Gujarat High Court
Mukeshbhai Jayantibhai Patel vs State Of Gujarat on 18 August, 2023
Bench: Sandeep N. Bhatt
NEUTRAL CITATION
R/CR.MA/20055/2021 ORDER DATED: 18/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 20055 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 1529 of 2022
With
R/CRIMINAL MISC.APPLICATION NO. 1585 of 2022
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MUKESHBHAI JAYANTIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR YASH K DAVE(10269) for the Applicant(s) No. 1
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MS RITU R GURU(5532) for the Respondent(s) No. 2
MR. SOAHAM JOSHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 18/08/2023
COMMON ORAL ORDER
1. Rule. Learned APP waives service of notice of rule on behalf of
respondent-State.
2. Managing Director to whom the Board of Directors have given
the authority has passed away, and therefore, the proceedings is
abated qua the him and the present petitioner(s), who are Directors
of Bank who has signed the resolution passed in the board meeting.
3. The present petition is filed for seeking following reliefs:
"A) Your Lordship may be pleased to call for record
and proceeding in pursuance of FIR bearing
C.R.No.1 - 6 of 2002 registered with the Anand
Town Police Station, Anand and be further pleased
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to quash and set aside the FIR bearing C.R.No.1-
6/2002 registered with Anand town Police Station,
Anand, for the offences punishable under section
sections 409, 469, 468 of the Indian Penal Code
and the charge-sheet at Annexure-A to the petition
qua the petitioner.
(B) Pending the admission hearing and final
disposal of the petition, Your Lordship may be
pleased to stay further proceedings in Criminal
Case No. 3044 of 2009 pending in the Court of
learned 4th Additional Senior Civil Judge and
learned Chief Judicial Magistrate, Anand;
(C) Any other and further relief or reliefs to which
this Hon'ble Court deemed fit, in the interest of
justice; may kindly be granted;
(D) Costs of the petition be provided."
4. Learned advocate for the petitioner(s), 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 learned advocate for the petitioner 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
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fund.
5. Learned advocate for the petitioner(s) stated that the
petitioner(s) was elected as a Director 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. He further 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 lonee whose dues are
more than Rs.10,00,000/-.
6. Learned advocate for the petitioner(s), 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,
learned advocate for the petitioner stated that the present applicant
was Board of Director and thus he was not required to verify the
documents and sufficiency of the securities and other collateral
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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. He further 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 Director 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 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
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and is not involved in any fraud, cheating, misappropriation of the
public money of the bank.
7. 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.
8. Learned advocate for the petitioner(s) 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 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
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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
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:
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(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
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
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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."
9. Here, it has been categorically stated that the present
petitioner(s) 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(s) has no role in
disbursement of the loan amount and the only function was the
approval of the loan that too was through the board meeting and
are not the chairperson who was chairing the meeting. Thus, prima
facie, no criminality can be attracted, there is no allegation of any
loan taken by the present petitioner for his own use. The liquidators
as accordingly has already recovered most of the money from other
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borrowers and has stated the bank has now surplus amount
towards funds of bank.
10. It is fruitful to refer the judgments of Co-ordinate Bench of this
Court in the cases of (i) Ghanshyambhai Naranbhai Patel versus
State of Gujarat rendered in Criminal Misc. Application
No.13675 of 2019 dated 23.9.2021, (ii) Charotar Gas Sahakari
Mandali Ltd. versus State of Gujarat rendered in Criminal
Misc. Application No.6862 of 2015 dated 28.3.2017, (iii)
Janakbhai Shankarlal Patel versus State of Gujarat rendered
in Criminal Misc. Application No.6857 of 2015 dated
28.10.2015, (iv) Dhananjay Vallabhbhai Patel versus State of
Gujarat rendered in Criminal Misc. Application No.6856 of
2015 dated 28.3.2017, (v) Jayesh Jagdishchandra Dave
versus State of Gujarat rendered in Special Criminal
Application No.5690 of 2014 dated 28.1.2015, (vi) Jayesh
Jagdishchandra Dave versus State of Gujarat rendered in
Special Criminal Application No.5690 of 2014 dated
5.2.2015, (vii) Ashokbhai Ratnabhai Bharwad & Others versus
State of Gujarat rendered in Special Criminal Application
No.1025 of 2015 dated 7.9.2015, (vii) Shaily Construction
Pvt. Ltd. and Others Versus State of Gujarat and Another
rendered in Criminal Misc. Application No.8286 of 2015 dated
23.12.2016, (viii) Pran S. Fultariya versus State of Gujarat
rendered in Criminal Misc. Application No.20569 of 2014 with
Criminal Misc. Application No.20638 of 2014 dated
19.1.2015, (ix) Sangitaben Hiteshbhai Patel versus State of
Gujarat rendered in Special Criminal Application No.1270 of
2013 dated 5.12.2014, (x) Bharatbhai Chimanbhai Patel
versus State of Gujarat rendered in Criminal Misc. Application
No.5030 of 2017 dated 11.5.2018, (xi) Daxesh Mahendrabhai
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Shah versus State of Gujarat rendered in Criminal Misc.
Application No.7847 of 2018 dated 4.5.2018, (xii) Amrut
Shivabhai Fultariya versus State of Gujarat rendered in
Criminal Misc. Application No.20946 of 2014 dated
28.1.2015, and (xiii) Hanubha Manubha Jadeja versus State of
Gujarat rendered in Special Criminal Application No.5582 of
2014 dated 28.1.2015.
11. Taking all the facts in to consideration, the continuation of
the trial against the present petitioner(s) would be rather harsh and
continuation of the trial would create unnecessary hardship and
burden to the petitioner(s).
12. 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(s) is quashed in
all the captioned applications. Rule is made absolute. Direct service
is permitted.
(SANDEEP N. BHATT,J)
DIWAKAR SHUKLA
