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IN THE HIGH COURT AT CALCUTTA
SHAMPA DUTT (PAUL), J.
Arup Kumar Bhowmick – Petitioner
Versus
Central Bureau of Investigation, Anti Corruption Branch – Respondent
CRR No. 918 of 2020
Decided On : 02-08-2023
DISCHARGE FROM CASE - PREVENTION OF CORRUPTION ACT, 1988 - SECTION 13(2) READ WITH 13(1) (C) & (D) - INDIAN PENAL CODE - SECTION 420 AND 471 - REPAYMENT OF LOAN AMOUNT PRIOR TO FIR - NO DUE CERTIFICATE ISSUED BY BANK - SUFFICIENCY OF MATERIALS ON RECORD - INHERENT POWERS OF COURT - ABUSE OF PROCESS OF LAW/COURT.
Fact of the Case:
Petitioner, a director of M/s Raunak Cold Storage Pvt. Ltd., stood as a corporate guarantor for 35 Produce Marketing Loans (PMLs) released from SBI, Pandua. The FIR alleged criminal conspiracy to release 35 fictitious PMLs amounting to Rs. 3.15 crores with the intention to cheat the Bank and cause wrongful gain. The petitioner repaid the entire loan amount before the FIR was lodged, and the Bank issued a "no due certificate" to the petitioner.
Finding of the Court:
The court held that the petitioner's repayment of the loan amount with interest prior to the filing of the case negated the allegations of cheating under Section 420 of the Penal Code, and the other allegations of forgery appended to it also failed. The court found that there were sufficient materials on record to show the presence of ingredients required to constitute the offences alleged against the petitioner, and that the transaction was alleged to be prima facie unlawful, making the proceedings in accordance with law.
Issues: 1. Whether the petitioner's repayment of the loan amount prior to the FIR negates the allegations of cheating under Section 420 of the Penal Code? 2. Whether the other allegations of forgery appended to the cheating allegation also fail? 3. Whether there are sufficient materials on record to show the presence of ingredients required to constitute the offences alleged against the petitioner?
Ratio Decidendi: 1. The court relied on the principle that once a compromise settlement is reached between the borrower and the lender and the amount paid off, continuation of the criminal proceedings will be an abuse of process. 2. The court held that the charge of forgery can be imposed only on the maker of the forged document. 3. The court found that the transaction was alleged to be prima facie unlawful, making the proceedings in accordance with law as there are sufficient materials on record.
Final Decision: The court dismissed the revisional application, affirming the order of the trial court that rejected the petitioner's prayer for discharge. The court held that exercising the inherent powers of the court in this case would be an abuse of process of law/court, even though the loan amount has been repaid in a business transaction prior to FIR.
JUDGMENT :
SHAMPA DUTT (PAUL), J.
1. The present revision has been preferred against an order dated 10.12.2019 passed by the learned Judge, CBI Court No. 4, Bichar Bhawan, Calcutta in Special Case No. 1 of 2015 thereby rejecting the application of the petitioner praying for discharge from the case.
2. The petitioner's case is that CBI ACB Kolkata registered a FIR bearing no. RC0102013A0019 (RC:19(A)/2013-Kol dated 29.06.2013 on the basis of a letter of complaint dated 29.06.2013 by Sri Pinaki Mukhopadhyay, the Regional Manager, Reg-II, R.B.O. Chinsurah, State Bank of India alleging commission of offences under Section 120B, 420, 468, 471 Indian Penal Code and Section 13(2) read with 13(1) (d) of the Prevention of Corruption Act, 1988 against (i) Mritunjay Bhar Regional Manager of Region-I, Regional Business Office, SBI, Howrah (ii) Arindam Bhattacharyya, the then Branch Manager, SBI, Pandua, Agricultural Development Branch, Pandua, (iii) Tridib Mondal, the then Field Officer, SBI, Agricultural Development Branch, Pandua, (iv) Arup Kumar Bhowmick, Director, M/s. Raunak Cold Storage Pvt. Ltd. Mogra Hooghly and (v) Smt. Gopa Bhowmick, Director M/s. Raunak Cold Storage Pvt. Ltd.; Mogra Hooghly. It was alleged that the accused persons in criminal conspiracy got 35 fictitious PMLs (Produce Marketing Loans) amounting to Rs.3.15 crores released from the SBI Branch, Pandua during the period January, 2011 to May 2011 with the intention to cheat the Bank and cause wrongful gain to themselves.
3. After investigation, charge sheet has been filed before the trial court against 7 accused persons including the petitioner, Arup Kumar Bhowmick cited as accused no. 4 and alleging commission of offences under Section 120B read with 420, 409, 467, 468, 471 of the Indian Penal Code and Section 13(2) read with 13(1) (c) & (d) of the Prevention of Corruption Act, 1988 and substantive offences under Section 420 and 471 of the Indian Penal Code.
4. A supplementary charge sheet was filed by the prosecution enclosing the opinion of CFSL, Kolkata.
5. The petitioner as the Director of M/s Raunak Cold Storage Pvt. Ltd., Mogra, Hooghly has stood as the corporate guarantor for all the 35 Produce Marketing Loans released from the SBI Branch, Pandua during the period January, 2011 to May, 2011.
6. The petitioner had filed a petition on 08.08.2017 as per provisions of Section 239 Code of Criminal Procedure seeking discharge from the case as he had repaid the entire loan amount for which he had stood as the Guarantor prior to lodging of the First Information Report.
7. The Prosecution vide its petition dated 30.08.2017 opposed the prayer of the petition seeking discharge and the prayer was rejected on 10.12.2019.
8. The FIR in the instant case was registered on 29.06.2013 and the letter of complaint on the basis of which the FIR was registered, does not quantify the wrongful pecuniary loss suffered by the Bank. It is stated in the charge sheet itself that the corporate guarantor repaid the entire loan amount, in the account of all the 35 Produce Marketing Loanees. Thus, the Bank had collected the entire loan amount along with applicable interest by 08.02.2013 and on the date (29.06.2013) of registration of this case the loan amount had been already nullified in the books of the Bank and thus there was no dues.
9. The Bank had also issued a certificate to the petitioner vide its letter No. CM/BR/13-14/139 dated 31.10.2013 that all advances made to the borrowers under PML (Produce Marketing Loans) against corporate guarantee of M/s Raunak Cold Storage Pvt. Ltd., Mogra, Hooghly (the petitioner is the Director of the Company) had been liquidated.
10. It is further submitted that the moot point in the charge sheet is that by alleged fraudulent means the Bank had suffered pecuniary loss. But in the instant case when the loan amount of Rs.315 lakhs has been collected by the Bank with penal interest and an amount of Rs.395.38 lakhs had been received much before the lodging of the F
AI
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