(PER: THE HON'BLE MR. JUSTICE V.SRISHANANDA)
Heard Sri.Suresh S. Gundi, Advocate for the
petitioner, Sri.Neelendra D. Gunde, Advocate for
respondent No.1 and Sri.Mruthunjaya T. Bangi, advocate
2. Revision petition is by the defacto-complainant
viz., Canara Bank, Circle office, Mangalore.
3. Facts in the nutshell for disposal of the present
3.4 After completion of the investigation,
investigation officer filed a 'B' final report recommending
the closure of the case.
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3.5 Learned trial judge accepted the 'B' final report
without recourse of the complainant. When the same was
questioned by the Canara bank, later the said order was
recalled suo motu and notice was issued to defacto-
complainant.
3.6 Defacto complainant appeared before the Court
and filed protest petition. Later on, two witnesses were
present and their sworn statement was recorded. Few
documents were also marked on behalf of the complainant
supporting the protest petition.
3.7 Subsequent thereto, learned Special Judge
heard the counsel for the defacto-complainant and by
order dated 26.07.2017, the protest petition was
dismissed and 'B' final report was accepted and matter
stood closed.
3.8 It is that order which is under challenge in this
revision petition by the Canara Bank on the following
grounds."
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"1. The impugned order is highly illegal, opposed to
the documentary evidence and hence the same is
liable to be setaside.
10. The Court below erred in holding that non-
challenging the order dated 4/9/2014 is fatal to the
case of complainant. In view of subsequent order
dated 11/9/2014 complainant was issued with notice
and was given opportunity to file objections 'B'
report. Hence there was no occasion to challenge the
order dated 4/9/2014 as such the said reasoning of
the court below is perverse. In view of protest
petition being filed complainant was permitted to
produce documents and sworn statement having
been recorded the court below erred in holding that
protest petition was not maintainable.
11. The Court below erred in not appreciating the
contents of protest petition so also the sworn
statement of complainant who has clearly stated the
role played the 1st accused along with others in
causing loss to the Bank, Sworn statement at
paragraph No.2, 3 and 4 is self explanatory of the
overt acts done by accused No.1 so also the
succeeding paragraph No.5 to 12 clearly reveals
what is not considered by the Investigating Officer
while filed 'B' report. Hence court below ought to
have ordered for further investigation.
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12. The Court below committed serious error in
holding that sanction is required to file protest
petition. It ought to have seen that as the date of
filing protest petition accused No.1 was no more in
service and judgments cited by the Court in arriving
at such a conclusion is arbitrary. Moreso the
judgments cited are by the Court itself after
arguments were concluded and complainant had no
occasion to make a distinction insofar as law laid
down therein are concerned.
13. There was no need to obtain sanction to file
protest petition as Section 19 of Prevention of
Corruption Act do not mandate compliance.
14. The Court below ought to have seen that
documents produced by the complainant namely F.D
receipts there has been manipulation of rate of
interest and the same is visible from bare eyes. By
changing the said rate of interest financial loss is
caused to the Bank for which 1st accused is solely
responsible and his acts done in collusion with other
accused which attracts offence under Section 13 of
Prevention of Corruption Act so also under Indian
Penal Code.
4. Sri. Suresh S. Gundi, learned counsel
representing the revision petitioner vehemently contended
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that the learned trial Judge rejecting the 'B' final report
has resulted in grave miscarriage of justice.
5. He would further contend that accused No.1
was not a public servant and therefore, sanction to
prosecute the accused No.1 was not necessary. The
learned trial judge did not take said aspect into
consideration while rejecting the protest petition.
6. He further contended that admittedly, the fraud
committed by accused No.1 is apparent on record
inasmuch as he had opened the current accounts in the
name of accused Nos.2 and 3 and proceeds of the fixed
deposits which were invested in the Bank of different
organisations have been transferred to the current account
by creating fraudulent documents. Therefore, the closure
of the complaint by the CBI has resulted in miscarriage of
justice.
7. Sri.Suresh Gundi would also contend that the
investigation officer forming an opinion that the there is no
truth in the allegations of the complaint is based on
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surmises and conjunctures and did not reflect the real
material facts and thus sought for allowing the revision.
8. Per contra, Sri. Neelendra Gunde, counsel
representing the first respondent-CBI supports impugned
order.
9. He would further contend that the role of the
CBI would come to an end by filing the 'B' summary report
and thereafter CBI has got nothing to do with the matter.
10. According to the investigation officer no case is
made out and therefore suitable orders be passed in the
revision petition.
11. Sri.Mruthunjaya Tata Bangi, learned counsel
representing the second respondent-first accused, Kumari
Sonu Suhel, counsel representing Sri.Shartah V. Magadum
for respondents No.3 and 4 who are the accused Nos.2
and 3 before the trial court, supports the impugned order.
12. They would further contend that the material
placed on record is hardly sufficient to proceed with the
case and therefore CBI has rightly filed the 'B' final Report.
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13. It is also their contention that there was no loss
of money to the Bank which could be termed as wrongful
loss and there is no material on record, collected by the
CBI or for that matter, material placed on record along
with sworn statement was not sufficient enough to
establish that there is a corresponding wrongful gain either
to accused No.1 or any other accused.
14. Insofar as the other offences namely Section
467 and 471 of IPC, there is a clear and categorical finding
recorded by the investigation officer by filing the 'B' final
report that accused No.1 had no role insofar as the records
of the Canara Bank is concerned and therefore alleged
criminal conspiracy was absent.
15. Sri.Mrythunjaya Tata Bangi would also contend
that the so called internal investigation was at the instance
of Deputy General Manager of Canara Bank, who is not
examined as a witness in support of the protest petition.
16. He would further point out that Sri.T.V.Rajan
and Sri.B.Parshwanatha had no first hand information
about the alleged Commission of the offences and they
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sworn to before the learned Special Judge based on the
documents.
17. Sri.Mruthungaya Tata Bangi would further
contend that assuming for a moment that accused No.1
had contravened the rules of the Bank in getting the fixed
deposits, it is the duty of the manager to ascertain before
opening the fixed deposit in the names of the beneficiaries
which has not been done. Therefore no offence has taken
place.
18. He further points out that the duty that was
assigned to the accused No.1 as a Marketing officer was
only to bring in money for opening the fixed deposits from
the prospective customers which he has done it. If the
papers were not in order, Manager of the Canara Bank,
Circle office, who is incharge of opening the fixed deposit
had every right to reject the proposal for fixed deposit and
having opened the fixed deposit by the Manager and in the
absence of Manager being proceeded for the alleged act,
Marketing officer alone being proceeded shows that it is
with ulterior motive, complaint has been rightly
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investigated by the CBI and filed the 'B' final report which
is in order and rightly accepted by the learned Special
Judge. As such, this Court in the revisional jurisdiction
cannot revisit into the said aspect of the matter and
sought for dismissal of the revision petition.
19. Having heard the arguments of both sides, this
Court perused the material on record meticulously.
20. On such perusal of the material available on
record, the sole point that would arise for consideration
are as under:-
i) Whether the impugned order accepting the 'B'
final report by rejecting the protest petition is Just
and proper?
21. In the light of rival contentions. This Court
perused the material on record meticulously. On such
perusal of the material on record, it is seen that a
complaint came to be lodged by PW1 with CBI. CBI
registered the case and thereafter investigated the matter.
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22. After thorough investigation, including obtaining
search warrant and collection of the documents, CBI found
that there is no truth in the allegations levelled against the
accused No.1 and other accused persons for the alleged
offences, filed 'B' final report.
23. Learned trial judge on receipt of the 'B' final
report, at the first instance, closed the case without
notifying the defacto-complainant who is the revision
petitioner.
24. Later on suo motu, Court recalled that order
based on the office note and issued notice to the revision
petitioner.
25. Pursuant to the notice, revision petitioner
appeared before the Special Judge and filed the protest
petition.
26. Thereafter, learned trial judge proceeded to
record the sworn statement of defacto-complainant Mr.
T.V.Rajan and sworn statement of another witness viz.,
D.Parshwanath.
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27. The relevant portions of the sworn statements
are culled out hereunder for ready reference.
Sworn statement of the complainant:
Sri.T.V.B.Rajan
"01. I am the complainant in this case. I know
the accused. The accused was working as a
marketing Manager in Canara Bank, Traffic Island
Hubli. The accused was entrusted with the work of
canvassing the marketing and collecting the
deposits in favour of the bank. I worked as a A.G.M
Canara Bank, Circle office Hubli from June 2013 to
June 2014. Our vigilance office has conducted
internal investigation in our bank. They found some
irregularities in canvassing bulk deposits for the
bank. Our inspection Department conducted detailed
inquiry and gave a detailed report notice the
irregularities. The accused introduced one account
holder and got opened current account. The accused
has offered more rate of interest than that of
permitted rate of interest by the bank. This act of
the accused is an unauthorized act. The accused
used to deposit the huge amount deposited by
organizations in current accounts of some other
persons. Then after some days the accused used to
take letters from current account holders stating
that the said amount was not belonging to them.
Then the accused used to deposit the said amount
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in the names of organizations like Mysore minerals,
BMRDA, Rajeevagandhi Health University, Karnataka
State Bevarage Corporation, Hatti gold mines, LIC
etc., showing the higher rate of interest than
permitted by the bank. The accused has
unauthorizly used the bank offer forms. Accused
used to show the higher rate of interest to such
organizations. After the maturity the organizations
used to claim the deposited amount alongwith
exorbitant rate of interest which was shown by the
accused. Then the accused used to divert the funds
of one organizations to another organizations for
compensating the claim. The accused used to
transfer the funds from the accounts of
organizations to the S.B. accounts of some other
account holders. He used to collect the amount from
such accounts and used to pay excessive interest to
the such organizations. Some amounts were also
paid towards the higher interests from our bank.
After the investigation vigilance department of bank
came to know regarding the total loss of more than
Rs.1.5 crores. In case of loss of more than 1 crore
the matter is to be referred to CBI as per our bank
norms. The bank has dismissed the accused and
took departmental actions against the officials who
are involved in this case. Accordingly I filed
the complaint to the CBI as per the instructions of
our Head Office.
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Sworn statement of the complainant : -
B.Parshwanath
01. 1 am working as a Asst. G.M., Canara Bank,
Regional Office, Hubli. I know the complainant and
accused in this case. In the year 2010 I was
working as a Chief Manager, Canara Bank at
Chennai. At that time the accused was working as a
Marketing Manager, Traffic Island Branch, Hubli.
Now I see Ex.P-8 SB containing bunch of FD
receipts. In the FD receipts the rate of interest is
altered quoting high rate of interest manually. FD
receipt was issued on 18.05.2010 and it is back
dated as 06.05.2010. Likewise under Ex.P-9 in
number of FD receipts dates were back dated. Rate
of interest were given from back date. Now I see
Ex.P-4 letter by G-5 solution Pvt. Ltd., wherein they
have stated 30 Crores of amount credited to their
account was not pertaining to them. Likewise
number of credits were shown without there being
any deposits. Likewise number of irregularities
were found. Thus the difference of rate of interest
amounted to Rs. 1.38 crores. Therefore the bank is
put to loss. Therefore I pray for further
investigation."
28. Documents that were placed on record on
behalf of day complainant were also marked. Pertinent to
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note that along with the sworn statement, no sanction
order was placed on record by the complainant.
29. As could be seen from the material on record,
the role of accused No.1 was only to bring in the fixed
deposit being the Marketing officer. When the money is
brought in to the bank, with the necessary application, the
role of accused No.1 ended. Later, it is for the Manager to
verify and scrutinise the proposal and then open the fixed
deposit. If the proposal papers were not in order,
necessary objections ought to have been raised by the
Manager and thereafter if there is compliance, the fixed
deposits ought to have been opened.
30. Accused No.1 being the Marketing officer,
brought in huge amount running into several crores and
got it transferred into the private account of accused Nos.2
and 3 and from those accounts fixed deposits were made
in the names of Government authorities and those FD
receipts were manipulated and were withdrawn, is the
allegation in complaint.
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31. In the case on hand, no such illegality is found
and whatever the proposals that has been brought in by
the accused No.1 were accepted and fixed deposits were
opened. After 17 days of such opening of the fixed
deposits, they were closed based on the statement said to
have been made by the accused No.1. What happened in
the interregnum is to be explained by the Canara bank,
especially, when the proposal is accepted by the manager.
Manager is not proceeded in the case, though Mr.Suresh
Gundi would submit that action has been initiated against
the then Manager and other officers. Result of such action
is not placed on record.
32. Moreover, as could be seen from the sworn
statement and the complaint averments, there is an
internal investigation that has taken place. What is the
internal investigation report and whether the same was
taken note of by the higher officials and if it is so, why
there was no sanction order to prosecute accused No.1 is
not forthcoming on record.
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33. Further, it is noted that the action is initiated at
the instructions of Deputy General Manager. The Deputy
General Manager is not examined as a witness in support
of the protest petition.
34. In other words, the material evidence that is
sought to be placed on record is selective in nature. Being
the officer of the Canara Bank and being the public
servant, role of the complainant should not be one sided.
Complainant should have placed on record all material
facts which would substantiate the complaint averments
and the protest petition. Selectively placing the material
documents would only go to show that somehow the bank
is interested in continuing the prosecution against the
accused Nos.1 to 6.
35. Sri Suresh Gundi, learned counsel tried to
impress upon this Court that accused No.1 is compulsorily
removed from the post of Marketing officer and therefore
sanction order is not necessary.
36. Admittedly, at the time of incident, he was a
public servant and for the offences punishable under
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section 13(1)(d) and 13(2) of the Prevention of Corruption
Act, sanction order was very much necessary.
37. Learned trial judge in the impugned order taken
note of the principles of law enunciated in the case of M.K.
Ayyappa Vs. State of Karnataka1 and in the case of
Sri.Renukacharya and others versus State of
Karnataka2. The same is discussed at length in paragraph
numbers 22 to 26 of the impugned judgement which is
called out hereunder for ready reference.
"22. In a decision reported in M.K.Aiyappa Vs.
The State of Karnataka & Ors. KCCR 2014(2)
page No.1412, Hon'ble High Court of Karnataka has
held as under.
PREVENTION OF CORRUPTION ACT,
1988-Secs.19, 13(1)(c), (d), (e), (2) and
12-Sanction for prosecution - Special
Court in Private complaint, ordered
investigation by police without sanction
for prosecution Held, requirement of
sanction for prosecution is mandatory
2014(2) KCR 1412
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even at pre-cognizance stage- Ordering
of investigation without prior sanction for
prosecution is not proper- Order of Spl.
Judge and complaint quashed - Petition
allowed.
23. In a similar situation in another case of Sri.
Renukacharya & Ors. Vs. the State of Karnataka
by Karnataka Lokayukta Police, Davangere
District, Hon'ble High Court of Karnataka while
quashing the proceedings and FIR was pleased to
observe at para No.10 of the decision as under.
10. The attempt of the state to
distinguish present case from that of
Mrs.Priyanka Srivatsava on the ground
that, it was a complaint U/s.156 of
Cr.P.C, whereas, present one is filed
U/s.200 of Cr.P.C, is misconceived. There
is no different species in the private
complaints. A private complaint is a
private complaint whether it quote
Sec.156 of Cr.P.C. or Sec.200 of Cr.P.C.
While in our State litigants filed private
complaint U/s.200 of Cr.P.C, in certain
other states we are informed that, they
quote Sec. 156 of Cr.P.C. It is obvious
that the complaint was not accompanied
with the affidavit of the complainant. The
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order of investigation sounds that, on
mere presentation of complaint, it is
referred for police investigation. The
judgment of Mrs.Pryanka Apex Court
Srivatsava in was pronounced on
19.3.2015 and it was ordered to circulate
to all the magistrates of the Nation. Now
neither the complainant who is also an
advocate nor the court can express
ignorance of the dictum of Apex Court.
Since the order passed by the learned
Spl. Judge which is subsequent to the
judgment of Mrs.Priyanka Srivatsava is
patently illegal and cannot be sustained
the complainant has to abide by the
guidelines of the Apex Court and follow
the procedure required for presentation
of a private complaint before the
concerned court. Therefore, it is for the
court to act in accordance with the
established principles reiterated in the
case of Anilkumar and Priyanka
Srivatsava and passed necessary orders.
24. As already noticed by me above, the protest
petition is nothing but a complaint. A private
complaint against the public servant for referring
the same to IO needs a sanction from competent
authority. No sanction is obtained by the
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complainant before filing the protest petition. In a
decision reported in CBI through SP Jaipur Vs. State
of Rajasthan and another AIR 2001 Supreme Court
668 Hon'ble Supreme Court of India has held as
under;
Criminal P.C. (2 of 1974) Ss. 156(3),
2(O), 36-Delhi Police Establishment Act,
(25 of 1946), Ss. 5,6,- Investigation by
CBI - Cannot be directed by Magistrate -
Ss. 5,6 of 1946 Act do not confer any
such power on Magistrate
25. The complainant cannot invoke the jurisdiction
of this Court to refer the matter to CBI for
investigation. When the complainant cannot invoke
the jurisdiction of the Court to refer the matter to
CBI then he cannot also invoke the jurisdiction of
this Court for referring the matter to CBI for further
investigation. Therefore, looking to the facts and
circumstance of the case, the principles laid down by
the Hon'ble Supreme Court of India in the decisions
reported in Mrs. Priyanka Srivastav and Anr. Vs.
State of UP and Ors. AIR 2015 S.C.1758, State
of MP Vs. Sheetla Sahai and Ors. 2009 AIR
SCW 5514, Tulasiram Bhimanna and Ors. Vs.
State of Karnataka and Anr, 2016 (2) KCCR
1052, Anilkumar and Ors. Vs. M.K.Aiyappa and
Anr, 2014 Cri.L.J. 1) Subramanyam Swami Vs.
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Manmohan Singh (2012) 3 SCC 64(para 19)
are aptly applicable to the present case on hand.
No-where under their sworn statements PWs.1 and
2 have whispered as to why they have not obtained
the sanction to prosecute the accused either U/s.
197 Cr.P.C. or U/s.19 of PC Act.
26. In view of Sec. 19 of PC Act, 1988 which is a
special Act as well as in view of the dictum laid
down by the Hon'ble High Court of Karnataka and
Hon'ble Supreme Court of India in the decisions
referred above it is a condition precedent to get the
sanction to prosecute the accused before filing
complaint. Complainant has not sought for sanction
to prosecute the accused in writing till this day. The
alleged acts of accused prima facie do not constitute
the offences under PC Act, 1988. Despite taking
several adjournments, the complainant has failed to
produce any valid sanction to prosecute the
accused. Therefore on this count, also the complaint
is not maintainable before this Court."
38. From the material placed on record having
regard to the limited scope of revisional jurisdiction, in the
light of principles of Law enunciated in Amit Kapoor vs.
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Ramesh Chander and another3, this Court is of the
considered opinion that the grounds urged in the revision
petition are hardly sufficient to set aside the impugned
order.
39. Accordingly, point is answered in the affirmative
and following order is passed:
ORDER
Revision petition is meritless and is hereby
dismissed.
Sd/-
(V.SRISHANANDA)
JUDGE
HMB
CT:PA
(2012) 9 SCC 460
