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CR.RA/46020/2008 2/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
REVISION APPLICATION No. 460 of 2008
==================================================
CENTRAL
BUREAU OF INVESTIGATION - Applicant
Versus
SHAUKAT
BARKATALI KESHVANI AND ANOTHER - Respondents
==================================================Appearance
:
MR YN RAVANI for the Applicant.
MR JM PANCHAL WITH MS LILU K BHAYA for Respondent :
1.
MR AJ DESAI, ADDITIONAL PUBLIC PROSECUTOR for Respondent :
2.
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CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 20/10/2008
ORAL
ORDER
1. Heard
learned Advocate Yogesh N. Ravani for the applicant – CBI, learned
Advocate Mr. J. M. Panchal for Ms. L. K. Bhaya for respondent No. 1
and learned Additional Public Prosecutor Mr. A. J. Desai for
respondent No. 2 State. RULE. Learned Advocates for the
opposite sides waive service on behalf of their respective parties.
2. This
Revision Application preferred under Section 437 read with Section
401 of the Code of Criminal Procedure is directed against the order
passed below Exh. 3 by the learned Special Judge (CBI), Court No. 4
at Mirzapur, Ahmedabad in CBI Special Case No. 23 of 2006 by which
the learned Special Judge has allowed the application for discharge
filed by respondent No. 1. It is submitted that the order passed by
the learned Judge is erroneous, perverse and contrary to the law and
requires to be quashed and set aside.
3. The
short facts leading to the filing of the present petition are stated
hereinbelow:-
One
M/s Mahalaxmi Steel Traders, a proprietorship concern of one Mr.
Ashish S. Shah applied for Cash Credit facility to the PNB. On
13-02-2002, the Cash Credit facility of Rs. 40 Lakhs was made
available to M/s Mahalaxmi Steel Traders on the following securities
and guarantees:
Hypothecation
of primary security of iron steel bars, patta, angle,
channel, etc.
Collateral
security of the immovable properties:
(a) Flat No. 304, 704 of
Aasha ;
(b) Flat No. 402, 702, 904,
1002 of Kiran , Asha Kiran Apartments, Satellite Road,
Ahmedabad;
(c) Office Premises A and
G in Vardan Exclusive Tower, 6th Floor, Stadium
Road, Near S. P. Colony, Ahmedabad.
4. It
is submitted by the learned Advocate that so far as the Title
Clearance Certificate is concerned, the Bank has issued certain
guidelines by way of Circulars dated 08-07-2000, 17-09-2002 and
21-03-2000. They are issued with a view to prevent frauds which
normally occur with the bank by producing forged documents.
Respondent No. 1 was duty bound to issue the Clearance Certificate in
strict adherence to the guidelines issued by the Bank and to verify
the genuineness of the documents after making necessary inquiry in
the matter.
5. As
the amount in question was not realized, a complaint was lodged by
the Bank through its authorized officer before the CBI being
complaint bearing No. RC 27 (A) / 2004 GNR on 02-12-2004 for the
commission of offences punishable under Section 120B read with
Sections 420, 467, 471 of the Indian Penal Code as well as under
Section 13 (2) read with Section 13 (1) (D) of the Prevention of
Corruption Act, 1988. Thereafter, the investigation commenced in the
matter and during the course of investigation, it was found that
without verifying the genuineness of the documents, respondent No. 1
had issued the Title Clearance Certificate. On completion of the
investigation, the charge sheet came to be filed against
respondent No. 1 along with other accused persons. Thereafter,
respondent No. 1 filed the application vide Exh. 3 under Section 227
of the Code of Criminal Procedure, 1973 for discharge and the same
was allowed by the learned Special Judge by order dated 03-03-2008.
6. The
learned Advocate for the applicant submitted that the learned Special
Judge has committed egregious error in exercising the powers under
Section 227 of the Code of Criminal Procedure. While deciding the
application for discharge, the learned Judge ought to have verified
as to whether there was sufficient material to discharge respondent
No. 1. The learned Judge committed error in holding that there was
no sufficient material to try respondent No. 1 and has, thus, far
exceeded the jurisdiction vested in her. The learned Judge has
overlooked the guidelines framed by PNB and further erred in not
considering Circular No. 56 dated 08-07-2000 which specifically
states that the Bank should obtain certificate from the Advocate /
Solicitor certifying the title to concerned property being original
and duplicate or fake and that the title is clear, marketable and
free from encumbrances. The learned Judge ought to have taken into
consideration that respondent No. 1 is involved in serious offences
punishable under Sections 420, 467, 471 of the Indian Penal Code as
well as under Section 13 (2) read with Section 13 (1) (D) of the
Prevention of Corruption Act, 1988 including under Section 120B of
Indian Penal Code and since he was involved in a criminal conspiracy,
the prayer for discharge ought to have been rejected. Thus, the
learned Judge has not taken into consideration various circulars
issued by the Bank from time to time in proper perspective while
discharging respondent No. 1 for serious offences punishable under
Section 120B read with Sections 420, 467, 471 of the Indian Penal
Code as well as under Section 13 (2) read with Section 13 (1) (D) of
the Prevention of Corruption Act, 1988 and, therefore, the order
passed by the learned Judge be quashed and set aside and the Revision
Application be allowed.
7. Learned
Advocate Mr. J. M. Panchal representing respondent No. 1 submitted
that while granting the application for discharge, the learned Judge
has taken into consideration the role played by respondent No. 1 in
the alleged commission of offences punishable under Section 120B
read with Sections 420, 467, 471 of the Indian Penal Code as well as
under Section 13 (2) read with Section 13 (1) (D) of the Prevention
of Corruption Act, 1988 and, therefore, the revision preferred by the
applicant is devoid of merit and does not call for interference by
this Court. The learned Advocate further submitted that even on bare
perusal of the reasoning given by the learned Judge, it becomes clear
that ultimately it is incumbent upon the concerned officer of the
Bank to personally verify and inspect the immovable property which
was offered as a mortgage and duty is not cast upon respondent No. 1
to go into all the minute details. The shortfall, as per the
detailed discussion made by the learned Judge, is that he had not
inquired from the management of those offices or the flats about the
actual allotment of the property to the co-accused. The learned
Judge has, after considering the material which was placed before
her, rightly allowed the application for discharge preferred by
respondent No. 1 and no interference is called for in an order of
discharge passed by the learned Judge while exercising the revisional
powers under Section 397 of the Code of Criminal Procedure. The
learned Advocate further submitted that even the powers under Section
397 are required to be exercised in very exceptional circumstances if
there is any illegality committed by the learned Judge or the order
is on the face of it perverse. Considering the detailed and
exhaustive reasons given by the learned Judge, no interference is
called for in the matter and the application deserves to be
dismissed.
8. I
have heard learned Advocate Mr. Y. N. Ravani for the applicant
CBI, learned Advocate Mr. J. M. Panchal for respondent No. 1 and
learned Additional Public Prosecutor Mr. A. J. Desai for respondent
No. 2 at length and in great detail. I have perused the order passed
by the learned Judge below Exh. 3 in CBI Special Case No. 23 of 2006,
the Circulars issued by PNB dated 08-07-2000 and 17-09-2002 as well
as the Certificate given to Shri Pragnesh Himatlal Yagnik of Vardan
Builders Limited dated 17-12-2001 and NOC dated 15-03-2002 given to
Mr. Pragnesh Himatlal Yagnik which has been referred to by the
learned Advocate for the applicant.
9. Respondent
No. 1 is booked for the offences punishable under Section 120B read
with Sections 420, 467, 471 of the Indian Penal Code as well as under
Section 13 (2) read with Section 13 (1) (D) of the Prevention of
Corruption Act, 1988. The applicant, who is aggrieved by the order
passed by the learned Special Judge below Exh. 3 in CBI Case No. 23
of 2006, has preferred the present Revision Application on the ground
that even though the duty was cast on respondent No. 1 to verify
various documents before giving the Clearance Certificate, the same
was not done by him and he had not adhered to the various guidelines
issued by the Bank from time to time with regard to the verification
of the genuineness of the documents. On perusal of the order passed
by the learned Judge, it becomes clear that the duty of the
respondent was to give the Title Clearance Certificate after making
necessary verification. Respondent No. 1 had given the certificate,
as per the documents issued by the Bank and it was the duty of the
officer of the concerned Bank to make necessary inquiry with regard
to the inspection of the immovable property which was offered by way
of mortgage and the person who is dealing with the disbursement of
loan in the Bank is required to check personally the property which
is offered as a mortgage and thereafter he is expected to submit the
letter to the Society with regard to the Bank’s loan. The learned
Judge, while considering the role played by respondent No. 1, has
rightly held that the only shortfall of respondent No. 1 was that he
had not inquired from the management of those offices / flats about
the actual allotment which was given to other accused persons but it
was not incumbent upon him to inquire from the management of those
offices and flats and the duty is cast upon the officer of the Bank
to take the spot inspection as well as to obtain the letter of lien
and respondent No. 1 was not expected to perform the aforesaid task
of taking the spot inspection as well as to obtain the letter of lien
prepared for the Bank. In view of the aforesaid facts and
circumstance and considering the detailed reasons which are assigned
by the learned Judge and the catena of decisions rendered by the Apex
Court in the matter, no interference in my considered view is called
for in Revision Application preferred under Section 397 read with
Section 401 of the Code of Criminal Procedure. Even on bare perusal
of Section 397, it becomes clear that unless some illegality is
committed by the Court below or the order is ex facie perverse, this
Court should not interfere with the order while exercising the powers
under Section 397 of the Code of Criminal Procedure though this Court
has no doubt supervisory jurisdiction under Section 397 of the Code
of Criminal Procedure.
10. For
the foregoing reasons, this Revision Application is without any
substance and as the same is devoid of merits, it is liable to be
rejected. Hence, the same is rejected. Rule discharged.
[H.
B. ANTANI, J.]
/shamnath
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