CENTRAL BUREAU OF INVESTIGATION Vs. MOHAMMED YOUSUF

JUDGEMENT

(1.) On a source information, the appellant had registered Crime No. 39(S)/1991 on 31.12.1991. The appellant filed a report before the XXI Addl. City Civil and Sessions Judge and Spl. Judge for CBI Cases at Bengaluru, under S.173 of Cr.P.C. against (i) John Joshua Mathew (A1), the then Manager of State Bank of Travancore, Pillanna Garden Branch, Bengaluru, (ii) Soudhagar Abdul Basith (A2), and (iii) Mohammed Yousuf(A3), alleging commission of offences punishable under Ss. 120 -B read with S.420 and Ss.13(2) and 13(1)(d) of Prevention of Corruption Act, 1988 and was registered as Spl.C.C. No. 150/1994. Case against accused No. 1 was split up on account of his absconding, vide the proceeding in Spl.C.C. No. 117/1997. Accused No. 2 having died, the case against him stood abated on 26.05.2007. The respondent herein is accused No. 3. The prosecution case is, that accused No. 1 was working as the Manager of State Bank of Travancore, Pillanna Garden Branch, Bengaluru during the period from 25.01.1990 to 03.04.1991 and accused No. 2 was the proprietor of M/s. Bangalore Granites, Bengaluru and 9 other firms and that accused No. 3 was the proprietor of M/s. Sundeep Furniture, Bengaluru and 13 other firms. It was alleged that accused No. 1 had entered into a criminal conspiracy with accused Nos. 2 and 3, in the matter of sanction and disbursal of loan(s) under SSI loan scheme and in furtherance of the conspiracy, accused No. 1 sanctioned loan of Rs. 1,00,000/ - each, in the names of M/s. Bangalore Granites and 21 other firms, which were alleged to be fictitious and non -existing, as the documents produced relating to their registration was found to be concocted. Default having been committed in making the payment of Rs. 36,99,408/ - towards principal and interest to the said Bank and accused No. 3 having conspired with accused No. 2 by offering his immovable property as collateral security in the matter of availing loan under SSI Scheme by producing concocted documents, after investigation, the charge -sheet dated 08.05.1992 was filed. The accused No. 3 appeared and sought discharge by filing an application under S.227 Cr.P.C. The application was rejected and the charge was framed on 17.12.2002. The accused Nos. 2 and 3 having pleaded 'not guilty' the trial commenced on 05.01.2009. Seeking setting aside of an order dated 23.12.2008 passed by the Trial Judge, the accused No. 3 filed Crl.R.P.1369/2008. The said petition was disposed of by an order dated 20.01.2009, permitting the accused No. 3 and the Bank to file an application before the Trial Court, seeking compounding of the offence. Accused No. 3 and the Bank having filed two separate applications dated 12.02.2009, under Ss.320(2) and 320(8) Cr.P.C. and the Trial Judge having passed an order on 28.02.2009 allowing the application for compounding and thereby, acquitting accused No. 3 of the charge under S.120B read with S.420 IPC and canceling the bail bond, this appeal was filed to set aside the said order.

(2.) Sri C.H. Jadhav, learned Senior Advocate, by placing reliance on the decision in the case of GOPAKUMAR B. NAIR v/s. CBI, : (2014) 5 SCC 800, contended that the Trial Judge has committed illegality in allowing the application filed by accused No. 3 and the Bank under S.320(8) Cr.P.C. and in acquitting the accused No. 3 of the charged offences. Learned counsel submitted that the appellant being an independent agency constituted for investigation of the offences and to report to the competent Magistrate, the Trial Judge could not have permitted the compounding, that too, without there being participation of the complainant. He submitted that the information having been received and the case having been registered in R.C.39(S)/91, investigation was undertaken and the charge -sheet was laid by the appellant for the offences committed by the accused, not only against the Bank but also the society at large. He submitted that such being the case, the consent to compound the offence by the Bank alone is incompetent. Learned counsel contented the compromise entered into by the accused No. 3 with the Bank has no relevance, since the offences alleged against him and the other accused is against the society. Learned counsel contended that the impugned order is cryptic and shows the lack of application of mind and having been passed mechanically and with undue haste.

(3.) Sri M.T. Nanaiah, learned Senior Advocate, on the other hand submitted that in view of the observation made in the order passed on 20.01.2009, disposing of Crl.R.P.1369/2008, the applications having been filed, under Ss.320(2) and 320(8) of Cr.P.C, the Trial Judge is justified in passing the impugned order. Learned counsel, by placing reliance on the decision of the Apex Court in NIKHIL MERCHANT v/s. CBI, : (2008) 9 SCC 677, submitted that learned Trial Judge is justified in allowing the application for compounding and in acquitting the accused No. 3 of the charge, since he produced a 'clearance certificate' issued by the Bank with regard to the full and final settlement of the claim of the Bank, to its satisfaction i.e., with reference to the claim made in O.A.794/1995, on the file of the Debt Recovery Tribunal, Bengaluru. Learned advocate submitted that the permission to compound being one of discretion, no interference with the impugned order is called for.