KHAZIR MOHAMMAD TUNDA Vs. CENTRAL BUREAU OF INVESTIGATION

JUDGEMENT

(1.) The present petition has been filed under section 561-A Cr.P.C. for quashing of FIR bearing No. 00420044A0001 of 2004 registered by the Central Bureau of Investigation (CBI), respondent No. 1 herein and proceedings pending before the learned Special Judge Anti-corruption, Srinagar Kashmir(hereinafter to be referred as the trial court) as well as order dated 21.06.2007 by virtue of which the charges for commission of offences under sections 120-B, 419, 420, 409, 467, 468, 471 and 477-A RPC and 5(1)(c)(d) read with 5(2) of the Jammu and Kashmir Prevention of Corruption Act, 2006 (for short the Act) have been framed against the petitioner and respondent No. 2. The petitioner has questioned the FIR (supra) as well as proceedings including the order for framing of charges by the trial court, inter alia on the grounds that the petitioner being an employee of Bombay Mercantile Co-operative Bank Limited (hereinafter to be referred to as the Bank) was not a public servant as such could not have been prosecuted for the commission of offences under Prevention of corruption Act. Secondly, the transactions as stated in the final report give rise to a civil liability and thirdly, that the CBI had conducted an enquiry without any authority and the enquiry conducted by the CBI and the subsequent proceedings conducted by the court are without jurisdiction.

(2.) Before appreciating the contentions of the petitioner, it is appropriate to have the brief resume of the prosecution story. A written report was lodged by Sh. Ashraf Ali Abbas, the then Branch Manager of Bombay Mercantile Co-operative Bank Limited, M. A. Road, Srinagar on 13.01.2004 alleging that the petitioner during his posting as Branch Manager of the Bank from June, 1990 to 25th July, 2001, had fraudulently opened bank accounts in the names of fictitious persons and allowed unauthorized excessive withdrawals causing enormous loss to the bank to the extent of more than one crore rupees.

(3.) The allegation against the petitioner is that he opened fixed cum recurring account No. 8339 for an amount of Rs. 8.00 lakhs for a period of 24 months on 22.01.1997 in the name of a fictitious person, namely, Nazir Ahmad Bhat by having signed himself as Nazir in account opening form. Apart from, he himself introduced/admitted his own signatures as that of Nazir Ahmad in the capacity of the manager of the Bank. A bearer cheque No. 2349518 dated 16.01.1997 for an amount of Rs. 9.00 lacs favouring Nazir Ahmad Bhat drawn on J&K Bank Branch Dalgate, Srinagar, arranged by the brother of the petitioner with M/s Trading Company Nishat was lodged in the bank for clearing on 20.01.1997 by the petitioner and used by him to open the above mentioned account for Rs. 8.00 lacs. After the said cheque was divided into two parts, one for Rs. 8.00 lakhs utilized for FCR and the balance amount of Rs. 1.00 lakh was en-cashed by utilizing the account of one Nafis Ahmed.