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| Court returns challan directs CBI to investigate further | | Multi crore bank scam | | Early Times Report
Jammu, Mar 31: Principal Sessions Judge Jammu Sanjay Parihar returned the challan in much publicizied muliticrore bank scam and directed CBI Special Task Branch (Banking-Fraud Zone) CBI HQ New Delhi for further investigation.
This significant order has been passed by Sessions Judge Jammu while dealing with three charge-sheets have got genesis based upon three FIR's registered with CBI Special Task Branch New Delhi, being 1. Jhelum Industries RC/DST/2019/A/0003 dated 26.08.2019, 2. Jhelum Infra Project India Pvt. Ltd No. RC/ DST/2019/A/0004 dated 26.08.2019, besides, New Jammu Flour Mills RC/ 059/ 2021/ A/0005 dated 11.06.2021.
The aforesaid FIRs had been registered on account of alleged illegal transactions in loan accounts of the accused and diversion of funds by them to other sisters concerns of the accused having loan accounts in the same bank i.e. Bank of India who happened to be the complainant and at whose behest the aforesaid cases had been registered. The criminal prosecution is based upon all the transaction made in the accounts to demonstrate that there were deflection and diversion of funds besides there was falsification of balance sheets in order to garner high returns leading to the commission of offence under section 420/ 467/468/471/ 120-B of Ranbir Penal Code. The factual background leading to the aforesaid three cases happened to be that accused Raj Kumar Gupta alleged to be promoter of all aforesaid three companies at one point of time was having business accounts with Punjab and Sindh Bank and in the year 2013 because of mutual exchange between him and the representatives of Bank of India (complainant) in respect of M/S Jhelum Industries accused was availing Cash Credit limit of Rs.25 Crore from Punjab and Sindh Bank which account was taken over by the complainant bank with enhanced limits and accordingly the complainant bank sanctioned credited facility of Rs.32.50 crore which was subsequently reviewed. Similarly in respect of M/S Jhelum Infra ProjectLtd. cash credit facility/cash credit limit of Rs. 35 crore maximum limit up to 50 crore was also availed by its promoter and with regard to M/S New Jammu Floor Mills the company was availing cash credit facility from Punjab and Sindh Bank which was taken over by the complainant and later on enhanced the limits to 14 crores. All the three transactions therefore took place between 2013-14 so in pursuance to the exchange of letters complainant sanctioned loan facility of Cash Credit to the tune of Rs. 91 Crore including bank guarantee of 06 crore subject to compliance of various terms and conditions mentioned in the sanction letter with collateral security of land, buildings of the company. It is relevant to state here that at the time of taking over of loan account from Punjab and Sindh Bank, the complainant had verified the title of the properties to be mortgaged and even the valuation was conducted by the penal valuer of the complainant bank. It is alleged that the accused companies indulged in large remittance in favour of groups and to the parties with which companies had some private concern. The bank got the account of the companies audited through forensic auditor M/S Satya Prakash Mangal and Co. who gave a report on 06.09.2016 that there had been diversion and siphoning of funds, so much so the companies had indulged in heavy cash withdrawal of Rs. 5 lac and above and accordingly the bank declared that the loan accounts had become fraudulent. It transpired that the companies had misrepresented their financial position to obtain loan and further dishonestly utilized the funds allocated to the company for causing wrongful loss to bank. Accordingly, the complainant bank through communication dated 09.08.2019 through itsDeputy GeneralManager Bank of India, Amritsar Zone lodged complaint in respect of Jhelum Industries and Jhelum Infrastructure Project. Similarly, with respect to New Jammu Floor Mills, similar allegations were made by the bank on 26.05.2021 therefore on strength of said complaints aforesaid FIRs were registered by CBI Delhi Branch.
Principal Sessions Judge Jammu Sanjay Parihar after hearing S.K. Bhat Adv with Ms. Surekha Bhat Advocates for accused No.1 to 5 and 7, 8 &9. Mr. Parveen Kapahi, Advocate for 1 to 3. Mr. K.S. Puri Adv. for the accused No.6. Mr. Maninder Kapoor and associates for accused where as APP Vinay Singh for the CBI, observed that Once the report itself had been stayed by the High Court and kept in abeyance, then without providing the borrower a reasonable opportunity of being heard so as to make a representation before classifying the accounts as fraud was required to be given to the accused companies which in this case is found lacking. Assuming, thereby for the sake of arguments said forensic audit report is taken to be not in existence then there were no reasonable bases for the complainant bank to lay claim that the accounts have become fraud and un-operational.
The investigating officer has not considered this aspect before filing the charge-sheets. In as much as it had noted that there was one time settlement inter-se parties in the year 2018 i.e. before the registration of FIR, but the investigating officer has failed to spell reasons as to what is the impact of such settlement on the merits of the case. Because once the parties had gone for one time settlement and as a consideration thereto the accused companies had also made part payment of Rs.12 crores towards the satisfaction of final settlement of Rs.70 crores which later on ran into bad whether because of alleged breach committed by the accused who failed to liquidate settled amount. Once that breach had happened would it give rise to a criminal liability to be fastened upon the accused companies and its directors such issues were required to be dealt in by the investigating officer after taking legal opinion from its supervisory officers. This is because there is a thin line of distinction between cases of such nature which give raise to both the liabilities that is Civil or Criminal. The investigating officer therefore in the given circumstances was not required to collect a material just to bolster up a prosecution case with such evidence as may enable the Court to record conviction but to bring out the real, unvarnished truth.
Principal Sessions Judge Jammu Sanjay Parihar observed that the investigation appears to be tainted as the I.O has not conducted in depth investigation to discover the truth while keeping in view the individual liberty and due observation of law which was expected of such a premier investigating agency such as C B I.
Prosecution claimed that accused have indulged in offence of cheating and forgery by creating false documents in order to induce complainant bank to enhance cash credit facility in favour of the accused companies. Whereas at the cost of repetition the forensic report given by the hand writing expert is in negative because original record from which evidence of falsification of record could be gathered that primary evidence has not been seized in investigation nor any effort made by the I.O to track it by adopting due course of law.
On the one hand, CBI is alleging that it has kept the issue of further investigation open, but in the same breath it has not investigated the role of bank officials rather has been taking refuge under section 17-A of the Central Act which had no application into the given case. So much so in one of the cases accused Ari Daman Singh was alleged to be director of New Jammu Flour Mills Pvt. Ltd whereas at the time of hearing it was brought to the notice of this Court that the said accused had ceased to be director of aforesaid industrial unit since 10th October, 2013 which is apparent from the certificate dated 05.12.2019. It was submitted that even this certificate was not considered by the investigating officer. Given the aforesaid background the investigation in this case appears to have been conducted in a hash- hash manner without making any endeavor to go to the root of acts or omissions leading towards commission of offence. It appears that the investigation has been carried out in a directionless manner and the I.O ought to have been fair and conscious enough so as to rule out any possibility of fabrication of evidence. Rather his conduct was required to be impartial so as to dispel any suspicion as to the genuineness of the investigation. Consequently, all three FIRs that have given rise to the aforesaid three charge-sheets needed to be subjected to further investigation so as to unravel the truth and fasten liability of forgery, cheating and conspiracy not only on the accused alleged to have committed acts of inducement by laying of false balance sheets. But also, the role of complainant-Bank officials is required to be investigated as offence under section 120-B RPC happened to be root of all the three cases. So, until further investigation is carried down the line, mere filing of three charge sheets would result into the Court being called upon to try the accused on unsubstantial evidence.
In that background further investigation Court ordered in all the three cases. The chargesheets are returned to CBI Special Task Branch (Banking-Fraud Zone) CBI HQ New Delhi for conducting proceed in accordance with law. Pending such investigation accused are relieved of present proceedings with the direction to cooperate with investigation and to appear before court when asked to do so. JNF |
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