Sambhaji Diliprao Patil vs The Central Bureau Of ...
2022 Latest Caselaw 6658 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD


                CRIMINAL REVISION APPLICATION NO. 4 OF 2021

Shri. Sambhaji s/o. Diliprao Patil,
Age 43 years, Occupation Agriculturist
Permanent Resident of 'Ajanta Talkies',
Nilanga, Taluka Nilanga,
District Latur                                     ..      Applicant

        Versus

1.      The Central Bureau of Investigation (CBI),
        3rd and 4th Floor, Plot No. C-35A,
        'G' Block, Bandra Exchange, Bandra (East)
        Mumbai - 400 098

2.      The Union Bank of India
        Through, the Chief Bank Manager,
        Prabir Kumar Nath, the then Chief Manager
        Union Bank of India
        C.F. 6465, Chainsukh Road,
        Hanuman Chowk, Latur,
        Taluka Latur, District Latur,
        Maharashtra - 413 521.                 ..          Respondents


                                 ...
Mr. Shirish M. Gupte, Senior Advocate instructed by Mr.
Abhakumar D. Ostwal, Advocate for Applicant
Mr. S. S. Deve, Standing Counsel for Respondent No.1
Mr. S. B. Narwade, A.P.P. for Respondent / State

                                ...
              CRIMINAL APPLICATION NO. 3195 OF 2021
          IN CRIMINAL REVISION APPLICATION NO. 4 OF 2021

Vinod s/o. Shankarrao Patil
Age 46 years, Occu. Business,
R/o. Khori Galli Near Vanita,
Tel Udyog, Latur,
Taluka and District Latur                          ..      Applicant




::: Uploaded on - 14/07/2022               ::: Downloaded on - 15/07/2022 10:45:59 :::
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                 Versus


1.      Shri. Sambhaji s/o. Diliprao Patil,
        Age 43 years, Occupation Agriculturist
        Permanent Resident of 'Ajanta Talkies',
        Nilanga, Taluka Nilanga,
        District Latur

2.      The Central Bureau of Investigation (CBI),
        3rd and 4th Floor, Plot No. C-35A,
        'G' Block, Bandra Exchange, Bandra (East)
        Mumbai - 400 098

3.      The Union Bank of India
        Through, the Chief Bank Manager,
        Prabhir Kumar Nath,
        the then Chief Manager
        Union Bank of India
        C.F. 6465, Chainsukh Road,
        Hanuman Chowk, Latur,
        Taluka Latur, District Latur     ..          Respondents


                                  ...

Mr. Vijay B. Patil, Advocate for Applicant

Mr. Shirish M. Gupte, Senior Advocate instructed by Mr.
Abhakumar D. Ostwal, Advocate for Respondent No. 1
Mr. S. S. Deve, Standing Counsel for Respondent No.2
Mr. S. B. Narwade, A.P.P. for Respondent / State

                                   ...


                               CORAM :       S. G. MEHARE, J.

                               RESERVED ON            : 28-06-2022

                               PRONOUNCED ON : 14-07-2022





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JUDGMENT :-


        The       applicant      Sambhaji     Diliprao       Patil/accused           takes

exception to the order passed by the learned Additional Sessions

Judge -2 and Special Judge Latur, below Exhibit-229 in Special

Case (ACB/CBI) No. 12 of 2015 under Section 397 and 401 of the

Code of Criminal Procedure.

2. The applicant had preferred an application under Section

227 of the code of Criminal Procedure ("Cr.P.C.") for discharge.

The applicant was the guarantor of the company to which the two

banks sanctioned term loan. The applicant has executed a letter of

guarantee in favour of banks for the credit facility granted to the

company. The applicant had executed a registered mortgage deed

of the factory land and building along with plant and machinery

situated on land Gat No.289/A in favour of the banks on

30.07.2009 before the Sub-Registrar. After the mortgage, charge

in 7/12 extract was recorded. However, a charge was not carried

forward in the computerized 7/12 extracts. The consortium of the

bank obtained the 7/12 extract and property extract on

22.11.2012.

3. The consortium of Banks issued a demand notice under the

Securitization and Reconstruction of Financial Assets and

Enforcement of Securities Interest Act, 2002 ("SARFAESI Act"),

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and then the bank issued a notice declaring

borrowers/directors/guarantors as willful defaulters as they failed

to repay the loan amount and initiated the proceeding under

SARFAESI Act. In the proceeding under SARFAESI Act, the

Advocates appearing for the borrower company and the

guarantors submitted a certified copy of the mortgage deed dated

30.07.2009, wherein it was stated that the property bearing

survey no. 289/A of Nilanga has not been mortgaged to the bank,

but property bearing Survey No. 5/A admeasuring 740 Sq. ft has

been mortgaged. Thereafter, the bank officials obtained a certified

copy of mortgaged deed dated 30.07.2009 from the Sub-Registrar

Office Shirpur Anantpal on 07.07.2012 and verified the original

mortgage deed with the same. It was found that pages nos. 17

and 29 had been tampered with and illegally substituted with

other property, which had less value, with the criminal intention to

cheat the banks. A criminal action was initiated against borrowers/

directors. On thorough investigation, CBI has filed a charge sheet

against them all for the offences under Section 120-B, 420, 468,

469, 471 of the Indian Penal Code ("IPC") and Section 413(2)

read with 13(1)(d) of the Prevention of the Corruption Act, 1988.

4. The applicant has claimed the discharge from the said

charges; therefore, he filed an application under Section 227 of

the Cr.P.C. The learned Sessions Judge /Special Judge did not

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agree with the contention of the applicant and rejected his prayer

of discharge.

5. The learned counsel Mr. Gupte for the applicant, has

vehemently argued that the applicant has no role to play in

tampering with the document which was registered and lying with

the office of the Sub-Registrar. The prosecution has no evidence to

show the conspiracy. PW-18 did not mention the name of the

applicant. He would refer to paragraph 19 of the impugned order

and submits that the finding recorded by the learned Special

Judge is unfounded and without reason. He also argued that in the

absence of grave suspension against the accused, he should be

discharged. PW-18 does not depose anything. The amount of the

loan was repaid under the settlement on 27.04.2018, and nothing

remained to be recovered. Therefore, nothing remained for trial.

As the matter is settled, the loan is repaid no purpose would be

served by putting the applicant on trial. Not only this, the union

bank addresses a letter to the Talathi of Sakol Taluka dated

25.8.2018 to remove its charges over the property described

therein. This aspect has also not been considered by the learned

Special Judge. He would refer to case laws in support of his

contention. He prayed to allow the revision, set aside the

impugned order and discharge the applicant.

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6. The learned counsel for CBI would submit that barely

satisfying the civil liability would not discharge the applicant from

criminal liability. The prosecution has sufficient evidence that the

plan was hatched in 2008. The sub-registrar was won over. He

allowed preplacing the pages. The brother-in-law of the applicant

was also involved in the crime. He relied on case laws and

supported the impugned order.

7. The applicant has to point out that the impugned order is

illegal, improper and incorrect to exercise the powers under

sections 397 and 401 of the Cr.P.C.

8. The Judge empowers to discharge the accused if, upon

considering the record of the case and documents submitted

therewith that there is no sufficient ground for proceeding against

the accused. However, before discharging the accused, an

opportunity shall be given to the accused and the prosecution, and

the Court has to record his reasons for so doing. As far as the

powers under Section 227 of Cr.P.C. is concerned, the legal

position is settled that the Judge while considering the question

framing the charges under Section has the undoubted power to

sift and weigh the evidence for the limited purpose of finding out

whether or not a prima facie case against the accused has been

made out. Where the material before the Court discloses grave

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suspicion against the accused, which has not been properly

explained, the Court will be fully justified in framing a charge and

proceeding with the trial. The Court has to consider the broad

probabilities of the case, the total effect of the evidence and the

documents produced before the Court. But, he should not make a

roving inquiry into the pros and cons of the matter and weigh the

evidence as if he was conducting a trial. The purpose of Section

227 and 228 of the Cr.P.C. is to ensure that the Court should be

satisfied that the accusation is not frivolous and there is some

material for proceeding against the accused. It is also the settled

law that in findings of the prima facie case, the entire record and

documents submitted with the charge sheet by the prosecution

are taken into consideration by the Court. These are the broad

settled principles of law that should be considered while dealing

with an application for discharge under Section 227 of the Cr.P.C.

9. The Branch Manager of the Union Bank of India Branch Latur

lodged a report on 20.03.2014, alleging that the applicant and the

others were the parties to the conspiracy to cheat the banks. One

Ashish Marwa and the other directors diverted the funds released

from cash credit accounts of the consortium banks, and for the

purpose other the banks, it was sanctioned and thereby primary

assets were not created against the said facility. It has been

specifically alleged that the pages nos. 17 and 29 of the original

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deed of mortgage registered on 30.07.2022 with Sub-Registrar

Office of Survey No. 289/A wherein 8 Hector (valued Rs. 21.42

Crores ) have been illegally substituted with the property bearing

Survey No.5/A measuring 740 sq. fts., having lessor value. As a

result, the rightful and legal claim of consortium banks has been

affected and thereby caused the wrongful loss of Rs.21.42 Crores.

The bank accounts were classified as non-performing assets. In

Pursuant to the complaint lodged, the CBI proceeded to

investigate the allegations. It has been alleged against the

applicants that he was one of the conspirators and had knowledge

of tampering with pages nos. 17 and 29 of the original mortgage

deed. The applicant has played an active role and has used his

influence in the office of Sub-Registrar. He has, with the

knowledge, tampered with the pages of the original mortgage

deed.

10. The learned counsel for the applicant referred to a statement

of P.W.18 Shri. Mohan Sadashiv Londhe, and would submit that he

would state nothing. He is village Talathi of Nilanga. He has

stated that there was no charge on survey no. 239/A of village

Nilanga of any financial institution, and the applicant was shown

the owner of the said land. In brief, he has stated that there are

two contradictory 7/12 extracts dated 23.9.2010 and 16.7.2014.

He has also stated that the 7/12 extract dated 23.9.2010 is not in

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his handwriting.

11. No doubt, the dispute has been settled, and the bank loan is

repaid. The prosecution has a case that civil liability, if discharged,

would not discharge a person from criminal liability. The law is well

settled that the parties may avail the remedies under the various

forums as permissible under the law. Therefore, there is substance

in the arguments advanced by learned counsel for CBI that merely

clearing the loan would not discharge the applicant from criminal

liability. The learned counsel for the applicant relied on the case of

Central Bureau of Investigation, Hyderabad Versus K. Narayan Rao

[(2012) 9 SCC 512] and referred to paragraphs no.13, 14 and 15.

Paragraph no. 13 is relating to the Section 227 of Cr.P.C. laying

down the rule that if two views are possible and one of the views

given rise to suspicion only as distinguished from grave suspicion.

The trial Judge would empower to discharge i.e. at this stage, he

is not to see whether a trial ends in conviction or acquittal.

Paragraph no. 24 of the said judgment is about the ingredients of

the offence of criminal conspiracy that there should be an

agreement between the persons who are alleged to conspire, and

the said agreement should be for doing of an illegal act or for

doing, by illegal means, an act which by itself will not be illegal.

If some acts are proved to have been committed, it would be clear

that they were so committed in pursuance of an agreement made

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between the accused persons, who were parties to the alleged

conspiracy. He would rely on the case of Subramanian Swami

Versus A. Raja [(2012) 9 SCC 257] and would refer to para nos.

62 and 63. These paras are again on the point of criminal

conspiracy. He would further rely upon the case of Baldev Singh

Versus State of Punjab [2009 (6 ) SCC 564] and would refer the

para no. 17. Further, he would rely on the case of State Versus

Siddarth Vashisth @ Manu Sharma and Ors. [2001 SCC OnLine

Del 270] and would refer to para no. 39 to 42. Again, these paras

are related to Section 120-B of the IPC and its ingredients. He

further relied on the case of State through Superintendent of

Police, CBI/SIT Versus Nalini and others [(1999) 5 SCC 253] and

referred to paragraph nos. 583, 654, 663, 664 and 665. Again

these paragraphs are on the criminal conspiracy and its

ingredients.

12. The learned counsel for the applicant also relied on Union of

India Versus Prafulla Kumar Samal and another [(1979) 3 SCC 4]

and would submit that a court cannot act merely as a post office

or mouthpiece of the prosecution but has to consider a broad

probability of the case, the total effect of the evidence and the

documents produced before the Court, any basic infirmities

appearing in the case and so on. It has also been observed in the

said case that the test to determine prima facie depends upon the

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facts of each case. Where the material placed before the Court

were grave suspicion against the accused, which has not been

properly explained, the Court will be fully justified in framing a

charge and proceeding to the trial.

13. Relying on the case of Dilawar Balu Kurane Versus State of

Maharashtra [(2002) 2 SCC 135], the learned counsel for the

applicant, relying on para no. 12 of the said judgment has pointed

out settled position of law exercising the powers under Section

227 of the Code of Criminal Procedure that the Judge has

undoubted power to sift and weigh the evidence for the limited

purpose of finding out whether or not prima facie case against the

accused has been made out. He also relied upon the case of

P. Vijayan Versus State of Kerala and another [(2010) 2 SCC 398]

and again referred to Section 227 of the Cr.P.C.

14. Lastly, he relied on the case Yogesh @ Sachin Jagdish Joshi

Versus State of Maharashtra [(2008) 10 SCC 394] , and referred to

the head note A, B, C and D. This case is once again on the similar

points which have been referred to by him relying on the other

case laws.

15. In the case of Yogesh (cited supra), the Hon'ble Apex Court

observed that it is trite that the words "not sufficient ground for

proceeding against the accused" appearing in Section 227 of

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Cr.P.C. postulate exercise of judicial mind on the part of the Judge

to the facts of the case in order to determine whether a case for

trial has been made out by the prosecution. However, in assessing

these facts, the Judge has the power to shift and weigh the

material for the limited purpose of finding out whether or not a

prima facie case against the accused has been made out. The test

to determine to prima facie case depends on the facts of the each

case and in this regard and it is neither feasible nor desirable to

made out rule of universal application.

16. The learned counsel for the accused has emphasized on the

law laid down by the Hon'ble Apex Court in various cases that if

two views are equally possible and the Judge is satisfied that the

evidence produced before him gives rise to suspicion again and

distinguished from grave suspicion, he will be fully within his right

to discharge the accused. However, he has referred to the

statement of the village Talathi PW-18 and vehemently argued

that there is nothing in the evidence of this witness, wherein the

witness has given the details as regards the mutation entry of the

field which was mortgaged by the applicant, and he has

categorically stated that a 7/12 extract dated 23.9.12 was neither

written nor signed by him. He also stated that the stamp affixed

on the said extract was also not of the Talathi Nilanga because the

extract showed the charge of Union Bank of India and Bank of

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Maharashtra. Whereas the previous extract dated, 16.7.2014 does

not show the charge of any bank as stated by him in the alleged

statement. He also stated that the 7/12 extract dated 10.7.2009 is

neither written nor signed by him. He has specifically stated that

the mutation entry no. 464 in both the above 7/12 extracts is

false. These mutation entries are about the field owned by the

present applicant. The Talathi is the authority who issues and

maintains the 7/12 extracts. He has denied the signature and

stamp over the 7/12 extracts of the relevant period. The

investigation has collected evidence that pages nos. 17 and 29 of

the original mortgage deed have been tampered. The applicant

has no satisfactory explanation that the evidence produced before

the Court gives rise to the suspicion only. It would not be

appropriate to discuss the entire evidence and documents

produced by the prosecution against the applicant. However, the

prosecution has strong prima facie evidence of tampering with

previous pages nos. 17 and 29 of the original mortgage deed and

instead of the property survey no. 289/A, the property bearing no.

5/A was substituted. The applicant has control over the documents

of his own property. He never complained of committing such

fraud with his property.

17. It is undoubtedly true that it is difficult to prove the

conspiracy by direct evidence; therefore, the inference could be

14 CrRnAn-4-21.odt

drawn from prior and subsequent circumstances of the incident.

Considering the papers placed before this Court, this Court is of

the view that the prosecution has prima facie evidence against the

applicant, and there appears sufficient ground for proceeding

against the applicant.

18. This Court has gone through the impugned order. The scope

of revision petition under Section 379 is extremely narrow.

Section 397 of the Cr.P.C. gives the High Courts or Sessions Courts

jurisdiction to consider the correctness, legality or propriety of any

finding inter se an order and as to the regularity of the

proceedings of any inferior Court. Examining illegality or

impropriety of the impugned order, this Court is of the view that

the impugned order is well reasoned, correct and error free.

Hence, there is no substance in the petition. Therefore, the

following order -

(i) The Revision Application stands dismissed.

(ii) Pending Criminal Application No. 3195 of 2021 is disposed of.

19. Learned counsel for the applicant requests for extension of

interim relief for four weeks. His request is accepted. The interim

relief is extended by four weeks from today.

( S. G. MEHARE ) JUDGE rrd