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TMI Blog2019 (9) TMI 1633X X X X Extracts X X X X X X X X Extracts X X X X ..... that he is brother of accused B.L. Agrawal in the case concerned. It is alleged that this name was fraudulently inserted in the bank records showing him as the tenant of the locker in place of said B.L. Agrawal with the help of Mr. Antomy Samy to exonerate accused B.L. Agrawal from the liability of Rs. 15 lakhs, which was found inside the bank locker. One of the joint holders of the said locker namely Shri R.D. Goyal has expired but the fact of his death was not informed to the bank. 4. The charge-sheet has been filed before the Court of Special Magistrate(C.B.I.), Raipur, which has been registered as Criminal Case No.1125/2011 in which trial Court has framed charges against the petitioner on 5.12.2012 for trial in offences 120B, 419, 466 & 477A of IPC. This order was challenged in Revisional Court before the Court of Special Judge(C.B.I.), Raipur in Criminal Revision No.6/2013 and that was decided on 11.6.2013 by which the revision filed was dismissed. There had been no substance for framing charge under Section against the petitioner under Section 120B, 419, 466 & 477A of IPC. 5. It is submitted by the counsel for petitioner that the rent receipts were received in the name of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st co-accused B.L. Agrawal, he has been exonerated by the appellate authority. Therefore, the registration of case against the petitioner is the abuse of process of court and abuse of process of law. Infact it is a case of evasion of income tax, therefore, the petitioner has no criminal liability for manipulating locker records entry. The petitioner has mentioned that the amount found in the locker belonged to his sister-in-law Mrs. Mamta Agrawal i.e. wife of his elder brother Ashok Kumar Agrawal. Said Mamta Agrawal has also admitted in her statement that the cash Rs. 15 lakhs found in the locker belonged to her and the said amount was withdrawn from her account maintained in Union Bank of India on 24.8.2009 through cheques. Therefore, there is no evidence to connect the petitioner with the crime alleged. There is no evidence regarding conspiracy that the amount found in locker was connected with coaccused B.L. Agrawal. Reliance has been placed on the judgment of Supreme Court in Satish Mehra vs State of NCIT reported in (2012) 13 SCC 614. It is submitted that the High Court has inherent powers to give relief in such cases and that the order of framing of charge affects the person& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner be quashed. 9. Learned counsel for CBI submits that according to prosecution case the bank locker No.240A of Raipur Main Branch of Bank of Baroda originally stood in the name of coaccused Mr. B.L. Agrawal. By manipulating the bank documents, petitioner was shown to be tenant of the said account and therefore, the same account was being operated by the petitioner in connivance with co-accused B.L. Agrawal. The confessional statement given by Antony Samy very clearly involves the petitioner in the offence of conspiracy for commission of offences of cheating, forgery and impersonation. The change made in the bank documents in favor of the petitioner is illegal. The CBI has jurisdiction to investigate as well as prosecute the case. The case has been fully investigated and on the basis of the incriminating evidence that has been found in this case in the investigation, charge-sheet has been filed against the petitioner. Hence, no exceptional case is made out in favor of the petitioner for exercise of extraordinary jurisdiction by this Court. 10. In reply, it is submitted by the counsel for petitioner that there is no evidence present in the charge-sheet to make out any offence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rections of the superior Bank Officers for which reason the said Mr. B.L. Agrawal and this petitioner were obliged. Thereafter , there is evidence of recovery of Rs. 15 lakhs cash from the same bank locker which was in the name of this petitioner. 14.The offences for which petitioner has been charge-sheeted are quoted herein below:- 120B- Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall,where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both. 419- Punishment for cheating by personation.-Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 466-Forgery of record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present in the charge-sheet, there is no such evidence and no such admission that any document was forged to incorporate the petitioner as the holder of the locker. On the contrary, there is evidence that anti dated application was filed in the bank and bank Officer obliged the client by making entries as desired by the parties. Further, the charge under Section 466 of IPC can be made only against the public servant or any person acting on his behalf. The petitioner is not the bank Officer. The evidence that the petitioner gave his signature for the operation of bank locker is not an act of forgery. Therefore, there is no evidence to substantiate the charge under Section 466 of IPC. 17. Similarly the person who can be prosecuted for commission of offence under Section 477A of IPC must be a clerk, officer or servant or employed or acting in that capacity and any private person cannot be prosecuted for the same. The prosecution case is this, that the bank documents have been manipulated and on the basis of admission made by the Bank Officer Mr. Antony Samy, it is clear that he received the application for deletion and addition of names and acted accordingly, as was prayed in the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. The ratio which can be culled out from these decisions can broadly be stated as follows :- (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii)Decision in adjudication proceeding is not necessary before initiating criminal prosecution; (iii)Adjudication proceeding and criminal proceeding are independent in nature to each other; (iv)The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v) Adjudication proceeding by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi)The finding in the adjudication proceeding in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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