JUDGMENT A.K. GOEL, C.J. : This petition seeks quashing of order dated 22.10.2009 passed by the Debts Recovery Appellate Tribunal, requiring the appellant to deposit a sum of Rs.5,00,000/- (Rupees five lakhs) as pre-deposit for entertaining the petitioner’s appeal against order Debt Recovery Tribunal issuing certificate of recovery against the petitioner as gurantor. The opposite party-State Bank of India initiated proceedings for recovery of the loan against Bibhuti Bhusan Swain-opposite party No.3 as Principal Debtor (in short ‘PD’) and Banamali Sahoo, the father of the petitioner as guarantor. It was stated that a loan of Rs. 15 lakhs was sanctioned in the year 2005 in favour of the PD and the guarantor executed the document to create equitable mortgage of his property on 5.2.2005. The cash credit limit was enhanced to Rs.20 lakhs on 8.3.2006 and the PD and the guarantor executed further documents. After availing the cash credit limit, PD failed to repay the loan amount which was classified as NPA from 1.3.2008. Application was filed before the Tribunal to recover a sum of Rs.22,62,890.00. The guarantor was declared ex parte and proceeding was contested by the PD. According to the bank, the guarantor was introduced by the PD and documents were filled up in the hands of the PD. 2.The Tribunal, vide order dated 10.6.2009, allowed the claim of the bank and held that the PD and guarantor are jointly and severally liable to repay the loan amount. 3.The petitioner was Defendant No.3 before the Tribunal and filed an application to submit that he was not liable to pay any amount. The said application was not accepted. It was held that as legal heir of the guarantor, the petitioner was also liable to repay the loan. At the same time, it was observed that the bank has not claimed any relief against the petitioner and the original application against him was dismissed. Still observation has been made that the petitioner was liable to pay the amount. It was held that as legal heir of the guarantor, the petitioner was also liable to repay the loan. At the same time, it was observed that the bank has not claimed any relief against the petitioner and the original application against him was dismissed. Still observation has been made that the petitioner was liable to pay the amount. Reference may be made to paragraph-22 of the order which is as follows : “If the defendant No.3 a legal heir of the defendant No.2 claims the properties of the defendant No.2 including the property which was created mortgage to the applicant bank as a security in respect of the amount advanced to the defendant No.1 by the applicant bank then the defendant No.3 is liable to pay the certificate amount to the applicant bank from the assets of the defendant No.2 which are in hands of defendant No.3. The applicant bank has not claimed any relief against defendant No.3. Hence, the original application against defendant No.3 is dismissed without costs.” 4.Aggrieved by the above order, the petitioner preferred an appeal before the Debts Recovery Appellate Tribunal, Kolkata and also made an application under Section 21 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 to exempt him from making any pre-deposit for the purpose of entertaining the appeal. 5.It was submitted that the guarantor was different person from his father though he resembles his name. The father of the petitioner had died on 24.7.1981 whereas the loan transaction was entered into in the year 2005 and, thus, his father could not have furnished any security for the loan. 6.The Tribunal observed that the petitioner had not challenged the order refusing to set aside the proceeding initiated at his back and thus he cannot claim to be exempted from making the pre-deposit. The petitioner was accordingly directed to pay Rs.5,00,000/- (Rupees Five lakhs) in default the appeal was not be considered on merits. 7.On 10.12.2009, considering the writ petition filed by the petitioner, the following order was passed : “Heard learned counsel for the parties. The petitioner was accordingly directed to pay Rs.5,00,000/- (Rupees Five lakhs) in default the appeal was not be considered on merits. 7.On 10.12.2009, considering the writ petition filed by the petitioner, the following order was passed : “Heard learned counsel for the parties. Learned counsel for the petitioner submits that the mortgage property originally belonged to the father of the petitioner, namely late Banamali Sahoo, who died on 24.7.1981, the said property appears to have been mortgaged with the bank in the year 2005 showing Banamali Sahoo as the guarantor and necessary deed appears to have been executed in the name of Banamali Sahoo creating equitable mortgage in respect of the said property, as a guarantor for the loan advanced to opposite party No.3. Learned counsel for the loanee, opposite party No.3, submits that he had not provided any guarantee for availing loan and that he had paid some amount to the bank officials, who have arranged the guarantor and got the guarantee deed executed, creating equitable mortgage, for sanctioning the loan to him. In view of the allegations made by the learned counsel for the petitioner and opposite party No.3, we direct the bank to produce the entire records of the loan account of opposite party No.3 before this Court on 7.1.2010. The Registrar, D.R.T., Cuttack, is also directed to transmit the records in O.A. No.41 of 2009 to this Court by the said date. The opposite party No.3 is directed to deposit a sum of Rs.5,00,000/- (Rupees five lakhs) with the bank by 4.1.2010, which shall be subject to further orders of this Court.” 8.Thereafter, on 17.2.2010 after perusing the record, it was observed that no original title deed excepting R.O.R. have been furnished with the deed of agreement. There was no resemblance in the photograph of the father of the petitioner and photograph attached to the letter of arrangement and thus it appeared to be fraud regarding property of the father of the petitioner. Accordingly, C.B.I. was directed to investigate into the matters and give a report to this Court. Relevant observation in the said order is as follows : “In order to know the truth in the allegation of the petitioner, we called for the record from the D.R.T., Cuttack, in O.A. No.41 of 2009 filed by the State Bank of India. Accordingly, C.B.I. was directed to investigate into the matters and give a report to this Court. Relevant observation in the said order is as follows : “In order to know the truth in the allegation of the petitioner, we called for the record from the D.R.T., Cuttack, in O.A. No.41 of 2009 filed by the State Bank of India. Today the Registrar, D.R.T., Cuttack produces the said records, wherein it is indicated that it contains the deed of guarantee and the original title deed. On perusal of the said documents, we find that there is no original title deed, save and except the original R.O.R. indicating Stithiban homestead property measuring Ac.0.80 decimals standing in the name of Banamali Sahoo, son of Baraju Sahoo, Mouza-Chauliaganj. We have also perused the letter of arrangement, the guarantee agreement and an affidavit sworn to on 24.1.2005 indicating the age of Banamali Sahoo to be 62 years and bearing his signature in Oriya. The Oriya signature of Banamali Sahoo is also there in the letter of arrangement. The photograph attached to the letter of arrangement portraying to be of Sri Banamali Sahoo appears to the naked eye that there is no resemblance of the said photograph of Banamali with photograph in the Passport. Prima facie, we are of the view that fraud has been perpetrated on the bank as regards the property of Banamali Sahoo, who was dead since 1981, and the Bank has been defauded with the connivance of the borrower, the bank officers and may be some other persons aquainted with the borrower as well as Banamali Sahoo. and the person, who stood as guarantor, i.e. the person whose photograph has been attached to the letter of arrangement. The matter being very serious in nature and touches the trustworthiness of the bank and security of the account holder, in our opinion, this matter should be investigated by the Central Bureau of Investigation. Accordingly, we direct the Superintendent of Police, Central Bureau of Investigation, Bhubaneswar to investigate into the matter and submit a report to this Court within three months from the date of communication of this order. Accordingly, we direct the Superintendent of Police, Central Bureau of Investigation, Bhubaneswar to investigate into the matter and submit a report to this Court within three months from the date of communication of this order. During the course of investigation, if culpability of any officer or any person is found, it will be open to the Superintendent, C.B.I. to register a formal F.I.R. and initiate criminal proceeding against those persons.” 9.It was observed that the bank will be at liberty to proceed against the PD but not against the petitioner. 10.We have heard the learned counsel for the parties. 11.Learned counsel for the C.B.I. submits that after investigation, it has been established that the father of the petitioner had passed away in the year 1981 and alleged guarantee was furnished in the year 2005 which could not have been furnished by the father of the petitioner. Accordingly, charge sheet has been filed before the Special Judge (CBI), Bhubaneswar on 30.9.2011 arising out of RC0152010A0012 against A.K. Palit, the then AGM, SECC, SBI, Cuttack and others. The investigating officer, in the said charge sheet, observed as follows : “That investigation revealed that Shri S. Biswal had prepared the opinion reports dated 28.12.2004 in which he deliberately omitted the liability of the borrower to Allahabad Bank and further increased the assets of the borrower. As per the statement of CC A/c No.1251 submitted by the borrower, there was an outstanding loan of Rs.4,89,127/- to Allahabad Bank as on 15.12.2004. Further, Shri Biswal did not obtain the documents viz voter identity card and PAN card in support of the identity of the guarantor Banamali Sahoo. He also did not conduct the pre-sanction inspection of the collateral security. During the course of investigation, it revealed the Banamali Sahoo who stood as guarantor for the said loan, expired on 24.7.1981. The property which was shown as a double storied building is in fact only a single storied building. Further, in cash credit account in Allahabad Bank was not closed by the borrower. Thus, it is established that Shri A.K. Palit, Shri S. Biswal, Shri A.K. Das, Shri Bibhuti Bhusan Swain, Raj Kishroe Swain, S.S. Mohanty and Bansidhar Sahoo were parties to a criminal conspiracy to cheat the bank. Further, in cash credit account in Allahabad Bank was not closed by the borrower. Thus, it is established that Shri A.K. Palit, Shri S. Biswal, Shri A.K. Das, Shri Bibhuti Bhusan Swain, Raj Kishroe Swain, S.S. Mohanty and Bansidhar Sahoo were parties to a criminal conspiracy to cheat the bank. In furtherance of said criminal conspiracy, Shri Bibhuti Bhusan Swain offered third party guarantee of Late Banamali Sahoo (passed away on 24.7.1981) and his property as collateral security. Shri S.S. Mohanty, Approved Valuer had falsely shown the property as a double storied building and inflated its distress sale value, though the property was only a single storied building. Shri Raj Kishore Swain identified Bansidhar Sahoo a Banamali Sahoo to the Notary Public who had swon the affidavit on 24.1.2005. Shri S. Biswal, by abusing his official position, recommended to sanction of cash credit limit as ‘New connection’ without ascertaining the identify of the guarantor, pre-sanction inspection of the collateral security and closure of cash credit account with allahabad Bank. Finally, Shri A.K. Palit sanctioned cash credit limit of Rs.15 lakhs in favour of Shakti Auto Traders on the strength of fake guarantor and forged documents. That, the aforesaid acts on the part of Shri A.K. Palit, S. Biswal, A.K. Das, Bibhuti Bhusan Swain, Raj Kishore Swain, S.S. Mohanty and Bansidhar Sahoo constitute commission of cognizable offences punishable under Section 120-B, 419, 420, 468, 471 IPC and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988. It is therefore, prayed that cognizance of the offences committed by the accused persons Shri A.K. Palit, S. Biswal, Bibhuti Bhusan Swain, Raj Kishore Swain, S.S. Mohanty and Bansidhar Sahoo may be taken and necessary process may be issued to compel the attendance of the accused persons to face trial in accordance with law.” 12.From the above, it is clear that according to the CBI, PD and others have forged the documents to fastern liability against the father of the petitioner. 13.Without expressing any opinion on matters of criminal charge which is to be gone into by the trial Court, we are of the view that father of the petitioner was not liable as guarantor and no liability could be fastened to the petitioner as heir of his father. 13.Without expressing any opinion on matters of criminal charge which is to be gone into by the trial Court, we are of the view that father of the petitioner was not liable as guarantor and no liability could be fastened to the petitioner as heir of his father. 14.Accordingly, we set aside the impugned order and hold that the petitioner is not liable to pay any amount by virtue of the guarantee deed allegedly executed by the petitioner’s father. The certificate of recovery against the petitioner is quashed. The petitioner is entitled to cost of Rs.50,000/- (Rupees Fifty Thousand) which will be first borne by the bank, but the bank will be at liberty to recover the same from the prinicpal debtor or officers responsible for illegally proceeding against the petitioner. Even after it became clear that father of the petitioner had died before alleged guarantee transaction, the bank should have fairly withdrawn proceedings against the petitioner. 15.The Special Judge (CBI), Bhubaneswar is directed to expeditiously conclude the trial, preferably within six months from today. A copy of the order be sent to the Court of Special Judge (CBI), Bhubaneswar.. Ordered accordingly.