Bombay High Court
Ashok Tahilram Sadarangani And ... vs C.B.I. (E.O.W.) And Anr on 12 April, 2017
Bench: A.M. Badar
901-REVN-534-2015-533-2015.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.534 OF 2015
ASHOK TAHILRAM SADARANGANI & ANR. )...APPLICANTS
V/s.
C.B.I. (E.O.W.) AND ANR. )...RESPONDENTS
AND
CRIMINAL REVISION APPLICATION NO.533 OF 2015
KERSI VIRAF MEHTA )...APPLICANT
V/s.
C.B.I. (E.O.W.) AND ANR. )...RESPONDENTS
Mr.Mohanlal Sachwani, Advocate for the Applicant in Criminal
Revision Application No.534 of 2015.
Mr.Rajnath Pathak, Advocate for the Applicant in Criminal
Revision Application No.533 of 2015.
Ms.Rebecca Gonsalvez, Advocate for Respondent No.1.
Mr.S.V.Gavand, APP for the Respondent - State.
CORAM : A. M. BADAR, J.
DATE : 12th APRIL 2017.
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ORAL JUDGMENT :
1 Both these revision petitions are being disposed of
with this common judgment and order as facts involved in both
these revision petitions are identical and both revision
petitioners / accused are being prosecuted by the CBI on similar
facts constituting various offences.
2 Criminal Revision Petition No.533 of 2015 is filed by
Kersi Viraf Mehta against whom a supplementary charge-sheet
dated 11th August 2015 is filed by respondent / CBI on 11 th August
2015 which has resulted in registration of the Special CBI Case
No.78 of 2015 against him for offences punishable under Sections
120B, 420 and 471 of the IPC. By this revision petition, revision
petitioner / accused no.4 Kersi Mehta is challenging the order
dated 17th November 2015 passed by the learned Special Judge
(CBI) for Greater Mumbai rejecting his application at Exhibit 117
filed by him invoking the provisions of Section 300 of the Code of
Criminal Procedure with a prayer for dismissal of the said CBI
Special Case bearing no.78 of 2015.
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3 Criminal Revision Petition No.534 of 2015 is filed by
revision petitioners / original accused no.1 Ashish Sadarangani
and original accused no.2 Nilesh Sadarangani, who along with
other accused are facing trial for offences punishable under
Sections 120B read with 409, 420, and 471 of the IPC, so also
under Section 13(2) read with 13(1)(d) of the Prevention of
Corruption Act, 1988. By this revision petition, these revision
petitioners / accused nos.1 and 2 in Special CBI Case No.3 of 2004
are challenging the order dated 7th November 2015 passed by the
learned Special Judge (CBI) Mumbai, thereby rejecting their
application at Exhibit 110 filed by invoking Section 300 of the
Cr.P.C. with the prayer for dismissal of the CBI Special Case No.3
of 2004.
4 Though impugned orders, rejecting applications which
are titled as applications under Section 300 of the Cr.P.C. filed by
revision petitioners, were passed on different dates in both cases,
the learned Special Judge, CBI, Mumbai, has assigned same
reasons for rejecting both applications filed by the revision
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petitioners in two different CBI cases. The relevant portion
incorporating reasons for rejection of applications for dismissal of
CBI Special cases can be found in paragraph 7 in both impugned
orders. For the sake of convenience, relevant portion of paragraph
7 of the order dated 7th November 2015 passed in Special Case
No.3 of 2004 needs reproduction and it reads thus :
"7. ............................................................................
From the present chargesheet it appears that the
complaint is different. Here in this case complainant
is Vigilance Officer, Union Bank of India, who filed
complaint before CBI, EOW, Mumbai, on 30.06.2003
and offence bearing RC No.8/E/2003 was registered
for offence punishable under Section 120-B IPC r/w
420 and 471 of the IPC and Section 13(2) r/w 13(1)
(d) of Prevention of Corruption Act, 1988.
Allegations are in respect of use of forge Lease Deed
and Power of Attorney for the purpose of collateral
security submitted before Union Bank of India by
accused causing wrongful loss to the tune of Rs.3.78
crores. Though the accused are same but the
offences are different and complaint are also
different. Nature of offence are also different."
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5 Heard. Admit. Heard finally, by consent of parties.
6 The learned advocate appearing for revision
petitioners in Criminal Revision Petition No.534 of 2015 after
narrating facts of the prosecution case argued that business of
revision petitioners was already going on and they had already
availed credit facility from the bank. However, for enhancing the
limit of that credit facility, they had bonafidely given additional
collateral security in the form of lease deeds executed in their
favour by Power of Attorney holder Kersi Viraf Mehta (the revision
petitioner in other revision petition). This act on the part of
revision petitioners / accused persons was bonafide. The offence
had an origin from the Power of Attorney and no original Power of
Attorney is seized. He further argued that material on record
shows that revision petitioners / accused never induced or cheated
the bank. Even other property of revision petitioners was
mortgaged with the bank and as on today, no dues of the bank are
outstanding. It is further argued by the learned advocate for
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revision petitioners / accused that the prosecuting agency i.e. the
CBI was well aware about prosecution of both revision
petitioners / accused at the instance of Kherwadi Police Station in
the criminal Case registered on the basis of investigation into the
FIR lodged by Homi Sanjana. For this purpose, reliance is placed
on order dated 24th March 2005 passed on Bail Application
No.39of 2005 by the learned Special Judge, Greater Mumbai, and
the order dated 6th April 2004 passed in R.A.No.3 of 2004 i.e. Bail
Application No.61 of 2004 by the learned Special Judge, CBI,
Greater Mumbai. With this, the learned advocate further argued
that infact a composite charge-sheet ought to have been filed by
the prosecuting agency instead of prosecuting the revision
petitioners / accused at the instance of Kherwadi Police Station
and the CBI. The main thrust of the argument of the learned
advocate for revision petitioners / accused is to the effect that
having tried for offences punishable under Sections 465, 467, 468,
471, 420 read with 34 and 120B of the IPC before the learned
Metropolitan Magistrate, 32nd Court, Bandra, in Criminal Case
No.364/P/2002 and their acquittal therein on 30 th January 2013
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by the said court, the revision petitioners / accused cannot now be
tried on same facts by the learned Special Judge, CBI, in Special
Case No.3 of 2004 and as such, in view of bar of Section 300 of
Cr.P.C., Special Case No.3 of 2004 needs to be dismissed at the
threshold itself. It is further argued that alleged offences are
arising out of one series of acts so connected together as to form
the same transaction and therefore revision petitioners / accused
ought to have been tried in only one trial.
7 I have also heard the learned advocate appearing for
revision petitioner / accused in Criminal Revision Petition No.533
of 2015. By drawing my attention to the charge leveled against
the petitioner in the Special Case by the CBI, he argued that there
is no question of committing the offence as stated in the said
charge-sheet by the revision petitioner. The revision petitioner /
accused had not used forged documents nor approached the bank
and requested for disbursement of loan. He reiterated the
submissions advanced by the learned advocate appearing in the
another revision petition and contended that in view of bar of
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Section 300 of the Cr.P.C., the Special CBI Case against the
Revision Petition bearing no.78 of 2015 also needs to be
dismissed.
8 The learned advocate appearing for the respondent /
CBI i.e. the prosecuting agency vehemently argued that bar of
Section 300 of the Cr.P.C. is not applicable to cases in hand. She
argued that Criminal Case bearing No.364/P/2002 in which
revision petitioners / accused were tried and acquitted was for
totally different offences. Offences alleged against revision
petitioners / accused in both these revision petitions are totally
distinct. As offences are not identical and as revision petitioners /
accused were not tried for offences alleged against them in Special
CBI Case Nos.3 of 2004 and 78 of 2015, there is no question of
application of bar of Section 300 of the Cr.P.C. For this purpose,
the learned advocate for the prosecuting agency has placed
reliance on judgment and order of acquittal of revision
petitioners / accused in Criminal Case No.364/P/2002 decided on
30th January 2013 and contended that it was relating to forgery
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and cheating of Homi Sanjana - the informant therein as well as
the officers from the office of the Sub-Registrar. Allegations
therein were to the effect of preparation of forged Power of
Attorney of the first informant Homi Sanjana and preparation of
forged Income Tax Clearance Certificate for getting lease deeds
registered in favour of revision petitioners / accused in Criminal
Revision Petition No.543 of 2015. The learned advocate for the
CBI by placing reliance on judgment of the Hon'ble Apex Court in
matter of Ashok Sadarangani and Another vs. Union of India
and Others 1 vehemently argued that revision petitioners /
accused in Criminal Revision Petition No.534 of 2015 had earlier
approached the Hon'ble Apex Court with a prayer for quashing
proceedings in the Special CBI Case No.3 of 2004 on the basis of
settlement of dues of the bank by them, but the Hon'ble Apex
Court considering the nature of offence, was pleased to dismiss
that writ petition. The learned advocate for the CBI further placed
reliance on judgment of the Hon'ble Apex Court in the matter of
Sangeetaben Mahendrabhai Patel vs. State of Gujarat and
1 (2012) 11 Supreme Court Cases 321
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Anr.2 for demonstrating scope and applicability for the principle of
double jeopardy envisaged in Section 300(1) of the Cr.P.C. and
contended that in the case in hand, revision petitioner / accused
no.2 Nitesh Sadarangani was not even prosecuted for commission
of the offence and as such, he cannot invoke Section 300 of the
Cr.P.C. She further argued that the judgment in the matter of Kolla
Veera Raghav Rao vs. Gorantla Venkateswara Rao and Anr.3
relied by learned advocate for the revision petitioners / accused
has been considered in the matter of Sangeetaben (supra) and it
is held that when offences are entirely different, even if there are
some overlapping facts, then the bar of Section 300(1) of Cr.P.C.
has no applicability.
9 I have carefully considered the rival submissions and
also perused material placed on record including the copy of the
judgment and order of acquittal of revision petitioners / accused
in Criminal Case No.364/P/2002. Similarly, I have also perused
charge-sheets which has resulted in registration of Special CBI
2 AIR 2012 SC 2844
3 2011 (2) SCC 703
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Cases bearing Nos.3 of 2004 and 78 of 2015. I have also perused
impugned orders passed by the learned Special Judge, CBI,
Mumbai, rejecting applications for dismissal of both criminal
cases.
10 At the outset, it needs to be mentioned here that
revision petitioners / accused have invoked revisional jurisdiction
of this court which is required to be exercised sparingly when it is
shown that there is manifest error on the point of law or glaring
defect of procedure which has resulted in miscarriage of justice.
According to learned advocate appearing for revision petitioners /
accused, the learned Special Judge, CBI, has committed error of
law in not applying the provisions of Section 300(1) of the Cr.P.C.
to cases in hand and has committed illegality in not dismissing
both criminal cases pending against revision petitioners / accused.
11 In other words, it is case of revision petitioners /
accused that they have fundamental right of protection from
double jeopardy. Considering arguments advanced by both
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parties, provisions of Article 20(2) of the Constitution of India,
Section 300(1) of the Cr.P.C. and Section 26 of the General
Clauses Act, 1897 are required to be examined in the light of facts
of the instant cases.
Article 20(2) of the Constitution of India reads thus :
"Article 20(2) - No person shall be prosecuted and
punished for the same offence more than once."
Section 300(1) of Cr.P.C. reads thus :
300. Person once convicted or acquitted not to be
tried for same offence -
(1) A person who has once been tried by a Court of
competent jurisdiction for an offence and convicted
or acquitted of such offence shall, while such
conviction or acquittal remains in force, not be liable
to be tried again for the same offence, nor on the
same facts for any other offence for which a
different charge from the one made against him
might have been made under sub- section (1) of
section 221, or for which he might have been
convicted under sub- section (2) thereof."
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Section 26 of General Clauses Act, 1897, reads thus :
"26. Provision as to offences punishable under two
or more enactments. Where an act or omission
constitutes an offence under two or more
enactments, then the offender shall be liable to be
prosecuted and punished under either or any of
those enactments, but shall not be liable to be
punished twice for the same offence."
12 Perusal of these provisions shows that a person is
protected from double jeopardy. These provisions of law protects
a person and are based on maxim "Nemo debet bis vexari." These
provisions incorporate salutary rule of criminal jurisprudence that
no person can be vexed twice on same facts constituting one
offence. These provisions of law were interpreted by the Hon'ble
Apex Court in the matter of Sangeetaben (supra) relied by the
learned advocate appearing for the prosecuting agency. Paragraph
24 of the said judgment, so also relevant portion from paragraph
26 thereof needs reproduction. They read thus :
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"24. In view of the above, the law is well settled
that in order to attract the provisions of Article 20(2)
of the Constitution i.e. doctrine of autrefois acquit or
Section 300 Code of Criminal Procedure or Section 71
Indian Penal Code or Section 26 of General Clauses
Act, ingredients of the offences in the earlier case as
well as in the latter case must be the same and not
different. The test to ascertain whether the two
offences are the same is not identity of the
allegations but the identity of the ingredients of the
offence. Motive for committing offence cannot be
termed as ingredients of offences to determine the
issue. The plea of autrefois acquit is not proved
unless it is shown that the judgment of acquittal in
the previous charge necessarily involves an acquittal
of the latter charge.
26. ...................................................................
Same remained the position so far as the judgment
in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao &
Anr. (2011) 2 SCC 703, is concerned. It has been
held therein that once the conviction under Section
138 of Negotiable Instruments Act has been
recorded, the question of trying a same person
under Section 420 Indian Penal Code or any other
provision of Indian Penal Code or any other statute
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is not permissible being hit by Article 20(2) of the
Constitution and Section 300(1) Code of Criminal
Procedure."
It is, thus, seen that, for applicability of principles of protection
from double jeopardy, the test is whether the former offence and
the offence now charged have the same ingredients, in the sense
that the facts constituting the one are sufficient to justify a
conviction of the other and not that the facts relied on by the
prosecution are the same in two trials. Plea of double jeopardy
cannot be held to be proved unless it is shown that the verdict of
acquittal of the previous charge necessarily involves an acquittal
of the latter. Keeping in mind these principles, let us narrate facts
which have resulted in institution of both these revision petitions.
13 Revision petitioners / accused nos.1 and 2 namely,
Ashok and Nitesh had taken on lease the immovable property
belonging to Homi Sanjana on 29th December 1999. In all, five
lease deeds came to be executed by the revision petitioner /
accused Kersi Mehta on the basis of allegedly forged Power of
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Attorney executed by owners of that land. One of the owners,
namely, Homi Sanjana, then lodged a FIR in the matter on 2 nd
June 2000 which has resulted in registration of Crime No.236 of
2002 with Kherwadi Police Station for offence punishable under
Section 465, 467, 468, 471, 420 read with 34 and 120B of the
IPC. According to the prosecution case, in that matter, Homi
Sanjana and his family members were owners of land situated in
Aksa Village, Kandivali and Malad area of Mumbai. Revision
petitioner Kersi Mehta was acquainted with informant Homi
Sanjana and his family members. He forged a Power of Attorney
by showing that Homi Sanjana and his family members had
authorized him to deal with those immovable properties by
Powers of Attorney dated 11th January 1996 and 24th December
1999. On the basis of these forged Powers of Attorney, according
to the prosecution case, five lease deeds dated 29 th December
1999 were executed in favour of revision petitioners / accused
no.1 Ashok Sadarangani and accused no.2 Nitesh Sadarangani. In
the meanwhile, informant Homi Sanjana received a letter on 4th
April 2000 from the Additional Collector, Mumbai. On the basis of
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this letter, first informant Homi Sanjana made inquiry and came to
know that revision petitioner / accused Kersi Mehta had prepared
forged Power of Attorney and leased out property owned by them
by various lease deeds dated 29th December 1999 in favour of
revision petitioners / accused no.1 Ashok Sadarangani and
accused no.2 Nitesh Sadarangani. It further transpired during
investigation of this crime that for getting those lease deeds
registered with the office of the Sub-Registrar, Mumbai, accused
persons forged Income Tax Clearance Certificate and submitted
that certificate purported to be issued under Section 230-A of the
Income Tax Act to the office of the Sub-Registrar and got all those
five lease deeds registered on 30 th December 1999. It was case of
the prosecution that subsequent to registration of those lease
deeds, revision petitioners / accused no.1 Ashok Sadarangani and
accused no.2 Nitesh Sadarangani mortgaged the leased out
immovable properties to the bank and obtained cash credit facility
of Rs.125 Lakh apart from Import Letter of Credit for Rs.100 Lakh.
On completion of investigation, accused in Crime No.236 of 2002
were charge-sheeted and resultantly Criminal Case
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No.364/P/2002 came to be registered. Revision petitioner Ashok
Sadarangani was accused no.3 and revision petitioner Kersi Mehta
was accused no.6 in that criminal case. Revision petitioner /
accused Nitesh Sadarangani was shown as absconding accused
and was not put to trial. Along with these accused, some other
persons were also arraigned as accused in that criminal case. It
was tried by the court of the competent jurisdiction i.e. the
Metropolitan Magistrate, 32nd Court, Bandra, Mumbai, and all
accused persons in that criminal case came to be acquitted of
charges leveled against them vide judgment and order dated 30th
March 2013.
14 For applying the provisions of Section 300(1) of the
Cr.P.C. to cases in hand, one will have to examine what were the
charges in that criminal case bearing no.364/P/2002. Following
were the points for determination framed and answered by the
learned Metropolitan Magistrate in the said case :
1 Does prosecution prove that accused No.1, 3, 6 Not proved.
and 7 along with deceased accused no.2
Harish Nanalal Joshi, and absconding accused
- Nitesh Ashok Sadarangani, Babu @ Surato
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Madhusudan Das, Dharmendra Singh and Raju
Shrivastav, committed criminal conspiracy and
in furtherance of their common intention, in
between 24-12-1999 to 09-05-2000 at the
office of Additional District Collector, New
Administrative Building, Bandra-E, Mumbai,
and in the office of Sub-Registrar, Bandra
fabricated certain documents, two Power-of-
Attorneys dated 11-01-1996 and 24-12-1999
and the accused no.6-Kersi Mehta, forged the
signature of complainant - Homi
DinshawSanjana, his wife - Phiroza and his
two sons - Berzin and Pesii Sanjana to support
a certain claim or title, to show the title over
the land belonging to the complainant and his
family members, situated at Village-Aksa,
Malad-W, Kandivali, Mumbai, and submitted
the forged Power-of-Attorneys to the office of
Additional District Collector, and the accused
no.3 and 6 also forged and got executed five
lease deeds showing transaction dated 29-12-
1999, and submitted them in the office of Sub-
Registrar, Bandra on 03-12-2000 for
registration and that the accused no.1 and 2
fabricated and forged Income Tax Clearance
Certificate u/Sec.230-A of Income Tax Act for
the registration of lease deeds and thereby
committed an offence punishable under
Section 465 r/w. 34 of the Indian Penal Code ?
2 Does prosecution prove that accused No.1, 3, 6 Not proved.
and 7 along with deceased accused no.2
Harish Nanalal Joshi, and absconding accused
- Nitesh Ashok Sadarangani, Babu @ Surato
Madhusudan Das, Dharmendra Singh and Raju
Shrivastav, committed criminal conspiracy and
in furtherance of their common intention,
during the above mentioned period and places
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forged and submitted documents purporting to
be valuable security with intention to cheat the
complainant - Homi Sanjana and his family
members and also government officers and
thereby committed an offence punishable
under Section 467 r/w. 34 of Indian Penal
Code ?
3 Does prosecution prove that accused No.1, 3, 6 Not proved.
and 7 along with deceased accused no.2
Harish Nanalal Joshi, and absconding accused
- Nitesh Ashok Sadarangani, Babu @ Surato
Madhusudan Das, Dharmendra Singh and Raju
Shrivastav, committed criminal conspiracy and
in furtherance of their common intention,
during the above mentioned period and places
and forged the above mentioned documents
i.e. two Power-of-Attorneys, Income Tax
Clearance Certificate and five lease deeds
purporting to be valuable security intending
that, those shall be used for the purpose of
cheating the complainant, his family members
and government officers and thereby
committed an offence punishable under
Section 468 r/w. 34 of Indian Penal Code ?
4 Does prosecution prove that accused No.1, 3, 6 Not proved.
and 7 along with deceased accused no.2
Harish Nanalal Joshi, and absconding accused
- Nitesh Ashok Sadarangani, Babu @ Surato
Madhusudan Das, Dharmendra Singh and Raju
Shrivastav, committed criminal conspiracy and
in furtherance of their common intention,
during the above mentioned period and places
used as genuine, forged documents i.e. two
Power-of-Attorneys, Income Tax Clearance
Certificate and five lease deeds, which you
knew at the time when used them to be forged
documents and thereby committed an offence
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punishable under Section 471 r/w. 34 of
Indian Penal Code ?
5 Does prosecution prove that accused No.1, 3, 6 Not proved.
and 7 along with deceased accused no.2
Harish Nanalal Joshi, and absconding accused
- Nitesh Ashok Sadarangani, Babu @ Surato
Madhusudan Das, Dharmendra Singh and Raju
Shrivastav, committed criminal conspiracy and
in furtherance of their common intention,
during the above mentioned period and places
cheated the complainant by dishonestly
inducing him to deliver the lands belonging to
him situated at Aksa, Malad-W, Kandivali in
Mumbai to the accused no.3-Ashok
Sadarangani and absconding accused -Nitesh
Sadarangani with the help of forged power-of-
attorneys and thereby committed an offence
punishable under Section 420 r/w. 34 of
Indian Penal Code ?
6 Does prosecution prove that accused No.1, 3, 6 Not proved.
and 7 along with deceased accused no.2
Harish Nanalal Joshi, and absconding accused
- Nitesh Ashok Sadarangani, Babu @ Surato
Madhusudan Das, Dharmendra Singh and Raju
Shrivastav, during the above mentioned period
and places agreed with accused no.3-Ashok
Sadarangani and no.6 -Kersy Mehta, the
conspirators to do an illegal act i.e. execution
of forged power-of-attorneys, Income Tax
Clearance Certificate and five lease deeds and
besides the above said agreement you did
some acts in order to cheat the complainant -
Homi Sanjana and his family members, in
pursuance of the said agreement to commit
the offence of forgery and cheating punishable
with imprisonment for two years, seven years,
ten years and imprisonment for life and fine
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and thereby committed an offence punishable
under Section 120-B of Indian Penal Code ?
7 What order ? As per final
order.
Perusal of these points for determination as such goes to show
that the said prosecution which commenced from the first
information report lodged by Homi Sanjana was in respect of
allegedly forged Powers of Attorney and allegedly forged Income
Tax Clearance Certificate under Section 230-A of the Income Tax
Act and use of those forged documents by accused therein for the
purpose of cheating the first informant as well as his family
members.
15 Now let us examine facts of the charge-sheet filed by
the CBI in these cases which have resulted in registration of
Special Case No.3 of 2004 and the supplementary charge-sheet
against revision petitioner / Kersi Mehta which has resulted in
registration of Special CBI Case No.78 of 2015. The criminal law
was set in motion in these cases by the Chief Vigilance Officer of
the Union Bank of India by lodging the FIR with the CBI.
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According to the prosecuting agency i.e. CBI, accused persons
after securing credit facility from the bank had utilized such
facilities in a dishonest and fraudulent manner by opening Letters
of Credit in respect of foreign suppliers of goods without actually
bringing goods but inducing the bank to negotiate the Letter of
Credits in favour of foreign suppliers and also misusing cash credit
facility availed by them. In order to appreciate case of the
prosecution in CBI Special Case No.3 of 2004 as well as CBI
Special Case No.78 of 2015, it is apposite to reproduce relevant
portions of the charge-sheet containing allegations against
accused persons. Those read thus :
"1. ...............on the allegation that during the
period between 2000 and 2002 at Mumbai A-1
Nitesh Sadarangani, Proprietor of M/s.Anup Impex
and his father A-2 Ashok Sadarangani, Proprietor of
M/s.Challenger Imports, in connivance with A-3
R.K.Daruwalla, the then Branch Manager, Union
Bank of India, Cumbala Hill Road Branch, Mumbai,
and other unknown officials of the bank, obtained
various credit facilities from Union Bank of India,
Cumbala Hill Road Branch, Mumbai, in the names of
their proprietorship firms by submitting forged
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property documents as collaterals and utilised such
facilities in a dishonest and fraudulent manner, by
opening Letters of Credit on foreign suppliers of
goods without actually bringing in any goods but
inducing the bank to negotiate the Letter of Credits
in favour of foreign suppliers as also by misusing
Cash Credit Facility. The Credit Facilities were
allegedly misutilised by A-1 Nitesh Sadarangani and
his father A-2 Ashok Sadarangani in collusion with
the then Branch Manager A-3 R.K.Daruwalla of
Union Bank of India, Cumbala Hill Road Branch,
Mumbai. Thus, by aforesaid criminal acts of
accused persons, a wrongful loss of Rs.3.78 crores
has been caused to Union Bank of India.
2. That, in pursuance of the above said criminal
conspiracy A-1 Nitesh Sadarangani opened CD
A/c.No.36646 in the name of his proprietorship firm
M/s.Anup Impex with Union Bank of India,
Cumbala Hill Road Branch, Mumbai on
04/08/1999. (A-3) R.K.Daruwalla allowed to open
the account on the introduction of director of
M/s.Nitesh Amusement Pvt.Ltd. Which was already
maintaining CD A/c. No.36640 with the bank which
was not even six months old on 7/01/2000 A-1
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Nitesh Sadarangani submitted application for
working capital credit facilities from Union Bank of
India under the Liberal Trade Finance Scheme of the
bank against collateral security of a plot of land at
Mahavir Nagar, Kandivali of the alleged market
value of Rs.1121 Lakhs. The application was for
availing cash credit (Hypothecation of Stock and
Book Debts) of Rs.150 Lakhs, Letter of Credit of
Rs.125 Lakhs and Letter of Guarantee of Rs.20
Lakhs. In pursuane of the above said criminal
conspiracy the proposal of Nitesh Sadarangani was
processed and recommended by A-3 R.K.Daruwalla
who was then functioning as Branch Manager,
Union Bank of India, Cumballa Hill Road Branch,
Mumbai, forwarded a processing note on
21.02.2000 recommending limits. Basing on such
recommendation the then Deputy General Manager,
Union Bank of India, Mumbai (S) sanctioned the
credit facilities to M/s.Anup Impex on 24/02/2000
i.e. Hypothecation of Rs.150 Lakhs, Import, LC (DA
up 180 days) for Rs.125 Lakhs with a margin of
10% to 15% and Letter of Guarantee for Rs.20
Lakhs with a margin of 25% i.e. the personal
guarantee of A-1 Nitesh Sadarangani and collateral
security of equitable mortgage of land CTS No.118,
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S.No.147, Mahavir Nagar, Kandivali(W)
admeasuring to total area of 16025 sq.meters with
1.33 FSI worth Rs.11,21 Crores in the name of
Mr.Ashok Sadarangani and other terms such as
personal guarantee of Mr.Nitesh Sadarangani
declaration to the effect that Goods / Book debts
charge to the bank are free from any encumbrance is
to be obtained from the borrowed, credit facilities
should be released only after obtaining security
documents, branch should monitor the operation of
the account on weekly basis, and also confirm easy
marketability of collateral property and others usual
terms and conditions in case of CC Hypothecation
and in case of L/C's limit of Rs.125.00 Lakhs security
has mentioned as goods under L/C and margin
should be obtained 10% + 15% by way of deposit
and in case of bank guarantee of Rs.20.00 Lakhs
security of counter guarantee of the firm.
4. That the Cash credit Hypothecation Facility was
released by the branch on 31-03-2001 in the
Account No.40043 of M/s.Anup Impex. It is further
revealed that Cash Credit Facility availed by A-1
Ashok Sadarangani, Proprietor of M/s.Anup Impex,
was misutilised by transferring the funds to various
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other accounts of his sister concerns opened and
operated by him and his family members in the
same branch of the bank. It is also reflects that, the
Credit Entries in the account are mostly by way of
cash deposits. However it reflects that A-3
R.K.Daruwalla has failed to monitor the same
account properly.
5. That after the credit facilities were sanctioned
the bank opened 1) Letter of Credit No.NIOH
40925/CH/00 for US$ 94948 IR 4462556.00, 2) LC
No.NIOH 40926/CH/00 for US$ 112937 IR
5308077.00 & 3) LC No.NIOH 40927/CH/00 for
US$ 53216 IR 2501152.00 on behalf of A-1 Nitesh
Sadarangani favouring M/s.New Country Medical
Suppliers LLC.Dubai for import of household articles
and toys. All the L/C's were matured on
18/01/2001. The above referred Letters of Credit
were opened on 25 days DA (Document against
Acceptance) basis. Against the above referred
Letters of Credit, the documents were received by
Union Bank of India from bankers of foreign
suppliers, which were duly accepted by A-1 Nitesh
Sadarangani. On acceptance of the documents on
4.1.2001 by A-1 Nitesh Sadarangani, Union Bank of
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India remitted the payments to National Bank of
Dubai, the bankers of foreign supplier M/s. New
Country Medical Supplies Co. LLC. After the
documents were accepted by A-1 Nitesh
Sadarangani and as a consequence Letters of Credit
were paid by the bank to the bankers of foreign
supplier. The documents of M/s.Anup Impex
accepted by A-1 Nitesh Sadarangani, were in fact
handed over by A-2 Ashok T. Sadarangani stating
that the same have been signed by A-1 Nitesh
Sadarangani when the Accountant Ms.Padma
Subramani objected in this regard A-3
R.K.Daruwalla, the Branch Manager intervened and
instructed Ms.Padma Subramani to accept the
documents.
6. That, it is further revealed that A-1 Nitesh
Sadarangani vide his letter dated 16.01.2001 to the
Shipping Company M/s.Geodis Overseas Pvt. Ltd.
requesting them to hold the consignment at Nava
Sheva and move it back to Salalah. Accordingly the
consignments were sent back to Salalah Port and
from Salalah Port the same container was sent to
Jebel Ali Port. From Jebel Ali Port the same
container was dispatched on 12.2.20012 to another
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firm M/s.Art Import, Mumbai, under same seal
number, thereby indicating that the container was
not destuffed and it contained the same goods,
which were initially loaded into it by M/s.New
Country Medical Supplies Co. LLC and dispatched in
favour of M/s.Anup Impex. The container arrived at
Nava Sheva on 17.2.2001 and when no one came
forward to claim the container it was opened and
after examination by the Customs, it was autioned.
When the container was opened it was found to
contain only household scraps and not the goods
originally declared in the documents, which were
accepted by A-1 Nitesh Sadarangani. The fact that
A-1 Nitesh Sadarangani redirected the consignment,
after acceptance of the documents clearly indicates
dishonest intention on his part. As per requirement
of L/C finances, the importer is expected to file in
the copy of Bill of Entry and thereby report the
arrival of consignment against which finance has
been given by the bank. Bills of Entries were not
submitted by A-1 Nitesh Sadarangani, Proprietor of
M/s.Anup Impex in all the 3 L/Cs.
9. It is further revealed that after sanction of the
credit facilities A-2 Ashok P. Sadarangani, Proprietor
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of M/s.Challenger Imports (Account No.40047), was
misutilized by transferring the funds to various
other accounts of his sister concerns opened and
operated by him and his family members in the
same branch of the bank. It is also reflects that, the
Credit Entries in the account are mostly by way of
cash deposits.
14. It is further revealed that M/s.Art Import
failed to claim the consignments. Therefore the
consignments were opened and after examination
by the Customs were auctioned. It was found that
the consignments contained household scrap and
not household articles and toys as was declared in
the documents sent by M/s.New Country Medical
Supplies Co. LLC. The fact that A-2 Ashok T.
Sadarangani directed the consignments to be
diverted after he had accepted the documents and
thus caused the payment to be made by the bank to
bankers of foreign supplier, indicates dishonest
intention on his part. His knowledge about the real
contents of the containers can also be inferred from
his conduct and the sequence of events that had
taken place with his knowledge and as per his
instructions. As per requirement of L/C finances the
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importer is expected to file in the copy of Bill of
Entry and thereby report the arrival of consignment
against which finance has been given by the bank.
Bills of Entries were not submitted by M/s.Anup
Impex and M/s.Challenger Imports in all the six
L/Cs.
17. Thus, by adopting modus operandi as
above, A-1 Nitesh Sadarangani, Proprietor of
M/s.Anup Impex, A-2 Ashok T. Sadarangani,
Proprietor of M/s.Challenger Imports and A-3
Mr.R.K.Daruwalla, the then Branch Manager of
Union Bank of India, Cumballa Hill Road Branch,
Mumbai, entered into a criminal conspiracy to cheat
the Union Bank of India and thereby cheated the
Union Bank of India, Cumballa Hill Road Branch,
Mumbai, to the tune of Rs.375.94 lacs."
16 It is, thus, clear from allegations made by the
prosecuting agency i.e. CBI in the charge-sheet that revision
petitioners / accused persons are facing the principal charge of
indulging in criminal conspiracy of cheating Union Bank of India
and as a result of that conspiracy, cheating the Union Bank of
India to the tune of Rs.375.94 Lakh.
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17 So far as revision petitioner / accused Kersi Mehta is
concerned, allegation against him reflected in the supplementary
charge-sheet filed against him by the CBI, which reads thus :
That further investigation reveals that Shri Ashok T.
Sadarangani (A-2) has introduced SB Account
No.78093 with United Bank of India, Khar (W),
Branch, Mumbai, which was opened in the name of
Shri Kersi Viraf Mehta (A-4). Further, Shri Ashok T.
Sadarangani (A-2) was also having SB
A/c.No.46507 in the same bank and he had issued
three different cheques in favour of Shri Kersi Viraf
Mehta (A-4) during the period between April 2000
to May 2000. The details of the cheques are as
under :
1. Cheque No.048521 dated 13.04.2000 for
Rs.3,15,000/- issued in favour of Shri Kersi Viraf
Mehta (A-4).
2. Cheque No.048522 dated 18.04.2000 for
Rs.85,000/- issued in favour of Shri Kersi Viraf
Mehta (A-4).
3. Cheque No.682387 dated 08.05.2000 for
Rs.10,000/- issued in favour of Shri Kersi Viraf
Mehta (A-4).
Thus, Shri Kersi Viraf Mehta (A-4) received
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Rs.4,10,000/-.
That further investigation revealed that Shri Kersi
Viraf Mehta (A-4) sent letter dated 24.02.2000 and
02.03.2000 for allowing separate ceiling share to
land owners in respect of property at Village Akse as
well as property at Mahavir Nagar, Village Kandivali.
He also sent letter dated 22.03.2000 for permission
for sale of non vacant land at village Kandivali.
18 It is, thus, seen that the Special CBI Cases Nos.3 of
2004 and 78 of 2015 and Criminal Case No.364/P/2002 decided
on 30th January 2013 by the learned Metropolitan Magistrate,
Mumbai, are in respect of two different offences. Offences
involved in these two sets of cases are not identical. Even
allegations of facts in these two matters are entirely different. By
no stretch of imagination it can be said that in these two sets of
cases, offences are the same warranting application of the bar
prescribed by Section 300(1) of Cr.P.C. or under Section 26 of
General Clauses Act. Previous criminal case initiated at the
instance of Homi Sanjana was for cheating Homi Sanjana and his
family members by preparation of forged Powers of Attorney and
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execution of lease deeds by using those forged Powers of Attorney
for transferring lands in favour of co-accused and preparation of
forged Income Tax Clearance Certificate and using thereof for the
purpose of cheating. Present cases initiated at the instance of the
Chief Vigilance Officer of the Union Bank of India are in respect of
securing credit facilities by accused persons and utilizing these
credit facilities in a dishonest and fraudulent manner for cheating
the Union Bank of India to the tune of Rs.375.94 Lakh. Though
some of the accused persons in cases in hand and the criminal
case decided by the Metropolitan Magistrate are same, by that
itself it is not possible to hold that offence in both these cases are
same or arising out of same facts. Facts constituting conspiracy
and cheating Homi Sanjana and his family members so also the
Income Tax Officer and the Sub-Registrar by forging Powers of
Attorney and Income Tax Clearance Certificate are not ingredients
of indulging in conspiracy and cheating the Union Bank of India.
Forging Powers of Attorney and getting lease deeds registered on
the basis of forged Powers of Attorney might have facilitated
commission of offence of cheating the Union Bank of India by
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using those lease deeds and properties covered by them but both
these offences are distinct ones and facts of the offence registered
at the instance of the Chief Vigilance Officer of the Union Bank of
India are totally different from the facts of offence registered at
the instance of Homi Sanjana. Those do not fall in the category of
same offence within the meaning of either Section 300 of the
Cr.P.C. or under Article 21(2) of the Constitution of India. Section
218 of the Cr.P.C. provides that for every distinct offence of which
a person is accused, there shall be a separate charge and every
such charge shall be tried separately. In this view, the judgment in
the matter of Kolla Veera Raghav Rao (supra) cited by the
learned advocate for the revision petitioners /accused is of no
application.
19 In the result, no error of law can be seen from
impugned order rejecting the plea of double jeopardy by the
learned Special Judge, CBI, Mumbai, raised by these revision
petitioners.
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20 Therefore, revision petitions are devoid of merit and
are dismissed.
(A. M. BADAR, J.)
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