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2022 DIGILAW 1544 (GUJ)

GOVINDBHAI MAFATBHAI PATEL v. STATE OF GUJARAT

2022-11-09

HEMANT M.PRACHCHHAK

body2022
ORDER : 1. Heard Mr. Naman H. Kinkhabwala and Mr. Z.L. Khan, learned advocates for the petitioners, Mr. Chintan Dave, learned Additional Public Prosecutor for respondent No. 1- State Government and Mr. Rakesh R. Patel, learned advocate for respondent No. 2. 2. By way of this petition under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “the Code”) the petitioners have prayed for quashing and setting aside the FIR bearing CR No. I-452 of 2002 registered with Naranpura Police Station, Ahmedabad and consequential proceedings which are pending in form of Criminal Case No. 368 of 2004, 23 of 2005 and 980 of 2011 before the Metropolitan Magistrate Court No. 9, Ahmedabad including the supplementary charge-sheet. 3. At the outset, learned advocates for the petitioners has submitted that out of present three petitioners, petitioner Nos. 1 and 3 have passed away. He has produced the document relating to the death of petitioner No. 3, which is taken on record of the present petition. 4. Hence, in view of the above, the petition is abated qua petitioner Nos. 1 and 3 and present petition is alive now only for petitioner No. 2-Ms. Alkaben Nitinbhai Patel. 5. The facts which emerged from the record of the petition are summed up as under: 5.1 It is the case of the petitioner that Manager of the respondent No. 2 bank has filed complaint against the director of the bank and also against the 19 borrowers of the bank on 30.8.2022 alleging mismanagement and misappropriation of public fund by management in collusion with the borrowers. It further appears from the record that the respondent No. 2 bank also resorted to civil proceedings and preferred separate recovery suits before the Board of nominees. It is further averred that the petitioner had obtained loan by giving appropriate security and documents. It further appears that the petitioner was arrested in pursuance to the above referred complaint and thereafter the petitioner was enlarged on bail by this Court. 6. Learned advocate for the petitioner submitted that in view of the fact that the Bank has already received amount due and payable from the petitioner, no civil liabilities exist. It further appears that the petitioner was arrested in pursuance to the above referred complaint and thereafter the petitioner was enlarged on bail by this Court. 6. Learned advocate for the petitioner submitted that in view of the fact that the Bank has already received amount due and payable from the petitioner, no civil liabilities exist. 6.1 It is further contended on behalf of the petitioner that there is no material on record or even collected during the course of investigation which would establish that the loan was obtained by the petitioner by furnishing security which was not valid. 6.2 It is, therefore, submitted that any further continuance of the criminal proceedings pursuant to the impugned FIR as well as the charge-sheet would amount to harassment to the petitioner and the same would amount to abuse of process of law and Court and therefore, in order to secure the ends of justice, this Court may exercise its inherent powers conferred under Section 482 of the Code and quash the complaint and consequent proceedings as prayed for. 6.3 Learned advocate for the petitioner has also pointed out that in similarly situated case relating to another Cooperative Bank, this Court (Coram: M.R. Shah, J.) was pleased to quash the complaint while allowing the petition being Special Criminal Application No. 196 of 2012 vide judgment and order dated 16.2.2012. He has submitted that the facts arising out of this petition are similar to the aforesaid petition and therefore, applying the ratio laid down by this Court in the aforesaid case, this petition deserves to be allowed. The learned advocate for the petitioner has also relied upon the other similar orders passed by this Court wherein on account of dues having been paid, this Court has exercised its inherent powers conferred under Section 482 of the Code. 7. Mr. Rakesh Patel, learned advocate for respondent No. 2 Bank-original complainant has not disputed that the entire amount due and payable has been repaid by the petitioner and has also not disputed the existence of no due certificate. 8. Mr. Chintan Dave, learned Additional Public Prosecutor for respondent No. 1-State Government and the investigating officer has also not denied the said fact and has not further pointed out anything from the record or the police papers that any different view needs to be taken by this Court. 9. 8. Mr. Chintan Dave, learned Additional Public Prosecutor for respondent No. 1-State Government and the investigating officer has also not denied the said fact and has not further pointed out anything from the record or the police papers that any different view needs to be taken by this Court. 9. Considering the aforesaid submissions as well as the allegations made in the FIR, it transpires that as such there is no specific allegation against the present petitioner. Even on further perusal of the charge-sheet, the allegations made against the petitioner is to the effect that the petitioner obtained loan, but did not start the business and even did not pay the loan amount back to the Bank and on this sole allegation, it is alleged that the petitioner has committed the alleged offence. Except the aforesaid sole allegation, nothing is found from the FIR as well as the charge-sheet which is forming part of the record and therefore, even if the same is taken at its face value, prima-facie, no offence is made out qua the present petitioner No. 2. 10. It is not the case of the complainant or even the investigating agency that the petitioner obtained loan by submitting documents which were forged or in any other fraudulent manner and have thereby deceived respondent No. 2 Bank. In addition to this, when the entire amount of loan has been repaid under One Time Settlement which has been accepted by the Bank/complainant, in opinion of this Court, this is a fit case to exercise its inherent powers under Section 482 of the Code and quash the complaint and the subsequent proceeding arising therefrom. 11. At this stage, it would be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of Rajiv Thapar and Others vs. Madan Lal Kapoor, (2013) 3 SCC 330 , wherein the parameters of inherent powers under Section 482 of the Code have been laid down by the Hon'ble Apex Court and observed thus: “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C. if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C. at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/ complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.: 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 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. 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.” 12. Considering the facts arising out of this petition, as observed hereinabove, in the present case, this Court is of the opinion that all the four steps, as observed above by the Hon'ble Apex Court, are completed and therefore, any further continuance of criminal proceedings pursuant to the impugned FIR and consequential proceedings arising therefrom would amount to abuse of process of law and Court and therefore, in order to secure the ends of justice, this is a fit case to exercise inherent powers of this Court conferred under Section 482 of the Code. 13. In similar set of circumstances, this Court (Coram: M.R. Shah, J.) in Special Criminal Application No. 196 of 2012 vide judgment and order dated 16.2.2012 has observed thus: “6. Heard learned advocates appearing on behalf of the respective parties at length and considered the entire charge-sheet papers and averments and allegations made against the petitioner. It appears that the main and only allegation against the petitioner is that loan/ finance was given to the petitioner beyond prescribed limit. It is alleged that a sum of Rs. Heard learned advocates appearing on behalf of the respective parties at length and considered the entire charge-sheet papers and averments and allegations made against the petitioner. It appears that the main and only allegation against the petitioner is that loan/ finance was given to the petitioner beyond prescribed limit. It is alleged that a sum of Rs. 18 Lacs was advanced to the petitioner though permissible limit under the account of Bhagwati Enterprise was Rs. 64,000/-. Therefore, it is alleged that the petitioner has committed an offence of misappropriation. It is to be noted that considering the aforesaid facts and circumstances of the case and when there are no allegations that the finance was obtained by the petitioner by forging the documents and more particularly when entire amount due and payable by the petitioner, which was financed to the petitioner, has been repaid by the petitioner, to continue the criminal proceedings against the petitioner would be unnecessary harassment to the petitioner and it will be abuse of process of law and Court. When the entire amount of finance/loan has been repaid by the petitioner and when there is no allegation of creating and forging the documents while taking loan/advance, the learned Single Judge has quashed and set aside the charge-sheet arising out of the said FIR.” 14. Cumulatively, therefore, the present petition is allowed. The impugned FIR bearing CR No. I-452 of 2002 registered with Naranpura Police Station, Ahmedabad and consequential proceedings which are pending in form of Criminal Case No. 368 of 2004, 23 of 2005 and 980 of 2011 before the Metropolitan Magistrate Court No. 9, Ahmedabad including the supplementary charge-sheet as well as all other consequential proceedings arising out of the aforesaid FIR are hereby quashed and set aside qua the petitioner No. 2 herein i.e. Ms. Alkaben Nitinbhai Patel. However, it is clarified that the same shall be without prejudice to the rights and contentions of the original complainant as well as the prosecution. The other accused persons shall be tried by the Magistrate in accordance with law, on its own merits, without in any manner being influenced by the present judgment as the present judgment only applies qua the present petitioner No. 2. 15. Accordingly, this petition is allowed in the above terms. No order as to cost. Direct service is permitted.