Kerala High Court
Savithri vs Paravur Taluk Co Operative ... on 15 March, 2024
Author: N. Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 15TH DAY OF MARCH 2024 / 25TH PHALGUNA, 1945
CRL.REV.PET NO. 179 OF 2021
AGAINST THE ORDER DATED 13.11.2019 IN MP NO.2523 OF 2019
OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, NORTH PARAVUR
REVISION PETITIONER:
SAVITHRI
AGED 74 YEARS
W/O.JAYARAM, ODASSERRY HOUSE,
MOOTHAKUNNAM P.O., MOOTHAKUNNAM VILLAGE,
PARAVUR TALUK, PIN - 683 516.
BY ADVS.
M.M.MONAYE
SRI.M.PAUL VARGHESE
RESPONDENTS:
1 PARAVUR TALUK CO OPERATIVE AGRICULTURAL AND
RURAL DEVELOPMENT BANK LTD.NO. 1153
NORTH PARAVUR, REPRESENTED BY ITS SECRETARY
MOHANDAS.
2 A.D.DILEEPKUMAR
AGED 57 YEARS, AANNDALATH HOUSE, MADAPLATHURUTH
KARA, MOOTHAKUNNAM VILLAGE, MOOTHAKUNNAM P.O.,
PRESIDENT, PARAVUR TALUK CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK
LTD.NO.1193, NORTH PARAVUR.
3 MOHANDAS
SECRETARY, PARAVUR TALUK CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK
LTD.NO.1193, NORTH PARAVUR.
4 MANI
KARUMALLOOR, ASSISTANT SECRETARY, PARAVUR TALUK
CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK LTD.NO.1193, NORTH PARAVUR.
5 ANVAR
MANNAM, CLERK, PARAVUR TALUK CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK
LTD.NO.1193, NORTH PARAVUR.
Crl.R.P. No.179/2021
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6 RENJU @ MANJU
W/O.RATHEESH, KANDIL HOUSE, MADAPLATHURUTH
KARA, MOOTHAKUNNAM P.O., CLERK, PARAVUR TALUK
CO-OPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT
BANK LTD.NO.1193, NORTH PARAVUR.
BY ADVS.
ANOOP.V.NAIR
DEVI P.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
Crl.R.P. No.179/2021
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N. NAGARESH, J.
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Crl.R.P. No.179 of 2021
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Dated this the 15th day of March, 2024
ORDER
~~~~~~ The revision petitioner is the complainant in MP No.2523/2019 on the files of the Judicial First Class Magistrate's Court-I, North Paravur. The petitioner is aggrieved by the order dated 13.11.2019 of the Magistrate's Court.
2. The revision petitioner filed a complaint against the respondents/accused invoking Section 190 Cr.P.C. alleging that the respondents have committed offences under Sections 403, 409, 420, 464, 468 and 471 read with Section 34 IPC. The petitioner alleged that she availed three loans from the 1st respondent-Society. A house maintenance loan of ₹3,00,000/-, an overdraft facility of ₹50,000/- and another Crl.R.P. No.179/2021 :4: loan of ₹1,00,000/- were taken. The OD loan was closed on 31.11.2013 and the loan of ₹1,00,000/- was closed on 27.02.2015. Even after remitting ₹9,24,000/-, the housing loan granted to the petitioner shows outstanding amounts. On enquiry, the petitioner found that the respondents deceived the petitioner by fraudulently and dishonestly inducing her to put signatures in blank papers and created five more fraudulent loans in the name of the revision petitioner. The petitioner had deposited title deed of property with the respondents and the respondents dishonestly converted that property for their own use.
3. The revision petitioner had remitted ₹9,24,000/- towards loan. The remitted amounts were not credited in the actual loan accounts. Thus, the accused extracted more amounts from the revision petitioner than the actual liability.
4. The Judicial First Class Magistrate's Court examined the petitioner, her husband and son. The Magistrate's Court found that the complainant and her witnesses have no case in court as to making of false Crl.R.P. No.179/2021 :5: documents by accused 4 to 6. The petitioner did not take care to produce alleged false documents which is the best evidence. The sworn statements of the petitioner and witnesses are contradictory. On these premises, the learned Magistrate held that the petitioner has failed to make out a prima facie case of offences punishable under Sections 403, 409, 420, 468, 464 and 471 IPC read with Section 34 IPC. Consequently, the Magistrate held that there is no sufficient ground to proceed against the accused. The complaint was therefore dismissed as per order dated 13.11.2019.
5. The counsel for the petitioner argued that the lower court failed to note that the respondents have committed criminal breach of trust. According to the counsel for the petitioner, ingredients of the offence of false document or of cheating are satisfied in the complaint submitted by the petitioner.
6. It is argued that the Magistrate committed a serious error in not conducting investigation for the offences under Sections 403, 409, 420, 464, 468 and 471 read with Crl.R.P. No.179/2021 :6: Section 34 IPC. When a complaint is filed, the Magistrate should first examine the complainant and thereafter the respondents. The learned Magistrate ought to have directed police investigation.
7. Relying on the judgment in Mustafa Rahim v. Motilal Chunilal [Criminal Application for Revision No.44 of 1907] of the Hon'ble High Court of Bombay, the counsel for the petitioner contended that reasons for dismissing a complaint should be based on inferences of fact arising from or disclosed by the complaint, the examination of the complainant and the investigation, if any, made under Section 202.
8. In Bagadi Narasinga Rao v. Kinjarapu Varaprasad and others [Criminal Revision Case No.233 of 2002] which is a case decided by the Hon'ble High Court of Andhra Pradesh, it was held that while examining an application under Section 202, the trial court is required to examine as to whether the complaint and sworn statements disclose any case of which congnizance can be taken. It is Crl.R.P. No.179/2021 :7: the duty of the Magistrate receiving a complaint to enquire into the case or direct investigation before summoning the accused, pointed out the counsel for the revision petitioner.
9. Respondents 1 to 4 entered appearance and resisted the Crl.R.P. The respondents submitted that the petitioner had made her husband and her son sureties, for taking loan. Six loans were taken from the Bank. After utilising the loan amount, the petitioner has defaulted in repayment. The petitioner herself and her husband and son stood as sureties mutually and had availed loan facility. The trial court passed the order after considering all the contentions. Statement of the petitioner was taken. Statement was taken from the petitioner's husband and son as well. The court below did not find sufficient evidence to proceed with the complaint. The dismissal of MP No.2523/2019 is therefore fully justified.
10. I have heard the learned counsel for the petitioner and the learned counsel appearing for respondents 1 to 4 and 6.
Crl.R.P. No.179/2021:8:
11. The petitioner filed complaint alleging that she has availed a housing loan, an overdraft facility and another loan from the 1st accused-Bank. The petitioner alleged that at the time of taking three loans, signed blank papers were obtained from the petitioner. The specific allegation of the petitioner is that accused 4 to 6, who are Clerks of the Bank, as per the directions of accused 2 and 3, the President and Secretary respectively of the Bank, made false documents using the signed blank papers and created four other loans in the name of the petitioner. The respondents thus dishonestly induced the petitioner to pay more than what is due from the petitioner.
12. The Magistrate examined the petitioner and her husband and son as CWs 1 to 3. After examining the petitioner and her husband and son, the court found that the petitioner has failed to make out a prima facie case of offences punishable under Sections 403, 409, 420, 468, 464 and 471 read with Section 34 IPC. The Magistrate found that there are no sufficient grounds to proceed against the Crl.R.P. No.179/2021 :9: accused persons.
13. The specific case of the petitioner in her complaint is that accused 4 to 6, as per the directions of the 2 nd and 3rd accused, made false documents using signed blank papers which were given as security at the time of availing three loans. However, the sworn statements given by CWs 1 to 3 did not contain any averment of making false document by accused 4 to 6 as per the directions of accused 2 and 3. The petitioner and her witnesses had not put forth a case in the court, of making false documents by accused 4 to 6, as per the directions of accused 2 and 3.
14. As rightly pointed out by the Magistrate, the petitioner did not cause to produce the alleged false documents before the court.
15. The case of the revision petitioner and her son in their statements was that the petitioner gave signed blank papers as security which was misused by the respondents. However, the husband of the petitioner (CW2) deposed that he himself availed loan and during the repayment period of Crl.R.P. No.179/2021 : 10 : the loan, he and wife (revision petitioner) gave signed blank papers as security. The sworn statements of the witnesses were contradictory.
16. To constitute an offence under Section 420 IPC, there should not only be cheating but as a consequence of such cheating, the accused should have dishonestly induced the person deceived to deliver any property or to make alter or destroy valuable security. The statements given by the witnesses before the court did not contain the exact amount defrauded from the petitioner. The petitioner did not cause to produce the account statement or receipt of payments before the court, in order to make out a prima facie case. The revision petitioner did not take care to cause to produce even the alleged signed blank papers.
17. The complaint filed by the petitioner and the statements given before the court were contradictory and did not establish a prima facie case. When the revision petitioner failed to establish prima facie case, the petitioner cannot contend that there is no reason to dismiss the Crl.R.P. No.179/2021 : 11 : complaint. The court below considered the facts disclosed in the complaint and the statements made by the witnesses. It was based on a proper analysis of the complaint and the statements that the court below has dismissed the complaint. The judgment in Mustafa Rahim (supra) relied on by the petitioner therefore cannot have any application.
18. The court below found that the complaint and sworn statements did not disclose sufficient cogent materials to take cognizance of the offences alleged by the petitioner. The Magistrate has properly analysed the complaint and the evidence on record. It is only when the materials available disclose prima facie case that the Magistrate need to order investigation. The Magistrate dismissed the complaint as the complaint given by the petitioner and the statements made by CWs 1 to 3 were contradictory. The petitioner failed to produce prima facie material to proceed with the investigation against the respondents.
19. In the facts of the case, I find that the order dated 13.11.2019 passed by the Judicial First Class Magistrate's Crl.R.P. No.179/2021 : 12 : Court-I, North Paravur in MP No.2523/2019 is just and proper. I find no reason to interfere in the matter under Sections 397, 398 or 401 of the Code of Criminal Procedure.
The Criminal Revision Petition is therefore dismissed.
Sd/-
N. NAGARESH, JUDGE aks Crl.R.P. No.179/2021 : 13 : APPENDIX OF CRL.REV.PET 179/2021 PETITIONER'S ANNEXURES Annexure R1(g) TRUE COPY OF THE LOAN SANCTIONED FOR AN AMOUNT OF RS.3,00,000/-(RUPEES THREE LAKHS ONLY) ON 15.02.2013, RS. 3 LAKHS WAS DISPERSED, BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO. 297/12-13-
NHP WITH LOAN NO. PRNH 275/2012-13,
Annexure R1(h) TRUE COPY OF THE LOAN SANCTIONED FOR
AN AMOUNT OF RS.70,000/-(RUPEES
SEVENTY THOUSAND ONLY) ON 15.02.2013 , RS.50,000/- WAS DISPERSED, BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO. 111/12-13- CCS WITH LOAN NO. PRCS 110/2012-13, Annexure R1(i) TRUE COPY OF THE LOAN SANCTIONED FOR AN AMOUNT OF RS.1,00,000/-(RUPEES ONE LAKHS ONLY) ON 04.02.2014, RS.1 LAKH WAS DISPERSED, BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO. 127/13-14/CCS WITH LOAN NO. PRCS 115/2013-14, Annexure R1(j) TRUE COPY OF THE LOAN SANCTIONED FOR AN AMOUNT OF RS.50,000/-(RUPEES FIFTY THOUSAND ONLY) ON 04.02.2014, RS.50,000/- WAS DISPERSED, BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO. 108/13-14- PCC WITH LOAN NO. PRCC 105/2013-14, Annexure R1(k) TRUE COPY OF THE LOAN SANCTIONED FOR AN AMOUNT OF RS.1,00,000/-(RUPEES ONE LAKH ONLY) ON 09.04.2014, RS. 1 LAKH WAS DISPERSED BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO.8/14-15/PCL WITH LOAN NO. PRCL007-2014-2015, Crl.R.P. No.179/2021 : 14 : Annexure R1(l) TRUE COPY OF THE LOAN SANCTIONED FOR AN AMOUNT OF RS.1,00,000/-(RUPEES ONE LAKH ONLY) ON 27.02.2015, RS. 1 LAKH WAS DISPERSED BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO. 224/14-15/CCS WITH LOAN NO. PRCS 213/2014-15, Annexure R1(m) TRUE COPY OF THE LOAN SANCTIONED FOR AN AMOUNT OF RS.1,00,000/-(RUPEES ONE LAKH ONLY) ON 25.02.2016, RS. 75,000/- WAS DISPERSED, BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO. 337/15-16/CCS WITH LOAN NO. PRCS 330/2015-16, Annexure R1(n) TRUE COPY OF THE LOAN SANCTIONED FOR AN AMOUNT OF RS.1,00,000/-(RUPEES ONE LAKH ONLY) ON 28.03.2017, RS. 75,000/- WAS DISPERSED, BEARING MEMBERSHIP NO. 10577 IN THE NAME OF THE PETITIONER WITH L.A.NO. 326/16-17/CCS WITH LOAN NO. PRCS 325/2016-17, RESPONDENT'S ANNEXURES Annexure R1(o) TRUE COPY OF THE ACCOUNT STATEMENT OF THE PETITIONER AS ON 03/10/2023 Annexure R1(p) TRUE COPIES OF THE VOUCHERS OF 6 LOANS IN WHICH GEHAN DETAILS ARE SHOWN, ALONG WITH A SUMMARY OF LOAN DETAILS, UPON WHICH GEHAN IS REGISTERED Annexure R1(q) . TRUE COPY OF THE TWO LOAN ACCOUNTS, AMOUNTS RECEIVED BY PETITIONER, THROUGH CHEQUES Annexure R1(r) TRUE COPY OF THE RENEWED LOAN APPLICATION PETITIONER'S ANNEXURES Annexure R1A TRUE COPY OF THE LOAN APPLICATION BEARING NO. 105771/0578 DATED 05.02.2013 AMOUNT SANCTIONED RS.
3,000,00/-(THREE LAKHS ONLY) SUBMITTED BY SAVITHRI TO THE RESPONDENT BANK Crl.R.P. No.179/2021 : 15 : RESPONDENT'S ANNEXURES Annexure R1B TRUE COPY OF THE LOAN APPLICATION BEARING NO. PCC 108/13-17 DATED 28.01.2014 AMOUNT SANCTIONED RS.
50,000/-(RUPEES FIFTY THOUSAND ONLY) SUBMITTED BY THE SAVITHRI TO THE RESPONDENT BANK.
Annexure R1 (C) TRUE COPY OF THE CONSUMER LOAN APPLICATION BEARING NO. PCC 8/2014-15 DATED 09.04.2014 AMOUNT SANCTIONED RS.
1,000,00/-(RUPEES ONE LAKH ONLY)
SUBMITTED BY SAVITHRI TO THE
RESPONDENT BANK.
Annexure R1(D) TRUE COPY OF THE LOAN APPLICATION
BEARING NO. 224/14-15 DATED 27.02.2015 AMOUNT SANTIONED RS. 1,000,00/-(RUPEES ONE LAKH ONLY) SUBMITTED BY SAVITHRI TO THE RESPONDENT BANK.
Annexure R1(E) TRUE COPY OF THE LOAN APPLICATION BEARING NO.337/15- 16 DATED 25.02.2016 AMOUNT SANCTIONED RS. 1,000,00/-(ONE LAKH ONLY) SUBMITTED BY SAVITHRI TO THE RESPONDENT BANK.
Annexure R1 F TRUE COPY OF THE LOAN APPLICATION BEARING NO. 326/16/17 DATED 28.03.2017 AMOUNT SANCTIONED RS. 1,000,00/-
(RUPEES ONE LAKH ONLY) SUBMITTED BY SAVITHRI TO THE RESPONDENT BANK.
PETITIONER'S ANNEXURES Annexure A1 TRUE COPY OF THE APPLICATION SENT TO THE ASSISTANT REGISTRAR CO-OPERATIVE SOCIETIES PARUR DATED 04.02.2020.
Annexure A2 TRUE COPY OF THE COVERING LETTER OF
THE PARAVUR TALUK CO-OPERATIVE
AGRICULTURAL AND RURAL DEVELOPMENT BANK LTD. NO. 1193 DATED 20.02.2020. Annexure A3 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING NHP 297/12- 13 DATED 31.01.2013 Crl.R.P. No.179/2021 : 16 : Annexure A4 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING CCS NO.
111/12-13 DATED 05.02.2013 Annexure A5 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING NO. PCC 108/13-17 DATED 28.01.2014 ANNEXURE A6 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING CCS NO .
127/13-14 DATED 28.01.2014.
ANNEXURE A7 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING NOPCL 8/2014-15 DATED 09.04.2014.
Annexure A8 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING CCS NO.
224/14-15 DATED 27.02.2015.
ANNEXURE A9 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING CCS NO.
337/15-16 DATED 25.02.2016.
ANNEXURE A10 TRUE COPY OF THE LOAN APPLICATION RECEIVED FROM BANK BEARING CCS NO.
326/16-17 DATED 28.03.2017.
Annexure A11 TRUE COPY OF THE STATEMENTS OF REMITTANCE DURING THE PERIOD FROM 31.01.2013 TO 07.11.2017.
Annexure A12 TRUE COPY OF THE TRANSACTION DETAILS STATEMENT RECEIVED FROM BANK WITH REGARD TO HOUSE LOAN FROM 01.03.2013 TO 01.11.2017.
Annexure A2 TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO. 297/13-13/NHP Annexure R1 (g) TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO. 297/12-13/NHP Annexure R1(h) TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO.111/12-13/CCS Annexure R1(i) TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO. 127/13-14/CCS ANNEXURE R1(j) TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO. 108/13-14/CCC ANNEXURE R1K TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO.8/14-15/CCL ANNEXURE R1(l) TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO.224/14-15/CCS Crl.R.P. No.179/2021 : 17 : Annexure R1(m) TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO.337/15-16/CCS Annexure R1(n) TRUE COPY OF THE LOAN LEDGER BEARING L.A. NO.326/16-17/CCS