Gujarat High Court
The Memon Co.Op.Bank Ltd vs State Of Gujarat & on 26 March, 2013
Author: S.G.Shah
Bench: S.G.Shah
THE MEMON CO.OP.BANK LTD....Applicant(s)V/SSTATE OF GUJARAT R/SCR.A/1370/2008 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CRIMINAL APPLICATION NO. 1370 of 2008 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE S.G.SHAH ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ THE MEMON CO.OP.BANK LTD....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ================================================================ Appearance: MR HN JOSHI for M/S THAKKAR ASSOC., ADVOCATE for the Applicant MR PARTHIV A BHATT, ADVOCATE for the Respondent(s) No. 2 MR KL PANDYA, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE S.G.SHAH Date : 26/03/2013 ORAL JUDGMENT
Heard Ld. Advocate Mr. HN Joshi for M/s. Thakkar Associates for the petitioner at length. Relevant citation and provisions of law have already been quoted in the petition itself. However, considering the fact that this petition is filed by the complainant and further proceedings of the trial has been stayed since 23/7/2008, it would be appropriate to put an end to such matter wherein the trial against accused has not started as yet and in complaint, which is filed on 22/6/2006, it is stated that the offences had been committed between 1/4/1999 and 5/6/2004.
2 The complaint shows that respondent no. 2 being Manager of the petitioner bank, has committed several irregularities in managing the affairs of the bank and, therefore, bank has filed the complaint under section 408 read with sections 465, 467 and 471 of the Indian Penal Code [IPC] alleging that respondent no. 2 has misappropriate total amount of Rs.1,03,35,227/-.
3 Ld. Advocate has also pointed out that probably the bank has gone into liquidation and, therefore, he seeks some time to get instructions from the client. However, the fact remains that the petitioner is the original complainant, who is duty bound to step into the witness box to prove the misdeed of respondent no. 2 original accused, against whom he has alleged that respondent no. 2 has misappropriate the amount as aforesaid.
4 It is the case of the petitioner that since the offence of misappropriation has been committed on different dates and different time right from 1/4/1999 to 5/6/2004 and since at all relevant time, respondent no. 2 has misappropriated different amount from different accounts by different modus operandi, he should be tried separately for each separate crime. However, the fact remains that for all such different offences, FIR being CR No. I-57/2006 was filed by the petitioner-complainant on one go, only on 22/2/2006. It is also not disputed that after investigation of such complaint, Investigating Officer [IO] has also filed a single charge-sheet on 18/10/2006. Thereafter, the petitioner has filed an application before the trial Court for segregating the charges and being unsuccessful, revision was filed before the Ld. Sessions Court. In the present petition, the petitioner has prayed to quash the orders passed by the Ld. Magistrate as well as Ld. Sessions Court rejecting their request to segregate trial.
5 The petitioner has relied upon the Division Bench judgment of this Court rendered in the case of Kershi Pirozsha Bhagnagar v/s. State of Gujarat reported in 2007 [2] GLH 493 and judgment of Ld. Single Judge rendered in the case of Somabhai Shamabhai Patel v/s. State of Gujarat reported in 1986 GLH 857.
6 On perusal of both the above judgments, it has become clear that judgment in Kershi Pirozsha Bhagvagar [supra] is mainly related to Negotiable Instruments Act and, therefore, considering the provisions of section 4 of the Code of Criminal Procedure [Cr. P.C.], it is quite distinguishable from the facts and details of other cases where offences are under the provisions of the IPC, where section 4[1] of the Cr. P.C would be applicable.
7 So far as the judgment rendered in the case of Somabhai Shamabhai Patel [supra] is concerned, though the IO has filed separate charge-sheets for separate offences even after single FIR, the High Court has refused to entertain the petition only on the ground that the High Court does not want to interfere with the order passed by the Ld. Magistrate or Ld. Sessions Court, under Article 227 of the Constitution, but if we peruse the entire judgment, it becomes clear that section 218 cannot be read all alone and sections 218 to 233 are to be read together. Bare perusal of sections 219 and 220 of the Cr. P.C makes it clear that even if there are more offences than one, there can be a single trial.
8 In view of above position, Ld. Advocate Mr. HN Joshi for the petitioner prays that it would be sufficient if this petition is disposed of at this stage, keeping their rights open for seeking separate trial against the accused for each offence after adducing sufficient evidence to that effect.
9 In view of above admission, there is no need to give an active hearing to the other-side, who is seeking time.
10 Considering the above discussion, this petition is disposed of with a direction that the trial Court shall proceed with the trial at the earliest. It is made clear that the petitioner can apply for separate trial against the accused after adducing evidence, if such evidence permits separate trial considering provisions of sections 218 to 233 of the Code of Criminal Procedure. It is also made clear that for separating the trial, this Court has not taken into consideration the merits of the case and it would be open for the Ld. Magistrate to take appropriate decision after considering the evidence on record, uninfluenced by present order and in accordance with law.
The petition stands disposed of accordingly.
(S.G.SHAH, J.) * Pansala.
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