{"id":229300,"date":"2011-05-06T00:00:00","date_gmt":"2011-05-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sushil-suri-vs-c-b-i-anr-on-6-may-2011"},"modified":"2017-12-08T02:20:47","modified_gmt":"2017-12-07T20:50:47","slug":"sushil-suri-vs-c-b-i-anr-on-6-may-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sushil-suri-vs-c-b-i-anr-on-6-may-2011","title":{"rendered":"Sushil Suri vs C.B.I & Anr on 6 May, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Sushil Suri vs C.B.I & Anr on 6 May, 2011<\/div>\n
Bench: D.K. Jain, H.L. Dattu<\/div>\n
                                                                          REPORTABLE\n\n                     IN THE SUPREME COURT OF INDIA\n\n\n                  CRIMINAL APPELLATE JURISDICTION\n\n\n                    CRIMINAL APPEAL NO.1109 0F 2011\n\n              (Arising Out of S.L.P. (Criminal) No.6113 of 2009)\n\n\n\n\n SUSHIL SURI                                     --                 APPELLANT\n\n\n                                      VERSUS\n\n\n C.B.I. & ANR.                                   --                RESPONDENTS\n\n\n\n\n\n                                 J U D G M E N T\n<\/pre>\n
D.K. JAIN, J.:\n<\/p>\n<\/p>\n
1.Leave granted.\n<\/p>\n<\/p>\n
2.This appeal, by special leave, is directed against judgment dated 21st May <\/p>\n
2009 delivered by the High Court of Delhi in Criminal Misc. Case No.3842 <\/p>\n
of 2008, in a petition filed by the appellant herein under Section 482 of the <\/p>\n
Code   of   Criminal   Procedure,   1973   (for   short   “the   Cr.P.C.”).     By   the <\/p>\n
impugned judgment, a learned Single Judge of the High Court has declined <\/p>\n
to quash the Chargesheet filed against the appellant and other directors of a <\/p>\n
Company, namely, M\/s Morpen Laboratories Ltd. (for short “the Company”) <\/p>\n
for offences punishable under Sections 120B, 420, 409, 468 and 471 of the <\/p>\n
Indian Penal Code, 1860 (for short “the IPC”).\n<\/p>\n<\/p>\n
3.Briefly stated,  the facts, material  for adjudication  of the issue, arising in <\/p>\n
this appeal, are as follows:\n<\/p>\n<\/p>\n
       A   source   information   was   received   by   the   Central   Bureau   of <\/p>\n
Investigation   (for   short   “the   CBI”)   that   in   the   year   1999   two   Chartered <\/p>\n
Accountants, namely, Sanjay Malik and Bipin Kakkar, had dishonestly and <\/p>\n
fraudulently opened\/caused to be opened several fictitious accounts in some <\/p>\n
banks   in   the   names   of   certain   concerns,   with   an   intention   and   object   to <\/p>\n
facilitate   the   diversion   of   bank   finance   availed   by   various   public   limited <\/p>\n
companies   for   the   purpose   other   than   what   had   been   stated   in   the   loan <\/p>\n
application.  On the basis of the said information, a First Information Report <\/p>\n
(FIR) was registered against the afore-mentioned Company and its directors. <\/p>\n
The relevant portion of the FIR reads thus:\n<\/p>\n<\/p>\n
       “That in June 1999, S\/Sh. K.B. Suri, Sushil Suri and Smt. Kanta <\/p>\n
       Suri, the Executive Directors of M\/s. Morepen Labs Ltd. having <\/p>\n
       their office at 416-418, Antriksh Bhawan (sic), 22, K.G. Marg, <\/p>\n
       New   Delhi,   conspired   together   and   in   furtherance   of   the   said <\/p>\n
       criminal conspiracy they, dishonestly and fraudulently made an <\/p>\n
       application   to   Punjab   &   Sind   Bank,   Connaught   Place,   New <\/p>\n
       Delhi   for   Hire-Purchase   Finance   to   the   tune   of  `300  Lacs,   by <\/p>\n
       submitting fake and forged purchase orders, invoices and bills <\/p>\n
       relating to supply of machineries and equipments to be installed <\/p>\n
       in their factory\/works situated in Distt. Solan (HP).<\/p>\n
       That   the   above   Executive   Directors   of   the   company, <\/p>\n
       dishonestly, fraudulently and in conspiracy with other accused <\/p>\n
       persons   submitted   to   the   bank,   fake   and   forged   invoices   of <\/p>\n
       fictitious\/non-existent   supplier   i.e.   M\/s.   R.K.   Engineers,   M\/s. <\/p><\/blockquote>\n
       Teem   Metals   Pvt.   Ltd.   and   M\/s.   Malson   Impex,   made <\/p>\n
       accommodation   payments   representing   as   genuine   advance <\/p>\n
       payments   to   suppliers   and   thereby   caused   the   bank   to   release <\/p>\n
       funds to the tune of  `300 lacs towards cost of machineries and <\/p>\n
                                                                                           2<\/span><\/p>\n
equipments   and   pay   orders   in   various   amounts   issued   by   the <\/p>\n
bank for the purpose of making payments to suppliers.   These <\/p>\n
amounts   were   then   fraudulently   deposited   in   several   fictitious <\/p>\n
accounts   of   S\/Sh.   Sanjay   Malik   and   Bipin   Kakkar   at <\/p>\n
Corporation Bank and Canara Bank and encashed.     The bank <\/p>\n
finance raised by the company on the pretext of procurement of <\/p>\n
machineries   and   equipments   were   not   used   for   the   purpose <\/p>\n
stated   in   the   application   for   loan,   instead   the   bank   loan   was <\/p>\n
diverted   by   the   above   Executive   Directors,   in   collusion   with <\/p>\n
S\/Sh.   Sanjay   Malik   and   Bipin   Kakkar,   for   other   undisclosed <\/p>\n
non-business purposes.\n<\/p>\n
\nThat during the year 1998 also the above Executive Directors of <\/p>\n
M\/s. Morepen Labs Ltd. had adopted a similar modus-operandi <\/p>\n
in   collusion   with   some   other   unknown   persons\/Chartered <\/p>\n
Accountants  and  applied   for  bank  finance   to  the  tune  of  `200 <\/p>\n
lacs for purchase of machineries and equipments with an object <\/p>\n
to   divert   bank   finance   for   undisclosed   non-business   orders, <\/p>\n
invoices and bills of fictitious suppliers, i.e. M\/s. B.K. Chemi-<\/p>\n
Plant Industries and M\/s. Flexon Hose and Engineering Co. Pvt. <\/p>\n
Ltd.   and   caused   the   bank   to   release   loan   of  `200   lacs   for  the <\/p>\n
purpose   of   procurement   of   machineries   and   equipments   to   be <\/p>\n
installed   in   their   factory   works   situated   in   Distt.   Solan   (HP). <\/p>\n
The   bank   loan   thus   released   by   Punjab   &   Sind   Bank   (Hire-<\/p>\n
Purchase   Branch),   Connaught   Circus,   New   Delhi   was   not <\/p>\n
actually used for the purpose stated in the loan proposal rather <\/p>\n
the   pay   orders   issued   by   the   bank   in   the   name   of   fictitious <\/p>\n
suppliers   M\/s.   Chemi-Plant   Industries   and   M\/s.   Flexon   Hose <\/p>\n
and   Engineering   Co.   Pvt.   Ltd.   were   deposited   in   fictitious <\/p>\n
accounts   opened   in   the   above   name   and   style   at   Bank   of <\/p>\n
Rajasthan,   Kamla   Nagar   Branch,   Delhi   and   encashed.     No <\/p>\n
suppliers   of   machineries   and   equipments   were   made   by   M\/s. <\/p>\n
B.K.   Chemi-Plant   Industries   and   M\/s.   Flexon   Hose   and <\/p>\n
Engineering Co. Pvt. Ltd. to M\/s. Morepen Labs. Ltd. and bank <\/p>\n
finance availed by the company for the said purpose were again <\/p>\n
used for some undisclosed non-business purposes.\n<\/p>\n
\nThe above facts and circumstances disclose the commission of <\/p>\n
offences   u\/s   120-B,   IPC   r\/w   420,   409,   468   and   471   IPC   and <\/p>\n
substantive offences thereunder against Chartered Accountants <\/p>\n
S\/Sh.   Sanjay   Malik   and   Bipin   Kakkar   and   S\/Sh.   K.B.   Suri, <\/p>\n
Sushil   Suri   and   Smt.   Kanta   Suri,   Executive   Directors   of   M\/s. <\/p>\n
Morepen   Labs.   Ltd.,   New   Delhi   and   other   unknown   persons. <\/p>\n
                                                                                        3<\/span><\/p>\n
       Therefore, a regular case is registered and entrusted to Sh. A.K. <\/p>\n
       Singh, Dy. SP\/SIU-VII, for investigation.”\n<\/p>\n<\/p>\n
4.The Company is a public limited company, engaged in the manufacturing <\/p>\n
of pharmaceutical products.  In order to run its affairs, from time to time, the <\/p>\n
Company   had   been   raising   funds   from   different   sources,   like   loans   from <\/p>\n
different banks\/financial institutions as also from the open market by way of <\/p>\n
`public issues’, `rights issues’ and `bonds’ etc.   Investigations revealed that <\/p>\n
in the year 1998, the Company, through its directors, including the appellant <\/p>\n
in this appeal, applied for a hire purchase advance of `2 crores from Punjab <\/p>\n
and   Sind   Bank   (for   short   “PSB”),   Hire   Purchase   Branch,   New   Delhi,   for <\/p>\n
purchase of various machinery  items to be installed at their manufacturing <\/p>\n
units at different places.  It transpired that the machinery for which the loan <\/p>\n
was raised from PSB was never purchased by the Company and, in fact, to <\/p>\n
defraud PSB, photographs of the existing\/some other machinery were taken <\/p>\n
by affixing labels of PSB and the same were filed with PSB, as confirmation <\/p>\n
for having purchased the machinery, for which the loan was raised under the <\/p>\n
hire purchase limit.   It was discovered that although the loan taken by the <\/p>\n
Company from PSB had been repaid, but the Company never purchased any <\/p>\n
machinery,   utilising   the   funds   disbursed   by   PSB   against   the   purchase   of <\/p>\n
machinery. Furthermore, the value of the machinery, purportedly purchased <\/p>\n
with  these   funds,    was  reflected  in  the  balance-sheet  of  the  Company  and <\/p>\n
even   depreciation   on   the   said   machinery,   amounting   to  `52,33,066\/-,   was <\/p>\n
                                                                                       4<\/span><\/p>\n
also claimed in the Income Tax Return\/Minimum Alternate Tax (MAT) for <\/p>\n
the   assessment   year   1998-1999,   without   any   such   machinery   having   been <\/p>\n
actually acquired.\n<\/p>\n<\/p>\n
5.In   the   year   1999,   the   Company   and   its   directors   again   applied   for   hire <\/p>\n
purchase advance of `3 crores from PSB for purchase of more machines.  In <\/p>\n
their balance-sheet for the assessment year 1999-2000, the Company again <\/p>\n
claimed the benefit of depreciation in the Income Tax\/Minimum Alternate <\/p>\n
Tax amounting to `1,44,88,605\/- although no such machinery was purchased <\/p>\n
by the Company.  It further transpired that loan proposals were supported by <\/p>\n
forged   proforma   invoices,   purportedly   issued   by   some   suppliers   in   whose <\/p>\n
name   fictitious   bank   accounts   were   opened   to   encash   the   Demand <\/p>\n
Drafts\/Pay   Orders   issued   by   PSB   in   favour   of   these   firms.     The <\/p>\n
investigations   thus,   revealed   that   the   appellant   and   a   number   of   other <\/p>\n
persons   had   committed   the   afore-mentioned   offences.     Accordingly,   a <\/p>\n
Chargesheet   was   filed   by   the   CBI   on   13th  October,   2004   in   the   Court   of <\/p>\n
Chief Metropolitan Magistrate, Delhi.\n<\/p>\n<\/p>\n
6.The Chief Metropolitan Magistrate took cognizance of the offences and <\/p>\n
summoned the accused to stand trial.  On being so summoned, the appellant <\/p>\n
filed the afore-stated petition under Section 482 of the Cr.P.C., praying for <\/p>\n
quashing of the Chargesheet mainly on the ground that once the Company <\/p>\n
had repaid the loan to PSB along with interest, no loss was caused to PSB <\/p>\n
and, therefore, they had not committed any offence for which Chargesheet <\/p>\n
                                                                                            5<\/span><\/p>\n
had been filed.  In support of the said plea, decision of this Court in Nikhil  <\/p>\n
Merchant  Vs.  Central Bureau of Investigation & Anr.1   was pressed into <\/p>\n
service.  On behalf of the CBI, it was pleaded that the appellant and others, <\/p>\n
by   forging   documents\/vouchers   to   show   purchase   of   machinery,   a   pre-<\/p>\n
condition for release of instalments of loan, had not only duped PSB but also <\/p>\n
defrauded the revenue by claiming depreciation on non-existent machinery <\/p>\n
and in the process cheated the public exchequer of crores of rupees.<\/p>\n
7.As already stated, the High Court has come to the conclusion that merely <\/p>\n
because the Company and its directors had repaid the loan to PSB they could <\/p>\n
not   be   exonerated   of   the   offences   committed   by   forging\/fabricating   the <\/p>\n
documents   with   the   intention   of   defrauding   the   bank   as   well   as   the <\/p>\n
exchequer.  The High Court was of the view that the ratio of the decision of <\/p>\n
this   Court   in  Rumi   Dhar   (Smt)  Vs.  State   of   West   Bengal   &   Anr.2,   was <\/p>\n
applicable on the facts of the present case and the decision of this Court in <\/p>\n
Nikhil   Merchant  (supra)   was   clearly   distinguishable   on   facts.   Thus,   the <\/p>\n
High Court held that on the peculiar facts of the case, the appellant was not <\/p>\n
entitled  to any relief.   Accordingly, the petition filed  by the appellant  was <\/p>\n
dismissed   with   costs.     He   was   directed   to   appear   before   the   trial   court. <\/p>\n
Aggrieved thereby, the appellant is before us in this appeal.<\/p>\n
8.Mr. Vijay Aggarwal, learned counsel appearing on behalf of the appellant <\/p>\n
assailed the judgment of the High Court on the ground that all the dues, as <\/p>\n
1 (2008) 9 SCC 677<\/p>\n
2 (2009) 6 SCC 364<\/p>\n
                                                                                           6<\/span><\/p>\n
claimed by PSB having been paid by the debtor Company without demur, <\/p>\n
more   so,   when   the   Bank   had   not   initiated   any   action   for   the   recovery   of <\/p>\n
money, the case of the appellant is on a much stronger footing as compared <\/p>\n
to the case of Nikhil Merchant (supra), wherein this Court had quashed the <\/p>\n
criminal   proceedings   initiated   against   the   borrower   in   view   of   their <\/p>\n
compromise with the Bank.  It was contended that since in the present case, <\/p>\n
there is no allegation that the appellant had committed any offence under the <\/p>\n
Prevention of Corruption Act 1988, at best, the allegation in the Chargesheet <\/p>\n
may   attract   Section   420   of   the   IPC,   which   offence   is   otherwise <\/p>\n
compoundable   under   Section   320   of   the   Cr.P.C.     It   was   asserted   that   full <\/p>\n
amount in  question   having  been  paid  to  the  Bank,   there   was no  monetary <\/p>\n
loss to the Bank and, therefore, continuation of criminal proceedings against <\/p>\n
all   the   accused,   including   the   appellant,   would   not   only   be   an   exercise   in <\/p>\n
futility but an abuse of the process of law as well.  It was thus, pleaded that <\/p>\n
it was a fit case where the High Court should have exercised its jurisdiction <\/p>\n
under Section 482 of the Cr.P.C. and quashed the Chargesheet.   In support, <\/p>\n
while  relying  heavily   on the  decision  in  Nikhil  Merchant  (supra),   learned <\/p>\n
counsel also commended us to the decisions of this Court in  B.S. Joshi &  <\/p>\n
Ors.   Vs.  State of Haryana & Anr.3 and Madan Mohan Abbot Vs. State of  <\/p>\n
Punjab4.  The decision in Rumi Dhar (supra) relied upon by the High Court, <\/p>\n
was sought to be distinguished by submitting that in that case the provisions <\/p>\n
3 (2003) 4 SCC 675<\/p>\n
4 (2008) 4 SCC 582<\/p>\n
                                                                                              7<\/span><\/p>\n
of the Prevention of Corruption Act, 1988 had been invoked; the Bank had <\/p>\n
to file a suit for recovery of the amount due to it and the Revision Petition <\/p>\n
filed against framing of charge against the accused in that case had also been <\/p>\n
dismissed, which is not the case here.\n<\/p>\n<\/p>\n
9.Per contra, Mr. H.P. Rawal, learned Additional Solicitor General of India, <\/p>\n
appearing   for   the   CBI,   supporting   the   impugned   judgment,   strenuously <\/p>\n
urged   that   having   regard   to   the   nature   of   the   allegations   against   the <\/p>\n
appellant,   based   on   the   evidence   collected   during   the   course   of <\/p>\n
investigations, the High Court has rightly refused to exercise its jurisdiction <\/p>\n
under   Section   482   of   the   Cr.P.C.     Relying   on   a   decision   of   this   Court   in <\/p>\n
Central   Bureau   of   Investigation  Vs.  A.   Ravishankar   Prasad   &   Ors.5, <\/p>\n
learned counsel contended that overwhelming material is available on record <\/p>\n
which   clearly   shows   that   the   Company   and   its   directors,   including   the <\/p>\n
appellant,   and   other   persons   had   conspired   to     forge,   fabricate   and   use <\/p>\n
documents  in order to avail loan from the bank and had opened or caused to <\/p>\n
be opened fictitious bank accounts in the names of the suppliers   to encash <\/p>\n
the pay orders\/demand drafts issued by PSB and played fraud with PSB as <\/p>\n
also   on   the   public   exchequer   by   claiming   depreciation   on   the   machinery, <\/p>\n
which was never purchased.   It was argued that the offences for which the <\/p>\n
appellant has been Chargesheeted would survive irrespective of discharge of <\/p>\n
debt   of   PSB   by   the   Company.     Relying   on   the   decision   of   this   Court   in <\/p>\n
5 (2009) 6 SCC 351<\/p>\n
                                                                                               8<\/span><\/p>\n
Sajjan   Kumar  Vs.  Central   Bureau   of   Investigation6,  learned   counsel <\/p>\n
asserted that when the material on record is per se sufficient for the Court to <\/p>\n
form   an   opinion   that   the   accused   have   committed   the   offences   alleged <\/p>\n
against   them   and   frame   the   said   charges,   there   is   no   reason   why   the <\/p>\n
Chargesheet against the appellant should be quashed at such a preliminary <\/p>\n
stage when he has only been summoned to stand trial.\n<\/p>\n<\/p>\n
10.Before embarking on an evaluation of the rival submissions, it would be <\/p>\n
instructive  to briefly  notice the scope and ambit of the inherent  powers of <\/p>\n
the High Court under Section 482 of the Cr.P.C.\n<\/p>\n<\/p>\n
11.Section   482   of   the   Cr.P.C.   itself   envisages   three   circumstances   under <\/p>\n
which the inherent jurisdiction may be exercised by the High Court, namely: <\/p>\n
(i) to give effect to an order under the Cr.P.C.; (ii) to prevent an abuse of the <\/p>\n
process of Court; and (iii) to otherwise secure the ends of justice.  It is trite <\/p>\n
that   although   the   power   possessed   by   the   High   Court   under   the   said <\/p>\n
provision   is   very   wide   but   it   is   not   unbridled.     It   has   to   be   exercised <\/p>\n
sparingly,   carefully   and   cautiously,  ex   debito   justitiae  to   do   real   and <\/p>\n
substantial   justice   for   which   alone   the   Court   exists.   Nevertheless,   it   is <\/p>\n
neither feasible nor desirable to lay down any inflexible rule which would <\/p>\n
govern the exercise of inherent jurisdiction of the Court. Yet, in numerous <\/p>\n
cases, this Court has laid down certain broad principles which may be borne <\/p>\n
in   mind   while   exercising   jurisdiction   under   Section   482   of   the   Cr.P.C. <\/p>\n
6 (2010) 9 SCC 368<\/p>\n
                                                                                              9<\/span><\/p>\n
Though it is emphasised that exercise of inherent powers would depend on <\/p>\n
the facts and circumstances of each case, but, the common thread which runs <\/p>\n
through all the decisions on the subject is that the Court would be justified in <\/p>\n
invoking   its   inherent   jurisdiction   where   the   allegations   made   in   the <\/p>\n
Complaint or Chargesheet, as the case may be, taken at their face value and <\/p>\n
accepted in their entirety do not constitute the offence alleged. <\/p>\n
12.In one of the earlier cases in R.P. Kapur Vs. State of Punjab7  this Court <\/p>\n
had   culled   out  some  of  the   categories   of  cases   where  the   inherent   powers <\/p>\n
under Section 482 of the Cr.P.C. could be exercised by the High Court to <\/p>\n
quash criminal proceedings against the accused.  These are: <\/p>\n
       “(i)     where   it   manifestly   appears   that   there   is   a   legal   bar <\/p>\n
       against   the   institution   or   continuance   of   the   proceedings   e.g. <\/p>\n
       want of sanction;\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (ii)     where the allegations in the first information report or the <\/p>\n
       complaint taken at their face value and accepted in their entirety <\/p>\n
       do not constitute the offence alleged;\n<\/p><\/blockquote>\n
<\/blockquote>\n
       (iii)    where  the  allegations  constitute   an  offence,  but  there  is <\/p>\n
       no legal evidence  adduced or the evidence adduced clearly  or <\/p>\n
       manifestly fails to prove the charge.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
13.In Dinesh Dutt Joshi Vs. State of Rajasthan & Anr.8, while explaining <\/p>\n
the   object   and   purpose   of   Section   482   of   the   Cr.P.C.,   this   Court   had <\/p>\n
observed thus:\n<\/p>\n<\/p>\n
       “6…….The principle embodied in the section is based upon the <\/p>\n
       maxim:  quando lex  aliquid  alicui   concedit,  concedere videtur  <\/p>\n
7 AIR 1960 SC 866 <\/p>\n
8 (2001) 8 SCC 570 <\/p>\n
                                                                                            1<\/span><\/p>\n
       et id sine quo res ipsae esse non potest i.e. when the law gives <\/p>\n
       anything to anyone, it gives also all those things without which <\/p>\n
       the   thing   itself   would   be   unavailable.     The   section   does   not <\/p>\n
       confer   any   new   power,   but   only   declares   that   the   High   Court <\/p>\n
       possesses   inherent   powers   for   the   purposes   specified   in   the <\/p>\n
       section.  As lacunae are sometimes found in procedural law, the <\/p>\n
       section has been embodied to cover such lacunae wherever they <\/p>\n
       are discovered. The use of extraordinary powers conferred upon <\/p>\n
       the   High   Court   under   this   section   are   however   required   to   be <\/p>\n
       reserved, as far as possible, for extraordinary cases.”<\/p>\n
14.Recently,  this Court in  A. Ravishankar  Prasad & Ors.  (supra),  relied <\/p>\n
upon by learned counsel for the CBI, referring to several earlier decisions on <\/p>\n
the   point,   including  R.P.   Kapur  (supra);  State   of   Haryana   &   Ors.  Vs.  <\/p>\n
Bhajan Lal & Ors.9; Janata Dal Vs. H.S. Chowdhary & Ors.10; B.S. Joshi  <\/p>\n
& Ors. (supra); Nikhil Merchant (supra) etc. has reiterated that the exercise <\/p>\n
of inherent powers would entirely depend on the facts and circumstances of <\/p>\n
each case.  It has been further observed that the inherent powers should not <\/p>\n
be   exercised   to   stifle   a   legitimate   prosecution.   The   High   Court   should <\/p>\n
normally refrain from giving a  prima facie  decision in a case where all the <\/p>\n
facts   are   incomplete   and   hazy,   more   so,   when   the   evidence   has   not   been <\/p>\n
collected   and   produced   before   the   Court   and   the   issues   involved,   whether <\/p>\n
factual or legal, are of such magnitude that they cannot be seen in their true <\/p>\n
perspective without sufficient material.\n<\/p>\n<\/p>\n
15.Bearing in mind the object, scope and width of power of the High Court <\/p>\n
under   Section   482   of   the   Cr.P.C.,   enunciated   above,     the   question   for <\/p>\n
9 1992 Supp (1) SCC 335<\/p>\n
10 (1992) 4 SCC 305<\/p>\n
                                                                                            1<\/span><\/p>\n
consideration is whether on facts in hand, the High Court was correct in law <\/p>\n
in declining to exercise its jurisdiction under the said Section? <\/p>\n
16.Having examined the case in light of the allegations in the Chargesheet, <\/p>\n
we are of the opinion that the view taken by the High Court in the matter <\/p>\n
cannot  be  flawed  and  deserves to  be affirmed.    It  is  manifest   from  a bare <\/p>\n
reading   of   the   Chargesheet,   placed   on   record,   that   the   gravamen   of   the <\/p>\n
allegations against the appellant as also the co-accused is that the Company, <\/p>\n
acting through its directors  in concert  with the Chartered  Accountants and <\/p>\n
some other persons: (i) conceived a criminal conspiracy and executed it by <\/p>\n
forging   and   fabricating   a   number   of   documents,   like   photographs   of   old <\/p>\n
machines, purchase orders and invoices showing purchase of machinery   in <\/p>\n
order to support their claim to avail hire purchase loan from PSB; (ii) on the <\/p>\n
strength   of   these   false   documents,   PSB   parted   with   the   money   by   issuing <\/p>\n
pay orders & demand drafts in favour of the Company and  (iii) the accused <\/p>\n
opened   six   fictitious   accounts   in   the   banks   (four   accounts   in   Bank   of <\/p>\n
Rajasthan and two in Bank of Madura) to encash the pay orders\/bank drafts <\/p>\n
issued   by   PSB   in   favour   of   the   suppliers   of   machines,   thereby   directly <\/p>\n
rotating back the loan amount to the borrower from these fictitious accounts, <\/p>\n
and   in   the   process   committed   a   systematic   fraud   on   the   Bank   (PSB)   and <\/p>\n
obtained   pecuniary   advantage   for   themselves.     Precise   details   of   all   the <\/p>\n
fictitious accounts as also the further flow of money realised on encashment <\/p>\n
of   demand   drafts\/pay   orders   have   been   incorporated   in   the   Chargesheet. <\/p>\n
                                                                                         1<\/span><\/p>\n
Additionally,   by   allegedly   claiming   depreciation   on   the   new   machinery, <\/p>\n
which was never purchased, on the basis of forged invoices etc.; the accused <\/p>\n
cheated the public exchequer as well.\n<\/p>\n<\/p>\n
17.As   afore-stated,   in   the   Chargesheet,   the   accused   are   alleged   to   have <\/p>\n
committed offences punishable under Section 120B, read with Sections 420, <\/p>\n
409, 468 and 471 IPC.  We feel that at this preliminary stage of proceedings, <\/p>\n
it   would   neither   be   desirable   nor   proper   to   return   a   final   finding   as   to <\/p>\n
whether the essential ingredients of the said Sections are satisfied.   For the <\/p>\n
purpose of the present appeal, it will suffice to observe that on a conspectus <\/p>\n
of   the   factual   scenario,   noted   above,  prima   facie,  the   Chargesheet   does <\/p>\n
disclose the commission of offences by the appellant under the afore-noted <\/p>\n
Sections.   The essential ingredient of the offence of “criminal conspiracy”, <\/p>\n
defined in Section 120A IPC, is the agreement to commit an offence.   In a <\/p>\n
case  where the agreement is for accomplishment  of an act which by itself <\/p>\n
constitutes an offence, then in that event, unless the Statute so requires, no <\/p>\n
overt   act     is   necessary  to   be  proved   by   the   prosecution   because   in   such   a <\/p>\n
fact-situation   criminal   conspiracy   is   established   by   proving   such   an <\/p>\n
agreement.   In other words, where the conspiracy alleged is with regard to <\/p>\n
commission   of   a   serious   crime   of   the   nature   as   contemplated   in   Section <\/p>\n
120B read with the proviso to sub-section (2) of Section 120A IPC, then in <\/p>\n
that event mere proof of an agreement between the accused for commission <\/p>\n
of   such   crime   alone   is   enough   to   bring   about   a   conviction   under   Section <\/p>\n
                                                                                              1<\/span><\/p>\n
120B and the proof of any overt act by the accused or by any one of them <\/p>\n
would not be necessary. (See: Suresh Chandra Bahri Vs. State of Bihar11).  <\/p>\n
18.Similarly,   the   definition   of   “forgery”   in   Section   463   IPC   is   very   wide. <\/p>\n
The  basic  elements  of forgery    are:  (i)  the making  of a false document or <\/p>\n
part of it and (ii) such making should be with such intention as is specified <\/p>\n
in the Section viz. (a) to cause damage or injury to (i) the public, or (ii) any <\/p>\n
person; or (b) to support any claim or title; or (c) to cause any person to part <\/p>\n
with property; or (d) to cause any person to enter into an express or implied <\/p>\n
contract; or (e) to commit fraud or that fraud may be committed. As stated <\/p>\n
above,   in   the   instant   case   more   than   sufficient   circumstances   exist <\/p>\n
suggesting   the   hatching   of   criminal   conspiracy   and   forgery   of   several <\/p>\n
documents   leading   to   commission   of   the   aforementioned   Sections.   We <\/p>\n
refrain from saying  more  on the subject at this  juncture,  lest it may cause <\/p>\n
prejudice to the appellant or the prosecution.\n<\/p>\n<\/p>\n
19.We may now advert to the decision of this Court in the case of  Nikhil  <\/p>\n
Merchant  (supra),   on   which   great   emphasis   was   laid,   on   behalf   of   the <\/p>\n
appellant.     In   that   case   a   Chargesheet   was   filed   by   the   CBI   against   the <\/p>\n
accused under Section 120B read with Sections 420, 467, 468, 471 IPC read <\/p>\n
with   Sections   5(2)   and   5(1)(d)   of   the   Prevention   of   Corruption   Act,   1947 <\/p>\n
and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption <\/p>\n
Act,   1988.     The   allegation   under   the   Chargesheet   was   that   the   accused <\/p>\n
11 1995 Supp (1) SCC 80<\/p>\n
                                                                                            1<\/span><\/p>\n
persons had conspired with each other in fraudulently diverting the funds of <\/p>\n
the Bank.   Offence alleging forgery was also included in the Chargesheet. <\/p>\n
In the meantime,  the suit for recovery of money filed by the Bank against <\/p>\n
the   Company,   to   which   the   appellant   in   that   case   was   also   a   party,   was <\/p>\n
disposed   of   on   a   written   compromise   arrived   at   between   the   parties. <\/p>\n
Consequent   upon   the   compromise   of   the   suit   and   having   regard   to   the <\/p>\n
contents   of   clause   11   of   the   consent   terms,   which   stipulated   that   neither <\/p>\n
party   had   any   claim   against   the   other   and   parties   were   withdrawing   all <\/p>\n
allegations   and   counter   allegations   made   against   each   other,   the   said <\/p>\n
appellant filed an application for discharge.     The application was rejected <\/p>\n
by the trial court.  A petition preferred under Section 482 of the Cr.P.C. was <\/p>\n
also dismissed by the High Court.  In further appeal to this Court, accepting <\/p>\n
the contention of the appellant that this Court could transcend the limitation <\/p>\n
imposed under Section 320 of the Cr.P.C. and pass orders quashing criminal <\/p>\n
proceedings   even   where   non   compoundable   offences   were   involved, <\/p>\n
quashing the criminal proceedings the Court observed thus:<\/p>\n
        “30. In the instant case, the disputes between the Company and <\/p>\n
        the Bank have been set at rest on the basis of the compromise <\/p>\n
        arrived at by them whereunder the dues of the Bank have been <\/p>\n
        cleared and the Bank does not appear to have any further claim <\/p>\n
        against the Company.   What, however, remains is the fact that <\/p>\n
        certain   documents   were   alleged   to   have   been   created   by   the <\/p>\n
        appellant herein in order to avail of credit facilities beyond the <\/p>\n
        limit to which the Company was entitled.  The dispute involved <\/p>\n
        herein   has   overtones   of   a   civil   dispute   with   certain   criminal <\/p>\n
        facets.   The question which is required to be answered in this <\/p>\n
        case   is   whether   the   power   which   independently   lies   with   this <\/p>\n
                                                                                            1<\/span><\/p>\n
        Court   to   quash   the   criminal   proceedings   pursuant   to   the <\/p>\n
        compromise arrived at, should at all be exercised?<\/p>\n<\/blockquote>\n
        31. On an overall view of the facts as indicated hereinabove and <\/p>\n
        keeping   in  mind   the  decision   of  this   Court   in  B.S.   Joshi  case <\/p>\n
        and the  compromise  arrived  at between  the Company  and the <\/p>\n
        Bank   as   also   Clause   11   of   the   consent   terms   filed   in   the   suit <\/p>\n
        filed by the Bank, we are satisfied that this is a fit case where <\/p>\n
        technicality   should   not   be   allowed   to   stand   in   the   way   in   the <\/p>\n
        quashing   of   the   criminal   proceedings,   since,   in   our   view,   the <\/p>\n
        continuance   of   the   same   after   the   compromise   arrived   at <\/p>\n
        between the parties would be a futile exercise.”<\/p>\n<\/blockquote>\n
                                                                  [Emphasis supplied]<\/p>\n<\/blockquote>\n
20.A bare reading of the afore-extracted paragraphs would indicate that the <\/p>\n
question posed for consideration in that case was with regard to the power of <\/p>\n
this   Court   under   Article   142   of   the   Constitution   of   India   to   quash   the <\/p>\n
criminal proceedings in the facts and circumstances of a given case and not <\/p>\n
in relation to the powers of the High Court under Section 482 of the Cr.P.C. <\/p>\n<\/blockquote>\n
The   Court   came   to   the   conclusion   that   it   was   a   fit   case   where   it   should <\/p>\n
exercise its powers under Article  142 of the Constitution.   In our opinion, <\/p>\n
Nikhil Merchant (supra) does not hold as an absolute proposition of law that <\/p>\n
whenever a dispute between the parties, having overtones of a civil dispute <\/p>\n
with   criminal   facets   is   settled   between   them,   continuance   of   criminal <\/p>\n
proceedings   would   be   an   exercise   in   futility   and,   therefore,   should   be <\/p>\n
quashed.     Similarly,   in  B.S.   Joshi   &   Ors.  (supra),   which   has   been   relied <\/p>\n
upon   in  Nikhil   Merchant  (supra),   the   question   for   consideration   was <\/p>\n
whether the High Court in exercise of its inherent powers can quash criminal <\/p>\n
proceedings or FIR or Complaint for offences which are not compoundable <\/p>\n
                                                                                                  1<\/span><\/p>\n
under Section 320 of the Cr.P.C.  It was held that Section 320 cannot limit or <\/p>\n
affect the powers of the High Court under Section 482 of the Cr.P.C., a well <\/p>\n
settled   proposition   of   law.     We   are   of   the   opinion   that  Nikhil   Merchant <\/p>\n
(supra)   as   also   the   other   two   judgments   relied   upon   on   behalf   of   the <\/p>\n
appellant   are   clearly   distinguishable   on   facts.   It   needs   little   emphasis   that <\/p>\n
even   one   additional   or   different   fact   may   make   a   world   of   difference <\/p>\n
between   the   conclusions   in   two   cases   and   blindly   placing   reliance   on   a <\/p>\n
decision is never proper. It is trite that while applying ratio, the Court may <\/p>\n
not   pick   out   a   word   or   sentence   from   the   judgment   divorced   from   the <\/p>\n
context   in   which   the   said   question   arose   for   consideration.   (See:  Zee  <\/p>\n
Telefilms   Ltd.   &   Anr.  Vs.  Union   of   India   &   Anr.12).     In   this   regard,   the <\/p>\n
following   words   of   Lord   Denning,   quoted   in  Haryana   Financial  <\/p>\n
Corporation & Anr. Vs. Jagdamba Oil Mills & Anr.13, are also quite apt:<\/p>\n
        “Each   case   depends   on   its   own   facts   and   a   close   similarity <\/p>\n
        between   one   case   and   another   is   not   enough   because   even   a <\/p>\n
        single significant detail may alter the entire aspect.  In deciding <\/p>\n
        such cases, one should avoid the temptation to decide cases (as <\/p>\n
        said by Cardozo) by matching the colour of one case against the <\/p>\n
        colour of another.   To decide, therefore, on which side of the <\/p>\n
        line a case falls, the broad resemblance to another case is not at <\/p>\n
        all decisive.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
21. In the present case, having regard to the modus operandi adopted by the <\/p>\n
accused, as projected in the Chargesheet and briefly referred to in para 17 <\/p>\n
(supra), we have no hesitation in holding that it is not a fit case for exercise <\/p>\n
12 (2005) 4 SCC 649<\/p>\n
13 (2002) 3 SCC 496<\/p>\n
                                                                                             1<\/span><\/p>\n
of jurisdiction by the High Court under Section 482 of the Cr.P.C. as also by <\/p>\n
this Court under Article 142 of the Constitution of India.   As noted above, <\/p>\n
the accused had not only duped PSB, they had also availed of depreciation <\/p>\n
on   the  machinery,   which  was   never  purchased   and   used   by   them,  causing <\/p>\n
loss to the exchequer, a serious economic offence against the society.     <\/p>\n
22.The view we have taken above, gets fortified by a recent decision of this <\/p>\n
Court   in  Rumi   Dhar  (supra),   wherein   while   dealing   with   a   fact   situation, <\/p>\n
akin   to   the   present   case,   referring   to   the   decision   in  Nikhil   Merchant <\/p>\n
(supra),   the   Court   declined   to   quash   criminal   proceedings   in   that   case, <\/p>\n
observing thus:\n<\/p>\n<\/p>\n
       “24.   The   jurisdiction   of   the   Court   under   Article   142   of   the <\/p>\n
       Constitution of India is not in dispute.  Exercise of such power <\/p>\n
       would, however, depend on the facts and circumstances of each <\/p>\n
       case.     The   High   Court,   in   exercise   of   its   jurisdiction   under <\/p>\n
       Section 482 of the Code of Criminal Procedure, and this Court, <\/p>\n
       in terms of Article 142 of the Constitution of India, would not <\/p>\n
       direct   quashing   of   a   case   involving   crime   against   the   society <\/p>\n
       particularly   when   both   the   learned   Special   Judge   as   also   the <\/p>\n
       High Court have found that a prima facie case has been made <\/p>\n
       out against the appellant herein for framing the charge.”<\/p>\n<\/blockquote>\n
23.We respectfully concur with the afore-extracted observations.  In the final <\/p>\n
analysis, we hold that merely because the dues of the bank have been paid <\/p>\n
up, the appellant cannot be exonerated from the criminal liability. Therefore, <\/p>\n
the Chargesheet against him cannot be quashed.\n<\/p>\n
                                                                                           1<\/span><\/p>\n
24.In   view   of   the   foregoing   discussion,   we   do   not   find   any   merit   in   this <\/p>\n
appeal and it is dismissed accordingly.   The Trial Court shall now proceed <\/p>\n
with the case as expeditiously as possible without being influenced by any <\/p>\n
observations made by the High Court or in this judgment on the merits of the <\/p>\n
Chargesheet.\n<\/p>\n<\/p>\n
                                                   …………………………………….\n<\/p>\n
                                                      (D.K. JAIN, J.) <\/p>\n
                                                        ……………………………………..<\/p>\n
                                                     (H.L. DATTU, J.)<\/p>\n
 NEW DELHI;\n<\/p>\n
 MAY 6, 2011.\n<\/p>\n
 (ARS)<\/p>\n
                                                                                              1<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Sushil Suri vs C.B.I & Anr on 6 May, 2011 Bench: D.K. Jain, H.L. Dattu REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1109 0F 2011 (Arising Out of S.L.P. (Criminal) No.6113 of 2009) SUSHIL SURI — APPELLANT VERSUS C.B.I. & ANR. — RESPONDENTS J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-229300","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nSushil Suri vs C.B.I & Anr on 6 May, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sushil-suri-vs-c-b-i-anr-on-6-may-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sushil Suri vs C.B.I & Anr on 6 May, 2011 - 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