IN THE SUPREME COURT OF INDIA
Criminal Appeal No. 1837 OF 2019
Petitioner
Station House Officer, CBI/ACB/Bangalore
Respondent
B. A. Srinivasan
Date of Judgement
5th December, 2019
Bench
Uday Umesh Lalit, Hon'ble Ms. Malhotra, A.S. Bopanna.
Facts of the Case
1. The Respondent No. 1 retired on 31.10.2012 as Assistant General Manager, Vijaya Bank. On 28.10.2013, FIR being RC 12(A)/2013 was registered pursuant to complaint given by the General Manager, Vijaya Bank, Head Office, Bangalore against the Respondent No.1 in respect of the offences.
2. This Appeal challenges the judgment and order dated 08.08.2018 passed by the High Court 1 allowing Criminal Revision Petition No.834 of 2015 preferred by the Respondent No. 1; and thereby discharging the Respondent No.1 of the offences punishable under Sections 419, 420, 467, 468, 471read with Section 120B of the Indian Penal Code, 1860 (‘IPC’, for Signature Not Verified Digitally signed by MUKESH KUMAR Date: 2019.12.05 Reason:1 The High Court of Karnataka at Bangalore Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019) Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasan short) and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (‘the Act’, for short).
Issues
1. Should protection be sanctioned where the acts are performed using public office as a mere cloak for unlawful gains?
Ration Decidendi
1. After completion of investigation, charge-sheet was filed on 31.10.2014 against the Respondent No.1 and other accused in respect of said offences. It was alleged inter alia:
“3. That Shri B.A. Srinivasan (A-1) while working as Assistant General Manager (AGM) and Branch Head, Vijaya Bank, Mayo Hall Branch, Bangalore during the period from 11.01.2010 to 20.10.2012 entered into a criminal conspiracy with Shri B.Lakshman (A-3), Smt. Shanta Gowda (A-4) and Shri S.V. Isloor (A-5) to cheat and defraud Vijaya Bank, Mayohall Branch, Bangalore and to extend undue financial accommodation to M/s. Nikhara Electronics and Allied Technics (A-2) on the basis of fake and fabricated documents and in furtherance of the said criminal conspiracy, Shri B.A. Srinivasan (A-1) sanctioned and disbursed Rs.200 lakhs of Term Loan and Rs.100 lakhs of Cash Credit Hypothecation (Working Capital) in favour of M/s. Nikhara Electronics and Allied Technics (A-2) without proper due diligence and in gross violation of all extant rules and regulations of Vijaya Bank, and hence, facilitated A-3 and A-4 to divert the loan-funds against the terms and conditions, thereby causing wrongful loss to Vijaya Bank and corresponding gains to others.
2. Shri B. Lakshnian (A-3) and his wife Smt. Shanta Gowda (A-4) fraudulently created an agreement dated 10.06.2011 on the photocopy of e- stamp paper having franking No.57724 dated 08.06.2011 and submitted a copy of the same to Vijaya Bank to support their dishonest claim of taking over M/s. Nikhara Electronics & Allied Technics, proprietary concern by making a payment of Rs.1.00 Crore as goodwill to Shri Venkataramana Bhat (A-6). Shri B.A. Srinivasan (A-1) dishonestly accepted the photocopy of the agreement intentionally omitting to ascertain its genuineness or authenticity. It is revealed that the above agreement was fraudulently created on the photocopy of e-stamp paper franked vide 57724 dated 08.06.2011 and the original stamp paper remained blank was seized from the office premises of Shri S.V. Isloor (A-5). It is thus established the fraudulent intentions of all the accused persons to create forged documents as and when required and to misrepresent that the proprietary unit was taken over by A-3 and A-4 from A-6.
3. Shri B.A. Srinivasan (A-1) in furtherance of criminal conspiracy with the other accused dishonestly, by abusing his official position as AGM & Branch Head of Vijaya Bank, Mayohall Branch fraudulently considered the loan application, processed loan proposals in gross violation of the rules and regulations of Vijaya Bank in this regard in order to favour the accused persons. He intentionally accepted the inflated financial statements submitted by A-3 and A-4 even though they were not audited and considered them for working out the credit assessment of the borrower firm i.e., M/s. Nikhara Electronics and Allied Technics (A-2). He purposely did not exercise due diligence to analyse the financial statements submitted by the borrower firm which contained several inconsistencies. He also did not conduct the mandatory pre-sanction verification at the Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019) Station House Officer, CBI/ACB/Bangalore vs. B.A. Srinivasanaddress of the borrower firm to ascertain whether any business activities such as manufacturing of electric equipment etc., were going on as claimed in the loan application. The criminal acts of Shri B.A. Srinivasan (A-1) facilitated the accused private persons to misrepresent the existence of M/s. Nikhara Electronics and Allied Technics (A-2), which actually existed only on the forged partnership deed dated 10.06.2011, created by A-3 and A-4.
4. Shri B.A. Srinivasan (A-1) prepared the Credit Process Note himself and obtained the signatures of Shri Jyoti Prakash Shetty, the then Asst. Manager in the column of appraising official. Shri Nabeel Ahmed, the then Probationary Manager was also made to put his initials in the process note, merely as a token of his training. It is revealed that A- 1 prepared the proposals for an aggregate amount of Rs.300 lakh (term loan of Rs.200 lakhs and cash credit of Rs.100 lakhs) as against the request for Rs.350 lakhs (term Loan of Rs.200 lakhs; working capital of Rs.130 lakhs and Bank Guarantee of Rs.20 lakhs) without there being any clarification/justification for such reduction in the requirements of the applicant.
5. Shri B. Lakshman (A-3) fraudulently submitted a forged Letter No. REFREF: SP: QT: 155: 2011 dated 10.08.2011 purportedly signed as JAK, Partners, M/s. V-Tech Engineering Enterprises along with Quotations/Proforma Invoices for an aggregate amount of Rs.2,69,60,496/- which were purportedly issued by M/s.V-Tech Engineering Enterprises.
6. The Respondent No.1, being aggrieved, preferred Criminal Revision Petition No. 834 of 2015 in the High Court, which was allowed by the judgment and order presently under appeal. The High Court, thus set aside the order dated 13.04.2015 as regards the Respondent No.1 and discharged him of the offences with which he was sought to be charged.
Held
1. It cannot be forgotten that even after retirement, he is prosecuted for offences under prevention of Corruption Act. Indeed, the retirement removes one from the garb of a public servant; but justice requires that same protection should be available even after one’s retirement. …” (underlined by us) Thereafter, while dealing with submissions based on the decisions of this Court in Kalicharan Mahapatra vs. State of Orissa 2, R.
2. In this appeal challenging the view taken by the High Court Mrs. Sonia Mathur, learned Senior Advocate, in support of the 3 (1996) 1 SCC 478 4 (2014) 16 SCC 807 5 (2016) 2 SCC 143 Criminal Appeal No. 1837 of 2019 (@ SLP(crl.)No.6106 of 2019) Station HouseOfficer, CBI/ACB/Bangalore vs. B.A. Srinivasanappeal and Mrs. V. Mohana, learned Senior Advocate for the Respondent No.1.
3. Sonia Mathur, learned Senior Advocate, submitted that the protection under Section 19 of the Act is available to a public servant only till he is in the employment and no sanction is necessary after the public servant has demitted office or has retired from service. As regards sanction under Section 197 of the Code, it was submitted that for an action to come within the purview of Section 197 of the Code, it must be integrally connected with the official duties or functions of a public servant and that if the office was merely used as a cloak to indulge in activities which result in unlawful gain to the beneficiaries, the protection under said Section 197 would not be available.
4. Having considered the matter in entirety, the High Court clearly erred in allowing Criminal Revision Petition and accepting the challenge raised by the Respondent No.1 on the issue of sanction.
5. The Supreme Court thus, allowed this Appeal and set aside the view taken by the High Court, restore the order passed by the Trial Court and dismiss the application seeking discharge preferred by the Respondent No.1.
6. It was clear that Supreme Court had adverted to the facts and the allegations only for the purpose of considering the basic issue pertaining to issue of sanction and we shall not be taken to have expressed any view on merits which shall be considered independently. It has been stated by the learned counsel that the matter is listed before the Special Court on 11.12.2019. The Respondent No.1 shall appear before the Special Court on that day and the matter shall, thereafter, be proceeded in accordance with law.
This Appeal is allowed in aforestated terms.
Edited by Sree Ramya
Approved & Published – Sakshi Raje
