Gujarat High Court
Ghanshyambhai Naranbhai Patel vs State Of Gujarat on 23 September, 2021
Bench: Gita Gopi
R/CR.MA/13675/2019 JUDGMENT DATED: 23/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 13675 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE GITA GOPI Sd/-
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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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GHANSHYAMBHAI NARANBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR B S PATEL, SENIOR ADVOCATE WITH MR CHIRAG B PATEL(3679)
for the Applicant(s) No. 1
MR DHARMESH V SHAH(1050) for the Respondent(s) No. 2
MS MONALI BHATT, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 23/09/2021
ORAL JUDGMENT
1. Rule. Learned APP waives service of notice of rule on behalf of
respondent-State.
2. The prayer is made to quash and set aside the FIR bearing CR.
No.I-6 of 2002, registered withe Anand Town Police Station, Anand,
R/CR.MA/13675/2019 JUDGMENT DATED: 23/09/2021
and the chargesheet filed thereafter qua the petitioner. Mr.B.S.Patel,
learned senior advocate submitted that pursuant to the FIR
registered under Sections 409, 467, 468, 466, 465, 470, 471, 406,
420 and 120-B of the Indian Penal Code on 22.01.2003 in Criminal
Case No.3044 of 2009 was registered at the Court of Additional
Chief Judicial Magistrate, Anand.
3. Learned senior advocate Mr.Patel, stated that, there is a board
of Directors who manages the affairs of the Bank but because of
some political rivalry license of the Bank came to be cancelled and
official liquidator was appointed who realized the money from the
borrowers who were arraigned as accused in the FIR and the money
of the depositors have been paid including the insurance
corporation and the registrar as well as the Government revived
them which Mr.Patel, learned senior advocate submits that it
establishes that the Board of Directors had taken not only a valid
but a wise decision and because of that the liquidator is in a position
to repay all the depositors and at present he is in excess of the
fund.
4. Learned senior advocate Mr.Patel stated that the petitioner
was elected as a Chairman of Charotar Nagarik Sahakari Bank and
because of certain lapses and result of the scam by Madhupura
Nagarik Cooperative Banks and other scheduled banks and as well
as Cooperative Bank, this bank has also committed some default at
the initial stage and an administrator was appointed at the instance
of the Reserve Bank of India, the license of the Bank under the
Banking Regulations Act, 1929, was cancelled and at present the
whole of the administration is in the hands of the liquidator.
Mr.Patel, learned senior advocate submits that it is because of the
circular of the Registrar of Cooperative Society to all urban
Cooperative Society the Criminal Case came to be registered as the
circular states about registration of the Criminal Case against the
R/CR.MA/13675/2019 JUDGMENT DATED: 23/09/2021
lonee whose dues are more than Rs.10,00,000/-.
5. Mr.Patel, learned senior advocate, referring to a resolution
no.3 dated 04.08.1997 of the Board of Directors of the Charotar
Nagarik Sahkari Bank Ltd. submitted that the verification of the
documents and other allied things were to be carried out by the
bank staffs and the loans were to be released in accordance and
after the compliance of the procedures by the bank manager along
with the consensus of the loan manager and on behalf of the board,
responsibility of the verification of the loan papers was given to the
managing director and all the papers were required to be examined
and by way of the resolution it was decided that before the board
only the appraisal note would be placed. Thus, in view of this fact,
Mr.Patel, learned senior advocate stated that the present applicant
was Chairperson and thus he was not required to verify the
documents and sufficiency of the securities and other collateral
were required to be considered and valued by the banks manager,
loan officer and bank staffs. Though the power to sanction the loan
is with the Board of Directors but the disbursement of the loan
amount is in the hands of the executives and any default or lapse on
their part would not attribute any criminality on the present
petitioner. Mr.Patel, learned senior advocate stated that
Vinodchandra Maganlal Patel, authorized officer of the bank by way
of the affidavit in reply on behalf of the respondent bank has
affirmed the fact that the petitioner accused was chairman of the
bank at the relevant point of time, he has also stated that vide order
dated 09.12.2010, the Chief Judicial Magistrate, Anand, had framed
charges against all the accused persons below Exhibit-1789 and
subsequently by Exhibit 1888, the accused person had preferred an
application for alteration of the charge under Section 216 of the
Code of Criminal Procedure which came to be granted vide order
dated 13.12.2017 and thereafter subsequently by Exhibit 2067
again, few of the accused had prayed for alteration in charges which
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was granted on 12.04.2018. Mr.Vinodchandra Maganlal Patel, in his
affidavit has stated that the procedure adopted by the bank since
1997 is for the approval of the loan by the Board of Directors and
the duty of the Managing Director is to verify the loan papers,
sufficiency of the security is to be checked by the loan manager of
the bank who accordance to it has to receive the securities towards
the loan. It has also been noted in the affidavit that the present
petitioner had produced Resolution No.3, passed by the bank on
04.08.1997, which the deponent Mr.Vinodchandra Maganlal Patel
affirms and acknowledges that the present petitioner has no role in
the disbursement and the transaction except approving the loan in
the board meeting. He has contended that the bank has verified all
the available records and found that the present petitioner and his
family members have not taken any loan advances from the bank
and is not involved in any fraud, cheating, misappropriation of the
public money of the bank.
6. This Court vide order dated 06.07.2021, had observed that in
pursuance of order dated 16.06.2021, the report has been produced
by the Deputy Superintendent of Police, CID Crime, Gandhinagar
and officer had prayed for time for verification of the affidavit of
Mr.Vinodchandra Maganlal Patel and thereafter the matter was
listed on 28.07.02021. The report of the Deputy Superintendent of
Police, CID Crime, Gandhinagar dated 27.07.2021 is on record and
according to the report, the affidavit of Mr.Vinodchandra Maganlal
Patel was examined and verified and it was found that
Mr.Vinodchandra Maganlal Patel was authorized by the liquidator to
file an affidavit on behalf of the bank.
7. Mr.Patel, learned senior advocate has also referred to the
orders in Special Criminal Application No.5690 of 2014 dated
28.01.2015, Criminal Miscellaneous Application No.6857 of 2015
dated 28.10.2015, Criminal Miscellaneous Application No.6862 of
R/CR.MA/13675/2019 JUDGMENT DATED: 23/09/2021
2015 dated 28.03.2017, Special Criminal Application No.1025 of
2015 dated 07.09.2015, Criminal Miscellaneous Application No.8286
of 2015 dated 23.12.2016, Criminal Miscellaneous Application
No.20569 of 2014 dated 19.01.2015, Special Criminal Application
No.1270 of 2013 dated 05.12.2014, Criminal Miscellaneous
Application No.7847 of 2018 dated 04.05.2018, Criminal
Miscellaneous Application No.6856 of 2015 dated 28.03.2017,
Criminal Miscellaneous Application No.5030 of 2017 dated
11.05.2018 to apprise the Court that the borrowers after the
repayment of the dues were issued no due certificates by the bank
and therefore, on examining the said fact, the impugned FIR being
CR.No.I-06 of 2002 against all those came to be quashed by
aforesaid orders.
"In case of State of Haryana V. Bhajan Lal
and others, AIR 1992 SC 604, the Apex Court
formulated as many as seven categories of cases,
wherein the extraordinary power under Section
482 could be exercised by the High Court to
prevent abuse of process of the court. It was
clarified that it was not possible to lay down
precise and inflexible guidelines or any rigid
formula or to give an exhaustive list of
circumstances in which such power could be
exercised.
In case of State of Haryana V. Bhajan Lal and
others, AIR 1992 SC 604, the Apex Court made the
following observations:-
"8.1. In the exercise of the extra-ordinary power
under Article 226 or the inherent powers under
Section 482 of the Code of Criminal Procedure,
the following categories of cases are given by
R/CR.MA/13675/2019 JUDGMENT DATED: 23/09/2021
way of illustration wherein such power could be
exercised either to prevent abuse of the
process of any Court or otherwise to secure the
ends of justice, though it may not be possible to
lay down any precise, clearly defined and
sufficiently channelised and inflexible guide in
myriad kinds of cases wherein such power
should be exercised:
(a) where the allegations made in the First
Information Report or the complaint, even if
they are taken at their face value and accepted
in their entirety do not prima facie constitute
any offence or make out a case against the
accused;
(b) where the allegations in the First
Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section 155(2) of the
Code;
(c) where the uncontroverted allegations
made in the FIR or complaint and the evidence
collected in support of the same do not disclose
the commission of any offence and make out a
case against the accused;
(d) where the allegations in the FIR do not
constitute a cognizable offence but constitute
R/CR.MA/13675/2019 JUDGMENT DATED: 23/09/2021
only a non-cognizable offence, no investigation
is permitted by a police officer without an order
of a Magistrate as contemplated under Section
155(2) of the Code;
(e) where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused;
(f) where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and / or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party;
(g) where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to
private and personal grudge."
8. Here, it has been categorically stated that the present
petitioner has not availed of any loan advances from the bank, he
was not liable to verify the loan papers. Resolution of the bank
dated 04.08.1997, reflects that the petitioner has no role in
R/CR.MA/13675/2019 JUDGMENT DATED: 23/09/2021
disbursement of the loan amount and the only function was the
approval of the loan that too was through the board meeting and
the chairperson was chairing the meeting. Thus, prima facie, no
criminality can be attracted, there is no allegation of any loan taken
by the present petitioner. The liquidators as accordingly has already
recovered most of the money and has stated the bank has surplus
amount.
9. Taking all the facts in to consideration, the continuation of
the trial against the present petitioner would be rather harsh and
continuation of the trial would create unnecessary hardship and
burden to the petitioner.
10. In view of the aforesaid fact, the FIR being CR.No.I-06 of 2002
registered with Anand Town Police Station, Anand, chargesheet and
subsequent proceedings qua the present petitioner is quashed. Rule
is made absolute. Direct service is permitted.
Sd/-
(GITA GOPI,J)
URIL RANA
