IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.3815/2017 BETWEEN:
MR. SANTOSH KUMAR BAGLA AGED ABOUT 58 YEARS S/O MR. LAKSHMI NARAYAN BAGLA RESIDING AT M-49, OLD DLF COLONY NEAR SECTOR 14, GURGAON HARAYANA-122 001 ... PETITIONER (BY SRI BALARAM M.L. ADV.,) AND:
THE CENTRAL BUREAU OF INVESTIGATION CBI COMPLEX, BELLARY ROAD BENGALURU -560 020 REPRESENTED BY INSPECTOR OF POLICE ANTI-CORRUPTION BRANCH BENGALURU ... RESPONDENT (BY SRI P. PRASANNA KUMAR, ADV.,) THIS CRIMINAL PETITION IS FILED U/S.482 CR.P.C, PRAYING TO SET ASIDE THE ORDER DATED 04.02.2017 IN SPL.C.C.NO.243/2002 BY XLVII A.C.C., AND S.J., AND SPL.JUDGE, CBI, BANGALORE, AGAINST THE PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Shri P. Prasanna Kumar, learned standing counsel for CBI is present before the Court and accepts notice on behalf of the respondent-CBI and has vehemently contended that the impugned order passed by trial court is just and reasonable and has supported the same, whereunder, prayer for discharge sought for by petitioner has been rejected by the learned Trial Judge.
2. Petitioner is accused No.3 in Special Criminal Case No.243/2002 has sought for setting aside order dated 04.02.2017 passed by the XLVII Additional City Civil & Sessions Judge & Special Judge for C.B.I. Cases (CCH-48), Bengaluru.
3. Perusal of the case papers would indicate that prosecution has alleged that accused No.1 and 2 entered into a Criminal Conspiracy with accused No.3, who was the Chairman and Managing Director of accused No.6; accused No.4 was the Director of accused No.6 and Managing Director of accused No.7 and accused No.5 was the Director of accused No.8 to cheat the Bank in the matter of sanction and disbursal of credit facility to the tune of `1.10 Crores in violation of banking norms in favour of accused No.6 and in furtherance of said Criminal Conspiracy, it has been alleged that accused No.3 to 8 have committed the following illegalities:
Submitted forged Confidential Opinions purported to have been issued by various Banks by suppressing availment of various credit facilities;
Offered unauthorisedly constructed temporary shed i.e., southern side of Flat No.402 as security;
Suppressed about unauthorized construction of the said shed and also prior mortgages in favour of Mashreq Bank, Mumbai and IDBI Bank, Mumbai, created by the Accused No.5 on the whole building, wherein Flat No.402 is situated; and Diverted the credit facility amount to various sister concerns and finally through those firms, siphoned the entire funds.
Learned Trial Judge after considering elaborate arguments advanced by the respective learned advocates by impugned order has rejected the prayer for discharge and ordered for framing of charge against accused persons and insofar as present petitioner being accused No.3, it has been ordered to frame charge for the offence punishable under Section 471 of IPC and against accused No.1 to 8 (including the petitioner, who is accused No.3) for the offence punishable under Section 120-B read with Section 420 of IPC and Section 13(2) read with Section 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 and also for the substantive offence punishable under Section 420 of IPC by dismissing I.A.No.3 filed by the present petitioner i.e., accused No.3.
4. While considering an application for discharge, the Trial Judge opines or considers that charge made against the accused is groundless, he would discharge the accused. In other words, there must be a ground for presuming that the accused had committed an offence to proceed to frame the charge, which means that material placed by the prosecution is sufficient to make out a prima facie case against the accused. If no prima facie material regarding the commission of the offence is made out, it would call for discharge of the accused. At the stage of framing of the charge, the Court is required to evaluate the material and documents placed by the prosecution with regard to ascertainment as to the facts emerging there from would taken at its face value would disclose the existence of ingredients for constituting the offence and if it is so this Court would not embark upon conducting a mini trial or the probable defence that the accused would rely upon during trial. However, trial court would not accept or rely upon all that material the prosecution may place on record as a gospel truth and if such material does not appeal to logic or it would not stand the test of broad probabilities of the case, question of framing charge against the accused may not arise at all. Thus, the test of prima facie case would depend upon the facts and circumstances of each case. There cannot be a defined formula with mathematical decision to define the prima facie case. If the material placed before the Court discloses grave suspicion against the accused, Court would be justified in framing the charge against accused and proceeding with the trial.
5. In the background of aforestated position of law, when the order of learned Trial Judge is perused, it would disclose that he has examined the records including the statements of witnesses and has opined that statements of witnesses like CWs.2; 4 to 7 and 19 to 21 would disclose that accused No.3, 4 and 6 with the assistance of accused No.5, 7 and 8 had submitted a false, forged confidential opinion relating to liabilities of accused No.6 and its sister concerns in various Banks and had also furnished false and forged Valuation Certificate relating to Flat No.402 to the Bank as a genuine document for the purposes of availing credit facility from the Bank. The plea of accused No.3 that he was not even a Director has also been considered by the learned Trial Judge and at paragraph No.17 of the impugned order, it has been noticed by the Trial Judge that litigations and proceedings referred to in MOU relate to civil litigation only and not in respect of criminal liability of accused No.3. It is in this background by a detailed and elaborate order, learned Trial Judge has rightly rejected the prayer for discharge.
6. In that view of the matter, this Court is of the considered view that it would not be a good ground to entertain this petition. Hence, Criminal Petition stands dismissed.
In view of dismissal of the petition, IA.No.1/2017 for stay does not survive for consideration and same stands disposed of.
Shri P. Prasanna Kumar, learned standing counsel for the respondent-CBI, is permitted to file his memo of appearance within four weeks from today.
Sd/- JUDGE cp*