THANJAI CHEZIAN Vs. STATE

JUDGEMENT

(1.) Both these revision petitions arise out of the common order dated 22.12.2015 passed in Crl.M.P.No.816 of 2015 in C.C.No.4859 of 2009 and Crl.M.P.No.820 of 2015 in C.C.No.5127 of 2009 on the file of the Additional Chief Metropolitan Magistrate Court, Chennai, in and by which, the discharge petitions filed by the revision petitioner under Section 239 Cr.P.C., had been dismissed.

(2.) In C.C.No.4859 of 2009, the revision petitioner is arrayed as A3 and he has been arrayed as A5 in C.C.No.5127 of 2009. In both the cases, charge sheets have been filed against the petitioner (A3-A5) and other accused persons. In C.C.No.4859 of 2009, the charge sheet has been filed against the petitioner/A3 for the offences under Sections 120-B read with 419, 420, 467, 468, 471 and 109 IPC and substantive offences thereof. In C.C.No.5127 of 2009, the charge sheet has been filed against the petitioner/A5 for the offences under Sections 109 read with 419, 420, 467 and 468 IPC.

(3.) The case of the prosecution in Crl.R.C.No.40 of 2016 (C.C.No.5127 of 2009) against the petitioner/A5 and others is that the case was registered on a complaint, dated 11.11.2008 preferred by Shri.Veerapandian, the then Regional Manager, Region- II, State Bank of India, Administrative Unit-I, Chennai. A1 -- M/s.Palpap Ichinichi Software International Limited (a registered Company) and A2 / P.Senthil Kumar, who is the Managing Director and CEO of A1-Company, entered into criminal conspiracy with A3-Vaidyanathan, A4-Sasi Kumar @ Kumar and other unknown persons in Chennai during 2005-2006 to cheat the State Bank of India (for short, 'the SBI'), Vivekananda House Branch, Chennai and in furtherance of the said conspiracy, A2 got 161 loan accounts opened under personal loan scheme in the SBI in the names of fictitious persons showing them as employees of A2's Company and got the loan sanctioned in batches during the period from August 2005 to February 2006. A1-Company gave corporate guarantee and A2 gave personal guarantee to the said loans of reported employees. In furtherance of the conspiracy, A2, with dishonest and fraudulent intention, got prepared and submitted fabricated salary certificates, identity cards and Form-16 in the name of the loanees. Subsequently, though the loans were sanctioned in the names of the said fictitious employees and credited to the individual accounts, A2 has received the proceeds of the loans and no repayment was made, thereby, he caused wrongful loss of Rs.1,24,72,126/- to the Bank and corresponding wrongful gain to the accused persons. It is further gathered from the investigation that A-1 Company is a registered Company and had its registered office in Chennai and the Company is developing softwares used for educational institutions. A2 Senthil Kumar is the Managing Director and also the Chairman and Executive Officer of the Company. Smt.Papathi, the mother of A2 and Smt.Banumathi, the sister of A2 are the Directors of the Company. Investigation revealed that the accused Company employed around 60 persons and some of them were deputed to various educational institutions throughout Tamil Nadu to install and maintain the programmes developed by the Company and the others were working at the Company's office in Chennai. The investigation further revealed that A2, during the year 2005, approached the SBI, Vivekananda House Branch, Chennai along with A3 and A4, private financial consultants known to him, for obtaining personal loans to the employees of A1 Company. A2 submitted the proposal seeking personal loan for his employees after consulting one N.Chandran, the then Branch Manager, SBI, Vivekananda House Branch, Chennai. It was further revealed during the course of investigation that initially, A2 applied personal loans in the names of five employees, viz., T.L.Lakshmanan, Administrative Manager, S.Siva Kumar, Software Engineer, D.Murali, Vice-President (Operations), M.V.Satya Sai Prasad, Business Development Manager and G.Kandavel, Senior Software Engineer and assured them that the Company would give Corporate Guarantee and the repayments would be made by the Company. Based on the assurance given by A2, they agreed for the proposal and they were asked to sign in the blank account opening forms and personal loan application forms provided by N.Chandran. Further, as per the instructions of A2, the financial consultants A3 and A4 filled in wrong personal particulars of these employees with fictitious addresses and incorrect father's name to their imagination, but correctly wrote the names and affixed the photographs of the persons. The five employees were sanctioned Rs.2 lakhs each by N.Chandran and the loan amounts were withdrawn by these employees and handed over to A2 as per his advise. It was further revealed that A2 subsequently availed 156 personal loans in the names of fictitious employees in batches, as the Company was not in a good position and the loan was availed only for misusing the same in the name of the Company and these fictitious persons were arranged by A2 through his friend A5-Thanjai Chezian (the revision petitioner herein), an Advocate from Purasawalkam, Chennai and through A3 and A4, showing them as employees of his Company (A1), with a clear intention to cheat the Bank. Further, only few persons were produced initially by A5 before A2 and for others, he provided only photographs and not produced them physically; likewise, A3 and A4 have provided only the photographs of the persons agreed to arrange by them. The said N.Chandran accepted the loan application forms without insisting for the personal appearance of the loanees as per the request made by A2 that most of his employees are Implementation Engineers and would be visiting various Colleges in Tamil Nadu. Further, with the photographs provided by A5 (the revision petitioner herein), A3 and A4, the A2 arranged more copies through his employees Lakshmanan and Kanniappan from the shops at Anna Nagar and pasted in the account opening and the loan application forms. Further, as requested by A2, the A5, A3 and A4 arranged signatures of the fictitious persons arranged by them in the blank forms of the SBI. Thus, it is alleged that A2 to A5, along with the approvers T.L.Lakshmanan, M.Kanniappan, S.Gajendran, S.Naveen Chander, R.Vinoth Kumar, M.Vinoth Kumar, M.N.Subraman and the Bank Manager N.Chandran, entered into criminal conspiracy at Chennai, during 2005-2006 to cheat the SBI in the matter of sanctioning personal loans by way of fabricated documents like identity cards, salary certificates, etc., of the loanees, by giving false address and other particulars and providing false guarantee to the fictitious persons who impersonated as employees of A1-Company and availed 156 personal loans from the SBI, Vivekananda House Branch, Chennai, with a dishonest intention to cheat the Bank. A2 also availed personal loan of Rs.2 lakhs each in the name of five of his employees assuring that the Company would repay the loan and misappropriated the amount. After fraudulently obtaining personal loans to the tune of Rs.166 lakhs, the accused persons dishonestly cheated the Bank by not repaying the loan amount, thereby, caused wrongful loss of Rs.124 lakhs to the SBI and corresponding wrongful gain to themselves. Hence, the petitioner/A5 along with others, were charge-sheeted in C.C.No.5127 of 2009 in Crime No.11/E/2008-CBI/EOW/Chennai, for the alleged offences under Sections 120-B read with 403, 419, 420, 467, 468, 471 and 109 IPC and substantive offences thereof and the revision petitioner (A5) is charge-sheeted for the alleged offences under Section 109 read with 419, 420, 467 and 468 IPC.