Sri Arup Kumar Bhowmick vs Central Bureau Of Investigation
2023 Latest Caselaw 4628 Cal

                   IN THE HIGH COURT AT CALCUTTA

                     (Criminal Revisional Jurisdiction)

                               Appellate Side

Present:

The Hon'ble Justice Shampa Dutt (Paul)

                               CRR 918 of 2020

                          Sri Arup Kumar Bhowmick

                                   Vs.
                   Central Bureau of Investigation, Anti
                           Corruption Branch.


For the Petitioner                    : Mr. Ayan Bhattacharjee,
                                        Mr. Santanu Talukdar,
                                        Mr. Aditya Ratan Tiwari,
                                        Mr. Suman Majumder.

For the CBI                          : Mr. Kallol Mondal,
                                       Mr. Amajit De,
                                       Mr. Jasojeet Mukherjee.

Heard on                              : 12.07.2023

Judgment on                           : 02.08.2023



Shampa Dutt (Paul), J.:

1.

The present revision has been preferred against an order dated

10.12.2019 passed by the learned Judge, CBI Court No.4, Bichar Bhawan,

Calcutta in Special Case No.1 of 2015 thereby rejecting the application of

the petitioner praying for discharge from the case.

2. The petitioner's case is that CBI ACB Kolkata registered a FIR bearing

no.RC0102013A0019(RC:19(A)/2013-Kol dated 29.06.2013 on the basis of a

letter of complaint dated 29.06.2013 by Sri Pinaki Mukhopadhyay, the

Regional Manager, Reg-II, R.B.O. Chinsurah, State Bank of India alleging

commission of offences under Section 120B, 420, 468, 471 Indian Penal

Code and Section 13(2) read with 13(1) (d) of the Prevention of Corruption

Act, 1988 against (i) Mritunjay Bhar Regional Manager of Region-I, Regional

Business Office, SBI, Howrah (ii) Arindam Bhattacharyya, the then Branch

Manager, SBI, Pandua, Agricultural Development Branch, Pandua, (iii)

Tridib Mondal, the then Field Officer, SBI, Agricultural Development

Branch, Pandua, (iv) Arup Kumar Bhowmick, Director, M/s. Raunak Cold

Storage Pvt. Ltd.; Mogra Hooghly and (v) Smt. Gopa Bhowmick, Director

M/s. Raunak Cold Storage Pvt. Ltd.; Mogra Hooghly. It was alleged that the

accused persons in criminal conspiracy got 35 fictitious PMLs (Produce

Marketing Loans) amounting to Rs.3.15 crores released from the SBI

Branch, Pandua during the period January, 2011 to May 2011 with the

intention to cheat the Bank and cause wrongful gain to themselves.

3. After investigation, charge sheet has been filed before the trial court

against 7 accused persons including the petitioner, Arup Kumar Bhowmick

cited as accused no.4 and alleging commission of offences under Section

120B read with 420, 409, 467, 468, 471 of the Indian Penal Code and

Section 13(2) read with 13(1) (c) & (d) of the Prevention of Corruption Act,

1988 and substantive offences under Section 420 and 471 of the Indian

Penal Code.

4. A supplementary charge sheet was filed by the prosecution enclosing

the opinion of CFSL, Kolkata.

5. The petitioner as the Director of M/s Raunak Cold Storage Pvt. Ltd.,

Mogra, Hooghly has stood as the corporate guarantor for all the 35 Produce

Marketing Loans released from the SBI Branch, Pandua during the period

January, 2011 to May, 2011.

6. The petitioner had filed a petition on 08.08.2017 as per provisions of

Section 239 Code of Criminal Procedure seeking discharge from the case as

he had repaid the entire loan amount for which he had stood as the

Guarantor prior to lodging of the First Information Report.

7. The Prosecution vide its petition dated 30.08.2017 opposed the prayer

of the petition seeking discharge and the prayer was rejected on 10.12.2019.

8. The FIR in the instant case was registered on 29.06.2013 and the

letter of complaint on the basis of which the FIR was registered, does not

quantify the wrongful pecuniary loss suffered by the Bank. It is stated in the

charge sheet itself that the corporate guarantor repaid the entire loan

amount, in the account of all the 35 Produce Marketing Loanees. Thus, the

Bank had collected the entire loan amount along with applicable interest by

08.02.2013 and on the date (29.06.2013) of registration of this case the loan

amount had been already nullified in the books of the Bank and thus there

was no dues.

9. The Bank had also issued a certificate to the petitioner vide its letter

No.CM/BR/13-14/139 dated 31.10.2013 that all advances made to the

borrowers under PML (Produce Marketing Loans) against corporate

guarantee of M/s Raunak Cold Storage Pvt. Ltd., Mogra, Hooghly (the

petitioner is the Director of the Company) had been liquidated.

10. It is further submitted that the moot point in the charge sheet is that

by alleged fraudulent means the Bank had suffered pecuniary loss. But in

the instant case when the loan amount of Rs.315 lakhs has been collected

by the Bank with penal interest and an amount of Rs.395.38 lakhs had

been received much before the lodging of the FIR, the question of any

pecuniary sufferance does not arise. The Bank had not only collected the

money lent out along with penal interest from the corporate guarantor but

also issued a "no due certificate" to the petitioner. The issuance of such a

certificate dated 31.10.2013 indicates that the bank has no grievance

against the loanees/corporate guarantor.

11. The petitioner states and submits that once the Bank had received

and accepted the loan amount along with penal interest of Rs.395.38 lakhs

the allegations leveled under Section 420 of the Penal Code fails, and the

allegations under the other sections automatically fail.

12. The learned Trial Judge after hearing both sides rejected the prayer of

the petitioner for discharge vide its order dated 10.12.2019.

13. Mr. Ayan Bhattacharjee, learned counsel for the petitioner has

submitted that the learned court contends that it is not empowered to grant

discharge to a petitioner even if the circumstances of the case so warrants,

as this court does not enjoy any inherent powers like the High Courts.

14. Mr. Bhattacharya further submits that several sections of forgery has

been added to the allegations made against the petitioner but not a single of

any such forgery is detailed in the charge sheet. There is no instance where

the petitioner appeared before the Bank and submitted any fake

papers/documents.

15. That the cases being of civil nature and when there is a settlement

between the Bank and the parties, the primary allegation of cheating is

negated and when the allegation of cheating goes, the other allegations of

forgery appended to its dies a natural death.

16. That the learned trial court seems to suffer from the notion that when

there are sections that are non compoundable along with the compoundable

sections the learned court cannot give any relief while exercising its powers

under Section 239 Code of Criminal Procedure. In the instant case where

the moot issue is the wrongful loss of the Bank but even before the

registration of the case the outstanding have been paid and „No Due

Certificate‟ issued by the Bank, the trial court had every reason to put an

end to the instant proceedings.

17. That the learned Judge erred in not taking into consideration the „No

Due Certificate‟ dated 31.10.2013 submitted much before the filing of the

charge sheet.

18. That the learned Judge failed to comprehend that the instant case is

one of civil nature and once a settlement has been reached by the parties

and payment made and accepted, continuation of the criminal proceedings

is a futile exercise.

19. The learned Judge failed to take into note that the Apex Court in

several of its reported judgments held once a compromise settlement is

reached between the borrower and the lender and the amount paid off,

continuation of the criminal proceedings will be an abuse of process.

20. The learned Judge failed to hold the view that the relation between the

borrowers and the Bank is one of commercial relationship and once the

pecuniary outstanding are squared off it is futile to linger in the matter.

21. The learned Judge failed to take into consideration that there was no

fake papers/documents produced before the Bank by the petitioner.

22. The learned Judge has failed to take into account that the offence of

forgery cannot lie against a person who has not created or signed the

documents (reference judgment reported in 2018(2) Crimes 449(SC) Sheila

Sebastian versus R. Jawaharraj & Anr. M/s. Bengal Orchid Infrarealty

Pvt. Ltd).

23. That the impugned order is otherwise bad in law and is liable to be set

aside and the petitioner to be discharged.

24. Mr. Bhattacharya has relied upon the following judgments:-

i. Nikhil Merchant vs. Central Bureau of Investigation & Anr.

reported in (2008) 9 SCC 677, wherein:-

The court considered quashing of non compoundable offences

under Article 142.

ii. Gian Singh vs. State of Punjab & Anr. reported in (2012)

10 SCC 303, wherein:-

The Court held that while exercising inherent powers should

keep in mind the social impact of crime, including offences under

prevention of corruption act committed by public servants even when

compromised.

iii. Central Bureau of Investigation, ACB, Mumbai vs. Narendra

Lal Jain & Ors. reported in (2014) 5 SCC 364.

In the case under reference, it is the Bank who had initiated

the recovery process. In the present case, the Bank authorities are

also accuseds.

iv. Central Bureau of Investigation vs. Sadhu Ram Singla &

Ors. reported in (2017) 5 SCC 350.

v. Anita Maria Dias & Anr. vs. State of Maharashtra & Anr.

reported in (2018) 3 SCC 290.

Matter was settled by the Bank.

vi. M/s. Nik Nish Retail Ltd. & Ors. vs. CBI & Anr. passed in

CRR 1682 of 2018.

vii. Central Bureau of Investigation, New Delhi vs. B. B.

Agarwal & Ors. reported in (2019) 15 SCC 522.

The court held charge of forgery can be imposed only on the

maker.

25. Mr. Kallol Mondal, learned counsel for the CBI has submitted that

even if the petitioner has repaid the loan amount along with interest, there

has been no amicable settlement in this case. The offence in this case is

serious and is one with a huge social impact. Bank officials with whom

the transaction of the petitioner took place, are also accuseds in this

case for offences under the Indian Penal Code and also Prevention of

Corruption Act.

26. Mr. Mondal has relied upon the following judgments:-

a) Sushil Suri vs. Central Bureau of Investigation & Anr.

reported in (2011) 5 SCC 708.

b) State of Maharashtra vs. Vikram Anantrai Doshi & Ors.

reported in (2014) 15 SCC 29.

c) Satya Narayan Sharma vs. State of Rajasthan reported in

(2001) 8 SCC 607.

d) Central Bureau of Investigation vs. A. Ravishankar Prasad

& Ors. reported in (2009) 6 SCC 351.

27. From the materials on record and the case diary, it is on record:-

1) That the petitioner has repaid the loan with interest prior to

filing of this case on 29.06.2013.

2) The investigation report is with the findings, in respect of the

petitioner as follows:-

(i) taking Produce Marketing Loan without following

the provisions of law,

(ii) operating without licence,

(iii) submitting fake PML applications,

(iv) fake KYC documents,

(v) signatures and photographs without knowledge of

the persons whose identification was used,

(vi) lower rate/amount of interest and insurance,

(vii) wrongful pecuniary advantage,

(viii) incentive to the Bank Officials.

28. All these materials on record/case diary prima facie show that there

are sufficient materials on record, to show the presence of the ingredients

required to constitute the offence alleged against the petitioner and for the

case to proceed towards trial.

29. Thus to exercise the inherent powers of this court in this case would

be an abuse of process of law/court, even though the loan amount has been

repaid in a business transaction prior to FIR. It is the transaction that has

been alleged to be prima facie unlawful, which makes the proceedings

in accordance with law as there are sufficient materials on record.

30. Accordingly, the order dated 10.12.2019 passed by the learned Judge,

CBI Court No.4, Bichar Bhawan, Calcutta in Special Case No.1 of 2015

being in accordance with law is affirmed.

31. The revisional application being CRR 918 of 2020 is dismissed.

32. All connected applications stand disposed of.

33. Interim order, if any, stands vacated.

34. Copy of this judgment be sent to the learned Trial Court for necessary

compliance.

35. Urgent certified website copy of this judgment, if applied for, be

supplied expeditiously after complying with all, necessary legal formalities.

(Shampa Dutt (Paul), J.)