Ronita Biswas | National Law University, Orissa | 28th December 2019
Om Prakash Kapoor v. State Thru. Cbi, Bs&Fc, New Delhi (Criminal Revision No. 1432 of 2019)
- Matter
An FIR was registered by CBI (B.S. & F.C.), New Delhi, on complaint made by Shri Brijesh Kumar Singh (Deputy General Manager/ Regional Manager), Bank of Baroda, Kanpur under s. 120B read with s. 420, 467, 468, 471 of IPC and s. 13(2) read with s. 13(1) (d) of Prevention of Corruption Act, 1988, with the allegation that M/s Rotomac Global Pvt. Ltd. (hereinafter referred as the Company) and its Directors cheated the Bank for a sum of Rs. 456.63 cr. and also other banks, total amounting to Rs. 2919.39 cr. and did not repay the loan amount.
After investigation, a charge sheet was filed against the Company and its Directors, including the revisionist. It was alleged that the revisionist, during his posting as Senior Manager, Bank of Baroda, Kanpur had entered into a criminal conspiracy with the Directors of the Company and approved disbursement of 6 instances of Packing Credit (PC), out of which 3 PCs were obtained without credit report and others were approved in spite of poor credit reports.
The Revisionist moved an application for discharge under s. 239 of CrPC before the Special Judge, Anti- Corruption CBI (Central) Lucknow. However, the same was rejected by an order.
- Appeal before HC
Thereafter, the Revisionist had filed a petition before the Allahabad HC for quashing of the order passed by the Special Judge, Anti-Corruption, C.B.I. (Central), Lucknow by which discharge application of the revisionist was rejected. The Revisionist had also prayed before the HC for setting aside the charges framed against him.
- Appellant’s contention
The Revisionist had contended that the Court had wrongly and illegally rejected the discharge application in arbitrary manner. There was no specific allegation against the Revisionist in the FIR. During the investigation of the CBI, the Revisionist admitted his negligence in discharging his duty. Ultimately, the charge sheet filed against him stated that he was involved in cheating Rs. 456.63 cr., by committing fraud with the association of the Directors of the Company. There is no evidence against the Revisionist in relation to the alleged offences.
Further, the allegation against the revisionist is merely to facilitate the Company by allowing disbursement of Rs. 15.90 cr. against the request letter of the Company, which was made for Rs. 10.90 cr.
The revisionist submitted that the aforesaid PCs were disbursed in one lot of Rs. 15.90 cr, within the permissible balance, which was within the available sanction limit. Moreover, this amount had also been liquidated by the Company before the FIR was lodged.
The revisionist also submitted that only general allegations were levelled against him without any credible evidence. He had argued that he had sanctioned PC limit without asking credit report from the concerned authority and also permitted opening Letter of Credit (LCs) of value more than USD 3 million with the authorisation of the then Branch Head.
The Revisionist had relied on the judgement of C. K. Jaffer Sharief v. State (Through CBI) (2013 1 SCC 205); the revisionist has submitted that though he had acted in violation of international rules, but no dishonest intention was revealed on his part during the course of investigation. Therefore, the Court had committed error in rejecting his application for discharge.
- Respondent’s contention
The Respondents submitted that though the revisionist had granted PC limit to the Company without complying with the mandatory provisions and without getting approval of his seniors as well as AGM, giving undue benefits to the Company. As a result, the revisionist with the association of the Directors of the Company committed fraud with the Bank.
He further submitted the charge sheet was filed after the completion of investigation. At the time of framing the charges the court is not required to enter into meticulous evidence and other materials placed before it. Lastly, the Respondents submitted that due to the act of the revisionist and other accused, huge amount of the public money had been lost and the Special Judge, Anti- Corruption CBI, had rightly rejected the application of the revisionist.
- Held
The Court held that the case law cited by the revisionist, in support of his submission, were not applicable in the instant case since the charge sheet was filed with the allegation that huge amount of Bank had been cheated by the Directors of the Company in association of the revisionist and other co-accused and a total sum of Rs. 2919.39 cr. was involved in the matter, which constitutes public money.
The Court cited the judgement of Amit Kapoor v. Ramesh Chander and Anr. (2012 9 SCC 460), where the SC held that at the time of considering the application for discharge, the Court is required to consider the ‘record of the case’ and the documents submitted. Where it appears to the Court that there is a ground for presuming that the accused has committed an offence, it shall frame the charge. The Court is not concerned with evidence, but only with strong suspicion that the accused has committed the offence.
In the case of Asim Sharif Vs. National Investigation Agency, (2019) 7 SCC 149, the Supreme Court has again reiterated the principle that while considering the application for discharge, the court has power to sift and weigh the evidence only for limited purpose to find out whether or not prima facie case exists against the accused. If the material placed before this Court raises strong suspicion against the accused, the Court is wholly justified in framing of the charge.
The Court held that there is enough material for a prima facie case which raises strong suspicion against the revisionist to have committed the offences.
498A Discharge should not be there if specific role is attributed to the accused.