Allahabad High Court
Vikram Kothari vs State Thru. C.B.I./Bs&Fc;, New ... on 13 May, 2019
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 28
Case :- U/S 482/378/407 No. - 3561 of 2019
Applicant :- Vikram Kothari
Opposite Party :- State Thru. C.B.I./Bs&Fc, New Delhi
Counsel for Applicant :- Pranjal Krishna
Counsel for Opposite Party :- Amarjeet Singh Rakhra
Hon'ble Dinesh Kumar Singh,J.
1. This petition under Section 482 Cr.P.C. has been filed for setting aside the order dated 6.3.2019 and 30.4.2019 passed by the Special Judge, C.B.I. Anti-Corruption (Central), Lucknow and a direction to the Special Judge, C.B.I. Anti-Corruption (Central), Lucknow for conducting the trial instituted on a police report, Criminal Case No.1051 of 2018 (C.B.I. vs. Vikram Kothari and others) as per the provisions of the Code of Criminal Procedure.
2. The C.B.I. registered a case on 18.2.2018 under Sections 120-B, read with Section 420, 467, 468 and 471 IPC and Sections 13(2) read with 13(1)(d) of the Prevention of Corruption Act (for short 'PC Act') on the basis of written compliant dated 18.2.2018 of Brijesh Kumar Singh, Deputy General Manager/Regional Head, Bank of Baroda, Kanpur against M/s Rotomac Global Private Limited (for short 'M/s RGPL'), Vikram Kothari, Chairman-cum-Managing Director of M/s RGPL, Smt. Sadhana Kothari W/o Shri Vikram Kothari, Director of M/s RGPL, Shri Rahul Kothari S/o Shri Vikram Kothari and Director of M/s RGPL, Kanpur and unknown bank officials and private persons.
3. Allegations in the FIR are that M/s RGPL and its Directors had cheated Bank of Baroda, International Business Branch (IBB), The Mall, Kanpur for Rs.456.63 crores and also did not repay loan amount to six other banks (Total amount Rs.2919.39 crores) mentioned in the FIR. It is alleged that the Directors of M/s (RGPL) also misused the packing credit facilities sanctioned by the bank for Rs.15.50 crores disbursed on 25.1.2012 for executing export order of US Dollars 41.82 lakhs. Out of this amount, M/s RGPL utilised Rs.5.35 crores for import of Gems and Jewelery from M/s Madrid Implex. They had also misused the packing credit limit for the export order for M/s Star Com Resources Pte. Singapore for supply of wheat of 15700 metric tonne US Dollars which was disbursed on 26.5.2014 (Rs.14.60 crores) and 30.5.2014 for Rs.19.12 crores. It is further alleged that M/s RGPL were routing the transactions through Pacific Global and M/s Bunge for which discount of 1.865% was deducted by the overseas importer without having business transactions, as such it was being done as mercantile trade. They have also mis-utilised packing credit facility availed for executing export orders and later on packing credit was adjusted form other parties not related to export transactions.
4. The C.B.I. after investigation of the case, has submitted the charge sheet on 19.5.2018 against six accused, including the petitioner, under Sections 120-B read with Sections 420, 467, 468 and 471 IPC and Sections 13(2) read with 13(1)(d) of the P.C. Act. The charge sheet mentions that further investigation is pending against Smt. Sadhana Kothari, Brijesh Shankar Mishra, CFO of M/s RGPL, Sri Manoj Upadhyaya and other persons including the officials of the Bank of Baroda. It is further sated that after completion of the investigation under Section 173(8) Cr.P.C., supplementary charge sheet would be filed before the Court.
5. The trial court had taken cognizance on 7.6.2018 and issued summons against the accused. On 10.12.2018, the petitioner filed an application before the trial court for making available the documents. It was said that handwritings of Pavan Gupta, Umesh Kumar Gupta and Manoj Upadhyay had been sent to the Central Forensic Science Laboratory, New Delhi ( for short 'CFSL') and the reports of the handwritings of these accused were yet to come and the charge sheet has been filed without waiting for handwriting reports. It was prayed that the petitioner should be provided CFSL reports of handwriting of the above persons in compliance of provisions of Section 207 Cr.P.C. The trial court vide order dated 6.3.2019 rejected the application on the ground that since the report of the CFSL is not part of the charge sheet and it was not yet been filed by the prosecution and it is not part of the record, therefore, the report cannot be given to the petitioner, which is not available on the record. While rejecting the application, the trial court fixed 19.3.2019 for framing of the charge.
6. The petitioner, thereafter, filed another application on 17.4.2019 stating therein that in absence of the CFSL report, there is no evidence to substantiate the allegation of forgery against the petitioner. It was further stated that in absence of the report from the CFSL, it was impossible to the applicant to put forward the defence his respect to the allegation of forgery levelled against him in the charge sheet and move an application for discharge under Section 239 Cr.P.C. It was also said that framing of charge should be deferred till the copy of the CFSL report was available in order to effectively exercise the statutory right.
7. The trial court vide impugned order dated 30.4.2019 has rejected the said application on the ground that the petitioner's application for making him available the CFSL report has already been rejected on merit on 6.3.2019 and the same application has been filed again.
8. I have heard Sri S.V. Raju, Senior Advocate assisted by Sri Pranjal Krishna, learned counsel appearing for the petitioner and Sri Amarjeet Singh Rakhra, learned counsel representing the CBI.
9. Learned counsel for the petitioner submits that from perusal of the charge sheet, it is established that the investigation is still on and not yet completed. The handwritings of the accused have been sent for CFSL examination and reports have not yet been received or filed in the trial court. He, therefore, submits that when the investigation is still in progress, the charge should not be framed and it should be deferred till the investigation is completed and the reports of CFSL are available. He further submits that charge of forgery would be established only on the basis of the CFSL reports and in absence of the CFSL reports, there is nothing on record to substantiate the charge of forgery and, therefore, the trial court should have waited for the reports before being proceeded for framing of the charge. It is also submitted that under Section 207 Cr.P.C., the accused is entitled to receive all the documents relied on by the prosecution before framing of the charge and the reports of the CFSL are a very vital document, which should be made available to him before proceeding with the framing of the charge. It is also submitted that in absence of the CFSL reports, the petitioner cannot effectively exercise statutory right under Section 239 Cr.P.C.
10. On the other hand, Sri Amarjeet Singh Rakhra, learned counsel appearing for the CBI has submitted that even without the expert opinion i.e. the CFSL reports regarding handwriting of the accused, there is sufficient material available against the accused for framing of the charge. He further submits that even after framing of the charge, the investigation can be carried out and supplementary charge sheet can be filed and on the basis of the supplementary charge sheet, charge can be framed against other accused or the charges can be amended as provided under Section 216 r.P.C. If the petitioner believes that in absence of the CFSL reports, there is no evidence to frame the charge, he can argue so at the time of framing of the charge and this Court should not interfere at this stage with the proceedings before the trial court.
11. I have considered the rival submissions of the parties carefully.
12. On the basis of material and evidence collected by the CBI, charge sheet has been filed against six accused, including the petitioner. It has been stated in the charge sheet that further investigation is pending against other accused and on completion of the investigation, supplementary charge sheet would be filed. While filing the charge sheet against six accused persons, including the petitioner, the CFSL report which is not yet come, has not been taken into consideration. If the petitioner believes that no evidence is available with the charge sheet to frame charge against him, he is at liberty to raise all such pleas at the time of framing of the charge, but he cannot be given copy of evidence, which is not part of the record before the trial court. Further, framing of the charge cannot be postponed till all the evidences, including the expert opinion is available. If there is sufficient evidence available in the charge sheet, the trial court is required to proceed with the framing of the charge. The trial court on receipt of the report and the accompanying documents under Section 173 Cr.P.C. is required to decide as to whether cognizance of the offence alleged is to be taken and then issue summons for appearance of the accused before the Court. Under Section 207 Cr.P.C., the trial court is required to furnish the accused copies of the following documents:-
(a) The police report;
(b) The First Information Report recorded under Section 154;
(c) The statements recorded under sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses, excluding therefrom any part in regard to which a request for such exclusion has been made by the police officer under sub-section (6) of Section 173.
(d) The confessions and statements, if any, recorded under Section 164;
(e) Any other document or relevant extract thereof forwarded to the Magistrate with the police report under sub-section (5) of Section 173.
13. Thus, only the material, which is available before the Court, can be supplied to the accused. The material which is yet to come, cannot be supplied and on that basis, the Court cannot held back from framing of the charge. Further, framing of the charge, cannot be postponed on the ground that the investigation is pending against other accused and till the whole investigation is completed, charge cannot be framed. The scheme of Section 173 Cr.P.C. does not contemplate that the charge sheet can be filed only after the complete investigation against all accused. After filing the charge sheet, supplementary charge sheet can be filed at any stage in accordance with the provisions of the Code, if the investigation is still pending against other accused. Therefore, the trial court has rightly rejected the prayer of the petitioner for postponement of the framing of the charge till investigation is complete against all accused or the CFSL report regrading handwriting of the accused is available.
14. In view of the aforesaid, I do not find any merit in the present petition, as such the same is dismissed.
(Dinesh Kumar Singh, J.)
Order Date :- 13.5.2019
Rao/-
