1 IN THE HIGH COURT OF JHARKHAND, RANCHI A.B.A. No. 3240 of 2016 Pande Ratneshwari Prasad @ Pandey Ratneshwar Rai, S/o Late Pande Parmeshwari Prasad. ..... Petitioner(s) Versus State through Superintendent of Police, Central Bureau of Investigation. …. Opp. Party(s) _____ CO RAM :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.RC0932014S0011 (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 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 Balaji Laminator Pvt. Ltd., located at Demotand, Hazaribagh, District :- Hazaribagh; (c) It is alleged that the said unit was promoted by Sri Vivek Pratap Singh, resident of Hazaribagh and his brother Sri Vineet Pratap Singh and its banking relationship with State Bank of India started at Commercial Branch, Bokaro (SME Bokaro). (d) It is alleged that the loan was sanctioned to the above-mentioned unit on 12.09.2006, but subsequently was declared N.P.A. on 09.10.2011 as there was no recovery in the loan account to the tune 2 of Rs.5.43 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 Company before the Debts Recovery Tribunal, Ranchi, in S.A. No.97 of 2012; (f) Due to intervention of the Debts Recovery Tribunal, Ranchi, in the above-noted case, recovery could not proceed, but in the meantime, the NPA Resolution Agent, M/s Vision, had taken possession of the land and properties of the company 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 few properties of M/s Balaji Laminators Pvt. Ltd., located at Hazaribagh mortgaged to the Bank vide Sale Deed Nos.11421 dated 04.11.2009 and 12881 dated 06.12.2008 were found to be fake properties and the same could not be located. (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 Vivek Pratap Singh neither has possession nor ownership. (h) It is further alleged that the valuation report was given by Sri Dinesh Chand of 433, A.P. Colony, Gaya and the legal opinion vide Sale Deed No.12881 was given by Sri Pandey Ratenshwari Prasad (petitioner), dated 20.11.2008, resident of 146, A.P. Colony, Gaya. (i) It is further alleged that during investigation, the investigating official of the Bank has pointed out 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. 3 4. Counsel for the petitioner while pressing bail application, submitted that the only allegation levelled as against the petitioner is that he has given ‘Title Investigation Report’ 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, 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. He submits that as the trial will take some time, the petitioner be enlarged on anticipatory bail.
8. 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) Duty of the Law Officer with respect to Investigation of Title and search report etc., are mentioned in the manuals of loan and advance Part-1 (B) of State Bank of India. This manual has been collected during investigation which specifically says the essential aspect of pledge in Serial No.1 and Mortgage 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 4 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 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:- (i) 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 5 the Branch Manager/Divisional Manager and two other employees of the Bank. (ii) 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. (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. 6 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. (b) 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 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 been submitted that after the scrutiny of title deeds and the carrying out of the searches as above, a final search of the register maintained by the District Court or High Court known as ‘lis- pendens register’ should be carried out with a view to ascertaining that no proceedings are pending in the 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 fail in order to 7 ensure that there are no adverse interests existing on the property to be mortgaged. (d) It has further been submitted that criminal conspiracy in defrauding the Bank in connivance with the loanee was done under full conspiracy of this petitioner/ Advocate, who has not been made accused in only one case, but in other four cases also, i.e. total five cases which are 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 and as such instead of citing him as a witness in charge-sheet, CBI has charge-sheeted him in all 5 cases on the basis of his role in connivance with Bank officials and loanee to defraud public money and as such, CBI has charge-sheeted him in all five cases as accused. (e) It has been submitted that it is pertinent to mention here that this petitioner was found involved in 5 CBI case, which were registered with respect to one Bank, i.e. State Bank of India and being a practicing advocate, there are chances that he may tamper the evidence or influence the witnesses.
8. Learned counsel for the CBI relying on the aforesaid Paragraphs, submits that the petitioner does not deserve 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) RC12S)/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/