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Judgment
M. Jeyapaul, J.—The Criminal Original Petition No. 14679 of 2001 is filed by the seventh accused in C.C. No. 225 of 1997. The third
accused in the said case has filed Criminal Original Petition No. 31357 of 2002. Both the Criminal Original Petitions are filed seeking quashment of
the criminal proceedings in C.C.No. 225 of 1997. Both the petitioners have been charged for offences under Sections 120(b) r/w. Section 420,
468 and 471 of I.P.C. and Section 13(2) r/w. 13(1)(d) of the Prevention of Corruption Act.
The allegation as against the third accused is that he introduced the first and second accused to avail DABP credit facilities by A.1 and A.2, by
furnishing fabricated documents to the Indian Bank. The charge as against the seventh accused is that he facilitated fabrication of documents
produced to the said Bank for availing credit facilities.
The petitioners have contended that in as much as the entire loan transaction was liquidated by the borrowers and a letter was addressed by the
Bank to the prosecuting agency to withdraw the case, the charges framed against the petitioners will have to be quashed.
The third accused has contended that he had no incriminating role in the matter of securing credit facilities from the Indian Bank. The seventh
accused would contend that he being an employee of the Company of the first and second accused, discharged only his official duty and that
therefore, no criminal liability can be fastened on him.
The learned counsel appearing for the third accused would submit that the withdrawal letter shot off by the top brass of the Indian Bank had not
so far evoked any positive response from the prosecuting agency. He would further submit that the name of the third accused did not figure in the
First Information Report. It would be unjust to ask the third accused to face the trial just because he happened to introduce the first and second
accused to the Indian Bank for the purpose of credit facility accommodation, it is contended.
The learned counsel for the seventh accused would contend that an employee who just discharged his official function has been unnecessarily
roped in this case. Though the name of Plastimar Products were changed to Austal Plastics Private Limited, Plastimar products retained its identity
and account was opened for the purpose of efficient commercial transaction. The First Information Report did not visualise any criminal role of the
petitioner who is just an employee of the aforesaid firm, it is submitted by the learned counsel for the seventh accused.
The learned Special Public Prosecutor for CBI would submit that the withdrawal of a case is a prerogative of the Prosecutor with the consent of
the Court in a deserving case. When there is serious allegation of fabrication of records and cheating the respondent has not intended to withdraw
the whole proceedings, despite the fact that the loan amount was already settled by the borrowers in this case. It is his vehement submission that
when the First Information Report and the statements recorded u/s 161 of Cr.P.C., prima facie disclose that there is commission of offence by A.3
and A.7 also, the question of relieving them from charges, does not arise for consideration.
The Court will have to scan the materials and find whether there is any case made out prima facie as against the third accused and the seventh
accused, who are before this Court, seeking quashment of the criminal proceedings. The trial Court is empowered to frame the charges, if there
are sufficient materials, to indicate the commission of the offence. Only in a case where there is no legal evidence at all as against the accused, the
Court has to exercise its discretion to relieve the accused from the case. If the allegations made against the accused by the prosecution by its face
value indicates the commission of the offence, then the trial Court has no other go except to frame the charges.
In the complaint lodged by the Vigilance Department attached to the Central office of the Indian Bank, it has been specifically stated that the first
accused V. Subramanian dubiously omitted the phrase ""Private Limited"" from M/s. Plastimar Products Private Limited and having declared himself
as its sole Proprietor applied for bill purchasing facility. It has been further alleged in the complaint that the first accused had made it appear that
M/s.Plastimar Products supplied plastic materials to M/s.Austal Plastics Private Limited. The first accused was the Commercial Director of the
said M/s. Austal Plastics Private Limited. The bills drawn on M/s.Austal Plastics Private Limited were not settled. The further serious allegation is
that when there were no firms in the name of M/s. Deccan chemical agencies and M/s. Industrial Polymers, the first and the second accused have
chosen to draw bills on them also and the said bills also were not settled.
It is not as if the First Information Report did not indicate the role of other persons. It has been specifically alleged that the role of the other
private individuals in the commission of the offence will have to be detected.
The First Information Report just gives over all picture of the offence of cheating in order to set law in motion. The petitioners cannot claim
immunity from prosecution as their names in the above facts and circumstances did not find a place in the First Information Report.
The witnesses examined by the investigating agency have categorically spoken to the effect that the third accused also joined the first and
second accused in approaching the Indian Bank, seeking credit facility accommodation. Had not the third accused introduced the first and second
accused who allegedly lacked credit worthiness, the Bank would not have lent loan at all. The prosecution is now attempting to establish that the
third accused is completely aware of the gameplan of the first and second accused who came out with alleged dubious names for the purpose of
securing credit facility.
Of course, the seventh accused was working as Assistant under Austal Plastics Private Limited, but there is material to show prima facie that
he signed the fabricated accounts, returns, invoices and delivery challans, furnished to the Indian Bank for the purpose of availing credit loan
facility. The third accused also joined the first and second accused in misusing the funds with the dishonest intention of defrauding the Bank, it has
been further alleged by the witnesses. The specific allegation is that the third accused along with the first and second accused got himself enriched
out of this illegal transaction.
If such a serious allegation of the prosecution remain unchallenged without any rebuttal, it would definitely end in conviction of the accused A.3
and A.7. Under such circumstances, the trial Court has to frame the charges as against them.
In the matter of Naresh Chandra and Anr. v. C.B.I. (Criminal Misc. (Main) No. 2002), the Delhi High Court has observed that where there
was no overt or covert allegations against the accused for granting loan based on certain extraneous considerations or gratification and where the
consent decree was passed in a civil suit filed for recovery of the amount due to the complainant, the Court can very well quash the proceedings. In
the said unreported case, it has been further observed that once such commercial transactions are decided by way of compromise by the loaning
Bank, the matter should be put at rest unless allegations of forgery, fraud and cheating are writ large on the face of the facts and circumstances of a
particular case.
In the authority reported in Central Bureau of Investigation, Spe, Siu (X), New Delhi v. Duncans Agro Industries Ltd., Calcutta AIR 1996
SCW 3019 wherein, the Honourable Supreme Court has held that the compromise decree passed in the suit instituted by the Bank for all intents
and purposes amounted to compounding of the offence of cheating.
That was a case where the Bank had not filed any case as against the debtor. Further, the investigation was not completed for quite a long
time.
In this case, there is specific allegation of criminal conspiracy, fabrication of records and cheating as against the private individuals also.
Therefore, the compromise arrived at between the Bank and the borrower will not nullify the charge framed by the Court as against these private
individuals who had allegedly played specific role in this case.
The First Information Report has not been filed requesting the Investigating Agency to recover the amount due to the banking industry. A
specific request has been made to the Investigating Agency to unravel the fraud having been perpetrated by the firm and the individuals concerned.
The withdrawal of a case is the prerogative of the Public Prosecutor, of course with the nod of the Court concerned. The accused cannot
dictate terms with the prosecuting agency to withdraw the case as the amount was settled by the borrowers. If the borrowers were real borrowers,
the Court may consider the plea of the petitioners, but the borrowers had allegedly come out with totally fraudulent credentials in order to dupe the
Banking industry. When the prosecution is reportedly armed with sufficient materials to establish to the hilt, the allegation of various offences, there
can be no question of withdrawal of the case by the prosecution.
It is found that the seventh accused having filed a petition seeking discharge and received an order of dismissal, moved this Court with the
Criminal Original Petition, seeking quashment of the whole criminal proceedings, without actually challenging the final order passed by the trial
Judge in the discharge application.
It is found that P.W.2 is virtually in the box. If at all the third accused had any grievance, he would have filed an application to discharge him
from the proceedings even before the trial Court framed the charges. Both of them have come to this Court after the trial has begun.
As there is sufficient material, at any rate, to frame the charges as against the petitioners, the Court finds that the criminal proceedings as against
the petitioners cannot be quashed.
In the result, the above Criminal Original Petitions stand dismissed. Consequently, the connected Criminal Miscellaneous Petition Nos. 5049,
5050 of 2001, 12780 and 12781 of 2002 are also dismissed.