Allowed

Central Bureau of Investigation (Cbi) New Delhi v. Vipin Sahni and Another

Allahabad HC20 Jan 2023A482/11426/2021

Case brief

AI extract

What is this about?

This Single Judge Bench allowed the CBI's Section 482 Cr.P.C. petition, setting aside the trial court's discharge order. The court held the discharge was illegal as sufficient evidence existed against the accused regarding false representations to AICTE, directing the trial court to proceed with framing charges.

What did the court decide?

The impugned discharge order dated 31.8.2019 is set aside, and the trial court is directed to proceed with the case expeditiously.

Central Bureau of Investigation (Cbi) New… — Civil Procedure and Limitation | Allahabad HC (2023)

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Court No. - 87

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Case :- Application U/S 482 No.11426 of 2021

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Applicant :- Central Bureau of Investigation (CBI) New Delhi Opposite Party :- Vipin Sahni and another

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Counsel for Applicant :- Sanjay Kumar Yadav, Mr. Gyan Prakash, Sr. Advocate

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Counsel for Opposite Party :- M.N. Singh, M.N. Singh,Nitin Gupta Hon'ble Dinesh Kumar Singh, J.

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Heard Sri Gyan Prakash, learned Senior Advocate and Deputy Solicitor general of India, assisted by Si Sanjay Kumar Yadav for the petitioner and Sri Gopal Swarup Chaturvedi, learned Senior Advocate, assisted by Sri Nitin Gupta and Ms. Somya Chaturvedi, learned Advocates for the opposite parties.

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The present petition under Section 482 Cr.P.C. has been filed by the Central Bureau of Investigation (for short ‘CBI’) against the order dated 31.8.2019 passed by the Special Judicial Magistrate, CBI Court, Ghaziabad in Case No.456 of 2012, arising out of RC-2192011 (E) 0016 (CBI Vs. Vipin Sahni and another), under Section 120-B read with 420 IPC, Police Station CBI, EO-1. New Delhi. Learned trial court vide impugned order has discharged the opposite parties, Vipin Sahni and Kiran Sahni from the said offence.

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A Preliminary Enquiry was registered against the officials of All India Council of Technical Education (for short ‘AICTE’) and others on a reference of Central Vigilance Commission (CVC), New Delhi. Allegation is that M/s Sunshine Educational and Development Society, 28/1, Knowledge Park-III, Greater Noida, U.P. (for short ‘society’) was given approval by AICTE for its three technical institutes in violation of the prescribed guidelines of AICTE for

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consideration other than legal in furtherance of criminal conspiracy with the respondents.

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The preliminary enquiry would reveal that the society applied and got approval from the AICTE in the year 2007 and 2008 for setting up three technical institutes namely (i) Business School of Delhi (PGDM Course); (ii) Business School for Women (PGDM Course) and (iii) International Business School of Delhi (PGDM Course). Address of all the three institutes was found to be at Plot No.28/1, Knowledge Park-III, Greater Noida, U.P. The said plot was already mortgaged by the society on 29.1.2007 with Corporation Bank, Sector-18, Noida, U.P.

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Allegation is that approval was obtained from the AICTE in violation of the AICTE norms as prescribed in the AICTE Approval Process, 2006, which prescribes that the land where any technical institute is to be established, should be free from any kind of mortgage and free from all kinds of encumbrances. First application form was submitted by the society for is establishment of Business School of Delhi. The information furnished by the society about the status of the land on which the institute was to be set up, did not give clear picture.

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The society had got relinquished one acre of land out of about five acres of total land from the bank for establishment of Business School of Delhi and in lieu of this one acre of land, another property was offered to the bank, which was accepted by the bank.

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The investigation would reveal that at the time of making application and getting approval from AICTE in the matter of other two institutes namely, Business School for Women and International Business School of Delhi, the approval was obtained in violation of Rule 4.2 (iii) of the AICTE Approval Process, 2006, which would read as under:-

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“Land where any technical institute was to be established, it should free from any kind of mortgage and free from any encumbrances.”

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For setting up a new technical institute either by the Government or private or introducing a new course in technical education in any institution, approval of the AICTE is a must.

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It was further revealed that the society had also applied in Corporation Bank, SME Branch, Sector-18, Noida, U.P. for a term loan of Rs.575 Lakhs on the basis of the “Equitable Mortgage/First Charge” on assets at Plot No.28/1, Knowledge Park-III, Greater Noida, U.P. Opposite parties namely, Vipin Sahni and Kiran Sahni were guarantors to the proposal of the society. The said term loan was sanctioned on 18.1.2007 and the assets remained mortgaged from 29.1.2007 to 11.1.2012, whereas the applications for establishing/approval regarding the above mentioned three institutes were submitted by the society from March, 2007 to October, 2007. Opposite parties are the main office bearers of the society. Vipin Sahni is the Chairman and his wife Kiran Sahni is the authorised signatory of the society.

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The case of the CBI is that the opposite parties knowingly submitted false undertakings to the AICTE that the land where the institutes were being established had neither been mortgaged nor the same would be mortgaged to any agency in future. By such gross misrepresentation by the opposite parties regarding the status of the land in question, they got approval for establishing three institutes. Charge sheet was submitted on 19.10.2012 under Sections 120-B and with Section 420 IPC and the case was pending for framing of the charge.

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Being aggrieved by the filing of the charge sheet, opposite parties had approached this Court by filing a petition under Section 482 Cr.P.C. bearing No.37398 of 2012 and this Court vide order dated 14.3.2013 quashed the proceedings before the trial court, including the

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FIR in the present case, finding that the ingredients of Section 420 IPC were not made out against the accused, Vipin Sahni and Kiran Sahni. Thereafter, the CBI approached the Supreme Court against the order dated 14.3.2013 of this Court by filing Special Leave Petition (Criminal) and the Supreme Court vide order dated 5.2.2018 set aside the order passed by this Court dated 14.3.2013 and directed the opposite parties to appear before the learned trial court. The trial court was directed to go into the merits of the issues at the stage of framing of the charge. The trial court, thereafter, rejected the discharge application vide order dated 15.2.2019 and ordered for framing of charge.

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The order dated 15.2.2019 passed by the learned trial court was challenged by way of revision before the Special Judge, CBI, Ghaziabad. However, the revisional court observed that there was no direct or circumstantial evidence regarding the criminal conspiracy in the present case and set aside the order passed by the learned trial court vide order dated 29.5.2019. The revisional court also directed the trial court to pass a fresh order in the light of the observations of the revisional court.

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On remand, the learned trial curt has discharged the opposite parties from the offence vide impugned order dated 31.8.2019.

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Learned counsel for the petitioner-CBI submits that vide order dated 15.2.2019 Ms. Renu Yadav, learned Special Judicial Magistrate, CBI, Ghaziabd had observed that there was no ground to discharge the accused-opposite parties from the offence. However, the same court of learned Special Judicial Magistrate, CBI had later on discharged the accused-opposite parties vide impugned order dated 31.8.2019. He further submits that as per the norms prescribed in the AICTE Approval Process, 2006, the land should have been registered in the name of applicant-society/trust on or before the date of submission of the proposal, and free from any encumbrance. The proposed

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institutions would only operate from the registered land or leased land from the Government sources.

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He further submits that the opposite parties got approval for Business School for Women and International Business School of Delhi by submitting false and incorrect information as well as furnishing false sworn affidavits to the AICTE to the effect that the land on which they had applied for approval to establish these two technical institutions, was free from all kinds of encumbrances.

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The investigation would reveal that the land was in fact mortgaged with Corporation Bank, Sector-18, Noida, U.P. It is further submitted that the application for approval in respect of Business School of Delhi was given on 23.3.2007. First hearing of the committee report was 20.6.2007, whereas second hearing of the committee report was 2.7.2007. The letter of intent was issued on 2.7.2007, and after the expert committee visited the premises, approval was granted on 17.8.2007.

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In respect of the Business School for Women, the application is dated 27.10.2017 i.e. after the letter of approval was granted to the Business School of Delhi and the final approval was granted on 29.5.2008. In respect of International Business School of Delhi, the application is dated 28.10.2007, whereas the final letter of approval is dated 19.6.2008.

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During the course of investigation, it has been found that accused Vipin Sahni had furnished false undertaking in the case of all three institutions dishonestly that the land where the society had proposed to establish the institutions, were neither mortgaged nor would be mortgaged in future. Whereas the factual position of the land where these three institutions were to be established, is that the land was not free from mortgage/encumbrances.

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On the basis of false information to AICTE, accused Vipin Sahni got approval for establishment of the aforesaid three institutions and

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he concealed the relevant facts, acted in deceitful manner. Smt. Kiran Sahni had applied to AICTE for establishment of Business School for Women (PGDM Course) as the Chairperson of the society and she also furnished false and incorrect information that the land on which the society had proposed to establish the said institution, was neither mortgaged nor any loan was raised on the total of the land. She along with her husband, Vipin Sahni had furnished guarantee agreement and other documents in the Corporation Bank, Sector-18, Noida, U.P. for a term loan of Rs.575 Lakhs. After investigating the offence and having collected the evidence, charge sheet was filed under Sections 120-B read with Section 420 IPC against the accused.

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At the time of discharge/framing of charge, the Court is required to consider the material and evidence placed on record to see whether prima facie case is made out against the accused in support of the charge and there is strong motive for commission of offence by the accused.

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It is submitted that considering the facts and circumstances of the case, evidence collected during the course of investigation, there is not only prima facie case, but a strong case is made out against the accused-opposite parties for commission of offence and the order impugned is wholly illegal, against the law and unsustainable.

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On the other hand, Sri Gopal Swarup Chaturvedi, learned Senior Advocate for the opposite parties has submitted that when application for setting up the Business School for Women was made by the society to the AICTE on 27.10.2007, the correct information was given that the land where the said institution was proposed to set up was mortgaged for loans. Therefore, information was already before the AICTE that the land in question was mortgaged and there was no misrepresentation. He has supported the impugned order and submitted that the impugned order being final order, petition under Section 482 Cr.P.C. would not be maintainable. He, therefore, prays

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that this petition lacks merit and substance and the same may be dismissed.

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I have considered the submissions advanced on behalf of the learned counsel for the parties and perused the record.

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The nomenclature of the petition and mentioning the wrong nature of particulars of the jurisdiction are not material facts. This Court can always treat the petition filed under Section 482 Cr.P.C. as revision and, therefore, I do not find much substance in the submission of learned Senior Counsel for the opposite parties that since the order impugned is a final order, therefore, petition under Section 482 Cr.P.C. is not maintainable. I also do not find substance in the submission of learned counsel for the opposite parties that in one of the applications the information was given that the land was mortgaged, therefore, if the incorrect information was given in other applications by the accused, no offence would be made out against them. The opposite parties deliberately withheld the relevant information knowing fully well that under the relevant regulation if the land was encumbered in any manner, the approval for setting up the institution would have been declined.

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The CBI has collected enough evidence to show the strong case against the accused-opposite parties. The trial court without adverting to the evidence collected during the course of investigation discharged them on the ground that there was no sufficient evidence available against the accused for framing of the charge. The order impugned is against the law inasmuch as the CBI has collected the sufficient evidence for framing of the charge against the accused-opposite parties.

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Considering the aforesaid facts and circumstances of the case and submission of learned counsel for the parties, I am of the view that the impugned order is unsustainable in law and, therefore, the same is liable to be set aside.

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Thus, the petition is allowed and the impugned order dated 31.8.2019 passed by the Special Judicial Magistrate, CBI Court, Ghaziabad in Case No.456 of 2012, arising out of RC-2192011 (E) 0016 (CBI Vs. Vipin Sahni and another), under Section 120-B read with 420 IPC, Police Station CBI, EO-1. New Delhi, is hereby set aside. The trial court is directed to proceed with the case expeditiously in accordance with law.

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(Dinesh Kumar Singh, J.)

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Order Date :- 20.1.2023 Rao/-

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Digitally signed by :- CHEBROLU SRINIVASA RAO High Court of Judicature at Allahabad

Central Bureau of Investigation (Cbi) New Delhi v. Vipin Sahni and Another

Case brief

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Central Bureau of Investigation (Cbi) New Delhi v. Vipin Sahni and Another

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