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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
AJIT BORTHAKUR, J.
Bimal Singh Kothari S/o Late Raichand Kothari – Petitioner
Versus
Central Bureau of Investigation, New Delhi – Respondent
Crl. Pet. No. 945 of 2019
Decided On : 28-07-2022
Indian Penal Code, 1860 – Sections 120B, 420, 467 – Criminal Procedure Code, 1973 – Section 173(2), 482 – Delhi Special Police Establishment Act, 1946 – Section 3, 6 – Sick Industrial Companies Act, 1986 –Section 22A – Cheating and dishonestly inducing delivery of property - Forgery of valuable security, will, etc - Criminal conspiracy – Savings of inherent powers of High court - Whether charge framed will eventually stand disproved or not, can be determined only after evidence is recorded - CBI has filed several documents against accused persons which indicate that serious kind of fraud has been committed in instant case and offence against society involving huge public money. (Para 11)
Findings of the Court :
One time settlement in facts of case was not going to come to rescue of accused persons - Undoubtedly powers of investigation of CBI are derived from D.S.P.E. Act, 1946. However, as regards requirement of consent of State for investigation, this Court finds that as State of Assam being not impleaded in instant petition as a respondent and investigation being related to fraud committed on State Bank of India (SBI), which is a statutory Indian Multinational Public Sector Bank, it cannot be held that investigation done by respondent No. 1/CBI, based on complaint of said bank authority, was illegal or ab initio void - Accordingly, this new belated ground of accused petitioners invoking Section 6 of D.S.P.E. Act being devoid of merit is not sustainable.
Result : Petition disposed of.
JUDGMENT :
AJIT BORTHAKUR, J.
1. Heard Mr. G.N. Sahewalla, learned Sr. Counsel appearing for the petitioners/accused. Also heard Mr. S.C. Keyal, learned Standing Counsel for the respondent No. 1/C.B.I. None appeared for the respondent No. 2/S.B.I.
2. This application under Section 482 Cr.P.C. is filed praying for setting aside and quashing the impugned order, dated 12.12.2018, passed by the learned Special Judicial Magistrate, Kamrup (M) at Guwahati in Special Case No. 4792/2003 and to discharge the petitioners/accused of the charges framed under Sections 120B/467/420 of the IPC.
3. The petitioners’ case precisely is that they are arrayed as accused persons in the Special Case No. 4792/2003 pending in the Court of learned Special Judicial Magistrate, Kamrup (M), Guwahati. The criminal case was launched based on a written complaint, dated 03.05.2002, filed by the respondent No. 2/State Bank of India, L.H.O. Guwahati before the Superintendent of Police of C.B.I./respondent No. 1, herein, whereupon Crime No. R.C. SIA-2002-E-0002, dated 06.05.2002 was registered. On completion of investigation, the respondent No. 1 laid a charge-sheet under Sections 120B/420 of the IPC against the present accused petitioners and another private person and under Section 420 of the IPC against 4(four) companies, on having found a prima facie case that they in pursuance of a criminal conspiracy with each other had cheated the respondent No. 2/S.B.I. and thereby they wrongfully gained causing wrongful loss to the said bank to the tune of Rs. 72.43 Crores. The investigation prima facie revealed that the petitioners and their associates, inter-alia, used forged Power of Attorneys to execute various documents required to avail loans from the respondent No. 2/S.B.I. the details of which are stated in the charge-sheet being SIU(X)/SPE/CBI/New Delhi, charge-sheet No. 01 dated 31.10.2003. Thereafter, on careful consideration of the materials available on the case record and hearing the learned counsel of both sides, having found a prima facie case, the learned Special Judicial Magistrate, Kamrup (M) at Guwahati framed charges against all the chargesheeted accused persons/companies including the present petitioners under Sections 120B/467/420 of the IPC, rejecting their prayer for discharge from the case. For convenience, the aforesaid impugned order, dated 12.12.2018, is extracted herein-below:
Accused Nirmal Kr. Kothari is present. Accused Bimal Singh Kothari has appeared and preferred a petition being no. 3168, whereby he prayed for allowing him to remain on previous bail, which is allowed.
On 02.05.2018 and 02.06.2018, accused Nirmal Kr. Kothari and Bimal Singh Kothari preferred two nos. of petitions being Nos. 418 and 798 respectively, u/s 239 of Cr.P.C. praying for discharging them from the charges levelled against them.
The defence counsel made his submission that accused, Nirmal Kr. Kothari and Bimal Singh Kothari are no way connected to this case and have falsely been dragged into this case. The counsel further made his submission that from the material available in the case record no prima facie case makes out against accused, Nirmal Kr. Kothari and Bimal Singh Kothari and so, they may be discharged from the charges levelled against them.
In the instant case it is alleged that the afore-named accused persons entered into a criminal conspiracy to cheat the SBI to the tune of Rs. 72.43 crores on the basis of forged and fabricated power of attorney and thereby caused a pecuniary loss to the SBI corresponding gain to the themselves alleging that the Kothari group deliberately diverted the funds and utilized the funds for the purpose other than for which the loans were sanctioned resulting in huge developments of the letter of credit and loss of the bank.
It is alleged that the SBI had in good faith sanctioned credit facilities to the Kothari group in the year 1991 and the Kothari group submitted false power of attorney of Sri Nauratanmal Kothari and
Point of Law : Hon’ble Supreme Court has observed that at stage of framing of charge, trial court is not to examine and assess in detail material produced by prosecution nor to consider sufficiency o....
Point of law: As per the requirement of Section 227 and 228 of the Cr.P.C., the learned Judge shall consider whether “sufficient grounds” exist or not and such consideration shall be supported by mat....
The CBI has jurisdiction to investigate non-PC Act offences connected to PC Act offences, and the Chief Judicial Magistrate must commit cases for trial to the Sessions Court when a pardon is accepted....
The court highlighted the necessity for a thorough evaluation of evidence before rejecting a discharge application, emphasizing that mere suspicion without substantial proof is insufficient for prose....
A legitimate prosecution cannot be stifled under Section 482 Cr.P.C., and the complainant had locus standi to set the law in motion.
A strong suspicion founded on material, which can be translated into evidence at trial, is sufficient to maintain an order on charge.
The main legal point established in the judgment is that at the stage of consideration of charge, an accused cannot rely on materials by way of defense, and the power under Section 482 of the Code of....
The CBI does not require State consent for jurisdiction when the conspiracy is initiated outside the State, as established under Sections 5 and 6 of the DSPE Act.
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