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2016 DIGILAW 593 (KER)

A. T. Raghunath v. Ramachnadran

2016-07-12

B.KEMAL PASHA

body2016
JUDGMENT : 1. Facts are stranger than fiction! 2. The petitioner as complainant preferred Ext.P17 complaint before the Superintendent of Police, Central Bureau of Investigation, Kochi Unit, precisely complaining as follows:- The petitioner had availed a term loan of Rs.123 lakhs, for his project named 'Sandeepani Smart Village' in the year 2008-2009 from the Syndicate Bank, Angamaly Branch. The progress of the project for which the amount was obtained was allegedly blocked due to some supervening circumstances and, therefore, he could not continue with the project, which rendered the loan account in arrears. By 30th September, 2009, the Bank had declared the loan account as NPA. 3. The complainant was running from pillar to post to clear the liability by somehow managing to sell his properties mortgaged with the Bank and to raise funds. In January, 2011, according to the petitioner, he could reach a sale agreement with the 3rd respondent herein named Brahmachari Prakash for and on behalf of Matha Amrithanandamayi Math (hereinafter referred to as 'the Math'). The endorsement incorporated in Ext.P1 agreement shows that the 3rd respondent was also made aware of the transactions between the Bank and the petitioner. 4. After reaching such an agreement, according to the petitioner, he along with the 3rd respondent had approached the Bank for settling the liability through a one time settlement. On 21.05.2011, the petitioner was informed by the Bank that they were willing to settle the liability for a sum of Rs.135 lakhs, which should be paid within 21 days of the settlement. According to the petitioner, on 11.06.2011, he received Demand Draft for Rs.135 lakhs procured by the 3rd respondent from the Dhanalakshmi Bank in favour of M/s. Sandeepani Smart Village, and the petitioner produced the same before the 2nd respondent Bank on 13.06.2011 in the presence of the first respondent, who was the Regional Manager of the Bank and the 3rd respondent, and also requested the Bank in writing to handover the original title deeds to the 3rd respondent. According to the petitioner, he had left the Bank without taking the counter foil of the deposit voucher of the Demand Drafts. 5. According to the petitioner, he had left the Bank without taking the counter foil of the deposit voucher of the Demand Drafts. 5. On 22.06.2011, when the petitioner visited the Bank and was engaged in a casual talk with the 2nd respondent, he was shown a letter allegedly written by the 3rd respondent indicating some problems in purchasing the land and requesting the Bank to return the amount, which the petitioner had remitted by way of one time settlement agreed to between the Bank and the petitioner. On the same day, he gave a letter to the Bank by requesting not to release any amount without the consent of the petitioner. Ignoring the said letter, officials of the Bank had allegedly returned the money on 25.06.2011, which according to the petitioner, is not justifiable and unknown to the banking history. 6. According to the petitioner, the officials of the Bank and the 3rd respondent conspired with the 5th respondent Valuer to reduce the value of the property in question to Rs.165 lakhs, which actually could have fetched an amount more than Rs.8 crores, as sale consideration. According to the petitioner, the authorised Valuer of the Bank had valued the original property in question at the time when the amount was sanctioned at Rs.4.5 crores; whereas the officials of the Bank along with the 3rd respondent could procure a valuation report in respect of the very same property at Rs.142.61 lakhs in the year 2014. Further, according to the Valuer, at a forced sale, the value that could be procured is Rs.128 lakhs. 7. Thereafter, some strange things happened. The petitioner could realise that instead of crediting the amount covered by the Demand Draft in the loan account, the amount collected through the presentation of the Demand Draft was refunded by the Bank to the 3rd respondent, without the knowledge and consent of the petitioner. Heavy interest accumulated in the loan transaction once again, whereby the Bank proceeded against the property through SARFAESI proceedings. The net result was that the 3rd respondent, who had allegedly agreed to purchase the property for Rs.2.5 crores, could bring the property to auction sale through the officials of the Bank in SARFAESI proceedings and could bid it in auction for an amount of Rs.165 lakhs. The net result was that the 3rd respondent, who had allegedly agreed to purchase the property for Rs.2.5 crores, could bring the property to auction sale through the officials of the Bank in SARFAESI proceedings and could bid it in auction for an amount of Rs.165 lakhs. When the petitioner came to know about it, the petitioner proceeded against it at the Debt Recovery Tribunal and still the amount remains unpaid towards the loan. 8. On going through the transaction, it is evident that the Bank has sustained huge financial loss in the transaction. By way of one time settlement, a huge amount was reduced from the actual loan account. Still, the amount in full has not been paid. 9. The party respondents have taken up almost similar contentions. According to the Bank represented by the 4th respondent and according to respondents 1 and 2, who have endorsed the contentions of the 4th respondent, there was an arrangement among the petitioner, the Bank and the Math through the 3rd respondent, for settlement of the loan transaction, by which the 3rd respondent had agreed to purchase the property for and on behalf of the Math by paying the balance amount of Rs.135 lakhs in the account. Towards the said amount, Demand Drafts for Rs.9 lakhs each in favour of Sandeepani Smart Village were purchased by the 3rd respondent and the same were handed over to the Bank by the 3rd respondent on a condition that the amounts should be kept in a 'No Lien Account' and it should not be credited to the loan account, unless and until further information was given by the 3rd respondent with regard to the settlement of the matters between the petitioner and the 3rd respondent. Since some alleged disputes between the 3rd respondent and the petitioner could not be settled, the amount of Rs.135 lakhs collected through the DD and which was kept in the 'No Lien Account' was returned to the 3rd respondent. According to the 4th respondent and respondents 1, 2 and 5, there was no conspiracy at all in the matter. The learned counsel for the 4th respondent has pointed out that the DDs were furnished by the 3rd respondent and not the petitioner and that was the reason why the petitioner could not produce receipts for the production of those DDs before the Bank. 10. The learned counsel for the 4th respondent has pointed out that the DDs were furnished by the 3rd respondent and not the petitioner and that was the reason why the petitioner could not produce receipts for the production of those DDs before the Bank. 10. The 3rd respondent has also filed a detailed counter affidavit and contended that no offence could be made out in these transactions. It was contended that the issue regarding the sale of the property was directly in question between the petitioner and the 3rd respondent etc. in OS No.406/2011 and the counter claim in it before the Principal Subordinate Judge's Court, North Paravur. In that suit, the specific performance was denied, whereby directing the return of the advance money obtained. It has also been argued that all the allegations taken out by the petitioner in Ext.P17 complaint were taken by the complainant in the said suit and the same were found against. 11. The learned counsel for the 4th respondent and the learned Senior Counsel for the 3rd respondent have argued that earlier, the matter came up before this Court through a Writ Petition in which this Court had granted one month's time to the petitioner to settle the entire issue with the Bank. Thereafter, the matter was taken up by the petitioner in a Writ Appeal before this Court and all these allegations were raised in the said Writ Appeal also. Subsequently, the Writ Appeal was withdrawn and, therefore, the same was dismissed by this Court, and no liberty was granted to the petitioner to take up those contentions again. The Review Petition filed on it also was dismissed. 12. The argument in short by the learned Senior Counsel for the 3rd respondent and the learned counsel for the 4th respondent is that the present Writ Petition is hit by the principles of res judicata as well as constructive res judicata. The answer to the said point is very short. The relief sought for in this Writ Petition is for a proper investigation by the CBI in the matter and not for any of the reliefs as sought for in the earlier Writ Petition as well as Writ Appeal etc. The answer to the said point is very short. The relief sought for in this Writ Petition is for a proper investigation by the CBI in the matter and not for any of the reliefs as sought for in the earlier Writ Petition as well as Writ Appeal etc. Here is a case wherein the petitioner has alleged criminal misconduct against the officials of a nationalised Bank dealing with public money, by alleging that they had hatched a criminal conspiracy with the 3rd respondent and the 5th respondent Valuer, and have obtained pecuniary advantage to the 3rd respondent by causing serious pecuniary loss to the nationalised Bank. In any of the earlier proceedings, either in OS No.406/2011 of the Principal Subordinate Judge's Court, North Paravur, Writ Petition or the Writ Appeal before this Court, such a relief had never been sought for. Any of those proceedings were not intended or meant for such a relief. Moreover, it could not have been possible for the petitioner to seek such a relief in any of those proceedings. Therefore, the present proceedings cannot be said to be hit by res judicata or constructive res judicata. 13. The learned counsel for the petitioner has pointed out that originally the property was valued for Rs.4.52 crores at the time when the loan was sanctioned. When the petitioner was in hot waters, he had to settle the liability for which he craved the leave of the Bank for a one time settlement. The Bank responded to his cries and favoured him by granting a facility to have a one time settlement by paying an amount of Rs.135 lakhs in lump within 21 days of the settlement. By the time, it was known to the officials of the Bank that the petitioner could procure the willingness of the 3rd respondent to purchase the property for the Math for an amount of Rs.2.5 crores. From the argument forwarded by the learned counsel for the petitioner, it seems that some persons were there in the Bank, who were more loyal than the King. They wanted to see the 3rd respondent to purchase the property for the Math for pittance. They wanted to see the Math to snatch away the property for pittance. 14. From the argument forwarded by the learned counsel for the petitioner, it seems that some persons were there in the Bank, who were more loyal than the King. They wanted to see the 3rd respondent to purchase the property for the Math for pittance. They wanted to see the Math to snatch away the property for pittance. 14. Even though DDs for Rs.135 lakhs i.e., for the total amount by which the loan transaction could be wiped out, were produced before the Bank either by the petitioner or by the 3rd respondent, whoever it be, the Bank had chosen not to treat it as payment of the loan liability. It has to be noted that those DDs were in favour of Sandeepani Smart Village, a chronic defaulter. Instead of treating it as payment of the loan liability, they had allegedly kept the cash in a 'No Lien Account', that too for favouring the Math, with whom the Bank was not accountable in any manner. The said attitude from the concerned officials of the Bank is not known to ordinary banking terms. As the petitioner alleges, there is everything to suspect that the said attitude of the concerned officials of the Bank was nothing but a drama staged by them in order to unduly favour the Math. 15. On that point, the learned counsel for the 4th respondent has argued that it was on the basis of Ext.R4(d) that the amounts were returned by the Bank to the 3rd respondent. Ext.R4(d) is not a dated letter. It does not show any date at all. It is the case of the petitioner that the said letter was subsequently fabricated by the 2nd respondent with the junction of the 3rd respondent. As per Ext.R4(d), it has been made to show that the 3rd respondent was tendering the 15 DDs for Rs.135 lakhs for the settlement of the loan of M/s. Sandeepani Smart Village. It is shown therein that “We request you to hold the amount under “No Lien Account” till we give you a confirmation for adjusting the amount with the loan account of Ms. Sandeepani Smart Village. In case we do not reach an agreement with the party you may please return the amount of 135 lacs on demand from us.” 16. Evidently, the said letter does not contain the signature of the petitioner. Sandeepani Smart Village. In case we do not reach an agreement with the party you may please return the amount of 135 lacs on demand from us.” 16. Evidently, the said letter does not contain the signature of the petitioner. Had there been a tripartite settlement to that effect, definitely, the same would have been a joint letter issued by the petitioner and the 2nd and 3rd respondents in normal course. Had there been such an arrangement, definitely the 3rd respondent would have obtained some endorsements from the petitioner or at least his signature in Ext.R4(d). Had the Bank wanted to play to the tune of the Math or the 3rd respondent, definitely, they would have insisted for some endorsements from the petitioner or at least his signature in Ext.R4(d). Normally, a sensible banker or even an ordinary prudent person in similar circumstances, would insist a tripartite agreement when they wanted to extend some aid to the 3rd respondent. There is everything to suspect that Ext.R4(d) is a subsequently fabricated one. 17. The learned counsel for the petitioner has pointed out that Ext.R4(e) was issued by the petitioner in his own handwriting to the Bank at the time when he had tendered the said DDs in the presence of the 3rd respondent. The said letter is dated 13.06.2011. It was on 13.06.2011, the DDs were furnished to the Bank. The contents of Ext.R4(e) are as follows:- “This is to inform you that kindly return all the original document relating to our loans to Sri. Br. Prakash according to the remittance of Rs.135 lakhs (One crore thirty five lakhs) from the account of M/s. Matha Amritanandamayi Math”. When that letter is dated 13.06.2011, it is evident that the DDs were furnished to the Bank as repayment of the loan by way of one time settlement. That is the reason why the petitioner, through Ext.R4(e), had given an unconditional and unbridled authority to the Bank to return all his original documents to the 3rd respondent. 18. As pointed out by the learned counsel for the petitioner, the contents of Ext.R4(i), by which the Bank had chosen to return the amounts to the 3rd respondent, are very strange. The said letter is dated 25.06.2011. 18. As pointed out by the learned counsel for the petitioner, the contents of Ext.R4(i), by which the Bank had chosen to return the amounts to the 3rd respondent, are very strange. The said letter is dated 25.06.2011. On the date on which the said letter was received by the 3rd respondent, he contacted the Deputy General Manager of the Bank, who was on his way to Palakkad, and immediately obtained instructions for the return of the amounts to the 3rd respondent. It has to be noted that the DDs were in favour of M/s. Sandeepani Smart Village, the project of the petitioner. Those DDs were encashed. The Bank had never obtained an undertaking from the petitioner that the amount covered by those DD could be kept in a Suspense Account or No Lien Account, even when the DDs were in favour of M/s. Sandeepani Smart Village. 19. At this juncture, Ext.R4(h) dated 21.06.2011 assumes importance. The same was a registered letter as is evident from Ext.R4(h)(2), which shows that the same was at least dispatched on 22.06.2011, as is evident from the postal seal on it. As per Ext.R4(h), the 3rd respondent had directed the Bank as follows:- “If you do not receive any intimation from Mata Amritanandamayi Math regarding the settlement before the bank closing hours of 28.06.2011, you are hereby instructed to return the sum of Rs.135 lakhs in the form of DD payable to Mata Amritanandamayi Math on 29.06.2011 before 2 a.m.” In spite of that letter, Ext.R4(i) dated 25.06.2011 was issued. Initially, the Bank was directed through a registered letter to await for intimation till the closing hours of 28.06.2011. Even then, another letter was directly given to the Bank by the 3rd respondent on 25.06.2011 claiming the amount on the very same day. The amount was returned through a DD by the Bank to the 3rd respondent, that too, allegedly after obtaining oral permission from the Deputy General Manager of the Bank, who was on his way to Palakkad. 20. On going through the above procedure, this Court genuinely entertains a doubt with regard to the way in which a nationalised Bank had handled amount running to crores. Through a registered letter, the Bank was directed to await till the closing hours of the Bank on 28.06.2011. 20. On going through the above procedure, this Court genuinely entertains a doubt with regard to the way in which a nationalised Bank had handled amount running to crores. Through a registered letter, the Bank was directed to await till the closing hours of the Bank on 28.06.2011. Disregarding that, through a direct appearance, the 3rd respondent gives Ext.R4(i) letter on 25.06.2011 and then and there could get the money from the Bank through a DD on the same day. This is a transaction wherein the DDs originally furnished were in favour of M/s. Sandeepani Smart Village, the undertaking of the petitioner. The DDs were encashed. There is nothing to show that the petitioner had ever consented to keep the amount in Suspense Account or No Lien Account. 21. The 4th respondent has no case that either the 3rd respondent himself or he, for and on behalf of the Math, had been operating even an account at the Syndicate Bank, Angamaly. There is nothing to show that he had any transaction with the Bank. In fact, as far as the loan transaction was concerned, he was a total stranger. Even then, the Bank had chosen to head to all his demands. The Bank has simply handed over the amount collected through the DDs in favour of the concern of the petitioner to the 3rd respondent, on the mere asking by the 3rd respondent, without the consent of the petitioner, and that too by overlooking the specific direction of the petitioner in that regard. 22. The learned counsel for the 5th respondent Valuer has argued that apart from doing his legal duty to value the property, the 5th respondent has not committed any misconduct, and that he had not participated in any conspiracy as alleged. The learned counsel for the petitioner has pointed out that the 5th respondent has conducted the so-called valuation of these much properties on the same date on which the request of valuation was made, and submitted the so-called valuation report on the same day. It is evident from the said records that, in fact, no valuation was conducted by him. The learned counsel for the petitioner has pointed out that the 5th respondent has conducted the so-called valuation of these much properties on the same date on which the request of valuation was made, and submitted the so-called valuation report on the same day. It is evident from the said records that, in fact, no valuation was conducted by him. There is everything to suspect that he was playing to the tunes of the concerned Bank officials and the 3rd respondent by preparing the so-called valuation reports by showing a vary low value to the properties for favouring the auction sale of the properties and the successful bidder to bid it for a low value. The learned counsel for the petitioner has pointed out that only two persons including the 3rd respondent had turned up to participate in the auction, and that the other person also was a benami of the Math. Those matters are to be investigated properly. 23. The learned counsel for the 4th respondent has argued that the Bank was a trustee as far as the transaction between the Bank and the 3rd respondent was concerned, since the 3rd respondent had entrusted DDs with a specific direction to keep the amount in a No Lien Account. The Bank had allegedly collected the amount and kept the amount as per the directions of the 3rd respondent. According to the learned counsel for the 4th respondent, the Bank was keeping the amount as a trustee in a fiduciary capacity and not otherwise. At this juncture, the question to be considered is whether the Bank was bound by any of such directions, even if thrown to the Bank by the 3rd respondent, who is a total stranger as far as the Bank was concerned. There was no tripartite settlement or agreement in the matter. In case of any such arrangement, that would have been in black and white, when a nationalised Bank is allegedly a party to the transaction. The Bank cannot be heard to say that there was an oral tripartite agreement in a serious matter like this in which public money running to crores of rupees is involved. 24. The learned Senior Counsel for the 3rd respondent has argued that the relief sought for by the petitioner in this Writ Petition cannot be granted as he has no legal right to maintain such a claim. 24. The learned Senior Counsel for the 3rd respondent has argued that the relief sought for by the petitioner in this Writ Petition cannot be granted as he has no legal right to maintain such a claim. That argument does not seem to be correct. When public money is involved, nobody can say that a member of the public has no right to initiate prosecution steps against allegations of serious criminal misconduct and criminal conspiracy to commit such an offence of criminal misconduct. Every citizen has the right to initiate criminal proceedings in such a case. In such case, time and again the Apex Court has held that the question of locus standi will not stand in the way of initiating prosecution especially in a matter wherein public interest is involved, that too, in corruption cases. In such circumstances, the question of locus standi is wholly alien to criminal jurisprudence. 25. The learned Senior Counsel for the 3rd respondent has also argued that the allegations raised by the petitioner in Ext.P17 complaint and the averments raised in this Writ Petition are contradictory. The learned Senior Counsel has invited this Court to have a threadbare examination into those allegations and averments. I do not find any contradictory statements or averments in the matter from the part of the petitioner. 26. This Court had heard the learned Standing Counsel for the CBI in the matter. The CBI has furnished the case records in a sealed cover for the perusal of this Court. On a perusal of the records so furnished by the CBI, this Court feels it shocking as to how and why the CBI has not registered an FIR in the case and commenced the investigation so far. A clear report has been furnished by the investigating officer, who conducted the quick verification. Thereafter, it seems that a legal opinion has also been obtained in the matter. A legal opinion, which was prepared after a threadbare examination of all the proceedings, emphatically advised to have the imminent registration of the FIR and an investigation in the matter. 27. It seems that the CBI have decided to refer the matter for the vigilance inquiry by the Bank. A legal opinion, which was prepared after a threadbare examination of all the proceedings, emphatically advised to have the imminent registration of the FIR and an investigation in the matter. 27. It seems that the CBI have decided to refer the matter for the vigilance inquiry by the Bank. Considering the seriousness of the allegations involved and the gravity of the matter, this is not a matter wherein the CBI could leave the matter as such to the mercy of the Bank to have a vigilance inquiry by the Bank itself. The CBI should not think about such a course of action. 28. The CBI is scrupulously bound to follow the mandates laid down by the Apex Court in Lalita Kumari v. Government of Uttar Pradesh and Others [ (2014) 2 SCC 1 ] which lays down that a preliminary inquiry has to be conducted in some category of cases, which include corruption cases. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses the commission of a cognizable offence. If cognizable offence is revealed, the police officer cannot avoid his duty of registering the FIR. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received; but only to ascertain whether the information reveals a cognizable offence. 29. When cognizable offence has been revealed in the quick verification, which is essentially a preliminary inquiry as contemplated in Lalita Kumari (supra), the CBI or whoever be the investigating agency is bound to register the FIR. On the request of the learned Standing Counsel for the CBI that the contents of the records produced by the CBI in the sealed cover before this Court may not be revealed, this Court is not dealing with the details contained in the records. In Lalita Kumari (supra), the Honourable Supreme Court has cautioned that action must be taken against erring officers, who do not register the FIR, if information received by him discloses a cognizable offence. The CBI shall bear it in mind, and should not compel this Court to adopt such a course of action. 30. This Court is aware of the narrow path through which this Court can travel at this stage, wherein even an investigation has not been commenced. A quick verification alone was conducted. The CBI shall bear it in mind, and should not compel this Court to adopt such a course of action. 30. This Court is aware of the narrow path through which this Court can travel at this stage, wherein even an investigation has not been commenced. A quick verification alone was conducted. At this stage, this Court cannot even hold that there is a prima facie case because of the fact that it may affect the right of the probable accused, if any, in the case to have recourse to the procedure under Section 239 Cr.P.C. This Court is not making any comments with regard to the merits of the case. Let the CBI wake up from the slumber! Let the CBI keeps its eyes open! Let the CBI rise to the occasion and to act accordingly as per the legal opinion they have received. With these remarks, this Writ Petition is disposed of. It is made clear that the petitioner is at liberty to approach this Court in case of any lack of action from the CBI, or further grievance in the matter.