Dev Kumar Tyagi v. Central Bureau of Investigation

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* IN THE HIGH COURT DI^:iJtI AT NEW DELHI
+ CRL.M.C. 2099/2011
DEV KUMAR TYAGI Petitioner
Through: Mr. K.G. Mishra and Mr. Ramjee
Pandey, Advocates.

CENTRAL BUREAU OF mVESTIGATION Respondent
Through: -Mr. Anindya Malhotra, Advocate for
Mr. Harish Gulati, Advocate.

HON'BLE MS. JUSTICE MUKTA GUPTA
% 08.07.2011
Crl.
M.A. No.7599/2011 (Exemption)
Exemption allowed, subject to just exceptions.
Crl
M.A. No.7600/2011-(Stav)
Dismissed as not maintainable.
, CrL M.C. No. 2099/2011
V
Issue notice.
Learnedproxy counsel accepts notice on behalf of the CBI.
By this petition the Petitioner impugns the order dated 30^'^ April, 2011 passed by.the learned Special Judge, CBI framing the charge upon the
Petitioner under Section 13 (2) read vvith Section 13 (1) (D) of the
CRL.M.C. 2099/2011
2011:DHC:11518
-rV
Prevention of Corruption Act, 1988 (in shon POC Act') and Sections 120B readwith 420/468/471 IPG and the orderdated2"'' June, 2011 dismissing the application ofthePetitioner under Section 216 read with 217 Cr.P.C.
The grievance of the Petitioner is that the money was not transferred with the Petitioner's Imowledge and in this regard he had made an oral complaint to the Manager. A perusal of the entire charge sheet shows that no money came into the account of the Petitioner. In view of this fact that the Petitioner filed an application under Section 216 Cr.P.C. The same was dismissed by the learned Special Judge without assigning any reason. It is further stated that the parties have entered into asettlement and^4M&in view of the decision of the Hon'ble Supreme Court in Nikhil Mercant vs. Central
Bureau ofInvestigation and another, 2008 (9) SCC 677 thePetitioner should be discharged.
Learned counsel for the CBI states that the orders passed by the learned Special Judge are detailed and well reasoned. It shows the complicity of the Petitioner in the offence committed. The sanction in the case was granted even before the audit report. The quashing as sought in view of the decision of the Hon'ble Supreme Court in Nikhil Merchant
(Supra) is misconceived as the said matter has been referred to a larger

bench. Further the Petitioner is seeking re -appreciation of the facts and evidence on record which is not permissible in view of the decision of the
Division Bench of this Court in Anur Kumar Jain vs. CBI, W.P. (Crl.) NO. 80/2010 and other connected writ petitions dated 29"' March, 2011.
I have heard learned counsel for the parties. Briefly the prosecution case is that the Petitioner was the proprietorof M/s D.S. Enterprises whereas the co-accused S.C. Pathak and Ravi Kumar Bharti were pubhc servants working as Chief Manager and Deputy Manager in Punjab National Banlc, Shalimar Bagh, Delhi. The case was registered on the complaint of Sanjiv
Sharda, the then ChiefManager wherein it is alleged that the Petitioner was engaged in manufacturing the Ayurvedic Medicines, ittar (fragrances), essential oils etc. and was sanctioned a cash credit limit of Rs. 240 laldis on
5"' August, 2008. The loan was processed and recommended by Shri Ravi
Kumar Bharti and Shri S.C. Pathak. The cash credit limit sanctioned to the firm was secured by primary security of the stocks hypothecated to the banks. Further, personal guarantee of one Raghu Raj Singh Yadav was also obtained. The credit facilities were further secured by equitable mortgage of property of Shri Raghu Raj Singh Yadav. At the time of creation of mortgage, a specific affidavit dated 6^'' August, 2008 was submitted by
CRL.M.C 2099/2011
Shri Raghu Raj Singh Yadav that he had already taken change of land use
(CLU) in respect of that agriculture land and the copy of the said CLU will be submitted to the bank shortly, but no such copy was submitted to the bank. The equitable mortgage was created by branch officials without obtaining CLU and no registered mortgage was created though it was specifically advised by the counsel. Further there were two valuation reports dated 2"^^ August, 2008 on bank record regarding the mortgaged property.
One report was signed by Ravi Kumar Bharti and other by S.C. Pathak. In the valuation report of Shri S.C. Pathak it was mentioned that the same was assessed as per the valuation report dated 2"'' August, 2008 given by Sliii
S.N. Bansal (Engineer) whereas the report of Shri S.N. Bansal was dated 6^'^
August, 2008. Shri Ravi Kumar Bharti exaggerated the value of the property in his report to Rs. 320 lakhs as shown by Shri S.C. Pathak in his report. Thus, apparently the report ofShri Ravi Kumar Bharti and Shri S.C.
Pathak was prepared by them prior to issuance of valuation report given by
Shri S.N. Bansal. The branch officials visited the factory premises of the
Petitioner on 3''' October, 2008 and found a small room on that place which was lying locked. No board displaying the name of the unit or bank was found. On inquiry by the branch officials from the neighbours, it was found tT' that the Petitioner was engaged in manufacturing of dhoop/masala at very low level and no such manufacturing activities had ever taken place as proposed in the loan application dated 30^"^ July, 2008. Further on the day of sanction ofthe limit itself, that is, 5^'' August, 2008 the parties transferred the entire sanctioned amount ofRs. 240/- lakhs to two different accounts. On 5"'
August, 2008 an amount ofRs. 140/- laldis was transferred from the account of M/s D.S. Enterprises to the cuiTent account of M/s Natural Enterprises
(Proprietor Shri Adesh Kumar Tyagi) and an amount ofRs. 100/- laldis was transferred to the current account of V.K. Trading Company (Proprietor Shri
Vijay Kumar) at Khari Baoli, Delhi. The amount transferred to the account ofM/s Natural Enterprises was further transferred tothe CC Account ofM/s
Shyam Traders (Proprietor Shri Vishal Mittal) availing limits of Rs. 350/- laldis. Similarly entire amount of Rs. 100/- laldis credited to the current accountof M/s V.K. Trading companywas transferredto the current account of Varun International (Proprietor Varun Bhatia) availing limit of Rs. 389/- laldis. Thus the entire transaction of M/s D.S. Enterprises, that is, the
Petitioner's firm was not a genuine transaction and Rs. 240/- laklis were siphoned by the party on the same day without utilizing the amount for which it was sanctioned. Investigations revealed that Shri S.C. Pathak was competent to sanction the credit limit/ loan upto Rs. 4 crores whereas Shii
Ravi Kumar Bharti was supposed to process the loan applications and recommend the eligibility after proper verification of the credentials of the applicant for the CC limit and the guarantor. He was duty bound to physically verify the property to be mortgaged as collateral security against the loan, ensure that the payments are made directly to the suppliers through accounts and verify the end use of the funds after sanction and disbursement
•J of the CC limit. Further the guidelines/check list contained in the Loans and
Advances Circular for sanctioning the loan applications were also not followed. Further the Petitioner made a wrong declaration while filing the application that his firm was engaged in the business of manufacturing of medicines herbs and aromatic herbs, ittar compound, essential oils etc.
It was further alleged that the Petitioner along with his loan application submitted false and fabricated audit reports and balance sheets
^ puiportedly issued by M/s M.K. Aggarwal and Co., Chartered Accountant whereas no such firm under the name and style existed on the address given during the relevant period. Further the Petitioner has fraudulently showed property No. 475, 3'"'' Floor, Haider Quli, Chandni Chowk as the office of
M/s D.S. Enterprises in his loan application and the other loan documents
9- whereas the fact of the matter was that one Shri Suman Kishore, Proprietor of M/s Jyoti Fragrances Pvt. Ltd had hired the said property from Shri Ram
Dev Sharma from August, 2007 to February, 2009 for the office premises of the aforesaid company. During the saidperiod the Petitioner was worlcing as employee ofM/s Jyoti Fragrances Pvt. Limited from 2006 to 30"^ September,