Gujarat High Court
Kalpesh Shambhulal Thakker vs Jalaram Mercentile Co-Operative ... on 9 March, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/421/2011 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 421 of 2011
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KALPESH SHAMBHULAL THAKKER
Versus
JALARAM MERCENTILE CO-OPERATIVE CREDIT SOCIETY
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Appearance:
MR ASHISH M DAGLI(2203) for the PETITIONER(s) No. 1,2
MR BD KARIA(396) for the RESPONDENT(s) No. 1
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,3
MR. RAKESH PATEL, ADDL. PUBLIC PROSECUTOR(2) for the
RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 09/03/2018
ORAL ORDER
1. By this writ application under Article 226 of the Constitution of India, the writ applicants have prayed for the following reliefs;
"(A) Your Lordships may be pleased to issue appropriate writ, order and/or direction to quash and set aside the FIR being C.R. No.I-60 of 2011 registered with the Anand Town Police Station, Anand, (B) Pending admission and final disposal of the present petition, Your Lordships may be pleased to stay further investigation in respect of the FIR being C.R. No.I-60 of 2011 registered with the Anand Town Police Station, Anand, (C ) An ex-parte ad interim relief in terms of prayer (B) above, may kindly be granted;
(D) Such other and further relief/s as may be deemed just and proper in the facts and circumstances of the present case may kindly be granted in the interest of justice."Page 1 of 25
R/SCR.A/421/2011 ORDER
2. The facts emerging from the record of the case are that one Pravinsinh Natvarsinh Gohel, serving with the respondent No.1-Society, lodged a first information report at the Anand Town Police Station, Anand being C.R. No.I-60 of 2011 for the offence punishable under sections 406, 420, 465, 467, 468, 471 and 120B of the IPC. The case of the first informant is that the writ applicant No.1 herein, at the relevant point of time, was one of the directors of the society. In the year 2001, the writ applicant No.1 availed of cash credit facility to the tune of Rs.5,00,000/- from the society in the name of his wife, i.e., the writ applicant No.2. The cash credit facility, availed of, was for a period of one year. The same was, thereafter, renewed time to time. In the year 2002, the writ applicant No.1 is also said to have obtained a cash credit facility from the society of the amount of Rs.5,00,000/-. At that point of time, by way of security, the writ applicant No.1 mortgaged his immovable property with the society in the form of a residential house, situated at Mouje Bakrol bearing Revenue Survey Nos.2129, 2130 and 2140 respectively. The immovable property, which was offered to the society, by way of security, was in the joint name of the writ applicants and a mortgage deed was executed in favour of the society. It is the case of the first informant that the amount availed of by the writ applicants by way of cash credit facility was not repaid to the society with interest. In such circumstances, the society started issuing notices for the purpose of recovery. It is alleged that the property mortgaged with the society was also mortgaged with the LIC Housing Finance at Vadodara. It is further alleged that for the purpose of availing of the cash credit facility, a false title clearance certificate was also obtained and produced Page 2 of 25 R/SCR.A/421/2011 ORDER before the society. In such circumstances, the first information report came to be registered.
3. On 23rd February, 2011, a Coordinate Bench of this Court passed the following order;
"Leave to add the PSI, Anand Town Police Station, as the respondent No.3 is granted.
It is submitted by Mr.Prabahav Mehta for the petitioners that allegation of obtaining loan by mortgaging property with the respondent No.1-Jalaram Mercantile Co- Operative Credit Society is false and the property in question has never been mortgaged with the respondent No.1. According to him, the property in question has been mortgaged with LIC Housing while obtaining loan and as a counter blast, this false complaint is filed. He has brought to the notice of this Court that in pursuance of order passed by this Court in Special Civil Application No.17270 of 2010, Rs.10,00,000/- has been deposited with this Court and matter is also pending. It is further submitted that Lavad Suit is also pending before the Board of Nominees and till date, no decree is passed therein.
In view of the above, issue notice returnable on 3-3-2011. Mr.L.R.Pujari, learned APP waives service of notice on behalf of the respondent No.2-State. Ad-interim relief in terms of prayer para 25(B) is granted till the returnable date. Direct service is permitted. "
4. Mr. B.B. Naik, the learned senior counsel appearing with Mr. Dagli, the learned counsel for the writ applicants vehemently submitted that the lodging of the first information report by the society is nothing but a gross abuse of the police machinery for the purpose of recovery of the dues which are otherwise not due and payable by the writ applicants to the society. Mr. Naik submitted that the writ applicants decided to go abroad in the year 2005. At that point of time, they Page 3 of 25 R/SCR.A/421/2011 ORDER executed one power of attorney in favour of a person by name Nikul Patel. Nikul Pate, on the strength of the power of attorney, transferred the bungalow of the ownership of the writ applicants in favour of his own wife by way of a registered sale deed. It is further pointed out that the purchaser, i.e., the wife of Nikul Patel, in turn, sold the bungalow to the wife of the lawyer appearing for the society in the courts below. The transfer of the bungalow in favour of one Bhavnaben took place in the year 2009. It is further pointed out that Bhavnaben knew that the bungalow had been mortgaged with the society and that there was a charge of the society over the bungalow. In such circumstances, Bhavnaben went to the society and paid Rs.12,50,000/- to get the charge over the bungalow released. The society accepted the amount of Rs.12,50,000/- and released the property from mortgage. According to Mr. Naik, with the payment of Rs.12,50,000/- at the relevant point of time, the entire liability, so far as the writ applicants are concerned, could be said to have come to an end. However, Mr. Naik clarified that all those transactions were a fraud. However, the fact remains that the society did accept Rs.12,50,000/- from Bhavnaben.
5. Mr. Naik submitted that, as on date, there is a civil suit pending in the civil court filed by his clients against Bhavnaben and others for the fraudulent transfer of the bungalow and the cancellation of the sale deed.
6. Mr. Naik further pointed out that in the year 2006, the society filed a Summary Lavad Case No.198 of 2006 before the Board of Nominees against the writ applicants and one another person under section 99(4) of the Gujarat Cooperative Page 4 of 25 R/SCR.A/421/2011 ORDER Societies Act for recovery of Rs.7,01,346/-. The summary suit is also pending as on date.
7. Mr. Naik, thereafter, invited my attention to one litigation, which came before this Court in the form of the Special Civil Application No.17270 of 2010. My attention is drawn to one order passed by this Court dated 25.04.2011. The order is extracted hereunder;
"1.0. Leave to amend is granted.
2.0. By way of this petition under Articles 226 & 227 of the Constitution of India, the petitioner-original defendant no.1 has prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 27.11.2010 passed by the learned Board of Nominees passed below Exh.102 in Lavad Case No.198 of 2006 by further directing the learned Board of Nominees to dispose of the Summary Lavad Case No.198 of 2006 directing the petitioner to make payment of suit amount along with appropriate interest at the rate of 9% within 30 days from the date of the order and restitute the parties by directing handing over of possession of the disputed Bungalow in question i.e. C/11, Vaishnav Township, Bakrol, Anand. It is also further prayed for an appropriate writ, order and direction to quash and set aside the order dated 24.12.2008 below Exh.44 in Summary Lavad Suit No.198 of 2006 passed by the learned Board of Nominees .
3.0. The facts leading to the present petition in nutshell are as under:
3.1. Respondent no.1 herein-original plaintiff Shri Jalaram Mercantile Cooperative Credit Society, Anand has instituted Lavad Suit No.198 of 2006 against the petitioner for recovery of Rs. 7,01,346/- with 19% interest and at the rate of 17% from 31.9.2005 as per the agreement plus penal interest. In the said suit, it has been submitted that the disputed Bungalow in question was put as a security by way of mortgage by taking Page 5 of 25 R/SCR.A/421/2011 ORDER finance by the very original plaintiff, respondent no.1 has also filed one another suit against the wife of the petitioner being Lavad Suit No.27 of 2007 for recovery of Rs.6,63,209/- with the aforesaid interest. It appears that, during the pendency of the proceedings and / or prior thereto the aforesaid Bungalow in question is sold in favour of respondent no.4. It is also required to be noted that as such sale in favour of the respondent no.4 is the subject matter of the Civil Suit before the Civil Court being Civil Suit No.33 of 2006 instituted by the very petitioner. That the petitioner submitted the application at Exh.102 in Lavad Suit No.198 of 2006 to pass a decree in favour of original plaintiff and against the defendant no.1 (petitioner herein) on admission and prayed to pass a decree of Rs.7,01,346/- with 9% simple interest so far as Lavad Suit No.198 of 2006 is concerned and to pass a decree so far as Lavad Suit No.27 of 2007 for Rs.6,63,209/- with simple interest at the rate of 9% and also prayed to hand over the peaceful and vacant possession of the aforesaid Bungalow in question along with other furniture and fixtures etc. including of 20 to 25 tolas of gold ornaments alleged to be in the cupboard which according to the petitioner was in the aforesaid Bungalow in question. The petitioner also prayed for an appropriate order to set aside the sale in favour of respondent no.4 (which is subject matter of Civil Suit).
That as the said application dated 17.9.2010 was not decided and disposed of by the learned Board of Nominees, petitioner preferred Special Civil Application No. 13015 of 2010 before this Court for the following reliefs.
(A) Your Lordships may be pleased to issue writ of certiorari and / or writ in the nature of certiorari to dispose of summary Lavad Case No. 198 of 2006 by way of directing the petitioner to make payment of the said suit amount along with appropriate interest at the rate of 9% within 30 days from the date of order and be further pleased to restitute the parties by way of directing handing over of possession of Vaishnav Township, Bakrol, Anand.
(B) Your Lordships may be pleased to issue appropriate writ, order or direction to quash and set aside order dated 24.12.2008 below Ex.44 in Summary Lavad Suit No. 198 of 2006 passed by Ld. Board of Nominees, Anand.
Page 6 of 25R/SCR.A/421/2011 ORDER (C) In the alternative, Your Lordships may be pleased to issue appropriate writ of certiorari and / or appropriate writ, order or direction to transfer the said Summary Lavad Suit No. 198 of 2006 pending before Ld. Board of Nominees, Anand to Ld. Board of Nominees at Nadiad and be further pleased to direct to decide application dated 17.09.2010 preferred by the petitioners within 30 days from the date of order;
3.2. That the learned Single Judge disposed of the aforesaid Special Civil Application by order dated 4.10.2010 by observing that the so far as prayers in terms of para A & B are concerned, the appropriate remedy is to approach the concerned Tribunal. The learned Single Judge also further passed an order so far as prayer in terms of prayer C is concerned, by which it was prayed to transfer the Summary Lavad Suit No. 198 of 2006 pending before the learned Board of Nominees, Anand to learned Board of Nominees, Nadiad and thereafter to decide the application dated 17.9.2010 below Exh.102 within 30 days from the date of the order, directing the learned Board of Nominees, Anand to dispose of the application at Exh.102 within a period of 30 days from the date of the receipt of writ of the order. That thereafter, pursuant to the order passed by this Court learned Board of Nominees has passed the impugned order rejecting the said application at Exh.102. Hence, the petitioner has preferred Special Civil Application under Articles 226 & 227 of the Constitution of India.
4.0. Shri Mehta, learned advocate for the petitioner has vehemently submitted that learned Board of Nominees has materially erred in dismissing the application Exh.102 and not passing the decree on admission by the petitioner-defendant and not disposing of the suit. It is submitted that as such when in the suit pending before the learned Board of Nominees the original plaintiffs had prayed to pass decree for recovery of Rs.7,01,346/, which petitioner is now admitting and when the petitioner submitted the application Exh.102 to pass a decree on admission for the aforesaid amount the learned Board of Nominees ought to have allowed the said application and ought to have disposed of the said suit accordingly. It is submitted that on payment of decreetal amount the Page 7 of 25 R/SCR.A/421/2011 ORDER bungalow in question which was attached was required to be released. It is submitted that the respondents herein have in connivance with each other have sold the bungalow in question which is required to be returned to the petitioner.
4.1. It is further submitted that despite the fact that on an application vide Exh.4 for attachment before the judgment dated 27.2.2006 and affirmed on 1.3.2006, vide order dated 29.5.2006 the learned Board of Nominees has been pleased to grant interim injunction restraining petitioner not to sell and / or cause to sale and/ or transfer and/ or alienate the said residential premises of the petitioner, and the same being in force, in collusion, the Advocate of respondent no.1 society i.e. respondent no.2 have committed fraud in collusion with respondent no.3 his wife to purchase the said property through respondent no.4 who is also wife of power of attorney holder Mr. Nikul Patel, of the petitioner. All the said persons in collusion have without authority abused the process on the face of it to seriously harm property and reputation of the petitioner.
4.2. It is further submitted by Shri Mehta, learned advocate for the petitioner though there is no mortgage deed executed by the petitioner in favour of respondent no.1 with regard to the residential property in respect of the loan advanced on 24.11.2003, and it was never contended in the plaint and as such plaint was only respect of recovery of the loan advance simplicitor, the residential property of the petitioner has been snatched away and therefore, the present petition under Article 227 of the Constitution of India is maintainable.
4.3. It is further submitted by Shri Mehta, learned advocate for the petitioner that though the Lavad proceeding before the Board of Nominees were adjourned to 10.12.2008 and more particularly leave to defend application preferred by one of the guarantor was granted by the Board of Nominees and leave to defend application dated 12.7.2006 preferred by the petitioner is pending adjudication, in utmost disregard to the rights guaranteed under Part III of the Constitution, the respondent no.1 in a collusive manner preferred application dated 11.12.2008 to postpone Lavad Suit on 11.12.2008 itself despite the fact that the said Page 8 of 25 R/SCR.A/421/2011 ORDER proceeding/ suit was adjourned to 19.12.2008 and further preferred application vide Exh. 444 on 11.12.2008 itself contending to modify the order of injunction dated 29.5.2006 passed by the learned Board of Nominees and permit the respondent to sale off the residential property of the petitioner, which was not even mortgaged. Without issuing notice to the petitioner, on the said date itself, without affording any opportunity of hearing to the petitioner and/ or guarantor, the matter was heard and the order was pronounced on 24.12.2008 below Exh. 44 granting permission to sell out the said property as desired by the respondents in furtherance to their conspiracy.
4.4. It is further submitted by Shri Mehta, learned advocate for the petitioner that despite the aforesaid facts and circumstances, though the order dated 24.12.2008 was stayed vide oder dated 29.12.2008 and the guarantor was prepared to make payment towards the outstanding amount to satisfy the suit claim of the respondents, the respondents in a highhanded manner proceeded to execute the sale deed on 5.1.2009 and appropriated the amount on 30.12.2008 though the said order dated 24.12.2008 is stayed vide order dated 29.12.2008 and which is within the knowledge of the respondents.
4.5. Now, so far as contention on behalf of the respondents with respect to alternative remedy available to the petitioner and therefore, to dismiss the the present petition on the aforesaid ground is concerned, Shri Mehta, learned advocate for the petitioner has heavily relied upon the decision of the Hob'ble Supreme Court in the case of Mariamma Roy Vs. Indian Bank & others reported in (2009) 16 SCC 187, the decision in the case of M.P. State Agro Ind. Development Corporation Ltd. Vs. Jahan Khan reported in (2007) 10 SCC 88 as well as in the case of Satwati Deswal Vs. State of Haryana reported in (2010) 1 SCC 126. It is submitted that as the fraud has been committed by the respondents in selling the residential property in question, it is requested to entertain the present petition and consider the same on merits.
4.6. Now, so far as the averments in the affidavit in reply filed on behalf of the respondent, more particularly, with Page 9 of 25 R/SCR.A/421/2011 ORDER respect to pendency of criminal proceedings against the petitioner initiated by Vijaya Bank, Canara Bank, Indian Bank, Syndicate Bank and Canfin Housing Finance is concerned, it is submitted that all criminal prosecutions initiated at the relevant time against the petitioner are pending, negotiations for settlement are going on and as such they are in respect of recovery of money and in all probabilities, the same are likely to be settled. Therefore, it is submitted that on the aforesaid ground, present petition is not required to be dismissed. By making above submissions and relying upon the above decisions, it is requested to allow the present petition.
5.0. Present petition is opposed by Shri B.D. Karia, learned advocate for respondent no.1, Shri Kotecha, learned advocate for the respondents no. 2 and 3 and Shri Dave, learned advocate for respondent no.4.
5.1. Affidavit in reply is filed on behalf of the respondent no.1. It is submitted that so far as such the prayer sought in the application below 102 is concerned,it is submitted that the same is absolutely mala fide. It is submitted that as such against the order passed by the learned Board of Nominees below Exh.102, the petitioner has an alternative remedy available to challenge the same before the Gujarat State Cooperative Tribunal.
5.2. It is further submitted that so far as the prayer in terms of para 36 (b) to quash and set aside the order dated 24.12.2008 passed below Exh.44 in Summary Lavad Suit No. 198 of 2006 passed by Ld. Board of Nominees, Anand is concerned, it is submitted that the very prayer was earlier sought by the very petitioner in earlier petition being Special Civil Application No.13025 of 2010 and the learned Single Judge had not granted the said relief and did not entertain the said petition qua the aforesaid relief on the ground that against the said order the petitioner had an alternative remedy to approach the Tribunal and still without availing any other statutory remedy available to approach the Tribunal, again the petitioner sought the very prayer, which cannot be granted.
5.3. It is further submitted that as such the bungalow in question is already sold in favour of respondent no.4 for which the petitioner has already instituted Civil Suit Page 10 of 25 R/SCR.A/421/2011 ORDER before the Civil Court by way of Special Civil Suit No. 33 of 2006. It is further submitted that despite the above without disclosing the above and without joining third party, who are claiming right, title and interest in the property in question on the basis of registered sale deed, the petitioner has submitted the application Exh.102 not only for passing a decree on admission but has also prayed to handover the possession of the said Bungalow to the petitioner, for which the suit is pending. Therefore, it is submitted that as such the conduct of the petitioner is male fidey with a view to get relief which is the subject matter of civil suit.
5.4. It is further submitted that though in the suit respondent no.1-original plaintiff has prayed for decree for amount of Rs. 7,01,346/- with 17% interest still the petitioner has prayed for the decree on admission for the aforesaid amount with 9% interest only, which is rightly rejected by the learned Board of Nominees. Number of other submissions have been made on merits.
5.5. It is further submitted that even the present Special Civil Application is required to be dismissed on the ground of non-joinder of proper party such as LIC Housing Financial, Shri Sandeep Rao etc. 5.6. Affidavit in reply is also filed on behalf of the respondent nos. 2 and 3. It is submitted that present petition suffers from the vice of non-joinder and mis- joinder of the party inasmuch as the petitioner has not joined the original defendants no. 2 and 3 as party respondent and has joined the present respondent, her husband as respondent no.2 as well as one Alkaben Nikulbhai Shah as respondent no.4 who are not the parties before the learned Board of Nominees, Anand. Therefore, it is submitted that even present petition deserves to be dismissed on the aforesaid ground. It is further submitted that even the present petition deserves to be dismissed on the ground of suppression of material facts, 5.7. Petition is also opposed by respondent no.4. Affidavit-in reply is also filed on behalf of the respondent no.4.
6.0. Heard the learned advocates for the respective Page 11 of 25 R/SCR.A/421/2011 ORDER parties at length. At the outset, it is required to be noted that in the present Special Civil Application the petitioner has prayed for following reliefs:
(A) Your Lordships may be pleased to issue writ of certiorari and / or writ in the nature of certiorari to quash and set aside the order dated 27.11.2010 passed below Exh. 102 in Lavad Case No. 198 of 2006 and be further pleased to direct to dispose of summary Lavad Case No.198 of 2006 by way of directing the petitioner to make payment of the said suit amount along with appropriate interest at the rate of 9% within 30 days from the date of order and be further pleased to restitute the parties by way of directing handing over of possession of Vaishnav Township, Bakrol, Anand. (B) Your Lordships may be pleased to issue appropriate writ, order or direction to quash and set aside order dated 24.12.2008 below Ex.44 in Summary Lavad Suit No. 198 of 2006 passed by Ld. Board of Nominees, Anand.
7.0. Now, so far as prayer in terms of para 36(B)to quash and set aside the order dated 24.12.2008 passed below Exh.44 in Summary Lavad Suit No.198 of 2006 passed by the learned Board of Nominees is concerned, at the outset, it is to be noted that the very prayer was earlier sought by the very petitioner in earlier petition being Special Civil Application No.13025 of 2010 and the learned Single Judge did not grant the said relief and did not entertain the said petition qua the aforesaid relief, by observing that appropriate remedy is to approach the Tribunal concerned. Despite the above and without even approaching the learned Tribunal, again the petitioner has sought the very prayer, which cannot be granted in light of the earlier order passed by the learned Single. Therefore, the present petition with respect to prayer in terms of para 36 B challenging the order passed by the learned Board of Nominees dated 24.12.2008 passed below Exh.44 in Summary Lavad Suit No.198 of 2006 deserves to be dismissed on the aforesaid ground alone.
8.0. Now, so far as the prayer in terms of para 36 (A) is concerned, it appears that petitioner has challenged the impugned order passed by the learned Board of Nominees passed below Exh.102 by which the learned Board of Nominees has rejected the said application Page 12 of 25 R/SCR.A/421/2011 ORDER which was submitted by the petitioner to pass decree on admission and to pass decree for an amount of Rs.7,01,346/- with 9% interest and by which it was also prayed to pass decree for an amount of Rs.6,63,209/- with 9% interest simple interest in Lavad Suit No. 27 of 2007. It appears that by submitting application Exh.102, the petitioner had also prayed for an appropriate order directing to return the possession of the residential Bungalow in question with furniture and fixtures etc. including of 20 to 25 tolas of gold ornaments which were alleged to be in the cupboard. As such, against the impugned order passed by the learned Board of Nominees rejecting the application Exh.102, the petitioner has a statutory alternative remedy available by way of preferring appeal/ revision before the Gujarat State Cooperative Tribunal. Still this Court has considered the petition on merits.
9.0. Having heard the learned advocates for the respective parties and considering the impugned order passed by the learned Board of Nominees as well as application below Exh.102, it appears that as such three different reliefs were sought by the petition by submitting the application 102. First relief was with respect to passing decree for an amount of Rs. 7,01,346/- with 9% simple interest in favour of respondent no.1 herein -original plaintiff in Lavad Suit No. 198 of 2006. Second prayer is to pass the decree on admission in Lavad Suit No.27 of 2007 which has been filed against his wife and third prayer is to return the Bungalow in auction.
10. So far as the aforesaid relief is concerned, it is to be noted that in the Lavad Suit the original plaintiff has sought interest at the rate of 17% interest (contractual interest) and therefore, the aforesaid relief to pass a decree in favour of plaintiff for an amount of Rs.7,01,346/- with 9% simple interest, cannot be granted and the same is rightly rejected by the learned Board of Nominees.
11. Now, so far as second prayer made by the petitioner by submitting the application Exh.102 is concerned, it appears that the petitioner has prayed for a decree in favour of original plaintiff of Rs.6,63,209/- with 9% simple interest in Lavad Suit No.27 of 2007. It is to be noted that Page 13 of 25 R/SCR.A/421/2011 ORDER as such an application Exh.102 was given by the petitioner in Lavad Suit No. 198 of 2006, therefore, it is not appreciable how such a prayer to pass a decree in Lavad Suit No.27 of 2007 can be prayed for in another suit being Lavad Suit No.198 of 2006. Under the circumstances, no such relief can be granted as prayed to pass a decree in Lavad Suit No.27 of 2007. Such a prayer is absolutely misconceived and/ or with some oblique motive such a prayer is made.
12. Now, so far as the prayer in the application at Exh.102 with respect to residential Bungalow is concerned, at the outset, it is required to be noted that the said Bungalow is already sold in favour of respondent no.4. It is also required to be noted that sale in favour of respondent no.4 is already challenged by the petitioner by way of substantive suit being Special Civil Suit No.33 of 2006 before the Civil Court and despite the fact that the petitioner is aware of the said suit and even transfer/sale in favour of the respondent no.4, without disclosing the above and even without joining third party who are claiming right, title and interest in the property in question on the basis of registered sale deed, the petitioner has submitted the application Exh.102 not only for passing decree in favour of plaintiff but has also prayed to hand over the Bungalow in question, for which the suit is pending. Therefore, it appears that petitioner has not come with clear hands and has suppressed the material facts and has tried to mislead the Hon'ble Court.
13. It is also required to be noted at this stage that even application submitted by third party to be joined as party respondent in the Lavad Suit is still pending, which is being objected by the very petitioner. Thus, it appears that the petitioner wants to obtain relief with respect to aforesaid bungalow in absence of the private respondents i.e. third parties who have purchased the bungalow by registered sale deed, which is the subject matter of Civil Suit No.33 of 2006 and behind their back.
14. Considering the averment in the petition as well as written submission as well as affidavit in reply filed on behalf of the respective respondents, it appears that there are number of litigations pending between the parties and other persons /bank etc. and there are number of other issues which are required to be Page 14 of 25 R/SCR.A/421/2011 ORDER considered at the time of deciding the suit. The prayer of the petitioner to pass a decree on admission seems to be innocuous but is tainted with mala fide and the said relief is having far reaching effect and is likely to affect the pending proceedings between the parties inclusive of Special Civil Suit No.33 of 2006. Therefore, the learned Board of Nominees has rightly rejected the application Exh.102 submitted by the petitioner, which is not required to be interfered with by this Court in exercise of powers under Articles 226 & 227 of the Constitution of India.
15. In view of the above and for the reasons stated above, petition fail and deserves to be dismissed and is accordingly dismissed. Notice discharged. Ad-interim relief granted earlier, if any, stands vacated forthwith. The amount of Rs. 10 lacs which is deposited by the petitioner pursuant to the order passed by this Court is concerned, it will be open for the petitioner to withdraw the same, which shall be paid to the petitioner by Account Payee Cheque at the earliest. "
8. Thus, the picture that emerges from the materials on record is that, at a point of time, the cash credit facility was availed by the writ applicants from the society, and by way of security, the bungalow was mortgaged with the society. It appears that later in very suspicious circumstances, the bungalow came to be transferred, first in favour of the wife of the power of attorney and, thereafter, in favour of one Bhavnaben, who happens to be the wife of the lawyer of the bank.
9. Mr. Mehta, the learned counsel appearing for the Bank submitted that the plain reading of the first information report discloses commission of a cognizable offence and the police should be permitted to complete the investigation in accordance with law. Mr. Mehta clarified that the first information report had to be lodged because the writ Page 15 of 25 R/SCR.A/421/2011 ORDER applicants failed to repay the amount availed of by them by way of cash credit facility. Mr. Mehta very fairly submitted that Bhavnaben did deposit Rs.12,50,000/- in the bank towards the amount otherwise due and payable by the writ applicants.
10. Mr. Patel, the learned APP appearing for the State submitted that he would not be in a position to assist the Court because right from the inception, this Court stayed the investigation. However, according to him, the plain reading of the first information report do disclose commission of a cognizable offence and the police should be permitted to carry out the investigation.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the first information report should be quashed.
12. I have taken into consideration the following relevant aspects of the matter;
(I) The Summary Lavad Suit No.198 of 2006 was filed by the society on 7th March, 2006. This suit has been filed before the Board of Nominees under the provisions of the Gujarat Co-
operative Societies Act. The suit has been filed by the society for recovery of Rs.7,01,346/- with interest from 31.12.2005.
(ii) I take notice of the fact that in the Summary Lavad Suit filed by the society, there are no allegations worth the name of the type as levelled in the first information report.
Page 16 of 25R/SCR.A/421/2011 ORDER
(iii) It appears that the society granted permission to the wife of the power of attorney to sell the bungalow in favour of Bhavnaben.
(iv) The writ applicants, being aggrieved by such permission granted by the society, had to come before this Court by filing the Special Civil Application No.13025 of 2010. The said petition came to be disposed of by a learned Single Judge of this Court vide order dated 04.10.2010. The order is extracted hereunder;
"1. The petitioner has prayed for the following reliefs;
"(A) Your Lordships may be pleased to issue writ of certiorari and / or writ in the nature of certiorari to dispose of summary Lavad Case No. 198 of 2006 by way of directing the petitioner to make payment of the said suit amount along with appropriate interest at the rate of 9% within 30 days from the date of order and be further pleased to restitute the parties by way of directing handing over of possession of Vaishnav Township, Bakrol, Anand.
(B) Your Lordships may be pleased to issue appropriate writ, order or direction to quash and set aside order dated 24.12.2008 below Ex.44 in Summary Lavad Suit No. 198 of 2006 passed by Ld. Board of Nominees, Anand.
(C) In the alternative, Your Lordships may be pleased to issue appropriate writ of certiorari and / or appropriate writ, order or direction to transfer the said Summary Lavad Suit No. 198 of 2006 pending before Ld. Board of Nominees, Anand to Ld. Board of Nominees at Nadiad and be further pleased to direct to decide application dated 17.09.2010 preferred by the petitioners within 30 days from the date of order;
(D) to (F) .....Page 17 of 25
R/SCR.A/421/2011 ORDER
2. Heard learned counsel for the petitioner. So far as Prayer (A) & (B) are concerned, the appropriate remedy is to approach the Tribunal concerned. So far as Prayer- (C) is concerned, the Board of Nominees, Anand is directed to dispose of the application preferred on 17.09.2010 within a period of 30 days from the date of receipt of writ of this order. The Board of Nominees, Anand shall permit the petitioner to raise all contentions, which have been raised in the present petition.
Thereafter, the Board of Nominees, Anand shall pass a decree since the petitioner is ready to pay the entire amount with interest and will pass appropriate orders on such payment being made.
3. With the above observation and direction, the petition stands disposed of. Direct service today."
13. What is important to note is that the society initiated proceedings with regard to the recovery of the requisite amount in the year 2006. The first information report came to be lodged by the society on 18th February, 2011. There is no explanation coming forward at the end of the society as to why they had to lodge the first information report after five years from the date of initiating the civil proceedings.
14. At this stage, Mr. Mehta submitted that although Bhavnaben, i.e., the purchaser of the bungalow did pay Rs.12,50,000/- to discharge the liability which was created by the writ applicants by way of mortgage, yet, at the relevant point of time, the entire amount towards the interest could not be recovered. In such circumstances, they have continued with the Lavad Suit before the Board of Nominees.
15. Having regard to the materials on record, I am of the view that no case worth the name is made out against the writ Page 18 of 25 R/SCR.A/421/2011 ORDER applicants. I fail to understand what necessitated or prompted the bank to lodge the first information report after a period of five years from the date of initiating the civil proceedings, and that too, when there are no allegations worth the name in the suit filed by the society before the Board of Nominees. The position, as on date, is that the writ applicants have lost their bungalow. Their civil suit for cancellation of the sale deed is pending before the civil court. The Lavad Suit is pending before the Board of Nominees. Rs.12,50,000/- has been paid up by Bhavnaben to the bank for the purpose of clearing the charge over the bungalow.
16. I am of the view that now it is up to the Civil Court and the Board of Nominees to resolve the dispute between the parties. I see no good reason to involve the police in this case. Even if I accept the entire case put up by the first informant as true, in my view, none of the ingredients to constitute the offence of forgery are spelt out. There is not a single document on record, which could be termed as a false document. Without there being anything on record to even remotely indicate about the forgery, the first information report could not have been mechanically registered for the offence punishable under sections 465, 467, 468 and 471 of the IPC. If it is the case of the first informant that forgery has been committed, then he should be clear and very specific about the nature of the forgery and also the document alleged to have been forged.
17. At this stage, Mr. Naik, the learned senior counsel appearing for the writ applicants invited my attention to a decision of the Supreme Court in the case of B. Suresh Yadav vs. Sharifa Bee & Anr., 2007 (13) SCC 107, wherein the Page 19 of 25 R/SCR.A/421/2011 ORDER Supreme Court observed the following in para-13;
"13. For the purpose of establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. In a case of this nature, it is permissible in law to consider the stand taken by a party in a pending civil litigation. We do not, however, mean to lay down a law that the liability of a person cannot be both civil and criminal at the same time. But when a stand has been taken in a complaint petition which is contrary to or inconsistent with the stand taken by him in a civil suit, it assumes significance."
18. The Supreme Court, in Ajay Mitra vs. State of M.:P., 2003 (3) SCC 11 held [SCC p.19, Paras-15-16] "15. Section 420 IPC says that "420. Cheating and dishonestly inducing delivery of property-whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person ... shall be punished with imprisonment ...".
Cheating has been defined in Section 415 IPC and it says that:
"415. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to `cheat'."
16. A guilty intention is an essential ingredient of the offence of cheating. In other words "mens rea" on the part of the accused must be established before he can be convicted of an offence of cheating. (See Jaswantrai Manilal Akhaney v. State of Bombay [AIR Page 20 of 25 R/SCR.A/421/2011 ORDER 1956 SC 574). In Mahadeo Prasad v. State of W.Bi [AIR 1954 SC 724] it was held as follows: (AIR paras 4-5) "Where the charge against the accused is under Section 420 in that he induced the complainant to part with his goods, on the understanding that the accused would pay for the same on delivery but did not pay, if the accused had at the time he promised to pay cash against delivery an intention to do so, the fact that he did not pay would not convert the transaction into one of cheating. But if on the other hand he had no intention whatsoever to pay but merely said that he would do so in order to induce the complainant to part with the goods then a case of cheating would be established."
19. In Hira Lal Hari Lal Bhagwati vs. CBI, 2003 (5) SCC 257, the Supreme Court held;
"40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption."
20. In Vir Prakash Sharma vs. Anil Kumar Agarwal 2007 (7) SCC373, the Supreme Court held;
"8. The dispute between the parties herein is essentially a civil dispute. Non-payment or Page 21 of 25 R/SCR.A/421/2011 ORDER underpayment of the price of the goods by itself does not amount to commission of an offence of cheating or criminal breach of trust. No offence, having regard to the definition of criminal breach of trust contained in Section 405 of the Penal Code can be said to have been made out in the instant case."
It was furthermore opined:
"13. The ingredients of Section 420 of the Penal Code are as follows:
(i) Deception of any persons;
(ii) Fraudulently or dishonestly inducing any
person to deliver any property; or
(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.
No act of inducement on the part of the appellant has been alleged by the respondent. No allegation has been made that he had an intention to cheat the respondent from the very inception.
14. What has been alleged in the complaint petition as also the statement of the complainant and his witnesses relate to his subsequent conduct. The date when such statements were allegedly made by the appellant had not been disclosed by the witnesses of the complainant. It is really absurd to opine that any such statement would be made by the appellant before all of them at the same time and that too in his own district. They, thus, appear to be wholly unnatural.
15. In law, only because he had issued cheques which were dishonoured, the same by itself would not mean that he had cheated the complainant. Assuming that such a statement had been made, the same, in our opinion, does not exhibit that there had been any intention on the part of the appellant herein to commit an offence under Section 417 of the Penal Code.
16. Furthermore, admittedly, their residences are in different districts. Whereas the appellant is a resident Page 22 of 25 R/SCR.A/421/2011 ORDER of the district of Ajamgarh, the respondent is a resident of the district of Rampur. Cheques were admittedly issued by the appellant at his place. There is nothing on record to show that any part of the cause of action arose within the jurisdiction of the court concerned. Even if such statements had been made, the same admittedly have been made only at the place where the appellant resides. The learned Magistrate, therefore, had no jurisdiction to issue the summons."
21. In All Cargo Movers (India) (p) Ltd. vs. Dhanesh Badarmal Jain, 2007 (14) SCC 776; the Supreme Court held;
'"For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice."
22. This decision, relied upon by Mr. Naik substantiates his submission that if nothing has been alleged in the suit filed by the society before the Board of Nominees, i.e. what has been Page 23 of 25 R/SCR.A/421/2011 ORDER alleged in the first information report, then lodging of the first information report after a period of five years thereafter is nothing but abuse of the police machinery and an afterthought only with a view to exert some pressure. Mr. Naik pointed out the averments made in the plaint of the Lawad Suit filed by the society. In the plaint, it has been specifically averred by the society that at the relevant point of time, all the necessary documents in the form of promissory note, agreements, affidavits, guarantee deeds etc. were executed by the writ applicants for the purpose of availing of the cash credit facility. There is not a word or whisper in the plaint as regards any cheating or forgery. There is not a word as regards the false title clearance certificate. Prima facie, it appears that the society thought fit to lodge the first information report because the writ applicants lodged a complaint on 08.02.2011 against the society and others. Such complaint was filed in the court of the learned Chief Judicial Magistrate, Anand. The proceedings are still pending, as on date, before the court concerned.
23. In the result, this application succeeds and is hereby allowed. The first information report being C.R. No.I-60 of 2011 registered with the Anand Town Police Station, Anand is hereby quashed. Having regard to the nature of the dispute between the parties and considering the fact that the proceedings are pending past couple of years, I deem it appropriate to direct the Board of Nominees to dispose of the Lawad Suit No.198 of 2006 within a period of six months from the date of the receipt of the writ of this order. I also direct the court of the learned Senior Civil Judge, Anand to take up the Special Civil Suit No.33 of 2006 for hearing and see to it that the same is disposed of at the earliest in accordance with law. The Registry is directed Page 24 of 25 R/SCR.A/421/2011 ORDER to forward a copy of this order to the Board of Nominees as well as to the concerned civil court.
Direct service is permitted.
(J.B.PARDIWALA, J) Vahid Page 25 of 25