Gujarat High Court
Kachchh District Central Co-Operative ... vs State Of Gujarat on 8 October, 2018
Author: A.J.Desai
Bench: A.J.Desai
R/SCR.A/1870/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1870 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 1872 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 1873 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 1874 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 1876 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 1878 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 1879 of 2018
With
R/SPECIAL CRIMINAL APPLICATION NO. 1881 of 2018
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KACHCHH DISTRICT CENTRAL CO-OPERATIVE BANK LTD. THR.
SENIOR OFFICER DEEPAK BHIMJI KATARIYA
Versus
STATE OF GUJARAT
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Appearance:
DARSHAN M VARANDANI(7357) for the PETITIONER(s) No. 1
MR DIPEN DESAI(2481) for the RESPONDENT(s) No. 2
MS.M.D. MEHTA, APP for the RESPONDENT (s) No.1 in SCR.A. Nos.1870,
1872, 1873 and 1878 of 2018
MS.M.K. THAKKAR, APP for the RESPONDENT (s) No.1 in SCR.A.
Nos.1874, 1876, 1879 and 1881 of 2018
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 08/10/2018
COMMON ORAL ORDER
1. The affidavits filed on behalf of the respondent No.2 in each petitions is taken on record.
2. Rule. Learned APP for the respondentState as well as Mr.Dipen Desai, learned Advocate for the respondent No.2 waives service of rule.
3. With the consent of the learned Advocates Page 1 of 5 R/SCR.A/1870/2018 ORDER appearing for the respective parties the matters are taken up for final hearing.
4. By way of these petitions under Article 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 the petitioner has prayed as under: "(A) That the Hon'ble Court be pleased to issue a writ of certiorary or a writ in the nature of certiorary or any other appropriate writ, order or direction quashing and setting aside the order dated 14.06.2016 passed by the learned Principal Civil Judge and Judicial Magistrate First Class, Naliya Kachchh, in criminal case nos.21, 26, 25, 28, 32, 31, 29 and 23 of 2014 respectively.
(B) That pending the hearing and final disposal of the petition, YOUR LORDSHIPS may be pleased to stay operation of the order dated 14.06.2016 passed by the learned Principal Civil Judge and Judicial Magistrate First Class, NaliyaKachchh, in criminal case nos.21, 26, 25, 28, 32, 31, 29 and 23 of 2014 respectively (C) For adinterim relies in terms of prayer (B) above;"
5. Short facts arises from the record as under:
6. That the petitioner is registered as a co operative society bank and is functioning as per Co operative Societies Act and Rules and the Banking Regulation Act and acting as a regular bank i.e. giving loans to cooperative societies who are registered members of the bank itself.
Certain loans were disbursed to cooperative societies in the year 20072008. The amount which was paid by the petitioner was to be disbursed by co Page 2 of 5 R/SCR.A/1870/2018 ORDER operative societies to its members. However, the members did not pay any loan amount and it was found on inquiry that many members in whose name money was released by cooperative societies have expired long back. Therefore, criminal complaints came to be filed by the respondent No.2. The said complaint was filed before the Court of learned Principal Civil Judge and Judicial Magistrate First Class, Naliya Kuchchh. Since the petitioner did not receive the loan amount from the respondent cooperative societies, he made an application / complaint against respondent co operative societies for the alleged offences punishable under Sections 403, 406, 408, 409, 420, 465, 467, 468, 471, 120(B) of the Indian Penal Code. The complaint was made to the Inspector General of Police, Kuchchh District.
7. The State of Gujarat found the case serious one, and therefore, C.I.D. (Crime and Railway), Economic Offence Cell, Gandhinagar was handed over the investigation. Accordingly, the investigation started. The respondentaccused submitted an application before the Court of learned Judicial Magistrate First Class, NaliyaKuchchh in the form of complaint for staying of the investigation which was being made pursuant to the application given by the present petitioner. By the impugned orders of the learned Magistrate dated 14.06.2016, the investigation was stayed. Hence, this petition.
8. Mr.Darshan M. Varandani, learned Advocate for Page 3 of 5 R/SCR.A/1870/2018 ORDER the petitioner would submit that the learned Magistrate has committed great error in staying the investigation which is being made by the C.I.D. (Crime and Railway), Economic Offence Cell, Gandhinagar with regard to disbursement of loan to the respondent No.2. He would submit that even before passing order the petitioner bank was not given an opportunity of hearing and the impugned order is passed without hearing the prosecution. He would submit that the learned Magistrate has no power to stay the investigation. Hence, the petitions be allowed.
9. On the other hand, learned Advocate Mr.Dipen Desai appearing on behalf of the respondent No.2 would submit that the cooperative societies itself were defrauded by those persons to whom loans were disbursed. He would therefore submitted that there is no need for separate investigation qua the complaint submitted by the petitioner. He would further submit that the impugned orders passed by the learned Magistrate is just and proper and as such, the present petitions are required to be dismissed.
10. I have heard the learned Advocate appearing for the respective parties. Perused the application / complaint submitted by the petitioner to the concerned police officer in which several allegations have been made against the office bearers of respondent cooperative societies. I have also gone through the impugned order. I have also gone through Page 4 of 5 R/SCR.A/1870/2018 ORDER the complaint against those persons to whom loan was alleged to have been disbursed.
11. In my opinion, while passing the impugned order, learned Trial Court has committed a grave error in staying the investigation which is being made by the State of Gujarat and C.I.D. (Crime and Railway), Economic Offence Cell, Gandhinagar. The learned Trial Court ought to have considered the seriousness of complaint which was filed against the members of the respondent cooperative society and investigation which was ordered to be carried out and therefore, the learned Trial Court should not have stayed further investigation. Hence, the said Orders are required to be quashed and set aside.
12. Hence, I am of the opinion that, the present petitions require consideration and the same are allowed. The Orders dated 14.06.2016 passed by the learned Principal Civil Judge and Judicial Magistrate First Class, NaliyaKuchchh in criminal case nos.21, 26, 25, 28, 32, 31, 29 and 23 of 2014 respectively are hereby quashed and set aside. The concerned Police Officer who is investigating the case shall carry out further investigation in accordance with the law. Rule is made absolute.
Direct service is permitted.
Office is directed to place the copy of this order in each connected petitions.
(A.J.DESAI, J) RAVI PATEL Page 5 of 5