JUDGMENT : Ratnaker Bhengra, J. IA No.3849 of 2024 1. The present interlocutory application has been filed under section 389(1) of Cr.P.C. on behalf of the appellant Sunil Mittal, for suspension of sentence during pendency of the criminal appeal which has been directed against the judgment conviction dated 26.7.2022 and order of sentence dated 28.7.2022 passed in R.C. 01(S)/2010-AHD-R, corresponds to FIR No. R.C. 01(S)/2010-AHD-R, SPE/CBI/AHD passed by learned court of Additional Judicial Commissioner-XVIII-cum-Spl. Judge, CBI at Ranchi whereby and where under the appellant was convicted U/s 120B r/w section 420 of IPC, U/s 120B r/w Section 467 of IPC, U/s 120B r/w Section 468 of IPC, U/s 120B r/w Section 471 of IPC and section 13(2) r/w 13(1)(d) of PC Act,1988. The appellant was sentenced to 03 years R.I. with fine of Rs. 1,00,000/- and in default 03 months S.I. for his conviction U/s 420/120B of IPC, R. I. for 05 Years with fine of Rs. 1,00,000/- and in default S. I. for 03 months for his conviction U/s 120B r/w Section 467 of IPC, R. I. for 03 years with fine of Rs. 1,00,000/- and in default S.I. for 03 months for his conviction U/s 120B r/w Section 468 of IPC and the appellant was further sentenced to undergo R.I. for 03 years with fine of Rs. 1,00,000/- and in default S.I. for 03 months for his conviction U/s 120B r/w Section 471 of IPC and R.I for 5 years with fine of Rs. 2,00,000/- and in default S.I for 3 months for his conviction under section 13(2) r/w 13(1)(d) of PC Act,1988. The sentences were ordered to be run concurrently. 2. The prosecution story as per the F.I.R., in brief, is that Ram Tahal Mahto, Mahadeo Prasad Mehta, Prayag Prasad Mehta and Ajay Kumar, all partners of M/s Bajrang Cold Storage, Hazaribagh, entered into criminal conspiracy among themselves and with some other unknown persons during the period of 2006-07 and in pursuance of the said criminal conspiracy, they on the basis of forged and fabricated collateral security documents induced Allahabad Bank, Main Branch, Hazaribagh to sanction loan of Rs. 2,65,65,000/- for establishing a Cold Storage at village- Sindur, Distt- Hazaribagh in name and style of M/s Bajrang Cold Storage. 2,65,65,000/- for establishing a Cold Storage at village- Sindur, Distt- Hazaribagh in name and style of M/s Bajrang Cold Storage. It is further alleged that the partners of the said M/s Bajrang Cold Storage, Hazaribagh by forging and getting forged signatures and LTI of some guarantors on the loan document submitted those documents to the bank for sanction of loan. The aforesaid loan was sanctioned due to criminal conspiracy by aid of bank of officials. As a result of aforesaid fraud and fabrication of document the land on which Cold Storage was actually constructed was not mortgaged to the bank and after sanction of loan the authorities of the said bank could not initiate any legal action to secure possession of M/s Bajrang Cold Storage. The said loan amount with interest came to the tune of Rs. 3,37,21,452/- and became N.P.A.(Non-Performing Asset). Accordingly, F.I.R. was lodged U/s 120B r/w 420, 468, 471 of IPC against all the partners of the said Cold Storage by the CBI, AHD Branch, Ranchi. Arguments of Sr. Counsel Mr. A.K. Kashyap on behalf of the appellant Sunil Mittal 3. The learned counsel for the appellant while submitting on behalf of the appellant Sunil Mittal referred to the evidence of PW-32, who is one Azam Raza, who at the time of deposition has stated that he was posted as Inspector with the CBI, AHD in Ranchi at that time. Learned counsel pointed out that before taking possession of the loan file he had talked to different officers or authorities regarding the loan application file, attached deed, non-encumbrance certificate, fees, legal opinion and the loan acceptance order. He has referred to paragraph no.22 of the deposition of PW-32 wherein he has stated that the power to accept or grant acceptance was not with the Branch Manager and that is why the relevant file was sent to the zonal office and thereafter the loan was sanctioned by the zonal head office. He has further deposed therein that he has not made the zonal head, an accused on whose signature, the loan of the accused was sanctioned. In paragraph no.23 he has deposed that during investigation he had found out that the loan for M/s Bajrang Cold Storage and the relevant file had been examined by different authorities at the Zonal office of Allahabad Bank and thereafter the loan had been sanctioned. In paragraph no.23 he has deposed that during investigation he had found out that the loan for M/s Bajrang Cold Storage and the relevant file had been examined by different authorities at the Zonal office of Allahabad Bank and thereafter the loan had been sanctioned. He had thereafter not investigated as to whether after sanctioning of such loan any interference or tampering could be done with the file. In paragraph no. 25 of his deposition, PW-32 stated that the necessary papers had been examined by the advocate and the valuation of the property had been done by the valuer of the Bank. In paragraph no. 26 he has deposed that he has not made the advocates and the valuer, an accused. The learned counsel for the appellant has then submitted that it is clear that this appellant was made scapegoat for the crime of others. He has further stated that in paragraph no. 32 of his deposition he had also not made the authorities, officers and the clerks who had issued the non- encumbrance certificate as accused. Counsel thus says that this non-encumbrance certificate was thus issued by other persons and not by the Branch Manager or the appellant and for this the appellant cannot be made liable for any conviction. 4. Learned counsel for the appellant then referred to paragraph no. 37 of the deposition of PW-32 wherein he has stated that in the charge-sheet at page no. 14 it is written as follows: "Before sending the proposal to Zonal office, Sri Sunil Mittal(A- 6) obtained legal opinions on the deeds submitted by the borrowers from Sri Surendra Prasad Karan. The legal opinion of Sri Surendra Prasad Karan who happens to be the panel advocate of the bank has also been found to be flawed since it was given without verifying the mutation certificates and the records of Sub-Registrar and Circle Officer" 5. Counsel, therefore, says that the appellant had only proceeded on the basis of the advocate of the Bank Sri Surendra Prasad Karan and, therefore, why he should be made liable for any allegations. Learned counsel for the appellant then referred to paragraph no. 40 of the deposition of the Investigating Officer wherein he has stated that in page no. Counsel, therefore, says that the appellant had only proceeded on the basis of the advocate of the Bank Sri Surendra Prasad Karan and, therefore, why he should be made liable for any allegations. Learned counsel for the appellant then referred to paragraph no. 40 of the deposition of the Investigating Officer wherein he has stated that in page no. 15 of the charge sheet, he has indicated that: “project report annexed with the application for the loan, has been prepared by Sri Prabin Kumar Agrawal, a chartered accountant. This chartered accountant is native of the village neighbouring to the village of Branch Manager (A-6)." 6. Counsel for the appellant thus submits that even the project report was prepared by one Sri Prabin Kumar Agrawal who is the chartered accountant. Counsel, therefore, says that there are a host of persons from authorities to advocates and the chartered accountant as well as the clerks who could have been made the accused persons but the CBI has completely ignored them and roped in the Branch Manager and made him an accused and unfortunately he has also been convicted and spent about 02 years 02 months in jail unnecessarily without any justification. 7. The learned senior counsel for the appellant thus submits that on the basis of the aforesaid submissions made during depositions it is clear that the forgery to defraud the Bank was committed not in the Bank but outside the Bank because documents were created outside that Bank and from persons who were independently engaged. Further, the documents were submitted by borrowers and the borrowers were other co-accused, who have been convicted and they are enjoying the privilege of provisional bail for so many months while this appellant is rotting away in prison. 8. Learned senior counsel for the appellant has further stated that apart from that the appellant has been exonerated in departmental proceeding and therefore, he should not be convicted and held liable criminally. Further, learned counsel has cited the case of Mukesh Kumar Sinha vs. State of Jharkhand and another reported in 2022 SCC OnLine Jhar 605, wherein entire criminal proceedings was quashed. Further, learned counsel has cited the case of Mukesh Kumar Sinha vs. State of Jharkhand and another reported in 2022 SCC OnLine Jhar 605, wherein entire criminal proceedings was quashed. Thereafter, the learned counsel has further stated that the appellant has also spent more than two years of the imposed sentence with a maximum five years and, therefore, this also may be considered along with his exoneration in departmental proceeding and along with the other grounds which he has stated and pointed out by the evidence of the Investigating Officer or PW-32. The learned counsel for the appellant has also cited the judgment in Ashoo Surendranath Tewari vs. Deputy Superintendent of Police, EOW, CBI and another reported in (2020) 9 SCC 636 . Arguments of learned counsel for union of India CBI, Anil Kumar, Senior Counsel. 9. Learned counsel for the CBI has opposed the prayer for suspension of sentence of the appellant and submitted first by referring to a certain prosecution witnesses. He has first and foremost taken us to the evidence of PW-5, Phool Singh Meena, who was then posted as Chief Manager,Allahabad Bank, Ramgarh Branch and his zonal office had directed him to conduct enquiry for lapses committed in respect of sanction and disbursement of loan to M/s. Bajrang Cold Storage. PW-5 had deposed that during enquiry he had found that a term loan of Rs. 226.65 lakhs and CC loan of Rs. 39 lakhs was sanctioned to M/s. Bajrang Cold Storage on the basis of scrutiny of loan proposal sent by Sunil Mittal, the then Branch Manager and Dhanu Barha, the then loan officer. On enquiry it was found that Main Branch, Hazaribagh had not created mortgage of property as per the loan sanctioned letter dated 20.10.2006. It was mentioned in the sanctioned letter that property in the name of Ramtahal Mahto, Brij Kishore Mahto, Ajay Kumar, Jaswa Devi, Ranjgu Mahto, Hanchi Devi, Basudeo Mahto, Khirodhar Mahto, Karmi Devi and Nunia Devi were mortgaged by only Brij Kishore Mahto, Ram Tahal Mahto, Hanchi Devi, Basudeo Mahto and Khirodhar Mahto. This witness PW-5 had also deposed that during enquiry, he had visited Allahabad Bank, Hazaribagh Branch in December, 2009 and collected the loan documents there and thereafter, he along with other bank officers had visited village Sindoor, as the properties which were shown as mortgaged were situated there. This witness PW-5 had also deposed that during enquiry, he had visited Allahabad Bank, Hazaribagh Branch in December, 2009 and collected the loan documents there and thereafter, he along with other bank officers had visited village Sindoor, as the properties which were shown as mortgaged were situated there. PW-5 had further deposed that when the loan became NPA, notices were then sent under the SERFAESI Act to the guarantors Braj Kishore Mahto, Nunia Devi and Khirodhar Mahto. However, in reply these aforesaid three persons had made written representation that they neither stood as guarantor and nor executed any mortgaged deed. Learned counsel further submitted that it was found in the course of enquiry that properties of deed no. 137 and 260 have been shown mortgaged by Brij Kishore Mahto, but, actually it has not been mortgaged by Brij Kishore Mahto, as the photograph of Brij Kishore Mahto was not fixed on the said document, rather photograph of Bhudan Mahto, father of the accused Mahadev Prasad was fixed. Learned counsel for the CBI at this stage submits that it is to be noted that this appellant along with other accused persons have been convicted along with section 120 B IPC and though these evidence began with the prime reference to the accused Sunil Mittal, the then branch manager, but, conspiracies were all done together with other co-accused persons leading to defrauding the bank and thus leading loss of money. Learned counsel for the CBI further submitted that PW-5 had further deposed that during enquiry, the sale deeds which had been shown mortgaged by Karmi Devi and Nunia Devi were found to be fake, because Nunia Devi had expired in the year 1990. Further, on the sale deed, neither photograph of Karmi Devi nor Nunia Devi were affixed, rather photographs of Hanchi Devi was fixed. Further, that during enquiry Ram Tahal Mahto, Prayag Prasad Mehta and Mahadev Mehta had made written representation to him that they had falsely mortgaged deed in the name of Brij Kishore Mahto, Karni Devi and Nunia Devi. It was found during enquiry that the cold storage was constructed on such inherited property which was not mortaged as primary security. Whereas, it was instruction of zonal office that such properties should be mortgaged but the branch has not complied with the said instructions whereas the sale deed no. 16155 has been mortgaged by the branch. 10. It was found during enquiry that the cold storage was constructed on such inherited property which was not mortaged as primary security. Whereas, it was instruction of zonal office that such properties should be mortgaged but the branch has not complied with the said instructions whereas the sale deed no. 16155 has been mortgaged by the branch. 10. Learned counsel for the CBI then referred to the evidence of PW-6 Ajit Mahto, who is a farmer and he is also the brother of Khamman Mahto and name of the wife of Khamman Mahto is late Karmi Devi, who had expired in the year 1990. This witness has deposed that name of his wife is Nunia Devi and in 1978, several plots measuring about 1.5 acres in Khata No. 18 was purchased in the name of his wife Nunia Devi and Karmi Devi from Nunu Mahto and Sahdeo Mahto. He further deposed that they had neither sold nor leased out aforesaid land to Ram Tahal Mahto for construction of cold storage. His wife and his Bhabhi Karmi Devi never stood as guarantors for the loan of the said cold storage. No one from Allahabad Bank had ever come to him for enquiry regarding standing as guarantor of loan. Upon perusal for the document marked for identification as ‘X’, PW-6 had deposed that this leased deed has neither been executed by his wife or nor by his bhabhi Karmi Devi in the year 2006, because Karmi Devi had expired in the year 1990. Further with regard to the sale deed no. 16155, which has been marked as Ext.-13/2, PW-6 deposed that it is a forged sale deed and it has not been exhibited either by his wife or his bhabhi. This witness has further deposed that the photograph of the woman affixed on the said sale deed in the name of Nunia Devi is not of his wife and the second photograph affixed in the name of Karmi Devi is not the photograph of his bhabhi, since Karmi Devi had expired in the year 1990, so question does not arise as to the execution of the said sale deed. Learned counsel for the CBI here said therefore, that it is apparent from the evidence of both PW-5 and PW-6 the extent and nature of fraud and deception which has been committed against the bank leading to the loss of money and unlawful gain. 11. Learned counsel for the CBI then referred to evidence of PW-7 Brij Kishore Mahto, the surpanch of Sindoor Panchayat and he knew Ram Tahal Mahto, who is his neighbour. PW-7 had deposed that Ram Tahal Mahto had established M/s Bajrang Cold Storage, in his village. Ram Tahal Mahto had obtained loan from Allahabad Bank, Hazaribagh. Ajay Kumar, Prayag Mahto and Mahadeo Prasad Mahto, all residents of village Tilir and Ram Tahal Mahto together were partners in the aforesaid firm. PW-7 has deposed that he knew late Rangu Mahto. Late Rangu Mahto had two sons whose names were Khamman Mahto and Ajit Mahto and they both are alive. The name of Khamman Mahto’s wife is late Karmi Devi, who expired around 20 years back. Khamman Mahto is blessed with two sons namely Mahendra prasad and Damodor Mahto. Ajit Mahto’s wife is Nunia Devi and they both are alive. He further deposed that he is not having any account in Allahabad bank, Hazaribagh and that he has never stood as guarantor in the said bank and he had never stood as aguarantor for loan to M/s. Bajranj Cold Storage, for the loan guarantor by Allahabad Bank Hazaribagh. It was deposed by PW-7, that he has received a notice from bank in November 2009 and then he had come to know that he had been shown as a guarantor in the loan given in the name of M/s. Bajranj Cold Storage. Thereafter, he had visited the bank and enquired about it that he had been made a guarantor. The officer of the bank had informed him that two original deeds have been submitted in the bank in the form of mortgage. This witness had further deposed that aforesaid two sale deed were given to Ram Tahal Mahto in the year 2006 by his son for the sanction of the housing loan in the name of Nirmal Mahto and the bank had not sanctioned the housing loan. PW-7 had demanded the said deed several times from Ram Tahal Mahto but he didn’t returned the same making excuses. PW-7 had demanded the said deed several times from Ram Tahal Mahto but he didn’t returned the same making excuses. Learned counsel therefore says that here also the fraud and deception can be made out and whose name was used for committing the fraud and deception to the extent that even names of wrong persons were given and also the dead persons. Here counsel says that Ram Tahal Mahto had by deception taken the general sale deeds from these witnesses and not returned the same and used it for getting loan illegally. 12. Learned counsel for the CBI had then referred to the evidence of PW-8, who is Mahendra Prasad Mehta, who was then working as a peon in PWD, RCD, Hazaribagh, during the year 2010. He had deposed that the name of his father is Khamman Mahto and his mother’s name is late Karmi Devi. The name of his aunt is Nunia Devi and his uncle name is Ajit Mahto. He further deposed that his mother and aunt had never sold or leased any land to Ram Tahal Mahto and they had never stood as guarantor in loan sanctioned by the Allahabad Bank. He came to know about such facts only when the notice of the bank was served in November 2010, upon him. His mother had already expired in the year 1990. On the perusal of lease deed no. 19663 dated 12.09.2006 marked for identification “X”, he says that this lease deed had neither been executed by his mother nor by his aunt because his mother died in the year 1990, so it was simply not possible for her to execute in the year 2006. Further, the sale deed No. 16155 dated 2.11.2006, is a forged sale deed because neither his mother nor his mother nor of his aunt executed the deed and the photograph affixed on it were neither of his aunt. The photograph affixed on the document is of another lady. He further deposed that in the said sale deed Aajit Mahto has been shown as late whereas he is still alive. The photograph affixed on the document is of another lady. He further deposed that in the said sale deed Aajit Mahto has been shown as late whereas he is still alive. PW-8 further deposed that his mother never visited Allahabad Bank, Main Branch, Hazaribag to execute any lease deed and that further no one from the bank had come to enquiry whether they stood as guarantor or not and it was only when the notice from the bank was received by him then it came to his knowledge that his mother was shown as guarantor of loan. 13. Learned counsel for the CBI submitted that the evidence of these aforesaid witnesses are sufficient for exposing and convicting the appellant. He further submits that it is clear cut that genuine deeds deceitfully extracted much earlier was then illegally misused for purpose of getting loans on mortgage, based on such documentation the persons in whose names such deeds may have belonged to were misused by affixing photos of other persons and even showing such persons as alive when they were already dead. Counsel says that what is to be seen is chain of circumstances and the link that is to be made and that is fully linked and completed. The loan given to M/s. Bajrang Cold Storage, was sanctioned and approved by appellant Sunil Mittal which shows that appellant was involved in forgery and deceptions in a conspiracy to defraud the bank and therefore, appellant is fully accountable and equally guilty and the conviction has been rightly made and therefore, there can be no question for suspension of sentence of the appellant. 14. Learned counsel for the appellant further submitted that since bail of appellant Sunil Mittal has been previously rejected, the present application for suspension of sentence, may also be rejected. 15. I have heard learned counsel for both the parties and gone into the facts and circumstances of the case. Earlier, bail application of the appellant under section 389 of Cr.P.C, has been rejected on 21.09.2023. Appellant is in custody since 26.07.2022 and till now appellant has undergone about 2 years and 2 months out of maximum imposed sentence of 5 years and he has also been exonerated in the departmental proceeding. Earlier, bail application of the appellant under section 389 of Cr.P.C, has been rejected on 21.09.2023. Appellant is in custody since 26.07.2022 and till now appellant has undergone about 2 years and 2 months out of maximum imposed sentence of 5 years and he has also been exonerated in the departmental proceeding. Hence, I am inclined to suspend the sentence of the appellant, during pendency of this criminal appeal, and accordingly present appellant, named above, is ordered to be released on bail, during the pendency of this criminal appeal, on executing bail bonds of Rs. 25,000/- (Rupees Twenty Five Thousand) with two sureties of the like amount each to the satisfaction of learned Additional Judicial Commissioner-XVIII-cum- Spl. Judge, CBI at Ranchi in R.C. 01(S)/2010-AHD-R, corresponds to FIR No. R.C. 01(S)/2010-AHD-R, SPE/CBI/AHD. 16. Accordingly, IA No.3849 of 2024, is allowed and disposed of.