Abraham Joseph v. Central Bureau of Investigation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH TUESDAY, THE 4[TH] DAY OF APRIL 2023 / 14TH CHAITHRA, 1945 CRL.REV.PET NO. 166 OF 2022 CRIME NO.RC 15(A) 2007/CBI/KER OF CENTRAL BUREAU OF INVESTIGATION, THIRUVANANTHAPURAM,** **AGAINST THE ORDER in Crl.MP 20/2011 OF (SPE/CBI) COURT, THIRUVANANTHAPURAM** ## **REVISION PETITIONER/1ST ACCUSED:** ABRAHAM JOSEPH AGED 67 YEARS, S/O C.V.JOSEPH, CHERAYIL HOUSE, NEAR MUTTOM CHURCH, CHERTHALA, ALAPPUZHA, PIN - 690511 BY ADVS. AJIT JOY ANEESH JAMES ## **RESPONDENT/COMPLAINANT:** THE CENTRAL BUREAU OF INVESTIGATION REPRESENTED BY ITS PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI, PIN - 682031 BY ADV MANU S. ASG OF INDIA SRI.SUVIN R.MENON, CGC THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON 04.04.2023 DELIVERED THE FOLLOWING: Crl.R.P.No.166/2022 ## -:2:- O R D E R Dated this the 4[th ] day of April, 2023 This criminal revision petition has been filed by the accused No.1 in CC No.7/2011 on the file of Special Judge (SPE/CBI), Thiruvananthapuram (for short, 'the court below'), challenging the order in Crl.M.P.No.20/2011 dated 22/1/2022 dismissing his application seeking discharge. 2. A crime was registered by the CBI as Crime No.RC/15(A)/7/CBI/KER against the revision petitioner and three others alleging offences punishable under sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act (for short, 'the PC Act') and sections 420 and 120B of the Indian Penal Code (IPC). 3. The revision petitioner/accused No.1 was the Branch Manager, and the accused No.2 was the Deputy Branch Manager of the State Bank of India, Alappuzha, in March 2006. Accused Nos.3 and 4 were businessmen conducting various businesses, and the accused No.5 was a retired electrical engineer. The crux of the prosecution allegation is as follows: All the accused, during Crl.R.P.No.166/2022 -:3:- the period March to August 2006, entered into a criminal conspiracy to cheat the State Bank of India, ADB Branch, Alappuzha and in pursuance of the said conspiracy, the accused Nos. 3 and 4 approached the people who were heavily indebted but had landed properties and, by telling them that they would purchase their properties, paid advance amounts to them after entering into agreements for sale of their properties. The original and other supporting documents/title deeds were then collected from them, and they (sellers) were taken to the State Bank of India, ADB Branch, Alappuzha. The accused Nos.1 and 2, by abusing their official position as public servants, dishonestly obtained signature of the so-called sellers on mortgage loan documents under the pretext of opening accounts in their names and sanctioned 3 CC loans and 40 mortgaged loans amounting to `4.33 crores. They, thereafter, without the knowledge of the sellers, disbursed the amount to accused Nos.3 and 4, who used it for their personal purpose. The accused No.5 prepared and made available valuation reports of the said properties showing exaggerated value. The above acts of the accused caused a wrongful loss to SBI to the tune of `4.33 crores and a Crl.R.P.No.166/2022 ## -:4:- corresponding wrongful gain to them. 4. After the investigation, the final report was filed against accused Nos.1 to 5, alleging the offences mentioned above. The revision petitioner filed a petition for discharge as Crl. M.P.No.20/2011 at the court below on the ground that even if the entire allegations in the final report are believed in their entirety, no offence is made out against him. The court below, as per the order dated 25/2/2014, dismissed the said petition. The revision petitioner challenged the said order before this court in Crl. R.P.No.496/2014. At the time of hearing the revision, the revision petitioner canvassed one more ground that the sanction for prosecution granted under section 19(1)(c) of the PC Act was bad in law. The precise contention raised was that the person who granted sanction was incompetent to grant sanction. This court found that the court below did not refer to the materials placed on record to subjectively evaluate whether the prosecution has _prima facie_ projected a case worth trial. Accordingly, the order dismissing the petition was set aside, and the petition was remanded to the court below for fresh disposal. The court below was also directed to consider the question whether the officer Crl.R.P.No.166/2022 -:5:- who granted the sanction was competent or not. After remand, the court below again dismissed the petition after hearing both sides as per the order dated 22/1/2022, holding that there are _prima facie_ materials for proceeding against the accused and that the question whether the officer who granted sanction was competent or not could only be decided after a full-fledged trial. The said order is under challenge in this criminal revision petition. 5. I have heard Sri.Ajit Joy, the learned counsel for the revision petitioner and Sri.Suvin R.Menon, the Central Government Counsel appearing for CBI. 6. The learned counsel for the revision petitioner submitted that even if the allegations made in the final report, along with the entire materials collected during the investigation, are taken at their face value, there is no ground for presuming that the revision petitioner has committed the offences alleged. The learned counsel further submitted that the competent authority to grant sanction for prosecution is the Chief General Manager (CGM) of CBI, and the officer who gave sanction was General Manager (GM), who was officiating was CGM and thus not Crl.R.P.No.166/2022 -:6:- competent to grant sanction. The counsel further submitted that the court below framed charge against the revision petitioner without exercising its judicial mind to determine whether a case for trial has been made out. Per contra, the learned counsel for CBI submitted that the final report, together with the materials collected during the investigation, disclose serious allegations of criminal misconduct, cheating and criminal conspiracy against the revision petitioner, and it is impermissible to discharge him when there are serious triable allegations in the final report. The learned counsel further submitted that the officer who granted the sanction was very much competent to grant the sanction. 7. It is not in dispute that accused No.1 was the Branch Manager of the Bank while the disputed loans were sanctioned, and loan amounts were released to accused Nos.3 and 4. The revision petitioner being the Branch Manager is duty-bound to peruse all the relevant records and convince himself that everything was in order before sanctioning the loan. It is borne out from the final report that the loan amount was disbursed in cash. CW41, the Assistant Manager of Advances of the Bank, Crl.R.P.No.166/2022 -:7:- raised an objection in disbursing the loan amount to the tune of `99 lakhs in cash. When CW1 brought the issue of cash disbursal to the notice of the accused No.1, he directed him to follow the direction of accused No.2. The revision petitioner, who knew well that the loan amount could not be disbursed in cash, as such, directed CW41 to act as per the direction of accused No.2. CW40 stated that when he brought to the notice of the revision petitioner the problem of the disbursal of the heavy amounts as loan, the revision petitioner directed him to disburse the amount. CW43 stated that he, along with the revision petitioner, went to inspect that mortgaged properties. These circumstances are _prima facie_ sufficient to infer the involvement of the revision petitioner in the conspiracy. It is extremely difficult to get direct evidence to prove conspiracy. The existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. It is settled that at the the stage of consideration of an application for discharge, the Court is required to consider whether there are sufficient grounds to proceed against the accused. The Court is not to examine and assess in detail the materials on record produced by Crl.R.P.No.166/2022 -:8:- the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. If the materials placed before the court disclose grave suspicion against the accused, the court will be fully justified in framing the charge and proceeding with the trial. {See: _**Sajjan Kumar v. Central Bureau of Investigation**_ {(2010) 9 SCC 368], _**State of Rajasthan v. Fatehkaran Mehdu**_ (AIR 2017 SC 796) and _**Amit Kapoor v. Ramesh Chander and Another**_ [(2012) 9 SCC 460]}. 8. It is not in dispute that the competent authority to issue sanction is the CGM. The officer who gave the sanction was GM. But he was acting as an officiating CGM. According to the revision petitioner, an officiating CGM can only exercise administrative and financial power, but he cannot exercise the statutory power of granting sanction. But there is nothing on record to substantiate the said submission. According to the prosecution, the officer who had granted sanction was officiating as CGM and could order the removal of the delinquent employees and was thus competent to grant sanction. In the sanction order, Crl.R.P.No.166/2022 -:9:- it is clearly stated that the officer who gave sanction is the authority competent to appoint and remove the revision petitioner and the accused No.2 and thus competent to grant sanction. At the time of granting sanction, CGM was not available. The officiating CGM did exercise the powers of CGM. Even the revision petitioner admits that administrative and financial powers were delegated to the GM. The question whether the power to grant sanction was included in the powers delegated to the officiating CGM is a disputed question of fact. The truthfulness and falsity of allegations are questions of fact and matters of evidence to be let at a trial and cannot be prejudged at this stage, as rightly held by the court below. That apart, as per section 19(3)(a) of the PC Act, no finding, sentence, or order passed by a Special Judge shall be reversed or altered by a court in appeal, confirmation, or revision on the ground of the absence of, or any error, omission or irregularity in the sanction unless, in the opinion of that court, a failure of justice has in fact been occasioned thereby. In Explanation (a), it is clarified that ‘error’ includes the competency of the authority to grant sanction. Thus, an order passed by the Special Judge regarding the competency Crl.R.P.No.166/2022 -:10:- of the authority to grant sanction cannot be called into question in revision unless the revision petitioner could establish that there is a failure of justice. There is no case for the revision petitioner in the revision petition that such a failure of justice, in fact, has been occasioned. For these reasons, I see no illegality or impropriety in the impugned order. The criminal revision petition fails, and accordingly, it is dismissed. It is open to the revision petitioner to challenge the competency of the sanctioning authority during the trial. The court below shall dispose of the case untramelled by any observations made in this order. Sd/- ## **DR. KAUSER EDAPPAGATH** **JUDGE** **Rp** Crl.R.P.No.166/2022 ## -:11:- ## **APPENDIX OF CRL.REV.PET 166/2022** PETITIONER ANNEXURES Annexure A THIS HON'BLE COURT'S ORDER IN CRL M.P. NO. 496/2014 DATED 10.11.2021 Annexure B TRUE COPY OF THE FINAL REPORT DATED 25.04.2009 FILED BY CBI