GOPAKUMAR B NAIR Vs. CBI/SPE AND ORS

JUDGEMENT

(1.) Petitioner is the second accused in C.C. No. 13 of 2005 of the Court of learned Special Judge for CBI cases, Ernakulam (for short, "the Special Judge") for offences punishable under Sections 420, 471 and 120B of the Indian Penal Code (for short, "the IPC") and Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act (for short, "the PC Act"). The first accused was Manager of the Indian Overseas Bank, Thiruvananthapuram branch (for short, "the Bank") and the third accused, its approved valuer (I am told that the third accused is no more). The charge in short is that Petitioner/second accused hatched up a conspiracy with accused 1 and 3 and obtained loan from the Bank on the strength of forged documents. As per the final report submitted by the CBI, it is alleged that Petitioner availed a loan of 5,00,000/- from the Bank for purchase of a car on the strength of a forged agreement for sale. The further allegation is that Petitioner who then was undergoing study with the SAE Technology College (for short, "the College") availed an educational loan of 4,00,000/- from the Bank and produced two forged receipts in the Bank claiming that the same were obtained from the said College (for a total sum of 1,60,000/-) while the actual payment made by Petitioner in the College was only 47,500/-). The third allegation is that a fraudulent certificate of valuation (prepared by the third accused) showing inflated value of property of Petitioner offered as collateral security was made use for the purpose of securing a cash credit facility. After the case was registered, Petitioner wanted to make use of the one time settlement scheme with the Bank and pay the entire amount due to it. Since the Bank was reluctant in that regard since the CBI had registered the case against Petitioner and others, Petitioner approached this Court with W.P. (C).No. 7422 of 2005 and obtained a direction to the Bank to receive the amount subject to certain riders. Accordingly Petitioner paid the entire amount due to the Bank. Request of Petitioner is to quash proceeding against him with two grounds; that allegations do not constitute any offence as alleged, and; secondly, the entire amount is paid to the Bank and hence proceeding need not continue. Learned Counsel has placed reliance on the decision of the Supreme Court in Nikhil Merchant v. Central Bureau of Investigation, 2008 3 KerLT 769. Learned Standing Counsel for the CBI has contended that notwithstanding that Petitioner has discharged liability of the Bank and as such, no civil liability existed, the CBI may be allowed to proceed with the case which involved forgery of documents and its dishonest use. According to the learned Standing Counsel, a public sector undertaking has been cheated by Petitioner with the connivance of its own then Manager and approved valuer making use of the forged documents. It is contended that in such situation, interfering with the prosecution would affect the society at large and would give a wrong message to wrong doers. It is also submitted by learned Counsel that decision referred supra has been explained in a later decision in Sushil Suri v. CBI and Anr.

(2.) So far as first allegation regarding making use of alleged forged agreement for sale to avail loan for purchase of a car is concerned, it is not disputed that Petitioner has availed loan of 5,00,000/- from the Bank and according to the Petitioners, he paid 5,25,000/- for the purchase of the car. In the disputed agreement for sale, value of the vehicle was shown as 6,65,000/- (since as per the scheme of the Bank, it could advance only 80% of the total value of the car). The disputed agreement was sent to the expert for opinion and the expert after comparison of signature in the disputed agreement with the specimen signature of the person who is said to have executed that document has come to the conclusion that the signature in the disputed agreement is a forgery. That opinion of the expert prima facie indicate that the document made use of by the Petitioner to avail loan for the purchase of car is a forged document coming within the definition of Sections 464 of the IPC. I do not forget that Petitioner has an explanation how he got possession of the said document. That is a defence which Petitioner has in the course of trial. Petitioner has also an argument that in so far as there is no charge under Section 468 of the IPC and in the absence of any dishonest intention, Petitioner cannot be made liable for offence under Section 471 of the IPC which I will advert to a little later.

(3.) The second allegation is regarding alleged making use of forged receipts in connection with the educational loan. It is not disputed that loan of 4,00,000/- was sanctioned to the Petitioner in connection with his education. It is also not disputed that Petitioner produced two receipts for a total sum of 1,60,000/- allegedly issued from the College before the Bank and got release of the said sum of 1,60,000/-. Learned Counsel has invited my attention to the letter dated May 16, 2003 issued from the College where it is stated that the said receipts are absolutely authentic. But in the course of investigation witness No. 11, Controller of Accounts of the College came with a statement (said to be given to the Investigating Officer) referring to the letter dated May 16, 2003 that though it was stated in the said letter that the receipts are authentic, subsequent examination of records (of the College) revealed that receipts for 1,60,000/- are fictitious. The witness is also seen to have stated that as against the sum of 1,60,000/- mentioned in the said receipts, the amount actually paid by Petitioner on the relevant dates was only 47,500/-. It is further stated by the witness that the receipts are not issued from the College (details of the statement are given in page 36 of the paper book) and it was got printed elsewhere. In short, going by the said statement of the witness, the impugned receipts were not issued from the College wherefrom Petitioner purports to have obtained it and a much inflated sum than what was actually paid by Petitioner in the College is mentioned in the said receipts. It is not disputed before me that on the strength of the said receipts, Petitioner obtained release of 1,60,000/- from the Bank.