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2016 DIGILAW 333 (HP)

Santosh Kumar v. State of H. P.

2016-03-23

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Section 482 Cr.PC against the order of learned Additional Sessions Judge(I) Mandi (H.P.) dated 18.01.2014 passed in Criminal Revision Petition No.21/12 titled Santosh Kumar vs. State of H.P. and against the order of learned Judicial Magistrate Ist Class Court No.3 Mandi (H.P.) dated 06.06.2012 passed in Criminal Case No. 13-II/2008 titled State of H.P. vs. Santosh Kumar & another. Brief facts of the case: 2. Accused Santosh Kumar was client of Mandi Urban Cooperative Bank since the year 1980. Accused was sanctioned credit limit of Rs.1,25,000/- (Rupees one lac twenty five thousands) in the year 1996 against hypothecation stock of his shop named Saraswati General Store. Accused applied for loan of Rs.1,25,000/- (Rupees one lac twenty five thousands) in the year 1997 and did not file complete documents of hypothecation, pronote and undertaking but despite above stated facts the then Manager of the bank Sh. Parvinder Kumar co-accused No.2 sanctioned credit limit of Rs.1,25,000/- to accused Santosh Kumar. This limit was sanctioned to accused Santosh Kumar despite the fact that nothing was hypothecated with the bank and despite the fact that accused Santosh Kumar was already indebted to the bank to the tune of Rs.1,95,000/- (Rupees one lac ninety five thousands). Thereafter Rs.3 lacs were paid to accused Santosh Kumar vide Cheque No.0076954 on dated 18.04.2001 beyond the credit limit and thereafter another cheque of Rs.80,000/- bearing No. 0076958 was issued to accused Santosh Kumar on dated 08.04.2002 despite the fact that an amount of Rs.3,90,343/- was outstanding against accused Santosh Kumar. 3. Co-accused Parvinder Kumar expired during trial and criminal proceedings against him were ordered to be dropped. Co-accused Santosh Kumar disposed of the hypothecated goods without consent of bank/complainant and committed cheating as defined in Section 420 IPC. 4. After investigation Challan was filed against the accused before criminal Court of law and learned Judicial Magistrate Ist Class Court No. 3 Mandi framed the charge against the accused on dated 06.06.2012 under Sections 120-B IPC and 420 IPC. Accused did not plead guilty and claimed trial. 5. 4. After investigation Challan was filed against the accused before criminal Court of law and learned Judicial Magistrate Ist Class Court No. 3 Mandi framed the charge against the accused on dated 06.06.2012 under Sections 120-B IPC and 420 IPC. Accused did not plead guilty and claimed trial. 5. Thereafter accused Santosh Kumar filed Revision Petition under Section 397 Cr.PC against the order dated 06.06.2012 passed by learned Judicial Magistrate Ist Class Court No. 3 Mandi regarding framing of charge and the learned Additional Sessions Judge(I) Mandi dismissed the Criminal Revision Petition No. 21/12 titled Santosh Kumar vs. State of H.P. on dated 18.01.2014. Learned Additional Sessions Judge(I) Mandi affirmed the order passed by the learned trial Court relating to framing of charge. 6. Feeling aggrieved against both the orders accused Santosh Kumar filed present petition under Section 482 Cr.PC. 7. Court heard learned Advocate appearing on behalf of petitioner/accused and learned Additional Advocate General appearing on behalf of non-petitioner and also perused the entire record carefully. 8. Following points arise for determination in the present case: (1) Whether petition filed under Section 482 Cr.PC is liable to be accepted as mentioned in memorandum of grounds of petition? (2) Final order. Findings upon Point No.1 with reasons. 9. Submission of learned Advocate appearing on behalf of petitioner that petitioner vide document Annexure P-2 dated 13.09.2012 cleared all the loan amount due to The Mandi Urban Co-operative Bank Ltd. Moti Bazar Mandi (H.P.) and on this ground petition filed by the petitioner be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that petitioner has cleared loan amount on dated 13.09.2012 after institution of the FIR against the petitioner relating to cognizable offence and after framing of charge by learned trial Court. Learned trial Court framed the charge against accused Santosh Kumar on dated 06.06.2012 and petitioner has paid the amount due after framing of the charge by the learned trial Court and during trial proceedings. Court is of the opinion that subsequent payment of loan amount by the petitioner during trial stage will not exonerate the petitioner from criminal liability occurred prior to the payment of loan amount. As per allegations petitioner has committed economic offence. Court is of the opinion that subsequent payment of loan amount by the petitioner during trial stage will not exonerate the petitioner from criminal liability occurred prior to the payment of loan amount. As per allegations petitioner has committed economic offence. It was held in case reported in 2016 (I) Supreme Court Cases 389 titled C.B.I. vs. Maninder Singh that economic offences are offences against society and public at large and Court should not be swayed by return of money. It is well settled law that ruling given by Apex Court of India is binding on all Courts as per Article 141 of Constitution of India. 10. Submission of learned Advocate appearing on behalf of petitioner that there is no evidence on record that loan was granted to co-accused Santosh Kumar without hypothecation and on this ground petition be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. Fact whether loan was granted to co-accused Santosh Kumar without hypothecation or not cannot be decided at this stage and same fact will be decided when the case shall be decided by learned trial Court on merits. 11. Submission of learned Advocate appearing on behalf of petitioner that land of petitioner was already mortgaged with the bank vide Rapat No.158 dated 30.11.2005 and on this ground petition filed by the petitioner be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. Court is of the opinion that whether land of the petitioner was mortgaged vide Rapat No.158 dated 30.11.2005 or not is a matter of fact and the matter of fact cannot be decided at this stage by the High Court. Same fact will be decided by the learned trial Court after giving due opportunity to both parties to prove their case. 12. Submission of learned Advocate appearing on behalf of petitioner that similarly situated persons namely Subhash Chand and Sunder Lal have been discharged by learned Trial Court and similar treatment has not been given to the petitioner by the learned trial Court and on this ground petition filed by the petitioner be accepted is also rejected being devoid of any force for the reason hereinafter mentioned. Court is of the opinion that order of discharge of Sunder Lal and order of discharge of Subhash Chand were not challenged before the competent authority of law by aggrieved party. 13. Court is of the opinion that order of discharge of Sunder Lal and order of discharge of Subhash Chand were not challenged before the competent authority of law by aggrieved party. 13. Submission of learned Advocate appearing on behalf of petitioner that case of the petitioner is covered as per ruling reported in 1996 (5) SCC 591 and also covered as per ruling reported in 2005(1) SCC 122 is also rejected being devoid of any force for the reason hereinafter mentioned. It is well settled law that when there is conflict between former ruling and subsequent ruling then subsequent ruling always prevails. In view of subsequent ruling reported in 2016 (I) Supreme Court Cases 389 titled C.B.I. vs. Maninder Singh it is not expedient in the ends of justice to allow petition filed by co-accused Santosh Kumar. Economic offences are public wrongs. Economic offences are committed against society affecting public at large. 14. As per Section 239 of Code of Criminal Procedure 1973 Magistrate after considering police report and documents sent with it under Section 173 Cr.PC and after hearing the prosecution and the accused would discharge the accused if the Magistrate thinks that charge against the accused would be groundless. Court is of the opinion that after considering police report and documents sent with it under Section 173 Cr.PC it is not prima facie proved on record that charge against the accused is groundless. 15. It is well settled law that at the stage of framing of charge meticulous consideration of evidence and other material is not necessary. See AIR 1981 Apex Court 1548 titled Mohd. Akbar Dar & Others vs. State of J&K & Others and also see AIR 1977 Apex Court 2433 Yash Pal Mittal vs. State of Punjab. In view of the above stated facts point No. 1 is answered in negative. Point No.2 (Final order). 16. In view of my findings on point No.1 above petition filed under Section 482 Cr.PC is dismissed. Observations made hereinabove will not effect merits of the case in any manner and will be strictly confined for disposal of petition filed under Section 482 Cr.PC. File of learned trial Court along with certified copy of this order be sent back forthwith. Parties are directed to appear before learned Trial Court on 18.04.2016. Cr.MMO No. 107 of 2014 is disposed of. Pending applications if any also disposed of.