Mrs. Rumi Kumari Phukan, J. (CAV) - All the above batch of cases arising out of same FIR and Charge-sheet, hence they are taken up together and disposed of by this common order.
2. A complaint was filed by the Circle Head, Punjab National Bank with the Superintendent of Police, CBI, Kolkata on 27.1.2012 against all above petitioners for allegedly defrauding the bank. In the said complaint, it has been submitted that one of the Directors M/s. Double Dee Construction Private Limited, (engaged with business of construction of works) namely, Jitu Goswami, filed a loan application on 10.2.2009 with the Punjab and National Bank, Bhangagarh Branch mentioning that the Company has already availing credit facilities of CC limit of 9 crores and BG Limit of 20 crores from the Indian Oversees Bank, Dispur (in short IOB) against collateral security of landed property at Guwahati and the said Double Dee Construction Private Limited requested the Punjab Bank Authority with the credit facility for the execution of the work order for availing cash credit facility of Rs.6 crores and Bank Guarantee of Rs.20 crores. In the process of credit opinion from IOB, Dispur Branch it was reported on 26.2.2009 that the account M/s. Double Dee Construction Private Limited was declared as NPA. But the Branch Manager of PNB Mr. P.K. Kataky in spite of knowing the credit opinion that the loan A/c turned NPA, recommended the proposal to the Circle Office. The loan proposal was processed by the Circle Credit Committee comprising of P. Chakma (Sr. Manager), Janak Raj Dhawan (Chief Manager RMD), Shri N.C. Barman (Chief Manager Credit) who recommended the sanction of the aforesaid limit as proposed by the said Construction Company, by waiving insurance of stock, and various other primary security. The credit proposal approved by the said Credit Committee was finally sanctioned by Shri S.K. Kalra (Circle Head PNB). The Branch Manager P.K. Kataky with connivance with empanelled valuer Mr. M. Pathak who inflated the value of property of the said construction company to facilitate the party to avail the higher limit and exposed the Bank to loss of Rs.15.22 croes. That apart said Mr. P.K. Katkay obtained blank CIBIL report against M/s. Double Dee Construction Private Limited by furnishing wrong name only to suppress the factual credit worthiness on the part of the Company and said intentional procedural lapse was overlooked by the Circle Credit Committee and the sanctioning authority headed by Shri S.K. Kalra (Circle Head PNB). Thus after committing all procedural lapse on the part of the Bank Officers the loan was sanctioned on 31.3.2009 and disbursement of CC Limit as well as issuance of BG was started from 7.4.2009. The Circle Head PNB Mr. S.K. Kalra in spite of advise from CVO to stop exposer in the loan A/c of said M/s. Double Dee Construction Private Limited allowed to disburse the limit to the said party, without any public interest.
3. In pursuance of sanctioned of limit by the PNB a tripartite agreement was executed among the Bank (PNB), M/s. Double Dee Construction Private Limited and M/s. Lanco Infratech Limited (who undertake to make all payment due to the M/s. Double Dee Construction Private Limited) to the PNB by way of cheque, but , however no payment was made to the Bank as per the agreement. In the meantime, Bank Guarantee (BG) amounting to Rs.9,61,98,839/- was issued and invoked by M/s. NBCC Limited due to failure of M/s. Double Dee Construction Private Limited to execute the contract. The borrower could not make any repayment against CC Limit of Rs.6 crores and BG Limit of 10 crores and account was declared as NPA on 27.5.2010 which resulted wrongful loss to the PNB to the tune of Rs.15.22 crores.
4. By lodging the aforesaid complaint the Circle Head PNB requested the CBI to lodge a criminal case against those persons and cause a detail investigation to bring the culprit to justice. On the basis of said complaint, a case being RCBSK 2012 E 2002 was registered by CBI U/S 120 B read with Section 420 IPC and Section 13(2)(d) of the Prevention of Corruption Act, 1988. After detail investigation made by the CBI, the charge-sheet was filed against 10 accused persons mentioned below:
(a) Shri S.K. Kalra, Circle Head PNB .............. (A 1)
(b) Shri P.K. Kataky, Branch Manager PNB............... (A 2)
(c) Shri Mohidhar Pathak, Empanel Valuer of PNB ....... (A 3)
(d) Shri Jitu Goswami, Director of M/s. Double Dee .....(A 4) Construction Private Limited.
(e) M/s. Double Dee Construction Private Limited. .... (A 5)
(f) Shri Naresh Chandra Barman, Member of Credit ...(A 6) Department, PNB
(g) Shri Narayan Chandra Das, Member of Credit ...(A 7) Department,PNB
(h) Shri Kamal Deka, Member of Credit ...(A 8 ) Department,PNB
(i) Shri Pritimoy Chakma, Member of Credit . ..(A 9) Committee, PNB
(j) Shri Janak Roj Dhawan, ...(A 10) Member of Credit Committe, PNB
5. Accordingly, Special Case 3/13 was registered in the Court of Special Judge, CBI, Guwahati. Executive Director of the Bank has accorded sanction of prosecution to the accused who were public servants U/S 19(1)(C) of the Prevention of Corruption Act, 1988 by order dated 21.12.2012. The learned Special Judge, Guwahati took cognizance of the offence by order dated 24.1.2013. Subsequent thereto, all accused petitioners entered their appearance before the Court.
6. In course of trial, three accused petitioners namely, Naresh Barman, Kamal Deka & Narayan Chandra Das made a prayer before the Court for granting pardon to them by filing a petition U/S 306 CrPC. The above three accused petitioners were willing to disclose all knowledge and information regarding to the whole scam to bring home the actual facts of the case as well as the persons behind the offence by becoming the approvers in the case. On the basis of which, a Misc. Case No.1/13 was registered and the learned trial Court by its order dated 9.9.2013 in the said Misc. Case allowed the prayer by a detail order. The learned trial Court on 3.1.2014 in the main Special Case 3/2013 passed the following order :
"C.R. is put up today. In view of the order dated 9.9.2013 following accused persons namely Kamal Deka, Naresh Barman and Narayan Ch. Das have been made approvers u/s 5(2) of P.C. Act 1988 and as such they are not required to appear in persons in the Court since then and as such warrant of arrest issued against them are cancelled and same be recalled. Accused Narayan Ch. Das be released forthwith. The order be communicated to the executive authority through ld. PP."
7. Thereafter one of the accused Jitu Goswami by filing a petition no. 494/14 made a prayer before the Court on 30.7.2014 praying for furnishing copy of statement of those three accused persons turned approver namely, Kamal Deka, Naresh Barman and Narayan Ch. Das recorded during the investigation by prosecution. The Court accordingly directed prosecution to furnish the aforesaid statement.
8. On the next date 22.8.2014 while the case was fixed for hearing on the point of charge, the learned trial Court (successor in the office) by referring to the petition so filed by the accused Jitu Goswami (Petition No.494/14) dated 30.7.2014 passed the following order :
"Accused Pabitra Kr. Kataky and Mahidar Pathak are present.
Accused Jitu Goswmai is absent. But his Learned Counsel has filed a petition showing cause of his absence. Peruse the petition and allowed.
The Official Liquidator representing the accused firm M/s. Double Dee Construction Private Ltd., is absent without steps. Issue court notice to the Official Liquidator asking him to appear in the court on the next following date.
The Learned Counsel representing the accused Pratimoy Chakma, S.K. Kalra and Janak Raj Dhawan are present.
Accused Naresh Ch. Barman, Narayan Ch. Das and Kamal Deka, who were granted pardon as per the provisions of section 5(2) of the P.C. Act by my Learned Predecessor, are absent without steps.
It appears from the perusal of the case record that though the accused Naresh Ch. Barman, Narayan Ch. Das and Kamal Deka were granted pardon, no statements of the said accused were recorded by my Learned Predecessor. The Learned Public Prosecutor Mr. S.K. Singh has also submitted that no statements of the said accused were recorded by the court. The accused Naresh Ch. Barman, Narayan Ch. Das and Kamal Deka were also not remanded to judicial custody.
Today is fixed for consideration of charge. But the Learned Counsel for the accused Jitu Goswami had filed the petition No. 494/14, dated 30/7/14 praying for providing him with a copy of the statements of the accused Naresh Ch. Barman, Narayan Ch. Das and Kamal Deka recorded by the court while granting pardon. But as no statements of the accused Naresh Ch. Barman, Narayan Ch. Das and Kamal Deka were recorded by my Learned Predecessor, the petition stands rejected.
Issue summonses to the accused Naresh Ch. Barman, Narayan Ch. Das and Kamal Deka.
Fixing 12/9/14 for appearance."
Criminal Petition No. 760/14, Criminal Petition 813/14, Criminal Petition 826/14 and Criminal Petition 825/14
9. The aforesaid orders of granting pardon dated 9.9.2013, 3.1.2014, 30.7.2013 and 22.8.2014 have been challenged by the accused petitioner Shri Jitu Goswami by filing Criminal Petition No. 760/14 contending inter alia that the impugned order date 9.9.2013 is bad in law as the same was not made U/S 306 IPC and as such order dated 9.9.2013 and 3.1.2014 are liable to be set aside. Another contention that by order dated 22.8.2014 the Court has rejected the petition filed by the petitioner praying for statement of the accused turn approver is bad in law. Further granting of pardon to accused without recording the statement of those persons is also stated to be illegal and liable to be quashed.
10. Other accused petitioners namely Shri P.K. Kataky vide Criminal Petition 813/14; Dr. Janak Raj Dhawan vide Criminal Petition 826/14; and Shri S.K.Kalra vide Criminal Petition 825/14 also challenged the aforesaid order of pardon dated 9.9.2013 and subsequent orders, passed by the learned trial Court granting status of approvers to those three accused persons on the ground that the Court has not provided copy of statement of three accused persons/approver recorded during the investigation as prayed by the other accused Jitu Goswami and they are stated to be dissatisfied and aggrieved with the aforesaid order passed by the learned trial Court and they have made same sort of prayer as has been made by Shri Jitu Goswami to quash the orders dated 9.9.2013, 3.1.2014, 3.7.2013 and 22.8.2014.
11. Since in all the above cases the response of the respondents being same they are taken for discussion accordingly. The respondents/three approvers in their affidavit-in-opposition has submitted that they have been made approver primarily on condition that they will make full and through disclosure of the whole circumstances within their knowledge relating to the offence and their statement can be recorded at any stage and they are ready to depose before the Hon''ble Court whenever they are called upon to do so. It is submitted that there is no illegality in the order whereby they have been made approver. It has also been contended that the co-accused cannot be permitted to raise objection against granting of pardon given by the Court. The non-recording of statement of accused prior to granting pardon may be an irregularity which can be cured by the learned trial Court. Lastly it has been submitted that in view of the order dated 12.9.2014, passed by the learned trial Court, whereby the Court has directed them to face the trial along with other accused by holding that they cannot be held to be granted pardon, all the challenge made by the petitioners regarding granting pardon become in-fructuous.
12. The Respondent No.1/CBI in their affidavit has submitted that though the learned trial Court by its order dated 30.7.2014 was pleased to pass an order for providing copy of statement recorded during investigation but on the next date i.e. on 22.8.2014 the learned Court has rejected the petition preferred by accused Jitu Goswami. As such copies of statements were not provided. It has moreover been contended that the learned Special Judge by order dated 9.9.2013, three accused persons named above were made approver but the learned successor by his order dated 22.8.2014 has made some observations which tantamount to review his own order and the said order is not tenable in law, there being no power of review under the CrPC. That apart, the above petition filed by the above petitioners has no lis as co-accused can never question the tender of pardon by the trial Court. Accordingly it has been submitted that the petitions filed by the above petitioners challenging grant of pardon can be dismissed in limine and the Court should issue a direction to the trial Court to tender pardon in accordance with law to the above three accused persons Naresh Ch. Barman, Narayan Chandra Das and Kamal Deka. Criminal Revision Petition 415/2015
13. The three accused petitioners namely Naresh Ch. Barman, Narayan Ch. Das and Kamal Deka who were granted pardon by the learned trial court by order dated 9.9.2013 but by subsequent order dated 12.9.2014, order of pardon has been cancelled have preferred the above petition with a prayer to quash the order of cancellation of granting pardon vide order dated 12.9.2014 on the ground that the aforesaid order dated 12.9.2014 passed by the trial court is bad in the eye of law and there being no power on the part of the trial court to review its own order. Contention has been raised that once an accused is granted pardon he is presumed to have been discharged and become a witness to the case and cannot be arrayed as an accused again unless public prosecutor gives a certificate to this effect that the terms and conditions of pardon have been violated by the pardoner. The learned Presiding Officer (successor in the office) has failed to appreciate the fact that recording of statement of approvers is to be done at the direction of the learned trial court, which was not done by the Court at the time of passing the order for pardon.
14. The only respondent CBI in their short affidavit has fairly submitted that as the pardon accorded to the petitioners is conditional it is the incumbent on the trial court to record the statement of the petitioners in accordance with law and has submitted that the court may allow the petition filed by the petitioners with direction to the learned trial court below for recording of statement of the approvers in the interest of justice which seems to be proper.
15. It is to be noted that though other accused Janak Raj Dhawan, Pabitra Kr Kataky and Satish Kumar Karla filed some petitions for their impleadment in the above criminal petition which were registered as criminal misc case 995/2014, criminal misc case 1000/2014 and criminal misc case 1001/2014 but the same was not pressed and adjudicated upon.
A. Findings in Criminal petition 582/2014, 529/2014 and 418/2014.
16. The above petitions are preferred by accused petitioner namely Janak Raj Dhawan, Satish Kr Karla and Pabitra Kr Kataky challenging the FIR as well as charge sheet solely on the reply of the RTI officer. One of the petitioners Satish Kr Karla filed an application before the Right to Information Cell of the bank on 17.3.2014 for providing him the copies of all documents relating to the account of M/s. Double Dee Construction Pvt Ltd, SACH, Bhangagarh Branch, which were put to consideration and related correspondence and the orders of the competent authority in the said section/cell dealing with frauds at H.O., New Delhi, PNB. In response to the petitioner''s said application the Central Public Information Officer of the bank replied as follows :
"Checked our records and observed that no such fraud has been reported to the RBI by our Division. Since no fraud has been reported we have not given any permission to C.O. for filing complaint with any investigating agency".
17. On the basis of the aforesaid information said Satish Kumar Kalra as well as other two petitioners have challenged the filing of FIR as well as the sanction given by the sanctioning authority, submission of charge sheet and the cognizance taken by the court by registering special case no. 3/2013 by the Special Judge, CBI are bad in law and liable to be quashed and set aside and prayer has been made to quash the proceeding of special case 3/2013 pending before the learned Special Judge, CBI.
The contention of the petitioner Pabitra Kr Kataky is that he is no way connected with either appraisal or sanction of the loan other than the forwarding the loan to the Circle Office.
On the other hand, the contention of the petitioner namely Janak Raj Dhawan is that although it is a Credit Committee of the Bank of which petitioner is a member which makes available loans for projects. But it is the credit department which takes the decision in sanctioning a project like the instant one as per the bank circular No. LMA C/R 55/05 dated 25.4.2008 and his name was not mentioned in the complaint dated 27.1.2012.
According to another petitioner Satish Kumar Kalra as no fraud was reported to the RBI by the Bank concerned and as such allegation in complaint as well as in the FIR is non est.
18. The above prayer of the petitioners was resisted by respondent 1 CBI as well as the other respondent 2 to 5 by submitting exactly same sort of reply by way of affidavit so the same can be discussed together.
19. It has been contended on the part of CBI that the present case was registered on the basis of the written complaint by the circle head of PNB, North East Circle with the information pertaining to a fraud perpetuated to the tune of Rs. 15.22 crore by the directors of M/s. Double Dee Construction Pvt Ltd in connivance with bank officials and after due investigation the charge sheet was submitted as aforesaid against 10 accused persons including the director of M/s. Double Dee Construction and the bank officials. The learned Special Judge, CBI has already taken cognizance of the offence on the basis of the aforesaid charge sheet. It is submitted that during the investigation enough oral as well as documentary evidence have been collected in support of the charge that by making criminal conspiracy and by abusing the official position the above petitioners sanctioned a loan proposal by flouting all established procedure which has occasioned a wrongful loss of Rs. 15.22 crore to the Punjab National Bank.
20. Further it has been contended by the CBI that CBI is manned by CVC only and its manual but not bound by the Bank Manual. As per the Delhi Special Police Establishment, Act, the CBI has authority to register a case as regards the Prevention of Corruption Act about misconduct U/S 13(1)(d) of the PC Act. In the instant case, after getting sufficient materials against the accused petitioner CBI has rightly filed the Charge-sheet, it contends.
21. As regards the filing of the FIR as well as charge sheet it has been mentioned that the PNB circle office, North-east received permission from head office in New Delhi for filing a complaint with the investigating agency was which was communicated from the said headquarters of vigilance department through its official letter dated 14.5.2011 and after getting approval from the Chairman and Managing Director of the bank complaint was filed. This authorisation from the competent authority duly permitted, the said circle office for filing the complaint with the investigating agency for prosecution against all the petitioners, in terms of the applicable law as per the first stage advice of the Central Vigilance Commissioner (in short CVC) constituted under the Central Vigilance Commission Act, 2003. Referring to the annexure-2 letter dated 14.5.2011 and annexure 3 letter dated 11.7.2011 issued by authority of vigilance department of the PNB, New Delhi it has been submitted that by the aforesaid communication the vigilance department has approved the draft FIR to be lodged with CBI with a direction to ensure the PNB circle office that the said complaint is lodged with the CBI, BS&FC after incorporating the facts and figures without any further delay. The CBI further has annexed statement of certain witnesses (PW2, 6, 7, 12, 15, 24 and 6) vide annexure 3 (1 to 7) and documents annexure 4 (1 to 8) it has been contended that there are sufficient evidence to suggest the complicity of the accused petitioners with the charges levelled against them.
22. The other respondents 2 to 5 in their affidavit have contended that the submission of petitioner that the circle head of the Guwahati circle office of PNB did not have the permission to lodge the FIR is false and misleading. As the said permission was obtained from CMD of the bank through the HO vigilance department. Further sanction for prosecution against the petitioners was granted in conformity with Section 13(1)(c) of the Prevention of Corruption Act, 1998 and within the power of the respondent 2 being the executing director of the PNB at the relevant time, duly authorised competent authority.
23. As regards the other contentions of petitioner about mentioning of fraud in the FIR it has been replied that declaring an account to be fraud by the bank is not a pre-requisite condition for lodging an FIR with the CBI. In this case gross irregularities were observed in the sanction of credit facilities to M/s. Double Dee Construction Pvt Ltd leading to huge financial loss to the bank involving the petitioner and some other officers of the bank and accordingly the circle head of bank took a decision to bring it to the knowledge of the CVO. The CVC was consulted with regard to the facts of the case who directed the bank to lodge complaint with the CBI. As such the CMD under whose control the entire bank works accorded the permission to lodge complaint with CBI and hence no fraud was reported to RBI. Subsequent filing of charge sheet by CBI after investigation, corroborates the gross irregularities in the aforesaid account and the same is subject matter of the trial. Reference is made to the letter dated 14.5.2011 issued by the head office vigilance department in New Delhi whereby approval was granted. By this authorisation the competent authority duly permitted the circle office to file complaint with the investigating agency against the all accused petitioners in terms of the law as per the first stage advice from Central Vigilance Commission, constituted under the Central Vigilance Commission Act, 2003 and the draft FIR was also approved by the head office, vigilance department (the said aspect has also been referred by the CBI in their affidavit).
24. Further it has been submitted that the vigilance department of the bank has been set up to establish the link between the bank and Central Vigilance Commission, RBI, etc. As per the bank''s vigilance manual, investigation into any type of allegation involving offences punishable under the law, such as corruption, forgery, criminal breach of trust, cheating etc. can be entrusted to CBI. There are further evidence in support of the fact that in spite of caution advice from bank''s credit administration division to the petitioners for not taking exposure into the loan account of M/s. Double Dee Construction Pvt. Ltd. the petitioners sanctioned the loan amount to said M/s. Double Dee Construction Pvt Ltd against the interest of the bank causing huge loss to the bank. Releasing of loan to the said company without giving attention to the aspect that the said company has already an exposure as NPA at IOB and Kotak Mahindra Bank is itself violative of relevant circular of the bank. Above referred circulars as well as communications has been annexed with the affidavit.
25. An affidavit in reply was filed by the petitioner against the affidavit in opposition filed on behalf of respondent 1 to 5, whereby petitioner has criticized the stand taken by the respondent authority that now the bank has explained the word ''fraud'' ''as an irregularities in sanction'' which is not acceptable. It has been contended that the procedure stipulated in clause 3.0 of Fraud Risk Management Policy, hereinafter referred as FRMD, Chapter 5 and 14 of the Vigilance Manual of the vigilance department of the bank not being followed while filing FIR dated 31.1.2012, hence it is liable to be quashed. Raising another contention that the complaint bearing dated 27.01.2012 (on the basis of which the FIR was filed) as not produced by prosecution as such the FIR dated 31.1.2012 together with the complaint dated 27.1.2012 is liable to be quashed. Further it has also been put to challenge that action initiated by the bank being not in conformity with clause 6 of the FRMD, nor with Chapter 5 and 14 of the Vigilance Manual of the bank, the FIR as well as the complaint are liable to be quashed. The petitioner except denial of all the allegations made by the respondent authority, has not refuted the same.
26. Let us first take up the matter pertaining to the challenge by the above three petitioners to the filing of FIR as well as charge sheet and cognizance taken by the learned trial court, which is under challenge in the Criminal petition 582/2014, 529/2014 and 418/2014.
27. I have heard Ms. S. Sarma, learned counsel for the petitioner and also the learned standing counsel CBI Mr. P.N. Choudhury and Mr. P.K. Kalita, learned counsel appearing for rest of the respondents in all the cases. I have gone through the documents filed along with the records.
28. The crux of the challenge by the three petitioners to the aforesaid complaint, FIR resulting in filing of charge sheet and taking cognizance by the trial court is on the basis of the information obtained under the RTI from the bank concerned. As has been mentioned above we found that one of the petitioners Mr. SK Kalra made an application under the RTI Act asking for the documents regarding accounts of said Double Dee Construction Pvt Ltd for his personal reasons. Bare reading of the said application itself reveals that he asked for the documents only relating to the said account. The petitioner herein nowhere enquired in the said application as to whether any fraud was committed in the bank nor the RTI officer is a competent authority to reply as such that no fraud was reported to RBI nor they have given any permission to C.O. to file the complaint. The function of the RTI officer is to supply the documents to the petitioner as sought and otherwise to reply if such document relating to the said account while sanctioning credit facilities, bank guarantee etc. were available or not but he is not at all authorised and competent to give such a reply as to the matter of fraud which, of course, is a matter of investigation and cannot be a personal opinion of an public information officer. The functions of the public information officer have been prescribed under the Right to Information Act, 2005 and one cannot exceed his jurisdiction beyond the Act. Obviously such a reply by the PIO has no legal sanctity and as such all other challenges made by the petitioner side on the basis of such RTI information to question the complaint filed by the circle head of the concerned bank and which was duly approved by the head of the vigilance cell of the bank cannot be brushed aside. Without going to other area of challenge made by the petitioner it would suffice to hold that all matters in dispute like fraud, irregularities in the sanction, etc. that has been ''alleged'' in the complaint as well as in the investigation cannot denuded only on the basis of such reply of an RTI officer.
29. In the affidavit CBI has submitted as against the contention of Pabitra Kumar Kataky that he has no connection with either appraisal or sanction of the loan other than the forwarding the loan to the Circle Office, it has been seriously contended that Mr. Kataky had done certain exercise before forwarding the loan proposal to the banks Circle Office. He has himself signed the appraisal note, incorporating one blank CIBIL report after generating it by putting the wrong name of proposed borrower company while also personally visiting the property site as a collateral security to evaluate the same and also accepting one back dated credit information of borrower. Whereas, no circular of the concerned bank allowed the branch head to evade the responsibility to verify the credit worthiness of the proposed borrower, its previous financial performance, status of accounts with previous banks. Hence Mr. Kataky being a branch head cannot claim that his responsibility was limited only to forwarding to the loan application.
As regards the contention of Janak Raj Dhawan that although it is a Credit Committee of the Bank of which petitioner is a member which makes available loans for projects, But it is the credit department which takes the decision in sanctioning a project like the instant one as per the bank circular No. LMA C/R 55/05 dated 25.4.2008 and his name was not mentioned in the complaint dated 27.1.2012, the CBI in their affidavit has seriously contended that said Mr. Dhawan being a member of Credit Committee had failed to verify the credit information report of the proposed borrower with the Indian Oversees Bank as well as Kothak Mahendra, where the account of the concerned borrowing party already turned NPA and the same was overlooked and no effort was made to obtain account position of the proposed borrowers so as to protect the interest of the bank. That apart during investigation overwhelming prima facie evidence has been collected as against Mr. Dhawan for his alleged conduct. The name of Mr. Dhawan was in the complaint petition and specific charge has been levelled against him in the Charge-sheet as (A 10) which need not be repeated here.
So far as contention made by petitioner Satish Kumar Kalra as no fraud was reported to the RBI by the Bank concerned, it has been submitted by the respondent CBI, that on being duly authorised the CBI has conducted a thorough investigation and enough oral and documentary evidence has been collected to prove that out of criminal conspiracy, by way of cheating, by abuse of official position of the petitioners has led to sanction to the loan proposal which caused the respondent bank a huge wrongful loss at the tune of Rs.15.22 crores.
30. It is to be noted that though the petitioner has denied about non production of the copy of the complaint but the same is found to be annexed with the charge sheet as well as affidavit by the respondent 1 and in the said complaint there is a detail allegation about the affairs conducted by all the petitioners while indulging in the loan application given by Double Dee Construction Pvt. Ltd. and the fact that all the petitioners along with others by flouting the relevant procedure and the Circular mentioned above about providing loan etc. have sanctioned the loan causing huge loss to the said PNB.
The challenge of petitioner that FIR was not filed in conformity with the relevant vigilance manual is not maintainable, as same could not be termed as gross illegality so as to result abuse of process of Court , which can be turned down by the Court by invoking the inherent power of the Court. There was necessary permission from the HO Vigilance Delhi for filing the complaint by Circle Office to CBI. Consequently, FIR was filed by CBI. There appears no any malafide on the part of CO while filing the complaint rather his complaint was supported by evidence collected by CBI during investigation.
While causing investigation into the said complaint the CBI has examined 40 witnesses as well as 180 numbers of documents in support of the allegation that has been made against the accused petitioners and thereafter Charge-sheet has been filed. As against such full fledged investigation, whether the one line reply of the RTI officer is sufficient to deny above prosecution case ? The answer will be ''No''. That being the position, the challenge made by the petitioners that FIR has no basis to proceed and sanction has been granted illegally is devoid of merit.
31. Law regarding quashing of proceeding U/S 482 CrPC is very much settled by the catena of decisions of the Hon''ble Supreme Court. The power under the proviso should be sparingly invoked with circumspection, it should be exercised to see that the process of law is not abused or misused. The settled principle of law is that at the stage of quashing the complaint/FIR the High Court is not to embark upon an enquiry as to the probability, reliability or the genuineness of the allegations made therein.
The inherent power under Section 482 of the CrPC envisages three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect under the Code (ii) to prevent abuse of process of court and (iii) otherwise to secure the ends of justice. The rule of inherent power has its source in the maxim "quando alique, concebit conceditur id sine quo resipsa esse non protest", which means that when the law gives a person anything, it gives him that without which thing itself cannot exist. While exercising the power under the Section the court does not function as a court of appeal or revision. The inherent jurisdiction under this court can be exercised exdebito justitiae to do real and substantial justice for administration of which alone court exists. It is not fair on the part of High Court to interfere with judicial exercise of the discretion vested in the power of lower courts on the mere allegation of accused. Such an exercise is to be based on sound principle but should not be used to stifle a legitimate prosecution. Such an inherent power can be invoked when special circumstances are made out to interfere in the legal proceeding.
32. Regarding invoking the inherent power U/S 482 CrPC, the Hon''ble Apex Court in State of Haryana and ors. v. Bhajanlal (AIR 1992 SC 694), observed as follows :
"8.1. In the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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.
(a)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;
(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognisable 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;
(c) 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;
(d) where the allegations in the FIR do not constitute a cognisable offence but constitute only a non-cognisable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;
(e) 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;
(f) 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;
(g) 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. [305D-H; 306A-E] 8.2. In the instant case, the allegations made in the complaint, do clearly constitute a cognisable offence justi�7 3 on and this case does not call for the exercise of extraordinary or inherent powers of the High Court to quash the F.I.R. itself. [307B] State of West Bengal v. S.N. Basak, [1963] 2 SCR 52; distinguished."
33. In Indian Oil Corporation v. NEPC India Limited and ors. (2006) 6 SCC 736, the Hon''ble Supreme Court summarised the principle relating to exercise of jurisdiction U/S 482 CrPC to quash the complaints and criminal proceedings as under :
"9. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [1988 (1) SCC 692], State of Haryana v. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [1995 (6) SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [1996 (5) SCC 591], State of Bihar v. Rajendra Agrawalla [1996 (8) SCC 164], Rajesh Bajaj v. State NCT of Delhi, [1999 (3) SCC 259], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [2000 (3) SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [2000 (4) SCC 168], M. Krishnan v. Vijay Kumar [2001 (8) SCC 645], and Zandu Phamaceutical Works Ltd. v. Mohd. Sharaful Haque [2005 (1) SCC 122]. The principles, relevant to our purpose are :
(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not."
34. Coming to the case in hand, looking at the allegation in the complaint and the charge-sheet that has been filed, on the face of it, it can be held that there is a prima facie case for proceeding as against the petitioners and in the light of legal pronouncement as mentioned above, quashing of proceeding in such serious offence cannot be permitted while there is serious allegations supported by evidence during investigation. None of the criteria indicated above, is found to be attracted raising the question of quashing of entire proceedings.
35. For the reasons recorded herein above, all the three petitions stand dismissed.
B. Findings in Criminal Petition 825/2014, 826/2014, 813/2014, 760/2014 and Criminal Revision 415/2014.
36. As discussed above, in all the Criminal Petitions except Criminal Revision 415/2014, petitioners have challenged the order of pardon dated 9.9.2013 and subsequent orders as indicated above. The petitioners in Criminal Revision Petition 415/2014 were granted pardon but subsequently the aforesaid order of pardon was cancelled by order dated 12.9.2014, is under challenge. In view of factual matrix that the trial Court by its order dated 12.9.2014 has cancelled the order of pardon once granted on 9.9.2013, the challenge made to the aforesaid pardon seems to be non est. However, both the order needs to be scrutinised in view of all the subsequent orders that have been made by the learned trial Court after the order dated 9.9.2013. While passing the order dated 12.9.2014 the learned trial Court (Successor in Office) has categorically held that there being no statement of approver recorded by his predecessor, there was no pardon to those three accused persons and accordingly they are directed to face the trial as an accused. The effect of such order has virtually changed the status of three approvers to the accused. Thus this aspect is to be appreciated in the eye of law.
37. The Respondent CBI has also fairly submitted in their affidavit as well as in their argument that there being no statement recorded of approvers so the matter may be remanded back to the trial Court. On the other hand, the three approvers (in Criminal Revision 415/2014) has very much challenge the subsequent order of the Court dated 12.9.2014 that the same Court has no revisional/review power to alter its decision. It is also contended that they are ready to give their statement as directed by the Court.
38. Tender of pardon to accomplice has been provided U/S 306 CrPC which reads as follows :
Tender of pardon to accomplice.
(1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true dis-closure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof.
(2) This section applies to-
(a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952 );
(b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence.
(3) Every Magistrate who tenders a pardon under sub-section (1) shall record-
(a) his reasons for so doing;
(b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost.
(4) Every person accepting a tender of pardon made under sub-section (1)-
(a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any;
(b) shall, unless he is already on bail, be detained in custody until the termination of the trial.
(5) Where a person has, accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,-
(a) commit it for trial-
(i) to the Court of Session if the, offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate;
(ii) to a Court of Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court;
(b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself.
39. The very object of the provisions is to allow pardon to be tendered in cases where a grave offence is alleged to have been committed by several persons, so that with the aid of evidence of pardon the offence would be brought home to the rest. As per the provision once an accomplice is granted pardon his stand discharged as an accused and became witness to the procession. It is the legal proposition that once a Magistrate grants a pardon he has no power to withdraw it. It can only be done by certificate of the public prosecutor U/S 308 CrPC. Though ordinarily it is for prosecution to ask that a particular accused out of several may be tendered pardon, the accused may directly apply to the Court. In case the accused directly apply to the Court the Court must refer the request of accused to the prosecuting agency and ask for statement from the prosecution on the request of accused. If the prosecution feels that the tender of pardon will be in the interest of successful prosecution of the other offender whose conviction is not easy without approvers evidence, it would agree to the tender of pardon (2002) Crl.L.J. 2990 (Kanajeti Rajababu v. State of A.P.).
40. Mere perusal of the provision 306 CrPC would go to show that the paramount consideration for tendering pardon to an accomplice is the satisfaction of the Court that he will make a full the true disclosure of whole circumstances within his knowledge relating to the offence so also the satisfaction of the prosecution. The learned Judge must not take on himself the task of determining the propriety of tender pardon and although the power to grant pardon is vested in the Court, it is the job of the prosecution to see whether particular evidence is required or not.
41. As per the Sub-Section 4(A) of Section 306 CrPC the examination of approver by the Magistrate taking cognizance of the offence and tendering pardon is mandatory and its violation vitiates the entire criminal proceedings. During the course of argument the learned counsel for both the parties have referred the decision of the Hon''ble Apex Court, reported in AIR 1994 SC 2420 (Suresh Chandra Bahri v. State of Bihar)
30. A bare reading of clause (a) of sub-section (4) of Section 306 of the Code will go to show that every person accepting the tender of pardon made under sub-section (1) has to be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any. Sub-section (5) further provides that the Magistrate taking cognizance of the offence shall, without making any further enquiry in the case commit it for trial to any one of the courts mentioned in clauses (i) or
(ii) of clause (a) of subsection (5), as the case may be. Section 209 of the Code deals with the commitment of cases to the Court of Session when offence is tried exclusively by that court. The examination of accomplice or an approver after accepting the tender of pardon as a witness in the Court of the Magistrate taking cognizance of the offence is thus a mandatory provision and cannot be dispensed with and if this mandatory provision is not complied with it vitiates the trial. As envisaged in sub-section (1) of Section 306, the tender of pardon is made on the condition that an approver shall make a full and true disclosure of the whole of the circumstances within his knowledge relating to the offence. Consequently, the failure to examine the approver as a witness before the committing Magistrate would not only amount to breach of the mandatory provisions contained in clause (a) of sub-section (4) of Section 306 but it would also be inconsistent with and in violation of the duty to make a full and frank disclosure of the case at all stages. The breach of the provisions contained in clause (a) of sub-section (4) of Section 306 is of a mandatory nature and not merely directory and, therefore, non-compliance of the same would render committal order illegal. The object and purpose in enacting this mandatory provision is obviously intended to provide a safeguard to the accused inasmuch as the approver has to make a statement disclosing his evidence at the preliminary stage before the committal order is made and the accused not only becomes aware of the evidence against him but he is also afforded an opportunity to meet with the evidence of an approver before the committing court itself at the very threshold so that he may take steps to show that the approver''s evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver''s evidence as unreliable. Further clause (b) of sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non-compliance on the trial?
42. In the instant case, while granting pardon by impugned order dated 9.9.2013 to the three accused petitioners the learned trial court has referred to the above provisions of granting pardon and referring to the decision of the Delhi High in Ashok Kr Agarwal v. Central CBI has held that while applying for pardon by some of the accused persons the co-accused cannot be permitted to raise objection and the tender of pardon remains within the domain judicial discretion of the court and there is no right on the part of other accused for hearing on the matter. Thus, by referring to some other citations the learned trial court has opined that the Special Judge has power of granting pardon and accordingly the application made by the three accused petitioners was allowed but in the process the court has not recorded any satisfaction as to the reason why such application has been allowed, which should be the primary consideration on the part of the court while allowing such application. Nor on the part of the court itself revealed the status of the accused approvers or the prosecution agency was directed for recording or examination of those three persons. The order is absolutely silent as to the reasons for allowing such pardon in the form of opinion that their evidence will be necessary to ensure conviction of other accused. Eventually, apart from sheer declaration on the part of the above three petitioners that they will disclose the whole facts and circumstances of the case there was no evidence/statement of the three approvers before the court to apply its mind so as to accord its satisfaction although other accused have no right to raise objection while granting such pardon by the court. However, in the light of the decision in Suresh Chandra Bahri v. State of Bihar (supra) for not recording the statement of approver, the impugned order granting pardon is bad in law.
43. As is evident from the record that on the subsequent date by declaring the status of the approver as a witness (order dated 3.1.2014) the court has directed that they are no more required to appear as accused. But the fate of the impugned order dated 9.9.2013 has lost its efficacy as soon as the learned successor to the office passed the order dated 22.8.2014 and 12.9.2014 whereby the status of the accused as approver was turned down on the ground that his learned predecessor has not recorded statement of the accused while granting pardon and these three petitioners were again made accused and proceeded to frame charge against all the accused including the three persons who were earlier made approvers. It has been discussed above that once an accomplice is granted pardon he stands discharges as accused and becomes witness for prosecution and the learned court who had granted pardon has no power to withdraw it unless a certificate is furnished by public prosecutor u/s 308 of the CrPC. In view of the matter as a successor to the office cannot suo motu review its own order or alter/modify or cancel its own order there being no power of revision rests on the same court.
44. The three accused petitioners who were earlier granted pardon by the court submitted in their affidavit that they are still ready to give statement but there was no direction on the part of the court to give their statement for which they are unable to give any evidence. It is true that unless directed the accused persons are not in a position to give their statement. It is also noted that the prosecution/CBI/respondent herein has not raised any objection against such granting of pardon and has simply pointed out that the learned court should pass an appropriate order after recording statement of those approvers.
45. From what has been discussed above it can be concluded that the petitioners in the above criminal petition 825/2014, 826/2014, 813/2014 and 760/2014 have no right to challenge the order of pardon as matter of pardon is dispensed with by order dated 12.9.2014. There remains no scope for furnishing copy to the petitioner in Criminal Petition 760/14.
46. However, from what has been discussed above that has been challenged by the three approvers in criminal revision petition 415/2014 it can be held that the impugned order dated 9.9.2013 being an irregular order is liable to be interfered with and the subsequent order dated 12.9.2014 has no sanctity of law as indicated above is not maintainable. Equally the orders passed in between the above two orders are also liable to be interfered with. Accordingly all the orders passed from 9.9.2013 to 12.9.2014 as it relates to the matter of pardon are hereby quashed and set aside. All the petitioners are directed to appear before the trial court on or before 23.2.2017 and the learned trial court will hear the matter of pardon afresh by giving full opportunity to the prosecution to submit its opinion as regards the necessity of pardon and thereafter pass an appropriate order on the said petition no.346/2013 under Section 306 of the CrPC for pardon filed by the three petitioners therein as per law.
47. The above exercise should preferably be completed within a period of one month from 23.2.2017.
48. All the petitions are disposed of accordingly.
49. Interim order passed earlier stands vacated.
