Gauhati High Court
Page No.# 1/ vs Reserve Bank Of India on 6 January, 2025
Page No.# 1/10
GAHC010003542012
2025:GAU-AS:99
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./105/2012
KARUNA KR. SAIKIA and 10 ORS
NEW AMOLAPATTY, GOLAGHAT, CHAIRMAN OF GOLAGHAT URBAN CO-
OPERATIVE BANK LTD. FOR THE PERIOD 2007-2008
2: SRI PRADIP BAKLIWAL
STATION ROAD
GOLAGHAT
CHAIRMAN OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
PERIOD 2008-2010
3: SRI PRADIP GOSWAMI
NEW AMOLAPATTY
GOLAGHAT
CHAIRMAN OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
PERIOD 2008.
4: SRI TARUN CH DUTTA
SANTIPUR BYE LANE NO.1
GOLAGHAT
MANAGING DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK
LTD. FOR THE PERIOD 2008-2010
5: SRI NAGEN SARMAH
TAPAN NAGAR
GOLAGHAT
DEVELOPMENT DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK
LTD. FOR THE PERIOD 2007-2010.
6: SRI PRAFULLA CH. CHETIA
PANCH ALI
NEW AMALAPATTY
GOLAGHAT
DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
Page No.# 2/10
PERIOD 2007-2009.
7: SRI ROMENDRA PRASAD BORUAH
NEW AMALAPATTY
GOLAGHT
DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
PERIOD 2007-2009.
8: DR. MAKHAN BORDOLOI
HOSPITAL ROAD
GOLAGHAT
DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
PERIOD 2007-2009.
9: SRI JAYANTA TANTI
HATIKHOWA TEA ESTATE
DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
PERIOD 2007-2009.
10: SRI BHAGABATTY BALLAV GOSWAMI
JONAKI NAGAR
GOLAGHAT
DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
PERIOD 2007-2009.
11: SRI PROMUD KR. KHOUND
DERGAON
GOLAGHAT
DIRECTOR OF GOLAGHAT URBAN CO-OPERATIVE BANK LTD. FOR THE
PERIOD 2007-2009
VERSUS
RESERVE BANK OF INDIA
A STATUTORY BODY CONSTITUTED BY R B I ACT, 1934 DULY
REPRESENTED BY SRI P SHIMRAH, DEPUTY GENERAL MANAGER,
URBAN BANKS DEPARTMENT, RESERVE BANK OF INDIA.
Advocate for the Petitioner : MRS.K M TALUKDAR, MR.T J MAHANTA,MR.M KHATANIAR
Advocate for the Respondent : MR.B J MUKHERJEE, MR.S S SHARMA,MRA SHARMA,,MS.L
SHARMA
Page No.# 3/10
BEFORE
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Petitioner : None appears.
For the Respondents : Mr. H. Buragohain, Advocate.
Date of Hearing : 06.01.2025
Date of Judgement : 06.01.2025.
JUDGMENT & ORDER (ORAL)
1. None appears for the petitioners on call, though Mr. H. Buragohain, learned counsel is present representing the sole respondent i.e. Reserve Bank of India.
2. It is seen from the record that on 23.06.2020, the learned counsel for the petitioner had made a submission before this Court that the brief has been taken by the petitioner from the learned counsel long back. Thereafter, when the matter was listed on 18.04.2024, none represented on behalf of the petitioner. Today also, none appears for the petitioner. In view of the aforesaid, this Court has taken up this matter for hearing on merit.
3. The present application under Section 482 read with Sections 397 and 401 of Code of Criminal Procedure, 1973 is filed for quashing the proceeding of C.R. Case No. 1767/2011 under Section 465/34 IPC read with Sections 46/47 of the Banking Regulation Act, 1949 pending before the Court of learned Sub Divisional Judicial Magistrate (S), Golaghat. The Page No.# 4/10 further challenge is an order dated 25.11.2011, passed by the learned Sub Divisional Judicial Magistrate (S), Golaghat in the aforesaid C.R. case, whereby cognizance of offence under Section 465/34 IPC read with Sections 46/47 of the Banking Regulation Act, 1949 was taken against the accused petitioners.
4. The brief facts which are stated in the complaint and necessary for the determination of the present petition are recorded herein below:-
I. The accused No. 1/M/s Golaghat Urban Co-operative Bank, was registered as co-operative society under the provisions of Assam Co- operative Societies Act 1949 on 21.05.1997 and issued a licence on 17.10.1997 as a primary co-operative bank to carry banking business in India under Section 22 of the Banking Regulation Act, 1949 (hereinafter referred to as Act, 1949). Accused Nos. 2 to 13 are the Chairman, Managing Directors, Manager, Directors etc. of the first accused who are/were responsible for the day to day conduct of the first accused bank's affairs and are/were well aware of the facts and circumstances of the case.
II. In terms of R.B.I. Circular UBD No.CO.POT.P.C.B. Cir.48/09.29.00/2001-02 dated June 11, 2002 the certificate of holding of Government and other approved securities maintained by the co-operative banks in compliance with section 24 of the Act, 1949 are to be submitted to the complainant within one month from that quarter. The first accused bank never submitted any certificate of holding of Government securities to the complainant. The Form No. 1 (i.e. the statement of compliance with the sections 18&240 was Page No.# 5/10 submitted by the accused No. 1 to the complainant. However lot of discrepancies have been pointed out in Form No. 1. The accused No. 1 has thus violated section 24 of the Act 1949 read with Section 46(1) and furnished false information with an intension to harm the interest of the depositors and to mislead RBI.
III. As on 31.03.2010 the accused No. 1 had invested Rs. 2.00 Lakh in GoI securities and Rs. 1.00 Lakh in State Government securities. As per the circular No. UBD(PCB) CO BPD Cir No. 18/16.26.00/2008-09 dated 26.11.2008 the Non Scheduled Tier 1 bank (the first accused is a non scheduled tier 1 bank) shall maintain SLR for compliance with Section 24 of the Act, 1949 in the form of Government and other approved securities not less than 15% of their Demand & Time Liabilities by March 31, 2010. However, the first accused bank's investment was only Rs. 3.00 lakh in Government securities amount to Rs. 6.36% of the NDTL as on 31.03.2010 i.e. a shortfall of 8.647% of NDTL. The accused No. 1 has thus violated section 24 of the Act read with Section 46(4) of the Act 1949.
IV. The first accused bank did not actually invest the required amount in the Government Securities. The bank reported falsely in the statutory returns and Form No. 1 required to be submitted under Section 24 of the Act, 1949 to the extent continuously from May 2009 to August 2009 for 9 fortnights which tantamount to willful false reporting in violation of the provisions of Section 46(1) of the Act, 1949.
5. Mr. Buragohain, learned counsel for the respondent submits that this Page No.# 6/10 Court in exercise of power under Section 482 of Cr.P.C. may not enter into the merit of the claim as raised in the complaint and is to consider whether a reading of the complaint makes out a prima facie case when such assertion made in the complaint is taken in its face value.
6. Mr. Buragohain, learned counsel for the respondent further argues that a clear case of forgery is made out from reading of the complaint. Therefore, this Court should not exercise its power under Section 482 of Cr.P.C. to quash the criminal proceeding.
7. Mr. Buragohain, learned counsel for the respondent further submits that as the facts disclosed makes out a case under Section 465/34 IPC read with Sections 46/47 of the Act, 1949, the complainant should not be deprived of the rights to continue with the prosecution inasmuch as complainant is not encyclopaedia of all the facts.
8. This Court has perused the complaint petition as well as the materials available on record.
9. The power of High Court under Section 482 of Cr.P.C., to quash complaint and criminal proceeding was summarized by the Hon'ble Apex Court in Indian Oil Corporation -Vs- NEPC India Limited and Others reported in 2006 (6) SCC 736. The relevant portion is quoted herein below:-
"(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd Page No.# 7/10 and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or
(b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings.
The test is whether the allegations in the complaint disclose a criminal offence or not".
10. The Hon'ble Apex Court in Mohammad Wajid & Anr vs. State of UP and Ors reported in 2023 INSC 683 relied on by the petitioner, after Page No.# 8/10 dealing elaborately with the power of revision so far same relates to the quashing of FIR and charge sheet has laid down the following principles.
i. It will not be just enough for the court to look into the averments made in the FIR/ complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not.
ii. In frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments made. iii. The overall circumstances leading to the initiation/ registration of the case as well as the materials collected in the course of investigation is to be looked into.
11. From the complaint it is seen that it is the case of the Reserve Bank of India that the petitioners herein carried out Government securities transactions in complete disregard of the extant RBI instruction and violated the provisions of section 24 and directions issued by the RBI under section 35A of the Act, 1949. It is the further case of the Bank as discernible from the complaint that though the accused No. 1 was registered as a Co-operative Society under the provisions of Assam Co- operative Societies Act, 1949 and functioning as a primary co-operative bank to carry banking business in India under Section 22 of the Act, 1949, but in the process of compliance of Section 22 of the Act, 1949, the accused bank had falsely submitted statutory returns and Form No. 1.
12. Section 465 of the IPC prescribes punishment for forgery. To constitute an offence of forgery relating to document, the first essential is that the accused have made a false document and such false document is made Page No.# 9/10 with an intention to cause harm and injury to the public or to any class of society or to any community. In the case in hand, there is a specific allegation as regards forgery of statutory returns and Form No. 1 in relation to the banking business. There may not be any specific statement as regards harm or injury to public or to any class of society or to any community, however, the facts that the accused were running a co- operative Bank registered under the Co-operative Societies Act itself prima facie shows such a factum.
13. It is equally well settled that it is not always necessary to verbatim reproduce the ingredients of the sections and the allegation made in the complaint is to be looked into as a whole and if on the face of the allegation an offence is made out, this Court should not exercise its power under Section 482 of Cr.P.C. to stall the investigation or to stall the complaint proceeding.
14. So far relating to the commission of offence under Section 46 of the Act, 1949, there is specific allegation for making false statement in submitting Form No. 1 under the Act, 1949.
15. Thus, from the aforesaid reading of the complaint, this Court is of the view that even if, the same is taken on its face value, the offences as alleged are made out.
16. Considering the matter in entirety, this Court is of the view that the petitioners have not been able to make out any case for interference with the complaint case being C.R. Case No. 1767/2011 under Section 465/34 IPC read with Sections 46/47 of the Banking Regulation Act, 1949 pending Page No.# 10/10 before the learned Court of Sub Divisional Judicial Magistrate (S), Golaghat by this Court in exercise of its power under Section 482 of Cr.P.C.
17. Accordingly, the present criminal petition stands dismissed.
JUDGE Comparing Assistant