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2017 DIGILAW 719 (CAL)

IN RE : PRADIP KUMAR LUNIA v. .

2017-08-25

JOYMALYA BAGCHI

body2017
JUDGMENT : Joymalya Bagchi, J. The application being CRAN 1763 of 2017 has been filed under Section 5 of the Limitation Act for condonation of delay. 2. Having considered the averments made in the application being CRAN 1763 of 2017, delay in preferring the petition is condoned. 3. The application being CRAN 1763 of 2017 is allowed. 4. The revision petition is taken up for hearing. 5. Order dated 2nd November, 2016 passed by the learned 22nd Metropolitan Magistrate, CBI Court, Calcutta framing charge against the petitioners under Sections 120B/420 IPC has been assailed. 6. The gist of the allegation in the impugned charge-sheet is to the effect that one Pushpesh Kumar Baid (absconding-accused) and Smt. Kokila Devi Baid, Directors of M/s. Baid Hosiery Pvt. Ltd. entered into conspiracy with their employees i.e. the petitioners herein had prescribed a fake document to Dena Bank, Brabourne Road Branch and on the strength of such forged and fabricated instrument had purported to create an equitable mortgage in respect of a godown purportedly situated at 1, Nawabpatty, Cossipore, Kolkata and obtained Cash Credit Limit of Rs. 20.50 crores and Letter of Credit Limit of Rs. 5 crores. Subsequently, it was found that a godown situated at 3/3A, Dillarjung Road, Cossipore, Kolkata belonging to other persons namely, Mahesh Agarwal and Umesh Agarwal were shown to the bank officials at the time of inspection as the godown owned by the company. It has also been alleged that inspite of charge created on the stock-intrade of the company, such stock was dishonestly misappropriated by the accused persons without permission of the bank. As a result, the bank suffered wrongful loss to the tune of Rs. 20 crore's. In conclusion of investigation, charge-sheet was filed against the aforesaid Pushpesh Kumar Baid and the petitioners herein, who were the employees of M/s. Baid Hosiery Pvt. Ltd. Charges were framed in the instant case which has been assailed before me. 7. Mr. Manjit Singh, learned advocate appearing for the petitioners submitted that all documents relied upon by the prosecution had not been supplied to the petitioners. 7. Mr. Manjit Singh, learned advocate appearing for the petitioners submitted that all documents relied upon by the prosecution had not been supplied to the petitioners. It is also submitted that the learned advocate who was representing the accused persons under section 205 of the Code of Criminal Procedure, 1973 had failed to attend the proceeding at the time of consideration of charge and accordingly, the issues which could have been raised by the petitioners were not effectively agitated before the trial court. Subsequently, prayer for recalling the order framing charge was also turned down. 8. Mr. Ashraf Ali, learned advocate appearing for the Central Bureau of Investigation submitted that all necessary documents had been duly supplied to the petitioners and other accused persons. He further submitted that the principal accused has absconded in the instant case. There is ample evidence on record disclosing involvement of the petitioners as co-conspirators in preparing forged and fabricated documents and creating a bogus collateral security in order to induce the bank to part with a large sum of money which was misappropriated. Hence, no interference is called for. 9. I have considered the rival submissions of the parties. At the outset, I note with surprise that in an offence of such grave magnitude, personal attendance of the accused petitioners were dispensed with and they were directed to be represented through their learned lawyer under section 205 of the Code of Criminal Procedure, 1973. Privilege of dispensation with personal attendance under section 205 of the Code of Criminal Procedure, 1973 is an exception to the ordinary rule of attendance of accused persons in the course of trial. It is to be resorted to only in rare cases where the offence does not involve mens rea and definitely not in cases where public funds running to crores have been allegedly misappropriated by using fraud and fabricated documents. Be that as it may, it is for the petitioners to blame their lawyer who was representing them as he had failed and neglected to appear at the time of consideration of charge. 10. However, in order to remove any sense of prejudice from the mind of the petitioners, I have given them opportunity to address this Court as to the legality of the charge framed against them. 10. However, in order to remove any sense of prejudice from the mind of the petitioners, I have given them opportunity to address this Court as to the legality of the charge framed against them. Issue which has been primarily canvassed is that the petitioners are mere employees of the company and there is nothing to show that they conspired with the principal offender namely, Pushpesh Kumar Baid, the Director of the company in preparing forged and fabricated documents and using such forged document as genuine and create a bogus security in order to induce the bank to extend credit facilities to the accused company. It has also been argued that the allegation that the officers of the bank were duped in such manner is patently absurd and inherently improbable. 11. I have considered the aforesaid submissions in the light of the materials on record. Admittedly, the petitioners played an active role in the affairs of the company including obtaining of loan from the concerned bank. Extent of complicity of the petitioners is a question of fact which can only be gone into in the course of trial. However, in view of the role played by the petitioners in the affairs of the accused-company and the fact that forged and fabricated documents were furnished by the company and a different property was shown as that of the company in order to obtain the Cash Credit Limit from the bank gives rise to a strong suspicion as to commission of the alleged offences by the petitioners. 12. Whether the bank officials were induced by such dishonesty or they were willing partners in crime is a question which may be addressed while evidence is adduced during trial and I leave it to the trial Judge to consider such issue in the course of trial and in the event complicity of the bank officials transpire, it shall be open to the trial Judge to invoke appropriate provisions under section 319 of the Code of Criminal Procedure, 1973 to implicate them in the array accused persons and reframe charges in accordance with law. However, prima facie complicity of the petitioners being patently evident from the materials on record, I do not find any reason to interfere with the impugned order of framing charges against them. 13. However, prima facie complicity of the petitioners being patently evident from the materials on record, I do not find any reason to interfere with the impugned order of framing charges against them. 13. It shall, however, be open to the petitioners to raise all defences available to them in the course of trial in accordance with law. Needless to mention observations made by me in this order are for the purpose of disposal of the application and shall not have any bearing in the course of trial which shall be decided independently on the basis of evidences adduced without being swayed by observations made in this order. Trial court is directed to dispose of the trial expeditiously without granting unnecessary adjournment to either of the parties and the accused persons shall Co-operate with the trial and be personally present before the trial court on each day of hearing until and unless their attendance is specifically exempted on a particular date for reasons recorded by the trial court. 14. With the aforesaid observations, the revision petition is disposed of. 15. Photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.