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2020 DIGILAW 679 (JK)

Dinesh Gupta v. State

2020-12-14

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—By this judgment, two petitions, under Section 561-A of J&K Cr.PC challenging F.I.R No. 331/2009 for offences under Sections 420, 467 and 468 RPC registered with Police Station, Gandhi Nagar, Jammu filed by above named petitioners are proposed to be disposed of. 2. The facts giving rise to the filing of these petitions are that on 01.12.2009, Police Station, Gandhi Nagar, Jammu received a written complaint from respondent No. 2 alleging therein that the petitioners herein are in collusion and misusing the public money by using their position and authority. As per the complaint, in the year, 2001, the petitioner-Kuldeep Kumar Gupta, while working as Branch Manager, Ware House Branch of the Citizen’s Cooperative Bank Ltd. hatched a criminal conspiracy to rob the bank by fraudulently raising loan of Rs. 10 lakhs in favour of one Sh. Rajinder Kumar. It was averred in the complaint that as per the norms of the Bank to raise loan of Rs. 10 lakhs, a security deposit of at least Rs. 20 lakhs is required, whereas, in the instant case, the borrower had produced collateral security in the shape of land measuring 14 kanals 06 marlas situated at Village Gatta Gajansoo, which was valuing only about Rs. 1.5 lakhs. It was alleged that the petitioner-Kuldeep Kumar Gupta hatched a deep rooted conspiracy with Sh. Rajinder Kumar and got the valuation of the property in question done from an approved valuer of the Citizens Cooperative Bank Ltd., M/S Khosla and Co., who exaggerated the value of the land to the tune of Rs. 20, 02, 000/-. It was further alleged that the petitioner Kuldeep Kumar Gupta himself exaggerated the value of the land in the capacity of Branch Manager and recommended sanctioning of loan worth Rs. 10 lakhs in favour of Rajinder Kumar. The complaint further goes on to state that after getting the necessary sanction, M/S Rajinder Kumar and Co. withdrew money from the loan account on the basis of fake performa bills and the loan money was never used for the purpose for which it had been sanctioned. 3. According to the complaint, the fake performa bills were arranged by the petitioner-Kuldeep Kumar Gupta. withdrew money from the loan account on the basis of fake performa bills and the loan money was never used for the purpose for which it had been sanctioned. 3. According to the complaint, the fake performa bills were arranged by the petitioner-Kuldeep Kumar Gupta. It was further stated in the complaint that the account became a non performing asset as the loan was not repaid and the then administrator of board of Citizen’s Cooperative Bank Ltd. directed proper verification of collateral security by the competent authority, who vide his report dated 05.11.2005 stated the valuation of the collateral security as Rs. 1.45 Lakh only. It was further alleged in the complaint that the present Chairman of the Citizen’s Cooperative Bank, petitioner-Dinesh Gupta is trying to hush-up the matter and settling the case by giving heavy rebate so as to erase the sins of the petitioner-Kuldeep Kumar Gupta for heavy consideration which can be ascertained by sustained interrogation. On the basis of this complaint, the F.I.R which is subject matter of challenge of afore titled two petitions came to be registered by police station Gandhi Nagar and investigation of the case was set into motion. Case of Petitioner-Dinesh Gupta 4. According the petitioner, he is the Chairman of Citizen’s Cooperative Bank Ltd. and when he was elected as a Director, he had to face stiff opposition from various persons who lost election to him. It is further averred that when the petitioner convened a conference, which was attended by Registrar, Cooperative Societies, all Directors of the Bank, Officers and employees of the bank, respondent No. 2, who was President of Citizen’s Cooperative Bank, subordinate staff association raised slogans, misbehaved and defamed the bank as well as its management. It is further averred that respondent No. 2 was trying to interfere with the functioning of the bank by raising illegal demands and that he held the press conference in which he leveled defamatory allegations against the management of the bank including the petitioner. According to the petitioner, because of these activities of respondent No. 2, he was placed under suspension and finally removed from the service of the bank. The order of termination came to be challenged by respondent No. 2 before the Registrar, Cooperative Societies by filing an appeal, which is still pending disposal. According to the petitioner, because of these activities of respondent No. 2, he was placed under suspension and finally removed from the service of the bank. The order of termination came to be challenged by respondent No. 2 before the Registrar, Cooperative Societies by filing an appeal, which is still pending disposal. It is further averred that respondent No. 2 has availed loan from the bank in his capacity as an employee and he had failed to repay the same. Accordingly, the petitioner had issued directions to proceed against respondent No. 2 for recovery of the loan amount and arbitration petition under Section 70 of the J&K Cooperative Societies Act came to be filed by the Bank against respondent No. 2. It is also averred that respondent No. 2 filed a writ petition bearing OWP No. 1677/2009 to challenge the arbitration proceedings but he could not get an order of stay of the proceedings from this Court. It has also been pleaded that management of the Bank filed a suit against respondent No. 2 for recovery of damages on account of defamation, which is pending disposal before learned 2nd Additional District Judge, Jammu and apart from this, criminal complaint for defamation under Section 500 RPC has been filed in the Court of learned JMIC (Sub Judge), Jammu. 5. In the backdrop of the aforesaid facts, the petitioner has contended that respondent No. 2, with a malafide intention and in order to wreak vengeance on the petitioner, approached Vigilance Organization for registration of an F.I.R against the petitioner by leveling false allegations against him, which pertain to the year, 2001 when the petitioner was not the Chairman of the Bank. It is averred that the Vigilance Organization did not register the F.I.R, whereafter, the petitioner filed a fresh complaint before the respondent No. 1 for alleged commission of offence under Section 420, 467 and 468 RPC. 6. It is averred that the Vigilance Organization did not register the F.I.R, whereafter, the petitioner filed a fresh complaint before the respondent No. 1 for alleged commission of offence under Section 420, 467 and 468 RPC. 6. The F.I.R has been challenged by the petitioner on the following grounds:- (a) That the same is sheer abuse of process of law and a result of vengeance on the part of respondent No. 2; (b) That the allegations made in the F.I.R do not constitute an offence against the petitioner; (c) That loan has been settled by the borrower under one time settlement scheme adopted by the Bank under the guidelines of Reserve Bank of India; (d) That respondent No. 2-complainant never felt aggrieved of sanctioning of loan in the year, 2001 but when he was removed from service and legal proceedings were initiated against him in the year, 2009, he has filed the instant F.I.R with the sole purpose of settling personal grudge against the petitioner; (e) That the petitioner had no role in sanctioning/granting of loan in the year, 2001 as he was not the Chairman of the Bank at the relevant time. Case of Petitioner-Kuldeep Kumar Gupta 7. The petitioner has reiterated the background of filing of complaint by respondent No. 2 against him in similar words as has been pleaded by petitioner-Dinesh Gupta in his petition as given herein before. The grounds urged by the petitioner for challenging the impugned F.I.R are similar to the ones pleaded by petitioner-Dinesh Gupta as have been noted herein before. However, it is admitted by the petitioner that he was the Manager of the Bank at the time of sanction of the loan which is subject matter of the impugned F.I.R. 8. I have heard learned counsel for the petitioners and learned AAG for the respondents. I have also gone through the material on record including the case diary. 9. So far as the allegations made in the F.I.R are concerned, the same pertain to exaggerated valuation of collateral security of land offered for availing loan of Rs. 10 lakhs by M/S Rajinder Kumar and Co.. As per the contents of the F.I.R, which is supported by the evidence collected by the investigating agency, petitioner-Kuldeep Kumar Gupta was the Manager of the Bank that has sanctioned the loan. 10 lakhs by M/S Rajinder Kumar and Co.. As per the contents of the F.I.R, which is supported by the evidence collected by the investigating agency, petitioner-Kuldeep Kumar Gupta was the Manager of the Bank that has sanctioned the loan. The investigating agency is in the process of procuring material/evidence with regard to actual valuation of the land in question at the relevant time, i.e. in the year, 2001 when the loan was sanctioned. 10. The material on record further shows that Board of Directors of the Citizen’s Cooperative Bank Ltd. in its meeting on 14.11.2008 has settled the loan under one time settlement in terms of the guidelines of the Reserve Bank of India at Rs. 12.50 lakhs. It appears that while making said settlement, one of the considerations that the Board of Directors took into account was the undervaluation of the collateral security. 11. It has been contended by learned counsel for the petitioner that petitioner-Kuldeep Kumar Gupta-Manager was only recommending authority and he had relied upon the valuation of the property made by the approved valuer of the Bank. It is true that the valuation of the collateral security was undertaken by the valuer but whether the report of the valuer was binding on the then Manager and whether the petitioner-Kuldeep Kumar Gupta in his capacity as Manager of the Bank was supposed to himself make an inquiry with regard to the valuation of the collateral security, are issues which are subject matter of investigation. Similarly, the issue whether petitioner-Kuldeep Kumar Gupta was in league with the valuer while exaggerating the value of the collateral security, is also subject matter of the ongoing investigation. These issues cannot be gone into by this Court in proceedings under Section 561-A of J&K Cr.PC. 12. In the instant case, the petitioner-Kuldeep Kumar Gupta desires this Court to examine the contents of the F.I.R and evaluate the material collected by the investigating agency so as to determine whether or not the value of the collateral security has been exaggerated and whether or not petitioner-Dinesh Gupta had any role in the same. These questions cannot be gone into in these proceedings. This Court cannot undertake the job of investigating agency to determine these issues. 13. These questions cannot be gone into in these proceedings. This Court cannot undertake the job of investigating agency to determine these issues. 13. So far as the contention of the petitioner that respondent No. 2 was having previous enmity with petitioner-Kuldeep Kumar Gupta, which prompted him to file the F.I.R which is subject matter of this petition is concerned, the same is not borne out from the record. What is borne out from the record is the previous enmity and litigation between respondent No. 2 and the management of the Bank including the petitioner-Dinesh Gupta. Petitioner-Kuldeep Kumar Gupta is not a party to any of the proceedings between respondent No. 2 and management of Citizen’s Cooperative Bank. Therefore, petitioner-Kuldeep Kumar Gupta cannot take shelter under the litigation between the respondent No. 2 and the management of Citizen’s Cooperative Bank to advance the argument that the impugned F.I.R is a result of vengeance on the part of respondent No. 2 against him. 14. For the foregoing reasons, no case for interference in the investigation of the impugned F.I.R so far as it pertains to petitioner-Kuldeep Kumar Gupta is made out at this stage. The investigation in this regard is still under way and the same cannot be scuttled before its completion. 15. So far as the petitioner-Dinesh Gupta is concerned, there is material on record to show that he had joined Citizen’s Cooperative Bank Ltd., Jammu in the year, 2007 and that in the year, 2001, when the loan which is subject matter of the impugned F.I.R was sanctioned, he was not associated with the Bank in any capacity. 16. Further the material on record, which has been placed on record by the petitioner-Dinesh Gupta along with this petition which includes the copies of pleadings filed before different Courts/Fora go on to show that there has been a long standing enmity between the complainant and the management of the Citizen’s Cooperative Bank Ltd. of which the petitioner was the Managing Director/Chairman. The documents go on to show that respondent No. 2 was first placed under suspension by the Managing Director and thereafter, he was terminated from service. Respondent No. 2 filed an appeal against the order of his termination. A suit for recovery of damages on account of defamatory statements alleged to have been made by respondent No. 2 inter-alia against the petitioner, stands filed against respondent No. 2. Respondent No. 2 filed an appeal against the order of his termination. A suit for recovery of damages on account of defamatory statements alleged to have been made by respondent No. 2 inter-alia against the petitioner, stands filed against respondent No. 2. A complaint for defamation has also been filed by the Management of the Bank against respondent No. 2. Besides this, recovery proceedings have also been initiated by the Bank against respondent No. 2. All these documents go on to show that the relations between petitioner-Dinesh Gupta and respondent No. 2 have been far from cordial. 17. The sanctioned loan, which is subject matter of the impugned F.I.R pertains to the year, 2001, when respondent No. 2, was an employee of the Bank. He did not file any complaint immediately thereafter but he made the complaint only in the year, 2009 after the developments, pertaining to his removal from service and his dispute with the management, of which the petitioner-Dinesh Gupta was a constituent, had taken place. This clearly shows that the impugned F.I.R filed by respondent No. 2 against the petitioner-Dinesh Gupta is nothing but an act of vengeance. 18. While there may be some substance in the allegations made by respondent No. 2 in the impugned F.I.R against the petitioner-Kuldeep Kumar Gupta but so far as the petitioner-Dinesh Gupta is concerned, there is only a sweeping allegation in the F.I.R that he is protecting petitioner-Kuldeep Kumar Gupta. The petitioner-Dinesh Gupta is neither a beneficiary under the sanctioned loan nor he was associated with the Bank at the time when the loan was sanctioned but in spite of this, he has been roped in the impugned F.I.R simply because he was the Chairman of the Board at the time of lodging of the F.I.R. If at all the higher authorities of petitioner-Kuldeep Kumar Gupta are to be held responsible, it is Management of the Bank that was at the helm of affairs at the time of sanctioning of loan amount and not the Management which joined the Bank six years down the line, which can be held responsible. 19. From the material collected by the investigating agency during the investigation of the case, there is nothing on record to prima-facie suggest that in the instant case, the Managing Director (s) of the Bank were also in hand in glove with the borrower and the sanctioning authority. 19. From the material collected by the investigating agency during the investigation of the case, there is nothing on record to prima-facie suggest that in the instant case, the Managing Director (s) of the Bank were also in hand in glove with the borrower and the sanctioning authority. I could not find anything in the case diary to even remotely suggest that the petitioner-Dinesh Gupta was in any manner associated with either sanctioning of the loan or in shielding the alleged culprits. 20. For what has been discussed hereinbefore, it is clear that so far as the case against the petitioner-Dinesh Gupta is concerned, there is no material on record to support the allegations made in the F.I.R that he is in league with the suspects. The F.I.R, it seems is result of malafides and vengeance which respondent No. 2 is trying to wreak against the petitioner-Dinesh Gupta. 21. The Supreme Court has, in the case of State of Haryana Vs. Bhajan La; 1990 SCR Supl. (3) 259, while laying down the guidelines regarding exercise of power under Section 482 Cr.PC clearly observed that where the allegations made in the First Information Report and other materials do not disclose a commission of an offence, the prosecution has to be quashed. In the same case, the Supreme Court has further gone on to illustrate that where criminal proceeding is manifestly attended with malafides and the proceedings are maliciously instituted with an ulterior motive to wreak vengeance on the accused with a view to spite him due to private and personal grudge, the prosecution is to be quashed. 22. In the instant case, as already noted, the contents of F.I.R and the material collected by the investigating agency during the course of investigation do not make out any offence against the petitioner-Dinesh Gupta. Apart from this, there is material on record to show that respondent No. 2 is harboring a grudge against the above named petitioner, under whose chairmanship, respondent No. 2 was removed from service, recovery proceedings were initiated against him and civil and criminal cases for defamation were instituted against him. Therefore, the proceedings of the impugned F.I.R to the extent of the petitioner-Dinesh Gupta deserve to be quashed. 23. Accordingly, CRMC No. 189/2009 titled Dinesh Gupta Vs. State and ors. is allowed and the proceedings of the impugned F.I.R to the extent of the petitioner-Dinesh Gupta are quashed. Therefore, the proceedings of the impugned F.I.R to the extent of the petitioner-Dinesh Gupta deserve to be quashed. 23. Accordingly, CRMC No. 189/2009 titled Dinesh Gupta Vs. State and ors. is allowed and the proceedings of the impugned F.I.R to the extent of the petitioner-Dinesh Gupta are quashed. So far as petition titled Kuldeep Kumar Gupta bearing CRMC No. 190/2009 is concerned, the same is dismissed. The case diary be returned back. 24. Before parting, it is necessary to take note of the fact that the impugned F.I.R has been registered way back in the year, 2009 and for the last 11 years, the investigation of the case has not been completed. Upon going through the case diary, I got a feeling that the investigation agency has been sleeping over the matter without making any substantial progress with regard to the investigation of the case. For the last so many years, the investigating agency is simply writing letters to revenue authorities for obtaining valuation report of the land that was offered as collateral security for securing the loan. One after the other investigating officer has remained satisfied by simply writing letters to the revenue authorities without making any effort to pursue those communications with the relevant authorities. 25. Investigating Agency is vested with sufficient powers under the Criminal Procedure Code to proceed against anybody who does not cooperate or does not furnish the relevant information to the investigating officer. In the instant case, it seems that the agency has not taken trouble to have resort to these measures. It appears that even the supervisory officers have ignored the lackadaisical approach of the investigating officers in this case. One can understand the delay in investigation of a case, which involves unearthing of conspiracies of larger magnitude spread over different parts of the country or globe, which is of course is a time consuming process, but in a case of instant nature, which does not involve any such conspiracy, keeping a case under investigation for eleven long years, is something which is unacceptable, particularly when the investigation of the case has at no stage been stayed by this Court or any other Court. It is high time that supervisory officers of the Police devote some attention towards ensuring expeditious investigation of the cases within their respective jurisdictions by peeping into the state of affairs prevailing in the investigating wing of the police. It is high time that supervisory officers of the Police devote some attention towards ensuring expeditious investigation of the cases within their respective jurisdictions by peeping into the state of affairs prevailing in the investigating wing of the police. 26. Accordingly, a direction is issued to Inspector General of Police, Jammu to supervise investigation of the instant case and ensure that the investigation is brought to its logical conclusion within a period of two months from today. He shall also take stock of all delayed investigations within his jurisdiction and thereafter initiate corrective measures. 27. Disposed of accordingly. 28. A copy of this order be sent to Inspector General of Police, Jammu for compliance.