Gujarat High Court
Rohitbhai Ramanlal Shah vs State Of Gujarat on 28 April, 2023
Bench: M. K. Thakker
R/CR.MA/17744/2014 JUDGMENT DATED: 28/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17744 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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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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ROHITBHAI RAMANLAL SHAH
Versus
STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. SOEB R. BHOHARIA(2205) for the Applicant(s) No. 1
VALIMOHAMMED PATHAN(6383) for the Applicant(s) No. 1
MR K J PANCHAL(2422) for the Respondent(s) No. 2
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 28/04/2023
ORAL JUDGMENT
1. This is an application filed by the applicant, original
accused No.4 under Section 482 of the Code of Criminal
R/CR.MA/17744/2014 JUDGMENT DATED: 28/04/2023
Procedure, 1973, praying to quash the First Information Report
being C.R.No.I-207 of 2005 registered with Madhavpura Police
Station, Ahmedabad for the offence punishable under Sections
406, 409, 420, 467, 471 and 120-B of the Indian Penal Code.
2. It appears that original accused Nos.2 and 3 had obtained
advances for development of his business to the tune of Rs.30
lacs on hypothecation book debts, which was duly granted by the
original informant who is original respondent No.2 herein,
Senior Manager of Madhavpura Mercantile Co. Op. BankLtd.
(presently under liquidation). It is the case of the first informant
in the FIR that over and above Rs.30 lacs subsequently Rs.10
lacs more was also advanced on an application being given by
accused No.1 i.e. Jem Trading Company, a partnership firm,
where accused Nos.2 and 3 were the partners. The Board of
Directors had on 4.12.2000 sanctioned the application made for
raising the advance to the tune of Rs.10 lacs more. Pursuant to
the said letter, the accused Nos.2 and 3 have executed all
necessary documents. It further alleges that accused Nos. 2 and
3 was not providing correct debts and statement of accounts to
the Bank. That by passage of time, firm of the accused Nos.2 and
3 could not repay the advances in time and therefore, over and
above the recovery proceedings by filing Lavad Suit, present FIR
came to be filed against 6 accused persons where name of the
present applicant has shown as accused No.4 as a guarantor of
accused Nos. 1 to 3.
3. Mr.Bhoharia, learned advocate for the applicant submitted
that merely non payment of advances and for obtaining the
same, no single document, which is alleged to be forged
R/CR.MA/17744/2014 JUDGMENT DATED: 28/04/2023
document by the present applicant has been produced by the
applicant. Mr.Bhoharia, learned advocate for the applicant
submits that even if allegation of forgery is accepted, that is
made against accused Nos.2 and 3, however, being a guarantor
of the advance, which was given to accused Nos.2 and 3, no role
has been assigned in the aforesaid FIR. Mr.Bhoharia, learned
advocate for the applicant submitted that as on today, applicant
had repaid the dues and the Bank has also issued 'No Due
Certificate' on 4.6.2014, which is a part of this petition at page
No.15. Mr.Bhoharia, learned advocate for the applicant further
relies on the order passed by coordinate Bench of this Court
(Coram: Umesh A. Trivedi, J. dated 24.1.2019 in Criminal Misc.
Application No.10211 of 2014) wherein petition which is filed by
accused Nos. 2 and 3 who are original borrowers came to be
allowed and FIR came to be quashed and set aside. Mr.Bhoharia,
learned advocate for the applicant further submitted that in view
of the aforesaid order, present petition is also required to be
allowed as FIR against the main borrower has already been
quashed and petitioner being a guarantor has no role and
therefore, he prays to allow this application.
4. Mr.K.J.Panchal, learned advocate for the respondent No.2
admitted that as on today, under one time settlement, dues of
the Bank by the applicants are paid. There is no outstanding
dues remaining in their account. However, he objects to
quashing of the FIR as the case is also filed against other office
bearers of the Bank and allegations of forgery are made.
5. Learned APP, Ms.Jirga Jhaveri, appearing for the State has
also supported the argument advanced by Mr.Panchal and prays
R/CR.MA/17744/2014 JUDGMENT DATED: 28/04/2023
not to exercise the discretion in favour of the applicant.
6. Having heard the arguments advanced by the respective
parties and considering the aspect that there is no allegation of
forgery made in the FIR against the accused No.4 who is
borrower of the advance made to the accused Nos.2 and 3. The
'No Due Certificate', which is produced with the memo of the
application also reveals that as on today, no any outstanding
dues remain to be paid in the account of accused Nos. 2 and 3.
In addition to that, allegation of forgery, which is made in the
FIR, appears to be against accused Nos.2 and 3 against whom,
FIR has already been quashed. When the dues of the Bank is
already repaid even civil liability by way of recovery proceedings
is also satisfied pursuant to a one time settlement scheme and
contention of the present FIR would be futile exercise. I am also
fortified in my view by the observations made by the coordinate
Bench in oral order in favour of accused Nos. 2 and 3 quashing
the FIR who are original borrower where the proceedings
initiated by the complainant came to be quashed.
7. Hence, the FIR, being C.R.No.I- 207 of 2005 registered with
Madhavpura Police Station, Ahmedabad, is hereby quashed and
set aside qua the present applicant. Rule made absolute. Direct
service is permitted.
(M. K. THAKKER,J)
ASHISH M. GADHIYA
