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12 Brief allegations in the report are as follows:

(a) During the period 2018-19, Shri Rana Kapoor, the Promoter Director and the then CEO of M/s. Yes Bank Limited (for short, 'Yes Bank') entered into a criminal conspiracy with the Applicant Kapil, who was the Promoter Director of DHFL and others for 10 2.BA-ST-1924-1925-2020 extending financial assistance to DHFL by Yes Bank in lieu of substantial undue benefit to himself and his family members through the Companies held by them.

(b) Between April to June, 2018, Yes Bank invested Rs.3700/- Crores in the short-term debentures of DHFL. Simultaneously the Applicant Kapil paid a kickback of Rs.600/- Crores to Shri Rana Kapoor and his family members in the garb of builder loan of Rs.600/- Crores given by DHFL to DOIT, which was controlled by family members of Shri Rana Kapoor. The said loan was sanctioned on the basis of mortgage of a sub-standard property of very meager value.

(c) Yes Bank sanctioned a loan of Rs.750/- Crores which was deposited in the account of BRPL, which was a group company of DHFL Group controlled by both the Applicants. Rs.118 Crores paid to Yes Bank as processing fees and rest of the amount was transferred to the Group Companies controlled by the Applicant - Dheeraj and from those accounts the amount of Rs.632/- Crores was transferred in the account of RKW Developers and then to the account of M/s. KYTA Advisors Private Limited owned and controlled by the Applicants. Thus, the loan of Rs.750 Crores 11 2.BA-ST-1924-1925-2020 sanctioned to BRPL was not utilized for the SRA project which was undertaken by BRPL and for which the amount was sanctioned. . These were the basic allegations apart from other allegations. The report gives details of sanctioning, disbursing and utilization of such loan amounts. It also narrates as to how there was irregularity in sanctioning the loans and how the mortgaged property was not sufficient to cover the loan. 13 The learned Magistrate held that the investigation papers and all documents were filed before the Special Judge for CBI at Greater Bombay on 25.6.2020 and 9.7.2020. The prosecution had filed report as contemplated under Section 173 of Cr.P.C. within the prescribed time. Mere delay in sending documents through the Registry of Special Judge, CBI and delay on the part of the Court Clerk to keep it before the learned Magistrate for taking cognizance would not mean that the charge-sheet was not filed.

19.2 Dr. Singhvi submitted that the subterfuge used by the investigating agency is obvious in the present case. In the FIR, 17 2.BA-ST-1924-1925-2020 there was neither any mention nor any ingredient was shown concerning Section 409 of IPC. Before filing of the report, remand was obtained on eight occasions and on none of these dates the ingredients of Section 409 of IPC are mentioned. In the entire report from Paragraph-1 to 50, there was no mention of Section 409 of IPC, but, only in Paragraph-51 there is a vague reference to that section without specifying how it is attracted. He submitted that in the facts of the case there cannot be application of Section 409 of IPC. In this case, as per the allegations, Yes Bank has given loan to DHFL, then, DHFL becomes owner of that amount and DHFL cannot misappropriate its own amount. Same consideration applies to the loan given by DHFL to DOIT. In both these transactions the ingredient of conversion after entrustment is absent. In support of these submissions regarding Section 409 of IPC, Dr. Singhvi relied on following judgments : S [i] Velji Raghavji Patel Vs. State of Maharashtra12. [ii] CBI Vs. Duncans Agro Industries Ltd.13. 19.3 Dr. singhvi further submitted that it was duty of the investigating officer to keep the Court informed about the 12 (1965) 2 SCR 429 13 (1996) 5 SCC 591 18 2.BA-ST-1924-1925-2020 escalation of any offence to a higher degree and, therefore, the Investigating Officer was duty bound to inform the Court as to how the offence escalated to Section 409 of IPC in this case. In support of this submission, Dr. Singhvi relied on the judgment in the case of Sahyantan Chatterjee Vs. State of West Bengal14 and Sathyamoorthy Vs. SP15 19.4 Dr. Singhvi also contended that Sections 409 and 420 are mutually irreconcilable and he relied on few judgments of different High Courts in support of this proposition.

77 Dr. Singhvi contended that Yes Bank gave loan to DHFL. Then DHFL gets complete dominance over the property. The amount was given as a loan. Therefore, there could not be any criminal breach of trust committed by either of the accused. Similarly when amount was given by DHFL to Rana Kapoor's concerns even there was no criminal breach of trust. Both these entities and accused had no grievance against each other and hence no offence of Section 409 of IPC is made out.