Gujarat High Court
Ramesh vs State on 2 March, 2012
Author: J.C.Upadhyaya
Bench: J.C.Upadhyaya
Gujarat High Court Case Information System
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CR.MA/10201/2010 29/ 29 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10201 of 2010
=========================================================
RAMESH
ISHWARLAL GANDHI & 5 - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
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Appearance
:
MR
PM THAKKAR, SR. COUNSEL with MR PH PATHAK
for
Applicant(s) : 1 -6.
MR KP RAVAL, APP for Respondent(s) : 1,
MR
SUNIT SHAH with MR KJ PANCHAL for Respondent(s) :
2,
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CORAM
:
HONOURABLE
MR.JUSTICE J.C.UPADHYAYA
Date
: 02/03/2012
ORAL
ORDER
The instant application is filed requesting quashing of the FIR being C.R. No. I-10/2010 registered with Gandhinagar Zone Police Station regarding the offences punishable under section 406, 409, 420, 465, 467, 468, 471, 477-A and 120[B] of the Indian Penal Code [IPC] and section 46 of the Banking Regulations Act.
2. The respondent no. 2 herein, who is the original complainant, lodged the aforesaid FIR on 31/5/2010, briefly stating that at the time when the FIR came to be lodged, he was in-charge Regional Manager at Surat in the Gujarat Industrial Cooperative Bank Ltd., [hereinafter referred to as 'the bank']. He lodged the FIR against many accused persons who can be broadly divided into two categories, namely some of the officers and office bearers of the bank itself and the borrowers. Perusing the FIR, it further transpires that the alleged incident occurred at Parsi Street Branch of the bank located at Surat. In the FIR, it is further stated that the different incidents for which the FIR came to be lodged occurred between the years 2000 and March 2008. In the FIR, it is further stated that the alleged fraud and alleged misappropriation on large scale came to the surface when a team of Reserve Bank of India [RBI] inspected the accounts of the bank. It further transpires that the said inspection took place between March 2007 and 2008 and pursuant to the report of the team, different offences having been committed with the bank by some of the officers of the bank and other office bearers, namely Managing Director, etc., of the bank, so also by the borrowers of the different loans came to be revealed. The FIR runs into nearly 15 pages wherein different modes and modus operandi are narrated, which allegedly adopted by some of the officers of the bank and other office bearers of the bank and by the borrowers of the bank, who are arraigned as accused persons in the FIR. In the FIR, briefly narrating different incidents and the modus operandi adopted by the accused persons to defraud the bank to the tune of Rs.106.92 crore, ultimately it is stated that those officers and office bearers of the bank, while considering the assets of the borrowers as non-banking assets and at the time of undertaking sale, RBI norms and guidelines were not adhered to and certain resolutions came to be passed disregarding such guidelines and the original accused no. 1 Mr. AK Raval, who was at the relevant time serving as Regional Manager of the bank, in collusion with other accused persons, who are arraigned as borrowers and with a view to defraud the bank, without taking appropriate securities and knowing fully well that the accused persons, who are borrowers, presented a false and fabricated valuation certificates, yet disregarding the norms of the bank, huge amount of loans were granted to the borrowers
- accused persons in the name of their fictitious firms. Describing the modes and modus operandi allegedly adopted by all the accused persons referred in the FIR, in the last para., of the FIR, it is stated that a large-scale conspiracy came to be hatched by all the accused persons to defraud the bank to the tune of Rs.106.92 crore and all the accused, therefore, according to the FIR, are responsible for the offences alleged against them.
2.1. Mr. PM Thakkar, Ld. Sr. Counsel with Mr. PH Pathak, Ld. Advocate for the petitioners, who are six in number in this petition, at the outset, submitted that the bare perusal of the FIR would suggest that prima-facie no offence is made out against the petitioners, who are collectively arraigned as accused no. 23 and accused no. 42 in the FIR. No role is attributed to all or any of the petitioners accused in the FIR as to how and in what manner they allegedly committed the offences. Mr. Thakkar, Ld. Sr. Counsel read over the FIR and submitted that very general and vague statements are there in the FIR, but the major allegation appears to have been levelled by the respondent no. 2 - complainant against the original accused no. 1 - Mr. AK Raval, who at the relevant time, happened to be the Regional Manager of the bank. It is submitted that so far as the opening of 48 bogus accounts were concerned, in the FIR, it has been specifically averred by the complainant that those bogus 48 accounts came to be opened up by the original accused no. 1 and that the concerned account holders were not knowing that in their names bogus accounts were opened. It is submitted that if at all, while sanctioning any loan RBI norms and the guidelines are not strictly adhered to by any officer of the bank, that would not be sufficient to involve him in connection with any offence, but at the most, that would amount to lapse in discharge of his duty inviting at the most disciplinary action.
2.2. Mr. Thakkar, Ld. Sr. Counsel, perusing the FIR, stated that so far as the petitioners are concerned, 4 alleged bogus accounts are attributed collectively in their names, but in the FIR itself the complainant says that the account holders had no knowledge about such bogus accounts. My attention was drawn to two tables which are there on internal page 5 in the FIR and submitted that the complainant tried to show in the FIR that by opening 4 bogus accounts, the petitioners attempted to misappropriate an amount to the tune of Rs.1.5 crore, but the complainant himself states in the FIR that the account holders were not knowing about any bogus account.
2.3. Mr. Thakkar, Ld. Sr. Counsel drew my attention to certain averments made in the FIR regarding B.P.M facility [Bill Purchase Miscellaneous] and in the FIR it has been stated that certain fraud having been committed by the original accused no. 1 pursuant to the common conspiracy hatched by all the accused persons, but it is submitted that no details are given and the allegations are vague and general in nature. Mr. Thakkar, Ld. Sr. Counsel drew my attention to certain averments made in the FIR on internal page no. 9 that the original accused no. 1 Mr. Raval unauthorizedly sanctioned the loans and at serial no. 12 the name of one of the petitioners is stated, who received the benefit of such loan, but again no details are there. Referring to internal page 10 in the FIR, it has been submitted that the complainant in his FIR stated that certain over draft facility, ignoring the guidelines and norms, have been granted by the original accused no. 1 Mr. Raval to different account holders and in the table referred to on internal page 10 in the FIR, at serial nos. 3, 4 and 5 certain concerns of the petitioners are referred, but only vague and general allegations are levelled, which otherwise do not constitute any offence. Mr. Thakkar, Ld. Sr. Counsel drew my attention to the table given in the FIR at page 11 and stated that the table leads us to no-where to come to even prima facie conclusion that any ingredient of any offence alleged in the FIR can be said to have been prima-facie revealed.
2.4. Mr. Thakkar, Ld. Sr. Counsel drew my attention to Annexure- A [page 10] in the petition and submitted that as per the statement, lastly a loan was taken in the year 2004 and thereafter, no loan was taken. It is submitted that upto 2004 towards the outstanding amount, approximately Rs.4.5 crore have been repaid by the petitioners and even thereafter, the repayment came to be made upto the year 2010 and to substantiate said submission, my attention was drawn to affidavit-in-rejoinder filed by the petitioner no. 1 and certain documents annexed with said rejoinder affidavit and it is submitted that this shows the bonafide of the petitioner that his intention was not to defraud the bank. It is submitted that considering the relevant documents annexed with the affidavit-in-rejoinder of the petitioner, it would clearly transpires that certain MOUs came to be executed by the petitioner with the bank which even bear signature of the complainant himself. Mr. Thakkar, Ld. Sr. Counsel submitted that as a matter of fact, the complainant himself was serving in the bank at the relevant time and even his conduct cannot be said to be out of doubt.
2.5. Mr. Thakkar, Ld. Sr. Counsel for the petitioners further submitted that in the FIR what is described is modes and modus operandi of the accused to defraud the bank, though do not prima-facie disclose commission of any offence, but in a way tells about the functioning of cooperative bank because so far as the cooperative bank is concerned, though it is bound to follow the RBI norms, but some rigid and technical approach may not be there when an account holder has to deal with such cooperative bank. It is submitted that the petitioner had dealing with this bank since last about 20 to 25 years and the petitioner and his family members are holding assets and properties including the mills and, therefore, it cannot be said that from day one the petitioner came in contact with the bank, his intention was to cheat the bank.
2.6. Mr. Thakkar, Ld. Sr. Counsel for the petitioners drew my attention to the definitions of the different offences alleged in the FIR and submitted that the perusal of the FIR would not prima facie satisfy any of the ingredients of any of the offences.
2.7. Mr. Thakkar, Ld. Sr. Counsel for the petitioners further submitted that the FIR suffers from a delay factor in the sense that the incident alleged in the FIR allegedly occurred between 2000 and 2008 and the FIR came to be lodged in the year 2010.
2.8. Mr. Thakkar, Ld. Sr. Counsel for the petitioners further submitted that the perusal of the entire FIR would suggest that certain alleged fraud, cheating, etc., came to be committed while sanctioning loan or while granting over draft facility, etc., and certain breach came to be committed qua such facility, but that at the most can be said to be a breach of contractual obligation for which civil remedy is available. It is submitted that in the instant case, since the debt became time barred, the complainant adopted a short method of recovering the time barred debt by using the police machinery by filing the FIR.
2.9. Mr. Thakkar, Ld. Sr. Counsel for the petitioners asserted that when the FIR does not disclose commission of any offence by the petitioners, the FIR deserves to be quashed. It is submitted that even if at this stage, the FIR is quashed, the prosecution will not be remedyless as during the course of trial, if any material is disclosed which will show involvement of all or any of the petitioners, remedy is available to the prosecution to invoke relevant provisions laid down under the Code of Criminal Procedure including the remedy available under section 319 of the Code of Criminal Procedure [hereinafter referred to as 'the Cr. P.C.'].
2.10. Mr. Thakkar, Ld. Sr. Counsel for the petitioners, drawing my attention to relevant documents annexed with this petition, submitted that in the year 2005, treating this as special transaction, the petitioner was directed by the bank to stop the production in his mill and the mill remained close from 1/8/2005 to 1/7/2006 and the bank had taken possession. Thus, it is submitted that it cannot be said that the loan was granted to the petitioner either on account of absence of any security or inadequate security and that the petitioner did not express his bonafide for repayment of loan.
2.11. Mr. Thakkar, Ld. Sr. Counsel for the petitioners, in support of his submissions, relied upon certain decisions which shall be discussed in this order at the relevant time.
3. Mr. Sunit Shah, Ld. Counsel for Mr. KJ Panchal, Ld. Advocate for the respondent no. 2 - original complainant, perusing the FIR submitted that the FIR discloses serious offences at this stage against all the accused persons referred in the FIR including the petitioners. It is submitted that considering the FIR, it would clearly transpires that all the accused persons, joining their hands with accused no. 1 Mr. Raval, then Regional Manager, committed serious offences, which have put the bank to a great loss. It is submitted that in the FIR, in brief, the modes and modus operandi adopted by all the accused persons to defraud the bank are narrated, but it is submitted that such fraud came to the surface only when the RBI team inspected the bank accounts and filed its report. It is submited that as a matter of fact, it can safely be said that the FIR discloses the scam of multi crores of rupees relating to the bank. My attention was drawn to reply affidavit of the respondent no. 2 and the documents annexed with the reply affidavit and more particularly a statement produced at page 128. It is submitted that the perusal of said statement would suggest that 6 petitioners formed 21 different concerns, mode of supplying funds to them by the bank, their account numbers, opening date of their accounts, date of syphoning funds, the amount syphoned, interest on the syphoning amount and the total amount to be recovered, are mentioned, which would suggest that adopting the modes and modalities stated in the FIR, the petitioners in-all syphoned approximately Rs.16 crore and with interest it may come to about Rs.22 crore. Mr. Shah submitted that during the course of investigation, while the statement of one of the officers of the bank was recorded, the said statement was submitted to the Investigating Officer so that he can investigate the FIR on a right track.
3.1. Mr. Shah asserted that instant FIR can never be said to be belated one in the sense that all the accused persons, by hatching a conspiracy during the period from the year 2000 to 2008 syphoned huge amount of the bank, but the offences came to the surface when the team of the RBI audited the accounts and filed its audit report in the year 2008. It is submitted that in January 2009, the bank sent a detailed communication to the Economic Cell of the Police and subsequently the same came to be registered in the year 2010 as FIR. Mr. Shah submitted that the petitioners tried to submit that the amounts more than Rs. 4 crore have been repaid by them towards the outstanding amount, but the said repayment was towards three regular accounts and not towards bogus accounts. Mr. Shah drew my attention that even the Central Government filed criminal complaint against the petitioners for commission of serious offences. Mr. Shah submitted that the petitioners, in conspiracy with the original accused no. 1 Mr. Raval, concocted false cheques and through the mode of BPM allegedly presented the cheques which came to be purchased by the bank, but thereafter, these cheques were never presented for encashment, but the loan facility was availed of as against those cheques. My attention was drawn to xerox copies of such cheques collectively produced with the reply affidavit of the respondent no. 2. It is further submitted that the FIR suggests that even in absence of any F.D., the petitioners obtained the facility of loan. It is submitted that the petitioners are not denying basic fact, even at this stage, that they obtained financial benefits from the bank. As per the FIR, such financial benefits were obtained by the petitioners by committing various offences alleged against them. It is submitted that only because in the FIR about bogus accounts, it is stated that the account holders had no knowledge about such bogus accounts, the entire FIR cannot be quashed for the simple reason that as per the allegation of the complainant, such bogus accounts were opened by the original accused no. 1 Mr. Raval as a part of conspiracy hatched by him with the accused persons including the petitioners. It is, therefore, submitted that the various modes and modus operandi adopted by the accused persons, briefly narrated in the FIR, clearly constitute the offences alleged against them. It is submitted that the FIR cannot be termed as encyclopedia of entire prosecution case, but it must disclose criminal offence and the perusal of the FIR would suggest that the criminal offences alleged against the accused are prima facie made out. When such is the situation, it cannot be said that the petitioners entered into bonafide transactions with the bank and the dispute is a civil dispute. Mr. Shah, Ld. Advocate for the respondent no. 2 relied upon certain decision, which shall be discussed in this order at appropriate time. Mr. Shah ultimately submitted that in the instant matter, so far as the petitioners are concerned, the police investigation is going on and during the course of investigation, required materials in the form of documents, etc., are to be collected by the police, in support of the FIR. Therefore, it is submitted that at this stage, if the FIR is quashed, the bank, which was a public institution, handling public money, may suffer great prejudice. It is submitted that because of such fraud practiced by all the accused persons including the petitioners, ultimately the bank stood closed since 2008. It is, therefore, submitted that the petition may be dismissed.
4. Mr. Raval, Ld. APP for the respondent no. 1 - State submitted that pursuant to the FIR, till date two different charge-sheets are filed covering in-all 42 accused persons and for remaining 16 accused persons including the petitioners, the investigation is going on and required materials are collected and for that purpose my attention was drawn to the statements of two officers of the bank, namely Mr. GK Desai and Mr SK Patel and it is submitted that during the course of their statements, the statement annexed at page 128 in the petition with the reply affidavit of the respondent no. 2 has been collected by the police. It is, therefore, submitted that the petition may be dismissed.
5. Having considered the submissions advanced on behalf of both the sides, so also considering the FIR, prima-facie as per the FIR, the bank sustained loss to the extent of Rs.106.92 crore. In the FIR, respondent No.2 complaint discussed various modes and modus operandi allegedly adopted by the accused persons to defraud the bank, taking the help of original accused No.1 Mr.KP Raval, who at the relevant time, was Regional Manager of the bank. In the FIR, the petitioners are collectively referred as accused Nos.23 and 42. As stated above in the FIR, various offences, namely, breach of trust, cheating, forgery, creating false documents, conspiracy etc. are alleged. As stated above, though as per the FIR, through various modes and modus operandi, allegedly adopted by all the accused persons, large amount of the bank came to be misappropriated between the period from year 2000 to 2008, but as per the FIR, the fraud came to the surface only when a team of R.B.I. inspected and audited the account of the bank and filed final report on 30.5.2008. The perusal of the FIR in nutshell would reveal that 48 bogus accounts were opened in the bank and so far as the petitioners are concerned, four false and bogus accounts were opened. It is true that in the FIR, at one place, on internal page No.5, it is stated that said bogus accounts were opened by original accused No.1 and the account holders had no knowledge about the accounts, but reading the FIR as a whole, it transpires that out of the said alleged four bogus accounts, as per the table given at internal page No.5 of the FIR, it transpires that about Rs.1.5 crore stood outstanding qua the petitioners. Almost same is the situation if the mode and modus operandi to defraud the bank through B.P.M. facility narrated in the FIR is considered. In the FIR, it is further stated that the original accused No.1 Mr.Raval sanctioned the loan disregarding the R.B.I. guidelines and norms and even the internal guidelines of the bank, namely, the application of the applicants shall be first scrutinized by the bank, then by the Regional Manager, then by the Regional Committee and then by Higher Authority. At internal page No.10 in the FIR, through overdraft facilities, how bank was defrauded is narrated by giving a table and at Sr.Nos.3, 4 and 5 through the different firms of the petitioners, it transpires that large amount came to be disbursed and found due. Further the detailed table is given on internal page No.11 in the FIR wherein different firms of the petitioners are described and the outstanding dues towards the loan procured allegedly by practicing fraud and through overdraft facilities are referred to at Sr. Nos.15,16,18,21,22, 23,24,25,26,27,28 and 33. It is further stated in the FIR by the above-said table that through the cheque purchase mode, bogus cheques were allegedly obtained by accused No.1 and as against the accounts wherein overdraft facilities were sanctioned, in computer, overdraft limits were allegedly changed at the instance of the original accused No.1 in collusion with the accused persons. Ultimately, in the last paragraph of the FIR, in nutshell, the gist is given as to how all the accused persons, hatched a conspiracy to defraud the bank. The large amount to the extent of Rs.106.92 crore came to be swindled out.
6. There is no dispute that when an application is filed u/s.482 of the Code of Criminal Procedure, pending the investigation, to quash the FIR, the first and foremost thing which this Court has to consider is as to whether the FIR reveals, prima-facie, any criminal offence or not. As stated above, in the FIR, variety of offences, namely, criminal breach of trust, cheating, forgery, creating false documents, conspiracy etc. are alleged. How and by adopting which mode and modus operandi by the accused persons, including the petitioners in collusion with the original accused No.1 Mr. Raval, allegedly defrauded the bank have been narrated in the FIR. The respondent No.2 in his reply affidavit, contested this petition and along with his reply affidavit, a detailed statement is annexed at page 128 whereby it is tried to be submitted that all the petitioners, by opening different accounts in the names of 21 different concerns, defrauded the bank to a large extent. At this stage, Mr. Raval, learned APP for respondent No.1 drew my attention to the statements of two bank officers, namely, Mr. JK Desai and Mr. SK Patel, but when the instant petition is filed only on the basis of the FIR, it would not be appropriate for this Court to consider these two statements recorded by police during the pendency of police investigation. However, this Court would definitely consider the statements only for the limited purpose that the statement annexed by the opponent No.2 with his reply affidavit, produced at page 128, has been supplied by these witnesses to the police during the course of investigation.
7. It is true that in the case of Mohammed Ibrahim and Others Vs.State of Bihar and Anr. reported in (2010)1 GLH 184, the Hon'ble Apex Court, in a matter arising from a discharge proceeding, elaborately discussed the definition of criminal breach of trust, forgery, cheating and offence relating to false document and took into consideration as to whether in the facts and circumstances of said case, the alleged offences can be said to have been prima-facie committed or not. However, the said case pertained to execution of sale-deed, allegedly executed by vendors, who had no right, title or interest in the property transferred. The decision rendered in Mohammed Ibrahim's case (supra) came to be followed by this Court in the case of Maheshkumar Hiralal Barot & Anr.Vs.State of Gujarat & Ors. decided by this Court on 01.12.2011 in Criminal Misc. Application Nos.6322 of 2010 with Criminal Misc. Application No.10341 of 2010. However, considering the facts of said case, decided by this Court, again it transpires that a quashing petition was filed u/s.482 of the Cr.P.C., pertaining to the offence, which had arisen on account of execution of sale-deed by the vendors in favour of buyers, regarding the property, in which allegedly the vendors had no right or title.
8. In the case of CBI Vs. Duncan Agro Industries Ltd. Calcutta reported in AIR 1996 SC 2452, in a quashing matter, Hon'ble the Apex Court in paragraph 26 observed that for the purpose of quashing the complaint, it is necessary to consider whether the allegations in the complaint prima-facie made out an offence or not. As stated above, at this stage, considering the FIR as a whole, it cannot be said that the FIR does not disclose prima-facie the offences alleged against the accused.
9. In the case of Dalip Kaur & Ors. Vs. Jagnar Singh and Anr. reported in (2009)14 SCC 696 Hon'ble the Apex Court in a quashing of complaint matter, examined the ingredient of the offence of cheating and observed that fraudulent or dishonest intention must exist from the very inception when the promise or representation was made. It has been further observed that non-refunding of amount of advance which results in simply a breach of contract and does not constitute cheating. There cannot be any dispute regarding the proposition propounded by the Hon'ble Apex Court, but in the instant matter, in the facts and circumstances of this case, and more particularly perusing the FIR, prima-facie it becomes clear that this is not simplicitor a case of breach of promise.
10. In a quashing of complaint petition, regarding the offence of cheating, punishable u/s.420 of the IPC, in the case of Hotline Teletubes and Components Ltd. & Ors. Vs. State of Bihar & Ors. reported in (2005)10 SCC 261 almost similar is the observation made by the Hon'ble Apex Court that mere refusal by accused to pay price for goods received from the complainant does not amount to offence of cheating and it was held that the case was one purely of civil liability. In the facts and circumstances of the case, in the instant matter, perusing the FIR, at this stage, it cannot be said that the instant case is purely of civil liability.
11. In the case of Alpic Finance Ltd. Vs.P.Sadasivan & Anr. reported in (2001)3 SCC 513, in a quashing of complaint matter, Hon'ble the Apex Court observed that the complaint must disclose essential ingredients of the offence alleged. Perusing the complaint in said matter, Hon'ble the Apex Court observed that in said case, there was no allegation that there was a fraud or dishonest inducement on the part of the accused. In that context, it was further observed that even the accused persons have paid substantial amount towards the consideration. In the instant matter, drawing my attention to Annexure A, page 10, on behalf of the petitioners, it has been submitted that the last loan was obtained in the year 2004 and even upto 2004, about Rs.4.5 crore have been paid to the bank, and in the year 2005, for the time being, the mill of the petitioner came to be closed by the direction of the bank and later on it was reopened and till 2010, in all, approximately Rs.10 crore have been repaid by the petitioners as against the outstanding amount. My attention was further drawn to Annexure-I, rejoinder filed by the petitioner No.1 and the papers annexed with said Annexure-I rejoinder, and more particularly, different MoUs executed in the year 1999, 2004 and 2009 and it is submitted that those MoUs bear the signature of the complainant. It transpires that such documents are even otherwise subject matter of police investigation, and through these documents, at this stage, what is intended to be submitted on behalf of the petitioners is this that there was no intention of the petitioners to cheat the bank and whatever transactions, which came to be entered into between the petitioners and the bank was bonafide mercantile transaction. At this stage, as stated above, to decide whether the FIR is required to be quashed or not, normally the averments made in the FIR are required to be considered. It is further clear that at this stage, the Court has not to enter into a detailed inquiry as to whether the allegations made in the FIR are true or false.
12. Mr. Shah, learned advocate for respondent No.2 relied upon a case of Sushil Suri Vs. Central Bureau of Investigation & Anr. reported in (2011)5 SCC 708 and submitted that in a matter concerning a bank scam, Delhi High Court rejected the quashing of FIR and charge-sheet application filed by one of the accused persons, who was borrower and whose application u/s.482 of the Cr.P.C. came to be dismissed. When the matter was carried before the Hon'ble the Apex Court, the Hon'ble Apex Court observed that there was overwhelming material available on record showing that the Company and its Directors along with other persons conspired to forge, fabricate and use documents, in order to avail loan from the bank. In paragraph 9 in said decision, Hon'ble the Apex Court observed that merely because the Company and its Directors had repaid the loan to the bank, they could not be exonerated of the offences committed by them, at this stage. However, Mr. Thakkar, learned senior counsel for the petitioners submitted that considering the FIR in said case, there was clear allegation of forgery and creating false documents levelled against said petitioners accused, whereas so far as the instant FIR is concerned, no such clear allegations are there. Now, the brief contents of the FIR in the instant case have been discussed and dealt with above in this order, which would prima-facie reveal the mode and modus operandi and the means by which the alleged misappropriation of huge amount was made by the accused persons. In the FIR, there is also the allegation that as a part of the conspiracy, even the electronic records in the computer allegedly came to be altered and advances were made on the basis of forged cheques and bogus valuation reports. Under such circumstances, mere fact that part payment is made towards the outstanding amount, at this stage, considering the FIR as it is, it cannot be said that this fact is relevant to quash the FIR.
13. Mr.Thakkar, learned senior counsel for the petitioners submitted that the concept of vicarious liability is quite unknown to the criminal jurisprudence. It is submitted that in the instant case, all the family members, including even the daughters are arraigned as co-accused persons, who are petitioners herein. At this stage, there is no reference in the FIR that the lady member of the family played any role in the various incidents narrated in the FIR. In support thereof, my attention was drawn to the case of M/s. Thermax Ltd. Vs. K.M.Johny reported in J.T. 2011(11) SC 241. In paragraph 15 in its decision, Hon'ble the Apex Court relying upon an earlier decision of the Apex Court, examined the ingredients of Section 34 and Section 35 of the IPC and observed that a common intention refers to a prior concert or meeting of minds. It is submitted that in the instant case, the perusal of the FIR would reveal that even no allegation is made in it about any prior concert or meeting of minds on the part of the petitioners. In paragraph 21 in said decision, it has been specifically observed that the concept of vicarious liability is unknown to Criminal Law. Mr. Thakkar, learned senior counsel submitted that perusing the FIR, neither specific allegation is made against any of the petitioners nor any specific role is attributed to them in connection with any of the offences alleged against them. In this respect, perusing the FIR, as stated above, various modes and modus operandi adopted by the accused with the help of the original accused No.1 have been elaborately narrated. As stated above, whatever is narrated in the FIR qua the petitioners, have been elaborately tabularized in a statement produced by the respondent No.2 complainant in this matter at page 128 along with his affidavit-in-reply and as submitted by Mr. Raval, learned APP for respondent No.1 State, during the course of investigation, through the statements of officers of the bank, the police collected said statements wherein the names of the petitioners, prima-facie revealed as against 21 firms, whose accounts were opened in the bank by adopting the modes and modalities described in the FIR and the amount allegedly misappropriated and swindled. Under such circumstances, at this stage, when this much of material is forthcoming from the FIR and the police investigation is pending, this Court is of the opinion that it would be too premature to quash the FIR as requested by the petitioners.
14. Mr. Thakkar, learned senior counsel with Mr. Pathak, learned advocate for the petitioners submitted that as per the FIR, the alleged incident occurred between the year 2000 to 2008, whereas FIR came to be lodged in the year 2010 and, therefore, it is a suspiciously belated FIR. In this respect, my attention was drawn to a case of Vijay Hathising Shah Vs. The State of Gujarat & Ors.
decided by this Court on dated 1.2.2011 in Criminal Misc. Application No.13045 of 2006 with Criminal Misc. Application No.14831 of 2006. In the said case, the FIR came to be lodged approximately after 18 years from the date of the alleged offence. The complainant had knowledge about the commission of the offence, yet, the FIR came to be lodged after the lapse of 18 years. In the instant matter, it is true that, as per the FIR, the alleged offence took place between the year 2000 and March 2008 and the FIR came to be lodged on 31.5.2010. The perusal of the FIR would reveal that only when the team of R.B.I. audited and inspected the account of the bank and when the final report was submitted on dated 30.5.2008, modus operandi adopted to misappropriate large amount of the bank and the bank scam came to the surface. Mr. Shah, learned advocate for the respondent No.2 complainant submitted that as soon as in the report, those facts came to the surface, in January 2009, the bank sent a communication to Economic Cell and the same subsequently came to be registered as FIR on 31.5.2010. Considering the above facts, at this stage, it cannot be said that the FIR is suspiciously belated FIR, so that the same deserves to be quashed by exercising the inherent powers u/s.482 of the Cr. P.C.
15. Mr. Shah, learned advocate for respondent No.2 complainant relied upon a case of Ram Narayan Popli Vs. CBI reported in (2003)3 SCC 641.
Perusing said decision, it transpires that at the end of a trial, conviction came to be recorded for various offences regarding criminal breach of trust by public servant, cheating, forgery etc. pertaining to bank scam matter. However, the relevance of this decision is only to a limited extent in the instant petition u/s.482 of the Cr. P.C., that in that matter, it was one of the submissions on the part of the accused that a repayment was made. Hon'ble the Apex Court in paragraph 358 in said decision observed that the repayment itself is not an indication of lack of dishonest intention.
16. In the above view of the matter, this Court is of the opinion that the instant petition u/s.482 of the Cr. P.C., requesting quashing of the FIR deserves to be dismissed. It is hereby made clear that whatever observations which are made by this Court in this order, are confined only to decide as to whether the FIR, by exercising the inherent powers vested in this Court u/s.482 of the Cr. P.C should be quashed or not. In above view of the matter, by making this observation, this Court is of the opinion that the petition deserves to be dismissed.
17. For the foregoing reasons, the petition stands dismissed. Notice is discharged.
18. At this juncture, Mr. Pathak, learned advocate for the petitioners requests that the interim order earlier passed by this Court to the effect that the petitioners shall not be arrested in connection with the impugned complaint without permission of this Court, may be continued for a limited period so as to enable the petitioners to move the higher forum.
19. Considering the facts and circumstances of the case and in light of the above discussions, and further the fact that alternative efficacious remedy is available under the Cr. P.C., this request is not accepted.
(J.C.UPADHYAYA, J.) * Pansala.
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