Vijay Kushwaha & Others vs State And Others

Ravindra Maithani, J

In all these writ petitions and the petition under Section 482 of the Code of Criminal Procedure, 1973, (hereinafter referred to as the Code), the facts are interconnected and common question of law has been raised, therefore, all these petitions are taken up together and being disposed of by this common judgment.

Facts:-

An FIR No. 389 of 2012 was lodged on 23.11.2012 at Police Station Kotwali Dehradun, District Dehradun, under Section 420 I.P.C. (for short FIR No. 389 of 2012). The first informant is Senior Manager of the South Indian Bank, Branch Dehradun (for short "the Bank"). According to it, in respect of a fraud committed in the branch of the Bank, a communication was earlier sent to the Police on 01.08.2012. The Bank conducted internal investigation. Internal investigation revealed that proceeds of two fraudulent transactions were transferred to the Account No. 0075210000724 of the Minocha Furnitures (proprietor Sanjay Minocha) maintained with UCO Bank Pritam Castle, Paltan Bazar Branch, Dehradun by means of pay order No. 157752 dated 15.05.2012 for Rs.4.00 crores only. [Sanjay Minocha, is petitioner in Criminal Misc. Application No.423 of 2018]. According to the FIR, similarly, a sum of Rs.4.00 crores were transferred to the account of Vijay Kumar Kushwaha [(petitioner in Writ Petition (Criminal) No. 15 of 2013, Writ Petition (Criminal) No. 1228 of 2016 and Criminal Misc. Application No.341 of 2018] maintained with Oriental Bank of Commerce, Haridwar, by means of pay order no. 157753 dated 15.05.2012. There are other details in the FIR, as to how, the accounts of petitioners Sanjay Minocha and Vijay Kumar Kushwaha were frozen because the money out of fraudulent transactions was deposited on those accounts. It is this FIR, in which, first, police investigated the matter and submitted a Charge Sheet No. 145 of 2014, on 27.08.2014 against two officials of the Bank, namely, Manoj Kumar R and Jacob Kovoor.

2.1 Pursuant to order dated 11.09.2014, passed by this Court in Writ Petition (Criminal) No. 182 of 2012, investigation pertaining to FIR No. 389 of 2012 was handed over to the CBI. CBI registered FIR No. RCBD1/2015/E2008 dated 10.07.2015 under Sections 120-B, 409, 420, 468 & 471 IPC, District New Delhi (for short CBI FIR dated 10.07.2015) and after investigation, CBI submitted the Charge Sheet No.5 on 29.12.2017, (for short CBI charge sheet) against Manoj Kumar R, Jacob Kovoor, Amrinder Singh Gill, Chandan Kumar, Ashish Sharma and the petitioners Vijay Kumar Kushwaha and Sanjay Minocha. Cognizance was taken on it by the court of Special Judge, CBI on 02.01.2018 and petitioner & others have been summoned in CBI Case No. 3 of 2018, CBI Vs. Manoj Kumar & others (for short "the case")

Writ Petition (Criminal) No. 15 of 2013

2.2 The instant writ petition has been filed for quashing the FIR No. 389 of 2012, and also for direction that the petitioner may not be arrested in connection with the FIR.

Writ Petition (Criminal) No. 1228 of 2016

2.3 Instant Petition under Article 226 of the Constitution of India, has been filed by Vijay Kumar Kushwaha for directing the CBI to include and examine the documents and evidences, which are with the petitioner and also direction to the Investigating Officer to investigate the matter pertaining to CBI FIR dated 10.07.2015 in a fair manner.

Criminal Misc. Application No. 341 of 2018

2.4 This petition under Section 482 of the code has been filed by Vijay Kumar Kushwaha to quash the CBI charge sheet, pending in the court of Special Judge, CBI, Dehradun & summoning order dated 02.01.2018, passed in the case.

Criminal Misc. Application No. 423 of 2018

2.5 Instant petition under Section 482 of the Code has also been filed by Mr. Sanjay Minocha to quash CBI charge sheet filed by the CBI pending in the Court of Special Judge, CBI, Dehradun and summoning order dated 02.01.2018 passed in the case.

2.6 The petitioner Vijay Kumar Kushwaha, firstly, filed a Writ Petition (Criminal) No. 15 of 2013 for quashing the FIR No. 389 of 2012. Subsequent to it, when by an order of this Court, dated 11.09.2014 the investigation was handed over to the CBI. CBI registered CBI FIR dated 10.07.2015 Thereafter, the petitioner Vijay Kumar Kushwaha filed a Writ Petition (Criminal) No. 1228 of 2016 for direction to the CBI to investigate the matter properly. Subsequently, CBI submitted charge sheet no.5 dated 29.12.2017, on which, on 02.01.2018 cognizance was taken in the case and summoning order passed. Criminal Misc. Application Nos. 341 of 2018 and 423 of 2018 both under Section 482 of the Code have been filed by Mr. Vijay Kumar Kushwaha and Sanjay Minocha, respectively for quashing the CBI charge sheet.

Arguments

On behalf of the petitioner Vijay Kumar Kushwaha:-

Learned counsel for the petitioner Vijay Kumar Kushwaha would argue that merely because the charge sheet has been filed, a writ petition for quashing the FIR does not become infructuous. In support of his contention, learned counsel placed reliance upon the principles of law, as laid down in the case of Anand Kumar Mohatta and another Vs. State (Government of NCT of Delhi) Department of Home and another, in Criminal Appeal No. 1395 of 2018, wherein in para 17, Hon'ble Supreme Court held that the High Court can exercise jurisdiction under Section 482 of the Code even when the discharge application is pending with the trial court. Hon'ble Supreme Court has held as hereunder:

"17. There is nothing in the words of this Section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 of Cr.P.C. even when the discharge application is pending with the trial court. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialized into a charge sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court."

3.1. The petitioner has not committed any offence.

3.2. On 15.05.2012, the petitioner deposited Rs.76 lacs in the Bank as margin money/advance money and thereafter, the account payee order no. 157753 of Rs.4 crore was given to the petitioner, which was deposited in the petitioner's account.

3.3. On 31.07.2012, the petitioner was asked by the Bank to execute three documents, which he did execute.

3.4. If on 15.05.2012, the documents were not got executed by the Bank, the petitioner cannot be held responsible for that, more so, he cannot be fastened with any criminal liability. In fact, it is argued that the Bank in other proceedings categorically admitted that on 31.07.2012, the petitioner executed the documents. The Bank, fraudulently, without any consent of the petitioner, opened the bank account on 29.08.2012.

3.5. The prosecution based on FIR No. 389 of 2012 is malicious, because it is argued that three cheques issued by the petitioner were not credited into the account of the beneficiaries, though they were debited from the account of the petitioner Vijay Kumar Kushwaha, for which an FIR was lodged by the petitioner against the then Bank Manager, Amit Parmar. In that matter, after investigation, charge sheet has been submitted.

3.6. The petitioner has never denied his liability under the pay order in question. He accepts his liability.

3.7. The petitioner has not conspired with any of the Bank Officers.

3.8. The petitioner has not committed any offence. Simply as a customer, he was dealing with the bank and if anything wrong had happened with the bank, the petitioner cannot be held responsible for it.

3.9. In support of his contention, learned counsel for the petitioner placed reliance upon the principle of law, as laid down in the case of State of Haryana and others Vs. Bhajan Lal and others 1992 Supp (1) SCC 335.

On behalf of the petitioner Sanjay Minocha, in Criminal Misc.Application No. 423 of 2018:

Learned counsel adopts the arguments advanced by learned counsel for the petitioner Vijay Kumar Kushwaha. It is further argued by the learned counsel that petitioner is simply a customer of the Bank and when he was asked to execute the documents, in fact, he mortgaged his property worth Rs.13.00 Crores. He has not committed any offence.

On behalf of CBI

Both the petitioners Vijay Kumar Kushwaha and Sanjay Minocha conspired with the Bank officials to fraudulently obtain pay order of Rs.4.00 Crores each. Without any proposal, the pay orders were issued. The Uttarakhand State Cooperative Bank Ltd. (for short USCBL) was having FDR of Rs.10.00 Crore in the Bank and the Bank Officers, in conspiracy with the petitioners, forged the signatures of office bearers of the USCBL for preparing the forged pay orders. When the original pay orders were received in the Bank from the clearing house, the Bank officers interpolated the words "Uttarakhand State Cooperative Bank" in the said two pay orders, after the account number to show that these pay orders were issued in favour of the USCBL. However, in fact, the amount of those pay orders was deposited in the accounts of the petitioners. It is argued on behalf of the CBI that once the fraud was detected, as an admission of their liability, the documents were executed by the petitioners and accordingly, demand was made to them.

5.1 No account was opened fraudulently by the Bank. Whatever accounts were opened, they were suit filing accounts, so as to file suits and for that purpose signatures of the petitioners were not required.

5.2 The prosecution is not malicious. Whatever Amit Parmar has done, after investigation, charge sheet has already been submitted against him.

5.3 The fraud was committed in the Bank in collusion with the Bank Officers. It is not a personal case of Amit Parmar.

5.4 The question of facts cannot be looked into in these proceedings under Section 482 of the Code.

Deliberations

These are writ petitions under Article 226 of the Constitution of India for quashing the FIR No. 389 of 2012 and investigation of the FIR as well as petition under Section 482 of the Code for quashing the CBI charge sheet filed pursuant to the investigation in FIR No. 389 of 2012. The law with regard to Section 482 of the Code has been consistently laid down by the Hon'ble Supreme Court, in the cases of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, R.P. Kapoor Vs. State of Punjab, AIR 1960 Supreme Court 866, State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335 and Rajiv Thapar and Others Vs. Madan Lal Kapoor, (2013) 3 SCC 330.

In the case of Bhajan Lal (supra), Hon'ble Supreme Court has held as hereunder:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

(emphasis supplied)

Keeping in view all these parameters, arguments would be appreciated in the instant case and to that limited extent, reference to facts shall be made.

FIR No. 389 of 2012 makes specific allegations about the two pay orders given to the petitioners Vijay Kumar Kushwaha and Sanjay Minocha. Perusal of the FIR reveals that fraud in the Bank was detected in the past and report was given to the Police on 1.08.2012. Reference to this information dated 01.08.2012 has been made in the charge sheet submitted by the CBI, which finds place in Para 21.2, it is hereunder:

"21.2 Perusal of complaint dated 01.08.2012 of SIB, Dehradun, addressed to DIG (Police), Dehradun revealed the following allegations:-

(i) Issue of two fictitious Fixed Deposit Receipts for Rs. 5.00 crores each issued in favour of Uttarakhand State Cooperative Bank Ltd. against a total amount of Rs.10 crores received through RTGS.

(ii) Fabricated loans raised on the basis of Second Print Outs of Fixed Deposit Receipts in the name of Uttarakhand State Co-operative Bank Ltd. of Rs.9 crores.

(iii) Fabricated loans raised against fake deposits receipts in the name of District Co-operative Bank Ltd. of Rs. 9 crores.

(iv) Fabricated loans against fake deposit receipts in the name of Himjyoti Foundation of Rs.1.80 crores.

(v) Fabricated loan against fake deposit receipt in the name of Anil Mittal and others of Rs.2 crores."

In FIR No. 389 of 2012, it is mentioned that the Bank's internal investigation revealed that proceeds of two fraudulent transactions were deposited in the accounts of the petitioners Vijay Kumar Kushwaha and Sanjay Minocha. CBI investigated thoroughly the Bank fraud and touched upon not only these two transactions, as revealed in FIR No. 389 of 2012 but various other illegalities. Few findings from the CBI charge sheet may be conveniently reproduced to appreciate the controversy. In paras 23.8, 23.9, 23.14 and 23.15 of the CBI charge sheet, discussions have been made with regard to the petitioner Sanjay Minocha. These paragraphs are as hereunder:

"23.8 Investigation further revealed that PO No. 157752 and 157753, both for Rs. 4 crores each, were deposited in their accounts by accused Sanjay Minocha and Vijay Kumar Kushwaha in UCO Bank, Dehradun and Oriental Bank of Commerce, Haridwar respectively and were presented on 16.05.2012 and 18.05.2012 respectively. After receiving the POs in Branch, the entries were made in the system of SIB, Dehradun by Jacob Kavoor.

23.9 Investigation further revealed that when the said two original Pay Orders were received in SIB, Dehradun from SBI Clearing House, Shri Jacob Kavoor interpolated the words "Uttarakhand State Cooperative Bank" in the said two Pay Orders after the account numbers to show that these Pos were issued in favour of USCBL. Investigation revealed that Shri Kovoor made the said interpolation in the Pos in order to show in the record of SIB, Dehradun that the Pay Orders had been issued in favour of Uttarakhand State Cooperative Bank. This fact of interpolation's further proved from the clearing images obtained from SBI Clearing House in which the wording "Uttarakhand State Cooperative Bank" is not mentioned which is available in the original Pos available in the bank and collected during investigation.

23.14. Thus, investigation clearly revealed that Shri Minocha used the defrauded amount of Rs. 4 crore to clear the outstanding balances in various loan accounts relating to him, his family members and associates in PNB, Tilak Road, Dehradun.

23.15. Investigation revealed that Minocha received the said pay order of Rs. 4 crores from SIB, Dehradun for which he never applied in the bank for any loan and deposited any amount. Further, he did not sign any document for any such loan at any point of time in the bank and not given any application form."

Further in paragraphs 23.16., 23.18 & 23.19 of the CBI charge sheet, discussion have been made with regard to petitioner Vijay Kumar Kushwaha. It is reproduced as hereunder:

"23.16 Investigation further revealed that in Oriental Bank of Commerce, Nirdhah Niketan Branch, Haridwar, A/c No.01144015000188 is in the name of M/s Computer Mart, a firm owned by Shri Vijay Kumar Kushwaha who is also the authorized signatory of the account. Investigation confirms that the said pay order was deposited in the account of M/s Computer Mart on 18.05.2012 through clearing of Pay order no. 157753 dated 15.05.2012. After receiving the said amount, Shri Kushwaha used the amount by diverting it in his various other accounts.

23.18 Investigation further revealed that Shri Kushwaha did not submit any such application in SIB, Dehradun and also did not execute any loan documents for the loan amount of Rs. 4 crores. It is established from the SIB Dehradun as well as RO, Delhi that no proposal of Rs. 4 crores of Shri Vijay Kumar Kushwaha was ever received/pending in the branch or in the RO of the bank at Delhi.

23.19 Regarding deposit of margin money of Rs. 76 lakhs, investigation revealed that as per the relevant guidelines of SIB, no margin money is required to be deposited in case of Temporary Over Draft Limit. Moreover, Shri Kushwaha had deposited the said amount of Rs. 76 lakhs in his saving bank a/c no. 471,53,1241 and not in the account of the firm. Further, Shri Kushwaha did not submit any application or any request for issue of the said Pay Order of Rs. 4 crores which was also issued in favour of his own firm and not in favour of any vendor from where also, he withdrew the maximum amount in cash and not issued to any vendor/supplier etc."

Whether the petitioners have conspired with Bank officers to commit the fraud? These are factual aspects. It cannot be looked into at this stage. What this Court is doing now, is just looking at the material that has been gathered during investigation.

Finally, in para 23.31 of the CBI charge sheet, Investigating Officer concluded, with regard to the petitioners as hereunder:

23.31. Thus, investigation clearly establishes that a fraudulent proposal was prepared in SIB, Dehradun by the accused persons on behalf of USCBL for FSL (D) of Rs. 9 crores against their deposit of Rs. 10 crores by taking the second copy print outs of their 10 FDRs of Rs.1 crore each from the system. The said loan proposal was sanctioned by the RO, Delhi on the recommendation of SIB, Dehradun. The amounts of Rs.4 crores were received by accused Sanjay Minocha and Vijay Kumar Kushwaha and they utilized the same, as discussed above.

Reference can also been made in para 24.150 of the CBI charge sheet with regard to the suit file account for the purpose of filing recovery suit in DRT and it is averred, therein, that no operation was allowed in this account and signatures of customer was not required for opening such account.

A question has been raised with regard to the report lodged against Amit Parmar to bring home the argument that because of this, the instant is a malicious prosecution, which warrants interference in view of para 102 (7) of the Bhajan Lal's case (supra).

FIR No. 389 of 2012 has not been filed by any person by name. It is, in fact, filed by the Senior Manager, South Indian Bank, Dehradun on 23.11.2012. In the charge sheet reference has been made to the FIR lodged by the petitioner Vijay Kumar Kushwaha against Amit Parmar with regard to three cheques. It is made in para 23.24 and further in para 24.89 of the CBI charge sheet. Interestingly, in para 23.25, Investigating Officer has observed that non crediting the amount in the account of associates'/ firms of the petitioner Vijay Kumar Kushwaha was part of a conspiracy. The Investigating Officer has taken note of these cheques. Instant case is not a case against a customer of the Bank alone. The Bank Officers have also been charge sheeted by the CBI. It cannot be said that only because an FIR was lodged by the petitioner Vijay Kumar Kushwaha against Amit Parmar of the Bank, therefore, Bank has launched this malicious prosecution. Petitioner Vijay Kumar Kushwaha filed FIR against Amit Parmar on 04.07.2013, i.e. long after FIR No. 389 of 2012 was filed by the Bank. The arguments which have been advanced by learned counsel for the petitioners, mostly touches the factual aspects of the matter, which, as stated, cannot be examined in this proceeding. The FIR, categorically, discloses cognizable offences, which was once investigated by Police authorities and thereafter, under the orders of this Court by the CBI. CBI, after investigation, has submitted charge sheet against the petitioners and others and on 02.01.2018, in CBI Case No. 3 of 2018, CBI Vs. Manoj Kumar & others, cognizance has already been taken against the petitioners and others by the Court of learned Special Judge, CBI, Dehradun.

Having considered the rival submissions, under the facts and circumstances of the case, this Court is of the view that no interference is warranted in the case, therefore, writ petition (Criminal) No. 15 of 2013 for quashing FIR No. 389 of 2012 and Criminal Misc. Application Nos. 341 of 2018 and 423 of 2018 under Section 482 of the Code, for quashing CBI charge sheet deserve to be dismissed.

Insofar as, the Writ Petition (Criminal) No. 1228 of 2016 is concerned, which is for proper investigation by the CBI, it also has become infructuous and deserves disposal accordingly.

Learned counsel for the petitioners Vijay Kumar Kushwaha and Sanjay Minocha would further submit that in the instant case FIR No. 389 of 2012 was registered under Section 420 I.P.C. and during investigation, both the petitioners have already been granted bail. After investigation, charge sheet has been submitted under some more sections, therefore, direction may be issued to the court below to enlarge the petitioners on bail on their furnishing personal bonds and sureties, as the case may be.

Learned counsel appearing for the CBI would submit that CBI has no objection, if the petitioners are allowed to remain on bail for which they have already furnished bail bonds.

This Court is of the view that since the petitioners have already been enlarged on bail, merely because some more sections have been added in the charge sheet, the petitioners should not be required to apply for fresh bail. The petitioners may be allowed to remain on bail on the strength of bail order, by which, they were granted bail during investigation. But, the learned trial court may require the petitioners to furnish personal bond for the added sections.

With the above observations, Writ Petition (Criminal) No. 15 of 2013, Criminal Misc. Application No. 341 of 2018 and Criminal Misc. Application No. 423 of 2018 are dismissed. Writ Petition (Criminal) No. 1228 of 2016 also stands dismissed as infructuous.