Kailash Kumar Agarwal @ Kailash Kumar Agrawal … v. Union of India through C.B.I
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1719 of 2022 Kailash Kumar Agarwal @ Kailash Kumar Agrawal …… Petitioner Versus Union of India through C.B.I. …….. …… Opp. Party CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI ---------
Legal Reasoning
For the Petitioner : Mr. Mahesh Tewari, Advocate Mr. Abhishek Kumar Dubey, Advocate For the C.B.I. : Mr. Anil Kumar, A.S.G.I. ………….. 07/Dated: 19/12/2023 Heard Mr. Mahesh Tewari, learned counsel for the petitioner and Mr. Anil Kumar, learned A.S.G.I., appearing on behalf of C.B.I. 2. This petition has been filed for quashing the order dated 08.05.2019 passed in R.C. 07 (S)/2015-EOW-R in Misc Criminal Application No. 530 of 2019 whereby discharge application filed by the petitioner has been rejected. Further prayer has been made for quashing the order dated 16.05.2019 whereby charge has been framed against the petitioner. 3. The prosecution case has been instituted on the basis of a complaint letter dated 16.12.2015 by the then Chief Manager, Punjab National Bank, Circle Office, Ranchi alleging therein that Mr. Azaz Khan and Mr. Siraj Khan, both being the partners of M/s TRL, a SSI unit, along with the guarantors viz. Mr. Sahid Khan and Mr. Subhasis Sinha dishonestly applied on 21.09.2010 for cash credit facility of Rs. 3.75 Crores from Punjab National Bank, Bistupur Branch, Jamshedpur for running fabrication of machining and with a dishonest intention to cheat the bank siphoned off the public money and thereby all the aforesaid persons conspired and with prior agreement and meeting of minds dishonestly induced the bank into loaning transaction for grant of loan of Rs.3.75 crores which was sanctioned on 29.09.2010. It has been stated that collateral security in the said account was EM of Sale deed No.3964 dt. 22.07.2010 executed between Mr. Shadab Khan (seller) and Mr. Azaz Khan 2 (purchaser) on total consideration amount of Rs.3,12,33,200/- (three crore twelve lakh thirty three thousand Two hundred only). It is alleged that in the 2nd last page of the said deed the amount has been mentioned as Rs.3,12,332 (three lakhs twelve thousands three hundred and thirty two). It has further been alleged that link title deed No. 3747 between Mr. Shahdab Khan & Mr. Suresh Singh Bhunij & other (vendors being members of Scheduled Tribe) showed that Mr. Shadab Khan purchased the property from previous owner as the proprietor of the firm named M/S M.K. Engineering by virtue of permission for sale granted by D.C. Seraikela in TA Misc Case No. 13/08- 09, order dated 09.05.2008 u/s 49(2) C.N.T. Act. This transfer, being for limited purpose of setting up industry by Mr. Shadab Khan, the transferee is not entitled to use land for any other purpose except for which it has been transferred. It has been alleged that Mr. Shadab Khaninstead of setting up industry sold the land to Mr. Azaz Khan which is not lawful. It has been further alleged that there is no mention about the previous case and grant of sanction by D.C., Seraikela which proves the dishonest intention of the mortgager and other accused persons. That based on the letter of Mr. Vimal Kumar Sharma, S.P., С.В.І. Economic offence wing, Ranchi registered the present case was lodged u/s 120(B) r/w 420/467 / 468 and 471 of the Indian Penal Code. 4. Mr. Mahesh Tewari, learned counsel for the petitioner submits that the petitioner is a practicing lawyer at Civil Court, Jamshedpur. He submits that only allegation against the petitioner is that he gave legal opinion on sale deed No. 3964 on 23.08.2010 in bank’s prescribed format in which he mentioned that Mr. Azaz Khan has purchased the said landed property from Mr. Shadab Khan without perusing the provisions link deed i.e sale deed no. 3747, dated 07.07.2008. He submits that on the basis of that allegation the petitioner who happens to be practicing advocate has been made accused. He submits that C.B.I. submitted chargesheet. He submits that legal opinion has been 3 brought on record by way of supplementary affidavit wherein the petitioner has disclosed that the said land is not mutated as yet and the rent receipt has to be obtained from the Circle Officer. He submits that non-encumbrance certificate has been given by the District Sub-Registrar Office wherein he has reported that the land is free from all encumbrance. He submits that the case of the petitioner is covered in the light of judgment of the Hon’ble Supreme Court in the case of “Central Bureau of Investigation Vs. K. Narayana Rao”(2012) 9 SCC 512. He relied paras 24 and 30 of the sent judgement which is quoted hereinbelow:- “24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence. 30. Therefore, the liability against an opining advocate arises only when the lawyer was an active participant in a plan to defraud the Bank. In the given case, there is no evidence to prove that A-6 was abetting or aiding the original conspirators.” 5. He further submits that in another case on the same allegation the petitioner was implicated in R.C. Case No. 06(S)/2014-EOW-R and the Coordinate Bench of this Court has been pleased to discharge the petitioner in Criminal Revision No. 406 of 2018 by order dated 20.11.2021. He submits that the said order has been challenged by the C.B.I. before the Hon’ble Supreme Court in Special Leave to Appeal (Crl.) No (s) 4710 of 2022 which was dismissed by order dated 07.11.2022. On these grounds he submits that the petitioner may kindly be discharged. 6. The said argument of Mr. Tewari is being resisted by Mr. Anil 4 Kumar, learned A.S.G.I. appearing on behalf of the C.B.I. on the ground that without proper verification the said opinion was given and spot verification was not made by the petitioner and in view of that the C.B.I. found the allegations against the petitioner true and in view of that criminality is made out and the learned court has rightly not discharged the petitioner and framed charge against the petitioner. 7. It is an admitted position that the petitioner is practicing advocate at Civil Court, Jamshedpur. In the chargesheet the following has been alleged:- “ He gave Special Report on Title vide Ref No. PNB/LO/10/100 dated 23.08.2010 in respect of fake property registered vide sale deed no 3964, dated 23:07-2009 in name of Mr. Azaz Khan. He did not verify the immovable property offered as collateral security at the Circle Office. He, in criminal conspiracy with borrowers, gave certificate in Special Report on Title that borrower Mr. Azaz Khan has clear, valid and marketable title over the property and he is competent to create the mortgage. He concealed the fact that the land mentioned under the sale deed no. 3747, dated 07.07.2008 is covered under the C.N.T Act and the registration of aforesaid deed took place by the virtue of permission for sale granted by the Ld. DC Saraikela in T.A. Miscellaneous Case No. 13/2008-09 order dated 09.05.2008 u/s 19 (2) of C. N. T. Act.” In the opinion which has been brought on record by way of 8. supplementary the petitioner has noted as under:- “I hereby certify that Mr. Azaz Khan has a clear, valid and marketable title over the above said property and she is competent to create the mortgage. The valid mortgage can be created by deposit of the following original title deed. The said title deeds are Original and genuine and are not duplicate or fake as observed by me- (Give hereunder details of title deeds which are required to be deposited to create equitable mortgage) 1 Sale Deed No 3964, di 23 07 2010, executed by Mr. Shadab Khan, in favour of Mr Azaz Khan 2 Aforesaid land is to be mutated in the name of Mr Azaz Khan by C.O. Chandil. 3 Rent Receipt to be obtain 4 Non Encumbrances Certificate no. 924/10 dt 18 08 2010 issued from Chaibasa Registry Office & NEC No 534/2010 di 20 08 2010 issued from Saraikela Registry Office I have returned the original title deeds and other documents shown to me to the Bank official against receipt. Encl 1. Special Report 2. Chain of title 3. Search Report K.K. AGARWAL” 8. Looking into the opinion it is crystal clear that the petitioner who happens to be practising advocate has clearly stated that the sale deed is there in favour of one Azaz Khan executed by Mr. Shadab Khan. He has clearly stated that the mutation is yet to be done. He has further stated that rent 5 receipt is to be obtained. He also obtained the non-encumbrance certificate given by the District Sub-Registrar Office wherein report has been given that the land is free from all encumbrance. If such thing was disclosed in the report that mutation is not done and rent receipt is not there the bank was required to restrict itself to proceed further in absence of these documents, as in the opinion itself it was disclosed about the non availability of the mutation order as well as rent receipt. Apart from that there is no allegation against the petitioner who happens to be practising advocate. 9. In the case of “K. Narayana Rao”(supra) the Hon’ble Supreme Court has discussed in detail as to what are the ingredients of the offence of criminal conspiracy and what type of act to attract criminal conspiracy in para 24 as quoted here-in-above. 10. In view of aforesaid facts and looking into the aforesaid judgment of the Hon’ble Supreme Court and observations made therein the role of the petitioner is scrutinized. The Court finds that there is no evidence of abetting or aiding to defraud the bank. What has been recorded in the chargesheet as well as in the opinion as quoted hereinabove it is crystal clear that there is no evidence to conclude that this petitioner has taken active part and there was meeting of minds between this petitioner and other co-accused, this aspect is missing in the chargesheet. 11. In view of above facts, reasons and analysis the order dated 08.05.2019 passed in R.C. 07 (S)/2015-EOW-R whereby discharge application filed by the petitioner has been rejected, is set aside. The petitioner is discharge in R.C. 07 (S)/2015-EOW-R. Further order dated 16.05.2019 whereby charge has been framed against the petitioner is also set aside.
Decision
12. This petition is allowed and disposed of. Pending I.A, if any, stands disposed of. 13. It is made clear that so far other accused persons are 6 concerned, this Court has not interfered with. The learned court shall proceed in accordance with law. Satyarthi/ ( Sanjay Kumar Dwivedi, J.)