State Th. CBI vs Fayaz Ahmed Ganai

The instant Criminal Revision has been preferred against order dated 01.02.2011 passed by the learned Additional Sessions Judge, Anti Corruption, Jammu in File No.48/200/Challan whereby the trial court has discharged the respondent from the charges leveled against him.

The prosecution story before the trial court was that a case was registered on the basis of written complaint of Sh. Vijay Gupta, Sr. Manager Central Bank of India, Talab Tillo Branch, Jammu. One Alamiyat Ahmed Ganai (accused No.2) had applied for loan under CENT BUY SCHEME in Central Bank of India Talab Tillo Branch Jammu. As per the application form the loanee had requested to sanction a personal consumer loan for purchasing a Scorpio Car costing Rs.7,62,401/-. The said application was signed by applicant (accused No.2) Alamiyat Ahmed Ganai and his father Fayaz Ahmed Ganai (accused No.3) signed it as co-applicant. Alamiyat Ahmed Ganai and co-applicant Fayaz Ahmed Ganai have also submitted copies of their respective income tax returns for the assessment year 2001-02, 2002-03 and 2003-04. Proforma invoice No.5690 dated 31.01.2004 issued by M/s Chowdhary Motors Pvt. Ltd., Jammu in favour of Alamiyat Ahmed Ganai, the cost of the Scorpio Turbo 2.6 GLX 4WD is shown as Rs.7,62,401/-. Receipt No.4112 dated 10.02.2004 for Rs.1.5 lacs and receipt No.4124 dated 12.02.2004 for Rs.35,000/-against booking of Scorpio Turbo 2.6 GLX 4WD are available in the loan file.

Accused No.1 Rajinder Koul, the then Sr. Manager Central Bank of India, Talab Tillo Branch, Jammu sanctioned a loan of Rs.5 lacs on 13.02.2004 in favour of accused No.2 Alamiyat Ahmed Ganai as sanctioning authority. In column No.10 meant for security held, it is mentioned "Hyp. of Vehicle", the maker of vehicle has however not been mentioned but in Column 3 of process note, the cost of vehicle has been shown as Rs.7,62,401/-by the borrower. The amount of Rs.1.85 lac is shown as advanced payment made by the borrower, and out of the remaining amount of Rs. 5,77,401/-, a sum of Rs.77,401/- was arranged by debiting SB A/C of the said borrower maintained in the said bank. For the remaining amount of Rs.5/ lacs, loan was sanctioned under CENT BUY SCHEME. Thereafter a DD for Rs.5,77,401/- alongwith letter addressed to M/S Choudhary Motors Pvt. Ltd., was sent to the dealer without mentioning the make of vehicle to be delivered to Alamiyat Ahmed Ganai, loanee. Rs.1.85 lacs deposited with M/S Choudhary Motors Pvt. Ltd., by the borrower and Rs.77,401/- withdrawn from the SB account of the borrower was treated as margin money.

On 13.02.2004 Fayaz Ahmed Ganai (accused No.3) father of the applicant (accused No.2) visited office of M/S Choudhary Motors Pvt. Ltd., and deposited a banker's cheque issued by Central Bank of India, Talab Tillo Branch, Jammu for Rs.5,77,401/-favoring M/s Choudhary Motors Pvt. Ltd. Fayaz Ahmed Ganai showed his interest in purchasing vehicle make Bolero. A letter received from the bank by M/s Choudhary Motors Pvt. Ltd does not indicate the make of the vehicle being financed by the bank. It is simply mentioned in the letter that the bank has financed the vehicle to Alamiyat Ahmed Ganai and requested to issue sale letter with hypothecation of Central Bank of India. This letter is signed by Rajinder Koul. On the request of Fayaz Ahmed Ganai, (father of borrower), the amount of Rs.1.85 lacs, deposited with M/S Choudhary Motors Pvt. Ltd on 10.02.2004 and 12.02.2004 towards the booking of the Scorpio vehicle was refunded by M/s Choudhary Motors Pvt. Ltd on 12.02.2004 to Fayaz Ahmed Ganai. Thus on 13.02.2004, the date on which the loan was sanctioned and the banker's cheque was issued by Rajinder Koul, no amount was available to M/s Choudhary Motors Pvt. Ltd Jammu for delivery of any vehicle to Alamiyat Ahmed Ganai. The amount of Rs.5,77,401/- sent to M/S Choudhary Motors Pvt. Ltd Jammu by Rajinder Koul through a banker's Cheque for delivery of vehicle to Alamiyat Ahmad Ganai was not sufficient to purchase a vehicle make Scorpio. The cost of Bolero vehicle was only Rs.5,31,002/-on 13.02.2004 whereas the amount financed by the bank was Rs.5,77,401/. The difference amount was reported by M/S Choudhary Motors Pvt. Ltd Jammu to have adjusted towards the cost of the accessories provided on the Bolero vehicle delivered to Alamiyat Ahmed Ganai. As per the loan documents available in the bank the finance was made for the purchase of Scorpio and the quotation was also submitted in the bank by the loanee for the purchase of Scorpio. The receipts of Rs.l.50 lac and Rs.35,000 issued by M/s Choudhary Motors Pvt. Ltd Jammu towards the booking of Scorpio were also submitted by the loanee in the bank. The booking amount is treated as marginal money of the loan and the remaining amount was financed by the bank towards the cost of the vehicle. Accused Rajinder Koul deliberately did not mention the make of the vehicle being financed by the bank, as such, the loanee has withdrawn the amount so deposited by him from M/s Choudhary Motors Pvt. Ltd Jammu and instead of Scorpio vehicle the loanee had purchased Bolero vehicle for much less value. The borrower neither deposited 84 post dated cheques for EMI @ Rs. 9000/- per month nor obtained by Rajinder Koul before sanctioning and disbursing the loan. The copies of the Income tax returns in respect of borrower Alamiyat Ahmed Ganai and co-applicant/guarantor Fayaz Ahmed Ganai for the financial years 2001-02, 2002-03 and 2003-04 available in the loan file were got verified from Income Tax Department Jammu. As per letter No.CID/J&K/2007-08/643 dated 08.05.2007 of Rajesh Raina Income Tax Officer Technical, office of Commissioner Income Tax Jammu, the said receipts Nos' of the said returns did not pertain to them as per their records, as the said numbers were allotted to some other assessee. In this way it is clear that loanee and co-applicant/guarantor Fayaz Ahmed Ganai has been in connivance with each other managed to get the said loan sanctioned on the basis of fictitious documents. The outstanding balance showing on 10.05.2007 is of Rs.4,69,458/-.

I have heard counsel for petitioner as well counsel for respondent, Fayaz Ahmed, at length.

Before proceeding a head the relevant para of order of discharge passed by court below in favour of respondent on 01.02.2011 reads as under:-

"So far accused No. 3 Fayaz Ahmed Ganai is concerned, as per the record in the file he is guarantor and I think to become a guarantor for son is not an offence, moreover he is not loanee beneficiary. So far taking of loan for car is concerned, any person after completing formalities/conditions as required by the bank can take loan from the bank and if father of accused No.2 has stood as guarantor, I think Fayaz Ahmed Ganai (accused No. 3) was having no criminal intention at that time. Moreover, if loanee does not pay the loan amount back to the bank, it is for the bank to recover the amount by filing civil suit for recovery. Had the bank filed Civil suit for recovering of the loan amount against guarantor Fayaz Ahmed, then perhaps the situation would have been different. But by filing a criminal case against the guarantor, no loan amount can be recovered. Moreover whatsoever amount the loanee has taken as loan from the bank it is to be paid by the loanee.

Therefore for the above discussion it is clear that accused Fayaz Ahmed was not having any criminal conspiracy with other accused persons at the time when he stood as Guarantor for accused No.2. There is no direct or indirect evidence against accused No.3 namely Fayaz Ahmed Ganai to connect the accused with the commission of the offence under section 5(2) r/w 5(l) (d) J&K P.C. Act and 120-B r/w 420, 468, 471 RPC.

Therefore for the above mentioned grounds and in the interest of justice, prima-facie no offence under section 5(2) r/w 5(1)(d) J&K P.C.Act and 120-B r/w 420, 468, 471 RPC is made out against the accused Fayaz Ahmed, meaning thereby the accused No. 3 is discharged.

The charge sheets have been framed against the accused No.1 and 2 accordingly. The contents of the charge have been read over and explained to the accused, they pleaded not guilty and claimed to be tried. Therefore prosecution has been directed to lead evidence on the next date of hearing. Put up for prosecution evidence on 28.02.2011.

SD/

Additional Sessions Judge Anticorruption."

I have given my thoughtful consideration to whole aspects of the matter.

In order to appreciate the contentions of the parties, it may be noticed that Section 268 and 269 of Cr.P.C. relate to the trial of cases before the Court of Sessions. It is to be seen whether prima facie case has been made out for framing charge or not. It is apt to quote sections 268 and 269 of Cr.P.C. as under: -

"268 Discharge:

If upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceedings against the accused, he shall discharge the accused and record his reasons for so doing.

269 Framing of charge

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -

a) is not exclusively triable by the Court of Sessions, he may frame charge against the accused and by order, transfer the case to the Chief Judicial Magistrate or any Judicial Magistrate competent to try the case, and thereupon the Chief Judicial Magistrate or any Judicial Magistrate to whom a case may have been transferred shall try the offence in accordance with the procedure provided for the trial of warrant cases instituted on police report,

b) is exclusively triable by the Court , he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

A conjoint reading of sections 268 and 269 of Cr.P.C. would reveal that upon consideration of the record of the case and documents submitted, if judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and if after such consideration and hearing, judge is of the opinion that there is ground for presuming that accused has committed offence, he may frame charges against the accused.

At the initial stage, if there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The Judge while considering the question of framing the charges under section 269 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.

In present case, after going through the record of court below and evidence collected during investigation, it is fact that respondent stood as guarantor in favour of his son Alamiyat Ahmed Ganai (accused No.2) who had applied for loan under CENT BUY SCHEME in Central Bank of India, Talab Tillo Branch, Jammu. As per the application form, the loanee had requested the Bank to sanction a personal consumer loan for purchasing a Scorpio Car costing Rs.7,62,401/-. The said application has been signed by applicant (accused No.2) Alamiyat Ahmed Ganai as well as Fayaz Ahmed-respondent herein. But all other requisite documents required for loan have been signed by Alamiyat Ahmed Ganai as loanee; Performa invoice issued by Chowdhary Motors Pvt. Ltd of Scorpio dated 31.1.2004 bears name of Alamiyat Ahmed Ganai; even various receipts issued by Chowdhary Motors Pvt. Ltd bear name of accused Alamiyat Ahmed Ganai; only Letter of guaranty bears signatures of respondent. The argument of counsel for petitioner that PW I/O Parshant Sharma has concluded in investigation that Income Tax certificates of respondent for the years 2001-02, 2002-03 and 2003-04 submitted before Bank were on some other name, is not a ground to frame the charge, because I/O has not shown on whose name these certificates stand. The liability of guarantor is civil in nature and his liability is co-extensive with that of principal debtor in terms of section 128 of Contract Act.

The Supreme Court in the case of P. Vijayan vs. State of Kerala and Anr. reported in 2010 CRI. L.J. 1427 has held as under:-

"10. If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."

In view of the above, this revision petition is dismissed as it is without any merit and order of court below does not suffer from any infirmity of facts and law.