Delhi High Court
State vs Rajesh Bhanot & Ors on 23 February, 2016
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2227/2014
Date of Decision: February 23rd , 2016
STATE ..... Petitioner
Through: Mr.Vinod Diwakar, APP.
versus
RAJESH BHANOT & ORS ..... Respondent
Through: Mr.Pradeep Kumar, Adv. for Respondent
Nos.1 to 3.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
ORDER
P.S.TEJI, J
1. The present petition has been filed by the petitioner/State under
Section 482 of Code of Criminal Procedure for setting aside the order
dated 15th October, 2013 passed by the learned Additional Sessions
Judge/Special Judge, Dwarka Courts, Delhi, in FIR No.358/02 registered
under Sections 420/471/120B of the Indian Penal Code, Police Station
Dwaraka and call/summon the case records of the FIR No.358/02, Police
Station Dwarka, Delhi.
2. Briefly stated the facts giving rise to the present petition are that on
19th October, 2002, a complaint was made by National Highway
Authority of India (hereinafter referred to as "NHAI" for brevity) to the
police asserting that a contract was awarded by the complainant/NHAI in
favour of M/s Rana Projects International Limited for the purpose of
executing a project regarding four laning of National Highway No.25
which was on Lucknow-Kanpur Section. In lieu of that, the contractor
was to deposit bank guarantee with NHAI against mobilization of funds
to them inter alia the other terms and conditions.
3. In pursuance of the prescribed procedure by NHAI, the contractor
deposited bank guarantee no.17/99 dated 24th August, 1999 to the tune of
Rs.3.98 crores which was stated to be extended by bank guarantee
no.93/99-2001 and that another bank guarantee no.265/2020 dated 21st
August, 2002 to the tune of Rs.2.00 crores was deposited.
4. After enquiries, it was revealed that both the bank guarantees were
forged and the confirmation letters purportedly returned by the concerned
banks were also manipulated by forging. After investigation on the said
complaint, the police filed a final report holding that the bank guarantees
were forged by one Mr.P. Ramakrishnan, who was stated to be an
independent person and Mr.U.V.S. Giri, one of the employees of M/s
Rana Projects International Limited. An FIR No.358/02 in this regard
was registered under Sections 420/471/120-B of the Indian Penal Code.
5. Learned counsel for the petitioner has submitted that the names of
accused Mr.Rajesh Bhanoth, Mr.R.S. Rana & Ms.Birkha Rana, who were
the directors of the contractor company, were kept in column no.2 and it
was opined by the investigation officer that there was a lack of sufficient
incriminating evidence against them.
6. Learned counsel for the petitioner/State has further submitted that
vide order dated 8th September, 2011, the learned ACMM found that
there were sufficient grounds for proceeding against the
accused/respondents and the accused were charged under Sections
420/471/120 of the Indian Penal Code. Thereafter, aggrieved by the
order dated 8th September, 2011, the respondents approached the learned
Additional Sessions Judge, who allowed the revision petition and set
aside the order dated 15th October, 2013.
7. Aggrieved by the said order dated 15th October, 2013, the State has
filed the present petition alleging that the learned Additional Sessions
Judge did not take into consideration the fact that the
accused/respondents, being directors of the company, were the direct
beneficiaries of the act of the accused persons and that while acting hand
in glove with other, they forged the bank guarantee for defrauding and as
the funds were mobilized in favour of the contractor company, wrongful
loss has been caused to the complainant for causing wrongful gain in
favour of the accused.
8. The present petition has also been filed by the State on the ground
that the learned ASJ had failed to take into consideration the fact which
clearly emerges from the record to the effect that the accused R.S. Rana
and Birkha Rana were active directors of the contractor company in the
year 1999 and the accused Rajesh Bhanoth was one of the directors in the
year 2002. It is also alleged that copy of the resolution dated 28th July,
1999 of the contractor company, reflects that Mr.U.V.S. Giri, the A.G.M.
apprised the Board of Directors about banking consultant who could
arrange the bank guarantee of Rs.3.98 crores against his commission and
that by the same resolution, Mr.Rajesh Bhanoth, the then G.M. was
authorised to instruct Mr.Giri to arrange the bank guarantee. Certain
payments were also stated to be allegedly made to the accused Mr.P.
Ramakrishanan.
9. The order of learned Additional Sessions Judge is also challenged
on the ground that the evidence clearly established involvement of all the
accused persons in arrangement of forged and fabricated bank guarantee
and as the amounts of bank guarantee were in crores of rupees and the
company was the direct beneficiary, it could not be accepted that
directors of the company were not aware of the fact regarding preparation
of forged bank guarantee. The accused persons were also stated to have
failed to disclose the reasons as to why heavy amount in lacks of rupees
were given to Mr.P. Ramakrishanan in cash with reference to bank
guarantee though actual payment was never required by the bank for
issuance of bank guarantee.
10. Learned APP for the State further contended that prima facie, there
was enough material on record to frame charges against the accused
persons. In support of his contention, learned APP for the State relies on
the pronouncement of Hon'ble Supreme Court in Yogesh @ Sachin
Jagdish Joshi v. State of Maharashtra (2008) 10 SCC 394 wherein the
Apex Court held that an illegal act or an act by illegal means is sine qua
non of the criminal conspiracy but it may not be possible to prove the
agreement between them by direct proof. Existence of the conspiracy
and its objective can be inferred from the surrounding circumstances and
the conduct of the accused. An offence of conspiracy is a substantive
offence and renders the mere agreement to commit an offence punishable
even if an offence does not take place pursuant to the illegal agreement.
11. Learned counsel for the respondents, on the other hand, has
strongly opposed the petition on the ground that while disposing off the
revision petition, learned Additional Sessions Judge, vide order dated 15th
October, 2013 has rightly set aside the order on charge dated 8 th
September, 2011 on the ground that charge could not be framed at that
stage against the respondents herein. Learned counsel for the
respondents has further submitted that the revisionists/respondents herein
were kept in column no.2 and evidence were yet to be adduced in the
case. Learned ASJ has also stated to be rightly held that charge cannot be
framed on presumption when the investigation agency has not found any
evidence against the accused and kept them in column no.2.
12. I have heard learned counsel for the parties at length and perused
the available records. I have also gone through the judgments cited by
learned counsel for the petitioner.
13. The record reveals that the respondents were kept in column no.2.
Apparently, the company of the respondents furnished the bank guarantee
of Rs.72.00 lakhs initially and thereafter another bank guarantee of
Rs.2,18,55000/- was furnished. It is the case of the respondents that the
complainant concealed the fact that the said bank guarantees were
genuine. Further bank guarantee of Rs.3.98 crores was furnished which
was alleged to be forged one and when balance of mobilization amount
was reduced, fresh bank guarantee of Rs.2.00 crores was given. It is the
specific plea of the respondents that they were not having any knowledge
about the alleged forged bank guarantee and for that, they had taken the
legal steps.
14. It transpires from the record that after taking cognizance, the
respondents were summoned by the learned Metropolitan Magistrate
when they challenged the order on charge. The respondents were kept in
column no.2 on the ground of lack of incriminating evidence against
them. The learned ASJ has rightly held that the charge could not be
framed on mere presumption when the investigation agency did not find
any evidence against the accused and the accused were kept in column
no.2. The learned ASJ has also rightly held that as evidence was yet to
be adduced in the case, summoning of accused persons cannot be basis
for framing charge against them.
15. Needless to say, the Trial Court is always empowered under
Section 319 of Cr.P.C., to proceed against the accused shown in column
no.2 if sufficient evidence is available on record during the trial.
16. For all the foregoing reasons, I do not find any infirmity, illegality
or irregularity in the order dated 15th October, 2013 passed by the learned
Additional Sessions Judge.
17. Consequently, the present petition is dismissed.
(P.S.TEJI)
JUDGE
FEBRUARY 23rd, 2016
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