Rajasthan High Court - Jodhpur
Purshottamdas vs State & Anr on 13 April, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2708 / 2016
Purshottamdas Vaishnav S/o Sh. Dayadas, by caste Vaishnav,
Resident of Sam Gali, Sadar Bazar, Sirohi (Raj.).
----Petitioner
Versus
1. The State of Rajasthan through Public Prosecutor.
2. Hitesh Kumar S/o Sh. Bhagwan Ram Chhipa, Resident of Chhoti
Brahampuri, Kotwali, Sirohi (Raj.)
----Respondents
_____________________________________________________
For Petitioner(s) : Mr. Vineet Jain.
For Respondent(s) : Mr. V.S. Rajpurohit, P.P. for the State.
For Respondent-Complainant : None present despite service.
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 13/04/2017 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 forwarded to Police Station Kotwali, District Sirohi under Section 156(3) Cr.P.C. for (2 of 5) [CRLMP-2708/2016] 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."
(3 of 5) [CRLMP-2708/2016] The positive assertion of the petitioner is that due to the order passed in aforesaid PIL, all the banking activities of the Co- operative 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.
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 (4 of 5) [CRLMP-2708/2016] 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, non- appearance 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 (5 of 5) [CRLMP-2708/2016] 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.
(P.K. LOHRA)J. Twinkle/80