Amar Saran - (1.) I have heard Sri P. N. Misra, learned senior counsel and Sri S. K. Gupta, learned counsel for the applicant, Sri Gopal Swaroop Chaturvedi, learned senior counsel assisted by Sri Samit Gopal for the opposite party No. 2, Smt. Nalini Prasad widow of Brigadier Naresh Prasad and the learned A.G.A., for the State and perused the application and affidavit filed in support thereof. After hearing parties, I reserved the judgment, which I proceed to deliver by means of the present order.
(2.) THE applicant is presently Assistant General Manager, Bank of Baroda, Zonal Inspection Centre at Pune. At the time of the alleged offence, he was posted as Chief Manager, Bank of Baroda, S.S.I. Branch, Sector-18, N.O.I.D.A. An F.I.R. was filed by the opposite party No. 2 on 12.5.2003 at 7.30 p.m. at P. S. Swaroop Nagar, Kanpur alleging that the opposite party No. 2's pre-deceased husband Brigadier Naresh Prasad was the owner of the property flat No. 505, 53-54 Govardhan, Nehru Place, New Delhi, which had been inherited by the opposite party No. 2 alongwith Somesh Prasad and Sundresh Prasad, the two pre-deceased sons of the opposite party No. 2. Opposite party No. 2 had let out the said flat to I.F.F.C.O. One pre-deceased son of the opposite party No. 2 Somesh Prasad was the owner of another property situate at W48, Sector 2, N.O.I.D.A. 201-301 where he was running an export unit under the title of Messrs Magnum Telilink. Somesh Prasad had taken a loan in 1988-89 from the U.P.F.C. and had mortgaged his property W48, Sector 2, N.O.I.D.A. with the U.P.F.C. for the aforesaid loan. One co-accused Sajida Hussain was an employee in Somesh Prasad's said firm. There was another firm in the name of M/s. Dast-Al Exports, where Sajida Hussain and her two brothers Salimuddin Multani and Mohd. Hanifuddin Ibrahim were on the Directorial Board. The unit Dast-AI Exports had taken a loan from the Bank of Baroda S.S.I. Branch Sector 18, N.O.I.D.A. As security for the loan an equitable mortgage of the aforementioned property belonging to opposite party No. 2 and her two sons situate at Nehru Place, New Delhi was executed with the creditor Bank of Baroda on 15.4.1996. In the said loan, the opposite party No. 2 was shown as the guarantor, whereas her claim was that she never stood as the guarantor for the loan. It was alleged that in order to grab the opposite party No. 2's late son Somesh Prasad's commercial unit Messrs Magnum Telilink, Sajida Hussain, who was an employee had started stealing the papers of the firm. For the loan that was taken from Bank of Baroda, Somesh Prasad's property Messrs Magnum Telilink situate at W48, Sector 2, N.O.I.D.A. and the Flat No. 505 situate at Govardhan Building, Nehru Place, New Delhi, which the opposite party No. 2 had inherited from her pre-deceased husband alongwith her sons, were mortgaged with the Bank in a collusive, and fraudulent manner and fraudulently opposite party No. 2 was shown as a guarantor of the deed when she claimed that she never stood as a guarantor for the same. Some illicit relations were also alleged between the applicant and Sajida Hussain and it was alleged that a conspiracy was entered into by Sajida Hussain, her two brothers and the applicant Branch Manager, who manufactured forged papers including the forged document containing the signatures of opposite party No. 2, which she denied to have executed. It was further pointed out that the property at W48 Sector 2, N.O.I.D.A., which is also said to have been given as collateral security to the Bank of Baroda for a loan, had already been mortgaged as collateral security with U.P.F.C. for an earlier loan taken from the U.P.F.C. It is further claimed that after April, 2002 when the tenant I.F.F.C.O. stopped paying the rent of the property situate at Nehru Place to the opposite party No. 2 and had started depositing the same with the Debt Recovery Tribunal, then the opposite party No. 2 came to know of the alleged fraud committed by the aforesaid accused of Messrs Dast-Al Exports in collusion with the Branch Manager of the S.S.I. Branch of Bank of Baroda, Sector 18, N.O.I.D.A. (the applicant) and the fact that the said property had been given as collateral security with the Bank and of raising of a loan for the said firm, by executing forged documents showing the complainant O.P. No. 2 as a guarantor. The said loans were never paid back to the Bank. The Bank had filed a case before the Debt Recovery Tribunal, as the original debtor the proprietor of Messrs Dast-Al Exports Altaf Hussain, his wife Sajida Hussain and two brothers of Sajida Hussain were not traceable, hence the Bank got the two properties attached and started proceedings for recovery and auction of the same before the Debts Recovery Tribunal, which was at the final stages. The said proceedings before the Tribunal were against the principles of natural justice. The said fraud had been committed by the proprietors of Messrs Dast-Al Exports in collusion with the applicant in an illegal manner. The loan had been obtained by affixing forged signatures of the opposite party No. 2 manipulating documents relating to the property of late Somesh Prasad and by obtaining the loan in an unwarranted manner. After recording the statement of the informant and the witnesses under Section 161, Cr. P.C., a charge-sheet had been submitted and cognizance had been taken by the C.J.M. Gautam Budh Nagar on 3.12.2005 against the applicants and others under Sections 406, 420, 468 and 471, I.P.C., P. S. Sector 20, Case No. 10337 of 2005.
(3.) IT was argued by learned counsel for the applicant that the applicant who was the Chief Manager of the Sector 18, N.O.I.D.A., S.S.I. Branch of the Bank of Baroda at the material time and a senior bank officer, had been implicated in a mala fide manner by means of an F.I.R. on concocted allegations only because recovery/auction proceedings had been initiated by the Bank before the Debt Recovery Tribunal (hereafter D.R.T.) for realisation of the loan amount from the borrowers as a counter blast and defence to the said claim. IT has been falsely stated by the complainant that she was not in the know of the proceedings before the D.R.T. till the rent from the flat in Nehru Place which was let out to I.F.F.C.O. was attached on the basis that a legal award had been passed on 3.6.99 by the D.R.T. upholding the claim of the applicant's bank. There is no credible legal evidence for summoning the applicant for this offence. The I.O. has not even cared to take the admitted signatures of the complainant and to get the same compared with the signatures on the disputed document by a hand writing expert to reach a prima facie conclusion of forgery of the complainant's signatures on the said document and has chosen to accept the ipse dixit of the complainant in an unwarranted manner. IT has further been contended that the statements of the witnesses contained in the charge-sheet, which have been compositely annexed as Annexure-18, and include the statements of the subsequent manager Sri Rajiv Sharma, Smt. Kumbh Gautam, Chief Manager, U.P.F.C., Sector 6, N.O.I.D.A. and statement of Smt. Rashmi Prasad the wife of late Somesh Prasad do not disclose any incriminatory circumstance against the applicant. On the other hand, it was urged by Sri G. S. Chaturvedi learned senior counsel for the O.P. No. 2, that the scope for challenging an F.I.R. and charge-sheet if Commission of a cognizable offence is disclosed falls in a very narrow compass and there can be no evaluation of the evidence at this stage. It was not very material if the handwriting on the impugned document was not got analysed by an expert and little reason exists for disbelieving the claim of the complainant that her signatures had been forged in the guarantee document. Further it was submitted that it would not be proper for this Court to record a finding that the criminal proceedings were initiated in a mala fide manner.;