Bombay High Court
574 201 vs National Bank Of Oman on 3 October, 2012
Bench: A. H. Joshi, U. D. Salvi
Cri.Appln.No.3146/2012
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 3146 OF 2012
Barakara Abdul Aziz,
Age 43 years, Occ. Business,
R/o Kurunji House, Mangalore,
SULLIA, Dakshina Kannada District
574 239, Karnataka
and also
Bushra Tower, Puttur, Mangalore,
Dakshina Kannada District
574 201, Karnataka ... APPLICANT
VERSUS
1. National Bank of Oman,
(S.A.O.G.), a Banking Company
incorporated under Oman Laws
having its registered office and
Head Office at Ruwi, Muscat,
P.O. Box 751 Postal Code 112,
Sultanate of Oman,
and Branch Office at Abu Dhabi
P.O. Box No.3822, Abu Dhabi,
United Arab Emirates,
through its Power of Attorney holder
Mr. Narhari Bhimrao Sapkal,
Age major, Occ. Service,
R/o 21, Samata Colony,
Vinayak Nagar, Nagar Pune Road,
Ahmednagar.
2. The State of Maharashtra
through Public Prosecutor,
High Court of Judicature
at Bombay,
Bench at Aurangabad ... RESPONDENTS
.....
Shri V.D. Sapkal, Advocate for applicant
Shri L.B. Pallod, Advocate for respondent No.1.
Shri S.D. Kaldate, A.P.P. for respondent No.2/State
.....
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Cri.Appln.No.3146/2012
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CORAM :
A.H. JOSHI AND
U.D. SALVI, JJ.
Dated :
3rd October, 2012.
JUDGMENT (Per : U.D. Salvi, J.)
1. Rule. Rule made returnable forthwith.
Taken up for final hearing by consent of parties.
2. Heard. Perused.
3. Issuance of process under Sections 418 and
420 of the Indian Penal Code, 1860 by learned Chief
Judicial Magistrate, Ahmednagar in Criminal Case
No.R.T.C.260/2007 is questioned in the present
criminal application.
4. The respondent No.1 - National Bank of
Oman, registered at Oman, lodged a private complaint
(originally numbered as 259/2007 and later on re-
numbered as R.T.C. No.260/2007) in the Court of the
Chief Judicial Magistrate, Ahmednagar against the
petitioner, a resident of District Dakshin Kannada,
Karnataka, alleging its cheating resulting in
Cri.Appln.No.3146/2012
swindling of 43,15,000/- U.A.E. Dirhams, equivalent
to 5.178 Crores Indian Rupees at Abu Dhabi (United
Arab Emirates).
5. Gist of the complaint is as under -
In the year 1995, the applicant/ accused
opened current account with the complainant Bank on a
representation that he was holding Indian Passport.
The accused slowly gained confidence of the
complainant Bank. In February 1996, the accused
produced trading licence issued by Abu Dhabi
Municipality and Town Planning and represented that
he owned firm - M/s Bushra Textiles, situated at Abu
Dhabi and engaged in retail and wholesale trading and
sale of textiles, garments, stationery items,
electronics etc. The accused further represented
that he was established in business at Abu Dhabi and
was well supported by loyal clientele and was in
process of expanding his business, which required
financial facilities from the Bank. The accused also
represented to the Bank that he had more than enough
financial stability and viability to honour the
financial commitments and pay back the finances made
Cri.Appln.No.3146/2012
available to him by the Bank. Based on the said
solemn representation, the Company in good faith
granted to the accused overdraft facility of
2,50,000/- A.E.D. This facility was enhanced from
time to time to the extent of 51 lacs A.E.D. by
overdraft loan against trust receipts, local bill
limit, credit card etc. till October 2001. The
accused, however, committed breach of undertaking and
failed to repay the dues of the complainant Bank.
The complainant Bank, therefore, contemplated legal
action against the accused in order to obtain
detention order from the competent Court at U.A.E.
The accused thereupon approached the complainant Bank
in November 2002 and entered into a restructuring/
settlement agreement with the accused on 12.11.2002
for A.E.D. 43,15,000/- by converting all the
outstanding liabilities into a term loan to be repaid
in 48 installments. The accused undertook to pay the
said amount as per terms of MOU and also issued post
dated cheques
for 24 monthly installments and gave
assurance and undertakings that said cheques would be
honoured and loan would be repaid as per the
restructuring agreement between the parties and
thereby induced the Bank not to take immediate action
Cri.Appln.No.3146/2012
and obtain detention order. The complainant relied
upon the said representation and did not take action
against the accused in November 2002. The said
cheques were dishonoured for want of sufficient funds
in the account of the accused and in meanwhile the
accused surreptitiously and clandestinely absconded
to India without discharging his loan liability.
6.
Challenge to the impugned order is based on
the following grounds :-
(i) The allegations made in the complaint and
as revealed in the verification, even taken at
their face value and accepted in their entirety
do not prima facie constitute any offence or
make out a case for issuance of process under
Sections 418 and 420 of the Indian Penal Code,
1860.
(ii) The respondent/ accused is residing outside
the jurisdiction of Chief Judicial Magistrate,
Ahmednagar and yet the process was issued
without complying with the mandatory
requirements of making an enquiry or directing
Cri.Appln.No.3146/2012
an investigation for the purpose of deciding
whether or not there is sufficient ground for
proceeding as contemplated under Section 202 of
the Code of Criminal Procedure, 1973.
7. The respondent Bank countered the petition
with affidavit-in-reply dated 31.8.2012 and placed
before us plethora of judgments as follows :
1. AIR 1992 SC 604
(State of Haryana & ors. Vs. Ch.Bhajan Lal & ors.)
2. AIR 2009 SC 2383
(Ravindra Kumar etc. Vs. Rugmini Ram Raghav
Spinners P. Ltd.)
3. AIR 2009 SC 1863
(State of A.P. Vs. Aravapally Venkanna & anr.)
4. AIR 1990 SC 494
(Mrs. Dhanalakshmi Vs. R. Prasanna Kumar & ors.)
5. AIR 1999 SC 1216
(Rajesh Bajaj Vs. State of NCT of Delhi & ors.)
6. AIR 1989 SC 1
(State of Bihar Vs. Murad Ali Khan & ors.)
7. AIR 2009 SC 46
(State Vs. K.V. Rajendran & ors.)
8. AIR 2001 SC 43(1)
(Hari Singh Mann Vs. Harbhajan Singh Bajwa & ors.)
9. AIR 2005 SC 392
(Om Hemrajani Vs. State of U.P. & anr.)
10. AIR 2002 SC 2653
(A.V. Mohan Rao & anr. Vs. M. Kishan Rao & anr.)
Cri.Appln.No.3146/2012
11. AIR 1955 SC 36
(Central Bank of India Vs. Ram Harain)
12. (1911) 13 BOM. L.R. 296
Emperor Vs. Vinayak Damodhar Savarkar
13. AIR 1964 Bom. 264
(Pheroze Jehangir Dastoor Vs. The State)
14. AIR 2000 SC 1869
(M/s Medchl Chemicals & Pharma P. Ltd. Vs.
Biological E. Ltd. & ors.)
15. 2001 AIR SCW 2504
(Lalmuni Devi Vs. State of Bihar & ors.)
16. AIR 2001 SC 3014
(M. Krishnan Vs. Vijay Singh & anr.)
17. 2009 ALL MR (Cri.) 1964
(Prashant Jhunjhunwala s/o Late Shri Rajkumar
Jhunjhunwala Vs. Union Territory of Daman &
Diu & ors.)
18. AIR 2006 SC 2780
(M/s Indian Oil Corporation Vs. M/s NEPC India
Ltd. & ors.)
8. The petitioner relied upon the following
judgments :
1) 2009 (15) SCC 199
(K.T. Joseph Vs. State of Kerala & anr.)
2) 2010(2) Bom.C.R. (Cri.) 385
(S.C. Mathur (Capt.) & anr. Vs.
Elektronic Lab. & ors.)
3. 2012(1) Bom.C.R. (Cri.) 788
(Netcore Solutions Pvt. Ltd. & ors. Vs.
Pinnacle Teleservices Pvt. Ltd. & ors.)
Cri.Appln.No.3146/2012
9. It is correct that the complaint lodged by
the respondent clearly discloses that the petitioner/
accused did not honour financial commitments he made
to the Bank and his post dated cheques were
dishonoured for want of sufficient funds. However,
the complaint must disclose allegations of deception
of the complainant Bank either by misrepresentation
of facts or dishonest concealment of facts or both at
the time of inducing the Bank to enter into the
transactions alleged. Thus, the intention to deceive
should be in existence at the time when the
inducement was made. Nowhere in the complaint or in
the verification statement there is any allegation
that the complainant Bank was misrepresented as to
the material facts or that there was dishonest
concealment of facts on the part of the applicant
either at the initial stage or any stage subsequent
thereto. Mere failure to keep up a promise
subsequently cannot be presumed as leading to
cheating. Prima facie, therefore, the bare
allegation of cheating does not make out a case
against the applicant/ accused for issuance of
process under Section 418 or 420 of the Indian Penal
code, 1860.
Cri.Appln.No.3146/2012
10. Section 202 of the Code of Criminal
Procedure, 1973 reads as under :
"Sec. 202 Postponement of Issue of
process - (1) Any Magistrate, on
receipt of a complaint of an offence of
which he is authorised to take
cognizance of which has been made over
to him under section 192, may, if he
thinks fit, [and shall in a case where
the accused is residing at a place
beyond the area in which he exercises
his jurisdiction,] postpone the issue
of process against the accused, and
either enquire into the case himself or
direct an investigation to be made by a
police officer or by such other person
as he thinks fit, for the purpose of
deciding whether or not there is
sufficient ground for proceeding.
Provided that no such direction for
investigation shall be made-
(a) where it appears to the Magistrate
that the offence complained of is
triable exclusively by the Court of
Sessions; or
(b) where the complaint has not been
made by a Court, unless the complainant
and the witnesses present (if any) have
been examined on oath under section
200.
(2) In an inquiry under sub-section
(1), the Magistrate may, if he thinks
fit, take evidence of witnesses on
oath;
Provided that if it appears to the
Magistrate that the offence complained
of is triable exclusively by the Court
of Sessions, he shall call upon the
complainant to produce all his
Cri.Appln.No.3146/2012
witnesses and examine them on oath.
(3) If an investigation under sub-
section (1) is made by a person not
being a police officer, he shall have
for that investigation all the powers
conferred by this Code on an officer in
charge of a police station except the
power to arrest without warrant. "
. It casts an obligation on the Magistrate to
postpone the issuance of process against the accused
and either enquire into the case himself or direct
an investigation to be made by a police officer or
by such other person as he thinks fit for the
purpose of deciding whether or not there is
sufficient grounds for proceeding in a case where
the accused is residing at a place beyond the area
in which he exercises his jurisdiction.
11. Admittedly, the petitioner is a resident of
Dakshin Kannada district (Karnataka), a place beyond
the area in which Chief Judicial Magistrate,
Ahmednagar exercised his jurisdiction. The impugned
order, as revealed at annexure to the petition-Page
28, does not reveal that the learned Chief Judicial
Magistrate had carried out any enquiry or ordered
investigation as contemplated under Section 202 of
Cri.Appln.No.3146/2012
the Code of Criminal Procedure, 1973 before issuing
process. Obviously, the issuance of the impugned
order is abuse of the process of law.
12. Order dated 25.2.2011, issuing the process
under Sections 418 and 420 of the Indian Penal Code,
1860 by learned Chief Judicial Magistrate, Ahmednagar
in Criminal Case R.T.C. No.260/2007 is, therefore,
quashed. Rule made absolute in above terms with no
order as to costs. Criminal Application No.3146 of
2012 stands disposed off accordingly.
(U.D. SALVI, J.) (A.H. JOSHI, J.)
fmp/cri3146.12
