Rashid Paul

Illegality committed in investigation does not affect competence and jurisdiction of trail court: HC

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Srinagar: Illegality committed in the course of investigation does not affect the competence and jurisdiction of the court for trial, the J&K High Court has said.

The court was hearing a petition by Khazir Mohammad Tunda, a former Branch Manager of the Bombay Mercantile Bank, M A Road Srinagar.

The accused contended that the Central Bureau of Investigation (CBI), which conducted investigation into the “wrong” actions had no mandate to register an FIR against him as he was not a public servant.

He also argued (through his lawyer) that the Special Judge Anti-Corruption, Srinagar Kashmir(the trial court) also had no authorization  to frame charges against him on the basis of the investigation by CBI for offences under different sections of the Anti-Corruption law.

Justice Rajnesh Oswal, who heard the matter observed that cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby.

He admitted that the investigation conducted in violation thereof bears the stamp of illegality. “But that illegality committed in the course of an investigation does not affect the competence and the jurisdiction of the court for trial,” he said.

Justice Oswal said that the cognizance and the trial cannot be set aside unless the illegality in the investigation can be shown to have brought about miscarriage of justice.

It has been held, that the illegality may have a bearing on the question of prejudice or miscarriage of justice but the invalidity of the investigation has no relation to the competence of the court, he said.

Petitioner Tunda questioned through his lawyer Miyan Abdul Qayoom the FIR by CBI as well as proceedings including the order for framing of charges by the trial court.

Being an employee of Bombay Mercantile Co-operative Bank Limited, he was not a public servant as such could not have been prosecuted for the commission of offences under Prevention of Corruption Act, he petitioned.

“The transactions as stated in the final (CBI) report give rise to a civil liability and that the CBI had conducted an enquiry without any authority and the enquiry conducted by the CBI and the subsequent proceedings conducted by the court are without jurisdiction,” argued his lawyer.

According to the CBI charge-sheet, a written report was lodged with it by Ashraf Ali Abbas, the then Branch Manager of Bombay Mercantile Co-operative Bank Limited, M. A. Road, Srinagar on 13.01.2004.

The report alleged that Tunda during his posting as Branch Manager of the Bank from June, 1990 to 25th July, 2001, had fraudulently opened bank accounts in the names of fictitious persons.

The accused also allowed unauthorized excessive withdrawals causing enormous loss to the bank to the extent of more than Rs one crore, it said.

The other allegation against the accused is that after seven days of opening of the FCR deposit account, Cash Credit Deposit(CCD) was also opened by him on 29.01.1997 in the name of one fictitious Nazir Ahmed Bhat by pledging the said FCR by having himself signed fraudulently as Nazir Ahmed R/o near Jakfed Agency, Jawahar Nagar in the account opening form and even signed on the subsequent signature card as the branch manager.

Tunda according to prosecution issued as many as 107 cheques during 1997, 1998 and 1999 by mentioning fictitious names on the said cheques. As manager of the Bank, he had allegedly passed the cheques himself as the passing officer knowingly fully well that they were false and forged one, read the charges sheet.

The charge sheet further revealed that In the process the accused banker illegally withdrew Rs. 48,58,788/- from the fictitious account of Nazir Ahmed till 28.06.2001. After the addition of interest, the said amount has swelled to Rs. 1,14,07,448 as on 06.08.2005.

It also said that that the opinion of hand writing expert with regard to the admitted handwriting and signatures of the accused petitioner is also positive.

Justice Oswal held that there are serious allegations against the accused with regard to abuse of his official position by opening fictitious accounts and causing huge loss to the extent of more than one crore to the Bank.

“The criminal proceedings can be quashed only when the matter that is essentially of civil in nature has been given a cloak of criminal offence. From the perusal of allegations it is not made out that civil dispute has been camouflaged as criminal dispute. So this contention deserves to be rejected”, he said.

He found that the contentions of the petitioner have no substance and as such rejected them all.

He accordingly dismissed his petition with a direction to the  trial court to conclude the trial expeditiously urging “no unnecessary adjournments shall be granted to either of the parties”.

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