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2009 DIGILAW 572 (JK)

Shrish Dutt v. State

2009-11-20

BARIN GHOSH

body2009
1. A written report by one Ratnu Devi, Wife of Late Mewa Ram, dated December 10, 1988, made to the Vigilance Commissioner, Jammu, resulted in a preliminary inquiry. In the written report, it was stated that officials of the State Financial Corporation visited the house of Late Mewa Ram for the purpose of ascertaining whereabouts of Late Mewa Ram, his status and properties held by him. At that time, it transpired to Ratnu Devi that some persons have taken loan in the name of Late Mewa Ram. She held out that one Ashwini Kapoor is one of those who have taken such loan. The preliminary inquiry, on the written report, resulted in filling of a First Information Report, whereon investigations were made, which ultimately led to filling of a charge sheet. In the charge sheet, accused no. 1, Ashwini Kapoor, was held out to be the principal conspirator. In addition to that, it was contended that accused no. 2, Sham Kumar Gupta; accused no. 3, Kulbir Singh Salathia; accused no. 4, Surinder Singh Sodi; accused no. 5, R. S. Kotwal; accused no. 6, Suresh Dutt and accused no. 7, S. C. Chopra, were also conspirators and the conspiracy resulted in loss to a public institution, namely, the State Financial Corporation. It was contended that accused nos. 2, 3, 5, and 6 made papers resulting in disbursal of the loan. It was stated that the purported loanee, Mewa Ram, though died in 1991, accused no. 7 in 1996, wrote a letter to the Registering Authority for cancellation of the hypothecation, which letter also contained purported signatures of Mewa Ram. It was stated that, while apprising the credit worthiness of Mewa Ram and his purported guarantors, accused nos. 2, 3, 5 and 6 reported that Mewa Ram and his purported guarantors hold properties, but the investigation has revealed that they do not, in fact, hold such properties. So far as accused no. 1 is concerned, it was held out that guarantors stated that they signed documents as guarantors at the request of accused no. 1. 2. By the judgment and order under revision in these three revision applications, the Court of Special Judge, Anti-corruption, Jammu, has taken cognizance against accused nos. 1, 2, 3, 5, and 6 and has refused to take cognizance against accused nos. 4 and 7. 3. In the revision filed by accused no. 1. 2. By the judgment and order under revision in these three revision applications, the Court of Special Judge, Anti-corruption, Jammu, has taken cognizance against accused nos. 1, 2, 3, 5, and 6 and has refused to take cognizance against accused nos. 4 and 7. 3. In the revision filed by accused no. 1, it is his contention that the charge sheet would not show that there is any allegation that accused no. 1 did anything, which can be said to be a part of the chain of conspiracy leading to the loss complained of. The learned counsel submitted that there is no allegation that any of these documents, said to have been executed by Late Mewa Ram, was fabricated by his client. 4. Learned counsel appearing on behalf of accused no. 6, Suresh Dutt, who was the then Divisional Manager of the State Financial Corporation, Jammu, but has since retired, has challenged the order taking cognizance against him, on the ground that, apart from his signatures on the credit report prepared by Credit Investigator pertaining to Mewa Ram and his purported guarantors, there is nothing in the records of the case, which would suggest that he, too, was involved in the conspiracy alleged. Learned counsel submitted that the Credit Investigator, in his credit reports, held out that he made independent inquiries about the position of Mewa Ram and his guarantors and that the Chief Investigator is satisfied that the informations furnished by him in the report are best to his knowledge and belief. Learned counsel submitted that, in course of official conduct, the credit report, thus, prepared by the Credit Investigator was placed before accused no. 6 in official capacity and he had put in his signatures thereon. The learned counsel submitted, upon placing reliance on a judgment of the Honble Supreme Court rendered in case of Soma Chakravarty v. State, reported in AIR 2007 SC 2149, that merely because such reports were looked at by his client, it would not be right to hold even at the stage of framing the charge that his client took part in conspiracy; something more is required to be shown and the same is absent in the instant case. 5. The State, too, is aggrieved by the order of taking cognizance, inasmuch as accused no. 7 has been let off. The State is not aggrieved, however, for letting off accused no. 4. 5. The State, too, is aggrieved by the order of taking cognizance, inasmuch as accused no. 7 has been let off. The State is not aggrieved, however, for letting off accused no. 4. It is the contention of the State that it has come on record of investigation that Mewa Ram died on February 14, 1991; whereas the letter terminating hypothecation of the vehicle was issued to the Registering Authority on April 30, 1996 containing the signatures of Mewa Ram. The learned counsel submitted that this fact was noticed by the Special Judge while framing charge when he opined that the same is questionable, indeed, but, despite finding the same to be questionable concluded the matter at the charge framing stage itself, by holding that such questionable conduct need not be gone in at the trial to link the chain of conspiracy. It was submitted by the learned counsel for the State that the opinion, thus, expressed without trial was, indeed, not acceptable. He cited a judgment of the Honble Supreme Court rendered in the case of Hardeo Singh v. State of Bihar and anr., reported in (2005) 5 SCC 623, for the proposition that such a questionable action leads to natural inference upon other consideration, which may or may not directly relate to the conspiracy complained of, but requires to be determined only at the trial, and cannot be closed at the charge stage itself. 6. It is true that in the charge sheet, no other particulars have been furnished as to conspiracy by accused no. 1, except that the purported guarantors signed the guarantee documents at the request of accused no.1. Whether, in fact, accused no.1 requested the purported guarantors to do so or not, requires to be gone in, and for that matter, trial is must. What would be the outcome at the trial, cannot be foreseen at the charge framing stage. In the event, it is proved that accused no. 1 did request the purported guarantors to sign guarantee documents, that itself may not complete the chain. For that, it may be a requirement to produce some further evidence, but, however, at the stage of framing of charge, it cannot be concluded that no case against accused no. 1 has been made out. 7. In the circumstances, revision application filed by accused no. 1 is dismissed. Interim orders passed thereon are vacated. 8. For that, it may be a requirement to produce some further evidence, but, however, at the stage of framing of charge, it cannot be concluded that no case against accused no. 1 has been made out. 7. In the circumstances, revision application filed by accused no. 1 is dismissed. Interim orders passed thereon are vacated. 8. It may be possible, as has been contended by accused no. 6, that the credit report of Mewa Ram and his purported guarantors, prepared by credit investigators was produced before accused no.6 in the usual course of business and having had looked into the same, acknowledging to have done so, he may have had signed the said reports and, accordingly, it may not be proved that accused no. 6 had any role to play in relation to the conspiracy alleged. However, this part of the evidence is required to be brought on record to absolve respondent no. 6, inasmuch as the charge, as stands framed, is that respondent no. 6 played equal part with respondents no. 2, 3 and 5 in preparation of the said reports; whether he did take equal part in preparation of the said report and it not, can only be decided on conclusion of trial and not at the charge framing stage. 9. In the circumstances, revision application filed by respondent no. 6 fails and the same is dismissed. 10. The loan, in the instant case, was given on June, 4, 1988. Purported loanee, Mewa Ram, died on February 4, 1991. The vehicle was seized on August 5, 1992 and the same was sold on March 6, 1996. On April 30, 1996, accused no. 7, on whose behalf no one is appearing now, nor he is appearing in person despite having been served, issued a letter to the Registering Authority holding out that the hypothecation of the vehicle stands cancelled. This letter, allegedly contains signature of Mewa Ram, who died five years before the date of writing the said letter. The fact that the signature of Mewa Ram featured in this letter, is questionable. The conduct of accused no. 7 in having signature of Mewa Ram on that letter is also questionable. The questionable conduct of accused no. 7 whether leads to completion of the chain of conspiracy alleged, requires to be decided on evidence being led at the trial, but accused no. The conduct of accused no. 7 in having signature of Mewa Ram on that letter is also questionable. The questionable conduct of accused no. 7 whether leads to completion of the chain of conspiracy alleged, requires to be decided on evidence being led at the trial, but accused no. 7, cannot be absolved at the charge framing stage despite noting such questionable conduct. 11. In the circumstances, revision application of the State is allowed and, accordingly, that part of the order of the Special Judge is quashed by which Special Judge refused to frame charge against accused no. 7, Sh. S. C. Chopra. The matter is remitted back to the Special Judge with direction upon him to frame charge also against accused no. 7, Sh. S. C. Chopra, under sections 5(2) read with 5(1)(d) of Prevention of Corruption Act and 120-B and 471 RPC and, thereupon, proceed with the trial as expeditiously as possible. 12. Records be returned back.