Madhya Pradesh High Court
Shiv Kumar Sharma vs The State Of Madhya Pradesh on 30 March, 2022
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
1 M.Cr.C. No.2830/2019
& M.Cr.C. No.8202/2020
The High Court Of Madhya Pradesh
Bench Gwalior
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SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava
M.CR.C. NO. 2830 of 2019
Hariom Sharma Vs. State of M.P.
&
M.CR.C. NO. 8202 of 2020
Shiv Kumar Sharma Vs. State of M.P. & Ors
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Shri Arun Pateria, learned counsel for the petitioner in MCRC 2830 of
2019.
Shri Jitendra Kumar Sharma, learned counsel for the petitioner in
MCRC 8202 of 2020.
Shri Purushottam Tanwar, learned Panel Lawyer for the respondents/
State in both petitions.
Shri R.B.S. Tomar, learned counsel for respondents No. 3 & 4 in
MCRC 8202 of 2020.
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Reserved on 22/03/2022
Whether approved for reporting ..../.......
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ORDER
(Passed on 30/03/2022) Per Rajeev Kumar Shrivastava, J:-
Both petitions filed u/S. 482 of CrPC are decided by a common order, as they arise out of proceedings of FIR in connection with Crime No.265/2008 registered at Police Station Kailaras, District Morena for offences under Sections 409, 420, 467, 468, 471 of IPC.
(2) Short facts giving rise to the controversy involved in both the petitions are that on 09/10/2008, the then T.I. of Police Station Kailaras registered impugned FIR alleging therein that today he has found a letter of the District Cooperative Central Bank Ltd., Kailaras dated 31/05/2007 in his pad, in which it is alleged that as per the 2 M.Cr.C. No.2830/2019 & M.Cr.C. No.8202/2020 report of enquiry dated 03/05/2007 previous Branch Manager Shiv Kumar Sharma, Cashier Mr. Beg, clerk Hariom Sharma and Peon Damodar Prasad Gupta, granted loan to a account holder Siyapos Sharma who is real brother of Shri Shiv Kumar Sharma the then Branch Manager and other bank account holders on the basis of forged cheque books of loan accounts and have misappropriated bank amount of Rs.95,28,320/- and committed forgery, criminal breach of trust. Before registration of the aforesaid FIR, on 27/04/2007 Siyapos Sharma deposited amount of Rs.52,504/-, Rs.1,15,000/-, Rs.50,000/-, Rs.4,00,000/-, Rs.17,960/-, Rs.49,750/-, Rs.25,678/- & Rs.2,00,000/-
on different dates, thus he deposited total amount of Rs.9,48,892/- in order to repay the loan advanced from bank. On 03/09/2007, the respondent Bank mortgaged properties of the Siyapos Sharma, Yogesh Sharma & Smt. Ranjana Sharma against the alleged loan sanctioned by the Bank. The bank also accepted cheques from borrower Siyapos Sharma amounting to Rs.36,00,000/- on 09/05/2007, 15/05/2007, 16/05/2007 & 18/05/2007. On dishonor of aforesaid cheques, the bank filed case of Section 138 of Negotiable Instruments Act before the competent Court on 05/09/2007, i.e. before registration of FIR. In between 04/07/2007 to 21/01/2008, Siyapos Sharma has deposited Rs.24,49,757 and his FDR of Rs.12,00,000/- was adjusted. The account holders Siyapos Sharma, Yogesh Sharma & Smt. Ranjana Sharma repaid the loan amount and the bank has released the original documents of the property mortgaged by Maheshwari Sharma, Vimla Sharma, Siyabai and Dinesh Chandra and 3 M.Cr.C. No.2830/2019 & M.Cr.C. No.8202/2020 the property mortgaged against the loan of Siyapos Sharma valued Rs.31,50,000/- and FDR of Rs.10,00,000/- are still in possession of the Bank, whereas only an amount of Rs.25,33,063/- against the loan of Siyapos Sharma is remained for recovery. When the alleged loan was sanctioned, there was acute shortage of the staff in the Bank, due to which, charge of Cashier was given to Mr. Beg who was substantively posted as Peon and similarly the charge of Clerk was given to Mr. Damodar Prasad Gupta, who was also posted at Peon and Shiv Kumar Sharma, petitioner in M.Cr.C. No.8202/2020, was entrusted with the charge of Branch Manager of three Branches, i.e. Sabalgarh, Night Branch Kailaras and Main Branch Kailaras. (3) After registration of FIR, challan was filed on 11/11/2019 before the Court of Judicial Magistrate First Class, Sabalgarh District Morena. Thereafter, the matter is pending before the Court of Additional Sessions Judge, Sabalgarh Distt. Morena after committal of case for trial. Hence, this petition has been filed for quashing of FIR registered in Crime No.265/2008 at Police Station Kailaras, District Morena for offences under Sections 409, 420, 467, 468, 471 of IPC and all consequential proceedings flowing from it. (4) It is submitted by learned counsel for the petitioner that the registration of FIR against the petitioner is an abuse of process of law and same deserves to be quashed. Even if the allegations made in the FIR and the material collected by the prosecution are considered to be true at their face value, then they do not constitute any offence whatsoever alleged against the petitioner and it is simply a case of 4 M.Cr.C. No.2830/2019 & M.Cr.C. No.8202/2020 negligence from duty and there is allegation of irregularity in granting loan without proper documentation which was subsequently regularized by mortgaging the properties of the borrower/ guarantor. The case is purely of civil in nature. It is further submitted that since no offence is made out against the petitioner, therefore after registration of FIR on 09/10/2008, the police has filed challan on 11/11/2019 i.e. after around more than 10 years. There is no iota of allegation or evidence of misappropriation of bank amount against the petitioner.
(5) Learned counsel for the petitioner further submits that after grant of alleged loans during the years 2003 to 2006, audit was made by the Cooperative Department and NABARD conducted inspection from time to time, but nobody raised any objection in the said matter because the loan was sanctioned as per the directions of the higher authorities. The complainant did not give proper information to the police authorities. Since the present case has been registered with a malafide intention and ulterior motive to seek revenge upon the petitioner, therefore, the same deserves to be quashed in the light of the judgment passed by the Supreme Court in the case of State of Haryana & Others. vs. Ch. Bhajanlal & Others reported in 1990 SCR Supl.(3) 259. To bolster his submissions, learned counsel for the petitioner has also relied upon judgments passed by the Hon'ble Apex Court in M/s. Indian Oil Corporation Vs. M/s. NEPC India Ltd. & Ors. [AIR 2006 SC 2780] and Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. [AIR 2008 SC 251]. Thus, learned 5 M.Cr.C. No.2830/2019 & M.Cr.C. No.8202/2020 counsel for the petitioner prayed that the impugned FIR and proceedings initiated thereunder, if any, may be quashed. (6) Per contra, learned counsel appearing for the State as well as learned counsel for respondents No.3 & 4 (in M.Cr.C. No.8202/2020) have vehemently opposed the submissions put forth by learned counsel for the petitioner and have submitted that the present case has been registered against the applicant for the offences punishable under Sections 409, 420, 467, 468, 471 of IPC, therefore no interference at this stage is called for by this Court in exercise of jurisdiction under Sections 482 of Cr.P.C. It is further contended on behalf of respondents that while working as Branch Manager in the Cooperative bank, petitioner has provided the loan and issued the cheque books to his relatives and the aforesaid loan was sanctioned against the FDRs though there were no any FDRs of the said person available, but the petitioner and other co-accused by manipulating the documents mentioned forged entry showing the FDRs against which loan was granted. Therefore, it is clear that the petitioner along with other co-accused has committed the cheating/ forgery intentionally with the public money. It is also submitted by learned counsel for the respondents that the amount of Rs.25,33,063/- and interest thereon is still outstanding against the petitioner which has not been paid till date. Learned counsel for the respondents further argued that it is a settled legal proposition of law that while considering the case for quashing of FIR or criminal proceedings, the Court should not kill a still-born child and appropriate prosecution should not be stifled 6 M.Cr.C. No.2830/2019 & M.Cr.C. No.8202/2020 unless there are compelling circumstances to do so. Hence, no interference is called for and a prayer is made for dismissal of these petitions.
(7) Heard the learned counsel for the parties at length and perused the documents available on record.
(8) Section 482 of the Code of Criminal Procedure reads as under:-
"482. Saving for inherent power of High Court
- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
(9) The powers of High Court under Section 482 of CrPC are partly administrative and partly judicial. The Hon'ble Apex Court in State of Karnataka vs. Muniswami [AIR 1977 SC 1489] held that the section envisages three circumstances in which the inherent jurisdiction may be exercised, namely, "to give effect to an order under CrPC, to prevent abuse of the process of the court, and to secure the ends of justice."
(10) The jurisdiction under Section 482 CrPC is discretionary. The Court may depend upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers under Section 482 of CrPC. It is true that their powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.
7 M.Cr.C. No.2830/2019& M.Cr.C. No.8202/2020 (11) It is also settled law that the inherent power under Section 482 of CrPC has to be exercised for the ends of the justice and should not be arbitrarily exercised to cut short the normal process of a criminal trial. Authority of the Court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
(12) In the instant case, the first information report has been registered under Sections 409, 420, 467, 468, 471 of IPC. The allegations leveled against the petitioner in the impugned FIR are of cheating and forgery. Cheating is defined in Section 415 of IPC and is punishable under Section 420 of IPC.
(13) Section 415 of IPC reads as under:-
"415. Cheating. 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."
(14) On a reading of the aforesaid Section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which 8 M.Cr.C. No.2830/2019 & M.Cr.C. No.8202/2020 the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning. (15) This Court now deals with the ingredients of Section 467 of IPC. Section 467 of IPC reads as under:
"467. Forgery of valuable security, will etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, moveable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any moveable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
(16) The basic ingredients of offence under Section 467 of IPC are altogether missing even in the allegations of the FIR against the petitioner.
(17) In the case at hand, at the most, there could be irregularity in the bank proceedings, therefore there is no mens rea in the case and 9 M.Cr.C. No.2830/2019 & M.Cr.C. No.8202/2020 any irregularity done without mens rea could not amount an offence. Further, civil liability & claims cannot be settled by applying pressure with the aid of criminal proceedings and criminal prosecution should not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. Even if all the averments made in the FIR are taken to be correct, the case for prosecution under 409, 420, 467, 468, 471 of IPC is not made out against the petitioner. To prevent abuse of the process and to secure the ends of justice, it becomes imperative to quash the FIR and further proceedings emanating therefrom.
(18) Resultantly, both the petitions stand Allowed and impugned FIR registered in Crime No.265/2008 registered at PS Kailaras, District Morena for offences under Sections 409, 420, 467, 468, 471 of IPC and all consequential proceedings flowing from it are hereby Quashed.
(19) Let a copy of this order be sent to the Police Station as well as trial Court concerned for necessary information.
(Rajeev Kumar Shrivastava) Judge Shubhankar* Digitally signed by SHUBHANKAR MISHRA Date: 2022.03.30 17:14:24 +05'30'