Sh.Sunil Aggarwal vs State Thr. Cbi
2009 Latest Caselaw 5208 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL.REV. P.NO.357/2009

                                            Reserved on : 01.7.2009
                                      Date of Decision : 15.12.2009

SH.SUNIL AGGARWAL                                ......Petitioner
                               Through:   Mr. S.K.Sharma, Advocate.

                                Versus

STATE THR. CBI                             ...... Respondent
                               Through:   Mr.Vikas Pahwa, SC for
                                          CBI    with    Mr.Biswajit
                                          Kumar Patra, Advocate.


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        NO
3.     Whether the judgment should be reported
       in the Digest ?                                NO

V.K. SHALI, J.

1. This is a revision petition filed by the petitioner against the

order dated 6.6.2009 passed by Sh.Vinod Goel, learned

Special Judge rejecting the application of the petitioner u/s

319 of Cr.P.C. for summoning of PW-19 Tika Ram Wagley

having as an accused.

2. Briefly stated the facts of the case are that the petitioner

along with some other officials of the bank is facing a trial for

an offence u/s 420/468/471/34 IPC for having opened 26

accounts and withdrawing a huge amount from the bank

and transferring the same to these fictitious accounts, and

therefore, using the said amount for his own benefits.

3. The prosecution in support of its case had examined 19

witnesses. After examination of these witnesses, the present

petitioner Sunil Kumar, an accused filed an application u/s

319 of Cr.P.C. for summoning of Tika Ram Wagley who was

examined as PW-19 and who was working as an Accountant

cum Desk Clerk of State Bank of India, P. Nagar branch

Delhi on the ground that Tika Ram Wagley was also involved

as an accused and needs to be tried jointly along with the

present petitioner and the other accused persons. The reason

for this was that it is alleged that Tika Ram Wagley in

between the relevant period from 1990 to 1992 was

authorized to open Saving Bank account and 26 accounts

which were allegedly opened during his tenure. It was

alleged that he has admitted during his examination that he

was authorized to sign account opening form or introduce

some of the account holders of the bank etc. Therefore, it is

assumed that in respect of some of these 26 accounts he

may have completed the formalities which shows his

complicity.

4. The learned counsel for the petitioner had relied upon the

language of Section 319 of Cr.P.C. to urge that where in the

course of an inquiry or trial of an offence, it appears from the

evidence that any person not being an accused has

committed an offence for which such person should be tried

together with the accused person, the Court may proceed

against such person for the offence which appears to have

been committed.

5. The learned counsel for the petitioner had referred to the

testimony of PW-6 Sh. Madan Gopal Batra, PW-7 Sh.Ravi

Das, PW-8 Sh.Beg Raj and PW-19 Tika Ram Wagley and PW-

22 Sh.N.Sureendran (IO) in support of his contention.

6. I have heard the learned counsel for the petitioner as well as

learned counsel for the respondent and also gone through

the impugned order and as well as the testimony of the

witness mentioned above.

7. In order to appreciate the point being urged by the learned

counsel for the petitioner, it may be pertinent here to

mention that the entire essence of submissions of the

learned counsel for the petitioner is to the effect that Tika

Ram Wagley was posted in the Pratap Nagar Branch of Bank

where the alleged cheating, forgery and using of forged

documents as genuine has taken place for the purpose of

creation of fictitious accounts and transfer of funds and

consequent loans given by the bank. The said PW-19 Tika

Ram Wagley has only admitted that he as an Accountant was

authorized to open the account by signing an account

opening form, introduction form and pay in slip etc.

Therefore, it is assumed by the learned counsel for the

petitioner that PW-19 Tika Ram Wagley has admitted that he

might have opened accounts of any of the person out of these

26 fictitious accounts to show his complicity.

8. The prayer of the learned counsel for the petitioner for

summoning PW-19 of an accused was disallowed by the

learned Trial Judge primarily on the ground that Section 319

of the Cr.P.C. which enables the Court to summon any

person during the course of inquiry or a trial has been

interpreted by the Supreme Court in number of cases to hold

that a person under said Section can be summoned only if

the nature of offence which is adduced against such a person

is of such a high degree that it will in all likelihood result in

his conviction. In other words, merely by creating a

suspicion about involvement of a person is not sufficient

ground to summon an accused person to face the trial.

9. Thus the preposition of law which is laid down above is not

in dispute that before a person can be summoned to face the

trial and put the clock back the quantum of evidence which

must be adduced against such a person sought to be

summoned has to be a very high degree as in all likelihood

will result in his conviction. That means the amount of

evidence or the quantum of evidence which is normally

required at the time of framing of charge which is in the

nature of 'grave suspicion' alone that will not be sufficient to

summon the accused to face the trial. Reliance in this

regard is placed on Michael Machado & Anr. Vs. CBI AIR

2000 SC 1127.

10. Coming back to the facts of the present case, so far as the

statement of PW-19 Tika Ram Wagley itself is concerned that

cannot be read as an evidence against his own self.

Assuming though not admitting that such a statement of

Tika Ram Wagley can be taken as an evidence against his

own self even then what he states is only a general practice

that he as an Accountant could have opened the account of a

person after verifying his account opening form, introduction

form and the pay in slip that does not necessarily mean that

the Court can draw an inference against Tika Ram Wagley

that it was he who had signed the account opening form, pay

in slip or the introduction form of the petitioner who

admittedly was known to P.K.Seth, Manager of the Bank and

who had been involved with him to get the fictitious accounts

opened. P. K. Seth is already facing trial with the present

petitioner. Thus the testimony of Tika Ram Wagley cannot

be read against his own self as it is not incriminating against

him.

11. As regards the testimony of other witnesses, they are also

giving a general practice which was available in the banks

including Pratap Nagar Branch of the State Bank of India

where the alleged offence is purported to have taken place.

The fact that Accountant was authorized to open the account

after signing the account opening form, introduction form or

the pay in slip can hardly be ground for summoning the

Accountant himself. In any case this does not show any

complicity of the PW-19. I am therefore in full agreement

with the view of the learned Trial Court that there is no

evidence much less the evidence which warrants conviction

of the PW-19 in case he is summoned. As a matter of fact,

there is no evidence at all showing the complicity of PW-19.

12. It seems that the entire exercise of the petitioner is to delay

the disposal of the matter. It is already come in evidence

that PW-19 who was recalled for the purpose of cross

examination could not be served as his whereabouts were

not known. Therefore, the exercise which the petitioner has

embarked on is that if by any stretch of imagination he is

able to get Tika Ram Wagley summoned he knows for certain

that Tika Ram Wagley is not available and therefore, he

would like to draw the benefit out of his non-appearance and

shift the entire burden on to him and in any case delay the

disposal of the matter.

13. For the reasons mentioned above, I am of the considered

opinion that there is no evidence much less the evidence

which is likely to result in conviction of Tika Ram Wagley

which warrant his summoning.

14. Accordingly, there is no infirmity, impropriety, illegality or

incorrectness in the order passed by the learned Trial Judge.

The petition of the petitioner is totally misconceived and the

same is accordingly dismissed.

V.K. SHALI, J.

DECEMBER 15, 2009 RN