The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Satyabrata Acharyya A.B.A. No. 9121 of 2022 .... …. .... Petitioner Versus Union of India through CBI .... .... WITH .... Opposite Party Madhabananda Roy A.B.A. No. 9182 of 2022 .... …. .... Petitioner Versus Union of India through CBI .... .... WITH .... Opposite Party Khitish Kumar Pandya A.B.A. No. 9174 of 2022 .... …. .... Petitioner Versus Union of India through CBI .... .... .... Opposite Party
Legal Reasoning
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioners : Mr. Indrajit Sinha, Advocate Mr. Rishav Kumar, Advocate (In Cr.M.P. No. 9174 of 2022) Mr. Sumant De, Advocate Mr. Rohit Kumar Singh, Advocate Mr. Abhay Prakash, Advocate (In Cr.M.P. No. 9182 & 9121 of 2022) : Mr. P.A.S. Pati, Advocate For the CBI Order No.08 / Dated :02.03.2023 These three anticipatory bail applications is filed on behalf of petitioners, who are apprehending their arrest in connection with Ramgarh R.C. Case No. 06 of 2018 for the offences under Sections 420, 406, 120B of the Indian Penal Code pending in the Court of learned S.D.J.M. cum Special J.M. (CBI), Dhanbad, is pressed into motion. All these anticipatory bail applications emanates from the same case however, the petitioners have taken their independent ground, therefore, they have
Decision
been heard together and will be disposed of by this common order. PROSECUTION CASE Instant case has been registered on the complaint dated 26th June, 2018 submitted by the then Chief Manager, Punjab National Bank, Circle Office, Bokaro against M/s Masuta Producers Company Limited (hereinafter called ‘MPCL’) and 10 others for alleged criminal conspiracy and cheating Punjab National Bank for Rs.604.57 Lakhs fraudulently diverting the loan amount. M/s Masuta Producers Company Limited had obtained working capital loan of Rs.6.25 Crores which turned NPA and after scrutiny of the statement of the account by the Bank, it was transpired that loan amount had been diverted/siphoned off by the following entities:- (i) Maanaveeya Holding & Investment (ii) Development Credit Bank dues repayment (iii) Payment to NABARD (iv) Ajiwika Financial Pvt. Ltd. The persons named by PRADAN silently opted out from Directorship of 2 M/s MPCL and appointed semi-literate women as Company Chairpersons and Directors without Bank’s approval in contravention of terms and conditions of sanctioned loan. M/s MPCL was promoted by PRADAN, an NGO, for taking over existing business of Tasar, production and marketing developed by PRADAN. Entire business activities of PRADAN fashioned as Tasar Silk Micro Enterprise Development incorporating spinning, reeling, weaving and marketing of the products were transferred to M/s MPCL as per agreement along with existing stock, debtors and other deposits. Its Managing Director, Madhabananda Roy and Satyabrata Acharyya were nominated from PRADAN, who were involved in management of M/s MPCL. The main allegation is that M/s MPCL is that it diverted loan amount obtained from PNB for repayment of its earlier loan. Khitish Kumar Pandya floated another company M/s Eco Tasar Silk Private Limited (hereinafter called ‘M/s ETSPL’) and became its Managing Director. The profit making part of the business was handed over to this Company and M/s MPCL was engaged only in Tasar Yarn production. M/s MPCL obtained majority shareholding (76%) of M/s ETSPL. For obtaining loan from Punjab National Bank, M/s ETSPL was shown as subsidiary company of M/s MPCL. After diversion of loan amount of PNB, Satyabrat Acharyya, active Director of M/s MPCL resigned from the post of Director and joined M/s ETSPL. Khitish Kumar Pandya dishonestly and fraudulently issued further new shares of M/s ETSPL to himself at par and became 71.58% shareholder diluting shareholding of M/s MPCL to 25.33% i.e. minority. In furtherance of criminal conspiracy embezzle the loan amount, Smt. Lalmuni Devi, the then Managing Director of M/s MPCL in connivance with Khitish Kumar Pandya unauthorizedly transferred 1.4 Lakhs shares of M/s ETSPL held by M/s MPCL at Rs.25/- per share of fair value of Rs.130.70 per share i.e. at a loss of Rs.1,47,98,000/- to M/s MPCL. The sum and substance of the prosecution case is that for these contraventions, M/s MPCL entered into one time settlement with PNB and the settlement was made at a loss of Rs.3.01 Crore considering the fact that the Company had lost power to repay loan amount and financial resource to pay the loan amount. PETITIONERS’ CASE It is submitted by the learned counsel on behalf of the petitioners that CBI has now completed investigation and charge sheet has been filed and no further purpose will be served by custody of these petitioners. There are two aspects of the matter. First is loan which had been taken and was not paid regarding which final settlement has been arrived between Punjab National Bank and M/s MPCL vide 3 order of Tribunal dated 15.05.2019 and as part of settlement Rs.3.03 Crore was paid to PNB. The Bank had initiated action under SARFESI under which the mortgaged property has been auctioned 22.05 lakhs has been realized as the sale proceeds. With regard to second aspect of the charges of criminality emerging from diversion of fund by M/s MPCL, it is submitted that as per RBI guidelines issued on 1st July, 2009 being RBI/2009-10/84 the Bank should have initiated taken should have opposed at the time of the said diversion. The relevant guidelines reads as under: 4.7.1.3 In case a borrower is found to have diverted finance for the purposes, other than those for which it was granted, banks must recall the amounts so diverted. In addition, banks may charge penal interest on the amount diverted. 4.7.1.4 Where borrowers fail to repay the amounts diverted from cash credit accounts for uses other than for which the limit was sanctioned, banks should reduce the limits to the extent of amount diverted. The above aspects relating to safe guards are only illustrative in nature and not exhaustive. 4.7.1.5 Whenever stocks under hypothecation to cash credit and other loan accounts are found to have been sold but the proceeds thereof not credited to the loan account, such action should normally be treated as a fraud. In such cases, banks may take immediate steps to secure the remaining stock so as to prevent further erosion in the value of the available security as also other action as warranted. Relying on the above guidelines, it is submitted that loan was diverted but it is not stated that any objection was raised by PNB to the diversion of fund. Here with regard to allegation of sale of stocks with regard to allegation of sale of stocks of the Company by Khitish Kumar Pandya at depreciated value, will not make out an offence of fraud since stocks were not hypothecated to the Bank. Reliance has been placed on Bimla Tiwari Versus State of Bihar & Others; SLP (Crl.) Nos.834-835 of 2023 wherein it has been held that the process of criminal law cannot be utilized for arm-twisting and money recovery, particularly while opposing the prayer for bail. STAND OF CBI Learned counsel Mr. P.A.S. Pati submits that diversion of fund, depletion of fund and share of M/s MPCL was all deliberate to embezzle the loan amount. In the letter by Chief Manager, Circle Office, Bokaro to the Sr. Manager of Deoghar Branch dated 05.02.2019 a specific disclaimer has been made that OTS is being considered by the Bank as commercial decision, and shall have no bearing whatsoever on the ongoing criminal case investigation, if any, being carried out by the C.B.I. and summon shall provide as per law. 4 One time settlement by the Bank cannot be a plea or pretext to avoid criminal prosecution for diversion of fund what amounts to misappropriation of the loan amount which was part design and the another Company M/s ETSPL was incorporated and the profit part of the business was diverted under it. Change of constitution in the form of Directors was never brought to the notice of the Bank although it was terms and conditions of sanction of loan. After having considered the rival submissions and the materials on record, it is apparent that investigation is complete, the Bank has entered into one time settlement with M/s MPCL, the shares that were transferred were not pledged with the Bank and there is no case for custodial interrogation. Under the circumstance, the anticipatory bail applications are allowed. Accordingly, the petitioners, above named, are directed to surrender before the learned Trial Court within a period of two weeks and in the event of their arrest or surrender, they shall be released on bail on furnishing bail bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each with two sureties of the like amount each to the satisfaction of the Court below, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure. The petitioners will co-operate in the investigation and will appear under Section 41A Cr.P.C. as and when required and comply with the condition as laid down under Section 438(2) of the Cr.P.C. Anit (Gautam Kumar Choudhary, J.)