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2021 DIGILAW 333 (MP)

Shobha Chandak v. Union of India

2021-03-09

VIVEK RUSIA

body2021
JUDGMENT : Vivek Rusia, J. Heard with the help of charge-sheet (Challan). 1. This is the first application filed under Section 438 Cr.P.C. seeking anticipatory bail by the applicant who is apprehending arrest in Crime No. RC0082018A0018/2018 registered at Police Station- C.B.I. District Bhopal concerning offences punishable under 120-B read with Section 420 and 471 of I.P.C. and Section 13 (2) read with Section 13(1) (d) of Prevention of Corruption Act, 1988. 2. As per the prosecution story, the CBI ACB Bhopal has registered case No. RC0082018A0018 on 16.01.2018 under Section 120-B R/w Section 420, 467, 468, 471 of I.P.C. and Section 13(2) R/2 13(1) (d) of Prevention of Corruption Act, 1988 against (i) Dinesh Kumar (A-1), Chief Manager, PNB, Kanthal Branch Ujjain, (ii) Smt. Rakhi Prajapati (A-2), W/o Arpan Prajapti, Director of M/s. Varchas Coal & Minerals India Private Limited, Office Address: G-1, E-2/266, Arera Colony, Bhopal Business Address: Opposite Crompton Greaves, New Industrial Area, Main Road, Mandideep, (iii) Shri Abhijeet Singh (A-3), Director of Varchas Coal and Minerals India Private Limited), (iv) Shri Sanajy Gigam (A-4), Empanelled and approved Valuer, (v) Arpan Prajapati (A-5) (Guarnator), (vi) Satish Aheliya (A-6) (Guarantor) and Others on the basis of a complaint dated 16.01.2018 received from Shri Vijay Kumar Harit S/o. Shri R.S. Harit, Chief Manager, Asset Recovery Management Branch, Punjab National Bank, 20-Sneh Nagar, Indore M.P. The investigation has revealed that Smt. Rakhi Prajapati (A-8) Prop. of M/s. Varchas Coal @ Minerals India Private Limited approached Punjab National Bank, Kanthal Branch, Ujjain (M.P.), applied for the loan in the form of a cash credit limit of Rs. 400 lakhs. The Primary Security offered was hypothecation of stocks i.e. coal, and coal products and Book debts and the collateral security were in the form of Equitable Mortgage of (i) diverted land at part of S.N. 142 (part), 143 (Part), Jamuniya Chhir, Tehsil Huzur, Distt. Bhopal and Land at S. No. 316/1, 317/2, 318/2, 319/2, 323/2 & 324 (old No. 317, 318, 319, 323 & 324-Part) in Patwari Halka No. 34, Gram Kolukhedi, Tehsil Huzur, District Bhopal in the name of Arpan Prajapati, S/o. Shri narendra Prajpati, R/o 63, Shubha House, Ujjain (ii) diverted land on part of S. No. 91, 92, 93, 94, Gram Jamuniya Cheer, Ph. No. 25/34, Vikaskhand Fanda, Tehsil Huzur, District Bhopal in the name of Satish Aheliya, (iii) diverted land at part of S.N. 142, 144 (part) Jamuniya Chhir, Patwari Halka No. 25/34, Gram Jamonia Chhir, Tehsil Huzur Distt. Bhopal and Land at S. No. 319, 322, 322, 323, 325, Patwari Halka No. 04, Gram Kolukhedi, Tehsil Huzur, Distt. Bhopal in the name of Smt. Rakhi Prajapati W/o Arpan Prajapati, R/o 63, Shubham House, Ujjain. Smt. Rakhi Prajapati, Abhijeet Singh, Arpan Prajapati and Satish Aheliya signed the agreement of Guarantee to pay to the Bank after demand in writing all principal, interest, cost, charges and expenses due and which may at any time become due to the Bank/from the borrower (s), on the accounts opened in respect of the said limits down to the date of payment and also all loss of damages, costs charges etc. The market value of the mortgaged immovable property was estimated at Rs. 234.26 Lacs (DV) dt. 20.03.2013, Rs. 319.34 Lacs (DV) dated 20.03.2013 and Rs. 356.35 Lacs (DV) dated 20.03.2013 by as per valuation done by valuer Sanjay Nigam. The account was irregular since inception and turned NPA on 03.07.2015. The said NPA account was declared as a fraud on 02.08.2016 outstanding due in the said account as on 15.01.2018 was Rs. 4,20,88,817/- interest w.e.f. 01.07.2015 and other charges. The allegation against the present applicant i.e. accused No. 10 is that, she being the empanelled Advocate of the PNB has submitted a special report of title all the three properties hypothecated by the Smt. Rakhi Prajapati as a primary security. In the report, she has certified that all the three properties were diverted by order dated 22.03.2013. Later on it was discovered that the said diversion letter of the collateral security submitted by the borrower to the bank was found to be fake as per the statement of Shri G.P. Mali, the then SDM of Tehsil Huzur as the diversion order does not contain his signature. 3. Shri Rathi submits that the applicant was instructed the work for submission of the report only in respect of title, not in respect of valuation. The valuation was done by one Mr. Sanjay Nigam appointed by the bank but he has not been charge-sheeted by the CBI. There is no dispute about the title of the property. 3. Shri Rathi submits that the applicant was instructed the work for submission of the report only in respect of title, not in respect of valuation. The valuation was done by one Mr. Sanjay Nigam appointed by the bank but he has not been charge-sheeted by the CBI. There is no dispute about the title of the property. It is further submitted that the Apex Court in the case of Dataram Singh Vs. State of U.P. reported in 2018 (3) SCC 22 has held that the accused was not arrested during the investigation when they had the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, then after the filing of charge-sheet a strong case is made out for anticipatory bail. The applicant is a practicing advocate aged about 64 years. If she is arrested she will lose her reputation. Therefore, she is entitled to anticipatory bail. Shri Rathi learned counsel for the applicant further submits that the Full Bench of this Court in the case of Nirbhay Singh and another Vs. State of Madhya Pradesh, has held that the anticipatory bail is maintainable even after the Magistrate has issued a process under section 204, Criminal Procedure Code or at the stage of committal of the case to the Sessions Court or even at a subsequent stage. He has further placed reliance in the case of State of Madhya Pradesh Vs. Pradeep Sharma reported in (2014) 2 SCC 171 in which the Apex has held that the power exercisable under section 438 of Cr.P.C. is extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person accused of an offence is not likely to otherwise misuse his liberty. If anyone is declared as an absconder/proclaimed offender in terms of Section 82 of Cr.P.C., he is not entitled to relief of anticipatory bail. 4. Shri Ashutosh Sharma, learned counsel appearing on behalf of the respondent CBI has opposed the bail application by submitting that apart from submitting the misleading report as an advocate of the bank, the applicant had a close association with the main borrower. 4. Shri Ashutosh Sharma, learned counsel appearing on behalf of the respondent CBI has opposed the bail application by submitting that apart from submitting the misleading report as an advocate of the bank, the applicant had a close association with the main borrower. She was assigned various other work in the company and she was provided with a chamber to look-after day to day activities. It is further submitted that warrant of arrest was issued against the applicant and she is required to appear before the court and apply for regular bail. He placed reliance over the judgment passed in the case of State of Madhya Pradesh Vs. Pradeep Sharma reported in (2014) 2 SCC 171 and Lavesh Vs. State of (NCT of Delhi) reported in (2012) 8 SCC 730 . In the case of Kundal Majumder Vs. State of Tripura reported in 2002 CRL. L.J. 353 in which the single bench has distinguished full bench judgment of Orissa High Court and placed the reliance in the case of Salauddin Abduls Samad Shaikh Vs. State of Maharashtra reported in AIR 1996 SC 1042 and held that the provision of Section 438 (1) of Cr.P.C. is applicable only when any person apprehends of being arrested without any warrant being issued by the Court in connection with the non-bailable offence during the investigation, once the magistrate issued a process on taking cognizance of the offence either acting upon the charge-sheet filed after investigation or otherwise, the provisions of section 438 (1) of Cr.P.C. becomes defunct and non-operative. 5. Heard the learned counsel for the parties and perused the charge-sheet (Challan). 6. In the present case, the applicant is a lady aged about 64 years and practising as an advocate. She has no criminal past. She gave a search report in respect of the title of hypothecated property by Rakhi Prajapati. Apart from this, there is no incriminating material against her in the entire challan. She was made to believe that this property was a diverted property by order dated 22.03.2013. But later on, the authorized signatory has denied his signature. However, it is a matter of trial. There is no allegation against the applicant that she is not cooperating in the investigation. She was never arrested by the CBI. 7. She was made to believe that this property was a diverted property by order dated 22.03.2013. But later on, the authorized signatory has denied his signature. However, it is a matter of trial. There is no allegation against the applicant that she is not cooperating in the investigation. She was never arrested by the CBI. 7. In view of the above, once the warrant of arrest has been issued against the applicant, then it is for the applicant to appear before the court and apply for cancellation of the warrant and regular bail. Copy of both the applications be supplied to counsel for the CBI in advance to avoid unnecessary adjournment. If the applicant surrenders and file aforesaid two application, then the Special Court is directed to consider the same preferably on the same day. With the aforesaid, M.Cr.C. is hereby disposed of.