Amresh Kumar Mishra vs Central Bureau Of Investigationq
2011 Latest Caselaw 3055 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: May 09, 2011
                             Judgment delivered on: June 20, 2011

+      CRL.M.C. NO. 479/2010

       AMRESH KUMAR MISHRA                     ....PETITIONER
               Through: Mr. Vijay Aggarwal, Advocate.

                       Versus

       CENTRAL BUREAU OF INVESTIGATION ....RESPONDENT
               Through: Mr.Harish Gulati, Advocate.



        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

1.     Whether Reporters of local papers
       may be allowed to see the judgment?

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Amresh Kumar Mishra, the petitioner herein vide this petition

under Section 482 CrPC is seeking setting aside of the order dated

08th January, 2010 of learned Special Judge, CBI, New Delhi whereby

he dismissed the application of the petitioner under Sections 219 &

220 of the Code of Criminal Procedure seeking consolidation and

joint trial of three cases being corruption cases Nos. 98/08, 105/08 &

108/08. The petitioner has also prayed for directions to the learned

Special Judge to consolidate aforesaid corruption cases and conduct

joint trial of those cases.

2. Briefly put, facts relevant for disposal of the plea of the

petitioner is that pursuant to the investigation of case RC No.

1(E)/2007/EOW-II/DLI registered on 23rd August, 2007 in EOW Cell,

CBI, charge sheet being corruption case No. 98/08 was filed in the

court of Special Judge on 16th December, 2008 under Sections 120B,

419, 420, 467, 468, 471 IPC & Section 13(2) read with Section

13(1)(d) of P.C.Act, 1988 against 10 accused persons namely Manoj

Kumar Sharma, K.B. Nandwani, Ravi Bhushan Roy, (Valuer),

R.K.Joshi, (the then AGM, UCO Bank), Amresh Kumar Mishra

(petitioner), Ramji Mishra, Parveen Kumar, Swadesh Kumar Mishra,

Anandji Mishra and Shiv Kumar Sharma.

3. Brief allegations as per the charge sheet are that M/s. Gauri

Exim Pvt. Ktd, was sanctioned a credit limit of ` 70 lakhs as Advance

Against Foreign Bill under Course of Collection (ABC) and an

overdraft limit to the tune of ` 25 lakhs on 13.12.2004 by accused

R.K.Joshi, AGM, UCO Bank, High Court Branch, New Delhi on the

basis of collateral security of land located at Bhadohi, U.P. in the

name of M/s. Gauri Exim Pvt. Ltd. valued at ` 169.31 lakhs by the

accused Ravi Bhushan Roy of M/s. R.B. Consultants and Valuers,

Anand Nagar, Bhadohi, U.P. The said land however was not in the

name of M/s. Gauri Exim Pvt. Ltd. on the date of sanction but it was

purchased on 10th January, 2005 in the name of his Director Manoj

Sharma. The bank officials are claimed to have released ` 70 lakhs

to the private persons in furtherance of conspiracy as advance on

15th December, 2004 against four export bills submitted by the party

without creation of mortgage and adhering to the terms and

conditions of sanction letter, which was accepted by the accused

Manoj Sharma on 19th January, 2005. It is also alleged in the charge

sheet that on the request of M/s. Gauri Exim Pvt. Ltd., credit limit of

the company was further enhanced to ` 185 lakhs (ABC) on 27th

February, 2005 by extension of equitable mortgage of the same

property stipulated in the sanction dated 13 th December, 2004. The

branch officer neither conducted any physical verification of the

property proposed as collateral nor got it verified from UCO Bank's

Branch at Bhadohi. When the property was verified by Regional

Office, New Delhi through Regional Office, Varanasi on 20th June,

2005, it was found that the value of the property was negligible as it

was full of 10-15 feet deep pits. It is also alleged in the charge sheet

that after 15th December, 2004, Director of M/s. Gauri Exim Pvt. Ltd.

submitted 12 fake and forged bills to the branch for collection on

different dates and obtained advance payments to the tune of ` 179

lakhs while most of those bills were returned unpaid by the foreign

bank. Thus, the accused persons caused a wrongful loss of ` 187

lakhs to the bank.

4. That charge sheet being corruption case No. 105/2008

pertaining to RC No. 2(E)/2007/EOW-II/DLI was filed in the court of

Special Judge, CBI, New Delhi on 22nd December, 2008 under

Sections 120B, 419, 420, 467, 468, 471 IPC and Section 13 (2) read

with Section 13 (1) (d) of P.C.Act, 1988 against the accused persons

namely Shiv Kumar Sharma, Naveen Kumar Sharma, R.K.Joshi (the

then AGM, UCO Bank, High Court Branch), Amresh Kumar Mishra

(petitioner), Ramji Mishra, Parveen Kumar, Swadesh Kumar Mishra,

Anand ji Mishra and Chander Kant Dubey.

5. Brief allegation in the said charge sheet are that M/s. Sati Exim

Pvt. Ltd. was sanctioned a credit limit of ` 70 lakhs as Advance

Against Foreign Bill under Course of Collection (ABC) and an

overdraft limit of ` 25 lakhs on 13.12.2004 by R.K.Joshi, AGM, UCO

Bank, High Court Branch, New Delhi against collateral security of

property situated at Varanasi, purportedly in the name of Shiv

Kumar Sharma valued at ` 2.01 crores as per the valuation report

dated 13th August, 2002 of the valuer J.P.Srivastava. The said

property though mentioned in the sanction letter dated 13.12.2004

was not in the name of M/s. Sati Exim Pvt. Ltd. or its director Shiv

Kumar Sharma on the date of the sanction of limit and ABC. The

property was purchased on 10th January, 2005 in the name of

director of the company Shiv Kumar Sharma. It is alleged that the

bank officials in criminal conspiracy with the private persons

released ` 70 lakhs to M/s. Sati Exim Pvt. Ltd. on 15 th December,

2004 as advance against four fake and forged export bills submitted

by the company without creation of mortgage and acceptance of the

terms and conditions stipulated in the sanction letter. In fact, on

15th December, 2004, the bank officer had already allowed overdraft

of ` 69,89,155/- lakhs in the current account of the company. It is

further the case of prosecution that credit limit of the company was

enhanced to ` 180 lakhs (ABC) on 27 th February, 2005 as against the

earlier sanctioned limit of ` 70 lakhs (ABC) and ` 25 lakhs

(Overdraft), by extension of equitable mortgage of the said property

at Varanasi mentioned in the sanction letter dated 13 th December,

2004. The bank officials neither conducted any physical verification

of the said property nor got it verified from the local branch of the

bank. It is also the case of the prosecution that after 15 th December,

2004, the Director of M/s. Sati Exim Pvt. Ltd. submitted 13 fake and

forged bills to the branch for collection on different dates and

obtained advance payments to the tune of ` 245 lakhs while most of

the bills were returned unpaid by the foreign bank resulting in

wrongful loss of ` 179.94 lakhs (including interest) to the bank.

6. That charge sheet being CC No. 108/08 was filed pursuant to

the investigation of case RC No. DAI-2006-A-0009 registered with

Anti Corruption Branch, CBI, New Delhi. The charge sheet was filed

against five accused persons namely Ravinder Kumar Joshi (the then

AGM, UCO Bank), Chander Kant Dubey, Director, M/s. Edge

Garments Pvt. Ltd., Tej Kishen Tikoo, Director, M/s. Edge Garments

Pvt. Ltd., Amresh Mishra and Anand Mishra. Besides them, Late

Ranjit Banerjee and Desh Raj Sonkar were named in Column No. 2 of

the charge sheet.

7. Briefly stated, allegations in the charge sheet are that the

accused R.K. Joshi, the then AGM-cum-Branch Manager of UCO Bank,

High Court Branch, New Delhi sanctioned a limit of ` 1.78 crores as

Advance Against the Export Bills in the Course of Collection (ABC) in

favour of M/s. Edge Garments Pvt. Ltd. despite of the fact that the

company had applied for packing, credit and Foreign Bill Purchase

(FBP) facility and not ABC facility. The sanction was granted in the

background of purchase orders from six different companies in

favour of M/s. Edge Garments Pvt. Ltd. The advance was to be

collaterally secured by way of equitable mortgage of the title deed

of property No. 282, Satya Niketan, New Delhi, which was valued at

` 2 crores by the valuer Virender Kumar Arora. The sanction limit

was disbursed without equitable mortgage of aforesaid property,

which was offered by the directors of the company as security

against the loan facility. It is alleged that investigation revealed that

the said property was a leasehold property allotted by MCD, as such,

it could not have been a subject matter of mortgage without the

necessary permission from the competent authority. It is the case

of the prosecution that the accused bank officials in furtherance of

criminal conspiracy with others accepted the Agreement of Sale

pertaining to property No. 282, Satya Niketan, New Delhi and placed

it on record as security/equitable mortgage whereas the document

did not confer a valid title for creation of mortgage. It is also alleged

that the sanction limit was released by the accused bank officials in

contravention of the terms of the sanction resulting in wrongful loss

to the tune of ` 164 lakhs to the bank as some of the bills were

returned unpaid by the buyers bank.

8. Petitioner Amresh Kumar Mishra moved an application under

Section 219/220 of the Code of Criminal Procedure for consolidation

of aforesaid three charge sheets. His application, however was

dismissed by the learned Special Judge vide order dated 08 th

January, 2010. Feeling aggrieved, the petitioner has approached

this court under Section 482 CrPC read with Article 27 of the

Constitution of India.

9. Learned Sh. Vijay Aggarwal, Advocate appearing for the

petitioner has submitted that perusal of the charge sheets would

show that in all the three charge sheets, allegations of the

prosecution are that the private persons named as accused in the

charge sheets have entered into criminal conspiracy with accused

R.K.Joshi, the then AGM-cum-Branch Manager, UCO Bank, Delhi High

Court Branch to cheat the bank and caused it wrongful loss by

obtaining overdraft/sanction limits on the basis of inadequate

collateral security, which imply that nature of the conspiracy in all

the three charge sheets is the same. Learned counsel further

argued that most of the accused persons including the petitioner in

the above charge sheets are common and even most of the

witnesses are also common, therefore, in interest of valuable time of

the court and the defence of the accused/petitioner, the above three

charge sheets should be consolidated and tried together. In support

of this contention, learned counsel for the petitioner has drawn my

attention to Section 219 and 220 of the Code of Criminal Procedure.

He has submitted that petitioner is a common accused in all the

three charge sheets pertaining to almost similar offence which have

been allegedly committed within a span of one year. Therefore, he

should be tried together for the aforesaid three offences of similar

nature. Learned counsel further submitted that the offences, which

are subject matter of the above three charge sheets are of almost

similar nature and they can easily be termed as the series of acts

committed by the accused persons so connected together so as to

form the same transaction. Therefore, in view of Section 220 CrPC,

these offences should be tried together.

10. Learned Sh. Harish Gulati, Advocate appearing for the

respondent/CBI has submitted that the above three cases have not

arisen out of the same transaction and their subject matters are

totally different. He submitted that although some of the accused

named in the charge sheets and the witnesses are common but this

does not mean that the aforesaid three charge sheets should be

consolidated and tried together. Learned Prosecutor further

submitted that basic evidence to prove the charges under

respective charge sheets is also different. The cases being of

complex nature relating to bank frauds of huge amount, the joint

trial would lead to confusion, both to the prosecution as well as the

accused persons, particularly those, who are not common in the

respective charge sheets. Thus, learned Prosecutor has pressed for

dismissal of this petition with cost.

11. I have considered the rival submissions and perused the

record. Sections 218 to 223 of the Code of Criminal Procedure deal

with the law relating to joinder of charges.

12. Section 218 (1) embodies the general principle for a criminal

trial that for every distinct offence, there should be a separate

charge and there should be a separate trial for every such charge.

Section 218(2) however provides for the situations in which

exception can be made to the aforesaid general rule. It provides

that there can be joinder of charges/accused persons in a trial

provided the requirements of Sections 219, 220, 221 & 223 are met.

13. Section 219(1) of CrPC provides that when a person is accused

of more than one offences of similar kind committed within a space

of twelve months, he may be charged with and tried in one trial

jointly for upto three such offences.

14. Section 220(1) provides that when in one series of acts so

connected together to form a single transaction, more than one

offences are committed by the same person, he may be charged

with, and tried at one trial for every such offence.

15. From the language of Section 219 and 220 Cr.P.C., it is clear

that these provisions by their terms refer to the case of a single

accused and are not applicable where several persons are tried

jointly. Undisputedly, all the accused persons named in respective

charge sheets are not common. Some of the accused persons are

charge sheet specific and their names do not figure in other charge

sheets. The fraudulent transactions done pursuant to the conspiracy

are distinct. Therefore, in my considered view, no case for holding

joint trial of aforesaid three charge sheets is made out under Section

219 and 220 Cr.P.C.

16. Only provision in the Code of Criminal Procedure dealing

joinder of accused persons in criminal trial is Section 223 Cr.P.C.

Unless the conditions enumerated in Section 223 Cr.P.C. are fulfilled,

no two accused persons can be tried jointly.

17. Learned counsel for the petitioner has made an effort to bring

the case of the petitioner within the purview of Section 223(a) CrPC

and submitted that in the above referred three charge sheets, main

accused R.K.Joshi is common. Besides him, there are several

common accused persons and witnesses. Learned counsel further

submitted that even the nature of transactions and the offences for

which, the charge sheets have been filed are absolutely similar.

Therefore, the petitioner being an accused in the all the three cases

besides few others, it can be safely concluded that all the three

offences have been committed in the course of same transaction i.e.

conspiracy amongst the accused persons to defraud the bank. Thus,

learned counsel for the petitioner has strongly urged for setting

aside of the order of learned Special Judge and issue of a direction to

consolidate and conduct a joint trial for all the three charge sheets.

18. I find no merit in the above contention. Section 223(a) Cr.P.C.

reads thus:

(a) persons accused of the same offence committed in the course of the same transaction;

(b)............

.............

19. On bare reading of Section 223(a) Cr.P.C., it is clear that in

order to justify the joint trial of the accused persons arrayed in the

aforesaid three charge sheets, the petitioner is required to show

that the accused persons of respective charge sheets have

committed the same offence in the course of the same transaction.

On careful reading of the charge sheets, above-said requirement of

Section 223(a) Cr.P.C. is obviously not fulfilled. The charge sheet

pertaining to Corruption Case No.98/2002 relates to the conspiracy

between M/s. Gauri Exim Pvt. Ltd. through its director and accused

R.K. Joshi, the then AGM-cum-Manager, UCO Bank, Delhi High Court

branch. Charge sheet of Corruption Case No.105/2008 relates to a

conspiracy between Sati Exim Pvt. Ltd. through its director Shiv

Kumar Sharma and R.K. Joshi, the then AGM-cum-Manager, UCO

Bank, Delhi High Court branch and the charge sheet in Corruption

Case No.108/2008 relates to conspiracy between M/s. Edge

Garments Pvt. Ltd. through its director Chander Kant Dubey and Tej

Kishen Tikoo and R.K. Joshi, AGM, UCO Bank, Delhi High Court

branch. The beneficiaries of the aforesaid three charge sheets are

also different being above referred three companies. All the

accused persons named in the respective charge sheets as also the

witnesses cited in respective charge sheets are not common.

Merely because the nature of allegations constituting offence is

similar and some of the accused persons named in the charge sheet

and the witnesses are common, it cannot be said that the offences

which are subject matter of respective charge sheets have been

committed in the course of same transaction. Thus, in my

considered view, basic requirements of Section 223(a) Cr.P.C. to

justify consolidation of the charge sheets and joint trial is not

satisfied.

20. In view of the discussion above, I find no merit in the petition.

It appears to have been filed with a view to delay the proceedings of

trial.

21. Petition is accordingly dismissed.

(AJIT BHARIHOKE) JUDGE JUNE 20, 2011 akb/pst