V.K. Bhutiani  INSC 1428 (11 August 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1354
OF 2007 C.B.I. .... APPELLANT Versus
The appellant-Central Bureau of Investigation has come up in this
appeal against the order dated 20.4.2005 passed by the High Court of Delhi in
Criminal Revision Petition No. 945 of 2003. In that Revision Petition, V.K.
Bhutiani (respondent herein) had challenged the order on charge dated 23.8.2003
passed by the Special Judge, Delhi. Those charges are as under:
P.K. Bhasin, Special Judge, Delhi hereby charge you V.K. Bhutiani, O.P.
Rajvanshi, Mrs. Rashmi Aggarwal Parveen Aggarwal and Neeraj Jain as follows:
accused V.K. Bhutiani, while being posted as a Senior Manager in New Bank of
India, E- Block, Connaught Circus, New Delhi and you accused O.P. Rajvanshi,
Mrs. Rashmi Aggarwal, Praveen Aggarwal and Neeraj Jain along with S. Mohd.
Yusuf (now dead) had entered into a criminal conspiracy sometime during
November and December 1989 at New Delhi for defrauding/cheating New Bank of
India to the tune of Rs. 17.20 lacs by 2 resorting to cheating, forgery of
documents in the nature of valuable securities and for using those documents
for getting loan facilities to the extent of Rs. 17.20 lacs in the name of M/s.
Vikram Enterprises, proprietorship concern of you, accused, O.P. Rajvanshi and
also by abuse and misuse of authority and also by abuse and misuse of authority
as a public servant you, accused V.K. Bhutiani and thereby you all committed an
offences punishable under Section 120-B r/w Section 420/467/468/471 IPC and
Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988.
in furtherance of the aforesaid conspiracy your accused V.K. Bhutiani, O.P.
Rajvanshi, Rashmi Aggarwal, Parveen Aggarwal and Neeraj Jain cheated New Bank
of India and got released loans amount of Rs. 17.20 lacs in the name of M/s.
Vikram Enterprises by way of two orders dated 28.12.1989 and 26.12.1989
respectively for Rs. 12.65 lacs and Rs. 2.25 lacs in favour of M/s. Hazi Gubar
and S. Abdul Kareen and one pay order dated 26.12.1989 for Rs. 2.30 lacs in
favour of M/s. Multiple Traders and thereby you all committed an offence
punishable under Section 420 IPC.
that in furtherance of aforesaid conspiracy you accused O.P. Rajvanshi forged
on receipt dated 20.12.89 for Rs. 4,35,000/- purporting to have been issued by
M/s. Hazi Gudar S. Abdul Kareen in favour of M/s. Vikram Enterprises and you
also forged one letter dated 17.12.1989 purporting to have been written by M/s.
Hazi Gudar S. Abdul Kareem to Vikram Enterprises for using the same for
cheating New Bank of India by obtaining loan of Rs. 17.20 lacs and you also
used these forged documents dishonestly and fraudulently and 3 thereby you
committed an offence punishable under Sections 467/468/471 IPC.
that in furtherance of the aforesaid conspiracy you accused Parveen Aggarwal
forged on invoice dated 15.12.89 for Rs. 2.30 lacs purporting to have been
issued by M/s. Multiple Traders, proprietorship concern of your co-accused
Rashmi Aggarwal, in the name of Vikram Enterprises for being used for the
purpose of cheating New Bank of India by obtaining loan of Rs. 17.20 lacs in
the name of Vikram Enterprises, firm of you co-accused O.P. Rajvanshi and you
also forged a receipt of Rs. 1 lac for the same purpose purporting to have been
issued by Multiple Traders in favour of M/s. Vikram Enterprises and these
documents were then used for cheating New Bank of India and thereby you
committed an offence punishable under Sections 467/468/471 IPC.
that in furtherance of the aforesaid conspiracy that you accused V.K. Bhutiani
by corrupt or illegal means and by abusing your position as a public servant
being a Senior Manager of New Bank of India sanctioned loan of Rs. 17.20 lacs
for M/s. Vikram Enterprises, proprietorship concerns of your co-accused O.P.
Rajvanshi without any public interest and thereby you committed an offence
punishable under Section 13(1)(d) of Prevention of Corruption Act, 1988.
hereby direct that all be tried by this Court for the aforesaid offences.
Special Judge/Delhi 27.9.2003."
The Revision Petition was basically on the ground that the
respondent, who was a Senior Manager of the New Bank of India at the relevant
time, was in fact exonerated by the Central Vigilance Commission and in its
report, he was found to be innocent. The charges, which we have quoted above,
were extremely serious and included also the charge of conspiracy with a view
to defraud the bank. In the process, it is apparent from the charge that the
respondent along with other co-accused had entered into a criminal conspiracy
to defraud the bank by granting the loans which should never have been granted.
The allegation is regarding the securities which have been accepted against
those loans were worthless. It has also come on record that that the loans were
The High Court in its judgment has basically relied upon the
report of the Central Vigilance Commission and also relied on the ruling
We have carefully gone through the aforesaid ruling. In paragraph
8 of the impugned order, the High Court opined as under:
my opinion, this judgment squarely applies in the present case. The basic
factors to establish conspiracy of petitioner were all before the Central
Vigilance Commission. After taking all these factors into consideration, it
found that the petitioner was not actually involved in any corrupt practice or
in the conspiracy of the other accused persons intended to cheat the bank. The
discrepancy between the dates of making 5 a prayer for loan and the
recommendation for it or opening of the account were all observed to be in accordance
with practice, although a haste on the part of the petitioner was proved. So
far as valuation of the property offered as security is concerned, the
petitioner had actually not committed any fraud. He did not over value the
Central Vigilance Commission having taken note of the fact has held that it was
a case of misjudgment rather than a case of conspiracy. The vigilance
commission also went into the question whether the petitioner was at fault in
not making enough inquiries about the genuineness of the documents issued by
A-3 and others and about the genuineness of the business run by A-3. Yet the
Vigilance Commission has given a clean chit to the petitioner although it found
the petitioner guilty to the extent of making a faulty judgment in recommending
the proposal." (emphasis supplied)
We have deliberately quoted the above paragraph to note that the
High Court did not bother to examine the charge-sheet and the allegations made
therein nor did it examine the statement of the witnesses and/or the reports of
the handwritten experts which were the part of the charge-sheet.
In our opinion, the reliance of the High Court on the ruling of
P.S. Rajya (supra) was 6 totally uncalled for as the factual situation in that
case was entirely different than the one prevalent here in this case.
We were also taken through the report of the Central Vigilance
Commission. Para 7.1 of the said report reads as under:
allegations against Shri V.K. Bhutiani are held proved only to the extent of
making a faulty judgment in recommending the proposal for the PC limit as
pointed out in para 6.61 and the article of charge is held proved only to the
extent as various allegations have been substantiated or otherwise as mentioned
in the assessment portion of the report."
Thus, it cannot be held that the Central Vigilance Commission had
given a clean chit to the respondent-accused.
In para 18 of the ruling in P.S. Rajya (supra), relevant part of
the report of Vigilance Commission was quoted. Para 18 of the said judgment
reads as under:
may not be out of place to extract a portion from the order exonerating the
appellant from the charge framed in the departmental proceedings. It reads as
Commission after careful consideration of the facts and records of the case,
have advised that the savings of the applicant,Shri P.S. Rajya, were more than
the assets acquired by him and, therefore, the charge of acquisition of assets
disproportionate to income does not stand proved. A copy of the advice of the
Commissioner is enclosed. The Commission have also advised that the ends of
justice would be met by exonerating the charged officer Shri P.S. Rajya."
President has given careful consideration to the facts and records of the case
and advice of the UPSC.
President has come to the conclusion that the advice of the UPSC be accepted.
It is, therefore, held that the articles of charge framed against Shri Rajya
has not been proved. The President is, therefore, pleased to exonerate Shri
Rajya, AIT (Retd.) of the charges framed against him and drop the proceedings
initiated against him"
From a mere glance of this, it will be seen that the Central
Vigilance Commission had exonerated the accused therein by writing a clear cut
finding that the charge of acquisition of assets disproportionate to the income
did not stand proved against the accused in that case. Such is certainly not
the case here.
In our opinion, though the report of the Central Vigilance
Commission may be a relevant factor, it cannot be held to be "be all or
end all" of the matter for prosecuting the accused persons of such serious
Mr. Manoj Jain, learned Additional Solicitor General appearing on
behalf of the appellant-C.B.I. very rightly argued that the High Court has
treated the said report to be "be all or end all" of the matter. He
submitted that the High Court was not correct in doing so.
Learned counsel appearing for the respondent very candidly
admitted that from the report, it cannot be said that the respondent- accused
in this case was totally exonerated. We have deliberately quoted aforesaid para
7.1 of the report only to show that the respondent 8 was not totally
exonerated. Thus, the reliance by the High Court on the aforementioned ruling
of P.S. Rajya (supra) was uncalled for.
The ruling of P.S. Rajya (supra) was considered by this Court
Another (2007) 14 SCC 667 wherein this Court, after elaborate discussion, found
that where the fact situation was different, the reliance could not be made all
together on the report of the Central Vigilance Commission. Relying on the
ruling of reiterated the position that where there could be some material found
in the charge sheet, then it would not be the function of the court to examine
the charge-sheet with a view as to whether the accused could be convicted or
not. That would be a pre-mature exercise. The judgment in the case of M.Krishna
Mohan (supra) was against acquittal and reliance on behalf of the defence was
placed on the report of the Central Vigilance Commission. In para 32 of the
said judgment, this Court has made a clear reference that there was a clear cut
finding by the High Court to the effect "we have already held that for the
reasons given, on the peculiar facts of this case, the criminal proceedings
initiated against the appellant cannot be pursued."
We do not find any such reasoning having been given in the present
case by the High Court. On the other hand, a perusal of the impugned order
suggests that the High Court did not examine the 9 material available by way of
charge-sheet and has proceeded to follow the ruling of P.S. Rajya (supra). We
are, therefore, satisfied that this appeal has to be allowed by setting-aside
the impugned order passed by the High Court. Accordingly, the appeal succeeds.
The impugned order is set-aside and the matter is remanded. Now the trial court
shall proceed with the trial since the charges have already been framed. All
the contentions in law and fact shall be available to the respondent as well as
the prosecution. This judgment shall not be treated to be an expression of
opinion on our part.
......................J. [ V.S. SIRPURKAR ]
......................J. [ DEEPAK VERMA ]
AUGUST 11, 2009.