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Ashok Kumar Gautam v/s State of Bihar


Company & Directors' Information:- A. KUMAR AND COMPANY PRIVATE LIMITED [Active] CIN = U19201UP1995PTC018833

Company & Directors' Information:- ASHOK AND CO INDIA PVT LTD [Active] CIN = U15549AS1992PTC003756

Company & Directors' Information:- S KUMAR & CO PVT LTD [Not available for efiling] CIN = U51909WB1946PTC014540

Company & Directors' Information:- S KUMAR AND COMPANY PRIVATE LIMITED [Converted to LLP] CIN = U45203DL1964PTC117149

Company & Directors' Information:- KUMAR (INDIA) PVT LTD [Strike Off] CIN = U51909WB1986PTC041038

Company & Directors' Information:- P KUMAR & CO PRIVATE LIMITED [Strike Off] CIN = U27105WB1998PTC087242

Company & Directors' Information:- ASHOK AND COMPANY PRIVATE LIMITED [Active] CIN = U74899DL1986PTC024382

    Crl.Misc.Case 19144 Of 2006, Crl.Misc.Case 30258 Of 2006

    Decided On, 14 September 2006

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE MRIDULA MISHRA

    For the Appearing Parties: Chitranjan Sinha, S.K. Sinha, Rakesh Kumar, Advocates.



Judgment Text

MRIDULA MISHRA, J.

(1.) Heard the parties. Petitioners in both these applications are accused in RC No. 7-A of 2000, Special Case No. 3 of 2000. Petitioner, Ashok Kumar Gautarn, was the Branch Manager of Punjab and Sind Bank, Muzaffarpur Branch, at the relevant time when occurrence had taken place. Petitioners, Deep Narayan @ Deep Narayan Alani, Topan Das, Kamal Kumar @ Ganga Ram and Smt. Rita Devi, are alleged to have taken loan from Punjab and Sind Bank, Muzaffarpur Branch, amounting to Rs. 44,26,000/- with an intention to cheat the Bank. The loan was sanctioned to them in pursuance of conspiracy with Ashok Kumar Gautam on different dates under different heads of loan without taking proper security and sureties, during the period 1988-99. Ashok Kumar Gautam was in custody and he was allowed provisional bail by order, dated 16.5.2006, as the undertaking was given by him that after being released on provisional bail he will make all efforts for realisation of maximum amount of loan. All other petitioners have filed their application for anticipatory bail.

(2.) Counsel appearing for the petitioners (borrowers) have submitted that they being A+ borrowers with sound transactions approached the Bank and availed various facilities. The loans were sanctioned by the various Branch Managers of Punjab and Sind Bank, Muzaffarpur, including Ashok Kumar Gautam and Zonal Manager of the Bank at Calcutta. They followed all procedures in availing loan and over draft facilities. They also provided requisite security in the form of fixed deposits, National Saving Certificate, Indira Vikas Patra and collateral title deeds of property for sanction of loan. During the relevant period of 1988-99, the monthly, quarterly and half yearly audit of the Branch Office was done by the Company Auditors and the statement of the account were sent to the concerned higher officials of the Bank. No irregularity or fraudulent activities were detected which was against the interest of the Bank. The allegation that Ashok Kumar Gautam extended loans and facilities of overdraft to the petitioners without any security is incorrect. In fact, adequate and sufficient security were given to the Bank by the petitioners. A certificate to this effect had been issued by the officer of the Punjab and Sind Bank, Muzaffarpur. Deeds of six properties of the petitioners were deposited with the Bank which is in possession of the Bank. The loans and advances were secured and it was falsely and maliciously been alleged that the loans and overdrafts were unsecured.

(3.) Counsel for the petitioners have also submitted that if the deeds of the properties mortgaged with the Bank is not recognized by the Bank, in that case they may be permitted to sell those properties. These are valuable properties and the petitioners in that case will be able to repay principal as well as the interest amount, outstanding dues against them. Petitioners have annexed the list of security deposited by them with the Bank in order to secure the loan.

(4.) To verify this statement and the documents annexed with the anticipatory bail application, Branch Manager, Punjab and Sind Bank, Muzaffarpur, was impleaded as party. He appeared and also filed counter-affidavit. In paragraph 4 of the counter-affidavit it has been stated that in between 23.1.1999 to 20.11.1999 the borrowers (petitioners) in conspiracy with Ashok Kumar Gautam officiating Incharge Manager of the Bank, obtained loans to the tune of Rs. 18,86,666/- and overdraft facility to the tune of Rs. 25,56,822/- without furnishing any security. These loans were sanctioned by accused Ashok Kumar Gautam who was not authorised. This has caused a loss of rupees forty four lacs and odd to the Bank. It was done for wrongful gain to the accused persons. It has also been submitted that the cognizance has already been taken and the prosecution will not take more than a year to conclude the case as there are only thirteen witnesses to be examined and seventeen documents to be proved by the prosecution. It has also been submitted that the borrowers have deposited Rs. 11.41/- lacs on different dates in between January 2000 to March 2005, for the satisfaction of the outstanding dues of 18,57,438/- has remained unpaid in the said loan amount, claim of the petitioners that the loans were unsecured, is incorrect. These securities are connected to the loan account of M/s. Otan Mal, which were sanctioned by the Zonal Manager, Calcutta, for a cash credit limit of rupees ten lacs and a Bank guarantee limit up to rupees ten lacs and a loan of Rs. 22,33,005/-.

(5.) It has also been stated by the Branch Manager, Punjab and Sind Bank, Muzaffarpur, that the petitioner was enlarged on provisional bail on this undertaking that he will make all efforts for realisation of the loan amount granted to the loanees but not a single farthing has been deposited/realized after the release of the petitioner on provisional bail.

(6.) In reply, it has been submitted by the petitioner's (Ashok Kumar Gautam's) Counsel that he met the loanees for realisation of the loan amount. Petitioner, Deep Narain, made proposal to sell his properties for repaying of loan. Firstly, he wanted to sell property located at Dighwara followed by the sale of other properties. He also stated that the sale proceeds will be deposited for settling the liabilities. The Branch Manager agreed with the proposal in principle but only after taking fresh valuation of the properties in question. The loanees have also approached the Bank and requested for furnishing all the loan accounts. However, opposite party No. 2 rejected the proposal, which only shows that the Bank authorities are not interested in settlement of the dues rather they want to linger the matter. The Bank has also filed money suits bearing Money Suit No. 13 of 1990 against the loanees with regard to the loan before the Subordinate Judge, Muzaffarpur.

(7.) Considering the submissions of the parties and allegation against the accused person, Ashok Kumar Gautam, who was arrested on 22.2.2006, it transpires that he is making efforts for realisation of loans. Accordingly, the order of provisional bail, dated 16.5.2006, passed in Crl. Misc. No. 19144 of 2006 is confirmed. Ashok Kumar Gautam will remain on the same bail bond.

(8.) In case of petitioners of Crl. Misc. No. 30258 of 2006, the prayer for anticipatory bail on behalf of the petitioners, Deep Narayan @ Deep Narayan Alani, Topan Das and Kamal Kumar @ Ganga Ram is rejected.

(9.) Prayer of Smt. Rita Devi (Petitioner No. 4 of Crl. Misc. No. 30258 of 2006) for grant of anticipatory bail is allowed considering the fact that she is a female and must have been only a name lender for all these transactions. She is directed to be released on anticipatory bail, on her appearance/surrender within two weeks from today before the Court concerned, on furnishing bail bond of Rs. 10,000/- (rupees ten thousand) with two sureties of the like amount each in connection with R.C. No. 7 (A) of 2000 (Special Case No. 3 of 2000) to the satisfaction of the Special Judge, Central Bureau of Investigation, Patna, subject to the condition laid down under section 438(2) of the Criminal Procedure Code.

(10.) From the statement of the Bank Manager made i

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n paragraph 15 of the counter-affidavit, it transpires that the Bank is not recognizing all documents claiming to be deposited by the petitioners as security as mentioned in paragraph 16 of the anticipatory bail application (Annexure-5). The Bank has admitted only documents deposited as security in Annexure-5 at serials No. 1, 2 and 5, in that case the petitioners may take steps for selling the properties mentioned at serials No. 3, 4 and 6 mentioned in Annexure-5. By selling these properties the outstanding dues of the Bank can be cleared by the petitioners. The Bank will not raise any objection, if petitioners take steps, in this regard. However, the sale proceeds should not be utilized for any other purpose by the petitioners except for repayment of outstanding dues of the loan amount. Petitions disposed of.
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