Gujarat High Court
Bipinbhai Ambalal Patel vs State Of Gujarat on 8 July, 2021
Bench: Gita Gopi
R/CR.MA/13627/2019 JUDGMENT DATED: 08/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 13627 of 2019
With
CRIMINAL MISC. APPLICATION (FOR STAY) NO. 1 of 2021
In
R/CRIMINAL MISC. APPLICATION NO. 13627 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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BIPINBHAI AMBALAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR YASH K DAVE (10269) for the Applicant(s) No. 1,2,3
MR VISHAL K ANANDJIWALA (7798) for the Applicant(s) No. 1,2,3
NOTICE SERVED BY DS (5) for the Respondent(s) No. 2
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR (2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 08/07/2021
ORAL JUDGMENT
R/CR.MA/13627/2019 JUDGMENT DATED: 08/07/2021
RULE. Learned Additional Public Prosecutor waives service of
notice of rule on behalf of respondent No.1 - State. Though served, none
appears on behalf of respondent No.2 - Bank.
1. By way of this application filed under Section 482 of the Code of
Criminal Procedure, the applicants have prayed to quash and set aside the
First Information Report being C.R. No. I - 63 of 2019 registered with
Gorwa Police Station for the offences punishable under Sections 406, 420
and 114 of IPC and the consequential proceedings initiated pursuant
thereto. The applicants herein are original accused Nos.1 to 3 in the
complaint.
2. The facts in brief are that in the year 2005 the applicant Nos.1 & 2
herein approached the respondent - Bank for availing a Home Loan for
purchasing a residential property. In pursuance thereof, the applicant
Nos.1 & 2 executed relevant documents in favour of the respondent -
Bank. The respondent - Bank sanctioned loan of Rs.11,79,000/- in favour
of applicant Nos.1 & 2. It appears that while executing the Mortgage
Deed, applicant Nos.3 and original accused No.4 in the complaint. herein
stood as the Guarantors; however, subsequently, applicant No.4 passed
away. Upon receipt of the loan amount, the applicant Nos.1 & 2
purchased the property vide sale deed dated 30.04.2005.
3. On 27.06.2019 the respondent - Bank filed the impugned
complaint inter alia alleging that after purchasing the property, the
applicant Nos.1 & 2 had not deposited the title documents of the property
with the respondent - Bank nor did they pay the amount of Equated
Monthly Installments towards repayment of the loan amount. It was also
alleged that applicant Nos.1 & 2 had sold the property to a third party
R/CR.MA/13627/2019 JUDGMENT DATED: 08/07/2021
vide registered sale deed dated 16.06.2006 and thereafter, the property
again changed hands vide registered sale deed dated 12.12.2006. Thus, it
was alleged that the applicants had committed the offences punishable
under Section 406, 420 and 114 of IPC.
4. When the matter was taken up for hearing, learned advocate Mr.
Anandjiwala pointed out that the applicants have paid up all the dues of
the respondent - Bank and that the loan account of the applicants with the
respondent - Bank has also been closed. He referred to the "No Due
Certificate" dated 24.02.2020 issued by the respondent - Bank in favour
of applicant No.1 along with the Bank Statement wherein, it has been
stated that the Loan Account of applicant No.1 stood closed on
25.02.2020 on receipt of the full amount of compromise settlement. It
was, therefore, prayed that the impugned complaint filed against the
applicants may be quashed and set aside.
5. Learned Additional Public Prosecutor Ms. Bhatt submitted that the
applicants had committed the offence of fraud and cheating with the
respondent - Bank and that even if the applicants have paid up the
outstanding dues, they would not be absolved from their criminal act.
Hence, it was prayed that no discretion may be exercised in favour of the
applicants.
6. Though served, none appears on behalf of the respondent - Bank.
7. Heard learned advocates on both the sides. It appears from the
material on record that the applicants have paid up all the dues of the
respondent - Bank, in response to which the respondent - Bank has
issued the "No Due Certificate" dated 24.02.2020 in favour of applicant
R/CR.MA/13627/2019 JUDGMENT DATED: 08/07/2021
No.1 herein. The respondent - Bank has also made an endorsement on the
Bank Statement on 16.06.2021 to the effect that the Loan Account of
applicant No.1 has been closed on receipt of the full amount of
compromise settlement.
8. At this juncture, it would be relevant to refer to the judgment of the
Apex Court in the case of International Advanced Research Centre for
Powder Metallurgy and New Materials (ARCI) & others V. Nimra
Cerglass Technics (P) Ltd., 2016 (1) SCC (Cr.) 269, wherein it has
been held as under :-
"13. In the light of the well-settled principles, it is to be seen
whether the allegations in the complaint filed against ARCI and its
officers for the alleged failure to develop extruded ceramic
honeycomb as per specifications disclose offences punishable
under Sections 419 and 420 IPC. It is to be seen that whether the
averments in the complaint make out a case to constitute an
offence of cheating. The essential ingredients to attract Section
420 IPC are: (i) cheating; (ii) dishonest inducement to deliver
property or to make, alter or destroy any valuable security or
anything which is sealed or signed or is capable of being
converted into a valuable security and (iii) mens rea of the accused
at the time of making the inducement. The making of a false
representation is one of the essential ingredients to constitute the
offence of cheating under Section 420 IPC. In order to bring a
case for the offence of cheating, it is not merely sufficient to prove
that a false representation had been made but, it is further
necessary to prove that the representation was false to the
knowledge of the accused and was made in order to deceive the
complainant."
9. In the present case, the allegations made in the impugned
complaint do not reveal that the applicants had made any false
representation to the respondent - Bank at the time of availing the Home
Loan. Even otherwise, it is not even the case of the respondent - Bank
R/CR.MA/13627/2019 JUDGMENT DATED: 08/07/2021
that the applicants had made any false representation at the time of
availing the Home Loan knowing that the representation being made by
them was fraudulent, as has been held in the above-referred judgment of
the Apex Court. The allegations made in the complaint suggests that the
applicants had not submitted relevant documents with the respondent -
Bank after their Home Loan was sanctioned. Considering the allegations
made in the complaint as also the fact that the applicants had already
repaid the outstanding amount to the respondent-Bank and the principle
laid down by the Apex Court in State of Haryana V. Bhajan Lal and
others, AIR 1992 SC 604, this Court does not deem it appropriate to
continue the criminal prosecution against the applicants.
10. In the result, the application is allowed. The impugned First
Information Report being C.R. No. I - 63 of 2019 registered with Gorwa
Police Station as also the consequential proceedings initiated pursuant
thereto are quashed and set aside. Rule is made absolute.
In view of the above order, Criminal Misc. Application No.1 of
2021 shall not survive. It stands disposed of accordingly.
( GITA GOPI, J )
PRAVIN KARUNAN
