JUDGMENT
Manju Goel, J.
1. The petitioner has been charged with the offence of committing conspiracy to cheat the New Bank of India with the help of forged documents punishable under Sections 120B read with Section 467/468/471 IPC and for committing an offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The order on charge dated 23.8.2003 of the Special Judge, Delhi is challenged in the revision petition.
2. The facts as per the charge-sheet are as under:
The petitioner, V.K.Bhutiani, was a senior manager in the New Bank of India at the relevant time. Accused No. 2, O.P.Rajwanshi, approached the bank for credit facility to the extent of Rs. 50 lakhs in the name of his firm, M/s. Vikram Enterprises, in the Connaught Place Branch of New Bank of India where the petitioner – accused No. 1 was posted. The accused No. 2 represented that he got order for export of garment worth Rs. 50 lakhs from a Hong Kong firm under a foreign letter of credit limit. On 25.11.1989, i.e., even before the submission of the loan application, the petitioner recommended sanction of the loan facility in the name of M/s.Vikram Enterprises and to have obtained the sanction from the Regional Manager on 25.11.1989 itself. The amount was utilised to the extent of Rs. 17 lakhs within a few days thereafter. The amount was never repaid. The CBI came to know from its own sources that the petitioner connived with accused No. 2, O.P.Rajwanshi, and the other accused in this case to defraud the bank of this amount and on such source information registered the FIR bearing No. RC 4A/91. For the purpose of withdrawing the amount from the bank the accused No. 2 produced vouchers from two firms, namely, Multiple Traders (proprietorship concern of accused No. 4) and M/s. Haji Gudar S.Abdul (proprietorship concern of accused No. 3 Mohd. Yusuf (since deceased). The invoices of the accused No. 3 were of Rs. 20,10,000/- and of Rs. 2,25,000/-. Another cash receipt dated 20.12.1989 purportedly signed by accused No. 3 for Rs. 4,35,000/- in token of having received the amount from the M/s.Vikram Enterprises against one of the two invoices was also submitted by accused No. 2. Subsequently it was revealed during investigation that Mohd. Yusuf was not an exporter but only a small vegetable seller. The other invoice of Rs. 2,30,000/- purportedly signed by one Ashwini on behalf of Multiple Traders and another receipt also signed by Ashwini for Rs. 1 lakh was also produced by accused No. 2. The investigation revealed that the documents purporting to be of Multiple Traders were actually signed by accused No. 5 Praveen Aggarwal, who was husband of accused No. 4. These documents were required to be kept on bank file to facilitated release of funds but actually there was no transaction as depicted by these documents. The petitioner is said to have released the funds without verifying the genuineness of these documents to the extent of Rs. 17 lakhs between 26.12.1989 to 28.12.1989 by three bank drafts; one in favor of M/s.Multiple Traders and two in the name of the firm of accused No. 3 by debiting the credit limit account of M/s.Vikram Enterprises. The CBI discovered with the help of opinion of handwriting export that A-2 himself signed as Mohd.Yusuf and that the signatures of Ashwini were done by Praveen Aggarwal. The statement of Ashwini also confirms this position.
3. In order to establish the charge of conspiracy the CBI depends upon the following circumstances:
a) the loan application of Vikram Enterprises was filled in by accused Praveen Aggarwal.
b) bank accounts in the name of the firm of the deceased accused were opened only on 12.121989 and 30.12.1989 and that he had no bank account before those dates although he was represented to be an exporter.
c) Manoj Kumar who introduced one of the two accounts of accused No. 3 was himself also a vegetable vendor of Meerut.
d) Mohd. Yusuf was not a transporter but a vegetable vendor.
e) Mohd. Yusuf withdrew the amount of the draft for the bigger amount by getting it discounted on the date of opening of the bank account itself showing anxiety to take out the cash before anybody becomes suspicious.
f) the loan application is of 30.12.1989 while the pre-sanction inspection report of A-1 was dated 24.12.1989 and his recommendation was dated 25.11.1989. As per CBI after his approval from the Regional Manager, the date of the loan application was changed to 20.12.1989.
g) the bank draft in the name of Multiple Traders were got encahsed through the State Bank of Travancore, R.K.Puram, the same branch in which Mohd. Yusuf had also opened his account.
h) the account books of Multiple Traders did not reflect the amount of Rs. 1 lakh shown to have been received from Vikram Enterprises against the receipt signed by Praveen Aggarwal as Ashwini.
i) accused No. 6-Neeraj who apparently was only a surety received the amount of Rs. 14,64,000/- obtained by encashment of draft issued in favor of A-3 which showed that he was not merely a guarantor but an active participant in the whole affair.
j) witness-Manoj disclosed that A-2 was an employee of father of Neeraj Jain and was only acting under the instructions of Neeraj Jain or his father.
k) the letter written by A-2 to A-3 acknowledging receipt of Rs. 14,64,000/- from Neeraj Jain shows that Mohd.Yusuf was only placed in the fore-front by A-2 and Neeraj Jain for facilitating withdrawal of money through him.
4. The defense put forth by the petitioner at the time of arguments on charge before the trial court was that he had already been exonerated by the enquiry conducted by the Central Vigilance Commission. As per the copy of the report of the Central Vigilance Commission, fraud has been committed by the borrower and the guarantor and the petitioner had not committed any violation of any rules of transaction of the bank and that he simply showed some haste in granting the loan to the firm of accused No. 2. The learned trial court did not agree with the prayer for discharge. It was observed that the inquiry report dated 30.1.1992 was based on the explanation given by the petitioner during the inquiry which was accepted by the inquiry officer and no departmental witness at all was examined to prove the irregularities. As against this, the trial court, found that the CBI had examined bank officials including one AGM to show what types of irregularities had been committed by the petitioner. The trial court, therefore, rejected the prayer for discharge.
5. Before this court it is submitted that the Central Vigilance Commission not only examined the explanation of the petitioner but also examined certain documents and witnesses. It is submitted that to this extent the opinion of the trial court about the nature of the Central Vigilance Commission report was wrong. This contention does appear to be correct. The report of the Central Vigilance Commission has been placed on the record which shows that the Commission had examined witnesses produced before it by the prosecuting department. The report goes into the detail of the charges leveled against the petitioner. Each and every allegation against the petitioner has been considered thoroughly. The allegations on the basis of which the petitioner is being roped in the case of conspiracy have been taken up one by one. It has been found that the petitioner had established the identity of A-2 before opening the account and thereafter had requested another account holder to sign the form as the introducer which was common in practical banking. Nothing was found objectionable in the procedure adopted, namely, of hurrying through the proposal for credit facility or conducting an inspection even before the account was opened etc. as they were common in practical banking. The Vigilance Commission also took note of the fact that the loan was sanctioned against the insufficient security inasmuch as the valuation of the property offered for this purpose was only worth Rs. 1.50 lakhs. The Vigilance Commission found that it was merely a case of misjudgment and not a case of misconduct.
6. The petitioner’s counsel further submits that the prosecution/ respondent No. 1 has nothing to show that the petitioner was involved in the transactions between other accused or had any information about the documents presented to the bank being forged. There is no evidence that the petitioner knew Mohd.Yusuf to be only a vegetable vendor or that accused No. 5 had been involved in the whole process including signing of vouchers of Multiple Traders under the assumed personality of Ashwini. There is also no evidence that the petitioner received any kind of consideration from any of the accused for the purpose of facilitating the opening of the account. It is also important to note that the major motivating factor behind opening of the account was the foreign letter of credit. The genuineness of which is not disputed.
7. The petitioner’s counsel refers to the judgment of the Supreme Court in the case of P.S. Rajya v. State of Bihar reported as (1996) 9 SCC 1 in which an officer of the income-tax department despite being exonerated by the Central Vigilance Commission was being prosecuted by the CBI for offence under Sections 13(2) & 13(1)(b) of the Prevention of Corruption Act. The Supreme Court observed that the standard of proof required to be established in a criminal case is far higher than the standard of proof required to establish the guilt in a departmental proceedings. Further the Supreme Court observed that the charge in the departmental proceedings and in the criminal proceedings was one and the same and if the same could not be established in the departmental proceedings, there was lesser chance of the charge being established in a criminal trial. In that case the basis for the charge was valuation of the property of the accused which was assessed at Rs. 4.67 lakhs at one stage and Rs. 7.69,300/- at another stage by the same engineers. The Supreme Court said that the criminal proceedings would only result in harassment and, therefore, found it fit to quash the FIR against the accused.
8. In my opinion, this judgment squarely applies in the present case. The basic factors to establish conspiracy of petitioner were all before the Central Vigilance Commission. After taking all these factors into consideration, it found that the petitioner was not actually involved in any corrupt practice or in the conspiracy of the other accused persons intended to cheat the bank. The discrepancy between the dates of making a prayer for loan and the recommendation for it or opening of the account were all observed to be in accordance with practice, although a haste on the part of the petitioner was proved. So far as valuation of the property offered as security is concerned, the petitioner had actually not committed any fraud. He did not over-value the property. The Central Vigilance Commission having taken note of the fact has held that it was a case of misjudgment rather than a case of conspiracy. The Vigilance Commission also went into the question whether the petitioner was at fault in not making enough inquiries about the genuineness of the documents issued by A-3 and others and about the genuineness of the business run by A-3. Yet the Vigilance Commission has given a clean chit to the petitioner although it found the petitioner guilty to the extent of making a faulty judgment in recommending the proposal for P.C. limit.
9. I find that the charge in the present case is based on the same allegations which were under consideration before the Central Vigilance Commission. If the charge could not be proved before the Central Vigilance Commission where the standard of proof was much lower it is very unlikely that the same charge could be proved in a criminal trial where the standard of proof is more stringent. If the petitioner is tried, the respondent-CBI will at best prove the factors mentioned above to indicate involvement of the petitioner in the conspiracy. The vigilance report has actually taken note of all of them and has yet exonerated the petitioner. Following the judgment of the Supreme Court in the case of P.S. Rajya v. State of Bihar (Supra), I am of the opinion that the prosecution of the petitioner will only result in nothing more than harassment. Hence the petition is allowed and the impugned orders are set aside. The petitioner is discharged.