TMI Blog2011 (5) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts, material for adjudication of the issue, arising in this appeal, are as follows: A source information was received by the Central Bureau of Investigation (for short the CBI ) that in the year 1999 two Chartered Accountants, namely, Sanjay Malik and Bipin Kakkar, had dishonestly and fraudulently opened/caused to be opened several fictitious accounts in some banks in the names of certain concerns, with an intention and object to facilitate the diversion of bank finance availed by various public limited companies for the purpose other than what had been stated in the loan application. On the basis of the said information, a First Information Report (FIR) was registered against the afore-mentioned Company and its directors. The relevant portion of the FIR reads thus: That in June 1999, S/Sh. K.B. Suri, Sushil Suri and Smt. Kanta Suri, the Executive Directors of M/s. Morepen Labs Ltd. having their office at 416-418, Antriksh Bhawan (sic), 22, K.G. Marg, New Delhi, conspired together and in furtherance of the said criminal conspiracy they, dishonestly and fraudulently made an application to Punjab Sind Bank, Connaught Place, New Delhi for Hire-Purchase Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le at Bank of Rajasthan, Kamla Nagar Branch, Delhi and encashed. No suppliers of machineries and equipments were made by M/s. B.K. Chemi-Plant Industries and M/s. Flexon Hose and Engineering Co. Pvt. Ltd. to M/s. Morepen Labs. Ltd. and bank finance availed by the company for the said purpose were again used for some undisclosed non-business purposes. The above facts and circumstances disclose the commission of offences u/s 120-B, IPC r/w 420, 409, 468 and 471 IPC and substantive offences thereunder against Chartered Accountants S/Sh. Sanjay Malik and Bipin Kakkar and S/Sh. K.B. Suri, Sushil Suri and Smt. Kanta Suri, Executive Directors of M/s. Morepen Labs. Ltd., New Delhi and other unknown persons. Therefore, a regular case is registered and entrusted to Sh. A.K. Singh, Dy. SP/SIU-VII, for investigation. 4. The Company is a public limited company, engaged in the manufacturing of pharmaceutical products. In order to run its affairs, from time to time, the Company had been raising funds from different sources, like loans from different banks/financial institutions as also from the open market by way of Rs.public issues', Rs.rights issues' and Rs.bonds&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated petition under Section 482 of the Cr.P.C., praying for quashing of the Chargesheet mainly on the ground that once the Company had repaid the loan to PSB along with interest, no loss was caused to PSB and, therefore, they had not committed any offence for which Chargesheet had been filed. In support of the said plea, decision of this Court in Nikhil Merchant Vs. Central Bureau of Investigation Anr. (2008) 9 SCC 677) was pressed into service. On behalf of the CBI, it was pleaded that the appellant and others, by forging documents/vouchers to show purchase of machinery, a pre- condition for release of instalments of loan, had not only duped PSB but also defrauded the revenue by claiming depreciation on non-existent machinery and in the process cheated the public exchequer of crores of rupees. 7. As already stated, the High Court has come to the conclusion that merely because the Company and its directors had repaid the loan to PSB they could not be exonerated of the offences committed by forging/fabricating the documents with the intention of defrauding the bank as well as the exchequer. The High Court was of the view that the ratio of the decision of this Court in Rumi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against framing of charge against the accused in that case had also been dismissed, which is not the case here. 9.Per contra, Mr. H.P. Rawal, learned Additional Solicitor General of India, appearing for the CBI, supporting the impugned judgment, strenuously urged that having regard to the nature of the allegations against the appellant, based on the evidence collected during the course of investigations, the High Court has rightly refused to exercise its jurisdiction under Section 482 of the Cr.P.C. Relying on a decision of this Court in Central Bureau of Investigation Vs. A. Ravishankar Prasad Ors. (2009) 6 SCC 351), learned counsel contended that overwhelming material is available on record which clearly shows that the Company and its directors, including the appellant, and other persons had conspired to forge, fabricate and use documents in order to avail loan from the bank and had opened or caused to be opened fictitious bank accounts in the names of the suppliers to encash the pay orders/demand drafts issued by PSB and played fraud with PSB as also on the public exchequer by claiming depreciation on the machinery, which was never purchased. It was argued that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court to quash criminal proceedings against the accused. These are: (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction; (ii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 13.In Dinesh Dutt Joshi Vs. State of Rajasthan Anr. (2001) 8 SCC 570), while explaining the object and purpose of Section 482 of the Cr.P.C., this Court had observed thus: 6.......The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers demand drafts in favour of the Company and (iii) the accused opened six fictitious accounts in the banks (four accounts in Bank of Rajasthan and two in Bank of Madura) to encash the pay orders/bank drafts issued by PSB in favour of the suppliers of machines, thereby directly rotating back the loan amount to the borrower from these fictitious accounts, and in the process committed a systematic fraud on the Bank (PSB) and obtained pecuniary advantage for themselves. Precise details of all the fictitious accounts as also the further flow of money realised on encashment of demand drafts/pay orders have been incorporated in the Chargesheet. Additionally, by allegedly claiming depreciation on the new machinery, which was never purchased, on the basis of forged invoices etc.; the accused cheated the public exchequer as well. 17. As afore-stated, in the Chargesheet, the accused are alleged to have committed offences punishable under Section 120B, read with Sections 420, 409, 468 and 471 IPC. We feel that at this preliminary stage of proceedings, it would neither be desirable nor proper to return a final finding as to whether the essential ingredients of the said Sections are s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 467, 468, 471 IPC read with Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The allegation under the Chargesheet was that the accused persons had conspired with each other in fraudulently diverting the funds of the Bank. Offence alleging forgery was also included in the Chargesheet. In the meantime, the suit for recovery of money filed by the Bank against the Company, to which the appellant in that case was also a party, was disposed of on a written compromise arrived at between the parties. Consequent upon the compromise of the suit and having regard to the contents of clause 11 of the consent terms, which stipulated that neither party had any claim against the other and parties were withdrawing all allegations and counter allegations made against each other, the said appellant filed an application for discharge. The application was rejected by the trial court. A petition preferred under Section 482 of the Cr.P.C. was also dismissed by the High Court. In further appeal to this Court, accepting the contention of the appellant that this Court could transcend the limitation im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be quashed. Similarly, in B.S. Joshi Ors. (supra), which has been relied upon in Nikhil Merchant (supra), the question for consideration was whether the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or Complaint for offences which are not compoundable under Section 320 of the Cr.P.C. It was held that Section 320 cannot limit or affect the powers of the High Court under Section 482 of the Cr.P.C., a well settled proposition of law. We are of the opinion that Nikhil Merchant (supra) as also the other two judgments relied upon on behalf of the appellant are clearly distinguishable on facts. It needs little emphasis that even one additional or different fact may make a world of difference between the conclusions in two cases and blindly placing reliance on a decision is never proper. It is trite that while applying ratio, the Court may not pick out a word or sentence from the judgment divorced from the context in which the said question arose for consideration. (See: Zee Telefilms Ltd. Anr. Vs. Union of India Anr. (2005) 4 SCC 649). In this regard, the following words of Lord Denning, quoted in Haryana Financial Corporation Anr. Vs. Jagdamb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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