G. N. Ray, J. - (1.) The appeals are directed against a common Judgment dated December 23, 1992 passed by the Calcutta High Court in Crl. R. No. 859 of 1991 and Crl. R. No. 1203 of 1991. By the impugned Judgment, the High Court allowed the said criminal revision and quashed the impugned FIR Nos. RC-4/87-SIU (X) dated August 14, 1987 and RC-I(S)/89-SIU(X) dated June 12, 1989. The respondent, Duncans Agro Industries Ltd., moved the Calcutta High Court for quashing the said FIRs lodged by the Central Bureau of Investigation.
(2.) It was inter alia alleged in the FIR dated August 14, 1987 that reliable information was received by the complainant, the Superintendent of Police, CBI, SIU (X), New Delhi, that M/s. National Tobacco Company which was a division of M/s. Duncans Agro Industries Ltd. had cash credit facilities on hypothecation of stocks etc. with United Bank of India, Royal Exchange Branch, Calcutta. The ultimate credit facilities limit sanctioned to M/s. Duncans Agro Industries Ltd. in the account of M/s. National Tobacco Company as on January 12, 1984 was to the tune of Rs.17.50 crores subject to the drawing power according to hypothecation of raw material/stocks etc. M/s. Duncans Agro Industries Ltd. was submitting the monthly statements of raw materials held by its division. M/s. National Tobacco Company and such hypothecated raw materials were liable to physical inspection and verification by Bank authorities. In 1984, M/s. Duncans Agro Industries Ltd. made an application before the Calcutta High Court and contained an order from the High Court on August 10, 1984 that National Tobacco Company, a Tobacco Division of Duncans Agro Industries Ltd. would, henceforth function under the name and style of New Tobacco Company Limited which would be a fully owned subsidiary of M/s. Duncans Agro Industries Ltd. and the management of the said newly constituted company would be carried as per the Scheme of Arrangement approved by the High Court. It was further alleged in the said FIR that after the approval of the aforesaid Scheme of Arrangement, M/s. Duncans Agro Industries Limited approached the United Bank on December 3, 1984, to transfer the credit limits standing in their name to M/s. New Tobacco Company Limited and Shri S.K. Ghosh, Chief Officer (Legal) of the United Bank of India gave opinion on January 22, 1985 that the order of the Calcutta High Court was binding on the Bank and consequently the Bank would either continue the advances with transferee Company or to sue transferee Company i.e. M/s. New Tobacco Company Limited, for recovery of its dues. The said Chief Officer of the Bank advised the Bank that the Bank would not be in a position to enforce its right in respect of debts and immovable assets of the transferor company. The Board of Director of United Bank of India resolved that the credit limits of the Bank in respect of National Tobacco Company would be allowed to be transferred in the new account of New Tobacco Company Limited with retrospective effect from April 1, 1984 subject to the condition that the company would furnish an undertaking to create mortgage on all their assets and properties in favour of the Bank and without written consent of the Bank, holding level of percentage share of M/s. Duncans Agro Industries Limited in the National Tobacco Company would not undergo any change. Such resolution was drafted in the meeting of the Board of Directors held on May 30, 1985. The note of Shri B. K. Gosh, Chief Officer (Legal) along with a Board Note dated May 30, 1985 prepared by Shri S.N. Ghoshal, General Manager of the Bank were placed before the Board of Directors. While recommending transfer limits in favour of New Tobacco Company, the Bank officials did not specify whether stocks had been inspected and how the Bank would remain a secured creditor of M/s. Duncans Agro Industries Limited for National Tobacco Company. It was also not mentioned by the officials of the Bank as to whether stocks had been inspected and verified and whether registration of hypothecation charged under S.125 of the Companies Act was valid and effective or whether the bank holding certificate of registration from the Registrar of Companies as provided for by the Companies Act. It was further alleged in the FIR that the Board of Directors of United Bank of India were misled because of the omissions and commissions of the officials of the Bank and the said Board of Directors acted on legal opinion of Shri Ghosh although such opinion was detrimental to the interest of the Bank. In the FIR, it was also alleged that credit limits were got transferred to the New Tobacco Company and M/s. Duncans Agro Industries Limited had managed with the executive and Directors of the Bank to transfer the debts of the said Duncans Agro Industries Limited to Nil without any payment. It was alleged that M/s. Duncans Agro Industries Limited instead of filing a memorandum of complete satisfaction of charge with the Registrar of companies, itself managed with Shri D. K. Sengupta, Asstt. Manager (Advances) to issue a memorandum of complete satisfaction of charge when there had been no repayment whatsoever. It was also alleged in the FIR that the Director of the New Tobacco Company in their letter dated June 26, 1985 addressed to Chief Manager, United Bank of India, Royal Exchange Branch, Calcutta, assured that the Board's resolution would be furnished to the Bank to the effect that without the Bank's written consent, the holding level of percentage of shares in the New Tobacco Company by Duncans Agro Industries Limited would not undergo any change. It was also alleged in the FIR that in order to defraud the Bank and to nullify the assurance given to the Bank, M/s. Duncans Agro Industries Limited entered into a memorandum of understanding with M/s. New Tobacco Company on March 6, 1986 in order to render the very basis of the scheme approved by the High Court infructuous and to complete the delinking of Duncans Agro Industries Limited and New Tobacco Company so that the assets of Duncans Agro Industries Limited would remain out of reach of its creditors. By such process, the United Bank of India was defrauded. It was alleged in the FIR that the stock worth about Rs.12 crores were either fraudulently or dishonestly removed or disposed of without any payment to the Bank although the same were hypothecated with the Bank. In the FIR, it was alleged that Shri G. P. Goenka, Chairman of M/s. Duncans Agro Industries Limited, Shri N. K. Jain, Director, New Tobacco Company Limited and Shri Bhaskar Banerjee, Director, National Tobacco Company along with some Bank Officers, namely Shri G. N. Ghoshal, General Manager, Shri N. Ganguli, Chief Manager, Shri S. K. Ghosh, Chief Officer (Legal), Shri S. K. Hajra, Law Officer, Shri D. K. Sengupta, Assistant Manager (Advances) of United Bank of India and other persons had conspired with a criminal design to defraud the Bank and to deliberately misappropriate the huge stock lying at different places. It was alleged that the said facts had disclosed commission of offences under S.120-B read with Sections 409, 420, 467, 468 and 471, Indian Penal Code.
(3.) In the second FIR dated 12-6-1989 filed by the Superintendent of Police, CBI, SPE, SIU (X), New Delhi against (1) Shri Gauri Prasad Goenka, Director, Duncans Agro Industries Limited, (2) Shri B. Mukherjee, Manager, Tobacco Accounts and Authorised Signatory, Duncans Agro Industries Ltd. and (3) M/s. Duncans Agro Industries Limited it was alleged that during the course of investigation of RC-4/37/SIU (X), CBI, SPE, New Delhi it transferred that Tobacco Division of M/s. Duncans Agro Industries Limited had been enjoying credit facilities against hypothecation of stocks and shares of tobacco in the name of M/s. National Tobacco Company Limited from the United Bank of India, Royal Exchange Branch, Calcutta and Andhra Bank, Kakinada Branch (A.P.) to the tune of 12.25 crores till 1983. The credit limits were enhanced by Reserve Bank of India from 15.25 crores to 17.50 crores on the request of the Company and recommended by United Bank of India. Out of enhanced credit facilities, a sum of Rs.1.58 crores was to be financed by the Canara Bank, Lake Road Branch, Calcutta with the concurrence of United Bank of India and Andhra Bank, Sri G.P. Goenka was one of the Director of Duncans Agro Industries Limited and was having the control over the affairs of the said company. Sri B. Mukherjee was Manager (Accounts) and responsible for preparation of accounts of Tobacco Division and both the said G.P. Goenka and B. Mukherjee were also amongst the authorised signatories for operating current account.;