IN THE HIGH COURT OF JHARKHAND, RANCHI A.B.A. No. 3186 of 2016 Pande Ratneshwari Prasad, S/o Late Pande Parmeshwari Prasad. ..... Petitioner(s) Versus State through Superintendent of Police, Central Bureau of Investigation. …. Opp. Party(s) _______ CORAM :HON’BLE MR. JUSTICE ANANT BIJAY SINGH ______ For the Appellant(s) : Mr. Pandey Neeraj Rai, Advocate. Mr. Rohit Ranjan Sinha, Advocate For the CBI : Mr. K.P.Deo, S.C. ----- C.A.V. On 23.08.2017. Pronounced on 18.11.2017 1. The instant application for anticipatory bail filed on behalf of the petitioner, Pande Ratneshwari Prasad has been pressed.
2. Heard learned counsel appearing for the petitioner and learned counsel for the CBI.
3. The petitioner is apprehending his arrest in connection with FIR No.RC0932014S0012 (dated 28.07.2014) of CBI, EOW, Ranchi, initially registered under Sections 120B read with Sections 420, 468 and 471 of the Indian Penal Code lodged on the basis of one complaint filed by Shri Neeraj Raja Singh, Chief Manager, State Bank of India, SME Branch, City Centre, Sector-IV, Bokaro Steel City addressed to the Superintendent of Police, Economic Offence Wing, Central Bureau of Investigation, Ranchi, are as follows:- (a) The informant since was posted as Chief Manager, State Bank of India, SME Branch, City Centre, Sector-IV, Bokaro Steel City, Distt :- Bokaro, duly authorized by the competent authority of the Bank to lodge the instant F.I.R.; (b) It has been alleged that the State Bank of India has given loan to M/s Balaji Food and Masala Co.Ltd., located at Hazaribagh, District :- Hazaribagh; (c) It is alleged that the said unit was promoted by Sri Vivek Pratap Singh, resident of Hazaribagh along with Sri Birendra Kumar, resident of Suresh Colony, Hazaribagh, and its banking relationship with State Bank of India started at Commercial Branch, Bokaro (SME Bokaro). 2 (d) It is alleged that the loan was sanctioned to the above-mentioned unit on 20.11.2006, but subsequently was declared N.P.A. on 28.11.2011 as there was no recovery of loan account to the tune of Rs.2.59 Crores plus accrued interest calculated till July, 2013, and as such, the matter was transferred to Stressed Assets Management Branch (SAMB), Patna, for hard recovery measures; (e) It is further alleged that a notice under Section 13(2) of the SARFAESI Act, 2002, was issued on 27.12.2011 and further a possession notice under Section 13(4) of the said Act was issued on 09.08.2012 and the same was challenged by the aforesaid unit before the Debts Recovery Tribunal, Ranchi, in S.A. No.95 of 2012; (f) Due to intervention of the Debts Recovery Tribunal, Ranchi, the above-noted case could not proceed, but in the meantime, the NPA Resolution Agent, M/s Vision, had taken possession of the land and properties of the unit which were mortgaged to the State Bank of India. M/s Vision advised vide its Letter No.VFBS/ 38/2012-13 dated 07.03.2013 that properties mortgaged to the Bank vide Sale Deed Nos.10710 dated 09.10.2009, 10723 dated 10.10.2009, 11080 dated 26.10.2009, 11081 dated 26.10.2009 & 12409 dated 20.11.2008 was found to be fake property. (g) It is further alleged that Legal opinion dated 05.10.2013 was taken by another Advocate, Sri Rajendra Kumar Chopra and according to his opinion, the mortgagor, Sri Birendra Kumar neither has possession nor ownership. It is further alleged that the original sanction was given by Sri Dinesh Chand of 433, A.P. Colony, Gaya and the legal opinion of the Sale Deed No.12409 by Sri Pandey Ratenshwari Prasad, dated 20.11.2008, resident of 146, A.P. Colony, Gaya. (h) It is further alleged that during investigation, the investigating official of the Bank has pointed out 3 certain doubts on the integrity of the above Panel Advocates including the petitioner. On the basis of the aforesaid allegations, the instant FIR has been lodged under the aforesaid Sections of the Indian Penal Code.
4. Counsel for the petitioner while pressing bail application, submitted that the only allegation levelled as against the petitioner is that he has given legal opinion and there is no allegation of any forgery and on the contrary specific finding of CBI about commission of forgery is as against the accused Vivek Pratap Singh as the beneficiary of loan advanced by the Bank and no quid pro quo is attributable as against him and the allegation against the petitioner at best is that opinion regarding title investigation report is defective.
5. It was submitted that the petitioner has given the opinion in the prescribed format supplied by the Bank and so he has signed on the dotted line and as such, he cannot be alleged that he is conspirator.
6. It was also submitted that during course of the investigation, he was never arrested and whenever I.O. directed to appear, he appeared and cooperated with the investigation and statement was recorded and after completion of the investigation, the CBI has submitted final form on 30.09.2015 under Section 120B read with Sections 420, 467, 468 & 471 of the IPC and Sections 13(2) read with 13(1)(d) of P.C. Act, 1988 and Sri B. K. Tiwari, learned Special Judge, CBI Cases, Ranchi, on 17.05.2016 has taken cognizance of the offence under the aforesaid Sections of the IPC and P.C. Act.
7. On the other hand, learned counsel for the CBI appeared in this case and he has filed counter-affidavit and during course of arguments, he has relied upon the following paragraphs :- (a) The petitioner is an advocate empanelled in the State Bank of India which will be apparent vide communication made by State Bank of India through Chief Manager vide list of empanelled Advocates. (b) The duty of Law Officer with respect to investigation of Title and search report etc., are mentioned in the 4 manuals of loan and advance Part-1 (B) of State Bank of India. This manual has been collected during investigation as Document No.134 and they specifically mention about the essential aspect of pledge in Serial No.1 and the essential aspect of Mortgage is stated in Serial No.3 of Chapter-17. Some relevant clauses are stated here as under :- i. 3.3.2 Under Simple registered Mortgage, the deed of mortgage is required to be registered with the concerned Sub-Registrar/Registrar of Assurances by paying applicable stamp duty and registration charges within whose jurisdiction the whole or some portion of the property to which the document relates is situated. In this type of mortgage, property can be sold only with court intervention/order. ii. 3.4.3 Equitable Mortgage will have priority over subsequent registered mortgages. An equitable mortgage remains valid as long as the title deeds are retained by the mortgagee. If the mortgagee parts with the possession of the title deeds, the mortgage will remain extinguished. If, however, the mortgagee parts with the possession of the title deeds for a specific purpose, like examination by the solicitors or advocates of the intending purchaser of the mortgaged property, or for the creation of the subsequent mortgage in favour of a second mortgagee on a specific understanding with the latter that if the earlier mortgage is to subsist, the mortgager will not be deemed to have parted with possession although he has parted with the custody of the title deeds. iii. 3.4.5 (b) Deposit of title deeds accompanied by a registered memorandum of deposit. A memorandum of deposit must be drawn up according to the Bank’s standard format or specially by the Bank’s solicitors/advocates where considered necessary. It will state the maximum amount to be secured and that the mortgage covers all present and future advances. It will also contain an agreement by the mortgagor to create a registered mortgage if called upon to do so. It requires to be stamped under Article 6 of Schedule 1 of the Indian Stamp 5 Act or the corresponding article of the State Stamp (Amendment) Act, and must be registered under the Indian Registration Act. iv. 3.4.6 While creating an equitable mortgage by deposit of title deeds, the following procedure should be followed:- (a) After the title deeds have been approved by the local advocates/ Bank/s Solicitors and searches with the land registry /other local authorities carried out for encumbrances and searches of the ‘lis-pendens register’ carried out for ascertaining that there are no adverse interests existing on the property to be mortgaged, all persons interested in the property as owners must call at the Branch to make the deposit of title deeds in the presence of the Branch Manager/Divisional Manager and two other employees of the Bank. (b) Where the property belongs to a partnership firm, all the partners must call at the branch for the purpose. However, if any one or more of the partners cannot call at the Branch for unavoidable reasons, then the attending partner(s) produce a letter of authority from the absentee partner(s) authorizing the attending partner(s) to make the deposit on his/their behalf with intent to create the mortgage of the firm’s property in favour of the Bank. v. 3.4.7 In case of the State owned lands, the owner ship will vest in the state or Central Government, as the case may be and the holder of such land will be entitled to occupancy rights only. Certain occupancy rights are heritable and assignable while certain others can be assigned only after obtaining the consent of the authorities concerned. It should, therefore, be ensured that the state laws permit the occupants to mortgage the occupancy rights in favour of the Bank. vi. 3.4.8 (ii) Reference to Advocates/solicitors : The task of investigation of title and scrutiny of title deeds should be entrusted to advocates/solicitors and specific and categorical opinion should be obtained on the following points. 6 (a) Whether the documents of title are complete in all respects and sufficient to convey a clear, absolute and marketable title to the property; (b) Whether the property offered as security to the Bank is unencumbered/ unattached; (c) Whether the persons seeking to secure the property to the Bank have a clear and marketable title thereto and are legally capable of creating the chare thereon in favour of the Bank; and (d) Whether the property is subject to any tenancy law which will affect the Bank’s rights eventually to take possession thereof or cause it to be sold or otherwise exercise its rights as mortgagee. In all cases where the legal opinion is ambiguous or non-conclusive, the matter should be referred to the controlling authority. While selecting the advocates/solicitors for examination and reporting on title of immovable properties, special emphasis should be laid on the choice of advocates/solicitors having the requisite expertise and reputation in the matter of scrutiny of title deeds of properties for conveyancing. The financial details of the proposals should not, as far as possible, be disclosed to the advocates/solicitors and the fees should not be linked to the amount of the advance. (iii) Searches to be carried out :Searches of registers and other records maintained by the sub-registrar of Assurances, collectors and /or other revenue authorities should be carried out by the local advocates or the Bank’s Solicitors, or the company Secretaries in practice, if and when considered necessary, for ascertaining whether there is any outstanding mortgage or charge on the property to be mortgaged to the Bank. After the scrutiny of the title deeds and the carrying out of the searches as above, a final search of the register maintained by the District Court and/ or High Court known as ‘lis-pendens register’ should be carried out with a view to ascertaining that no proceedings are pending in the 7 court in respect of the property to be mortgaged to the Bank. For protecting the interest of the Bank as Mortgagee, searches with the land registry, other local authorities and of the ‘Lis Pendens register’ (wherever available) are absolutely necessary and should be carried out without fall in order to ensure that there are no adverse interest existing on the property to be mortgaged. (c) It has further been mentioned that this petitioner/ Advocate entered into criminal conspiracy with the loanee and others to defraud the bank. The petitioner/Advocate is not only the accused in one case, but he is involved in other four cases also, i.e. RC8S)/2014-EOW-R, RC9S)/2014-EOW-R, RC10S)/2014-EOW- R, RC11S)/2014-EOW-R and RC12S)/2014-EOW-R. All these cases were investigated by separate Investigating officer and in all these cases, his connivance has been proved. In all these cases, he replies to the queries made by the CBI. On the basis of his role and the criminal conspiracy that he entered into with accused Bank officials and loanee to defraud public money, CBI has charge-sheeted him in all five cases as accused. (d) It has been submitted that this petitioner gave ‘Title Investigation Report’ in respect of all collateral securities including fake landed property registered vide deed no.12409 dated 20.11.2008 and Land Rent Receipts/Malguzari Rasids in favour of another accused borrower/loanee, Birendra Kumar. He mentioned in his report title of the property that it was fit for valid equitable mortgage. On the basis of his report, properties were mortgaged and loan was enhanced. (e) It has been submitted that it is shown in Sale Deed No.12409, dated 04.03.2009 that Karam Ram, S/o Late Bhikhan Ram sold a land measuring area of 2 acres at Mauza:- Hupad, Pargana- Champa, P.S.:- Muffasil, Thana No.254, Distt :- Hazaribagh, under Plot No.1507, Khata No.118, to another accused Birendra Kumar, S/o Shri Basudeo Lal. (f) It has been submitted that during investigation, Circle Officer, Sadar, Hazaribagh has confirmed through his letter that land under Khata No.118, Thana No.254, Village :- Hupad, P.S.:- Muffasil, Distt :- Hazaribagh, is ‘Gairmazurua Khas (Govt. land)’ of Jharkhand Govt. Category of land is Jungal (forest). The Circle Officer has also confirmed that jamaband (restitution) of said plot has not been done in the name of either of the seller Karam Ram or Birendra Kumar. But, the petitioner mentioned in his report 8 that properties were fit for valid equitable mortgage. Thus, the petitioner cannot take protection of his legal opinion as discussed in judgment as reported in (2012) 9 SCC512 CBI Vs. Narayan Rao, because his personal involvement is apparent from above case.
8. It was submitted that it is not isolated case rather he has given his legal opinion in some firm for sanction of the loan to different units and 4-5 cases have been instituted as against him, so he does not deserved privilege of anticipatory bail.
9. After hearing the counsel for the petitioner and learned standing counsel for the CBI and in view of the evidence collected against the petitioner during course of investigation, it reveals that final form has been submitted and the petitioner has also been made accused in four other cases i.e. (1) RC8S)/2014-EOW-R, (2) RC9S)/2014- EOW-R, (3) RC10S)/2014-EOW-R & (4) RC11S)/2014-EOW-R appertaining to the same nature of work, I am not inclined to enlarge the petitioner on anticipatory bail and hence, the prayer for anticipatory bail is hereby rejected. (Anant Bijay Singh, J .) Sandeep/