VIVEK GUPTA Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) In this appeal by special leave the core question which arises for consideration is whether the appellant herein can be charged and tried gether with the other two accused by the Special Judge under the provisions of the Prevention of Corruption Act, 1988, in view of the fact that the appellant herein has been charged only under 420 I.P.C. and under 120B read with 420 I.P.C. while the other two accused have been additionally charged of the offence under 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred as the "Act"). The appellant contends that the Special Judge under the Prevention of Corruption Act has no jurisdiction try the appellant who is not charged of any offence under the said Act, while the respondent contends the contrary relying upon the provisions of the said Act and the Code of Criminal Procedure. The High Court of Bombay by its impugned judgment and order has answered the question in the affirmative holding that the appellant can be tried by the Special Judge under the Prevention of Corruption Act along with the two accused who also stand charged of offences under the Act.

(2.) Before adverting the submissions urged at the Bar, we may very briefly notice the broad facts of the case appreciate the nature of the allegations made against the appellant and the other two accused. Accused No. 1 Sri G.B. Nande was at the relevant time the Manager of the Commercial Branch of the State Bank of India, Fort, Bombay, while accused No. 2 Sri J.S. Kelkar was an Accountant employed in the same branch of the State Bank of India. The appellant herein is accused No. 3 who transacted business with the said branch of the State Bank of India on behalf of eight companies with which he was associated. There is considerable controversy as whether the appellant was a Direcr of those companies or whether he was simply representing them as their representative. This, however, is not of much consequence in this appeal. The case of the prosecution is that the appellant entered in a conspiracy with the aforesaid officers of the bank cheat the bank. A clever device, rather intricate in nature, was conceived by them whereby eight separate accounts were opened in the name of the companies concerned and overdraft facility was extended the companies on the representation of the appellant and with the assistance of the aforesaid officers of the bank. The aforesaid officers of the bank misused their official position and in a dishonest manner the banking business was transacted in such a manner that it caused substantial monetary loss the bank. This was achieved by the appellant and the officers of the bank acting in concert, pursuant the conspiracy. The aforesaid officers of the bank abused their official position as public servant and by corrupt or illegal means obtained pecuniary advantage for themselves and others. The Special Judge, therefore, framed charges against all the three accused for the offence punishable under120B read with420 I.P.C. The appellant herein was additionally charged of the offence under420 I.P.C. Accused Nos. 1 and 2, the bank officers were also charged of the offence punishable under 13(2) read with 13(1)(d) of the Act.

(3.) Sri S.B. Sanyal, learned senior advocate appearing on behalf of the appellant submitted that in view of the express provisions of 3 of the Act, the Special judge could only try offences which are punishable under the Act or any conspiracy commit or any attempt commit or abetment of any of the offences punishable under the Act. Subsection (3) of4 empowers the Special Judge try an accused at the same trial for any offence committed under any law other than an offence punishable under the Act. He, however, added that before an accused can be charged and tried by the Special Judge for any offence other than an offence under the Act, the necessary pre-condition is that the said accused must also be charged of an offence under the Act or conspiracy commit attempt commit or abetment of any offence under the Act. He, therefore, submitted that since the appellant herein was charged only of offences under 420 and 120B read with 420 I.P.C., he could not be tried by the Special Judge even with the aid of Sub-section (3) of4 of the Act. He submitted that only the co-accused, who were officers of the bank, were charged of offences under the Act and there was no charge against the appellant of having committed any offence under the Act or of having conspired, attempted or abetted commit an offence under the Act. Clearly therefore, according him, the Special Judge had no jurisdiction try the appellant along with the co-accused in the same trial. He did not dispute the position that so far as the co-accused are concerned, the Special Judge had jurisdiction try them for any offence under the Act and even for the offence under 120B read with 420 I.P.C. However, since the appellant was not charged of any offence specified in3 of the Act, the Special Judge had no jurisdiction try him for the offence under 420 I.P.C. or even under 120B read with 420 I.P.C. treating him as a co-conspirar of the co-accused.