1 to C-3) Annex. E and Annex F-1 to F-13). Further the then AGM Shri Rajiv Ranjan and Chief Manager Shri Y.V. Champaneri had visited the factory building and Paldi shops (No. 215 and 224) on 14.09.2008. Their joint inspection report is marked as Annx "J". Two officer Shri G.R. Shah and Shri Bhola Prasad had visited the shops on 2/4-01-2005 and 7.5.2005 their reports are marked as Annex "K" and "L".
I have also recorded the statement of Shri G.R. Shah and Shri Bhola Prasad (Marked as Anne-K-1 and L-1 and both have confirmed having personally visited and verified the shops in question.
OPINION:
Thus there is sufficient evidence to prove that properties were verified and visited by atleast four officers of the Bank besides visits of approved valuer of the Bank and title verification by Bank's advocate. Moreover, High Court has also upheld the contention of the bank with regard to the genuinity of the documents and creation of mortgages by the Bank. Hence, allegation of the complainant is not proved by the documents/facts on record.
4.2 He contended that having prima facie found by the Bank that the extension of such credit facilities to the accused no. 1 were after verification of the various documents, the Vigilance Officer found that no case was made out against the officers of the bank.
4.3 Mr. Anandjiwala has also drawn my attention to the judgements of this court passed in Criminal Misc. Application Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Aug 20 07:47:07 IST 2017 R/CR.MA/15057/2012 JUDGMENT No. 4957 of 2011 by which this Court by its judgement and order dated 19.07.2011 quashed the charge against the advocate of the bank who was also arraigned as an accused in the criminal proceedings that ensued pursuant to the investigation.
5. Mr. Jigar Dave, learned advocate appearing for the original complainant has contended that this court should be cautious in exercising its powers under Section 482 of the Criminal Procedure Code. According to him, as is evident from reading the judgement in the case of Sushil Suri vs. CBI reported in 2011(5) SCC 708 that when bank officers face criminal prosecution, having accused of opening fictitious accounts in banks on the basis of forged documents, the Courts should not at the first instance quash such a charge against the bank officer without the bank officer having faced trial. Mr. Dave has also relied upon another judgement in support of his contention in the case of Dharmatma Singh vs. Harminder Singh reported in 2006(11) SCC 102.
5.1 Mr. Dave further contended that the present applicant was one of the applicants in Criminal Misc. Application 8496 of 2008 wherein the court had rejected the application for grant of anticipatory bail having observed that since the applicant was working as an officer of the bank and there was prima facie evidence to show that the loan sanctioned was on the basis of false and fabricated documents without verifying such documents.
6. Having given anxious consideration to the facts in question, it is evident from the reading of the complaint that Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Aug 20 07:47:07 IST 2017 R/CR.MA/15057/2012 JUDGMENT the respondent no. 2 was against the modus operandi of accused no. 2 who while seeking title clearance of the shops in question without putting up a notice had resorted to a subterfuge of presenting the title clearance documents.
Pursuant to such exercise of obtaining title clearance it was the creditor - Maitri Health Care that had taken credit facility from Bank of India. In undertaking such exercise and advancing loans to accused no. 1 - Maitri Health Care, it is evident from the Chief Vigilance Officer's report which had carried out a detailed investigation that the bank officials had followed the norms of the bank in practice. The allegations that the genuinity of the title deeds was not verified and that the applicant who was then working as an Assistant General Manager did not visit the factory building or the shops has been belied by the contents of the report. It is evident on reading such report that the officer of the bank visited such factory premises and the shops on 04.09.2008 and a joint inspection report was produced too. Reading of the report however indicates that the papers were verified and the officers had visited the shops.
6.1 The exercise of advancing such credit facilities was undertaken by the officers of the bank also on the basis of the report of the advocate of the bank who opined that the titles were clear so also the papers of the mortgage. Though an analogy need not be drawn, but it cannot be lost sight of the fact that the concerned advocate who had given his opinion which had weighed with the officials of the bank to grant such loans was also facing criminal prosecution and he had approached this court by way of filing Criminal Misc. Application No. 4957 of 2011 for quashing of the complaint Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Aug 20 07:47:07 IST 2017 R/CR.MA/15057/2012 JUDGMENT against him. This court vide judgement and order dated 19.07.2011 quashed the complaint against him.
6.2 I, therefore, see no reason to differ and am inclined to extend a similar benefit to the applicant who being the Assistant General Manager at the relevant time, based on the norms of the bank had sanctioned such loans and there cannot be any reason for the complaint to proceed against him on the ground that such loan was sanctioned and was subsequently found that the prime suspect was accused no. 1. No fault or criminal culpability can be attributed to the officials of the bank as is also evident from the report tendered by the Chief Vigilance Officer who had carried out such exercise after due verification of the title deeds and the documents and after having visited the factory premises and the shops in question. The conspiracy angle that has sought to be added to the criminal proceedings would not merely for the sake of such addition may make this offence serious enough if otherwise the complicity of the officer is unfounded.
7. In view of the discussion hereinabove, Criminal Misc. Application No. 15057 of 2012 is hereby allowed. Rule is made absolute accordingly.
8. In view of the fact that Criminal Misc. Application No. 15057 of 2012 is allowed and the complaint filed against the applicant therein is quashed and set aside the application seeking cancellation of bail does not merit consideration and therefore the same is dismissed. Notice is discharged. Interim relief, if any, shall stand vacated.
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