- Sections 120-B, 420, 465, 467, 468, 471 r/w Section 34 of the Indian Penal Code
- Central Bureau of Investigation and another v. Rajesh Gandhi and another, (1996) 11 SCC 253
- Sanjeev Rajendra Bhatt v. Union of India and others, (2016) 1 SCC 1
- i) Bharati Tamang v. Union of India and others, (2013) 15 SCC 578
- ii) Narmada Bai v. State of Gujarat and others, (2011) 5 SCC 79
- iii) Samaj Parivartan Samudaya and others v. State of Karnataka and others, (2012) 7 SCC 407
- iv) Subrata Chattoraj v. Union of India and others, Writ Petition (Civil) No.401/2013
- v) Babubhai v. State of Gujarat and others, (2010) 12 SCC 254
- vi) Advocates Association, Bangalore v. Union of India and others, (2013)10 SCC 611
- State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others, AIR 2010 SC 1476
- T.C. Thangaraj v. V. Engammal and others, AIR 2011 SC 3010
- Vasanti Dubey v. State of Madhya Pradesh, (2012) 2 SCC 731
- Prof. K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and others, 2013 (6) Supreme 136
- Sujatha Ravi Kiran @ Sujatasahu v. State of Kerala and others, 2016 (4) Supreme 162
- K. Saravanan Karuppasamy and another v. State of Tamil Nadu and others, (2014) 10 SCC 406
- Hari Singh v. State of U.P., (2006) 5 SCC 733
- Girimallappa v. State of Karnataka and others, WPHC No.200001/2016
- Nusrath Jahan v. State of Karnataka and others, W.P.No.40282/2010
Criminal Procedure Code, 1973 – Section 173 (8) – Investigation – Insofar as the matter relating to the investigation to be conducted on a complaint, the Investigating Officer will have to carry out the investigation in all earnestness. He should neither exclude any relevant material nor should he be expected to create or fabricate material to bring to book the accused under any circumstance. It should be a fair investigation. On completion of the investigation and the report is laid before the jurisdictional Court, the learned Judge of such Court has the duty to examine the report and either accept the same or to order further or fresh investigation. In appropriate cases the learned Judge may also record evidence and proceed in terms of Section 202 of Cr PC.
Constitution of India – Article 226 – Investigation by another Agency – the power to direct the investigation by another agency should not be done in a routine manner for the mere asking or based on apprehensions. It is only in exceptional cases which has serious ramifications such power should be exercised.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF OCTOBER, 2016
BEFORE THE HON’BLE MR. JUSTICE A S BOPANNA
BETWEEN: M/S DEUTSCHE BANK AG A BANKING COMPANY REGISTERED UNDER THE LAWS OF INDIA, HAVING ITS OFFICE AT RAHEJA TOWERS, 26-27, M G ROAD, BANGALORE-560 001 REPRESENTED BY ITS ASSISTANT VICE-PRESIDENT MR.SUDARSAN SRIDHARAN & BY ITS ANALYST-TRADE SERVICES MR. USMAN SHARIFF … PETITIONER (BY SRI. VIJAY SHANKAR, SR. COUNSEL FOR SRI. VIKRAM TRIVEDI, ADV. FOR M/S. SHETTY & HEGDE ASSTS.) AND: 1. THE STATE OF KARNATAKA BY THE CENTRAL CRIME BRANCH (CCB) BANGALORE 2. THE DEPUTY DIRECTOR OF PROSECUTION BANGALORE DIVISION, NO.1, INFANTRY ROAD THE OFFICE OF THE COMMISSIONER OF POLICE BANGALORE- 01 2 THE RESPONDENT NO.1 & 2 BY STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, HIGH COURT PREMISES, BANGALORE-01 3. THE UNION OF INDIA BY THE CENTRAL BUREAU OF INVESTIFATION, BANGALORE BY THE CENTRAL GOVT. COUNSEL, HIGH COURT OF KARNATAKA, HIGH COURT OF PREMISES, BANGALORE-01. 4. V SATISH KUMAR S/O SRI V V RAMA RAO AT NO.16-11-19, SALEEM NAGAR, MALAKPET, HYDERABAD. 5. SRI UDAY BHASKAR MAJOR IN AGE WORKING AS INSPECTOR OF POLICE, CCB AT BRIAND SQUARE, CHAMARAJPET BANGALORE. … RESPONDENTS (BY SRI. A.S.PONNANNA, ADDL.AG. A/W SRI. E. S. INDIRESH, AGA. FOR R1 & 2 SRI. P. PRASANNA KUMAR, ADV. FOR R3 SRI. C.V. NAGESH, ADV. FOR R4 R5 IS SERVED & UNREPRESENTED)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, WITH A PRAYER TO ISSUE A WRIT OF MANDAMUS OR ANY OTHER APPROPRIATE WRIT, ORDER OR DIRECTION ENTRUSTING THE INVESTINGATION IN CRIME NO.213/2009 OF HALSOOR POLICE STATION, BANGALORE, NOW BEING INVESTIGATED BY CCB, BANGALORE, REGISTERED FOR THE OFFENCES UNDER SECTIONS 120-B, 420, 465, 467, 468, 471 R/W SECTION 3 34 IPC TO THE CENTRAL BUREAU OF INVESTIGATION, BANGALORE AND DECLARE THAT THE LEGAL OPINION AT ANNEXURE P3 HEREIN GIVEN BY THE RESPONDENT NO.2 IS ILLEGAL AND INVALID. THESE WRIT PETITIONS HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING :
The petitioner is before this Court in these petitions seeking that the investigation in Crime No.213/2009 of Halasuru Police Station, Bengaluru registered for the offences alleged under
# Sections 120-B, 420, 465, 467, 468, 471 r/w Section 34 of the Indian Penal Code
(‘IPC’ for short) be entrusted to the Central Bureau of Investigation (‘CBI’ for short). In that regard the petitioner is contending that the legal opinion given by respondent No.2 at Annexure- P3 is illegal and not valid.
2. The petitioner is a Banking Company registered in accordance with law in India, having been incorporated in Germany with branches all over, including the one in Bengaluru. In the course of its banking business, the respondent No.4 along with the others named by the petitioner in their complaint, representing M/s. Prithvi Information Solutions Ltd., a company registered under theCompanies Act approached the petitioner – Bank during July 2007 seeking provision for multipurpose trade/cash facility to the tune of Rupees Thirty crores and also for Forex/Hedging facilities. The petitioner alleges that they made representations about the reputation of the Company and the services being provided by them to reputed International clients though it was false to their knowledge. Being mislead by such representation the petitioner – Bank agreed to provide the credit facilities to the extent of Rupees Twenty Five crores through the offer letter dated 20.11.2007.
3. The said Company thereafter submitted request letters relating to the transactions in all amounting to Rs.24,79,67,750/- which was credited to the current account No.2045839-00-0 maintained by the said company. The said amount was to be repaid before 16.09.2008 but there was default. The petitioner alleges that the said persons however represented that they have good relations with foreign purchasers such as M/s. T-Mobile USA, M/s. Johns Hopkins Hospital, USA and Star Point Solutions LLC, USA and that they have executed work for them and held out that they are entitled to receive amounts from them covering the amount and sought for Bill Discounting facility. In this regard, certain documents were also submitted. Accepting such representation, the petitioner – Bank agreed to provide the said facility to the tune of Rupees Thirty crores and credited the same to the account of the said Company.
4. The petitioner – Bank however did not receive the payments from the said foreign purchasers and when the same was brought to the notice of respondent No.4, they assured of following it up. But when the petitioner – Bank communicated with the said foreign companies, the petitioner – Bank received letters dated 24.04.2009 and 07.05.2009 from the respective foreign companies informing the petitioner – Bank that they did not have any transaction with M/s. Prithvi Information Solutions Ltd. The petitioner – Bank thus realising that the documents submitted were fabricated and forged which resulted in causing loss to the petitioner – Bank and amounted to cheating, filed a complaint dated 06.05.2009 to the jurisdictional Halasuru Police Station which was registered in Crime No.213/2009 on 07.05.2009 which was despatched to the X Addl. Chief Metropolitan Magistrate, Bengaluru, which is the jurisdictional Court. Apart from the same the petitioner- Bank also instituted recovery proceedings, winding up proceedings and initiated action before the Ministry of Corporate Affairs.
5. In so far as the criminal complaint, the petitioner – Bank alleges that a superfluous investigation was held and a ‘B’ report was filed on 22.07.2009 to which the petitioner – Bank filed the protest petition. When the matter was heard by the learned Magistrate and was posted for orders, the Investigating Officer filed a memo dated 24.05.2010 seeking leave for further investigation on taking note of the documents filed along with the protest petition. The learned Magistrate accordingly, through the order dated 26.05.2010 permitted him to re-investigate. However, since the method adopted by the Investigating Officer was not appropriate, the petitioner – Bank made a representation to the Commissioner of Police on 07.07.2010, who transferred the investigation to the Central Crime Branch (‘CCB’ for short), Bengaluru. Since the petitioner – Bank is not satisfied with the investigation by CCB also, they are before this Court seeking that the same be transferred to the CBI through the instant petition.
6. The respondents No.1 and 2 on behalf of the Investigation Agency has filed the objection statement and have sought to justify the action of the Investigating Officer. It is stated that the documents were secured and the investigation was carried out and it was found that a civil suit in O.S.No.4013/2009 was filed by the persons against whom the complaint was filed. In that view the entire documents were referred and as per the opinion, ‘B’ report was filed. On the protest petition being filed, the documents were obtained and as per the direction of the learned Magistrate to the Joint Police Commissioner, the investigation was referred to the CCB. On investigation by the CCB, ‘B’ report was filed. The petitioner – Bank has filed the protest petition. As such the learned Magistrate has directed the Commissioner of Police to re-investigate and accordingly the investigation was entrusted to the Assistant Commissioner of Police. The petitioner – Bank itself is not prompt in furnishing the required documents and it is prima facie found that some officials of the Bank are involved and therefore the documents are not submitted. When the Bank itself is not diligent, seeking transfer to the CBI is not justified is the contention. Further while filing the objections to the applications filed by the petitioner, the respondents have adverted more into the details of the investigation made and the steps taken to seek information through interpole and explore whether investigation can be conducted abroad. The relevant statements recorded have been referred. Further the status report has also been filed before this Court since during the course of the proceedings this Court had directed the investigation to be held and the report to be filed. The respondents No. 1 and 2 therefore seek to justify the investigation made and contend that the investigation by the CBI is not called for and hence sought for dismissal of the petition.
7. The respondent No.3- CBI has filed the objection statement contending that since the matter has been investigated by the CCB and since there is nothing to indicate that they have not investigated in the proper direction, the investigation by CBI is not required. In the instant case, it is a private transaction and does not involve any public servant so as to require an agency constituted under Delhi Special Police Establishment to investigate. It is further contended that they are already over burdened with heavy cases and such routine matters should not be entrusted to CBI. The very averments made in the petition indicates that there is no inter-state ramification. The alleged offences having taken place in Karnataka, the local police are competent. Hence they also seek dismissal of the petition.
8. The respondent No.4 against whom the allegation of committing the criminal offence is made, having got himself impleaded has filed the objection statement. It is contended that the writ petition is filed on false and unfounded contentions. The allegation that M/s.Prithvi Information Solutions Ltd., has defrauded the petitioner – Bank is denied. Though a complaint is filed in Crime No.213/2009, it is after due enquiry the ‘B’ report was filed on 22.07.2009 and thereafter a special investigation team attached to the CCB has also investigated into the matter and a ‘B’ report was filed. It is contended that there is no fraud committed or cheating involving public money and merely because of the false and unfounded allegations, the Directors of the Company cannot be subjected to repeated investigations. Insofar as the commercial transaction entered into between the parties, the petitioner – Bank has instituted proceedings before the Debt Recovery Tribunal.
9. In the objection statement the fourth respondent has also adverted in detail with regard to the nature of transaction between the petitioner – Bank and the company, the details of which need not be stated herein except for noticing the same as the scope of this petition is only with regard to the investigation that is sought by the petitioner – Bank through a different investigating agency. In that regard, it is their contention that when the investigation was handed over to the CCB, the petitioner – Bank expected the investigation to take place at their whims and fancies but when appropriate documents were sought by the Investigating Officer, the petitioner – Bank instead of providing the same, has been making baseless allegations. The allegation against the Company that they are habitual defaulters is denied. It is in that light contended that the mere allegations, being made by the petitioner – Bank cannot be the basis for directing investigation through the CBI when the two investigations already conducted has found that the grievance is civil in nature and third investigation is in progress. Hence, they have sought dismissal of the petition.
10. In the light of the above, I have heard Sri S. Vijayashankar, learned Senior Counsel, Sri C.V.Nagesh, learned Senior Counsel, Sri A.S.Ponnanna, learned Addl. Advocate General and Sri P.Prasanna Kumar, learned counsel for the respective parties and perused the petition papers.
11. Though the nature of the transaction between the petitioner – Bank and the Company which is represented by the fourth respondent is referred in detail, keeping in view the fact that the jurisdictional police as well as the CCB have already investigated into the matter and the ‘B’ report has been filed before the jurisdictional Magistrate and in that light since the petitioner being dissatisfied with the investigation is seeking that the re-investigation be entrusted to CBI which is the specialized Agency under the Delhi Special Police Establishment, the legal position relating to the power that is available to this Court and the manner in which it is to be exercised is to be noticed at the outset as large number of decisions are cited by the learned senior counsel and the counsel for the parties. Hence that aspect of the matter requires consideration before coming to the conclusion as to whether in the instant case re-investigation by a different agency is necessary or not.
12. Learned senior counsel for the petitioner has relied on the decision of the Hon’ble Supreme Court in the case of
# Central Bureau of Investigation and another v. Rajesh Gandhi and another, (1996) 11 SCC 253
and in the case of
# Sanjeev Rajendra Bhatt v. Union of India and others, (2016) 1 SCC 1
to contend that with regard to the decision to investigate or the decision on the agency that should investigate the accused cannot have any say in the matter and as such a consideration in that regard does not attract the principles of natural justice. In that view, it is contended that the fourth respondent herein cannot have any say and the very order passed by this Court permitting him to come on record by allowing the impleading application is not appropriate. On the position that the accused cannot choose the investigating agency, there can be no dispute as it is ultimately for the competent authority or in appropriate cases for the Court to direct the investigation to be carried out by a particular agency. However, in the instant case, the fourth respondent has come on record not only to indicate the nature of transaction, but also to contend before this Court that two investigations had been carried out by the jurisdictional Police as also the specialized agency and to contend that the accused cannot be made to undergo the repeated rigour of investigation over the same issue merely because the complainant is not satisfied, when the jurisdictional Court in any event would look into the report filed before it and satisfy itself. It is also pointed out that the investigation should not only be fair to the complainant, but should be fair to the accused as well. Hence the legal position on this aspect of the matter which has been brought forth on behalf of the fourth respondent no doubt will also have to be taken note by this Court.
13. The learned senior counsel for the petitioner while seeking to point out the view taken by the Hon’ble Supreme Court with regard to the effective investigation and reinvestigation has referred to the following decisions:
# i) Bharati Tamang v. Union of India and others, (2013) 15 SCC 578
wherein a reference was made to the earlier decisions which had held that the law should not be seen to sit by limply while those who defy it go free and those who seek its protection lose hope. The Courts should ensure that accused persons are punished and the authority of the State is not used to shield themselves. If inefficiency in investigation or prosecution is visible or can be perceived by lifting the veil, the Courts have to deal with the same with an iron hand.
# ii) Narmada Bai v. State of Gujarat and others, (2011) 5 SCC 79
wherein the Hon’ble Supreme Court had referred to the observations of its earlier decisions where it had been stated that though no opinion was expressed on the allegations it thought it wise to have the incident investigated by an independent agency like CBI so that it may bear credibility. It was stated so since the Court felt that no matter how faithfully and honestly the local police may carry out the investigation, the same will lack credibility as the allegations were directed against them. The said observation was taken note while considering the allegations made against the local police in this case when it was contended that it was a fake encounter.
# iii) Samaj Parivartan Samudaya and others v. State of Karnataka and others, (2012) 7 SCC 407
wherein it is held that the Court is vested with wide powers in order to equip it adequately to be able to do complete justice. Where the Investigating Agency has submitted the charge sheet before the Court of competent jurisdiction, but it failed to bring all the culprits to book, the Court is empowered under Sec. 319 Cr.P.C. to proceed against other persons who are not arrayed as accused in the charge sheet itself. The Court can summon such suspected persons and try them as accused in the case, provided the Court is satisfied of involvement of such persons in commission of the crime from the record and evidence before it. Wherever the State fails to perform its duties, the Court shall step in to ensure that the Rule of law prevails over the abuse of process of law. Such abuse may result from inaction or even arbitrary action of protecting the true offenders or failure of different authorities in discharging statutory or legal obligations in consonance with the procedural and penal statutes. The case pertains to the investigation relating to illegal mining, wherein the matter was transferred to the CBI.
# iv) Subrata Chattoraj v. Union of India and others, Writ Petition (Civil) No.401/2013
wherein while considering the case relating to a major financial scam called the ‘Chit Fund Scam’ affecting lakhs of depositors across several states in the eastern part of the Country the Hon’ble Supreme Court keeping in view the sensitivity as also the inter-state ramifications of the scam which was being investigated, though the State police agency had done well in making the seizures, in registering cases, in completing investigation in most cases and filing charge sheets and bringing the responsible persons to book the money trail had not been traced. In that circumstance the investigation by CBI was ordered.
# v) Babubhai v. State of Gujarat and others, (2010) 12 SCC 254
wherein, while considering the matter relating to the investigation pertaining to the clash between two communities it was observed that the investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that the investigation was unfair and carried out with ulterior motive. Hence it was held that the Investigating Officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The Investigating Officer is not merely to bolster up the prosecution case with such evidence as may enable the Court to record the conviction but to bring out the real unvarnished truth. Fair investigation is also part of the constitutional right guaranteed under Articles 20 and 21 of the Constitution of India. The investigation must be fair, transparent and judicious and the investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of Court would ultimately result in failure of justice, the Court must interfere. In such situation, it may be in the interest of justice that independent agency chosen by the High Court makes the fresh investigation.
# vi) Advocates Association, Bangalore v. Union of India and others, (2013)10 SCC 611
wherein the Hon’ble Supreme Court while looking into the case relating to the scuffle between advocates, police and the media persons in the Court Complex which lead to violence, keeping in view the unfortunate incidents and also the fact that the SIT had not even been constituted despite direction, the investigation was transferred to the CBI.
14. In order to contend to the contrary, the following decisions are cited on behalf of the respondents,
(i) The case of
# State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others, AIR 2010 SC 1476
wherein the consideration was made while answering a reference relating to transfer of investigation by the Court without the consent of the State Government. It was concluded by emphasising that despite the wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Court must bear in mind certain self imposed limitations on exercise of these Constitutional powers. The very plenitude of the power requires great caution in its exercise. Though no guideline can be laid down to decide whether such power should be exercised to direct CBI to conduct the investigation, time and again it is reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. The extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national or international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigateeven serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
(ii) The case of
# T.C. Thangaraj v. V. Engammal and others, AIR 2011 SC 3010
wherein the above decision was noted and it was held that the case on hand was not an exceptional case to be transferred to CBI but only because there was no progress in the investigation and one of the accused was an Inspector of Police, directed that the investigation be entrusted to an officer who is higher in rank. In that circumstance it was noticed that Sec. 156(3) of the Cr.P.C. provides for a check by the Magistrate on the police performing their duties and where it is found that the police have not done their duty or not investigated satisfactorily, he can direct the police to carry out the investigation properly and can monitor the same.
(iii) The case of
# Vasanti Dubey v. State of Madhya Pradesh, (2012) 2 SCC 731
wherein the issue relating to the manner of consideration if a closure report is filed and procedure of re-investigation arose for consideration. On taking note of the provisions contained in Sections 156(3), 190(1)(c), 200 and 202 of Cr.P.C. it was held, when the closure report is not accepted, it is the statutory and legal duty to either pass a fresh order taking cognizance if the complaint is refused to be dismissed and proceed with the enquiry by examining the complainant and record reasons to disagree with the closure report. If police investigation or judicial enquiry is required it must be proceeded under Section 202, but in any case cannot direct the police to straightaway file the charge sheet.
(iv) The case of
# Prof. K.V. Rajendran v. Superintendent of Police, CBCID South Zone, Chennai and others, 2013 (6) Supreme 136
wherein it is reiterated that the power of transferring the investigation to CBI must be in rare and exceptional cases. Where the investigation is already completed and charge sheet has been filed, ordinarily the Superior Court should not reopen the investigation and it should be left open to the Court where the charge sheet has been filed to proceed with matter in accordance with law. The matter has been left to the power to be exercised by the learned Magistrate under Sec. 173(8) Cr.P.C.
(v) The case of
# Sujatha Ravi Kiran @ Sujatasahu v. State of Kerala and others, 2016 (4) Supreme 162
wherein it is observed that while seeking transfer, mere apprehension is not sufficient. It is held that the ordinary power of the Constitutional Courts in directing CBI to conduct the investigation in a case must be exercised rarely in exceptional circumstances, especially, when there is lack of confidence in the Investigating Agency or in national interest and for doing complete justice in the matter
(vi) The case of
# K. Saravanan Karuppasamy and another v. State of Tamil Nadu and others, (2014) 10 SCC 406
wherein by reiterating the position declared earlier has held that an order to conduct investigation by CBI is not to be passed as a matter of course merely because the party has levelled allegations against the local police. The extraordinary power in handing over investigation to CBI must be exercised cautiously and in exceptional circumstances.
(vi) The case of
# Hari Singh v. State of U.P., (2006) 5 SCC 733
wherein while considering the question of investigation sought by CBI where the police had not taken action, the procedure under the Code was noticed. It is held therein that when the information is laid with the police, the procedure is to be followed under Section 190 and 200 of the Code and that in such cases the writ petition should not be entertained.
15. The learned Senior Counsel for the petitioner has relied on the decision of the Hon’ble Division Bench of this Court in
# Girimallappa v. State of Karnataka and others, WPHC No.200001/2016
dated 04.04.2016) wherein the investigation was transferred to CBI and the learned Senior Counsel for the respondent has cited a decision of this Court in the case
# Nusrath Jahan v. State of Karnataka and others, W.P.No.40282/2010
dated 13.09.2012) wherein this Court has declined the request for CBI investigation. In both the said cases the decisions of the Hon’ble Supreme Court has been noted and has been applied to the facts arising therein and the order of the Division Bench was in Habeas Corpus petition where it was noticed that no action at all had been taken. Therefore the position of the law as noticed from the decisions of the Hon’ble Supreme Court referred above is to be crystallised and the present issue will have to be noticed to come to a conclusion whether any other form of investigation is to be ordered by this Court in this petition.
16. From the decisions noticed supra it is crystal clear that insofar as the matter relating to the investigation to be conducted on a complaint, the Investigating Officer will have to carry out the investigation in all earnestness. He should neither exclude any relevant material nor should he be expected to create or fabricate material to bring to book the accused under any circumstance. It should be a fair investigation. On completion of the investigation and the report is laid before the jurisdictional Court, the learned Judge of such Court has the duty to examine the report and either accept the same or to order further or fresh investigation in terms of Section 173(8) of Cr.P.C. In appropriate cases the learned Judge may also record evidence and proceed in terms of Section 202 of Cr PC. Keeping in perspective such procedure available to protect the interest of the complainant as also the accused, the power of this Court to exercise its discretion under Article 226 of the Constitution is circumscribed. It is therefore held that the power to direct the investigation by another agency should not be done in a routine manner for the mere asking or based on apprehensions. It is only in exceptional cases which has serious ramifications such power should be exercised. In that background the instant facts are to be adverted to come to a conclusion whether the present facts call for exercise of such sparing discretion.
17. The narration of facts at the commencement of this order will disclose that the transaction between the petitioner and the company represented by the fourth respondent is essentially a commercial banking transaction between the Banker and its customer. Though contentions have been urged on behalf of the petitioner about the fraud committed by the fourth respondent, in a petition of the present nature this Court need not analyse the documents to come to the conclusion as to whether such allegation against the fourth respondent is true or not and as to whether the fraud is committed. It cannot also be expected that merely because the petitioner filed the complaint it should result only in filing the charge sheet and result in punishment. However, what is to be examined is relating to the nature of investigation held and whether in such a case where the learned Magistrate is seized of the matter, it would call for further investigation by the CBI as sought by the petitioner.
18. From the communication dated 02.12.2008 addressed to the petitioner – Bank, the fourth respondent has referred to the details of the amount due from Starpoint Solutions LLC and T Mobile USA and sought for availment of the post shipment facility and to credit the same to their account. The statement maintained and produced at Annexure-J1 no doubt depicts the claim of the amount due from the fourth respondent. The letter dated 25.03.2009 from the company of the fourth respondent to the petitioner – Bank not only refers to the above noted foreign parties but also M/s.Johns Hopkins and refers to the amount due from them and the advice made to pay the amount to the petitioner – Bank to liquidate the loan. The letter further states that it is being followed up with them, yet they have not made the payment. The petitioner contends that the said letter constitutes fraud, misrepresentation and cheating as such representation was made despite the same being to the knowledge of the fourth respondent that it is false.
19. Though the petitioner – Bank had acted upon such representation, the petitioner on further enquiries with said foreign parties were shocked to know that they were not due any amount to the company of the fourth respondent. M/s. Starpoint addressed a letter dated 24.04.2009, while M/s.Johns Hopkins addressed the letter dated 07.05.2009 to the said effect. The letters are at Annexures K1 and K2 to the petition. It is in that view the petitioner – Bank filed the complaint which was registered in Crime No. 0213/2009 on 07.05.2009 as at Annexure L. The grievance of the petitioner – Bank is that the said case has not been investigated diligently and in a fair manner but merely based on the opinion, a B- report was filed. Despite protest petition being filed and further investigation being ordered no investigation worth its name was made.
20. In the instant case the complaint was filed on 07.05.2009. The jurisdictional Police on investigation has filed the ‘B’ report on 22.07.2009. The petitioner filed a protest petition as at Annexure-Q seeking rejection of the ‘B’ report and praying that reinvestigation be directed into the matter by a superior Police Authority. An additional protest petition was also filed. On taking note of the details in the protest petition and the documents relied on, the investigating Officer who had earlier investigated into the matter filed a memo dated 24.05.2010 seeking leave of the Court to carry out further investigation into the matter. The learned Magistrate by the order dated 26.05.2010 permitted further investigation. During the said process, the petitioner bank addressed the request dated 07.07.2010 (Annexure-S) to the Commissioner of Police seeking that the investigation be referred to the COD, Karnataka or recommend to the Court to entrust the case to CBI. Based on the request, the investigation was transferred to the CCB. On further investigation, ‘B’ report was filed on 29.09.2010. In the meanwhile, though the instant petition was filed, since the learned Magistrate was seized of the matter and the pendency of this petition was not brought to the notice of the Court, the learned Magistrate by the order dated 02.11.2011 passed an order indicating that the ‘B’ report cannot be accepted and directed the investigating agency to make further investigation and submit the final report. The said process is yet to be completed since in the meanwhile the issue had shifted to this Court. Hence that aspect is also to be borne in mind while taking a decision in the instant case.
21. Therefore, from the sequence of events as noticed above, in respect of the complaint filed by the petitioner at the first instance there was investigation which resulted in the filing of a ‘B’ report and on protest petition being filed the investigating Officer himself has sought leave to re-investigate. During the said process in view of the request of the petitioner, the reinvestigation has been transferred to the CCB who had filed a ‘B’ report after further investigation, but such ‘B’ report filed has not been accepted by the learned Magistrate, who has ordered further investigation and as such a final report is yet to be filed before the learned Magistrate. The immediate further progress was hampered because the instant petition was filed before this Court. In the process of reinvestigation since the investigating Officer sought for further details from the petitioner bank and also summoned the Officers of the bank, the petitioner bank made an issue of the same before this Court and in that circumstance an order dated 14.12.2015 was passed wherein this Court on taking note of the nature of material to be collected permitted the investigation Officer to carry out the investigation with great vigour and report to this Court the progress made in the matter. Pursuant to such order the status report is filed before this Court. The learned senior counsel for the petitioner by referring to the status report would contend that the investigation carried out thereafter is also not satisfactory and as such it is necessary that the investigation be transferred.
22. The learned senior counsel for the petitioner in that regard has referred to the status report filed on 06.06.2016 in an attempt to point out that the same does not comply with the order. It is contended that the details indicated on 25.12.2015 only refers to the e-mail addressed to M/s.T Mobile and M/s.Johns Hopkins. In so far as M/s.Star Point Solutions LLC, it is stated that the e-mail address is not available and further steps will be taken after securing the same. The communication at Annexure T2 is referred to contend that the e-mail address in fact had been furnished on 08.09.2010. The letter dated 13.09.2010 at Annexure T3 is also referred to state that the required documents were also produced. The status report is referred further to contend that except stating that letters have been addressed nothing substantial has been done and as such the direction of this Court is also not complied.
23. The learned Additional Advocate General has on the other hand referred to the objection statement and also to the very same status report to point out the observation dated 12.02.2016, 22.02.2016 and the conclusion note to point out that the Officers of the bank themselves have not been co-operating in the investigation and the role of the Officers themselves is suspected. Further the status report dated 22.08.2016 is referred to indicate the progress made and is pointed out that once the confirmation is received, the matter will be concluded. The third investigation is at the fag end and once it is complete the report will be filed before the learned Magistrate.
24. Having noted all these aspects of the matter, it is to be observed that the order dated 14.12.2015 passed by this Court cannot be understood as an order by which this Court had taken upon itself to monitor the investigation so as at this stage to examine the defects in the investigation being pointed out with reference to the status report. On the other hand what is necessary to be kept in perspective is that at a stage when the instant petition was filed the investigation had been completed twice by two different investigating agencies. At the first instance the jurisdictional police had filed the ‘B’ report and thereafter the investigating officer had again sought to re- investigate, which was permitted by the learned Magistrate. However it is at the request of the petitioner bank, the re-investigation was transferred to the CCB which is a specialised wing of the police. Even such re-investigation resulted in a ‘B’ report being filed. Though that was the position the learned Magistrate had not accepted the ‘B’ report, but has directed re-investigation which will disclose that the learned Magistrate is in control of the proceedings in terms of Section 173(8) of Cr PC as per the procedure indicated by the Hon’ble Supreme Court. The petitioner – Bank ought to have reposed confidence in that process by co-operating with such investigation.
25. Instead of doing so, it is the petitioner bank which derailed and changed the direction of the re- investigation by filing the instant petition due to which the re-investigation came to a grinding halt until a specific direction was issued by this Court to proceed further. In so far as the re-investigation ordered by the learned Magistrate the order dated 02.11.2011 is still in force and the same is required to be complied by the investigation officer of the CCB and as submitted by the learned Additional Advocate General the report will be filed before the learned Magistrate. After all, in the instant case, it is not as if something mysterious is to be unearthed. The nature of transaction is known, the parties involved in such transaction are also known and the transaction is documented. All that is necessary is to put it in perspective and form an opinion as to whether it amounts to fraud. Hence, the need for specialised agency such as CBI is not necessary.
26. In such circumstance the learned Magistrate will have the occasion to consider the validity of such report which is the natural course of law as contemplated under Section 173(8) of Cr PC. If in fact the materials indicate the essence of the offence as alleged the further course will follow. If the principle of the law as laid down by the Hon’ble Supreme Court noticed supra is kept in view, the instant case is not a case where this Court should exercise its discretion to order investigation by CBI. Though the petitioner bank has produced the RBI circulars along with the memo for additional documents, the guideline 6.1 therein provides that even the nature of the fraud presently alleged will have to be reported to the State police. It is only in respect of Public Sector banks where the fraud alleged is more than Rs.300 lakhs it is to be reported to CBI.
27. Further in the present transaction, though fraud is alleged, it is just a commercial transaction between the bank and its customer where while entering into such transactions ‘due diligence’ to be carried out by the bank is also expected. Notwithstanding the same even if fraud is alleged and a complaint is made no doubt it is to be investigated which in any event is under active supervision of the learned Magistrate and as noticed above, it is all about collating the documents, which may be discovered to exist. Merely because the petitioner – Bank feels that the investigation is not satisfactory it cannot be entrusted to CBI when the allegation is not of the nature where there is a scam which has national or international ramifications nor is it a circumstance where several customers are effected by such act. If such transfer is ordered merely because the petitioner – Bank feels dissatisfied and to allay their apprehension, it will set a bad precedent where all banks will expect that their failed commercial transactions will have to be investigated by CBI the moment they allege fraud and investigation is sought. In so far as the present case, if the re-investigation carried out by the CCB is not satisfactory, the protest petition can still be noticed by the learned Magistrate and the law permits the passing of appropriate orders in terms of Section 202 Cr PC. The petitioners can avail their remedies in the natural course in a petition under Section 482 of Cr PC, if orders thereupon is to be assailed.
28. In the result, the following:
i) The writ petition is dismissed with no order as to costs.
ii) The Investigating Officer, CCB is however directed to complete the reinvestigation as ordered by the learned Magistrate through the order dated 02.11.2011 and file the report before the learned Magistrate in an expeditious manner.