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2010 DIGILAW 123 (ORI)

SRI GOPNARAYAN DAS v. SRI NARESH PRASAD GUPTA AND STATE OF ORISSA

2010-02-26

B.P.RAY

body2010
ORDER B.P. Ray, J. - In these applications under Sections 482 and 397 read with Section 401 Code of Criminal Procedure the accused Petitioners have prayed for quashing of the orders of taking cognizance and issue of process against them. 2. CRLMC No. 1292 of 2007 preferred by Gopnarayan Das and CRLMC No. 450 of 2008 preferred by Biswanath Parhi arise out of I.C.C. Case No. 50 of 2007 instituted by the complainant Naresh Prasad Gupta. It is alleged that Balasore Mercantile Credit Cooperative Ltd. was registered u/s 4(4) of Orissa Self Help Cooperatives Act, 2001 and started functioning through branches at different places including one at Bhadrak. It accepted the deposits from customers and adopted all types of banking transactions. On 5.10.2006, complainant applied for issue of a draft worth Rs.1, 69, 670/- in favour of GMR Industries Ltd. A draft payable by U.T.I. Bank was issued by charging the requisite exchange for the same. Complainant for the purpose of purchase of Sugar despatched the draft in favour of GMR Industries, which in turn, deposited the same for collection. It is alleged that the draft was returned back to GMR Industries with an endorsement that it can not be encashed due to insufficient of funds in the accounts of cooperative Ltd. After receipt of the intimation, the complainant issued a letter calling upon the accused person t6 make payment. The accused Biswanath through letter dated 1.12.2006 admitted dishonour of the instrument due to insufficient of funds and assured him to repay the same. However, no payment was made and accordingly, the complaint was lodged. CRLREV No. 1083 of 2007 preferred by Biswanath Parhi and CRLMC No. 1715 of 2007 preferred by Gopnarayan Das both arise out of I.C.C. Case No. 240 of 2007 instituted by one Mahendra Prasad Shoo. The allegation as unfolded in the complaint petition is briefly stated that on 27.9.2006, he applied for issued of drafts; one for Rs. 20, 000/- and Anr. for Rs.28, 500/- in favour of J.B. Marketing & Finance Ltd. and Aswini Homeo & Ayurvedic Products Ltd. respectively in Balasore Mercantile Credit Cooperative Ltd. The Complainant paid Rs.25/- and Rs.35/- towards exchange charge and got the drafts. He delivered the drafts to the J.B. Marketing & Finance Ltd. and Aswini Homeo & Ayurvedic Products Ltd. for purchase of their products. He delivered the drafts to the J.B. Marketing & Finance Ltd. and Aswini Homeo & Ayurvedic Products Ltd. for purchase of their products. The draft was subsequently presented for collection, but could not be honoured due to insufficient of funds in the account. Notice was issued for repayment of the amount covered under the draft, but to no avail and accordingly, the complaint was filed. CRLMC No. 1714 of 2007 has been preferred by the accused Gopnarayan Das and Surendra Nath Mohapatra. Bikash Kumar Padhi is the complainant in this case. He has alleged that for the purpose of getting draft he had deposited Rs.1, 25, 000/- together with exchange charge and received the same from the accused's firm. The draft was despatched to the supplier. But on presentation of the said draft by the supplier, the draft issued by the firm was dishonoured as there was no sufficient fund in the account. Despite the notice and demand of money, the same was not paid, consequently complaint case baring I.C.C. No. 129 of 2007 was filed. 3. Petitioners-Gopnarayan Das and Biswanath Parhi are common accused in all the cases. Controversies in ail these cases are relating to dishonour of cheque, cheating & misappropriation of funds etc. Accordingly, the cases were instituted u/s 138 of N.I. Act and under Sections 417/420/468/406, 1.P.C. As the impugned orders of cognizance are challenged on the common ground, all the cases need to be disposed of jointly. 4. It is contended by the Petitioner-Gopnarayan Das that he had no role in the Bhadrak Branch nor has he taken money from any person. As there is no post of Chairman in the Cooperative Society, therefore, there is absolutely no material to implicit him in the alleged crime. The contention of the Petitioner Biswanath Parhi is that he, in the capacity of the Branch Manager, has received the money and issued the drafts. Since all the moneys collected from the customers have been sent to accused-Gopnarayan Das, it is his duty to deposit the moneys in the Bank for encashment of the drafts. 5. There is no dispute that the moneys have been collected from different customers and drafts have been issued to them by Balasore Mercantile Credit Cooperative Ltd. There is also no dispute that the accused Biswanath Parhi was the Branch Manager of Bhadrak Branch, where all the moneys have been collected. 5. There is no dispute that the moneys have been collected from different customers and drafts have been issued to them by Balasore Mercantile Credit Cooperative Ltd. There is also no dispute that the accused Biswanath Parhi was the Branch Manager of Bhadrak Branch, where all the moneys have been collected. From the complaint petition and the initial statement, it is evident that the Petitioner Gopnarayan Das was the Chairman and was in the helm of affairs of Balasore Mercantile Credit Cooperative Ltd. After coming to know about the dishonour of drafts, the complainants met all the accused persons for return of their money, but no step was taken for repayment of the amount in question. Draft is as good as cash, as it is secured through deposit of money. Draft is never dishnoured on account of dearth of funds. From the materials available on record, it appears that the accused persons have received moneys from the customers and issued the instruments under their authority which were found to be forged. It is also alleged that moneys have not-been refunded to the customers in spite of their request for refund, thereby the accused persons have not only misappropriated the amount, but also cheated them. In the above facts and circumstances, it cannot be said that no offence is made out which would warrant interference with the order of taking cognizance. At this stage detailed discussion of the materials on record cannot be gone into which would jeopardize the rights and defence of the parties. The extent of liability of the respective accused persons would be ascertained in the trial. 6. On perusal of the case records, it appears that Balasore Mercantile Credit Cooperative Ltd. has involved itself in dubious activities and huge moneys have been swindled away by the persons, who are responsible for its functioning and transaction. The innocent customers reposing faith on the institution had deposited large sum and extracted bona fide and efficient service. On the contrary, they have been defrauded and their hard earned moneys have been embezzled by a group of unscrupulous parsons. General public cannot be allowed to be duped by such evil design which not only affects their economic status but also it would create distrust amongst the public at large in the financial institution. 7. On the contrary, they have been defrauded and their hard earned moneys have been embezzled by a group of unscrupulous parsons. General public cannot be allowed to be duped by such evil design which not only affects their economic status but also it would create distrust amongst the public at large in the financial institution. 7. In the circumstances, it would be appropriate to direct the Crime Branch to cause an enquiry to unearth such other dishonest and deceitful transactions and in the event the enquiry reveals any irregularity which constitutes any offence, appropriate steps as provided under law be taken expeditiously against the accused persons. With the above observation & direction, all the cases are disposed of. A copy of the judgment be given to learned Advocate General, Orissa for necessary action at his end.