1. The present Criminal Revision Application u/s.397 of the Code of Criminal Procedure has been preferred by the applicant herein – original accused No.17 - fake loanee, in whose account even the amount is alleged to have been credited out of disbursed amount, to quash and set aside the impugned judgment and order dated 29/09/2012 passed by Learned Special Judge, CBI Court No.2 at Mirzapur, Ahmedabad below Exh186 in CBI Special Case No.30 of 2004, by which, learned Special Judge has rejected the application submitted by the applicant herein – original accused No.17, which was submitted to discharge him for the offence punishable under Sections 409, 420, 467, 468 & 471 of the Indian Penal Code as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act,1988.
2. Facts leading to the present Criminal Revision Application, in nutshell, are as under:
It appears that the complaint/FIR came to be filed with Central Bureau of Investigation, Bank Securities and Fraud Cell, Mumbai against the Bank Officers of the State Bank of India with respect to disbursement of loans of Rs.1.22 Crores, alleged to have been disbursed by the concerned Bank Officers in favour of accused persons and others inclusive of the applicant alleging that they are fake loanee and the aforesaid amount of loan was disbursed by creating forged documents. Therefore, it was alleged that in all, 21 accused persons inclusive of the applicant, have committed an offence punishable Sections 409, 420, 467, 468 & 471 of the Indian Penal Code as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. That the said FIR, which was given RC No.6(E)2003 was investigated by the Central Bureau of Investigation, Bank Securities and Fraud Cell, Mumbai and on conclusion of the investigation as it was found that the case is made out against the accused persons. Investigating Officer has filed charge-sheet against in all 21 accused persons as far as back on 29/12/2004 before Special (C.B.I.) Court at Mirzapur, Ahmedabad and the same is registered as Special Criminal Case No.30 of 2004. In the charge-sheet, the applicant is shown as accused No.17.
Thereafter, after a period of 7 years of filing the charge-sheet before Special (C.B.I.) Court, the applicant herein – original accused No.17 has submitted application below Exh.186 requesting learned Special Judge to discharge him for the offences, for which, he has been charge-sheeted. The said application has been rejected by learned Special (C.B.I.) Court by impugned order. Hence, against the impugned order passed by learned Special (C.B.I.) Court in rejecting the discharge application submitted by the applicant herein – original accused No.17, the applicant herein has preferred the present Revision Application.
3. Mr.R.Z.Kazi, learned advocate appearing on behalf of the applicant herein – original accused No.17 has vehemently submitted that the present case is based on documentary evidences only. It is submitted that though some of the offences as alleged, are for the offences punishable under Sections 409, 420, 467, 468 & 471 of the Indian Penal Code also, not a single document has been sent to Handwriting Expert. It is further submitted that there might be prima facie case against the applicant herein – original accused No.17. However, the said prima facie case may be with respect to civil liability and not criminal liability. It is further submitted that the main accused has absconded and, therefore, trial is not proceeded further and even charge is not framed. It is submitted that the Bank has subsequently filed Suit against the applicant for recovery of the amount.
By making above submissions, it is requested to allow the present Criminal Revision Application. No other submissions have been made.
4. The present revision application is opposed by Mr.Y.N.Ravani, learned advocate appearing on behalf of respondent No.1 – Central Bureau of Investigation. It is submitted that charge-sheet is filed in the year 2004 and the present application has been submitted by the applicant after a period of seven years. For whatever reason, after period of seven years, charge is not yet framed. It is submitted that it has come on record that out of aforesaid disbursed amount, some amount has gone in the Account of the applicant and, therefore, there is a prima facie case found against the applicant herein and, therefore, it is requested to dismiss the present Criminal Revision Application.
5. Ms.C.M.Shah, learned Additional Public Prosecutor appearing on behalf of the respondent No.2- State has supported the case of Mr.Y.N.Ravani, learned advocate appearing on behalf of the Central Bureau of Investigation and has requested to dismiss the present Criminal Revision Application.
6. Heard learned advocates appearing on behalf of the respective parties at length and considered and perused the impugned order passed by learned Special Court.
7. At the outset, it is required to be noted that the applicant herein – original accused No.17 along with other accused persons have been charge-sheeted by the Investigating Officer for the offence punishable under Sections 409, 420, 467, 468 & 471 of the Indian Penal Code as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and charge-sheet has been filed in the year 2004 and still the charge is not framed. Even after seven years, proceedings are at the stage of framing of the charge only.
8. It is the case on behalf of the applicant in support of his prayer to discharge him for the offence punishable under Sections 409, 420, 467, 468 & 471 of the Indian Penal Code as well as Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, that there may be civil liability and there may be a prima facie case of civil liability and not criminal liability. The aforesaid cannot be accepted by this Court at this stage. It is required to be noted that a huge amount of Rs.1.22 Crores was disbursed by the Bank Officers of the State Bank of India by opening number of fake loan accounts and it has come on record that out of aforesaid disbursed amount, some amount had gone in the Account of the applicant. Under the circumstances at present, it cannot be said that there will be civil liability only and not criminal liability. It appears that prima facie case is made out against the applicant for the offence, for which, he has been charge- sheeted and the applicant is to be tried and prosecuted further. In the facts and circumstances of the case, it cannot be said that learned Special Court has committed any error and/or illegality in rejecting discharge application submitted by the applicant. It is required to be noted that learned Judge has considered the discharge application u/s.227 of the Code of Criminal Procedure and as per settled proposition of law while considering discharge application, learned Judge is not required to consider whether on the basis of material on record, the accused are likely to be convicted or not, but it is required to be considered Whether there is a prima facie case against the accused, for which, he is to be tried or not. Under the circumstances, no illegality has been committed by learned Special Judge in rejecting the discharge application submitted by the applicant herein.
9. In view of the above and for the reasons stated hereinabove, the present Criminal Revision Application fails and the same deserves to be dismissed and is accordingly dismissed.
[M.R.SHAH,J] *dipti