RASHMI AGARWAL Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) These three petitions are against the orders dated 23.8.2003 & 27.9.2003 framing charges against all the petitioners u/s 120-B read with Section 420/467/468/471 IPC and for quashing of criminal proceedings. The three petitioners are alleged to have conspired to cheat the New Bank of India, Connaught Place, New Delhi. On 30.11.1989, the accused No. 2, O.P.Rajvanshi, applied for financial facility to the extent of Rs. 50 lakhs in the name of his firm, M/s.Vikram Enterprises. The accused No. 1, V.K.Bhutiani, was the Senior Manager at that time in that branch of the New Bank of India. The firm, M/s.Vikram Enterprises, had obtained an order for export of garments worth Rs. 30 lakhs from a Hong Kong firm under a foreign letter of credit. On the basis of the export order and the foreign letter of credit, loan facility was sanctioned in the name of M/s.Vikram Enterprises on 25.11.1989. The accused No. 2 allegedly utilised about Rs. 17 lakhs but did not repay the amount. The CBI registered a FIR on source information and filed a charge-sheet against six persons, one of whom, namely, Mohd.Yusuf, is now dead. The petitioners are three of the six persons including accused No. 2, O.P. Rajvanshi, who allegedly conspired to cheat the bank and in the process committed the offence under Sections 468 & 471. V.K. Bhutiani, an officer of the bank, who was also named as a conspirator in the offence, has since been discharged. Allegations against O.P. Rajvanshi and the three petitioners relate to offence of cheating apart from that of forgery and user of a forged document. In order to get the sanctioned loan amount released O.P. Rajvanshi produced an agreement purporting to be between his firm and deceased Mohd.Yusuf, viz., M/s.Haji Gudar S.Abdul Karim, for supply of garments by the latter's firm to the former's firm. Simultaneously O.P.Rajvanshi submitted a letter purportedly signed by the deceased accused with two proforma invoices of the deceased for Rs. 20,10,000/- and for Rs. 2,25,000/- drawn on M/s. Vikram Enterprises. One receipt dated 20.12.1989 purported to have been signed by the deceased accused for Rs. 4,35,000/- was also submitted by O.P.Rajvanshi for meeting the requirement of 25% of margin money to be paid by M/s.Vikram Enterprises, It was found that Mohd.Yusuf was not an exporter but was only a small vegetable seller and that all those documents had been manufactured merely to induce the bank to release the money in favour of O.P. Rajvanshi. Similarly one invoice of Multiple Traders, a proprietorship concern of accused No. 4 (Rashmi Agarwal), one of the petitioners before this court, dated 15.12.1989 for Rs. 2,30,000/- purported to have been signed by one Ashwini and another receipt of Rs. 1 lakh purported to have been signed by Ashwini on behalf of Multiple Traders were also produced by O.P. Rajvanshi. The CBI found that these documents, purported to be of Multiple Traders, were signed by accused No. 5 (Praveen Agarwal), one of the petitioners before this court. Praveen Agarwal happens to be the husband of Rashmi Agarwal and signed as Ashwini. Allegedly these documents had been fabricated only to be kept on the bank's file to facilitate release of funds by the bank to M/s. Vikram Enterprises. On the basis of these documents the bank released funds to the extent of Rs. 17 lakhs between 26.12.1989 to 28.12.1989 by way of three bank drafts, one of which was for Rs. 2,30,000/- in favour of Multiple Traders and two in favour of the firm of the deceased accused for Rs. 12,65,000/- and for Rs. 2,25,000/- by debiting the amounts to packing credit limit account of M/s. Vikram Enterprises. During investigation, CBI found that signatures of Mohd. Yusuf had actually been forged by O.P.Rajvanshi himself. The hand-writing expert's report also confirmed signature of Ashwini to have been written by the accused No. 5 (Praveen Agarwal). Ashwini on examination by the CBI said that the signatures on the two aforesaid vouchers were not his. Apart from this, accused No. 5 is also found to have been involved in the offence from the very beginning as the loan application of M/s.Vikram Enterprises was filled in by him. Accused No. 6, Neeraj Jain, was the surety to the loan in favour of the M/s .Vikram Enterprises. His complicity in the offence is manifest from the fact that a sum of Rs. 14,64,000/- was received by him from accused No. 3 in cash suggesting that he was not merely a guarantor but an active participant in the offence. A receipt for this amount purported to have been signed by Neeraj Jain has been recovered by the CBI. Thus, according to the story of the CBI the three petitioners before this court, who are accused Nos. 4, 5 & 6 along with other accused, namely, O.P.Rajvanshi and Mohd.Yusuf, conspired to deprive the bank of substantial amount of money. According to the CBI, Mohd.Yusuf was only a scapegoat as his name was used only for the purpose of withdrawing the money.

(2.) The trial court found sufficient material to frame charge against the accused V.KBhutiani, O.P.Rajvanshi, Rashmi Agarwal, Praveen Agarwal and Neeraj Jain and directed framing of charge under Section 31(l)(d) read with Section 13(2) of the Prevention of Corruption Act against V.K.Bhutiani and under Sections 420/468/471 IPC against all the accused. It is this order on charge which is under challenge in these petitions.

(3.) Although various grounds for setting aside the order on charge and dismissing the criminal case have been mentioned in the petition, the main point urged before this court is that a compromise has been arrived at between O.P.Rajvanshi and the bank, under which all the dues of the bank have been repaid and, therefore, there is no substantial dispute between the bank and accused No. 2, who is the principal offender. It is submitted that the dispute is primarily of civil nature and that having been settled the criminal complaint was required to be quashed. The prosecution does not dispute that the dues of the bank have been recovered and that the civil dispute has been settled but opposes the prayer for quashing the charges or for quashing the criminal proceedings.