Karnataka High Court
Asadulla Khan vs The State on 29 January, 2020
Equivalent citations: AIRONLINE 2020 KAR 1569
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL REVISION PETITION NO.635 OF 2011
C/W
CRIMINAL REVISION PETITION NO.636 OF 2011
C/W
CRIMINAL REVISION PETITION NO.637 OF 2011
C/W
CRIMINAL REVISION PETITION NO.638 OF 2011
IN CRL.RP.NO.635/2011
BETWEEN
ASADULLA KHAN
S/O LATE RAHAMATULLA KHAN
AGED ABOUT 45 YEARS
R/AT 132/2481
5TH CROSS, GANDHINAGAR
MANDYA ...PETITIONER
(BY SRI S.G.BHAGAVAN, ADV.,)
IN CRL.RP.NO.636/2011
BETWEEN
AYESHA NAJAM
D/O SRI NAJAMODEEN
AGED ABOUT 37 YEARS
R/AT 132/2481
5TH CROSS, GANDHINAGAR
MANDYA ...PETITIONER
(BY SRI S.G.BHAGAVAN, ADV.,)
2
IN CRL.RP.NO.637/2011
BETWEEN
NASEEMUNNISA
W/O SRI SARDAR PASHA
AGED ABOUT 60 YEARS
R/AT 6TH CROSS, GANDHINAGAR
MANDYA ...PETITIONER
(BY SRI S.G.BHAGAVAN, ADV.,)
IN CRL.RP.NO.638/2011
BETWEEN
NASREEN TAJ
D/O SRI NAJAMODEEN
AGED ABOUT 24 YEARS
BESIDE MAHAVEER PROVISION STORE
3RD CROSS, 2ND STAGE,
KHB COLONY, MANDYA DISTRICT ...PETITIONER
(BY SRI S.G.BHAGAVAN, ADV.,)
AND
THE STATE
BY INSPECTOR OF POLICE
ACE, CBI, GANGANAGAR
BANGALORE - 560 032 ...RESPONDENT
(COMMON)
(BY SRI P.PRASANNA KUMAR, ADV.,)
THESE CRIMINAL REVISION PETITIONS ARE FILED
UNDER SECTION 397 READ WITH 401 OF CR.P.C.
PRAYING TO SET ASIDE THE ORDER ON THE CHARGE
DATED 02.04.2011 PASSED BY THE XXXII ADDL. C.C.
AND S.J., AND SPL. JUDGE FOR CBI CASES,
BANGALORE IN SPL.C.C.NO.315/10 DECIDING TO
FRAME CHARGE AND CONSEQUENTLY FRAMING THE
CHARGE ON 23.04.2011 INCLUDING THE LATTER BY
CALLING FOR THE RECORDS.
3
THESE CRL.RPs. COMING ON FOR FINAL HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner in Crl.R.P.No.635/2011 is accused No.2. Petitioner in Crl.R.P.No.636/2011 is accused No.7. Petitioner in Crl.R.P.No.637/2011 is accused No.8 and Petitioner in Crl.R.P.No.638/2011 is accused No.9. They have filed these revision petitions under Section 397 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) being aggrieved by the order on the charge passed by the XXXII Additional City Civil and Sessions Judge, Bangalore City (hereinafter referred to as 'the trial court' for short) in Special C.C.No.315/2010 dated 2nd April 2011. All these petitioners are accused and the order passed by the trial court is common order, therefore, they are taken together for common disposal to avoid repetition of facts and law.
2. Heard the arguments of learned counsel for the petitioners/accused Sri.S.G.Bhagavan and the 4 learned Counsel for the respondent-CBI Sri.P.Prasanna Kumar.
3. The case of the petitioners is that, the Inspector of Police, CBI, BS & FC filed a charge sheet against these petitioners and others for the offences punishable under Sections 120B read with Section 420 of the Indian Penal Code (hereinafter referred to as 'IPC' for short) and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'P.C.Act' for short) by showing these petitioners as accused Nos.2, 7, 8 and 9 respectively.
4. After filing of the charge sheet and the appearance of the accused before the trial court, the trial court passed an order after hearing Counsel before charge and passed the order impugned dated 02.04.2011 holding that there is sufficient material placed on record for framing of charge against accused No.1 to 9 for the offences punishable under Section 120B read with Section 420 of IPC and against accused Nos.1 and 3 (Bank Managers, they are not 5 petitioners before this court) for the offences punishable under Sections 13(2) and 13(1)(d) of the P.C.Act. Assailing the same, the petitioners are before this court.
5. Learned Counsel for the petitioners Sri.S.G.Bhagavan mainly argued the matter on the point of law that the order under revision is not sustainable as there is no ingredient made as against these petitioners in order to frame charges either under Section 120B or Section 420 of IPC even though they borrowed loan from the bank. Accused Nos.1 and 3 are Bank Managers. They are held to be committed offence under the P.C.Act, but merely borrowing loan and utilizing for some other purpose than the purpose of borrowing loan, that itself is not the ground to show that they have committed the offence and cheated the bank and caused any loss to the bank or wrongful gain to them in order to frame charges. The trial court has not properly considered the arguments addressed by the counsel before the trial court, it has wrongly held the charges required to be framed. 6
Learned Counsel also contended that the charge sheet has been filed by a Police Inspector, who is not the rank of Superintendent of Police as required under the C.B.I. Manual, as the charge sheet has been forwarded by the Superintendent of Police, but actually charge sheet is filed by the Police Inspector.
Learned Counsel submits that the officer-in- charge of Police Station as per Section 173(2) of Cr.P.C. and the C.B.I.Manual, the Superintendent of Police has to forward the report to the officer-in-charge of the Police Station. Such being the case, question of filing charge sheet by the Police Inspector is not correct. Only the Superintendent of Police is competent to lay a charge sheet before the court. Therefore, the charge sheet filed in the present case is not sustainable under the law. Hence, he prays for discharging the petitioners. In support of his arguments, he relies upon the judgment of the Hon'ble Supreme Court reported in AIR 2000 SC 1731 - R.Sarala -vs- T.S.Velu and others and judgment of 7 the Allahabad High Court reported in 1987 Crl.L.J. 1768 in the matter of State of Uttar Pradesh -vs- Jitendra Kumar Singh & Others.
6. Per contra, the learned Counsel appearing for the respondent-CBI Sri.P.Prasanna Kumar has supported the order passed by the trial court and has contended that the charge sheet though has been laid by the Police Inspector, he is also authorized to file the charge sheet and the Superintendent of Police had verified the documents and forwarded to Police Inspector for filing the charge sheet and moreover, the C.B.I. Manual is only a guidelines and the Police Inspector is also an authorized and competent officer to file the charge sheet and further contended that, as per Section 17 clause (a) of the P.C.Act, the Police Inspector is also assigned as officer-in-charge of the Police Station for the purpose of investigation under the P.C.Act. The same was already decided by this court in the case of N.Ashok kumar -vs- CBI/ACB reported in 2010 SCC OnLine Kar 4479, which was 8 decided on 16.12.2010 and an another unreported judgment of this court in T.R.Manjunath Hegde -vs- CBI/SPE in Crl.R.P.No.601/2008 & connected matters DD 13.7.2012. The learned CBI Counsel also submits that in respect of filing of the charge sheet by the Police Inspector, the same was already decided by the Supreme Court in the cases of State by CBI -vs- S.Bangarappa reported in (2001) 1 SCC 369; State Rep. by Inspector of Police, Chennai -vs- N.S.Gnaneswaran reported in (2013) 3 SCC 594; Parbatbhai Aahir & Others -vs- State of Gujarat and Another reported in (2017) 9 SCC 641 and M/s.Kusum Alloys Limited & Another -vs- The Delhi Special Establishment by CBI & Another in Crl.P.No.1274/2017 DD 02.4.2018. Hence, prays for dismissal of the revision petitions.
7. Upon hearing the arguments of learned counsel for the petitioners and the respondent and on perusal of the record, it would show that the Police Inspector, C.B.I. filed the charge sheet against the 9 petitioners and other two accused for the offences punishable under Section 420 read with Section 120B of IPC and Sections 13(2) and 13(1)(d) of the P.C.Act as against accused Nos.1 and 3, who are the Bank Managers. However, the Bank Managers have not challenged the order of framing of charge passed by the trial court.
8. The only contention of the learned counsel for the petitioners is that, the petitioners are the borrowers. They borrowed the loan for some purpose but used for some other purpose, which will not attract the provisions of Section 120B or 420 of IPC. It is also not disputed that the petitioners borrowed totally a sum of Rs.12.63 crores from the Syndicate Bank wherein accused Nos.1 and 3 are the Bank Managers. The offence came to light when the petitioners were default in payment and on verification it was found that they borrowed the loan in collusion with accused Nos.1 and 3 and they have not utilized the loan amount for the purpose for which they 10 borrowed, but used for some other purpose and they defaulted in making the repayment to the bank, thereby they caused loss of more than Rs.12 crores to the Bank, which is a public financial institution. Accused Nos.1 and 3 being the Bank Managers are facing trial for the offence under the P.C.Act for wrongfully causing loss to the bank, whereas the fact that these petitioners have borrowed loan and not repaid though same attracts civil action for recovery, if they have not used the loan amount for the purpose for which was borrowed by them. For the convenience, the provisions of Section 120B and Section 420 of IPC read as under:
"120-B. Punishment of criminal conspiracy.─(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
11(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.
420. Cheating and dishonestly inducing delivery of property.-Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
9. A bare reading of the above provisions shows that causing wrongful loss to the complainant - Bank with the help of accused Nos.1 and 3, the Bank Managers and thereby cheating the Bank and not even repaying the same by the borrower subsequent to the offence committed and registration of the case, the accused cannot be exempted from punishment. The 12 said issue has been settled by the Hon'ble Supreme Court in the case of Parbatbhai Aahir (supra) wherein, at para 16.10, it was held as under:
"16.10. There is yet an exception to the principle set out in propositions 16.8 and 16.9. above. Economic offences involving the financial and economic well-being of the State have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance."
10. By relying upon such judgment, the Co- ordinate Bench of this court in Criminal Petition No.1274/2017 in the case of M/s.Kusum Alloys Ltd. (supra), taken the view that the charges cannot be quashed on the point that borrower failing to repay the amount. Therefore, this court dismissed the 13 application for quashing the FIR under Section 482 of Cr.P.C.
11. The above judgments squarely apply to the case on hand that even if the petitioners have borrowed the amount subsequent to the commission of the crime that itself is not a ground to exempt them from punishment. Therefore, the argument addressed by the learned counsel for the petitioner is not sustainable under the law.
12. Another contention raised by the learned counsel for the petitioner is regarding filing of the charge sheet by the Police Inspector, who is not authorized to file charge sheet unless he is officer-in- charge of the Police Station. On perusal of the charge sheet, it shows that the charge sheet has been forwarded by one Sri.Narasimha Komar, DIG of Police, Head of the Branch, C.B.I. Banking Securities & Frauds Cell, Bangalore and the same was filed by one Sri.Jaboy.K.R., Inspector of Police, CBI, BS & FC, Bangalore. It shows that the charge sheet though has 14 been filed by the Police Inspector, but the same was forwarded by the higher officer.
13. As per Section 17(a) of the P.C.Act, the Inspector of Police is authorized to investigate the matter in the case of the Delhi Special Police Establishment and the same point has been clarified by this court in the case of Ashok Kumar -vs- CBI/ACB (supra) wherein at para-22, this Court has held as under:
"22. In this case, the offence alleged against the accused is one punishable under the provisions of the Prevention of Corruption Act read with provisions of Indian Penal Code. Section 17 of the Act specifies the authorized person to investigate the matter. In respect of the officer under Delhi Special Police Establishment Act, clause (a) of the said Section empowers the investigation of the offences under the Act by the Inspector of Police. It is in consonance with the same, even the provisions of Chapter VII of the Manual dealing with the functions of investigating branches/units specifies the duties and responsibilities of Senior Superintendent of Police or Superintendent of Police under Clause 15 7.9, who is the person responsible for the functioning of the unit or a branch. However, Clause 7.16 referring to the powers of the Inspectors and Sub-Inspectors empowers the Inspectors and Sub-Inspectors of the Branches or the Units to investigate and gather the information in respect of the cases allotted to them. It is on consonance with the same, Clause 10.28 of the CBI Manual refers to the filing of charge sheet, it specifically refers that the Investigating Officer, who investigates the matter, shall prepare a draft charge sheet and submit it to the Superintendent of Police and the Law Officer for the purpose of examination of the same. It is thereafter the Superintendent of Police would forward the final report. Thus, reading of the provisions of Section 17 of the Act and the procedure contemplated under Chapter XII of CrPC and the provisions of CBI Manual makes it abundantly clear that, it is not necessary that the investigation should be done only by the officer in charge of the Police Station, but it could also be done by any other officer, as stated therein. In this case, the investigation is conducted by the Inspector, who is subordinate to Superintendent of Police and has prepared the draft charge sheet in terms of Clause 10.28 of 16 the CBI Manual and in the light of the provisions of the Code of Criminal Procedure, provisions of the Act and the CBI Manual, no fault could be found as regard to the investigation conducted by the Inspector of Police. It is not the case of the petitioner that the Inspector was not authorized to investigate."
14. In another case in T.R.Manjunath Hegde - vs- CBI/SPE (supra), similar view has been taken by this court. Admittedly, the charge sheet is filed by the CBI and the Police Inspector is authorized under the P.C.Act. The petitioners are the borrowers and they are not public servants. Petitioners cannot have power to challenge the sanction order. Though the Counsel for the petitioners has contended that the C.B.I.Manual has authorized only Senior Superintendent of Police shall file the charge sheet, but it is held by the Co-ordinate Bench of this court that C.B.I. Manual is only a guidelines and the Act prevails over the same and the C.B.I. Manual is not binding in respect of filing of the charge sheet as under the provisions of P.C.Act. In view of the findings 17 of this court in the above cases, the contention of the learned Counsel for the petitioners that the Police Inspector is not competent to file the charge sheet before the court is not sustainable under the law. Therefore, the revision petitions are devoid of merits and are liable to be dismissed. Thus, there is no illegality or arbitrariness committed by the trial court in holding that there is sufficient material to frame charges against the petitioners - accused including accused Nos.1 and 3 for the alleged offences punishable under Sections 120B read with Section 420 of the IPC and Sections 13(2) and 13(1)(d) of the P.C.Act. Therefore, all the revision petitions are liable to be dismissed.
Accordingly, the revision petitions are dismissed. Office to send back the Trial court records to proceed with the trial.
Sd/-
JUDGE KNM/-