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Uttarakhand High Court · body

2022 DIGILAW 343 (UTT)

I. G. Alexander v. State of Uttarakhand

2022-10-12

RAVINDRA MAITHANI

body2022
JUDGMENT : Since one and the same FIR is sought to be quashed by means of these petitions, they are being decided by this common judgment. 2. The petitioners seek quashing of the FIR No. 180 of 2019 (“the FIR”), dated 11.09.2019, under Sections 420, 467, 468, 471 IPC, Police Station Dalanwalan, District Dehradun with related reliefs. 3. Facts necessary to appreciate the controversy are as follows:- The FIR in question has been lodged by the respondent no.3 Vijay Kumar Kushwaha (“the informant”). According to it, the informant has some dispute with a South Indian Bank (“the SIB”). In the meanwhile, according to the FIR, the owner and officers of the SIB opened a forged Account No. 0471658000000009 (“the account”) in the name of the informant and embezzled Rs. 243611815/-. The FIR also records that a transaction of Rs.92723059.45 was made in the account on 23.05.2016 and again another entry of same amount was made in the account on 25.10.2018. The FIR is quite in detail with regard to these transactions and it records that the owners and the officers of the SIB have not been working as per the guidelines and committing forgery. 4. Heard learned counsel for the parties and perused the record. 5. Learned Senior Counsel appearing for the petitioners would submit that the FIR is baseless and vexatious with an intention to keep the issue alive. It is argued that the issue has already been decided by this Court on 04.06.2019, while deciding the Writ Petition (Criminal) No. 527 of 2016, Vijay Kumar Kushwaha Vs. Secretary Home, State and Others and connected matters (“the petitions”). It is argued that earlier also the informant had filed an FIR No. 667 of 2019, which was quashed by the order dated 14.06.2019, passed by this Court in the petitions. Learned Senior Counsel raised the following points as well:- (i) In the earlier FIR No. 667 of 2015, the informant had alleged that his three bank accounts were forged by the officers of the SIB, which includes the present account. (ii) The account-in-question is suit filed account. (iii) The issue had already attained finality in the petitions decided by this Court earlier. (iv) The entries, which were made on 23.05.2016, in the account were in accordance with the Reserve Bank of India (“the RBI”) guidelines. (ii) The account-in-question is suit filed account. (iii) The issue had already attained finality in the petitions decided by this Court earlier. (iv) The entries, which were made on 23.05.2016, in the account were in accordance with the Reserve Bank of India (“the RBI”) guidelines. (v) Although, the entries were made in the account on 23.05.2016, as per RBI guidelines, but there were some difficulties in the implementation. Therefore, SIB further laid down certain guidelines on 13.09.2018, by which the entries were reversed. (vi) On 23.05.2016 and 25.10.2018, two entries were made in the account, but the effect is zero. By virtue of entry dated 25.10.2018, an earlier entry dated 23.05.2016 was neutralized. It has been done as per guidelines. 6. Learned Senior Counsel would submit that the FIR deserves to be quashed. It does not make out any offence. It is baseless and vexatious. 7. On the other hand, learned counsel appearing for the respondent no.3 would submit that the account was not suit filed account because the SIB had filed OA before Debt Recovery Tribunal, Dehradun (“DRT”) and till then, the account was not opened. The learned counsel also raised the following points in his arguments:- (i) The CBI in the earlier charge sheet had recorded that the account was opened for the purpose of filing of recovery suit in DRT and CBI in its charge sheet has also recorded, “No operation was allowed in this account, no signature of customer is required for opening this account.” It is argued that if it is so, why the entries were made on 23.05.2016 and 25.10.2018? (ii) Suit filed account is opened, when loan is advanced. Instant is not such a case. It is not the case of SIB that any loan was advanced. (iii) CBI could not have investigated, the transactions dated 23.05.2016 and 25.10.2018 because it had already filed charge sheet in the year 2017. (iv) The entries in the account, the informant apprehends, has been made with some ulterior motives to cause loss to the informant. (v) Once the account is written off, there is no provision to reverse it. (v) The RBI guidelines and SIB circulars were issued much after the account was opened. The SIB could not have foreseen it. (iv) The entries in the account, the informant apprehends, has been made with some ulterior motives to cause loss to the informant. (v) Once the account is written off, there is no provision to reverse it. (v) The RBI guidelines and SIB circulars were issued much after the account was opened. The SIB could not have foreseen it. (vi) The judgment and order dated 14.06.2019 passed by this Court, in the petitions, has already been put to challenge by the informant before the Hon’ble Supreme Court in Special Leave Petition (Criminal) Diary No. 41295 of 2019 (“the SLP”), in which CBI has been directed to file a short affidavit, categorically revealing, as to whether, they had investigated allegations as leveled in FIR No. 667 of 2019. Reference has been made to the order dated 07.02.2020 passed in the SLP. (vii) Since, the question of investigation into the allegations, as leveled in FIR No. 667 of 2015 is pending disposal before the Hon’ble Supreme Court, till the decision of the Hon’ble Supreme Court, this matter may be kept pending. (viii) The SIB did not open suit filed account in other cases, where they have filed the recovery suits before the DRT. 8. Learned counsel for the informant would submit that generally investigation should not be stopped. FIR should not be quashed. 9. This is a writ petition under Article 226 of the Constitution of India. Generally, interference at this stage is not made. The FIR is not interfered with if it makes out any offence. An intervention may be made if there are compelling reasons to do so. 10. What is essentially argued is that the allegations which have been leveled in the FIR had already been investigated by the CBI in the earlier FIR. It has also being argued that insofar as entries dated 23.05.2016 and 25.10.2018 are concerned, they are as per the guidelines. 11. The dispute between the informant and the SIB has a history. The Court does not intent to go into all those details as to what happened in the past. 12. Suffice it to say, order dated 14.06.2019 of this Court, passed in the petitions, reveals much about it. The allegations which were leveled by the informant in FIR No. 667 of 2015 has been quoted by this Court in para 14 of its order dated 14.06.2019, passed in the petitions. 12. Suffice it to say, order dated 14.06.2019 of this Court, passed in the petitions, reveals much about it. The allegations which were leveled by the informant in FIR No. 667 of 2015 has been quoted by this Court in para 14 of its order dated 14.06.2019, passed in the petitions. It is as hereunder:- “14. Perusal of the order reveals that though the court transferred the investigation in FIR No. 389 of 2012 but, CBI was directed by the Court to ensure fair, impartial and thorough investigation. At this moment only, it would be appropriate to look into the allegations, which have been leveled by petitioner Vijay Kumar Kushwaha, in FIR No. 667 of 2015. It would be apt to reproduce the concluding paragraphs of the FIR, which is as hereunder:- “Therefore, sir, it is kindly requested that the conspiracy and forgery which has been hatched by the officers of South Indian Bank Ltd. to earn more profit from the amount of 9 Rs.70,00,000/- of applicant and to cause the injury to the applicant and the pay order No. 157753 dated 15.05.2012 for Rs.4,00,00,000/- huge amount and pay order No. 157753 to give the undue advantage by the officers of bank to Uttarakhand State Cooperative Bank Ltd. and to cause loss and to falsely implicate to the applicant by the South Indian Bank Ltd. and with the conspiracy and forgery by the officers of bank a false account No. 047165100000047 for Rs.3,29,88,881/- and another account joint No. 047168100000048 for Rs.7,67,79,918/- were opened in the name of other persons for the purpose to give undue advantage. Rs.19,26,56,917.00 huge amount from the account of applicant was withdrawn from the relevant account of applicant and with the conspiracy and on 20.03.2015 the forge account no. 0471658000000009 for Rs.15,60,52,018 which was opened on the basis of forge documents by the bank officer of South Indian Bank Ltd. with CIBIL company with the conspiracy to earn more profit for themselves to the cause loss the reputation of applicant, a preliminary report may kindly be lodged for getting justice of the applicant and the culprits may be punished and a strict punishment may be given to these following culprits.” (emphasis supplied) 13. A bare perusal of the above reveals that, in fact, in FIR No. 667 of 2015 also, the informant had leveled allegations that the account in dispute had been opened by forgery by the officers of SIB. In paragraphs 18 and 22 of the order dated 14.06.2019, passed in the petitions, this Court further observed as hereunder:- “18. In Writ Petition Criminal No. 1586 of 2016, by which petitioner Vijay Kumar Kushwaha desires handing over the investigation in FIR No. 667 of 2015 to the CBI, CBI filed a counter affidavit and in this counter affidavit, which is signed by Arun Kumar Gupta, Deputy Superintendent of Police, CBI has in Para no.6 categorically stated about the bank account which according to the petitioner Vijay Kumar Kushwaha were falsely opened. In his affidavit Arun Kumar Gupta, Deputy Superintendent of Police, CBI deposed that these accounts were not loan accounts but suit file accounts for the purpose of filing a recovery suit in DRT against the petitioner Vijay Kumar Kushwaha. No debit and credit transaction has ever taken place in these accounts. These were just opened for the purpose of internal accounting by the bank. In his affidavit Arun Kumar Gupta, Deputy Superintendent of Police, categorically states that investigation in FIR No. 389 of 2012 has been conducted to the 11 fraud committed in South Indian Bank, Dehradun Branch for the period from 2007 to 2012, therefore, according to the CBI, subject matter of FIR No. 667 of 2015, was also part of the investigation of the CBI and there is no need to register a separate FIR regarding the allegations leveled in FIR No. 667 of 2015. 22. As stated, hereinbefore, issue of pay orders have also been an issue in FIR No. 389 of 2012, which has been extensively investigated by the CBI. Insofar as, the issue of forged bank accounts is concerned, it has also been investigated by the CBI and it is not done by the CBI on their own but, this Court, while transferring the investigation in to the allegation of FIR No. 389 of 2012 to the CBI, directed the CBI to conduct “thorough investigation”, which they did.” (emphasis supplied) 14. In paragraph 23 of its order dated 14.06.2019, passed in the petitions, the Court further observed as hereunder:- “23. In paragraph 23 of its order dated 14.06.2019, passed in the petitions, the Court further observed as hereunder:- “23. On the basis of the foregoing discussion, this Court is of the view that, in fact, whatever allegations have been leveled by the petitioner Vijay Kumar Kushwaha in FIR No. 667 of 2015 had already been, extensively investigated by the CBI and submitted the charge sheet. Therefore, there is no occasion now to continue investigation on FIR No. 667 of 2015. FIR No. 667 of 2015 as well as impugned order dated 07.04.2017 passed by learned court below in the case deserves to be quashed and set aside. Accordingly, Writ Petition (Criminal) No. 527 of 2016 and Writ Petition (Criminal) No. 1586 of 2016 deserves to be dismissed and Writ Petition (Criminal) No. 1116 of 2016 and Criminal Misc. Application No. 522 of 2017 deserve to be allowed.” (emphasis supplied) 15. In the instant FIR, it is the case of the informant that the account is a forged account. The order dated 14.06.2019 of this Court elaborates that this aspect has already been investigated by the CBI. 16. It is true that with regard to the entries dated 23.05.2016 and 25.10.2018, there has been no determination in the past. 17. It has been argued on behalf of the petitioners that those entries are as per the directions of RBI. Reference has been made to Annexures 9 and 10 of the writ petition Criminal No. 1785 of 2019. Annexure 9 is RBI Master Circular on the subject “Prudential norms on Income Recognition, Assets Classification and Provisioning pertaining to Advances”. It is dated 01.07.2015. The entry dated 23.05.2016 is post to this circular. Annexure 10 is a circular of the SIB, on “revised accounting technical write-off in the system”. It is dated 13.09.2018. It may be noted that the entry dated 25.10.2018 is post this circular. In the circular dated 13.09.2018 of the SIB, at SL No.5, some details of write-off accounts is given. It is as hereunder:- “5. Annexure 10 is a circular of the SIB, on “revised accounting technical write-off in the system”. It is dated 13.09.2018. It may be noted that the entry dated 25.10.2018 is post this circular. In the circular dated 13.09.2018 of the SIB, at SL No.5, some details of write-off accounts is given. It is as hereunder:- “5. Whenever a credit happens in NPA –write-off account, the system automated order of reversal will be as follows:- For all Suit Filed accounts (SUITF/SUITN) having technical write off: System will reverse the written off amount to the account 452.5 [amount written off since recovered] first and the balance amount from the customer credit if any will be considered for NPA reversal [258.3 to IRLA account]. For All OD/CC/PC/Bill (accounts other than LAA) having technical write off: The interest portion will be considered first for reversal [258.3 to IRLA account] and the balance amount from the customer credit if any will be considered for reversal the written off amount to the account 452.5 [Amount written off since recovered]. For existing term loans already having technical write off balances : System will reverse the written off amount to the account 452.5 [Amount written off since recovered] first and the balance amount from the customer credit if any will be considered for INPA reversal [258.3 to IRLA account]. For term loans where technical write off is allowed subsequent to the date of this circular: Set off will happen in the chronological order of demand. For the amount adjusted towards Principal Demand (PRDEM), system will reverse the same amount (adjusted towards PRDEM] from XXXX.709.84 [Technical Write off Amounts] to XXXX.452.5 [Amount written off since recovered]. The amount adjusted towards Interest /Charges demand (INDEM/PIDEM/BCDEM/DIDEM) will be utilized for INPA reversal [XXXX.258.3 to IRLA].” 18. The Bank account entry is Annexure 4 to the Writ Petition (Criminal) No. 1785 of 2019. A bare perusal of it reveals that on 23.05.2016, the entry was made with the particulars “prudential write-off”. It may be noted that on 25.10.2018, the entry was made under the particular head “Tech write-off reversal”. The entries itself reveal that it was not in the name of any party. It is being submitted that these entries are as per guidelines, to maintain the account. 19. If Bank has not opened suit filed account in other cases, it has less bearing on this aspect. 20. The entries itself reveal that it was not in the name of any party. It is being submitted that these entries are as per guidelines, to maintain the account. 19. If Bank has not opened suit filed account in other cases, it has less bearing on this aspect. 20. There is another aspect of the matter. Even if Bank has made certain entries, how could it be said that any offence is made? The FIR has been lodged under Sections 420, 467, 468, 471 IPC. It is not a case of cheating. Nobody has been cheated. Nobody has been induced to deliver any property. It is not a case of forgery. No false documents have been prepared. Entries have been made in an account, which is claimed to be suit filed account and which, in the earlier round of litigation, CBI had investigated and stated that it is, in fact, a suit filed account, which is opened for the purpose of internal accounting matters. 21. It is true that in the earlier charge sheet, the CBI has stated that suit filed account are not operated. Transactions are not made. It does not require any signature. There has been no transaction as such in the instant case also. The entries, as stated hereinbefore, reveal that it is some write-off entry or some reverse entry, which is claimed to be as per RBI Master Circular or SIB Circular. 22. It is true that the order dated 14.06.2019 passed by this Court, in the petitions, is put to challenge before the Hon’ble Supreme Court. It is also admitted that in the SLP, the Hon’ble Supreme Court has required the CBI to clarify as to whether the allegations of FIR No. 667 of 2015 has ever been investigated by it or not. But, merely because of that reason the instant petition cannot be kept pending. The issue with regard to the earlier litigation is before the Hon’ble Supreme Court. The issue in the instant case is as to whether the F.I.R. discloses any offence or not. 23. In view of what is state hereinbefore, this Court is of the view that with regard to opening of forged account the matter has already been investigated and as such, with regard to making of two entries of 23.05.2016 and 25.10.2018, no prima facie offence is made out. 23. In view of what is state hereinbefore, this Court is of the view that with regard to opening of forged account the matter has already been investigated and as such, with regard to making of two entries of 23.05.2016 and 25.10.2018, no prima facie offence is made out. Therefore, the FIR deserves to be quashed and the petitions allowed. 24. The petitions are allowed. 25. The FIR No. 180 of 2019 dated 11.09.2019, under Sections 420, 467, 468, 471 IPC, Police Station Dalanwalan, District Dehradun is quashed.