GOPAKUMAR B. NAIR v. CENTRAL BUREAU OF INVESTIGATION/SPE and INDIAN OVERSEAS BANK

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 25TH DAY OF JUNE 2013/4TH ASHADHA, 1935** ## **Crl.MC.No. 2480 of 2013** **---------------------------------[C.C. NO.48/2011 OF THE SPECIAL JUDGE, C.B.I COURT AT THIRUVANANTHAPURAM, TRANSFERRED FROM SPE/CBI COURT-I, ERNAKULAM IN C.C. 13/2005]** **..............** ## **PETITIONER/2ND ACCUSED:** **------------------------------------------** **GOPAKUMAR B.NAIR, S/O.LATE N.BALAKRISHNAN NAIR, ROOM NO.111, SILVER SAND COMPLEX, THIRUVANANTHAPURAM-695 036, PERMANENTLY RESIDING AT T.C.5/2560, GOLF LINK ROAD, KOWDIAR, THIRUVANANTHAPURAM-695 001.** **BY SRI.T.A.SHAJI, SENIOR ADVOCATE, ADV. SRI.D.KISHORE.** ## **RESPONDENTS/STATE & COMPLAINANTS:** **-------------------------------------------------------------** **1. CENTRAL BUREAU OF INVESTIGATION/SPE, REPRESENTED BY ADDITIONAL SUPERINTENDENT OF POLICE, CBI/SPE THIRUVANANTHAPURAM UNIT.** **2. THE INDIAN OVERSEAS BANK, KILLIPPALAM BRANCH, THIRUVANANTHAPURAM, REPRESENTED BY ITS SENIOR MANAGER.** **R1 BY SRI.P.CHANDRASEKHARA PILLAI, S.C, C.B.I, R2 BY ADVS. SRI.LEO GEORGE,S.C, SRI.LEO GEORGE.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19-06-2013, THE COURT ON 25-06-2013 PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.2480/2013:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE 1- CERTIFIED COPY OF THE CHARGE SHEET IN C.C.NO.13/2005 (OLD), C.C.48/2011 (NEW). ANNEXURE 1(A)COPY OF THE STATMENTS OF WITNESSES AND DOCUMENTS PRODUCED ALONG WITH ANNEXURE-I CHARGE SHEET. ANNEXURE IITRUE COPY OF THE JUDGMENT DATED 21.6.2011 IN CRL.M.C. 1365/10. ANNEXURE IIITRUE COPY OF THE JUDGMENT/ORDER DATED 21.6.2011 ALLOWING TO WITHDRAW THE SPECIAL LEAVE PETITION.** **ANNEXURE IVBANK SCHEME DATED 27.8.2000.** **ANNEXURE V- TRUE COPY OF THE LETTER ISSUED BY THE S A E TECHNOLOGY COLLEGE TO INDIAN OVERSEES BANK. ANNEXURE VITRUE COPY OF THE LETTER ISSUED BY SYNDICATE BANK DATED 25.7.2011. ANNEXURE VIITRUE COPY OF THE JUDGMENT DATED 10.3.2005 IN W.P(C) 7422 OF 2005.** **ANNEXURE VIIITRUE COPY OF THE COMPROMISE LETTER DATED 30.3.2009 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENTS' ANNEXURES: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.M.C.No. 2480 of 2013** **----------------------------------------** Dated this the 25[th] day of June, 2013 ## **O R D E R** The above Crl.M.C. under Section 482 of the Cr.P.C. is filed at the instance of the second accused, in C.C.No.13 of 2005 on the file of the Special Judge SPE/CBI Court-I, Ernakulam which was transferred to the CBI Court, Thiruvananthapuram and re-numbered and now pending as C.C.No.48 of 2011. According to the petitioner, though he is charged with the offences punishable under Sections 120B,420 and 471 of the I.P.C. read with section 13(2) and 13(1)(d) of the Prevention of Corruption Act (for short 'the P.C.Act'), subsequently he had paid all the arrears connected with the entire loans under OCS of the Bank- the Indian Overseas Bank, which is the subject matter of the crime and thus, the Bank had issued Annexure VIII, which according to the petitioner, is a compromise, stating that the Bank have no further claims or charges against the petitioner and Crl.M.C.No.2480 of 2013 :-2-: therefore, according to the petitioner, the continuation of the proceedings against him in the court below is only sheer abuse of process of court and therefore, this Court be pleased to quash all further proceedings in C.C.No.48 of 2011 on the file of the Special Judge, CBI Court, Thiruvananthapuram and thereby, prevent miscarriage of justice. 2. The allegation against the petitioner, who is the second accused, is that while running a tiny SSI Unit, he entered into a conspiracy with accused No.1, who is a public officer of the second respondent-Bank and accused No.3 and obtained credit facilities to the tune of around `24 lakhs from the said Bank on the strength of the forged documents. It is also the allegation against the petitioner that he had availed of `5 lakhs from the Bank for purchasing a car and an educational loan of `4 lakhs for a course on Digital Film Making at SAE Technology College, Trivandrum and a cash credit account with facility of `17 lakhs opened in the name of M/s.Focus Infotainments Crl.M.C.No.2480 of 2013 :-3-: under the proprietorship of the petitioner and withdrew an over draft facility of `13,94,000/- from the above cash credit account. Thus, according to the prosecution, the petitioner who is the second accused and first accused, who is a public servant and official of the second respondent/Bank and third accused, the valuer of the property committed the offences punishable under Sections 120B,420 and 471 of I.P.C. read with Section 13(2) and 13(1)(d) of the P.C.Act. According to the petitioner, he had paid the entire liability due to the second respondent-Bank connected with the loan transaction as evidenced by Annexure VIII letter dated 30.3.2009 issued by the second respondent-Bank. On the basis of the said letter, according to the petitioner, even if the petitioner is sent for trial, there would not be any fruitful turn out, rather the same would result in the sheer waste of judicial time and thus, the same will amount to abuse of process of law. Therefore, he prays to quash all the proceedings pending against him in the above case. Crl.M.C.No.2480 of 2013 :-4-: 3. I have heard Sri.T.A.Shaji, learned Senior Counsel for the petitioner and Sri.P.Chandrasekharan Pillai, learned Standing Counsel for the CBI/the first respondent herein. I have also heard Sri.Leo George, the learned Standing Counsel for the Bank. 4. Mr.T.A.Shaji, learned Senior counsel in his persuasive argument, submitted that it is a fit case wherein this Court has to exercise the inherent jurisdiction of this Court under Section 482 of the Cr.P.C., especially in the light of the decision of the Honourable Apex Court reported in **Gyan Singh** v. **State of Punjab** [2012(4) KLT 108]. To substantiate the above contention, the learned counsel invited my attention to Annexure VIII letter of the second respondent/Bank and further submitted that the second respondent has no further grievance against the petitioner since he has already cleared the loan arrears. According to the learned counsel, before rendering the decision in Gyan Singh's case, the Apex Court has considered several decisions including the cases referred to larger Bench. Thus, Crl.M.C.No.2480 of 2013 :-5-: according to the learned counsel, even though in the case viz., Nikhil Merchant's case [Nikhil Merchant v. Central Bureau of Investigation [2008(3) KLT 769] multi crore scam is involved, the principles laid down in that case were affirmed by the larger Bench of the Apex Court in the decision in Gyan Singh's case and thus, according to the learned Senior counsel, when comparing the amount involved in the present case, the petitioner is entitled to get the benefit of the ruling in Gyan Singh's case. It is also the submission of the learned counsel that the third accused, the valuer of the property with respect to which the loan was availed of, is no more which fact further strengthened the claim of the petitioner to acquit him following the principles laid down by the Apex Court in Gyan Singh's case. 5. On the other hand, the learned Standing Counsel for the CBI vehemently submitted that in the present case, the petitioner is charge sheeted not only for the IPC offences but he has to face the charge under the various penal provisions as contemplated by the Crl.M.C.No.2480 of 2013 :-6-: Prevention of Corruption Act. Mere clearing of the dues due to the financial institution viz., the second respondent Bank does not exonerate the petitioner from his penal liability, submitted the learned counsel. The learned Standing Counsel for the CBI has strenuously submitted that the entire episode of corruption and the commission of the offences under various provisions in the I.P.C. were committed with the active connivance and assistance of a Bank Official - the first accused, who is a public servant coming within the definition of the P.C.Act and therefore, this is a case where the available accused has to face the trial and let the trial proceeds and comes into its logical conclusion. 6. Though the counsel appearing for the third respondent is present and submitted the fact in terms of Annexure VIII, the petitioner has cleared the dues, he never submitted that the third respondent is prepared to compound the offence or compromise the case and also submitted that there was no settlement at all with respect Crl.M.C.No.2480 of 2013 :-7-: to the penal liability of the petitioner. 7. I have carefully considered the arguments advanced by the learned senior counsel for the petitioner and the learned Standing Counsel for the CBI and counsel for the third respondent. I have also perused the materials produced along with the above Crl.M.C. including Annexure VIII letter of the third respondent Bank. 8. According to me, the allegation in the above case is very serious and according to the prosecution, as a result of conspiracy, which hatched among the accused, the accused including the petitioner herein got pecuniary advantage and resultantly pecuniary loss to the Bank till the time of repaying the arrears. According to me, the mere payment of the arrears out of the loan transaction, will not absolve the petitioner from his penal liability, if any. It is pertinent to note that the first accused in the above case is a bank official, and as per the prosecution allegation, the accused three in number, hatched a criminal conspiracy and designed their wicked plan and the same was ## Crl.M.C.No.2480 of 2013 :-8-: subsequently executed with the active connivance of the first accused, who is a public servant as defined in the P.C.Act and that is why the prosecution has charged the offences under the provisions of the P.C.Act against the accused including the petitioner. Therefore, the question to be considered is, whether the dictum laid down by the Honourable Apex Court in Gyan Singh's case would apply in the present case and whether this court will be justified in exercising the inherent jurisdiction under Section 482 of the Cr.P.C. to quash the proceedings pending against the petitioner on the basis of Annexure VIII letter of the third respondent Bank. 9. In this juncture, it is relevant to note that, a casual perusal of Annexure 8 letter itself would show that what is stated in the letter is about the acknowledgment of clearance of the loan amount, which was due to the second respondent Bank from the petitioner. The said letter never discloses that the bank is prepared to compound the offences for which the petitioner and other accused are charged. It is Crl.M.C.No.2480 of 2013 :-9-: also not discernible from Annexure 8 letter that the bank is ready for settlement, settlement with respect to the penal liability raised against the petitioner. Suffice to say, the learned counsel for the second respondent-Bank has also submitted, with no uncertainty and doubt that, the second respondent-Bank is not prepared for settlement as claimed by the petitioner and is not prepared to compound the offence charged against the petitioner. The learned counsel submitted that the amount due as per the loan transaction with the Bank is cleared by the petitioner. But, as on today, the real aggrieved party/the second respondent has not come forward with any proposal for settlement of the criminal charges levelled against the petitioner. Suffice it to say, payment of loan arrears will not absolve the criminal liability of the loanee, if he obtained the loan fraudulently and by forging documents as a part of conspiracy. As the second respondent has not come forward to condone the offence allegedly committed by the petitioner and having considered the seriousness of the allegation, Crl.M.C.No.2480 of 2013 :-10-: there is no question of any settlement and giving effect for the same, by exercising the power of this Court under Section 482 of the Cr.P.C. 10. However the question remains that whether the dictum laid down in Gyan Singh's case is attracted in the present case. As I indicated earlier, in the light of the above facts, according to me, no question is arising to permit the petitioner to settle the matter by exercising the inherent jurisdiction of this Court under Section 482 of the Cr.P.C. In paragraph 57 of the decision in Gyan Singh's case, their Lordships in their wisdom, from the category of cases to be permitted to be settled in exercise of inherent jurisdiction under Section 482 of the Cr.P.C., made some exceptions and categorised certain type of cases including the cases covered by the provisions of the Prevention of Corruption Act and excluded from the above general category. In paragraph 57, thus, it is stated as follows:- “................ _Heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the_ Crl.M.C.No.2480 of 2013 :-11-: _dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statues like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.......”_ In the present case, it can be seen that the first accused is a public servant, who is allegedly conspired with other accused including the petitioner, as a result of which, the second respondent/Bank sustained financial loss even though the petitioner herein had cleared the dues. Therefore, even if the third accused is no more, the remaining accused including the petitioner have to face the charge and trial. Now-a-days, shocking news are reported about corruption from higher up to lower hierarchy and thus corruption is a malignancy affected to our society. In that view of the matter, according to me, even though the amount involved in the present case is lesser than the amount involved in Nikhil Merchant's case, according to me, this Court will not be justified in invoking the powers of this Court vested under Section Crl.M.C.No.2480 of 2013 :-12-: 482 of the Cr.P.C. and permitting the petitioner to settle the case. Therefore, I find no merit in this petition and to extend the benefit of the decision in Gyan Singh's case in favour of the petitioner and quash the proceedings pending against him. In the result, this Crl.M.C. is dismissed. **V.K.MOHANAN, Judge** MBS/ Crl.M.C.No.2480 of 2013 :-13-: