Gujarat High Court
The Mehsana District Central Co Op Bank ... vs State Of Gujarat & on 11 July, 2014
Author: Sonia Gokani
Bench: Sonia Gokani
R/SCR.A/433/2009 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION No. 433 of 2009
With
SPECIAL CRIMINAL APPLICATION No. 434 of 2009
With
SPECIAL CRIMINAL APPLICATION No. 1479 of 2008
================================================================
THE MEHSANA DISTRICT CENTRAL CO OP BANK LTD....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
================================================================
Appearance:
MGIRISH K PATEL, ADVOCATE for the Applicant(s) No. 1
Mr SATISH A PANDYA, ADVOCATE for the Respondent(s) No. 2.1
Ms MOXA K THAKKAR APP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
================================================================
CORAM: HONOURABLE Ms. JUSTICE SONIA GOKANI
11th July 2014
ORAL ORDER
This group of petitions are being disposed of by this common order, as the law and the facts arising from each of them are identical. The facts emerging in Special Criminal No. 433 of 2009 shall be reproduced for the sake of understanding the issue.
The petitioner-Mehsana District Central Cooperative Bank Limited ["the Bank" for short] has challenged the order dated 12th December 2008 passed by the learned Addl. Sessions Judge, Mehsana in Criminal Revision Application No. 79 of 2008 whereby the revision application of the petitioner-Bank has been dismissed, confirming the order dated 12th May 2008 passed by the learned Chief Judicial Magistrate, Mehsana in Police Inquiry Case No. 52 of 2005 and thereby accepted the Page 1 of 6 R/SCR.A/433/2009 ORDER "C" Summary report dated 20th August 2006 submitted by the Investigation Officer, and therefore, these petitions in the following factual background.
The petitioner is a District level Central Cooperative Bank engaged in providing loan and financial facilities to its member-Societies. The petitioner-Bank had granted Clean Cash Credit Loan of Rs. 7,00,000/= to the respondent no.2-Gangotri Cooperative Credit Society Limited, Jagugan, Taluka & District-Mehsana ["the Society" for short], which is registered under the Gujarat Cooperative Societies Act, 1961. It is the case of the petitioner-Bank that the said Society was sanctioned Cash Credit Loan of Rs. 7,00,000/= on execution of relevant papers viz., Agreement for Clean Cash Credit Loan, Promissory Notes, Letters of Continuing Security, Personal Surety deed etc., in favour of the Bank. It is the case of the Bank that the amount so disbursed was to be used for fulfilling the objects of the Society and the Society was also required to produce all the books of account, registers, documents, stock of the goods, patraks, etc., whenever the authorized officers of the petitioner-Bank so demand for its inspection.
Despite repeated requests for inspection of these documents, the same had not been produced, nor the said Credit Society repaid the amount which had been lent to the Society. The respondent no. 2 also had not supplied monthly statements and number of communications have been sent to the Society, but, of no avail. It is further averred that the District Registrar, Cooperative Societies, Mehsana passed order of liquidation under Section 107 of the Gujarat Cooperative Societies Act, 1961 {"the Act" for short} and appointed the petitioner Bank as a Liquidator of the said Society under Section 108 of the Act. However, till the date, the respondent has not handed over the charge as also the material of the Society for which a Criminal Case No. 65 of 2008 is pending before the Court of learned Chief Judicial Magistrate, Mehsana for the offences punishable Page 2 of 6 R/SCR.A/433/2009 ORDER under Section 175 of the Indian Penal Code {"IPC" for short} read with Sections 147 & 148 of the Act. As the members of the Managing Committee of the Society failed to hand over the records of the Society to the petitioner-Bank, a private Complaint, being Police Enquiry No. 52 of 2005 came to be filed on 28 th November 2005 before the learned Chief Judicial Magistrate, Mehsana against the respondent nos. 2.1 & 2.2 and others for the offences punishable under Section 405, 415, 422, 144 IPC, wherein the learned Magistrate was pleased to direct the City Police Station, Mehsana to investigate the case under Section 156 (3) of the Code of Criminal Procedure {"CrPC" for short}.
After due investigation, the concerned Investigating Officer submitted "C" summary report under Section 173 CrPC to the learned Magistrate by observing that the dispute is of civil nature and no offence is made out. When such "C" summary was placed before the Court concerned, the Bank filed its objection to such report and the Court did not accede to the request made by the petitioner-Bank of not accepting such Summary by its order dated 12th May 2008.
Aggrieved by such an order of the Court, the petitioner-Bank preferred Revision Application No. 79 of 2008 before the learned Addl. Sessions Judge, Mehsana and the Court also chose to confirm the order of acceptance of "C" summary, rejecting the revision application.
Aggrieved Bank has preferred the present petitions under Article 227 of the Constitution of India read with Section 482 CrPC, and this Court, while admitting the same had also directed them to be read together.
Considering the material on record as also keeping in mind the law on the subject, these petitions deserve no entertainment for the reasons to follow hereinafter.
For and on behalf of the respondent, a decision of the Apex Court in case of Jagir Singh v. Ranbir Singh & Anr., reported in AIR 1979 SC 381 is pressed into Page 3 of 6 R/SCR.A/433/2009 ORDER service wherein the Apex Court has held and observed that when the Sessions Judge refuses to interfere with the order of the Magistrate, the High Court's jurisdiction is invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The objection of Section 397 (3) is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior Criminal Court is given the option to approach either the Sessions Judge or the High Court and once he exercises the option, he is precluded from invoking the revisional jurisdiction of other authority.
Before this Court, the petitioner has not approached invoking revisional jurisdiction under Section 397 (3) CrPC as otherwise, it would amount to permitting the petitioner to challenge the order of learned Magistrate, which has already been confirmed by the learned Addl. Sessions Judge, Mehsana. The petitioner has approached this Court against an order of revisional court invoking jurisdiction under Article 227 read with Section 482 CrPC. As far as maintenance of the petitions is concerned, the say of the respondent may not find favour with this Court, and therefore, that is no ground in outright rejection of these petitions.
As far as merit of the matters is concerned, it could be noticed from the facts themselves that the respondent could make out from the order of the learned Chief Judicial Magistrate so also from the order of the revisional Court that the investigating agency, when filed a report under Section 173 CrPC, it has found the case essentially of a civil nature.
A cooperative society which had been lent a huge amount of Rs. 7,00,000/= for the purpose of fulfilling the objects of the Society, could not repay despite various communications addressed by the Bank. The District Registrar has already passed an order appointing Bank to take over the charge, however, the Bank has already filed a Page 4 of 6 R/SCR.A/433/2009 ORDER Criminal Case complaining against the respondent-Society for its not handing over the charge. Such criminal case is pending till the date. Status of the said matter is not known to either side. Be that as it may, as far as the present complaint is concerned, the Investigating Agency has found out at the end of investigation that the Society was genuine and all the transactions that have been entered into with the Bank were in accordance with law, and therefore, no case is made out on criminal side. Further, the Bank has not chosen to pursue any remedy on civil side for recovery of the said outstanding dues. Both, the learned Chief Judicial Magistrate in his order accepting C- Summary and the revisional court while confirming such order of C-Summary of the learned Chief Judicial Magistrate have dealt with in detail their satisfaction of acceptance of such a report of the Investigating Agency. They are in no error in coming to the conclusion against the petitioner-Bank. The Bank, if has not been able to take over the charge, all legal remedies are already available to the same and the same has already been resorted to and merely because no recovery is forthcoming that surely cannot be a ground for the Bank to take recourse to criminal complaint.
Reference, at this stage, needs to be made that in respect of other two Special Criminal Applications, wherein, the Bank had already preferred Lavad Suits and the decree also has been passed against the Society. However, no execution of such decree could be made possible on account of want of any property in possession of the Society. This further vindicates both the impugned orders which empathetically hold that the dispute is essentially of civil nature.
These petitions resultantly fail and the same are disposed of. Rule nisi issued in each case stands discharged with no order as to costs.
{Ms. Sonia Gokani, J.}
Page 5 of 6
R/SCR.A/433/2009 ORDER
Prakash*
Page 6 of 6