Rajeshbhai Dhirubhai Patel vs State Of Gujarat
2021 Latest Caselaw 962 Guj

         R/SCR.A/1565/2015                                      ORDER




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CRIMINAL APPLICATION NO. 1565 of 2015

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                       RAJESHBHAI DHIRUBHAI PATEL
                                 Versus
                       STATE OF GUJARAT & 2 other(s)
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Appearance:
MR TEJAS P SATTA(3149) for the Applicant(s) No. 1
PRIYANK P LODHA(7852) for the Respondent(s) No. 2
MS M D MEHTA, APP for the Respondent(s) No. 1
VIRAL K SHAH(5210) for the Respondent(s) No. 3
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 CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                             Date : 21/01/2021
                              ORAL ORDER

1. Heard learned Advocate Mr. Tejas P. Satta for the applicant, learned APP Ms. M.D. Mehta for the respondent-State, learned Advocate Mr. Priyank P. Lodha for the respondent No.2 and learned Advocate Mr. Viral K. Shah for the respondent No.3.

2. Rule returnable forthwith. Learned Advocates for the respective respondents waive service of notice of Rule.

3. By way of the present application the applicant has challenged the judgment and order passed by the learned Additional Sessions Judge, City Sessions Court No.3, Ahmedabad in Criminal Revision Application No. 195 of 2014 dated 18.07.2014 confirming the order passed by the learned Additional Chief Metropolitan Magistrate, Court No.2, Ahmedabd in Criminal Case No.802 of 2011 dated 17.04.2014.

4. The brief history of the case being that the applicant who claims to be a proposed purchaser of a Chevrolet Car had met one Mr.Ashish Patel,

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who was stated to be a commission agent in the purchase of Car. Since the said Mr. Ashish Patel had informed the applicant that he was connected with Gallops Motors Pvt. Ltd., which was a dealer of Chevrolet Cars, he could get the applicant good concession for the Car which the applicant had proposed to purchase. The said Ashish Patel informed the applicant that for the purpose of getting concession he should get a loan from the Ahmedabad District Co-operative Bank Limited (for short "the ADC Bank"), Khodiyarnagar Branch, Ahmedabad. That on account of such an offer by the said Ashish Patel, the applicant had opened an account in the ADC Bank, Khodiyarnagar Branch being SB/A/c. No. 10256 and had deposited an amount of Rs.1,00,000/- in the said account on 02.07.2011 and whereas he had applied for a car loan from the said Bank which had been sanctioned by the bank and an amount of Rs.3,00,000/- vide Hypothecation Term Loan Vehicular has been sanctioned in favour of the applicant at the rate of 11% interest. The said amount of Rs.3,00,000/- had been credited in the Savings Bank Account of the applicant with the ADC Bank and on 07.07.2011 the ADC Bank issued a Pay Slip (demand draft) in favour of the Gallops Motors Pvt. Ltd. valued at Rs.3,99,833/- bearing No. 002138. According to the applicant he had given the said Pay Slip to said Ashish Patel and whereas from the record it appears that the said Pay Slip had been deposited in a fraudulent account of M/s. Gallops Motors Pvt. Ltd. with the Aadarsh Co-operative Bank Limited and whereas after the said amount had been credited in the account, apparently a cheque had been issued in favour of the present applicant from the same account and when the said cheque had been submitted for clearance in the UCO Bank where the applicant had parallel account, the officer of the UCO Bank had some suspicion about the same and the alleged fraud had been unearthed. Be that as it may, the submission of the applicant being that after the investigation, in the charge-sheet, the applicant was not named as an accused who had purported or even taken part in the alleged crime. According to the applicant, under such circumstances, the amount which had been credited in the fraudulent

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account of the Gallops Motors Pvt. Ltd. with the Aadarsh Co-operative Bank Limited should be credited back to the loan account of the applicant in the ADC Bank.

5. It is submitted by learned Advocate Mr. Tejas Satta for the applicant that the original application before the learned Magistrate had been preferred under Section 451 of the Criminal Procedure Code inter alia praying that the amount which had been credited in the account of Gallops Motors Private Limited vide Pay Slip No.002138 held with M/s. Aadarsh Co-operative Bank Limited may be directed to be credited in the account of the present applicant held with the ADC Bank.

6. Learned Advocate Mr.Priyank Lodha for the respondent No.2- Aadarsh Co-operative Bank Limited submits that the amount while had been originally credited in the fraudulent account of the Gallops Motors Pvt. Ltd., and after the alleged cheque in the name of present applicant had been presented in the UCO Bank, as stated hereinabove, the alleged fraud had been unearthed and stop payment instruction had been issued by the Aadarsh Co-operative Bank Limited. He further submits that after such stop payment instruction, the UCO Bank, Maninagar Branch had given a credit note by way of Banker's Pay Order dated 29.07.2011 in favour of the respondent No.2 - Bank reversing the entry of Rs.3,80,000/-. Under such circumstances, he submits that the original amount of Rs.3,99,833/- was lying with the Aadarsh Co-operative Bank Limited with interest accrued thereupon.

7. Learned Advocate Mr. Viral Shah for the respondent No.3-ADC Bank submits that after the loan had been sanctioned in favour of the present applicant, the applicant had not repaid the installments properly and therefore the Bank had been constrained to approach the learned Board of Nominees and whereas a decree has also been passed in favour of the ADC

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Bank with regard to the amount of loan by the Board of Nominees. He further submits that as of now the outstanding as regards the loan account may be much higher than the amount originally sanctioned by the ADC Bank. In any case he submits that the amount originally belongs to the ADC Bank given as a loan to the present applicant may be returned back to the ADC Bank.

8. Learned APP Ms. M.D. Mehta for the respondent-State submits that in case this Court were to direct the transfer of the amount in question from the Aadarsh Co-operative Bank Limited to the ADC Bank, then the same may be directed to be appropriated towards the loan account of the present applicant.

9. As against the same, learned Advocate Mr. Tejas Satta for the applicant on instructions submits that his client would not have any objection if the amount is deposited in his Savings Bank Account with the ADC Bank and from where it may be directly appropriated towards the loan availed by him from the ADC Bank.

10. Heard learned Advocates for the respective parties. From the documents on record as well as submissions of the learned Advocates for the respective parties, without going into the merits of the alleged fraudulent transaction, what appears is that the loan had been sanctioned in favour of the applicant by the ADC Bank. The Pay Slip valued at Rs.3,99,833/- bearing No.002138 in favour of the Gallops Motors Pvt. Ltd. had also been issued by the ADC Bank which had been deposited in the account of Gallops Motors Pvt. Ltd. (though fraudulent). A part of the amount as stated hereinabove had traveled upto the UCO Bank and thereafter the transaction had been reversed and ultimately from around July, 2011 the entire amount being Rs.3,99,833/- has been lying with the Aadarsh Co- operative Bank Limited. That the said Aadarsh Co-operative Bank Limited

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does not have any lien over the amount in question and from the aforesaid, it clearly appears that the amount originally belong to the ADC Bank which had been loaned to the present applicant by way of Hypothecation Term Loan Vehicular Loan. Since it is not the case of the present applicant that he had repaid the loan from his own money, therefore it clearly appears that even the applicant is not entitled to the said loan amount. Under such circumstances, the Aadarsh Co-operative Bank Limited is required to be directed to transfer the said amount by Pay Slip or by any other legal mode of transfer to the loan account of the present applicant being SB/A/c. No. 10256 in the ADC Bank, Khodiyarngar Branch and the said amount is required to be transferred along with interest accrued thereupon till the date of transfer and the ADC Bank is required to appropriate the said amount towards the loan account of the applicant.

11. As far as the remaining or outstanding loan amount in the account of the present applicant as submitted by the learned Advocate Mr. Viral Shah is concerned, it is for the ADC Bank to take appropriate steps to recover the same and whereas this Court in this proceedings is not concerned with the same.

12. Hence, in view of the discussion above, the judgment and order passed by the learned Additional Sessions Judge, City Sessions Court No.3, Ahmedabad in Criminal Revision Application No. 195 of 2014 dated 18.07.2014 as well as the order passed by the learned Additional Chief Metropolitan Magistrate, Court No.2, Ahmedabd in Criminal Case No.802 of 2011 dated 17.04.2014 are hereby quashed and set aside and following directions are hereby issued :

(1) The Aadarsh Co-operative Bank Limited shall transfer the amount of Rs.3,99,833/- along with the interest accrued thereupon from the date of deposit till the date of transfer to the loan account of

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the applicant being SB/A/c. No. 10256 in the ADC Bank, Khodiyarnagar Branch within a period of four weeks from the date of receipt of this order.

(2) The ADC Bank shall appropriate the aforesaid amount transferred by the Aadarsh Co-operative Bank Limited towards the loan account of the present applicant for which necessary formalities, if required, shall be done by the present applicant as per the instructions of the officers of the Bank, for which the learned Advocate Mr. Tejas Satta for the applicant, upon instructions, states that he would not have any objection.

13. With the above observations and directions, the present application is disposed of. Rule is made absolute to the aforesaid extent.

(NIKHIL S. KARIEL,J) BDSONGARA