Madras High Court
S.Srinivasan vs The State Rep By on 20 September, 2022
Author: M.Nirmal Kumar
Bench: M.Nirmal Kumar
Crl.R.C.No.1210 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.09.2022
CORAM:
THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.1210 of 2022
S.Srinivasan
S/o Sridharan ... Petitioner
-Vs-
The State rep by
The Inspector of Police
CBI/SCB
Chennai. ... Respondent
Prayer: Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C., to
call for the records in C.C.No.433 of 2015 and to set aside the order of the
Additional Chief Metropolitan Magistrate, Egmore, passed in
Crl.M.P.No.15436 of 2022 dated 20.07.2022.
For petitioner : Mr.R.Ganesan
For respondents : Mr.K.Srinivasan
Spl. P.P. For CBI
https://www.mhc.tn.gov.in/judis
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Crl.R.C.No.1210 of 2022
ORDER
The petitioner is an accused/A7 in C.C.No.433 of 2015, who is facing trial along with six others, for the offences under Section 120-B IPC r/w 420, 419, 420, 465, 466, 467 and 471 IPC, filed a petition under Section 319 r/w 223 Cr.P.C., before the Trial Court in C.M.P.No.15436 of 2022, to add some more persons as accused. The Trial Court by an order dated 20.07.2022, dismissed the same. Against which, the present Criminal Revision Case has been filed.
2.Gist of the case is that M/s AGK Packers – A1, a Partnership firm, represented by T.Kumararaj - A2 and T.Ashokan - A3 along with other accused entered into criminal conspiracy in Pudukottai, Chennai and other places, during 2009-2010, to cheat IDBI Bank, by availing credit facility. A1 along with others availed CC limit of Rs.3 crores from IDBI Bank and A2 and A3 later transferred the loan amount to various fictitious bank accounts, in the names of non existing firms, opened by A2 alongwith R.Ramachandran – A5 and T.Manishankar – A6 and also failed to repay the entire loan amount to IDBI Bank. Since the documents submitted by A2 and A3 on behalf of A1 firm in respect of collateral securities were forged and invalid, the IDBI Bank could not recover the loan amounts, which resulted https://www.mhc.tn.gov.in/judis 2/10 Crl.R.C.No.1210 of 2022 in undue loss of Rs.3.72 crores.
3.During 2009, M/s AGK Packers – A1, represented by T.Kumararaj - A2 and T.Ashokan - A3 A1 by suppressing the fact that the original lease deed with respect to their SIPCOT property was mortgaged with TIIC, submitted false and fabricated documents, availed OD limit of Rs.1 crore from ING Vysya Bank, Mount Road, Chennai, on 31.01.2009. Before ING Vysya Bank could realise the fake nature of documents, A2 and A3 submitted an application on behalf of A1, seeking Rs.3 crore CC facility from IDBI Bank, SME Centre, Chennai and thereafter settled the dues of Rs.1 crore to ING Vysys Bank through RTGS on 14.10.2009. Further, the petitioner, S.Srinivasan – A7 impersonating himself as Manager of IDBI Bank, fraudulently obtained documents from ING Vysya Bank, upon taking over the loan from IDBI Bank.
4.The contention of the petitioner is that, one G.Udhayakumar – L.W.17 was enquired by R.Ravi, the Investigating Officer – P.W.45 on 11.10.2012 and in his statement, he had admitted the criminal misconduct of the officials viz., 1)S.Christopher Jabakumar, the then AGM, 2)Jayanth Ragothe, Astt, Asst Manager, 3)V.M.Manoharan, then GM, https://www.mhc.tn.gov.in/judis 3/10 Crl.R.C.No.1210 of 2022
4)N.K.Srivastave, then AGM, 5)Bhumanya Sahu, Executive, 6)Dhanabalan, DGM, 7)Arthi Kannan, Manager, of IDBI Bank, Chennai. Further, the above mentioned officials name were recommended for departmental action. Eventually, prosecution not examined L.W.17 as witness and when P.W.45, the Investigating Officer was specifically questioned about the misconduct committed by the officials, he clearly gave evasive explanation for the same. Hence, the petitioner had filed a petition to include the above mentioned officials of IDBI Bank as accused, A8 to A15 in C.C.No.433 of 2015. However, the Trial Court failed to consider the same.
5.Admittedly, L.W.17 has stated that the 1/3rd of the sanctioned loan amount of Rs.200 lakhs was disbursed on 13.10.2009 before ever, the no due certificate was obtained by the above officials, and the no due certificate was obtained only on 24.12.2009, even thereafter, without verifying the genuineness of the no due certificate, the balance amount of Rs.100 lakhs disbursed by the officials on 10.12.2009. Further, none of the bank officials conducted themselves in good faith as per the definition of Section 52 of IPC. The Trial Court without considering the same given a finding that the investigation done by CBI did not reveal that the public servant/bank officers have conspired with other accused persons and cheated https://www.mhc.tn.gov.in/judis 4/10 Crl.R.C.No.1210 of 2022 the IDBI Bank. Further, the Trial Court has found that the petition has been filed at the fag end of Trial, only to drag on the proceedings and hence dismissed the petition. In support of his contention, he relied on the decision of the Hon’ble Supreme Court in the case of A.Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, Represented by its President etc., in Civil Appeal Nos.4012 – 4013 of 2012 dated 27.04.2012.
6.The learned Special Public Prosecutor appearing for the respondent would submit that the petitioner impersonated himself as an official of IDBI Bank, appeared before the ING Vysya Bank and collected the documents. Witnesses have spoken about the same. As regards L.W.17, his statement is with regard to enquiry conducted by the Bank. There is no criminal nexus by the accused and the banking officials and hence, none of the banking officials have been arrayed as accused. A1 to A7, who conspired to cheat IDBI Bank and in furtherance of the same, fabricated documents, committed forgery, impersonation and other offences. While taking over the loan account of ING Vysya Bank, IDBI have sent RTGS and the rest was only a formal confirmation from ING Vysya Bank. There has been some delay in obtaining the No Due Certificate from ING Vysya Bank https://www.mhc.tn.gov.in/judis 5/10 Crl.R.C.No.1210 of 2022 and that alone will not absolve the accused persons from their criminal acts. The investigation conducted by the CBI confirmed the conspiracy entered between the A1 to A7, to cheat the IDBI Bank and public funds. The signature of A7 was obtained by ING Vysya Bank in Security Register, at the time of handing over the document to him, believing himself to be the official of IDBI Bank. Impersonation by the petitioner/A7 was confirmed by both oral and documentary evidences. Opinion of the Handwriting experts proves the impersonation committed by A7. In this case, the prime accused, T.Kumararaja already convicted in two cases of similar in nature in C.C.Nos.3453 of 2012 and 4547 of 2012. The learned Special Public Prosecutor appearing for the respondent filed counter and also relied upon the decision of this Court reported in 2019 SCC Online Mad 30726 in the case of A.K.Alva Vs. State represented by Inspector of Police and another, wherein this Court referring to the case of Hardeep Singh Vs. State of Punjab held that the test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C.,. Further referring to Section https://www.mhc.tn.gov.in/judis 6/10 Crl.R.C.No.1210 of 2022 319 Cr.P.C., submitted that in the course of any inquiry of an offence, to find out from the evidence, any person not being the accused has committed any offence for which such person could be tried together with the accused. In this case, the trial Court, referring to 161 Statement, other materials, dismissed the petition filed to add some more persons as accused.
7.From the submissions made by the learned counsel for the petitioner as well as the learned Special Public Prosecutor and the 161 statement of L.W.17, evidence of P.W.45 – Investigating Officer, this Court finds no reason to invoke Section 319 Cr.P.C.,. Now, the case is at the stage of questioning the accused under Section 313 Cr.P.C.,. It is for the petitioner, being an impersonator, to get into the box or to examine defence witnesses, to substantiate his point. Therefore, in the absence of any tangible evidence, this petition cannot be entertained, and the Trial Court has rightly dismissed the petition. This Court finds no reason to interfere with the finding of the Trial Court.
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8.Accordingly, this Criminal Revision Case stands dismissed. The learned Additional Chief Metropolitan Magistrate, Egmore, is directed to conclude the trial proceedings in C.C.No.433 of 2015 without further delay.
Jer 20.09.2022
Index : Yes/No
Speaking/Non Speaking order
Note:Issue order copy on 26.09.2022
To
1. The Additional Chief Metropolitan Magistrate, Egmore.
2.The Inspector of Police CBI/SCB Chennai.
3.The Special Public Prosecutor for CBI Cases High Court of Madras.
https://www.mhc.tn.gov.in/judis 8/10 Crl.R.C.No.1210 of 2022 M.NIRMAL KUMAR. J, Jer Crl.R.C.No.1210 of 2022 https://www.mhc.tn.gov.in/judis 9/10 Crl.R.C.No.1210 of 2022 20.09.2022 https://www.mhc.tn.gov.in/judis 10/10