GOmr OF THE SPECiAi. J|iO#iiiiTI CORRUFQON^ jptlllEAU OF (NV^^PJIQ^QON. WESENT VInod ChatteiJI Koul. File No. OSTChallan Date of instltutiom MSMiSk . \ ^ D«te of Older: ' " 8t«At through Central Bureaif of Investigatioii Narender Kumar Bhardwaj s/o Sh. Pritam Dass. the then Senior Branch Manager, Bank of BanDda. Gandhi Nagar, Jammu (now posted as Senror Branch Manager, Bank of Baroda, Sion. Mumbai), R/0 H. No : 90, Silver City Extn, Zeerakpur, TehsB Dera Bassi, SAS Nagar, Mohalli, Chandigarh. Raj Kumar Raina s/o Sh. Makhan Lai Raina, The Then Credit Officer, Bank of Baroda, Gandhi Nagar, Jammu ( now posted as OfRcer, Bank of Baroda, Mandi^ Govindgarh (Punjab). Jaswant Singh s/o Sandhu Singh, the then Credit Officer, Bank of Baroda, Gandhi Nagar, Jammu. i^H. No : 19E. Bharat Nagar, Talab TUio. Jmmm Hem ^jFtaj Phonsa s/o Gaila Ram Mf^^ Nanak Nagar, Jammu* Sanjeev Gupta s /o Sh. Parshotam Laf Gupta, Prop. M/s Jai Maa Sukrata Enterprises, Jammu (J K) R/0 0pp. 21Sr Transit Camp, Bah Brahniana. Tehsil and Distt. Samba. Smt: Meera Gupta w/o Sanjeev WO Q^. 215, Transit Camp. Bari Brahmana, Tehsil and Distt. Samba ..Jtodusad,.. Offence under sections 120-4^ ^^M^^M^ 43^^!^ ft 5(2) r/w 5(1) (d) of Jammu 4 Kashmir ,<JPrevention of Corruption Act, Samvat 2006rU at. I* fdi CBI present. , r ^ M Accused along with counsel presenile , , - . . ^^iV^
Transcript
GOmr OF THE SPECiAi. J|iO#iiiiTI CORRUFQON^ jptlllEAU OF (NV ^PJIQ^QON.
WESENT VInod ChatteiJI Koul.
File No. OSTChallan
Date of instltutiom MSMiSk . \ ^ D«te of Older: ' "
8t«At through Central Bureaif of Investigatioii
Narender Kumar Bhardwaj s/o Sh. Pritam Dass. the then Senior Branch Manager, Bank of BanDda. Gandhi Nagar, Jammu (now posted as Senror Branch Manager, Bank of Baroda, Sion. Mumbai), R/0 H. No : 90, Silver City Extn, Zeerakpur, TehsB Dera Bassi, SAS Nagar, Mohalli, Chandigarh. Raj Kumar Raina s/o Sh. Makhan Lai Raina, The Then Credit Officer, Bank of Baroda, Gandhi Nagar, Jammu ( now posted as OfRcer, Bank of Baroda, Mandi Govindgarh (Punjab). Jaswant Singh s/o Sandhu Singh, the then Credit Officer, Bank of Baroda, Gandhi Nagar, Jammu. i ^ H . No : 19E. Bharat Nagar, Talab TUio. Jmmm Hem jFtaj Phonsa s/o Gaila Ram Mf^^ Nanak Nagar, Jammu* Sanjeev Gupta s/o Sh. Parshotam Laf Gupta, Prop. M/s Jai Maa Sukrata Enterprises, Jammu (J K) R/0 0pp. 21Sr Transit Camp, Bah Brahniana. Tehsil and Distt. Samba. Smt: Meera Gupta w/o Sanjeev WO Q^. 215, Transit Camp. Bari Brahmana, Tehsil and Distt. Samba
..Jtodusad,..
Offence under sections 120-4 ^^M^^M^ 4 3 ^ ^ ! ^
ft 5(2) r/w 5(1) (d) of Jammu 4 Kashmir
,<JPrevention of Corruption Act, Samvat 2006rU
at. I* fdi CBI present. , r ^ M Accused along with counsel presenile , , - . . ^ iV^
Bttefly stating feddbfflil^^^^f'^r^written complaint dated 532013 was received by Superintendent of Police CBI Jammu from Ashok Kumar Chug, Assistant Gffi^iii^anager (DRM) Bank of Baroda, Regional Office, Jaliandhar wherein he alleged ''^^0Bv^ has been cornmiSed with the bank by accused Sanieev Gupta, Meera Gup^, fn obtaining the loan. As the complaint disclosed commission of cognizable offences, FIR No: RC0042013A0003 was registered for offences under sections 12Q-B, 420, 468, 471 RPC & 5(2) r/w 5 (1) (d) of J&K PC Act. It was suspected that offences of criminal conspiracy, cheating and forgery for the purpose of use of forged documents and oiminai misconduct has been committed by the accused Sanjeev Gupta, Meera GaptB and sonf)e offidals of the bank. " * ^ *
As per prosecutton case accused Sanjeev Gupta artd yimm Gupta approadied various bsanches of the BanirD^JIaiDdiNat Jammu for avviihg the crodir«Kflfti9S. m^e detam^^^Sm ftumeB sanctiorwl fo «iem^<iwm mpm are as Ondsd^'^
It Is alleged that thie^^^U: has been committed 't)y ttte accused Sanjeev Gufte and Mrs. Meera Gupta In connivance with the officials of the bank in obtaining the loan on the basis of j f K^e clqqymeints c ustf J wongful Joss to the Ume of Rs. 97,83,186,50. '' ' ' ' ^ ^^
During investigation one more instance of fraudulently availlr^ OOBTL, ctf 1^ 40 tac in favour of M/s Aarush Sales Corporation (Prop. Smt Meem^<%^ <t l i ,1^gy (kifM guarantors), also emerged. ^-^f^t "^^^M^^
of the piBsen^ FIR culminated into presentation of five charge sheets investigating agency covering the instances mentioned in the complaint.as.v^ell
re OD8TL in favour of M/s Aarush Sales Corporation. ^ - ^
far as the present charge sheet is concerned, during investigafldn #'vi^ lished that on 26.11.2008, A6, Meera Gupta, Proprietor M/s Aarush Sales ration, Jammu submitted a loan application in the Bank of Baroda. Gandhi Nagar,
lu for working capital loan of Rs. 40 lac under ODBTL (Over Draft Under Baroda srs Loan) and the security for obtaining loan was shown as 2 single storied shops I, Sanjeev Gupta, located opposite 215 Transit Camp, Ban Brhamna, Jammu. A6,
. Meera Gupta, submitted the security in the form of a Gift Deed of her husband. Sanjeev Gupta for land measuring 2 marias and 180 sqft under Khewat f*o t83
f, Khata No.764 Min, Khasra No; 1215 min, situated at Village Birpur, Tehsil Samba, investigation the Fard and Naqsha Dasti and Gift Deed was found to be feke
did not accompany with the actual Sale Deed of the concerned property and the lid property was also not transfenred in the name of A6, in the concerned revenue
>rds. to which, it was shown to had been gifted. It was also not established that had eartrer fraudulent obtafr>ed a loan of Rs. 25 lac on 26.10.2007 by mortga^lig
lother Gift Deed of the same Khasra with the same branch of Bank of Baroda which IS sanctioned by Sh. TR. Dogra, then Branch Manager and was further enhanced Rs. 43 lac by A l Narender Kumar Bhardwaj on 27.10.2008 without taking any fresh
scurity. Al was aware that another Gift Deed of the same Khasra was already laged with the branch at other loan account of borrower's family memfc>er, having
»a 1 kanal 2 marias valued 3k Rs. 37.50 ticNW^ ^ ^ Rs.4&^ tc on 02.11.2008. A l in criminal conJH)iracy j g ^ the( over y^sl^jilf^^^^
le. land measuring 2 maries and 180 sq.ft undef khasra No: 1215 for iRs. 75 lac ind the valuer, A4, mentioned in his valuation report dated 03/11/2008 that the Valuation
the property was made by inspecting the ste on .01.11-2IX)8 and the vajue of. the »perty was found to be at Rs. 75 lac.
It was ftjrther established during investigation that the pre- inspection report was -epared in advance by, A2, Raj Kumar Raina, the then Officer of the bank trti M 1.2008, however the loan Appficatkm was received after 4 days on 26.11.2008.
I have hearcl the Learned Sr. PP and ierniad d ^ M a counsels for the accused p e R J s i W f t i ^ ^ ^ cafe^^n;i/-m vV r c"; .^-ruM^^^^
Learned Sr. PP submitted that there is ample material produced before this court which prima facie esteWishes that the accused persons in pursuance of a criminal conspiracy with each other committed offence punishable under section u/s 120-B, 420. 468. ^7t 1 ^ an^ ^ 1 ^ J&K Preventioh^ Comjption Act 2006.
Leamed counsel appearing for X l to A3 submitted that there is no evidence/material on'the record to prima facie establish that the accused had beer\t of conspiracy in committing the fraud as alleged. It is submitted by him that no offence can be said to have been committed by the accused. It is further submitted that there is no evidence finking A l to A3 with accused 5 & 6. The toan was sanctioned/enhanced on the baste of the documents and the report of valuer, therefore A l to A3 have neither committed any offence nor they can be said to have entered into conspiracy with A5 & A6 in committing the fraud.
Leamed counsel for A4 argued th^ the valuation report is just an opifTion #iklr is not bindippii^ authorities. Furthemioia, ¥G^^baa no ro le^#«#l9(%
tf^ ^nuinenesf iifetNi^W<^cN*i^ properties vis-a-vis whictii ;^fe^dertalce the valuation. The learned defence counsel further submitted thi^
can take or ask for valuation of any property and valuer cannot as j i JBatt i i )t fact ask beneficiary -to prove his titie before the issuance of such repdit c
The leamed counsef for A5 & A6 submitted that the basic ingredients of ^^edltdna^ criminal conspiracy are not prima facie established against the accused persons there is no linking evidence. He further that meeting of minds of two and more
persons for doing t r c S ^ ^ be done an illegal act or an Act by illegal means sine-quo-non of criminal conspiracy. Moreover, thei^^^/na sufficient grounds for
ceding against the accused and prayed for ctet^i^gb^^ 1 ^ accused. m'
I have considered the arguments put forth by learned Sr. PP as well as learned insel for defence and have also perused the record produced. 4!
There are three sets of accused. The first set is ttvs officers of the bank who -iave processed and sanctioned the loan. The second set is the beneficiaries lave secured the loan from the bank and third set \^ t|ie valuer and the legal advisor, the allegations against them are that the valuer hascoiKkJcted valuation of the property and submitted the report whereby he has given estimated value of the property, subjec . natter of the mortgage. The learned advocate who has since died has given legal opinion about the documents in question. The bank officials A1 to A3 in conspiracy ith other accused defrauded the bank and sanctioned loan on forged papers in favour
of A5 & A6 and also obtained a false valuation report regarding the estimated value the subject matter of the security, which was furnished by A5 & A6 with the bank linst the said loan. * . . ^
Now at this stage what is to be seen by this coUrt is whether there are sufTicierl-pounds to proceed against the accused or not. The charge can be framed against ne accused;W ien, upon consideration of the material on record and after considerir^: ne submission made by the defence and the accused the court is of the opinion that
e are sufficient grounds to proceed, otherwise if there are iio pounds to proceed inst the accused, accused are to be discharged. -
IfWe Hon'ble Apex Court held in isiaranajan Singh Karamsingh Vs. JaffrKtera^^*ttaf^ t>thers, AIR 1990, SC 1962, that the court while considering whether to fram#'
rges against an accused or discharge him is required to evaluate the material and ments on recx>rd in ortter to find out livhsiiir tha fects menging there from, isk^
their faoe-value, disclose the astetonea^NM t ie ingredients constituting the alleged
In State of Bihar Vs. Romesh Singh 1978.1,BcMt' €» Apex Coim qtjBi^ad tiat at
f
11
^ initial stage of framing ^ a r g e if there » strong suspicion arising from material assembled during investigation that leads the w M t o e groun(||«r presuming that the accused has committed m osfono^ tiMr it is ncA dpm to say that there is no sufficient ground for proceeding against the accused. But if ihe evidence, which the prosecutor proposes to adduce to prove the guilt of accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, does not show that the accused committed the offence. Then there will be no sufficient ground for proceeding with the trial.
J|1n tight of the a b ^ dic jcm^xtf i4GAl»to Apeae CocRt, the emif has t& evaluate and appreciate the material collected during:*^ tevestlgation in the shape of evidence which is proposed to be used against the accused during the trial, for limited puipose in order to find out whether the facts emerging there from if taken at their face value disclose the existence of the alleged offences or not. The court has only to exercise Its judicial mind to the facts for determining that the prima facie case for frial has been made out and ft is n<* necessary for the cot^ l&%nter into the pros and cSSte of the matter or into weighing and balancing of evidence and probabilities at all. Keeping in view the above, the case for framing of charges against the accused has to be considered.
Accused No: 4 is the valuer and because he has conducted valuation of the property and submitted the estimated valuatton of the property, he has been impleaded as an accused on the allegation that he has s^^po|n||^^ along with d^^^^cQX^^ and has submitted wrong valuation r e p o r t , ^ ' - ^
The aliegatfons agiainst A4, vsduer/accused is 9mt being approved valuer of ^ bank he undertook the valuation of the properties which were offered as security. The allegation in the charge sheet is that the properties are not exisfing regarding which the valuation has been prepared. So, the investigating agency arrayed him as an accuse<l ak>ng with the other accused. ^ .
An amount of Bs. 40 lac a^ working capital loan was sancfioned in favour of Mrs. Meera Gupta Prop. M/s Aarush Sales Corporation Jammu. To secure such loan two single storied shops of A5, Sanjeev Gupta, her husband located at 215 Transit Camp Bari Brahamna Jammu was mortgaged. She submitted the said security in the form of Gift deed of her husband for land measuring two marias in 80 sqft, Khata 764, Khasra 1215 min situated at Village Birpur, Tehsil Samba.
:i:c^^;M^0m ts fkJtait ftom telephonicallyvM' coTKiiict the s u n ^ regarding the vduation « f tiMi fMnof) In question, subject matter <rf tfie security of the loan to be sanctioned in favour of accused Aleera Gupta. There
is no written communication from the berik to saki accused RK>wa JcK-txmftiCtir^ the valuation. As per the#iifSihe proceededion ^ t and the property was identified yA5s owner of the property and he conducted the valuation of the property identified
A5, Neither any bank official was deputed nor the bank has identified the property the purpose of conducting ihe valuation. The documenttii.e^ Gift Deed,whereby
wasji^ho^ ttiat the pn: )erty has been gifted to A5, fcffned to be fake,^!^!! alleged in the charge sheet. So far as the job of H.R. Phonsa is concerned, his job is 1^^
:ess the market value of the Property. Whether the documents are genuine or for^lEf' as the job of the bank official. It was for them, to have enquired about the genuineness
of the documents, which later on turned to be fake. The valuer has estimated the value of the properties referred to him by the bank which was identified by the owr*er who had been serrf by the bank with tfie valuer Once the property was shown him and was identified by the owner, he had no reason to disbelieve him reganding the identification of the property which was shown to him. He has given the repcart' of the property ki^tified. ^ -'^
So far as the genuineness of fhe cJocumints is concern^ whether the docun^rii^ genuine or forget, it was not the job of A4, the valuer. His job is to value the prope^ which is shown and is identified to be valued. He had been asked to value the proper^ which was shown to him by the owner and he has estimated the value of said proper^ : valuer is not expected to read title deed as a legally trained person. To expect the
'valuer to detect forged documents or manufactured documents would be to expect ^ tfie valuer to t>e a legally trained person. A valuer and legally trained person cannot
be equated. It was the job of the bank and not that of the valuer to ensure and verify 1 the genuineness of the documents, which has not been done by the bank.
i The Role of the valuer has been considered in L.N.Rajagopalan Vs. State in Gri,.. I R.C. Nk). 1063/2008, decided on f0.08.2009. wherein Hon'bte High Court of Madras
has quashed the proceeding against petitioner/ accused who was the valuer, wherein I it has been held in para 15 as under > "15. The poor approved valuer, well qualified in assessing the property;!
has been wrongly implicated having found that no properties were Irv existence as though he committed cheating punishable under section A^:, of the Indian Penal Code. Likewise, the other charges under sections 41i|' 467, 468, 471 read with section 120-« l i f tfl» MVe m»
^ no basis. It is in the figment of imagination of the Investigating agijNif^^ttai ^ the petitioner was involved in the conspiracy hutilWWtil^ ffie other accuseck I The valuers are supposed to contact the ^rm^^0^0^ not tMI
borrowers. None of the witness has spoken # l i » M i i l i i i t l M M * dishofiail^ role played by the petitioner in the fabrication of documents.
view of the ^ court flncte ttiet M f a ^ cases have l»een made out as agafn^ tt»^ peWtoner. The al made as against Urn petitioner, who is only an approved valuer, are found to l>e baseless. Absotutety no materials are available for charing M n n M r ^ aforesaid mtm^ alleged against lAm.
17. The trial couift has misdirected Itseff and has cotne to a wrong dedsUm ttKrt lliere are materials to charge this petitioner. Therefore, the petitioner iJNI* ftajagopalffifi, ranked as A14 Is discharged from tfie criminal proceedings In C.C.No:4 of 2008 on ttw IBe of the leamed the Principal Sessions Judge for GBI Caeea» Chennari and as a result, the Impulsed order stands set aside and flie criminal reirih^ case Is atiowed."
The Rwestigating agency has not seized/ frfaced on record the role/charter of dutiee T^arcKnethe valuer or penal advocate. In absence of the same tt cann< be fHresMme , tbfiK A^uer has any rote to certify or verify the title of the documents, w My other role whidi can be attributed to valuer except ttie valuation of the property. There is notNng on record in black and white to show tiiat the valuer was at fault to rely upon the identification of the property by benefteiary/ mo^gor who claimed to be owner on the strength of the documents, reflected in the opinkm/ report of the vsrtuer. Further there is nothing on record in form of any bank circular or Instructbn that the valuer was duty t)Ound to take fte assistance of revenue offidals or bank offidals and not that of alleged benefidary for purpose of identification of the property regarding whidi ftm vahiafion was given. IN absence of the charter of duties specifymg the rofe Of the vahier that he is not to take the help of alleged benefidary /mortgagor for identification of the property, I am unatte to accept the submissk?ns of teamed Sr. PP aiKl t$ accordtn y rejected.
On strength of m eritM lAsced on reoord induct talamente ^ J i ^ j ^ ^ ^ ^ ^ affied documents and in view of discussion made herein above it is heki ftrt ttie investigating agency has faited to make out a case of conspiracy agair^ Hem Rgy Phonsa, as such he is discharged.
So l»*a$ the rest of d » mised AVA2, A3, AS A6 areoonc«med, on consMlerir « e fffilaiiai on record, docyments teBed upon and m msmtom mmjm im^f^^w. i am Qf %e opiniQ? that there m gmunds for presiiming that iM^ aGopi^^aMi c o m m ^ odances pun^habie tmtor sections I 2 a « , 420 468, 471 FPQ^mi 6(2) r / w ^ ^ ^ ^ ^ * Kash^^Preyention of Corruption Act 2Q0^ m by 8iis court. They are aceordli^ dmrged for the said offences. 11* dWiJit NWW been framed against Hie acojsed in wr«Hng>>I?5e cha ^ ^ so fiamed have-teen read CH^ esq e ied to ft^ accused^ lil a9ked a$ they plead gutlty to
ihe offences chafged or d ^ JTbe trie* ^ ^ have pleadedn<H|H^%end opied fer trl^ 1*e#^^ -
Announced
(VInod Chatteefi Koul) X:'^^^- special Judge Anti Corruption
