Vijay Kumar Kushwaha vs Secretary (Home) State And Others

Ravindra Maithani, J

All the above matters originate from the FIR No. 667 of 2015 under Sections 420, 467, 471, 409 and 120-B I.P.C. at Police Station ROP Industry, District Haridwar lodged by the petitioner Vijay Kumar Kushwaha. Therefore, all these petitions are taken up together and being disposed of by this common judgment.

Facts:-

The facts necessary to recapitulate and appreciate the controversy at hand, briefly stated, are that on 15.09.2015, FIR No.667 dated 15.09.2015 was lodged by the petitioner Vijay Kumar Kushwaha, against the officers of the South Indian Bank, Branch Dehradun (for short "the Bank") and other persons under Sections 420, 467, 471, 409 and 120-B I.P.C. at Police Station ROP Industry, District Haridwar (for short FIR No. 667 of 2015). In this matter, after investigation, the Investigating Officer, submitted a Final-Report No. 80 of 2016. While closing the matter, the Investigating Officer recorded as hereunder:-

"Sir, it is submitted that the above case was initiated at Police Station Kharkharee, Kotwali Nagar Haridwar on 15.09.2015 based on the complaint made by the complainant. Initial investigation was conducted by Shri Vijendra Singh Kumar. On the orders of SSP, investigation was transferred to SIS Branch and given to me SI. With reference to the allegations, detailed investigation pertaining to FIR 389/12 has been transferred to CBI vide Order of Hon'ble Uttarakhand High Court Nainital passed in Writ Petition No. 182/2013. CBI has registered FIR RCBD1/2015/E/0008 and the matter is pending investigation. All the accused and facts are the subject matter of the FIR No. 389/2012 of Janpad Dehradun & CBI FIR, and is a part of CBI seizure memo. All the facts are being investigated by CBI. Therefore, investigation in this matter is not proper. Thus, investigation in the matter vide FR No. 80/16 is closed. Please accept the FR."

When final-report was submitted, it was registered as Miscellaneous Application No. 110 of 2017, Vijay Kumar Kushwaha Vs. unknown, in the court of learned Chief Judicial Magistrate/1st Additional Civil Judge (Sr. Div), Haridwar (for short "the case"). Notices were issued to the petitioner Vijay Kumar Kushwaha, who was the first informant in FIR No. 667 of 2015. A protest petition was filed, which was allowed vide order dated 07.04.2017 and the court ordered as hereunder:-

"Final report filed by the investigating officer is cancelled and the protest application filed by the applicant is allowed. Therefore, SHO Kotwali Nagar, is directed to conduct further investigation in the present case and submit report before the Court.?

Writ Petition Criminal No. 527 of 2016

This writ petition under Article 226 of the Constitution of India has been filed by the petitioner for expeditious and fair investigation in FIR No. 667 of 2015

Writ Petition Criminal No.1586 of 2016

The writ petition under Article 226 of the Constitution of India has been filed by the petitioner for transfer of the investigation of FIR No. 667 of 2015 to the CBI.

Writ Petition (Criminal) No. 1116 of 2016

The writ petition under Article 226 of the Constitution of India has been filed by the petitioners for quashing the FIR No.667 of 2015 as well as for stay of their arrest.

Criminal Misc.Application No. 522 of 2017

Instant petition under Section 482 of the Code of the Criminal Procedure, 1973 (hereinafter referred to as "the Code") has been filed against the order dated 07.04.2017 passed in the case, by which further investigation has been ordered in FIR No. 667 of 2015.

Vide order dated 18.04.2017, this Court, while allowing the petition under Section 482 of the Code, set-aside the order dated 7.04.2017, passed in the case. But, in its order dated 18.04.2017, this Court gave liberty to the respondents to move for recall of the order, if aggrieved. The order dated 18.04.2017 was subsequently recalled by order dated 26.06.2017 of this Court. This is how, Criminal Miscellaneous Application No. 522 of 2017, under Section 482 of the Code, is pending before this Court. Even prior to that, the Writ Petition (Criminal) No. 1116 of 2016 was filed for quashing the FIR No. 667 of 2015. This is a chronology of the events and facts under which arguments will now be appreciated.

Now, what emerges from all the above facts is that the petitioner Vijay Kumar Kushwaha filed an FIR No. 667 of 2015 on 15.09.2015 and thereafter, Writ Petition (Criminal) No. 527 of 2016 has been filed for its fair investigation. Subsequent to it, Writ Petition (Criminal) No. 1586 of 2016 has been filed for transferring the investigation of FIR No. 667 of 2015 to the CBI. Meanwhile, Police, after investigation, submitted the final report, which was the basis of the case, in which, on 07.04.2017, Court ordered for further investigation in FIR No. 667 of 2015. That order dated 07.04.2017 has been challenged by the Bank under Section 482 of the Code, in Criminal Misc. Application No. 522 of 2017.

Arguments

In Writ Petition (Criminal) No. 1116 of 2016 and Criminal Misc. Application No. 522 of 2017, learned Senior Counsel for the petitioners raised the following points:

10.1. In the year 2012, FIR No. 389 of 2012 was lodged by the Senior Manager of the Bank with regard to the fraud committed in the Bank. FIR No. 389 of 2012 was transferred to the CBI for investigation and CBI had already submitted the charge sheet, in which, cognizance has been taken. In FIR No. 389 of 2012, the CBI conducted investigation with regard to each and every aspect, pertaining to fraud in the Bank. Therefore, it is argued that now continuance of investigation on the basis of FIR No. 667 of 2015 deserves to be quashed, it has no meaning; it is not permissible under the law, therefore, FIR No. 667 of 2015 and order directing further investigation, dated 07.04.2017, passed in the case, deserves to be set aside.

10.2 Reference has been made to certain documents, filed by the CBI, apprising the Court that every issue, which is raised in the FIR No. 667 of 2015, had already been looked into, while looking in to the FIR No. 389 of 2012. It is also argued that FIR No. 667 of 2015 is nothing but a retaliatory FIR.

On behalf of petitioner Vijay Kumar Kushwaha, learned counsel would argue that:

11.1 FIR No. 667 of 2015 has no relation with the FIR No. 389 of 2012. Contents of both the FIRs are distinct. Reference has also been made to order dated 12.01.2017, passed in Civil Misc. Application No. 21 of 2017, Amit Parmar Vs. State of Uttarakhand and another, in which, the court observed as hereunder;

"The Court has gone through the contents of both the FIRs. The facts of both the FIRs are entirely different and distinct. There is no similarity in the allegations. The complainants are different. The amount involved is different. The subject matter of the FIR No. 389 of 2012 is misappropriation of sum of Rs.4.00 crores. The present FIR pertains to misappropriation of sum of Rs.2.50.92,510/-."

11.2 The petitioner Vijay Kumar Kushwaha himself was defrauded by the bank and now if investigation in FIR No. 667 of 2015 is not allowed to continue, it would be stopping the investigation of the offence committed by the Bank Officers.

11.3 Petitioner Vijay Kumar Kushwaha's money has been misappropriated by the Bank, therefore, FIR No. 667 of 2015 should be investigated properly.

11.4 After investigation in FIR No. 667 of 2015, the Investigating Officer could not have filed final report recording that CBI is investigating the matter. Investigating Officer ought to have forwarded the matter to the State Government for transferring the case to the CBI.

11.5 This FIR No. 667 of 2015 has never been transferred to the CBI, therefore, they did not investigate the allegations made, therein.

11.6 Order dated 07.04.2017 has been passed in the case, on the protest petition and prospective accused has no right to challenge such an order. In this regard, learned counsel placed reliance upon the principles of law, as laid down in the cases of Chinnaraj alias R. Padmaban Vs. Raveendran alias Ravi and others, Crl. R.C.(MD). No. 669 of 2007, Madhurai Bench of Hon'ble Madras High Court and State of U.P. Vs. Ranjit Singh, (1999) 2 SCC 617. Hon'ble Allahabad High Court Full Bench.

11.7 In Ranjit Singh (supra), the Court, inter alia, held that before accepting or rejecting a final report prospective accused cannot be afforded an opportunity of being heard.

11.8 In the case of Chinnaraj @ R.Padmaban (supra), Hon'ble Court, inter alia, held that in the case of ordering further investigation by the Magistrate, the accused has no right to challenge it before the higher fora, but if the prayer for further investigation is rejected, de facto complainant could agitate it before higher forum and in such an event, law envisages reason to be stated therein only.

It is true that before an accused is summoned, the trial court should not give opportunity to the prospective accused. But this is a different case. Here the prospective accused has not assailed the order dated 07.04.2017, on the ground of any merits of the case. The ground for challenge is that whatever allegations have been leveled in the FIR, in which, further investigation is ordered, those allegations have already been investigated by the CBI in FIR No. 389 of 2012. Therefore, this Court is of the view that under these facts, it cannot be said that the petition for challenging order dated 7.04.2017, passed in the case, is not maintainable. If, this fact would have come to the notice of the court, perhaps the Court, on its own, would have considered this aspect. Therefore, this Court is of the view that under the peculiar facts and circumstances of the case, the petition for challenging the order dated 07.04.2017, passed in the case, is maintainable.

For appreciating controversy, it would be apt to look into the allegations, which have been leveled in the FIR No. 389 of 2012. FIR No. 389 of 2012 was filed on 23.11.2012 by the Senior Manager of the Bank. According to it, internal investigation of the Bank revealed that the proceeds of the fraud were deposited in the account of the petitioner Vijay Kumar Kushwaha and one other person. For this, pay orders were forged and were deposited in their accounts. It relates to pay orders each amounting to Rs.4 crores. It is this FIR, in which, after investigation, Police on 27.08.2014 filed charge sheet against officers of the Bank, namely, Manoj Kumar and Jacob Kovoor. But thereafter, the matter was transferred to CBI for investigation. It would be appropriate to look into that order, which, the court had passed in Writ Petition (Criminal) No.182 of 2013, South Indian Bank Vs. State of Uttarakhand and others, while transferring investigation of the FIR No. 389 of 2012. Paras 8 & 9 of the order are reproduced as hereunder:

8) All issues arising out of lapses in the functioning of the private sector banks relating to corruption, malpractices, frauds should be property investigated. Timely and appropriate action should be taken in the cases involving fraud. Instances of frauds, such as unauthorized credit facilities extended by the bank for illegal gratification, negligence and cash shortages, cheating, forgery etc. must be properly investigated. In dealing with the cases of fraud / embezzlement, banks should not merely be actuated by the necessity of recovering expeditiously the amount involved, but should also be motivated by public interest. In the instant case, the allegation is that the amount to the tune of Rs. 34 crores was siphoned off fraudulently. Such perpetrators of fraud, including Bank Officers, should not be permitted to take everybody for a ride.

9) The investigation pertaining to FIR no. 389 of 2012, lodged at police station, Kotwali, Dehradun is, therefore, handed over to CBI to ensure fair, impartial and thorough investigation. Needless to say that if the Bank Officers / officials are also found guilty, during the course of investigation, CBI will be at liberty to proceed against them in accordance with law.

(emphasis supplied)

Perusal of the order reveals that though the court transferred the investigation in FIR No. 389 of 2012 but, CBI was directed by the Court to ensure fair, impartial and thorough investigation. At this moment only, it would be appropriate to look into the allegations, which have been leveled by petitioner Vijay Kumar Kushwaha, in FIR No. 667 of 2015. It would be apt to reproduce the concluding paragraphs of the FIR, which is as hereunder:-

"Therefore, sir, it is kindly requested that the conspiracy and forgery which has been hatched by the officers of South Indian Bank Ltd. to earn more profit from the amount of Rs.70,00,000/- of applicant and to cause the injury to the applicant and the pay order No. 157753 dated 15.05.2012 for Rs.4,00,00,000/- huge amount and pay order No. 157753 to give the undue advantage by the officers of bank to Uttarakhand State Cooperative Bank Ltd. and to cause loss and to falsely implicate to the applicant by the South Indian Bank Ltd. and with the conspiracy and forgery by the officers of bank a false account No. 047165100000047 for Rs.3,29,88,881/- and another account joint No. 047168100000048 for Rs.7,67,79,918/- were opened in the name of other persons for the purpose to give undue advantage. Rs.19,26,56,917.00 huge amount from the account of applicant was withdrawn from the relevant account of applicant and with the conspiracy and on 20.03.2015 the forge account no. 0471658000000009 for Rs.15,60,52,018 which was opened on the basis of forge documents by the bank officer of South Indian Bank Ltd. with CIBIL company with the conspiracy to earn more profit for themselves to the cause loss the reputation of applicant, a preliminary report may kindly be lodged for getting justice of the applicant and the culprits may be punished and a strict punishment may be given to these following culprits."

A bare perusal of it also reveals that it relates to a pay order No. 157753 as well as opening of three Bank Accounts No. 047165100000047, 047168100000048 and 0471658000000009 and according to the FIR lodged by the petitioner Vijay Kumar Kushwaha, the pay order No. 157753 was issued to cause loss and injury as well as for falsely implicating the petitioner Vijay Kumar Kushwaha.

According to this FIR No. 667 of 2015, three forged accounts were also opened by the bank officers in the process. This FIR names many bank officers and others as accused. It is true that in Civil Miscellaneous Application No. 21 of 2017, Amit Parmar Vs. State of Uttarakhand and others, on 12.01.2017, this Court has looked into both the FIRs No. 389 of 2017 and 667 of 2015 and observed that the facts of both the FIR's are factually different and distinct and there is no similarity in the allegations. The Court further observed that it cannot be held that subsequent FIR is counter-blast to the earlier FIR. This observation was made on 12.01.2017. What material CBI had collected till then was not placed before the Court.

As stated, according to the FIR No. 389 of 2012, by way of fraud two pay orders each amounting to Rs.4 crore were deposited in the account of petitioner Vijay Kumar Kushwaha and one another person. Whereas, petitioner Vijay Kumar Kushwaha in FIR No. 667 of 2015 mentions that under a conspiracy, to falsely implicate him, Pay Order No. 157753 was prepared. It may be noted here that same pay order has been referred to in FIR No. 389 of 2012. In addition to it, with regard to three bank accounts also the petitioner Vijay Kumar Kushwaha writes in FIR No. 667 of 2017. False opening of three bank accounts is something which is addition in FIR No. 667 of 2017 but, these all facts have to be understood under the umbrella of this Court's order dated 11.09.2014, which was passed in Writ Petition Criminal No. 182 of 2013. This Court directed the CBI to conduct thorough investigation. Para No. 9 of the order dated 11.09.2014 of the court, as reproduced, hereinbefore, opens the mind of the Court while passing the order dated 11.09.2018. Each and every aspect was required to be investigated.

In Writ Petition Criminal No. 1586 of 2016, by which petitioner Vijay Kumar Kushwaha desires handing over the investigation in FIR No. 667 of 2015 to the CBI, CBI filed a counter-affidavit and in this counter affidavit, which is signed by Arun Kumar Gupta, Deputy Superintendent of Police, CBI has in Para no.6 categorically stated about the bank account which according to the petitioner Vijay Kumar Kushwaha were falsely opened. In his affidavit Arun Kumar Gupta, Deputy Superintendent of Police, CBI deposed that these accounts were not loan accounts but suit file accounts for the purpose of filing a recovery suit in DRT against the petitioner Vijay Kumar Kushwaha. No debit and credit transaction has ever taken place in these accounts. These were just opened for the purpose of internal accounting by the bank. In his affidavit Arun Kumar Gupta, Deputy Superintendent of Police, categorically states that investigation in FIR No. 389 of 2012 has been conducted to the fraud committed in South Indian Bank, Dehradun Branch for the period from 2007 to 2012, therefore, according to the CBI, subject matter of FIR No. 667 of 2015, was also part of the investigation of the CBI and there is no need to register a separate FIR regarding the allegations leveled in FIR No. 667 of 2015.

Before proceeding further, it would be appropriate to have a look on the conclusion of the CBI which they drew after investigation in FIR No. 389 of 2012. As stated, mainly FIR No. 389 of 2012 was related to pay orders but CBI in its charge-sheet No. 5 dated 29.12.2017 (for short "CBI charge-sheet"), after thorough investigation, concluded on various other issues. They include the following:-

1) Issue of 130 pay orders.

2) Inward "clearing" cleared without debiting account of the concerned party relating to 28 cheques.

3) Debits through 21 fake cheque entries.

4) Outward clearing crediting a customer's account even though instrument is not presented in clearing relating to 128 cheques.

5) Non-crediting the customers account after receiving instruments on 42 occasions.

6) Cash received from other banks and not entered in the bank records.

7) Fake cash payments shown to have been issued to other banks without any demands from the banks.

8) Cash withdrawn from the Bank and debited fraudulently to due from Bank account and reversed by debiting contra SBI account.

9) Creation of fake loan accounts against deposits of the customers.

10) Loan against the FDRs of Anil Mittal and his family members.

11) RTGS of Rs.10 crores to Urban State Cooperative Bank Ltd.

In para 24.150, the Investigating Officer of FIR No. 389 of 2012, categorically discussed the documents, which the petitioner Vijay Kumar Kushwaha submitted. All the details have further been discussed by the Investigating Officer in the CBI charge-sheet and in para 24.159, the Investigation Officer concludes as hereunder:

"24.159. Shri Vijay Kumar Kushwaha also filed Criminal Writ Petition No. 1586/2016 in the Hon'ble High Court of Uttarakhand at Nainital for handing over the investigation of FIR No. 667/2015 to CBI. The allegations mentioned in that FIR have been looked into during the investigation of the present case."

Broadly, two issues have been raised in FIR No. 667 of 2015 by the petitioner Vijay Kumar Kushwaha namely;

1) Conspiracy by the Bank Officers to cause loss and injury to the petitioner Vijay Kumar Kushwaha, reference has been made to Pay Order No.157753 of Rs.4 crore and 2) Opening of forged accounts.

As stated, hereinbefore, issue of pay orders have also been an issue in FIR No. 389 of 2012, which has been extensively investigated by the CBI. Insofar as, the issue of forged bank accounts is concerned, it has also been investigated by the CBI and it is not done by the CBI on their own but, this Court, while transferring the investigation in to the allegation of FIR No. 389 of 2012 to the CBI, directed the CBI to conduct "thorough investigation", which they did.

On the basis of the foregoing discussion, this Court is of the view that, in fact, whatever allegations have been leveled by the petitioner Vijay Kumar Kushwaha in FIR No. 667 of 2015 had already been, extensively investigated by the CBI and submitted the charge sheet. Therefore, there is no occasion now to continue investigation on FIR No. 667 of 2015. FIR No. 667 of 2015 as well as impugned order dated 07.04.2017 passed by learned court below in the case deserves to be quashed and set aside. Accordingly, Writ Petition (Criminal) No. 527 of 2016 and Writ Petition (Criminal) No. 1586 of 2016 deserves to be dismissed and Writ Petition (Criminal) No. 1116 of 2016 and Criminal Misc. Application No. 522 of 2017 deserve to be allowed.

Writ Petition (Criminal) No. 527 of 2016 and Writ Petition (Criminal) No. 1586 of 2016 are dismissed.

FIR No. 667 of 2015 under Sections 420, 467, 471, 409 and 120-B I.P.C. at Police Station ROP Industry, District Haridwar is hereby quashed.

Order dated 07.04.2017, passed in Misc. Application No. 110 of 2017, Vijay Kumar Kushwaha Vs. unknown, in the court of learned Chief Judicial Magistrate/1st Additional Civil Judge (Sr. Div.), Haridwar is hereby quashed.

Accordingly, Writ Petition (Criminal) No. 1116 of 2016 and Criminal Misc. Application No. 522 of 2017 are allowed.