Nagen Dutta vs The State Of Assam
2022 Latest Caselaw 2122 Gua

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GAHC010115032022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                  Case No. : AB/1623/2022

            NAGEN DUTTA
            S/O LATE SURENDRA KUMAR DUTTA
            R/O HOUSE NO. 6 LAKHIMI PATH BELTOLA TINIALI, PIN-781028, P.S.
            HATIGAON, P.O. BELTOLA
            DIST. KAMRUP (METRO), ASSAM

            VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP, ASSAM

Advocate for the Petitioner   : MR. A M BORA

Advocate for the Respondent : PP, ASSAM


             Linked Case : AB/1504/2022

            NARESH CHANDRA BARMAN
            S/O LATE KHOKARAM BARMAN
            R/O C-12
            RAMGARH
            P.O. NAKTALA
            KOLKATA
            WEST BENGAL
            PIN-700047

             VERSUS

            THE STATE OF ASSAM
            REP. BY THE PP
            ASSAM
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              ------------
              Advocate for : MR. B S BASUMATARY
              Advocate for : PP
              ASSAM appearing for THE STATE OF ASSAM



                                     BEFORE
                    HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN


                                          ORDER

14.06.2022.

By filing the two petitions under Section 438 of the CrPC, Sri Nagen Dutta (petitioner in A.B. No.1623/2022) and Sri Naresh Chandra Barman (petitioner in A.B. No.1504/2022) have sought for pre-arrest bail in connection with the BI (EO) P.S. Case No.05/2022, under Sections 120(B)/406/409/420 of the IPC.

Heard Mr. A.M. Bora, learned senior counsel for the petitioner in A.B. No.1623/2022 and Mr. B.S. Basumatary, learned counsel for the petitioner in A.B. No.1504/2022 and Mr. B. Sarma, learned Addl. P.P., Assam appearing for the State respondent.

Also gone through the case diary and the status report available before the Court.

On 07.03.2022, the Chief Manager, Guwahati Circle Office of the PNB, Bhangagarh lodged an FIR stating that one Fidusur Rahman, the proprietor of M/s. NAF NE Industries availed a loan of Rs.1.98 Crore on 26.08.2011, from the Mahabir Market Branch of the PNB and one Arifur Rahman stood as the guarantor by signing and executing a guarantee agreement by creating an equitable mortgage of his land and building, measuring 1 katha 10 lechas under Dag No.137 (Old)/1656 (New) of K.P. Patta No.25 (Old)/66 (New), situated at village and Mouza- Ulubari, Kamrup (M) District.

The said loan account was classified as NPA, as on 31.03.2013 and the Bank initiated the recovery proceeding under the provision of the SARFAESI Act, 2002, by issuing mandatory notice and the Bank also preferred an Original Application before the DRT, Kamrup (M) at Guwahati. During such recovery proceeding, one Anowaruddin Wakf Estate appeared before Page No.# 3/5

the DRT and claimed that the said immovable property not belongs to Arifur Rahman, who had put the same as security but it belongs to the Anowaruddin Wakf Estate. It was also challenged that the title deed that was deposited by Arifur Rahman is either fake or not valid. The DRT, Guwahati in its judgment dated 15.07.2016, had issued the recovery certificate in favour of the Bank for recovery of the loan amount from Fidusur Rahman and Arifur Rahman, as well as the M/s. NAF NE Industries, jointly and severally. After delivery of judgment far back in the year 2016, the present FIR has been filed on 07.03.2022, which has now been registered as the BI (EO) P.S. Case No.05/2022.

It has been alleged in the FIR that both sides i.e. loanee and the guarantor entered into a conspiracy with some others and submitted false and fabricated documents while availing loan, only to defraud the Bank and it was found that the project namely the M/s. NAF NE Industries have been abandoned in the midway and the equipments purchased out of the Bank fund were also not available in the Unit.

The learned senior counsel for the petitioner Mr. A.M. Bora has pressed into various documents to contend that the loan was duly sanctioned within the permissible limit and on the basis of the detail report/legal observation given by the empanelled Advocate of the Bank, who had duly certified the genuineness of the documents such as: original copy of the sale deed, zama bandi copy and other relevant documents vide Annexure-3 is the legal opinion after investigation into the title, in reference to the land, owned by Md. Arifur Rahman, on the basis of which, the loan was sanctioned by the Chief Manager, vide Annexure-4, with detail terms and conditions. It is also submitted that in the FIR itself, the informant has not made any whisper about the connivance of the present petitioners, while disbursing the loan and save and except filing the FIR, they have not brought anything on record that such loan was sanctioned in an unlawful manner and earned something illegally.

The loan turned NPA in the year 2013 and the DRT, Guwahati passed the judgment in favour of the Bank in the year 2016 but the FIR has been filed after a long delay, in the year 2022. By this time, non-finding of articles, belonging to the said M/s. NAF NE Industries, the proprietor of which was Arifur Rahman cannot draw a proposition that such industry was never installed after availing the loan, while the loan was sanctioned in the year 2011 and inspection was made in the year 2022.

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Now during the investigation, the I.O. has examined various documents including the land records as well as the record of the trial Court wherefrom it appears that initially the land was purchased by one Bipin Dey, who later sold the same to Arifuddin and to the Anowaruddin Wakf Estate, who raise certain disputes as regards the actual ownership of the property. The fact remains that the loanee (Md. Arifur Rahman) produced the registered sale deed before the Bank authority along with the land revenue receipt and zama bandi copy vide Annexure-7 and Annexure-8. The zama bandi copy of 1994 (Annexre-7) reveals that Patta No.25, Dag No.317 includes the names of Bipin Dey, Anowaruddin, Rajendra Kumar Kalita, Arifur Rahman (loanee) and Abdul Matlib. There is a mention that, as per the order dated 09.07.1993, passed by the Settlement Officer in the Mutation Case No.5977/1992-93, the name of Arifur Rahman was mutated in the aforesaid Dag, on the strength of purchase and possession.

It appears that the present petitioners/the Bank officials relied upon such registered documents and legal opinion given by the empanelled Advocate of the Bank, while sanctioning the loan and that cannot be faulted, by attributing criminal liability unless something specific is brought on record to suggest their connivance with the loanee and the mortgagor but no such material has emerged from the case diary.

Of-course certain irregularities have been pointed out by the I.O., on the basis of the inquiry report of the Bank officials that there were some irregularities while sanctioning the loan by not adhering to spot verification, pre-sanction appraisal, improper assessment of quantum of loan, antecedents of supplier, etc. However in absence of any specific evidence to indicate some criminal culpability of the accused/petitioners and/or illegal opinion out of such sanction of loan, etc., this Court is of the opinion that custodial interrogation of the accused/petitioners can be dispensed with at the end of their service live, as they have already retired from their service.

Taking note of all the above, even though the I.O. has raised objection against the present pre-arrest bail prayer, stating that there is possibility of hampering with the investigation and tempering with the evidence, in case of enlarging the accused/petitioners on bail, this Court is of the considered opinion that as both the petitioners have now retired from their respective services, there is no scope of such hampering and tempering, as the entire matter relates to documentary evidence.

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Accordingly the accused/petitioners named above are allowed to go on pre-arrest bail of Rs.10,000/- each, with one surety of like amount, in the event of their arrest by the arresting officer in connection with the BI (EO) P.S. Case No.05/2022, with further direction to the petitioners to appear before the I.O., within fifteen days from today to give their statement properly and to co-operate with the investigation of the case, as and when required by the I.O., till completion of investigation of the case.

With the above directions, both petitions are disposed of.

Return back the case diary forthwith.

JUDGE

Comparing Assistant