Rajasthan High Court - Jodhpur
Narendra Kumar Rawal vs Kesharam on 19 November, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Application No. 119/2018
In
S.B. Criminal Misc. Petition No.2259/2016
Narendra Kumar Rawal S/o Sh. Narayanlal, Aged About 47 Years,
B/c Rawal , Sain Gali , Sadar , Bazar Sirohi
----Petitioner
Versus
1. Kesharam S/o Sh. Nemaji Mali, Sirodi , Tehsil Revdar,
Distt. Sirohi
2. Udaram S/o Sh. Manchhani, B/c Luhar , Gulabganj , Tehsil
Revdar, Distt. Sirohi
3. Chelaram S/o Sh. Jeevanram, B/c Choudhary , Pamera ,
Tehsil Revdar, Distt. Sirohi
4. Islam Mohammed S/o Sh. Gafoor Khamani, B/c Musalman
, Siradi, Tehsil Revdar, Distt. Sirohi
5. Ramesh Kumar S/o Sh. Bhotaji, B/c Luhar, Sirohi , Tehsil
Revdar, Distt. Sirohi
6. Lalit Kumar S/o Sh. Fataji, B/c Ghanchi , Sirohi , Tehsil
Revdar, Distt. Sirohi
7. Iqbal Ali S/o Sh. Amanat Ali, B/c Musalman , Sirodi ,
Tehsil Revdar, Distt. Sirohi
8. Bheraram S/o Sh. Rawataji, B/c Gadaliyal Luhar, Sirodi ,
Tehsil Revdar, Distt. Sirohi
9. Babulal S/o Jaisaji, B/c Ghanchi , Sirodi , Tehsil Revdar,
Distt. Sirohi
10. Rafiq Khan S/o Sattar Khan, B/c Musalman , Sirodi ,
Tehsil Revdar, Distt. Sirohi
11. Vinod Kumar S/o Sh. Narayanlal Ji, B/c Vaishnav , Asawa,
Tehsil Revdar, Distt. Sirohi
12. Laxman S/o Sh. Vanaramji, B/c Gadaliya Luhar , Sirodi ,
Tehsil Revdar, Distt. Sirohi
13. Dhanna Ram S/o Sh. Kanaram Ji, B/c Mali , Ishborji Ka
Posintara, Tehsil And Distt. Sirohi
14. Tulmohan Nagar Sister/o Sh. Khub Chandji Nagar, B/c
Nagar, Sirodi , Tehsil Revdar, Distt. Sirohi
(2 of 7)
----Respondents
Connected With
S.B. Criminal Misc. Application No. 120/2018
In
S.B. Criminal Misc. Petition No.2259/2016
Narendra Kumar Rawal S/o Shri Narayanlal, Aged About 47
Years, B/c Rawal, R/o Sain Gali, Sadar Bazar Sirohi.
----Petitioner
Versus
1. State, Through Pp
2. Kesharam S/o Shri Nemaji Mali, R/o Sirodi, Teh. Revdar,
Dist. Sirohi.
3. Udaram S/o Shri Manchhani, B/c Luhar, R/o Gulabganj,
Teh. Revdar, Dist. Sirohi.
4. Chelaram S/o Shri Jeevanram, B/c Choudhary, R/o
Pamera, Tehsil Revdar, Dist. Sirohi.
5. Islam Mohammed S/o Shri Gafoor Khamani, B/c
Musalman, R/o Siradi, Teh. Revdar, Dist. Sirohi.
6. Ramesh Kumar S/o Shri Bhotaji, B/c Luhar, R/o Sirohi,
Teh. Revdar, Dist. Sirohi.
7. Lalit Kumar S/o Shri Fataji, B/c Ghanchi, R/o Sirohi, Teh.
Revdar, Dist. Sirohi.
8. Iqbal Ali S/o Shri Amanat Ali, B/c Musalman, R/o Sirodi,
Tehsil Revdar, Dist. Sirohi.
9. Bheraram S/o Shri Rawataji, B/c Gadaliyal Luhar, R/o
Sirodi, Tehsil Revdar, Dist. Sirohi.
10. Babulal S/o Jaisaji, B/c Ghanchi, R/o Sirodi, Tehsil Revdar,
Dist. Sirohi.
11. Rafiq Khan S/o Sattar Khan, B/c Musalman, R/o Sirodi,
Tehsil Revdar, Dist. Sirohi.
12. Vinod Kumar S/o Shri Narayanlal Ji, B/c Vaishnav, R/o
Asawa, Tehsil Revdar, Dist. Sirohi.
13. Laxman S/o Shri Vanaramji, B/c Gadaliya Luhar, R/o
Sirodi, Tehsil Revdar, District Sirohi.
14. Dhanna Ram S/o Shri Kanaram Ji, B/c Mali, R/o Ishborji
Ka Posintara, Tehsil And Dist. Sirohi.
15. Tulmohan Nagar S/o Shri Khub Chandji Nagar, B/c Nagar,
(3 of 7)
R/o Sirodi, Tehsil Revdar, Dist. Sirohi.
16. Muddasar Sekh S/o Shri Muquaddar Mohammed, B/c
Musalman, R/o Sirodi, Tehsil Revdar, Dist. Sirohi.
17. Moti Singh S/o Shri Achal Singh Ji, B/c Rajpurohit, R/o
Shergarh Kanodiya Purohitan, Tehsil Shergarh, District
Jodhpur.
----Respondents
For Petitioner(s) : Mr. Rajesh Shah and Mr. Pritam
Solanki
For Respondent(s) : Mr. VS Rajpurohit, PP
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 19/11/2018
1. This Court had passed the following order on 13.09.2017 :-
"1. The petitioner has preferred this criminal misc. petition under Section 482 Cr.P.C. for quashing of FIR No.20/2016 dated 09.02.2016 registered at Police Station Anandara (District Sirohi) for the offences under Sections 420, 406, 120-B of IPC.
2. Learned counsel for the petitioner states that same controversy has been settled by a coordinate Bench of this Court in S.B. Criminal Misc. Petition No.2708/2016 Purshottamdas Vaishnav Vs. State of Rajasthan & Anr. vide order dated 13.04.2017. The judgment read as under:
"By the instant misc. petition under Section 482 Cr.P.C. accused-petitioner is imploring annulment of FIR No.59/2016, registered at Police Station Kotwali, Distirct Sirohi. In the impugned FIR, respondent-complainant has alleged that petitioner has committed offences punishable under Section 420, 406 & 120- B IPC.
The facts, apposite for the purpose of this petition, are that a complaint, laid by second respondent before the Chief Judicial Magistrate, Sirohi (for short, 'learned trial Court') attributing offences aforesaid against petitioner, is (4 of 7) forwarded to Police Station Kotwali, District Sirohi under Section 156(3) Cr.P.C. for investigation. In the complaint, it is alleged by the complainant that petitioner, Purshottam Das, the Chairman of Argosy Credit Co-operative Society, Sirohi (for short, 'Society') in connivance with other elected members and officials of Society, has cheated him. As per version of the complainant, he opened a fixed deposit on 07.02.2014 in which he deposited Rs.30,000/- for a fixed term of twenty four months which was matured on 07.02.2016 with maturity amount of Rs.41,419/- but on maturity of his account, the amount aforesaid is not paid to him despite his repeated requests and persuasions. It is in that background, the complainant alleged that the petitioner in connivance with other officials of the Society has misappropriated the amount of public constituting aforesaid offences against him and other accused.
In order to lay challenge to the FIR, petitioner has taken shelter of order dated 14.05.2015, passed by this Court in D.B. Civil Writ Petition(PIL) No.26/2013 (Sajjan Singh Bhati Vs. State of Rajasthan & Ors.), wherein Court passed following order:-
"The writ petition is partly allowed with a direction that respondents 9 to 12 or any other co-operative society or the multi-state co- operative societies registered under the Rajasthan State Cooperative Societies Act, 2001 and Multi-State Cooperative Act, 2002, shall not accept the deposit of any kind and under any scheme from the public including, nominal members ordinary members of the members of any category of these societies, except after obtaining licence under Section 22 of the Banking Regulation Act, 1949."
The positive assertion of the petitioner is that due to the order passed in aforesaid PIL, all the banking activities of the Cooperative Societies within the State of Rajasthan completely closed and made inoperative and that being so the amount deposited by the complainant and other incumbents could not be paid to them by the Society. The petitioner has also made sincere endeavor to apprise the Court that there is no ill-intention on his part to misappropriate the amount of the complainant and the Society is ready and willing to pay requisite amount to the complainant in part as per availability of cash and in ratio of entitlement of its member/customer.
The petition came up before the Court on 03.10.2016 when notices were issued and learned Public Prosecutor accepted notices for the State. Pursuant to the notices issued to respondent-complainant nobody has appeared on his behalf.
(5 of 7) I have heard learned for the petitioner, learned Public Prosecutor and perused the materials available on record.
At the outset, it is observed that being in helm of affairs of the Society as its Chairman the petitioner was under an obligation to pay requisite amount to the complainant upon maturity of his Fixed Deposit Account. Thus, dilly-dallying and reluctance on the part of petitioner to pay requisite amount of the complainant has rightly prompted him to initiate action against him. While, it is true that decision rendered by the Division Bench in PIL aforesaid has forced the Society to stop its banking activities but then a legitimate amount, which the Society owes to its member/account holder, cannot be denied to him on that pretext. However, in the backdrop of hampering of banking activities as a consequence of judicial intervention, it is rather difficult to fathom that gravamen of the charge attributed to him is prima facie made out. Moreover, factum of acknowledgment by the petitioner to pay requisite amount to the complainant has also persuaded this Court to believe that prima facie criminal delinquency of the petitioner for the aforesaid offences is under serious cloud. Although, factual report submitted by learned Public Prosecutor indicates that charge-sheet against one of accused, named in the FIR, Nagendra Rawal, has been filed for the aforesaid offences but then, this sort of development itself cannot be a decisive factor to decline interference in the matter at this stage. It is also brought to notice of the Court by learned counsel for the petitioner that entire amount, deposited by the complainant under Fixed Deposit Account of the Society, has been paid to the complainant, cannot be eschewed by the Court for appreciating his afflictions. Concurrence of the learned Public Prosecutor with the aforesaid submission of learned counsel for the petitioner is also significant in the light of allegations made in FIR. That apart, nonappearance of the complainant, despite service of notice, also strengthens belief of the Court that after receiving his requisite due amount he too is not interested to pursue the matter against the petitioner. Therefore, taking into account peculiar facts and circumstances of the instant case, I feel persuaded to exercise inherent jurisdiction ex debito justitiae to do real and substantial justice for the administration of which alone Courts exist. In my considered opinion, it would be an abuse of the process of the Court to allow any action which would result in injustice and prevent promotion of justice.
The upshot of the above discussion is that instant criminal misc. petition is allowed and the impugned FIR and further proceedings pursuant thereto are hereby quashed and set aside."
(6 of 7)
3. Learned counsel for the petitioner states that the amount due to the complainants shall be paid in phased manner and the closure of the FIRs shall be sought after clearing off such payments. Learned counsel for the petitioner states that in this regard, they shall submit necessary details before the concerned investigating officer alongwith their representation and after the payments are made, the investigating officer may complete the investigation strictly in accordance with judgment passed by a coordinate Bench of this Court, which is already reproduced above.
4. In view of the above, it is directed that till conclusion of the investigation, the petitioner shall not be arrested and in case need arises, either of the parties shall be at liberty to approach this Court again. Further, it is expected that the entire due payment shall be settled in an expeditious manner, preferably within a period of six months from today. It is needless to say that for closure of the FIR, the pre-requisite would be that the entire outstanding payment shall be settled between the parties, as indicated above.
5. With the aforesaid observation and direction, the present misc. petition is disposed of."
2. Criminal Misc. Application No.119/2018 has been moved with the prayer that the interim protection for the purpose of making payment, as granted to the petitioner by this Court vide the aforesaid order dated 13.09.2017 passed in S.B. Criminal Misc.
Petition No.2259/2016 may be extended, as such protection was until completion of the investigation and the investigation was to be completed within a period of six months.
(7 of 7)
3. Learned counsel for the petitioner has clearly submitted that the necessary payment shall be made.
4. Criminal Misc. Application No.120/2018 has been moved seeking recalling of the order dated 13.09.2017 passed by this Court in S.B.Criminal Misc. Petition No.2259/2016.
5. The order for making the necessary payment was passed by this Court on 13.09.2017. However, even after passage of more than one year, the amount has not been paid by the petitioner to the poor labourers and vegetable vendors and other persons belonging to the poor strata of the society.
6. After hearing counsel for the petitioner and perusing the record of the case, this Court is of the opinion that no more extension of time can be granted in the present case.
7. However, in the interest of justice, both the misc.
applications are disposed of with the direction to the parties to comply with the aforesaid order dated 13.09.2017 within a period of one month from today i.e. upto 20.12.2018.
8. It is clarified that the protection from arrest as given to the petitioner by this Court vide the aforementioned order dated 13.09.2017 shall come to an end on 20.12.2018.
(DR. PUSHPENDRA SINGH BHATI),J sudheer Powered by TCPDF (www.tcpdf.org)