Bajrang Lal Gupta @APPELLANT@Hash Union of India

This criminal misc. petition under Section 482 Cr.P.C. has been filed on behalf of the petitioner being aggrieved with the order dated 12.7.2017 passed

by Special Judge, CBI Cases, Jodhpur (for short ‘the trial court’) in Criminal Case No.10/2012.

Brief facts of the case are that the petitioner is facing trial before the trial court for the offences punishable under Sections 420, 467, 468, 471, 477-A

IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. The allegation against the petitioner is that when he was

working as a Field Officer at Industrial Area, Sojat City Branch, State Bank of India, he unauthorizedly debited various accounts and credited amount

to his own accounts, his wife’s account, joint account with his wife and to other accounts in the name of persons known to him. It is alleged that

the petitioner has unauthorizedly approved enhanced limits in KCC, CC accounts, home loans, terms loans and car loans without execution/obtaining

relevant documents and, as such, acted beyond the powers conferred on him. It is also alleged that the petitioner prepared vouchers of unauthorized

debits and credits and thereafter posted in the system and passed these vouchers and while passing these vouchers, he withdrew these unauthorized

credits from several accounts by cash withdrawal, remitting funds to persons known to him through RTGS/NEFT, crediting to accounts of persons

known to him, crediting to accounts wherein unauthorized debits were raised earlier and crediting accounts of CC Limit holders of Sojat City Branch.

The prosecution has come up with a case that when the above referred illegal accounts of the petitioner were detected, an enquiry was conducted and

during the course of enquiry, the petitioner accepted making unauthorized transactions in various accounts through his own ID and during the course

of enquiry, he had deposited Rs.70.55 lac in the various accounts. The bank has calculated the total amount misappropriated by the petitioner to the

tune of Rs.1,55,40,800/-.

The petitioner moved an application before the trial court with a prayer for summoning communication transpired between the sanctioning authority

Mr.R.G.Subramaniam, the then Manager of the State Bank of India, New Delhi, who has granted prosecution sanction to prosecute the petitioner to

CBI.

The trial court vide impugned order has dismissed the said application while observing that from a bare perusal of the prosecution sanction order, it is

clear that the officer, who has granted the prosecution sanction, has specifically stated that after taking into consideration the entire material placed

before him including the statements of the witnesses, the material collected during the course of investigation and after applying his mind

independently, he has granted the prosecution sanction. The trial court has also observed that the allegation against the petitioner is to the effect that

he has unauthorizedly enhanced the limits of some loan accounts in the bank and has transferred the said enhanced amount from those loan accounts

to his own account, his wife’s account and in the account of other persons known to him and looking to those allegations the communication,

sought to be summoned by the petitioner is not desirable for just decision of the case.Â

The trial court has observed that the facts mentioned by the petitioner in the application are those facts which can very well be asked from the officer,

who has granted the prosecution sanction during his cross examination.

Learned counsel for the petitioner has argued that the sanction has been given by Mr.R.G.Subramaniam, the then General Manager at the instance of

the CBI and as a matter of

fact, the CBI has furnished a draft sanction to Mr.R.G.Subramaniam and he has granted sanction without independently applying his mind under the

influence of the CBI.

It is contended that the petitioner is required the transcript of those communications to prove his innocence and there is no reason to deny the request

of the petitioner to summon those documents.

In support of his contention, learned counsel for the petitioner has placed reliance on the decision of Atul Kumar Dixit Vs. State of Rajasthan, reported

in 2012 (2) Cr.L.R.

(Raj.) 1097 and S.B. Criminal Misc. Petition No.418/2016 â€" Arjunram Vs. Central Bureau of Investigation, Jodhpur decided on 8.3.2016.

Heard learned counsel for the parties and perused the impugned order.

From the perusal of the impugned order, it is clear that the trial court is of the opinion that the transcription between Mr.R.G.Subramaniam, the then

General Manager of the State Bank of India, New Delhi and the Investigating Agency i.e. the CBI is not necessary and desirable for the just decision

of the case. The trial court has observed that the allegation against the petitioner is to the effect that he has misappropriated money from certain bank

accounts by unauthorizedly enhancing their limits after transferring the enhanced amount to his personal accounts, his wife’s account and the

other accounts known to him. The trial court has observed that looking to the allegations levelled against the petitioner, the communication sought to be

summoned is not at all relevant for the purpose of trial.

It will be useful to refer Section 91 Cr.P.C. at this stage, which reads as under:-

“91. Summons to produce document or other thing.--(1) Whenever any Court or any officer in charge of a police station considers that the

production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this

Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or

power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or

order.

(2) Any person required under this sectionmerely to produce a document or other thing shall be deemed to have complied with the requisition if he

causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall bedeemedâ€

(a) to affect, sections 123 and 124 of theIndian Evidence Act, 1872 (1 of 1872), or the Bankers, Books Evidence Act, 1891(13 of 1891), or

(b) to apply to a letter, postcard, telegramor other document or any parcel or thing in the custody of the postal or telegraph authority.â€​

Section 91 empowers the Court to summon any document or thing which it deems ""necessary or desirable"" for the purpose of any inquiry or trial. If an

accused requests the Court for summoning of some documents, he or she has to demonstrate before the Court that summoning of those documents is

necessary or desirable for just decision of the case. It is for the Court to consider any objection raised by the prosecution about the summoning of the

those documents and if the court finds that the applicants have failed to demonstrate the necessity or desirability for summoning of the said documents,

it should reject the application. While deciding the said request made on behalf of the accused, the court must perform the balancing act between the

interest of the individual and of the society.

This court is of the opinion that the trial court must be allowed a large latitude in the matter of exercise of discretion and unless it demonstrates that

the trial court has failed to exercise its jurisdiction or its action resulted in gross failure of justice, the High Court should not intervene very lightly as a

matter of course or for mere asking.

So far as regarding the judgments relied upon by the learned counsel for the petitioner are concerned, this Court is of the opinion that the same are of

no help to the petitioner.

In Atul Kumar Dixit’s case (supra), the CBI has objected for summoning the communication between the sanctioning authority and it on the

ground that the same is privileged communication under Sections 123 and 124 of the Evidence Act and, therefore, the same cannot be summoned.

This Court while relying on the decisions of the Hon’ble Supreme Court, Kerala High Court and Bombay High Court has held that such

communications cannot be termed as privileged communication. However, in the present case, the CBI has not objected for summoning the

documents on the ground that the same is privileged communication and, therefore, the facts of the above referred case are quite distinguishable.

In Arjunram’s case (supra), this Court court has taken into consideration the fact that the sanctioning authority in its court’s statement has

admitted that he was in receipt of draft sanctioned by the CBI, however in the present case, after passing of the impugned order, statement of

Mr.R.G.Subramaniam has been recorded by the trial court on 18.8.2017 as PW-39 and from the perusal of the certified copy of the said statement, it

is clear that Mr.R.G.Subramaniam has specifically denied that he was in receipt of a draft sanction by the CBI and he has not applied his mind while

granting the prosecution sanction against the petitioner. In such circumstances, the above referred case of Arjunram (supra) is of no help to the

petitioner.

In view of the above facts and circumstances of the case, I do not find any reason for interference in this criminal misc.petition.

Resultantly, this criminal misc. petition being bereft of any force is hereby dismissed. Stay petition is also dismissed.