Gujarat High Court
Vipul Occhavlal Trivedi Thro ... vs State Of Gujarat on 20 September, 2023
NEUTRAL CITATION
R/SCR.A/11632/2021 ORDER DATED: 20/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 11632 of 2021
With
R/CRIMINAL MISC. APPLICATION NO. 18987 of 2017
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VIPUL OCCHAVLAL TRIVEDI THRO INDRAVADAN BHAILALBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
SPECIAL CRIMINAL APPLICATION NO. 11632 of 2021
MR MOUSAM R YAGNIK(3689) for the Applicant(s) No. 1
MR RC KODEKAR(1395) for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
CRIMINAL MISC.APPLICATION NO. 18987 of 2017
MR DIVYESH SEJPAL (3689) for the Applicant(s) No. 1
MS SANGEETA PAHWA, for the Respondent(s) No. 2
MR RC KODEKAR(1395) for the Respondent(s) No. 3
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 20/09/2023
COMMON ORAL ORDER
1. Today, when these matters were called out, learned Advocates for the parties made a joint request to take-up the same for final hearing and therefore, the same are taken-up for final hearing.
2. Rule. Learned APP waives service of rule for the Respondent-State and learned Advocate, Mr. Kodekar, waives for the Respondent-CBI.
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3. At the outset, learned Advocate, Mr. Sejpal, appearing for the applicants in Criminal Misc. Application No. 18987 of 2017 submitted that Applicant No.4 - Mr. A.P. Patel has passed away.
3.1 In above view of the matter, Criminal Misc. Application No. 18987 of 2017 is, now, considered qua Applicant Nos. 1 to 3, only.
4. Criminal Misc. Application No. 18987 of 2017 is filed, seeking to quash the FIR, being RC-24(A)/2002- GNR, registered with CBI, Gandhinagar Police Station, as well as the proceedings of CBI Special Case No. 27 of 2004, pending before the CBI Court, Gandhinagar.
4.1 The brief facts of the case are that Respondent No.2-National Small Industries Corporation ('NSIC' in brief), which is a Government of India enterprise and which is under the control of Ministry of Small Scale Industry, Government of India, is engaged in the promotion and development of small scale industries through its all India network of regional offices and branch offices.
4.2 It appears that Applicant No.1 made an application for finance of Rs.140/- lakh under Raw Material Assistance Scheme ('RMA Scheme', herein after). Initially, the officers of Respondent No.2 sanctioned the limit of Rs.35/- lakh and the same was Page 2 of 9 Downloaded on : Fri Sep 22 20:40:53 IST 2023 NEUTRAL CITATION R/SCR.A/11632/2021 ORDER DATED: 20/09/2023 undefined disbursed to Applicant No.1 and was duly repaid with interest by the applicants.
4.3 Thereafter, Applicant No.1 availed financial assistance to the tune of Rs.68,14,236/- from Respondent No.2 between the period from 21.02.1995 to 05.09.1995. It may be noted that out of the aforesaid amount, Applicant No.1 repaid Rs.38,15,123/- till the date of the filing of the impugned FIR, i.e. on 25.07.2002.
4.4 According to the first informant, there is also Rs.51,69,303/- outstanding, which also included the amount towards interest. On failure of payment of the same, impugned FIR was lodged, alleging the commission of offences under Sections 420, read with Section 120B, of the Indian Penal Code as well as under Section 13 of the Prevention of Corruption Act, 1988, as some of the officers of Respondent No.2-NSIC were also joined as accused in the said FIR.
4.4.1 Respondent-CBI carried out the investigation and on completion of the same, filed the charge-sheet on 23.12.2004, which culminated into CBI Special Case No. 27 of 2004, and which is pending before the CBI Court, Gandhinagar.
4.2 Subsequently, it appears that Applicant No.1 and Respondent No.2-NSIC arrived at an amicable Page 3 of 9 Downloaded on : Fri Sep 22 20:40:53 IST 2023 NEUTRAL CITATION R/SCR.A/11632/2021 ORDER DATED: 20/09/2023 undefined settlement and apropos to the same, it was agreed to settle the entire dispute on payment of Rs.1,00,00,000/- (Rupees One Crore Only), which is already paid by Applicant No.1 to Respondent No.2- NSIC. Pursuant to the same, Respondent No.2-NSIC has also issued a 'No Due' certificate to Applicants on 21.04.2015. Thus, on the financial front, the applicants have paid the more amount than what they are supposed to pay to Respondent No.2-NSIC. Hence, the present petition is filed for quashing of the impugned FIR.
5. Learned Advocate, Mr. Sejpal, appearing for the Applicant Nos. 1 to 3 submitted that it is not the case that there was any sort of forgery committed for the purpose of availing financial assistance from Respondent No.2-NSIC. It was submitted that it is simply a case of delay in repayment and therefore, the provisions of Section 420 of the IPC shall not be attracted.
5.1 It was, further, submitted that the Applicants have paid the more amount that they were required to pay and as such, there is no loss caused to the public exchequer.
5.2 It was submitted that out of the total financial assistance of Rs.68,14,236/- availed by the applicants, they have already repaid Rs.38,15,123/- as on 25.07.2002 and therefore, at the most, the Page 4 of 9 Downloaded on : Fri Sep 22 20:40:53 IST 2023 NEUTRAL CITATION R/SCR.A/11632/2021 ORDER DATED: 20/09/2023 undefined proceedings for recovery of the remaining or outstanding amount could have been initiated.
5.3 It was submitted that, essentially, the dispute between the parties is of civil nature and there is no element of criminality in it.
5.4 It was submitted that the Applicants had fully repaid the amount of financial assistance, availed by them during the first round and due to certain unavoidable circumstances, the delay in repayment is caused during the second round.
5.5 Learned Advocate, Mr. Sejpal, invited the attention of this Court to the order of this Court, Dated:27.10.2015, rendered in Criminal Misc. Application No. 14324 of 2015, where, the similarly situated persons had approached this Court and this Court allowed the said application. It was, therefore, prayed that no fruitful purpose would be served by continuing the criminal prosecution against the applicants and hence, this application may be allowed.
6. Per contra, learned Standing Counsel, Mr. Kodekar, appearing for Respondent-CBI strongly opposed the application and submitted that merely because the amount is repaid by way of settlement is not sufficient to quash the criminal prosecution.
Page 5 of 9 Downloaded on : Fri Sep 22 20:40:53 IST 2023NEUTRAL CITATION R/SCR.A/11632/2021 ORDER DATED: 20/09/2023 undefined 6.1 It was submitted that many cases, like the present one involves criminal as well as civil liability and more particularly, when some of the officers of Respondent No.2-NSIC are alleged to be involved. It was, therefore, prayed that this application be rejected.
7. Learned Advocate, Ms. Sangeeta Pahwa, appearing for Respondent No.2 submitted that, though, the settlement has been arrived at by and between the Applicants and Respondent No.2, but, it is subject to the condition that it will not affect any rights of the complainant regarding criminal prosecution and the Applicants, themselves, have agreed to the same. It was, therefore, submitted that merely by repaying the amount, the Applicants cannot escape from the criminal liability, especially, when some of the officers of Respondent No.2-NSIC are also alleged to be involved in the same.
7.1 Learned Advocate, Ms. Pahwa, fairly submitted that amount paid by the Applicants, as per the terms of settlement, is more than the amount, which was disbursed by Respondent No.2-NSIC by way of financial assistance to Applicant No.1. However, she submitted that the order of this Court, passed in Criminal Misc. Application No. 14324 of 2015 and relied on by the learned Advocate for the applicant will not help them, since, in the said matter NSIC, itself, had shown Unwillingness to continue the prosecution, Page 6 of 9 Downloaded on : Fri Sep 22 20:40:53 IST 2023 NEUTRAL CITATION R/SCR.A/11632/2021 ORDER DATED: 20/09/2023 undefined whereas, in the present matter, it is not the case. It was, therefore, prayed that this Court may not exercise discretion in favour of the applicants.
8. Having heard the learned Advocates for the parties and having perused the material on record, it would be relevant to refer to the observations made by the Coordinate Bench of this Court in its order dated 27.10.2015, passed in Criminal Misc. Application No. 14324 of 2015, which reads thus;
"4. It appears that the officials of the Corporation have also been arraigned as accused and they have been charged for the offence punishable under the provisions of the Prevention of Corruption Act, 1988. The only case against the applicants herein is that the Company failed to make the payment of the balance dues of Rs.1,86,52,960/- and the officials of the Corporation failed to recover such dues on account of which the Corporation suffered monetary loss.
5. Mr. Thakkar, the learned counsel appearing for the Corporation submitted that pursuant to a settlement arrived at between the Corporation and the applicants, a figure was arrived at and the entire amount according to the understanding has been deposited by the applicants. He also invited my attention to the No-due Certificate issued by the Corporation in favour of the applicants dated 16th April, 2015 which is at Annexure-C to this petition. He further pointed out that the accusation even Page 7 of 9 Downloaded on : Fri Sep 22 20:40:53 IST 2023 NEUTRAL CITATION R/SCR.A/11632/2021 ORDER DATED: 20/09/2023 undefined according to the charge-sheet against the applicants is only with regard to failure to repay the amount of loan availed of from the Corporation. There are no allegations of any forgery or any false representation by the applicants at the time when the loan was availed of.
6. Taking into consideration the nature of the offence and the fact that the Corporation, pursuant to a settlement, has been able to recover the amount from the applicants and the Corporation itself does not want to proceed further, no useful purpose would be served to continue with the prosecution so far as the applicants are concerned.
7. In the result, this application is allowed. The proceedings of the Special Case No.12 of 2005 pending in the C.B.I Court at Ahmedabad arising from a complaint bearing Crime RC No.14(A)/2002-GNR lodged at the CBI/SRE/Gandhinagar Police Station on 04-07- 2002 for the offences punishable under Section 120B r/w section 420 of the Indian Penal Code and sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 pending in the court of the learned Special Judge, C.B.I, Court No.4, Ahmedabad are hereby ordered to be quashed so far as the applicants are concerned. Rule is made absolute accordingly."
8.1 In above view of the matter, this Court is of the considered view that this is a fit case to exercise the discretion in favour of the applicants, Page 8 of 9 Downloaded on : Fri Sep 22 20:40:53 IST 2023 NEUTRAL CITATION R/SCR.A/11632/2021 ORDER DATED: 20/09/2023 undefined more particularly, when the Applicants have already paid more amount than the amount they were required to pay with interest, in view of the decision in case of Gian Singh V/s State of Punjab & Anr. Reported in (2012) 10 SCC 303 and Nikhil Merchant V/s Central Bureau of Investigation & Anr. Reported in 2009(1) GLH 31, the trial would be futile and any further continuation of proceedings would amount to abuse of process of law. Therefore, the impugned F.I.R. is required to be quashed and set aside.
9. Resultantly, Criminal Misc. Application No. 18987 of 2017 is ALLOWED and the FIR, being RC- 24(A)/2002-GNR, registered with CBI, Gandhinagar Police Station, as well as the proceedings of CBI Special Case No. 27 of 2004, pending before the CBI Court, Gandhinagar, are quashed and set aside. Rule is made absolute, accordingly.
10. In view of the above, learned Advocate, Mr. Yagnik, appearing for the petitioner in Special Criminal Application No. 11632 of 2021, does not press the same and the same also stands disposed of as not pressed, accordingly. Rule is discharged.
(SANDEEP N. BHATT,J) UMESH/-
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