ANIL RAI Vs. C B I

JUDGEMENT

(1.) By this petition the Petitioner challenges the order dated 27 th June, 2008 directing framing of charge and the order dated 15 th July, 2008 framing charge against the Petitioner for offence under Section 120-B read with Section 420/471 IPC and the substantive offences punishable under Section 420/471 IPC in case titled "CBI Vs. J.R. Gupta & Ors." pending before the Learned ACMM, Karkardooma Courts.

(2.) Learned counsel for the Petitioner contends that no charge under Section 420 IPC can be framed against the Petitioner as the same requires a dishonest intention at the inception i.e. at the time of applying for loan and sanctioning of the same. There is no evidence on record to show that the Petitioner had any role to play at the time of either applying for loan or the sanctioning of the same. The role of the Petitioner if any attributed is that after the loan was sanctioned the Petitioner furnished a Deed of Guarantee and a Shortfall Undertaking dated 21 st December, 1995. Further there is no evidence on record to attract the offence under Section 471 IPC as there is no allegation that the Petitioner used the forged document with dishonest or fraudulent intention. There is no prior meeting of mind and hence the ingredients of Section 120-B IPC are not attracted. The Petitioner did not sign any document while processing the request for loan. As far as the loan obtained from IDBI amounting to Rs. 20 crores is concerned, co-accused Vinay Rai on behalf of the company requested for loan of Rs.24 crores vide letter dated 20 th September, 1996, however, the IDBI sanctioned a sum of Rs. 20 crores on 30 th January, 1997. For the other corporate loan of Rs. 20 crores requested from IFCI (Industrial Financial Corporation of India) a request was made by co-accused S.K. Mittal vide letter dated 21 st January, 1996 on behalf of the company. This term loan was approved for a sum of Rs. 18 crores on 3 rd May, 1997 and the letter of intent was issued on 6 th May, 1997. The Petitioner was not involved at any point of time either in making a request for loan or for grant of sanction of the same. There is no allegation against the Petitioner that any amount has been diverted to his personal account or for his personal use. The entire amount was received in the company's account and has been disbursed by the company. The Petitioner has not issued any cheque under his signatures. Further there were two loans of Rs. 50 crores. The first loan was sanctioned on 15 th November, 1995 for the modernization scheme envisaging acquisition of new testing equipments. The necessary documents like hypothecation and guarantee deeds were executed and the requisite machinery was purchased and installed even as per the CBI. This loan was repaid by the company to IDBI vide cheque No. 821768 dated 9 th March, 1998. The second loan of Rs. 50 crores was disbursed on 10 th March, 1998 by IFCI for "general corporate purposes". Accordingly new deeds of guarantee/ hypothecation were executed by company Usha India Ltd. (UIL) in favour of IFCI. The second loan of Rs. 50 crores is not part of the present charge-sheet. No vicarious liability can be fastened against the Petitioner under the Indian Penal Code. Reliance in this regard is placed on Maksud Saiyed Vs. State of Gujarat, 2008 5 SCC 668 and Ashok Sikka Vs. State, 2008 147 DLT 552. If two views are possible then at this stage this Court will discharge the Petitioner and permit the trial to proceed only if one view is possible. No witness has alleged any commission of offence against the Petitioner except occasional reference to him, which do not fulfill the necessary ingredients of an offence. The crux of the contention of the Petitioner is that even as per the prosecution case the Petitioner was not looking after the financial work of the UIL group companies and the same was being looked after by his brother Vinay Rai, thus merely because the Petitioner signed a deed of guarantee and a shortfall undertaking will not make him liable as no conspiracy can be alleged. Hence the impugned orders be set aside and the Petitioner be discharged of the offences.

(3.) Learned counsel for the CBI contends that the Petitioner was the Vicechairman of M/S. UIL and in-charge of the functioning of the factory on day-to-day basis. The brother of the Petitioner was the Chairman-cumManaging Director of the company. The company is a family concern and initially incorporated by the father of the Petitioner. The accused persons hatched conspiracy with the object to defraud M/S. IFCI Ltd. in the matter of sanction and disbursement of financial assistance to M/S UIL. In pursuance to the said conspiracy Suresh Gupta and Sohan Lal Garg mentioned in column No.2 issued fake bills to M/S. UIL without supply of material and the funds received by them against the said materials purported to have been supplied were passed on to Vinay Rai and others. The funds generated in pursuance to the said conspiracy were siphoned off for the personal use, i.e. for purchase of shares of M/S. UIL group companies in benami names. On 15 th November, 1995 the Petitioner and co-accused Vinay Rao approached IFCI for financial assistance of Rs. 70 crores for the expansion and modernization of semi-conductor division of UIL. S.K. Mittal, the coaccused vide letter dated 7 th December, 1995 agreed as per the terms of letter of intent and requested for immediate disbursement of the facility. A certificate was issued by the auditor stating that UIL incurred Rs. 1954.53 lakhs for modernization scheme. The Petitioner and the co-accused submitted a guarantee deed and shortfall undertaking. PW-3 A.K. Dutta the AGM of IFCI inspected the factory premises and its office on 25 th May, 1996 with respect to the utilization of the above facility and submitted its report. According to the learned counsel as per the allegations the Petitioner is one of the main beneficiaries of the siphoned off money. Misrepresentations were made on the basis of project report concerning the factory. Further, in furtherance of the common intention the Petitioner executed a personal bank guarantee along with his brother Anil Rai. The Petitioner is not a stranger to the transaction but an in-house responsible member of the group of companies and looked after the day-to-day functioning of the factory whereupon the project for modernization plan was submitted to the bank. Hence no case for quashing of the charge is made out.