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2017 DIGILAW 1829 (GUJ)

Rajiv Rameshchandra Mehta v. State of Gujarat

2017-12-01

J.B.PARDIWALA

body2017
ORDER : J.B. PARDIWALA, J. Rule returnable forthwith. Mr. Dharmesh Devnani, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the respondents Nos. 1 and 2. Ms. Abha Makwana, the learned advocate has entered appearance on behalf of the respondent No. 3-original complainant and waives service of notice of rule. 2. Since the issues raised in both the captioned applications are the same, those were heard analogously and are being disposed of by this common order. 3. For the sake of convenience, the Criminal Miscellaneous Application No. 25823 of 2017 is treated as the lead matter. 4. By this application under Section 482 of the Code of Criminal Procedure, 1973, the applicant - original accused No. 3 seeks to invoke the inherent powers of this Court, praying for quashing of the proceedings of the Criminal Case No. 469 of 2004 pending in the Court of the Additional Metropolitan Magistrate, Court No. 9, Ahmedabad arising from the First Information Report being C.R No. I-681 of 2002 registered with the Naranpura Police Station, Ahmedabad for the offence punishable under Sections 406, 420, 467, 471, 477(A) and 120B read with 114 of the Indian Penal Code and Section 46 of the Banking Regulations Act. 5. On 14th November 2017, the following order was passed: “Let Notice be issued for final disposal to the respondents, returnable on 24/11/2017. Mr. Devnani, the learned Additional Public Prosecutor waives service of notice for and on behalf of the respondents nos. 1 and 2. Direct service to the respondent no. 3. Let there be an ad-interim order in terms of Para-6(B) so far as the applicant is concerned. Notify the matter on top of the board. To be tagged with the Criminal Misc. Application No. 23341 of 2017.” 6. Thereafter, on 24th November 2017, the following order was passed: “1 Mr. Patel, the learned counsel appearing for the applicants has provided a statement furnishing certain information as regards the amount of loan and the total amount paid by his clients. The statement is as under: Sr. No. Criminal Misc. Applications Nos. Petitioner No. and name Name of Firm Loan/O.D Granted as per FIR (Rs.) Total paid account as per Annexure-E collectively (Rs.) Total paid amount after filing of FIR under OTS (Rs.) 1. 23341 of 2017 Rameshbhai Nathani Laxmi Sales Corp. 77355.78 2,22,405/- 78,000/- 2. The statement is as under: Sr. No. Criminal Misc. Applications Nos. Petitioner No. and name Name of Firm Loan/O.D Granted as per FIR (Rs.) Total paid account as per Annexure-E collectively (Rs.) Total paid amount after filing of FIR under OTS (Rs.) 1. 23341 of 2017 Rameshbhai Nathani Laxmi Sales Corp. 77355.78 2,22,405/- 78,000/- 2. 23341 of 2017 Kanaiyalal Nathani Mansi Sales Corp. 107745.22 2,64,192.22 1,10,000/- 3. 23341 of 2017 Sundarmal Nathani Hitesh Sales Corp. 122766.25 2,13,819.25 97,000/- 4. 25823 of 2017 Rajiv Mehta --- 42,50,880 52,00,000/- (as per Bank Account statement) 43,00,800/- 2. On behalf of the respondent No. 3 Bank, Shri Nikunj R. Bhatt, Manager (Sales) is personally present in the Court. He makes a statement that nothing is due and payable by the applicants. All the loan accounts have been closed. The requisite amount has been paid by the applicants to the Bank. He has instructions on behalf of the Bank to make a statement that if the criminal proceedings are quashed so far as the applicants are concerned, then the Bank has no objection. 3. Mr. Dharmesh Devnani, the learned A.P.P appearing for the State, after taking instructions from the police officer concerned, makes a statement that there is no case against the applicants so far as forgery is concerned. According to the learned A.P.P, the amount obtained by the applicants in the form of overdrafts for something much more than what they were otherwise entitled to, that is the only accusation against the applicants. 4. Shri Nikunj R. Bhatt, Manager (Sales) of the respondent No. 3 Bank shall once again personally remain present before this Court on 1st December 2017 along with the necessary authorisation in writing from the liquidator giving consent for quashing of the criminal proceedings. 5. Post the matters on 1st December 2017 on top of the Board.” 7. It is not in dispute that the entire amount obtained by the applicant in the form of overdrafts has been repaid with interest. Having regard to the sections invoked, I requested Mr. Devnani, the learned A.P.P appearing for the State respondents to call the Investigating Officer and take instructions as to whether any fraud was committed by the applicants at the time when the overdraft facility was availed of. Having regard to the sections invoked, I requested Mr. Devnani, the learned A.P.P appearing for the State respondents to call the Investigating Officer and take instructions as to whether any fraud was committed by the applicants at the time when the overdraft facility was availed of. To put it in other words, whether any forgery was committed or whether there was any false representation at the end of the applicants before the officers of the bank for the purpose of availing of the overdraft facility or whether there was any collusion or connivance with the officers of the bank for the purpose of availing of the overdraft facility. Mr. Devnani, the learned A.P.P, after a thorough inquiry in this regard with the Investigating Officer, confirms that nothing of the sort referred to above happened at the time when the overdraft facility was obtained. The only allegations are that the applicants were entitled to avail of the overdraft facility of a particular limit. However, something beyond the limit was sanctioned. It is confirmed that no forgery was committed at the time when the overdraft facility was availed of. 8. I had to undertake this exercise because the law is well settled. Mere repayment of the loan amount is not sufficient to absolve the accused from his criminal liability. If the amount is repaid to the bank with interest, that would absolve the borrower from his civil liability. Having regard to the fact that there is no case of forgery or cheating or any criminal conspiracy, there should not be any difficulty in quashing the proceedings of the criminal case. 9. Mr. Nikunj R. Bhatt, the Manager of the Sabarmati Cooperative Bank Limited, Ahmedabad (now under liquidation) is personally present in the Court. He also confirms as regards the instructions received by Mr. Devnani, the learned A.P.P from the Investigating Officer. He has filed an affidavit inter alia stating as under: “I, Nikunj R. Bhatt, at present working as Manager on behalf of the Sabarmati Co-operative Bank Ltd, Ahmedabad, (Now its under liquidation) the Deponent do hereby solemnly affirm and state on oath as under: 1. I am filing this affidavit in pursuance of the order dated 24-11-2017 passed by this Hon'ble Court in Criminal Misc. Application No. 25823 of 2017 with No. 23341 of 2017. 2. I am filing this affidavit in pursuance of the order dated 24-11-2017 passed by this Hon'ble Court in Criminal Misc. Application No. 25823 of 2017 with No. 23341 of 2017. 2. I hereby furnish the copy of the resolution passed by the Official Liquidator of the Bank whereby I am authorised to represent the bank and express my consent for quashing of the criminal proceeding filed against the applicant vide FIR being CR No. I-520/2003 lodged with Sabarmati Police Station, Ahmedabad and 2nd FIR being CR No. 681/2002 lodged with Naranpura Police Station, Ahmedabad for offences punishable under sections 406, 420, 467, 471, 477A, 114 and 120(B) of Indian Penal Code with section 46 of the Banking Regulation Act. 3. I hereby give no objection if the Hon'ble Court quashes the impugned FIR against the applicant. Solemnly affirmed at Ahmedabad on this 29th day of November, 2017.” 10. Along with the affidavit, he has annexed a copy of the resolution passed by the bank dated 4th October 2917 authorising him to take care of such legal proceedings. The affidavit along with the authorisation letter is ordered to be taken on record. 11. In the result, both the applications are allowed. The proceedings of the Criminal Case No. 469 of 2004 arising from the First Information Report being C.R No. I-681 of 2002 registered with the Naranpura Police Station, Ahmedabad and the Criminal Case No. 61 of 2005 arising from the First Information Report being C.R No. I-520 of 2003 registered with the Sabarmati Police Station, Ahmedabad pending before the Additional Metropolitan Magistrate, Court No. 9, Ahmedabad and the Metropolitan Magistrate, Court No. 21, Ahmedabad respectively are hereby quashed so far as the applicants are concerned. Rule is made absolute in both the matters. Direct service is permitted.