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2008 DIGILAW 1133 (BOM)

Moreshwar Dinanath Save v. State of Maharashtra

2008-08-08

V.R.KINGAONKAR

body2008
JUDGMENT 1. These three petitions are being disposed of together inasmuch as they arise in identical circumstances and involve same questions of law and facts. 2. By these petitions, petitioners seek quashing of criminal proceedings pertaining to Special Case No.6/1992 and Special Case No.7/1992 arising out of Crime No.RC-16/1974 registered by C.B.I., Bombay. 3. Petitioner - Moreshwar Save is Chairman of Savera Group of Companies, which deals in manufacturing Pharmaceuticals and engineering products, transport, computers, cinema theatres etc. Petitioner-Ganesh Datar is Ex-Manager of United Commercial Bank, Aurangabad. A vigilance Officer of the said UCO Bank gave a report dated 24th December 1973 to the C.B.I. against Ganesh Datar, one Ex-Accountant, one Sardar Tarlochansing and petitioner - Moreshwar Save alleging financial irregularities. It was alleged that overdraft facilities were granted in favour of said Sardar Tarlochansing and petitioner - Moreshwar Save in the excess of permissible amounts. It was further alleged that petitioner - Ganesh Datar did not charge appropriate interest on the amounts recoverable in respect of certain transactions, including which were overdue in respect of such overdraft facility allowed in favour of Sardar Tarlochansing and petitioner - Moreshwar Save. 4. Briefly stated, the prosecution case is that between January 1971 and July 1973, both the petitioners and deceased Sardar Tarlochansing hatched up criminal conspiracy to dupe the UCO Bank. They committed offence of cheating by discounting bills and cheques without there being any sanctioned limit available to the customers, i.e. Moreshwar Save and deceased Sardar Tarlochansing. The amounts were misappropriated by crediting proceeds of such bills and cheques before they were realised from the drawee Bank, viz., Saraswat Co-operative Bank Ltd., in the account of M/s.Anjali Cinetorium or M/s Anjali Theatres run by Savera Group of Companies. The UCO Bank suffered a loss of Rs.2,198.52 ps. on account of overdue interest and Rs.254/- on account of commission. It is alleged that the UCO Bank suffered losses to the tune of Rs.4,110.95 ps. on a/c of over-due interest and Rs.304.20 ps. on account of commission and in third item, suffered loss of Rs.13,035.28 ps. on account of overdue interest and Rs.175/- on account of commission. This is the foundation of Special Case No.6 of 1992. 5. In the context of Special Case No.7 of 1992, it is alleged that the UCO Bank was cheated by presentation of a bill of Rs.48,061.20 ps. on account of overdue interest and Rs.175/- on account of commission. This is the foundation of Special Case No.6 of 1992. 5. In the context of Special Case No.7 of 1992, it is alleged that the UCO Bank was cheated by presentation of a bill of Rs.48,061.20 ps. drawn on Controller of Defence Account (Southern Commission), Pune. It was falsely shown to be a purchase bill in the register and the amount was credited in the account of deceased Sardar Tarlochansing. It was alleged that 22 call deposit receipts of Rs.1,84,090/- were issued on 2.1.1973 by petitioner - Ganesh Datar to deceased Sardar Tarlochansing in which the balance at the close of business on 1.1.1973 was debit of Rs.47,706.28 ps. and balance at the close of business on 2.1.1973 was credit of Rs.23,294.12 ps. There was neither debit voucher nor a cheque debit in consideration of the said, "calldeposit receipts". In respect of such transaction, instead of 22 bills only 11 bills were shown in the books and records of the UCO Bank. 6. Initially, two Special Cases were instituted before learned Special Judge, Bombay being Special Case No.1/1976 wherein alongwith Ganesh Datar, customer - Moreshwar Save was arrayed as an accused and Special Case No.2/1976 wherein Ganesh Datar and deceased Sardar Tarlochansing were arrayed as accused. 7. It appears that petitioner - Ganesh Datar challenged the order of issuance of process in the Special Cases instituted in the Court of Special Judge at Bombay on the ground that sanction was required for his prosecution. He alleged that being a public servant, the criminal cases could not be instituted against him without appropriate sanction. He contended that the sanction granted by the Chairman in Special Case No.2/1976 was not legal and proper. He alleged that the sanction accorded by the Chief Executive of the UCO Bank was improper and illegal. He, therefore, filed Criminal Revision Application No.558 of 1981 and Criminal Revision Application No.559 of 1981 in this Court at main seat (Bombay). A Single Judge of this Court (Rele, J.) by judgment dated August 17th, 1982, held that both the Special Cases based on the sanctions issued, could not proceed. It was held that the sanctions accorded for the prosecution were defective and illegal. However, it was further clarified that the competent authority may accord fresh sanctions. A Single Judge of this Court (Rele, J.) by judgment dated August 17th, 1982, held that both the Special Cases based on the sanctions issued, could not proceed. It was held that the sanctions accorded for the prosecution were defective and illegal. However, it was further clarified that the competent authority may accord fresh sanctions. Thereafter, afresh sanction was obtained and Special Case No.10/1984 and Special Case No.11/1984 were instituted afresh. 8. The petitioners herein and deceased Sardar Tarlochansing, who was accused No.2 in Special Case No.11 of 1984, were discharged by the learned Special Judge, Bombay, by order dated 3rd November 1987. The learned Special Judge held that the Bank employee is not a ‘public servant’ and, therefore, the provisions of the Prevention of Corruption Act were not applicable. The learned Special Judge further held that the other provisions viz., Section 120-B, 420 and 477A of the I.P.C. were triable by the Court of Metropolitan Magistrate. He, therefore, held that he had no jurisdiction to proceed with the Special Cases in which besides the other offences, the offences under provisions of the Prevention of Corruption Act too were alleged to have been committed. The C.B.I. filed Criminal Revision Application Nos.73 of 1988 and 74 of 1988 challenging the discharge order dated 3rd November 1987. This Court, by order dated 3rd November 1988, held that the discharge was improper and, therefore, the discharge order rendered by the Special Judge, Bombay, was set aside. The order of this Court was challenged by filing Special Leave Petition No.(Cri.) 672-685 of 1989. The Apex Court granted interim stay to the proceedings of the Special Case Nos.10 of 1984 and 11 of 1984. The Apex Court, subsequently, upheld the Judgment of this Court and thereafter, both the Special Cases were transferred to the Court of Special Judge at Aurangabad and were registered as Special Case No.6/1992 and Special Case No.7/1992. 9. The petitioners would submit that there is delay of more than twenty years since filing of the F.I.R. and yet neither of the special case is at the stage of hearing. They would submit that long drawn delay of more than 20 years is likely to impair their defences in the context of both the special cases. 9. The petitioners would submit that there is delay of more than twenty years since filing of the F.I.R. and yet neither of the special case is at the stage of hearing. They would submit that long drawn delay of more than 20 years is likely to impair their defences in the context of both the special cases. According to petitioner - Moreshwar Save, the amounts claimed by the UCO Bank have been cleared and both the accounts i.e. of M/s Anjali Theatres and M/s Anjali Cinetorium are cleared. It is asserted that nothing is due to be paid to the UCO Bank by petitioner - Moreshwar Save. He has filed relevant Bank extracts in support of his such contention. Petitioner - Ganesh Datar would submit that he has been dismissed from service by the UCO Bank and suffered a lot. He would submit that it was within his financial powers to grant the overdraft facilities. He would further submit that if anything is done in excess, then also it is only the administrative lapse or official negligence but there is no criminal intention as such. Hence, both the petitioners seek quashing of the criminal proceedings. 10. Heard Mr.S.S.Bora, learned Advocate for the petitioners and Mr.Alok Sharma, learned Assistant Soliciter General for the C.B.I. 11. Mr.Bora would submit that after such a long delay, it would be difficult for petitioners to defend themselves appropriately even if the prosecution is to commence. He would point out that the report of Vigilance Officer (F.I.R.) is dated 24th December 1973. The offence was registered on 15th April 1974 and charge-sheet was filed on 30th January 1976. The sanction for prosecution of petitioner - Ganesh Datar was challenged. The High Court set aside the order of sanction with liberty to obtain fresh sanction as per Judgment dated 17th August 1982 rendered by a Single Bench (Rele, J.). Thereafter, afresh sanction was accorded on 20th December 1982. It is argued that the unnecessary delay from date of F.I.R. till appropriate sanction which was accorded on 20th December 1982, covers span of about 9 (nine) years and is not attributable to the petitioners. It is contended that the subsequent events would show that the petitioners were discharged by order of the learned Special Judge on 3rd November 1987 and thereafter, the matter moved from one Court to another Court. It is contended that the subsequent events would show that the petitioners were discharged by order of the learned Special Judge on 3rd November 1987 and thereafter, the matter moved from one Court to another Court. Mr.Bora would submit that since no witness is examined as yet and that the transactions are so stale that there is great difficulty in making out the defence, the petitions deserve to be allowed. He would further submit that the irregular sanctioning of overdrafts is of no much relevance because petitioner - Moreshwar Save had made all the payments as shown in the extracts of the accounts (P.41-A and B). He would point out that petitioner - Ganesh Datar is now more than eighty (80) years old and is penalised administratively because of dismissal from service. In view of such intervening developments, Mr.Bora would submit that the prosecutions against the petitioners may be quashed. Mr.Alok Sharma, learned Assistant Soliciter General, on behalf of respondent No.1 would submit that the prosecutions cannot be quashed because the delay has occasioned due to various objections raised by the petitioners and the time spent in the Court at different level. He contended that the delay is not attributable to the C.B.I. and hence, prosecutions cannot be quashed for reasons stated in the pettiions. 12. Core issue involved in these petitions is whether the delay in commencement of the prosecutions would amount to violation of the right of the petitioners to a speedy trial. It is also required to be examined whether taking a realistic and practical approach having regard to attending circumstances and nature of the offence, the prosecutions may be quashed on account of the delay of the magnitude stated in these petitions. 13. At the threshold, it may be stated that these petitions were filed in the year 1997. The F.I.R. was lodged in 1973. The charge-sheet was submitted in the Court of Special Judge at Bombay on 13th January 1976. The sanction for prosecution of petitioner - Ganesh Datar was found to be defective and was set aside by this Court on 17th August 1982. Afresh sanction was accorded on 20.12.1982. Thus, in the meanwhile, the delay of about nine (9) years is caused since date of the F.I.R. lodged by the Vigilance Officer to the C.B.I. The petitioners are not responsible for such delay of at least about nine (9) years. Afresh sanction was accorded on 20.12.1982. Thus, in the meanwhile, the delay of about nine (9) years is caused since date of the F.I.R. lodged by the Vigilance Officer to the C.B.I. The petitioners are not responsible for such delay of at least about nine (9) years. The averment made by petitioner - Moreshwar Save about making of the payments in the accounts of M/s Anjali Theatres and M/s Anjali Cinetorium (P.41-A & B) is uncontroverted. Thus, whatever financial gains were received by petitioner - Moreshwar Save have been recouped. 14. What kind of financial favours were shown by petitioner - Ganesh Datar is also required to be examined. Allegedly, in context of Save Group, the Bank did not earn interest on advances of Rs.2.41 lacs. For, petitioner - Ganesh Datar unauthorizedly allowed Save group to produce fictitious and false bills. He also suppressed the real position of the accounts of Save group. The recitals of the first information report lodged as regards financial misdeeds in relation to Save group, apparently are vague. I have perused the F.I.R. (Exh."A’). The major allegations pertain to financial irregularities and misdeeds in relation to Sardar Tarlochansing and sons. The cheque issued by Sardar Tarlochansing and sons on 30th December 1972 for Rs.1.45 lacs was not debited to the said account but was retained by petitioner - Ganesh Datar in his personal custody. It was credited somewhere in month of July 1973. He favoured Sardar Tarlochansing and sons in the matter of overdrafts and call deposits. There cannot be duality of opinion that petitioner -Ganesh Datar exposed himself to disciplinary action. Still, however, the recitals of the F.I.R. do not indicate that there was any supportive evidence to infer financial underhand dealings between Sardar Tarlochansing and sons on one side and petitioner - Ganesh Datar on the other. It is only suggestion in the F.I.R. that due to dubious nature of entries in the accounts of Sardar Tarlochansing and Sons, and the delayed transactions in respect of depositing of the cheque dated 30th December 1972, there could be some underhand dealings between them. 15. In the meanwhile, Sardar Tarlochansing, who was arrayed as accused No.2 in Special Case No.7 of 1992 died. The said Special Case abated against him. As stated before, petitioner Ganesh Datar has become pretty old since he has crossed eighty years of age by now. 15. In the meanwhile, Sardar Tarlochansing, who was arrayed as accused No.2 in Special Case No.7 of 1992 died. The said Special Case abated against him. As stated before, petitioner Ganesh Datar has become pretty old since he has crossed eighty years of age by now. It would be practically difficult for him to make out his defence in the Special Case No.7 of 1992 due to senility. It need not be reiterated that petitioner - Moreshwar Save cleared the accounts of the UCO Bank. The F.I.R. reflects only vague allegations against him in respect of favouritism shown by petitioner - Ganesh Datar while granting overdraft facility etc. Moreover, he is not responsible for the delay caused before filing of the petition. There was delay of approximately 20 (twenty) years when he filed the petition (Cri.Application No.687 of 1997), which cannot be attributed to him. 16. The Apex Court in "Seeta Hemchandra Shashittal and another v. vs. State of Maharashtra and others" (AIR 2001 SUPREME COURT 1246) held that the delay taken for obtaining the sanction from the Government cannot be attributed to the Investigating Officer. The Apex Court, however, observed : " A realistic and practical approach should be made regard being had in all attending circumstances, including the nature of the offences, the number of accused and witnesses etc.". . The fact situation in each case ought to be considered having regard to the reasons for the delay, which occasioned during the investigation stage, and subsequent stages. 17. In "Mahendra Lal Das v. State of Bihar and others 6", ( AIR 2001 S.C. 2989 ), the Apex Court observed as under : " The right to speedy trial encompasses all the stages, namely, stage of investigation enquiry, trial appeal revision and re-trial. While determining the alleged delay the Court has to decide each case on its facts having regard to all attending circumstances including nature of offence, number of accused and witnesses, the work-load of the Court concerned, prevailing local conditions etc. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case". 18. Every delay may not be taken as causing prejudice to the accused but the alleged delay has to be considered in the totality of the circumstances and the general conspectus of the case". 18. The Apex Court, in "Moti Lal Saraf versus State of Jammu & Kashmir & Another (2006) 10 SCC 560 , held that the purpose of right to a speedy trial is intended to avoid oppression and prevent delay by imposing on the Court and on the prosecution an obligation to proceed with reasonable dispatch. The Apex Court observed : " Admittedly, in the last more than 26 years, not even a single witness has been examined by the prosecution. The appellant, of course, had taken the legal remedy available to him to protect his interests against illegal proceedings initiated against him by the respondents, but that by itself could not be a ground to harass and humiliate the appellant for more than a quarter century". 19. In the fact situation of the present matters, the petitioners would be required to face the criminal prosecution after almost thirty-two years from filing of the charge-sheet, which itself was delayed by three years. In my opinion, it would not be pragmatic to call upon them to face the criminal prosecutions after such a long drawn delay. It may be that they themselves are responsible for certain amount of delay, which is caused after filing of these petitions. Still, however, the delay of about twenty (20) years prior to the petitions cannot be attributed only to them. A due share of such delay goes to the prosecution agency. 20. In "Pankaj Kumar v. State of Maharashtra & Ors." 2008) (Criminal Appeal No.1067 of 2008), the Apex Court observed : "14. Time and again this Court has emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the Cr.P.C. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi Vs. Union of India & Anr.99 (1978) 1 SCC 248 , in Hussainara Khatoon & Ors., Vs. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of this Court in Maneka Gandhi Vs. Union of India & Anr.99 (1978) 1 SCC 248 , in Hussainara Khatoon & Ors., Vs. Home Secretary, State of Bihar 10 (1980) 1 SCC 81 , this Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be ‘reasonable, fair and just’, and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as ‘reasonable’, fair or just’ and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. 17. It is, therefore, well settled that the right to speedy trial in all criminal persecutions is an inalienable right under Article 21 of the Constitution. This right is applicable not only to the actual proceedings in court but also includes within its sweep the preceding police investigations as well. The right to speedy trial extends equally to all criminal persecutions and is not confined to any particular category of cases. In every case, where the right to speedy trial is alleged to have been infringed, the court has to perform the balancing act upon taking into consideration all the attendant circumstances, enumerated above, and determine in each case whether the right to speedy trial has been denied in a given case. Where the court comes to the conclusion that the right to speedy trial of an accused has been infringed, the charges or the conviction, as the case may be, may be quashed unless the court feels that having regard to the nature of the offence and other relevant circumstances, quashing of proceedings may not be in the interest of justice. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial." 21. The right to speedy trial is ingrained in Article 21 of the Constitution. In such a situation, it is open to the court to make an appropriate order as it may deem just and equitable including fixation of time for conclusion of trial." 21. The right to speedy trial is ingrained in Article 21 of the Constitution. The petitioners cannot be called upon to face the criminal prosecutions in view of the peculiar facts obtained in the present matters. It would not be practical to expect them to appropriately brace up to make their defences in the Special Case No.6/1992 and Special Case No.7/1992. Considering the foregoing discussion, I am inclined to hold that the prosecutions in both the Special Cases mentioned above deserve to be quashed. 22. In the result, the petitions are allowed and the proceedings of Special Case No.6/1992 and 7/1992 are quashed.