Criminal Revision Application filed by accused No.1 challenging rejection of his discharge application. The HC held prima-facie material exists and dismissed the revision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
SNS
IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.22 OF 2010
Sunil C. Ketkar ...Applicant. v/s. The State ...Respondents.
Mr. S.G.Gokhale , adv. For the Applicant. Mr. P.S.Hingorani, APP For the Respondent No.1/State.
Shri Sandeep K. Shinde a/w Shri A.S.Gadkari, advs. For the Respondent/CBI.
CORAM : J.H. BHATIA, J. DATED : MARCH 9, 2011.
P.C.
1 Heard. This application is filed by the accused no.1 in
Special case no.87 of 2006 challenging the rejection of his application for discharge.
2 It appears that applicant was running business in the name and style of Phoenix (India). He himself and his wife were partners in the business. Accused no.2 Mini Shah was independently carrying on business in her separate partnership firm known as M/s. Monark Enterprises. Accused nos.1 and 2 worked out a scheme for development of their business, whereby the accused no.2 Mini Shah was to be admitted as partner in Phoenix (India) while, the applicant, i.e., accused no.1 Sunil Ketkar was to be admitted as partner in M/s Monark
2
Enterprises. Accused no.2 Mini Shah had secured certain government land on lease.
3 Prosecution case is that accused no.3, who was an officer of the Bank of Baroda and accused no.4 P.S.Shenoy, who was Chairman cum Managing Director of the Bank of Baroda had conspired with the other accused persons. As a result of conspiracy, accused nos.1 and 2 approached Bank of Baroda for sanction of loan against the Government land, which was shown to be brought by the accused no.2 as her contribution in the capital of M/s. Phoenix (India). Initially the valuation report indicated its value at Rs.5.70 crores but thereafter it was revised to Rs.7.60 crores and on that basis a loan of Rs.6.34 crores was sanctioned by Bank of Baroda in favour of Phoenix (India). Not only this Phoenix (India) and Monark Enterprise also approached the Bank of Baroda for credit facilities. A term loan for an amount of Rs.5,63,20,000/-was sanctioned in favour of the M/s Monark Enterprise by Bank of Baroda. Bank of Baroda also paid an amount of 2 crores to Bank of Maharashtra and Rs.95.50 lac to Punjab & Sindh Bank for taking over the accounts of M/s Phoenix (India), out of Foreign Currency Bill Purchase of Rs.10 crores sanctioned to M/s Phoenix (India). After taking over the account of M/s Phoenix (India), a fresh liability of M/s Phoenix (India) towards
3
Bank of Baroda was created for Rs.190.00 lac due to release of packing credit to the borrower. It is alleged that accused nos.1 and 2 did not submit their export bills and related documents to the bank in respect of the packing credit facilities available to them with malafide intention to cheat and to commit breach of trust against Bank of Baroda. Thus, taking into consideration all these amounts, liability of M/s Phoenix (India) towards Bank of Baroda stood at Rs.9.64 crore on 30.12.2002. It is contended that as per joint audit report, the present applicant had shown stock as on 31st March, 2001 valued at 1.69 crore while in fact it was negative balance of Rs.1 crore. There was real loss of Rs.2.7 crores but that was also not shown in the balance-sheet. Incorrect stock statement and balance-sheet were shown to the Bank of Baroda and Bank of Maharashtra and they were misled in granting credit facilities. The land, which was apparently shown to be contribution by the accused no.2 Mini Shah as her share in the capital of Phoenix (India) was infact the government land held on lease basis and, therefore, said land could not be mortgaged with the bank nor could be transferred to Phoenix (India) for obtaining loan against that land and other credit facilities. The letter heads and account books of the accused no.1 were used. When the accounts were segregated and as a result, the liability of M/s Monark
4
Enterprise was segregated from liability of M/s. Phoenix (India), accused nos.2,3 and 4 had transferred certain amount from the account of Phoenix (India) to the account of M/s Monark Enterprise to clear its loan. In view of these facts, the learned counsel for the applicant contends that real conspiracy was between the accused nos.2,3 and 4 and accused no.1 was only a victim and, therefore, he should be discharged.
4 After careful perusal of the impugned order passed by the learned Special Judge as well as the order passed by the Special Judge while rejecting application of the accused no.2 for discharge, I find that there is prima-facie material to proceed against all the accused persons. At this stage, Court has only to find out whether there is prima-facie case for framing the charge. Court is not expected to minutely analyse the evidence to come to conclusion that on the basis of the material collected by the prosecution, case must end in conviction. It is possible that after the trial, the Court may come to conclusion that the accused no. 1 was not involved in a conspiracy or could not held guilty for the charges under Prevention of Corruption Act but at this stage, it is impossible to come to such a conclusion. Therefore, I am not inclined to interfere in the impugned order rejecting application for discharge.
5
5
In the result, application stands rejected.
(J.H. BHATIA,J.)
2 issues framed by the court
Whether sufficient prima-facie material exists to reject the accused application for discharge without minutely analysing evidence.
Whether the High Court should interfere with the Special Judge's order rejecting the application for discharge.
Sunil C. Ketkar
The State
J.H. BHATIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
