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Jharkhand High Court · body

2016 DIGILAW 441 (JHR)

Subhash Ranjan Banerjee v. State of Jharkhand

2016-03-09

RONGON MUKHOPADHYAY

body2016
ORDER : 1. Since common question of law and fact are involved in all these cases, the same are being disposed of by this common order. Cr. M.P. No. 1409 of 2005: 2. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Telco (Birsanagar) P.S. Case No. 104 of 2003 including the order dated 08.09.2004 passed by the Chief Judicial Magistrate, Jamshedpur by which cognizance has been taken for the offences punishable under Sections 467, 468, 471, 420, 419, 406, 120B of the I.P.C. Cr. M.P. No. 1410 of 2005: 3. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Telco (Birsanagar) P. S. Case No. 105 of 2003 including the order dated 13.08.2004 passed by the Chief Judicial Magistrate, Jamshedpur by which cognizance has been taken for the offences punishable under Sections 467, 468, 471, 420, 419, 406, 120B of the I.P.C. Cr. M.P. No. 1425 of 2005: 4. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Telco (Birsanagar) P.S. Case No. 103 of 2003 including the order dated 13.09.2004 passed by the Chief Judicial Magistrate, Jamshedpur by which cognizance has been taken for the offences punishable under Sections 467, 468, 471, 420, 419, 406, 120B of the I.P.C. Cr. M.P. No. 1430 of 2005: 5. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Telco (Birsanagar) P. S. Case No. 101 of 2003 including the order dated 08.09.2004 passed by the Chief Judicial Magistrate, Jamshedpur by which cognizance has been taken for the offences punishable under Sections 467, 468, 471, 420, 419, 406, 120B of the I.P.C. Cr. M.P. No. 1446 of 2005: 6. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Telco (Birsanagar) P. S. Case No. 100 of 2003 including the order dated 08.09.2004 passed by the Chief Judicial Magistrate, Jamshedpur by which cognizance has been taken for the offences punishable under Sections 467, 468, 471, 420, 419, 406, 120B of the I.P.C. Cr. M.P. No. 1448 of 2005: 7. M.P. No. 1448 of 2005: 7. In this application, the petitioner has prayed for quashing the entire criminal proceedings in connection with Telco (Birsanagar) P.S. Case No. 102 of 2003 including the order dated 08.09.2004 passed by the Chief Judicial Magistrate, Jamshedpur by which cognizance has been taken for the offences punishable under Sections 467, 468, 471, 420, 419, 406, 120B of the I.P.C. 8. The prosecution story in separate FIRs being virtually same and similar except with respect to the numbers of the flat is that a flat was booked with Navjeevan Sahkari Grih Nirman Samiti, Baridih, Jamshedpur for which an agreement is entered into with the society and a considerable sum of money was paid to the society, but the flat having not been delivered an offence of forgery and cheating was committed. Further allegations have been made that a loan of Rs. 50 lacs had been obtained by the society by mortgaging the flat. 9. Heard Mr. Amrendra Kumar, learned counsel for the petitioners in all the cases and Mr. Indrajit Sinha, learned counsel for the opposite party no. 2. 10. It has been submitted by the learned counsel for the petitioners that the flat in question had already been handed over by the society to the informant's of all the cases and maintenance charges are regularly being paid. It has been submitted that Navjeevan Sahkari Grih Nirman Samiti, Baridih, Jamshedpur is a registered cooperative society which had its own bye-laws and is governed by the Cooperative Societies Act. The petitioner was nominated as a Director and save and except participating in the meetings of the society had never directly involved himself in the affairs of the company. Learned counsel submits that the entire dispute is with respect to breach of terms and conditions of the agreement and the same being civil in nature, the criminal proceeding instituted against the petitioners cannot be allowed to be continued. It has also been submitted that in the Annual General Meeting of the Society on 27.12.1998, it was decided to obtain cash credit loan from the bank and through the recommendation of the Cooperative Officer, Chaibasa, the cash credit loan to the Society was sanctioned vide letter dated 27.12.2000. It has also been submitted that in the Annual General Meeting of the Society on 27.12.1998, it was decided to obtain cash credit loan from the bank and through the recommendation of the Cooperative Officer, Chaibasa, the cash credit loan to the Society was sanctioned vide letter dated 27.12.2000. The learned counsel therefore submits that the petitioners having no role in the undelivered property cannot be fastened with a criminal liability and therefore, the entire criminal proceedings against the petitioner deserves to be quashed and set aside. 11. Mr. Indrajit Sinha, learned counsel for the opposite party no. 2 in all the cases, has submitted that on mortgaging the flats Rs. 50 lacs loan was obtained from the Singhbhum District Central Cooperative Bank Ltd., Chaibasa which was misappropriated by the members of the society. It has further been submitted that one of the members of the society with respect to the various acts being carried out by the office bearers has filed a writ application being W.P. (C) No. 6725 of 2002 which was remitted back to the Registrar to determine the claim and on remand, an inquiry was conducted pursuant to which it was detected that the loan amount which was taken by the accused persons was done in an illegal manner and the entire loan was in fact misappropriated. Learned counsel has also referred to the notice dated 02.05.2003 in which a certificate case was instituted and 70 flats of the society got attached on 02.05.2003. Learned counsel also adds that the flats which were booked by the informants in all the cases, were handed over to them on 'as is where is' basis by the Society and the unfinished portion of the flats were to be constructed by those who have booked the flats. It has therefore, been submitted that neither the flats were handed over to the aggrieved – informants within time and the same was handed over in an unfinished state, and the petitioner in his capacity as a Director of the Society was directly responsible for misappropriation of the amount and taking cash credit loan from the bank and viewed thus the criminal proceeding against the petitioner should not be interfered with. 12. 12. The common thread which runs through the allegations made in the FIR is of booking of flats constructed by Navjeevan Sahkari Grih Nirman Samiti, Baridih, Jamshedpur, a cooperative society formed under the Societies Registration Act and non-delivery of the said flats to the aggrieved persons. It further appears that a cash credit loan was taken by the Managing Committee of the Society from Singhbhum District Central Cooperative Bank Ltd., Chaibasa to the tune of Rs. 50 lacs by mortgaging the flats. It is an admitted position that the petitioner was nominated as a Director of the Society and it cannot be claimed by the petitioner at this stage that he was never an active office bearer of the Society, as any activity of the Society has to be under the control and supervision of the Director which is not at all an ornamental post. The flats were subsequently handed over to the informants of different cases on 'as is where is' basis which means that the flats were never handed over in a finished state. The certificate case instituted by the Singhbhum District Central Cooperative Bank Ltd., Chaibasa clearly depicts that the bank has got attached 70 flats of the Society on 02.05.2003. Subsequently, another letter was issued by the Managing Director of The Singhbhum District Central Cooperative Bank Ltd., Chaibasa for repayment of the loan, failing which action shall be taken in terms of Section 49 of the Cooperative Societies Act. A threat was also given in the said letter with respect to the whereabouts of Rs. 50 lacs for which an FIR was sought to be instituted against the persons involved. The entire dispute therefore, appears not to have been confined to the non-delivery of the flats, but beyond and as such, petitioner being the Director at the relevant point of time cannot be permitted to shirk from his criminal liability. 13. At this juncture, it would be necessary to refer to the relevant judgments cited by the learned counsel for the petitioner. 14. In the case of “U. Dhar and another Vs. State of Jharkhand and another” reported in 2003 (2) JLJR 82 (SC), it was held that contractual obligations under separate contracts are independent of each other and the rights and obligations of the parties has to be governed by the contract between them. 14. In the case of “U. Dhar and another Vs. State of Jharkhand and another” reported in 2003 (2) JLJR 82 (SC), it was held that contractual obligations under separate contracts are independent of each other and the rights and obligations of the parties has to be governed by the contract between them. It was also held that if neither of the ingredients of the words 'dishonestly' and 'misappropriation' in terms of Section 403 are satisfied criminal proceeding is liable to be quashed. 15. In the case of “Chanchal Kumar Gangopadhyay and Anr. Vs. State of Jharkhand & Anr.” reported in 2011 (3) JLJR 145 , it was held that when there is breach of contract between the parties, continuance of criminal case will an abuse of the process of Court. 16. Learned counsel has also referred to the case of “Rajiv Thapar and other Vs. Madan Lal Kapoor” reported in (2013) 3 SCC 330 , in which steps have been delineated to determine the veracity of the order for quashment under Section 482 of Cr.P.C. and which are quoted thus: 30. “Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.” 17. The case of “U. Dhar & Anr.” (supra) and “Chanchal Kumar Gangopadhyay and Anr.” (supra) has no relevancy in the facts and circumstances of the present case as admittedly the petitioners being the Director of the Society had with respect to his post squarely responsible for the cash credit loan which was taken from the bank and which was alleged to have been misappropriated. Thus, the allegation against the petitioner does not invite any civil consequences, rather a criminal culpability of the petitioner seems apparent from the facts and circumstances of the case. 18. The step by step procedure to look into the veracity or otherwise of the allegations which are challenged in a proceeding under Section 482 of Cr.P.C. as has been categorised by the Hon'ble Supreme Court in the case of “Rajiv Thapar and other” (supra) on careful consideration, the present case does not come within the periphery of the four conditions enumerated therein in view of what has been discussed earlier and therefore, the assertion of the learned counsel for the petitioner with respect to the case being squarely covered by the judgment in the case of “Rajiv Thapar and other” (supra) is also negated. 19. As a cumulative result of the discussions made hereinabove, all these applications under Section 482 of Cr.P.C. fails and are therefore, dismissed.