Arun Agarwal Alias Arun Kumar Agarwal v. State

(1) THE judgment of the Court was as follows by this revisional application dated 6. 10. 2005 under Section 401 read with Section 482 of the Cr. P. C. challenge is made to the Order No. 68 dated 5. 7. 2005 passed by the learned Judge, 1st Special Court, Alipore in special Case No. 6 of 1998 rejecting the petitioner's petition under Section 239 of the Cr. P. C.

(2) THE charge-sheet was submitted against the petitioner and another on the allegation that during 1992-93 the petitioner and another entered into criminal conspiracy with one A. K. Agarwal and defrauded the punjab and Sind Bank to the tune of Rs. 2. 21 crores. Sometime in 1988 a company in the name and style of M/s. Eureka Wires Limited was incorporated as Private Limited Company and the present petitioner was shown as one of the Directors. The said company was converted into a public Limited Company in the name and style of M/s. Eureka Wires Limited with effect from 5. 3. 1992. On the application of the petitioner and another accused the credit limits were sanctioned to the company. Investigation discloses that the petitioner introduced and got opened a current account on 18. 12. 1992 in the name of M/s. Steel and Alloy Products in Chowringhee branch of Punjab and Sind Bank through his employees Ravi Kant Pandey and Srimani Mishra and in connivance with another accused diverted a sum of Rs. 6,24,430/- from the current account of the company to the account of M/s. Steels and Alloys Products which was a fictitious firm. The petitioner again got opened another fictitious current account through his employees in the name of a fictitious firm namely M/s. Continental Supplier and diverted a huge sums of money. Similar current accounts were opened in the name of some other fictitious firms whereby Rs. 28,08,670/- and rs. 14,92,640/- were again diverted from the cash credit account of m/s. Eureka Wires Limited. Another diversion was made in respect of rs. 27,60,200/- to another account. In this way the Bank was defrauded. Charge-sheet was submitted under Sections 120b/420/467/468/471 I. P. C and under Section 13 (2) read with Section 13 (1) (d) of the Prevention of corruption Act, 1988.

(3) IN the context of the aforesaid allegations it is submitted that the learned trial Court was moved with a petition praying for discharge of the present petitioner under Section 239 of the Cr. P. C. on the ground that allegations in the charge-sheet would indicate a civil dispute arising out of contractual obligation, that the credit facilities were allowed to the petitioner against piedgement of goods worth Rs. 1. 50 crores which is still lying in the custody of the bank, that there is no iota of evidence on record leading to any reasonable conclusion of conspiracy, that the matter being purely of civil nature, bank did not lodge any complaint and bank instituted a civil suit, and accordingly the proceeding as against the petitioner was liable to be terminated by order of discharge.

(4) LEARNED Judge of Special Court heard the petition but turned down the prayer for discharge on the ground that there are prima facie materials to proceed with against the accused.

(5) THE point for consideration is whether the learned Special Judge was justified in rejecting the petition for discharge.

(6) MR. S. S. Roy, learned Advocate appearing for the petitioner submitted that the bank has instituted a civil suit which is still pending and the bank who is alleged to have been defrauded did not lodge any complaint and on the contrary the credit facilities were allowed to the company of which petitioner is one of the Directors on approval of the chairman-cum-Managing Director of the bank and on due verification and inspection of the factory premises by different high officials of the bank.

(7) MR. Ranjan Roy, learned Advocate appearing for the CBI opposing the submission of Mr. S. S. Roy contended that the F. I. R. and the charge-sheet if studied vividly would reveal that a colossal amount was diverted to different accounts opened by the petitioner in the name of several fictitious firms and thereby fraud was committed upon the bank by means of forgery and cheating. It is further submitted by Mr. Ranjan Roy that there is no paper produced by the petitioner in support of alleged civil dispute and even if there be any civil dispute the present criminal proceeding by virtue of the allegations made therein do not get evaporated.

(8) I have heard rival submissions of the learned Advocates for the parties and come to find that the narratives in the charge-sheet clearly make out a prima facie case which prevents this Court to hold that no cognizable offence could be revealed. It is a different question whether the charges could be proved or not at the conclusion of trial.

(9) MR. S. S. Roy submitted that in order to take vengeance the prosecution granted pardon to three persons illegally in violation of the provisions of Section 306 of Cr. P. C. and the Hon'ble Court in C. R. R. No. 628 of 2000, C. R. R. No. 1159 of 2000 and in C. R. R. No. 1160 of 2000 set aside the order of the learned Magistrate tendering pardon to the three accused persons. Now as rightly submitted by Mr. Ranjan Roy, the setting aside the order of pardon of the learned Magistrate by the Hon'ble Court does not have any impact upon the present petitioner and it is not understood why reference to setting aside the order of pardon against the three petitioners has been made in support of the prayer of discharge of the accused. I have minutely read this Court's order dated 6. 12. 2001 passed in the three aforesaid proceedings and I find that while the Hon'ble court setting aside the magisterial order granting pardon to the three accused persons refused to quash the proceedings and directed the learned Special Judge to proceed with the cases. Mr. Roy submitted that cognizance of offence was taken by the learned Special Judge a number of times and the law does not permit taking cognizance of offence a number of times. It is elaborated that at first cognizance was taken against the two persons on 16. 12. 1998 and then after the three criminal revisional application were disposed of the learned Judge by order dated 26. 04. 2002 took fresh cognizance against all the accused persons (including the three relating to whom grant of pardon was set aside by the High Court) and then the learned Special Judge upon receipt of supplementary charge-sheet against the three accused persons (who were earlier granted pardon)took cognizance of offence on 29. 07. 2003 thus exhibiting ignorance of the act that the supplementary charge-sheet does not warrant taking a fresh cognizance. Therefore, Mr. S. S. Roy submits that there exists no valid cognizance in the instant case and the proceeding is a nullity. Mr. Ranjan Roy submits that if cognizance is taken wrongfully or by mistake that does not vitiate the proceeding from any illegality because of the fact that no prejudice is caused to the accused persons.

(10) MR. S. S. Roy, learned Advocate appearing for the petitioner refers to a decision of this Court in K. Subhas Nayak v. The State of West Bengal as reported in 2001 (1) All India Criminal Law Reporter 106 to argue that the subsequent taking cognizance on the same charge is not permissible. Mr. Roy takes me to a decision in State of West Bengal v. Salap Service station and Ors. , 1994 SCC (Cri) 1713 wherein it has been held in para 2 that there is no question of taking further cognizance when cognizance was already taken. Here in the instant case a supplementary charge-sheet was filed and in that context Hon'ble Supreme Court held that there is no question of taking fresh cognizance of offence on the basis of supplementary charge-sheet which is filed by the police pursuant to further investigation of the case. In this decision it has also been held that court has no power to reject it outright without taking it on file. In the case of K. Subhas Nayak (supra) though a cognizance was taken for the second time the High Court refused to quash the proceeding on that score alone. In S. Natarajan v. State of West Bengal, 2001 (1) All India Criminal law Reporter 644 cognizance of offence was taken by the learned Chief metropolitan Magistrate wrongfully and when the mistake was brought to the notice of the learned CMM he sent the entire case record to the learned special Judge who took cognizance of the offence and it was held that order taking cognizance of the offence by the Special Judge does not suffer from illegality. The matter of the fact is that cognizance is taken note not of the offenders but of the offence and cognizance taken on supplementary charge-sheet does not vitiate the proceeding.

(11) HAVING regard to all these facts and circumstances I am of the judgment that the application for setting aside the order of the learned special Judge is devoid of merit.

(12) THE application is dismissed. The order dated 5. 7. 2005 passed by the learned Special Judge, 1st Special Court, Alipore in Special Case no. 6 of 1998 is affirmed.