JOYMALYA BAGCHI,J. - (1.) Proceeding being C.B.I. G.R. Case No. SPL10/08 pending before the learned 1st Special Judge, Alipore arising out of R.C. 52/05 dated 17th October, 2005 under Sections 120B/420 of the Indian Penal Code read with Sections 13(2)/13(1)(d) of the Prevention of Corruption Act has been assailed on the ground of defect in the order of sanction. The factual matrix of the case is to the effect that the petitioner was posted as the Chief Officer (Credit), UCO Bank, Regional Office, Kolkata at the relevant point of time. The prosecution in the instant case was launched on the basis of a written complaint filed by one Shri P. K. Das, General Manager, U.CO. Bank, Regional Office, Kolkata. In conclusion of the investigation in the instant case a charge sheet was filed inter alia, against the petitioner and other accused persons under Section 120B read with Section 420 of the Indian Penal Code and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The prosecution case as alleged in the charge sheet relating to the petitioner is as follows: "One Sumanta Sen, Proprietor of M/s Medico Electronics, opened an account with UCO Bank, Kankurgachi Branch, Kolkata in the name of his firm M/s. Medico Electronics on 22.11.2001 making false declaration in the account opening form that his firm was engaged in the trade of medical equipment although during investigation it was found that the firm was not registered with the Sales Tax Authorities and was not doing any trade but was controlled by A.K. Bayen, Managing Director of M/s. Nivedita Diagnostic Research and Hospital Pvt. Ltd./Director of Nivedita Advanced Medical Institute. After opening the account a number of overdrafts viz. dated 24.07.2002 for Rs. 30,00,000/-; dated 05.10.2002 for Rs. 78,00,000/-; dated 13.11.2002 for Rs. 35,00,000/-; dated 28.11.2002 for Rs. 82,00,000/-; dated 11.12.2002 for Rs. 30,00,000/- in favour of the said firm by C.R. Ghosh, the then DGM, UCO Bank, Regional Officer, Kolkata were issued. Thereafter, the firm requested for cash credit facilities to the tune of Rs. 195 lakhs. It offered land and building located at 39, Ramananda Chatterjee Street, Kolkata - 700 009 as collateral security. The said offer was subsequently substituted with 256 cottah of land located at P.S. Bhangur held in the name of Shri Ajay Kumar Bayen which was claimed to be valued at Rs. 3,31,25,000/- but later on turned down to be grossly over valued. Shri R.N. Majumdar, the then Branch Manager, UCO Bank, Kankurgachi Branch, Kolkata through his written communication gave clear indication to the Regional Office that the limits should not be sanctioned. In the Process Note dated 07.01.2003 Shri Shyamal Kumar Saha, ACO (Credit) after referring to the letters of Shri R.N. Majumdar, the then Branch Manager, UCO Bank, Kankurgachi Branch, Kolkata has noted that from the analysis of CMA data and unaudited balance sheet for the financial year 2000-01 and 2001-02 the financial position of the company was not perfectly satisfactory from the point of view of the Bank and also it should be noted that M/s. Medico Electronics did not require any Bank financial assistance during the financial year 2002-03 as per CMA data as available with them, Shri Sumanta Sen Proprietor of M/s. Medico Electronics was projected as a borrower of the new credit proposal and Mr. Sumanata Sen was supposed to be a wooden doll in the activities of the business. In fact Shri A.K. Bayen, proposed guarantor of M/s. Medico Electronics was carrying out the business and he himself was all in all of the business and it was found from the course of banking transaction activities that it was a fictitious trading concern. Capacity of the borrower was not satisfactory as per CMA data submitted to the branch as reported by the branch. Audited balance sheet for the year 2001 and 2002 submitted twice and the figures in the balance sheet were manipulated. Shri Saha then put up the note to Shri Joydeb Das, DCO (Credit). Shri Joydeb Das in his note dated 07.01.2003 also emphasised the fact that branch has not recommended the proposal and they have informed that as per the financial data the firm did not require any financial assistance. The note was then put up to Shri R.K. Das, Chief Officer (Credit), UCO Bank, RO, Kolkata, the petitioner herein, who submitted the following note to the General Manager : "(i) Branch is not satisfied about the business credential of the firm, (ii) Mr. Ajay Kumar Bayen, proposed guarantor, has not yet complied to all terms of the sanction of advances granted in favour of companies where Mr. Bayen is Director, (iii) Ad hoc limit sanctioned earlier in favour of the firm not adjusted as per terms of sanction, (iv) financial position of the firm is sound as per balance sheet submitted by the firm." The petitioner further noted that, "in view of the foregoings we may consider the sanction of cash credit limit of Rs. 182 lakhs only on the strength of collateral security banking." Shri R.N. Majumdar, the then Branch Manager in his letter dated 02.01.2003 had categorically mentioned that the audited balance sheet for the financial year 2001 and financial year 2002 submitted twice and the figures were manipulated. He also mentioned that capacity of the borrower was not satisfactory as per the CMA data submitted to the bank. These facts were mentioned also by Shri Shyamal Kumar Saha, Assistant Chief Officer (Credit) as well as Shri Joydeb Das, Deputy Chief Officer (Credit), UCO Bank, RO, Kolkata. Even then the petitioner in his note mentioned that "financial position of the firm is sound as per the balance sheet submitted by the firm" and thereafter recommended for sanction of cash credit limit in favour of M/s. Medico Electronics. Thereafter, on 08.01.2003, Shri C.R. Ghosh sanctioned the cash credit limit of Rs. 182 lakhs in favour of M/s. Medico Electronics on the advise of the petitioner. The date when the aforesaid cash credit limit was sanctioned in favour of M/s. Medico Electronics by Shri C.R. Ghosh, the account was already running with an outstanding balance of Rs. 1,38,02,772/-. While sanctioning the said cash credit limit in favour of M/s. Medico Electronics, it was, inter alia, stipulated that the party would arrange liquid collateral to the tune of Rs. 50 lakhs in the form of FDR to be deposited in advance and an outstanding amount of Rs. 1.34 crores would be adjusted before release of further limit, but, the conditions were waived by Shri C.R. Ghosh, DGM on the recommendations of the petitioner, the then Chief Officer (Credit), which exposed the bank to further loss. Hence, it appears that the petitioner, while working in the capacity of Chief Officer (Credit) UCO Bank, RO, Kolkata during the period 2002-03, entered into criminal conspiracy with others and thereby in order to extend undue financial benefit to the borrower namely, M/s. Medico Electronics, recommended sanction of the regular cash credit limit to regularise the earlier outstanding balance even after the adverse recommendations by the Manager, Kankurgachi Branch and further recommended to waive the terms of sanction and thereby put the interest of the bank in total jeopardy."
(2.) Charge sheet also accompanied a sanction order issued by the Chairman-cum-Managing Director, UCO Bank. In the said sanction order, after recital of the entire allegations, as aforesaid, it was observed as follows : "I, Subodh Kumar Goel, Chairman and Managing Director, being competent authority to remove Assistant General Manager, UCO Bank from service, after carefully examining the material placed before me in regard to said allegations and circumstances of the case i.e. copy of FIR, copies of relevant documents and statements of witnesses recorded under Section 161 Cr.P.C. and after applying my mind, consider that the said Shri R.K. Das, Assistant General Manager, Zonal Office, Hyderabad should be prosecuted in the court of law for the said offences as envisaged under Sections 120B, 420 I.P.C. and section 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988." The order of sanction further stated:- "I, Subodh Kumar Goel, Chairman and Managing Director being competent authority to remove Assistant General Manager, UCO Bank from service, do hereby accord sanction under section 19(1)(c) of P.C. Act, 1988 for the prosecution of the said Shri R.K. Das, Assistant General Manager, Zonal Office, Hyderabad for the said offences and any other offences punishable under the provisions of law in respect of the acts aforesaid for taking cognisance of the said offences by a court of competent jurisdiction."
(3.) The order of sanction has been assailed in the instant case on the ground that similar prayer had been turned down by the General Manager vide order dated 1st December, 2007. It has been argued that the General Manger was the delegated Authority of the Chairman cum Managing Director in the matter of grant of sanction for prosecution of the petitioner and once the delegates had refused to grant sanction, question of reviewing the same without any change in circumstance was permissible. Reliance was placed on the decision in the case of State of Himachal Pradesh v. Nishant Sareen reported in (2010) 14 SCC 527 in support of such contention.;