Advocates:
['M A QAYOOM', 'ANIL BHAN', '', 'ASIFA PADROO', 'S A NAIK', 'T M SHAMSI', 'S A MAKROO']

HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

(Through Video Conference)

Reserved on 07.12.2020

Pronounced on 30.12.2020

Pet. u/s 561-A No. 52/2007

IA No. 1/2007[128/2007]

Khazir Mohammad Tunda

...Petitioner/Applicant(s)

Through :- Mr. M. A. Qayoom, Advocate

v/s

<

Central Bureau of Investigation

and another

.....Respondent (s)

Through :- Mr. Tahir Majid Shamsi, ASGI for No. 1

None for No. 2

Coram:

HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

(through Video Conference from residence in Jammu)

JUDMENT

d

rR

1.

The present petition has been filed under section 561-A Cr.P.C.

for quashing of FIR bearing No. 00420044A0001 of 2004 registered by the

Central Bureau of Investigation (CBI), respondent No. 1 herein and

proceedings pending before the learned Special Judge Anti-corruption,

Srinagar Kashmir(hereinafter to be referred as the trial court) as well as order

dated 21.06.2007 by virtue of which the charges for commission of offences

under sections 120-B, 419, 420, 409, 467, 468, 471 and 477-A RPC and

5(1)(c)(d) read with 5(2) of the Jammu and Kashmir Prevention of Corruption

Act, 2006 (for short the Act) have been framed against the petitioner and

respondent No. 2. The petitioner has questioned the FIR (supra) as well as

2

Pet. u/s 561-A No. 52/2007

proceedings including the order for framing of charges by the trial court, inter

alia on the grounds that the petitioner being an employee of Bombay

Mercantile Co-operative Bank Limited (hereinafter to be referred to as the

Bank) was not a public servant as such could not have been prosecuted for the

commission of offences under Prevention of corruption Act. Secondly, the

transactions as stated in the final report give rise to a civil liability and thirdly,

that the CBI had conducted an enquiry without any authority and the enquiry

conducted by the CBI and the subsequent proceedings conducted by the court

are without jurisdiction.

2.

Before appreciating the contentions of the petitioner, it is

appropriate to have the brief resume of the prosecution story. A written report

was lodged by Sh. Ashraf Ali Abbas, the then Branch Manager of Bombay

Mercantile Co-operative Bank Limited, M. A. Road, Srinagar on 13.01.2004

alleging that the petitioner during his posting as Branch Manager of the Bank

from June, 1990 to 25^th July, 2001, had fraudulently opened bank accounts in

the names of fictitious persons and allowed unauthorized excessive

withdrawals causing enormous loss to the bank to the extent of more than one

crore rupees.

3.

The allegation against the petitioner is that he opened fixed cum

recurring account No. 8339 for an amount of Rs. 8.00 lakhs for a period of 24

months on 22.01.1997 in the name of a fictitious person, namely, Nazir Ahmad

Bhat by having signed himself as Nazir in account opening form. Apart from,

he himself introduced/admitted his own signatures as that of Nazir Ahmad in

the capacity of the manager of the Bank. A bearer cheque No. 2349518 dated

16.01.1997 for an amount of Rs. 9.00 lacs favouring Nazir Ahmad Bhat drawn

on J&K Bank Branch Dalgate, Srinagar, arranged by the brother of the

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Pet. u/s 561-A No. 52/2007

petitioner with M/s Trading Company Nishat was lodged in the bank for

clearing on 20.01.1997 by the petitioner and used by him to open the above

mentioned account for Rs. 8.00 lacs. After the said cheque was divided into

two parts, one for Rs. 8.00 lakhs utilized for FCR and the balance amount of

Rs. 1.00 lakh was en-cashed by utilizing the account of one Nafis Ahmed.

4.

The other allegation is that after seven days of opening of the FCR

deposit account, Cash Credit Deposit(CCD) was also opened by the petitioner

on 29.01.1997 in the name of said fictitious Nazir Ahmed Bhat by pledging