TMI Blog2009 (4) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of Court and the same should, therefore, be quashed - CBI contended that the criminal case against the appellant was started not only for obtaining loan but also on the ground of criminal conspiracy with the bank officials - HC dismissed the revision application by the appellant. HELD THAT:- It is now a well settled principle of law that in a given case, a civil proceeding and a criminal proceeding can proceed simultaneously. Bank is entitled to recover the amount of loan given to the debtor. If in connection with obtaining the said loan, criminal offences have been committed by the persons accused thereof including the officers of the bank, criminal proceedings would also indisputably be maintainable. When a settlement is arrived at by and between the creditor and the debtor, the offence committed as such does not come to an end. The judgment in the civil proceedings will be admissibile in evidence only for a limited purpose. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the FIR having been investig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/468 and 471 of the Indian Penal Code. The officers of the Bank had also been prosecuted under Sections 13(2) read with Section 13(1)(d) of the Prevention and Corruption Act, 1988. 4. A charge sheet was filed against the appellant and seven others. She was inter alia charged for taking the benefit of overdrafts between the period 8th February, 1993 to 5th March, 1993 without furnishing any security. 5. For the purpose of realisation of the said amount, indisputably the Bank filed an application for recovery thereof before the Debt Recovery Tribunal. It is not in dispute that before the said Tribunal, appellant and the Bank had entered into a settlement pursuant whereto or in furtherance a sum of ₹ 25.51 lacs was paid. 6. It is also not in dispute that for the said purpose, the C.B.I. had returned the title deeds in respect of the property which were kept as security for obtaining the loan from the bank. 7. On or about 22.02.2006 the Appellant filed an application under section 239 of the Code for discharge, inter alia, contending:- i) That having regard to the settlement arrived at between her and the Bank no case for proceeding against her has been out. i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge. Ld. Trial Judge in his impugned order discussed the entire matter and thereafter he was of the opinion that merely because of the fact that the amount in question has already been paid in favour of the bank, that cannot exonerate the accused/petitioner, so far as the charge of conspiracy is concerned. 13. The learned judge distinguished the case of CBI, New Delhi v. Duncans Agro Industries Limited Calcutta, (1996) 5 SCC 591 relied on by the appellant noting that the said case involved quashing of a criminal case which was still under investigation. The judge noted that the in the case before him the application for quashing the criminal proceedings was filed at a stage when the thorough investigation of the case had already been completed and a charge sheet had been filed. The court concluded that the trial judge was justified in rejecting the petition filed under Section 239 of the Code the appellant. 14. Mr. Nagendra Rai, learned senior counsel appearing on behalf of the appellant, would submit : (1) Considering the fact that the Bank had filed a suit to recover money before the DRT and the dispute between the parties having been settled and the amount in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons contained in Section 43 of the Indian Evidence Act. 19. The judgment in the civil proceedings will be admissibile in evidence only for a limited purpose. It is not a case where the parties have entered into a compromise in relation to the criminal charges. In fact, the offence alleged against the accused being an offence against the society and the allegations contained in the first information report having been investigated by the Central Bureau of Investigation, the bank could not have entered into any settlement at all. The CBI has not filed any application for withdrawal of the case. Not only a charge sheet has been filed, charges have also been framed. At the stage of framing charge, the appellant filed an application for discharge. One of the main accused is the husband of the appellant. The complicity of the accused persons was, thus, required to be taken into consideration for the purpose of determining the application for discharge upon taking a realistic view of the matter. While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of trial whether there was any criminal intention on the part of this Lady accd. in this crime. The criminal intention is to be inferred from the evidence to be adduced by the prosecution. Simply because the money has been returned, I cannot shut the mouth of the prosecution from adducing evidence against this accd. Thus, I do not like to pass any order in favour of the accd. The prayer for discharge of accd. No.7, Rumi Dhar stands rejected. Let the case proceed. Fix 7.2.07 for consideration of charge. The sureties must produce all the accd. persons on that date. 22. It has not been argued before us that the learned Judge, in arriving at the said opinion, committed any error of law or the same otherwise suffers from any illegality so as to enable the High Court to interfere with the same matter. A prima facie case has been found out against the appellant. There is no error apparent on the face of the record warranting interference therewith. Strong reliance has been placed by Mr. Rai on a decision of this Court in Central Bureau of Investigation, SPE, SIU(X), New Delhi v.Duncans Agro Industries Ltd., Calcutta [(1996) 5 SCC 591], wherein this Court held : 26. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ownership of the goods still remains with the person who has hypothecated such goods. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit. In a case of pledge, the pledged article belongs to some other person but the same is kept in trust by the pledgee. In the instant case, a floating charge was made on the goods by way of security to cover up credit facility. In our view, in such case for disposing of the goods covering the security against credit facility the offence of criminal breach of trust is not committed. In the facts and circumstances of the case, it, however, appears to us that the Respondents moved the High Court only in 1991 although the first FIR was filed in 1987 and the second was filed in 1989. The CBI, therefore, got sufficient time to complete the investigation for the purpose of framing the charge. This is also not a case where unlike Duncans Agro Industries, no case of criminal breach of trust had b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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