Gujarat High Court

Pravinchandra Harjivandas ... vs State Of Gujarat on 9 October, 2023

Bench: Sandeep N. Bhatt

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                   FIR/ORDER) NO. 18956 of 2018

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                   PRAVINCHANDRA HARJIVANDAS RAMANUJ
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
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Appearance:
MR GAURANG K CHAUHAN(9858) for the Applicant(s) No. 1
MS MONALI BHATT, APP for the Respondent(s) No. 1 - State
MR BJ TRIVEDI(921) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                               Date : 09/10/2023

                                ORAL ORDER

1. By way of present application, under Section 482

of the Code of Criminal Procedure, 1973, the applicant seeks

quashment of the impugned FIR being CR-I No.80 of 2005 registered with the Bhavnagar 'C' Division Police Station,

District : Bhavnagar for the offences punishable under

Sections 406, 409, 420, 467, 468, 471, 477A, 120B, 34 and

114 of the Indian Penal Code and the proceedings arising

from the impugned FIR being Criminal Case No.8596 of 2005

pending before the learned trial Court at Bhavnagar.

2. The brief facts of the prosecution case are that

one Kalpanaben Shah, a proprietor of one firm, and others

created forged documents and taken the loan facility from the

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bank where the applicant is a custodian and thereby

committed an offence of cheating and forgery by the accused,

where the applicant is shown as an accused along with

others.

3. Heard learned advocates. Learned advocate

Mr.Trivedi for respondent No.2 is not present even in second

call. However, the affidavit of respondent No.2 has filed an

affidavit, which is on record.

4. Rule. Learned APP waives service of notice of rule

on behalf of the State. Considering the fact that the matter

is of the year 2018, the matter is taken up for hearing and

final disposal today.

5. Learned advocate for the applicant has submitted

that the forged documents were created by the other accused,

submitted by them in the bank, availed loan facility, finally

repaid the loan, preferred quashing petition before this Court,

wherein this Court has quashed the complaint vide order

dated 06.09.2018. He has submitted that for the concerned

borrower, the valuer and the loan officer, the proceedings are

already quashed by the Co-ordinate Bench of this Court vide

proceedings being Special Criminal Applications No.8626 of

2018, 5456 of 2018 and 7400 of 2019. He has submitted that

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the applicant was working as custodian of the bank and his

role is very limited to other officers. He has submitted that

the applicant has not sign the documents after signing of

other officers in the hierarchy i.e. loan officer after due

verification and signed the documents. He has further

submitted that at the final stage, the earlier officer of the

bank has also signed the documents. He has submitted that

the case of the applicant is also similar to those for whom

the complaint is quashed by this Court. He has submitted

that the main borrower has already repaid the amount and

there is no monetary loss to the bank. He has submitted

that this application may be allowed.

6. Learned APP for the State has submitted that

prima facie case is made out against the applicant. He has

drawn attention of this Court towards the affidavit filed by

respondent No.2 whereby respondent No.2 has raised objection

about grant of any relief mainly contending that the

applicant is a custodian of the bank. Therefore, his case is

different than the case of other persons. He has relied upon

the decision of the Hon'ble Apex Court in the case of CBI

versus Narendra Lal Jain recorded on Criminal Appeal

No.517 of 2014 dated 28.02.2014 (2014 LawSuit (SC) 145)

and has submitted that criminal proceedings against the

parties other than the borrowers, who had paid up the dues

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of the bank, would continue. The applicant has more

responsibility as custodian of the bank. Therefore, the

proceeding should be continued against him. He has

submitted that this application may be dismissed.

7. I have heard rival submissions made by the

learned advocates for the respective parties. I have perused

the documents available on record. I have also considered the

averments made in this application. Considering the record, it

transpires that the borrower has availed the benefits of one

time settlement scheme of the bank and the borrower has

repaid the entire amount as the said settlement. The present

applicant was a custodian of the bank. There are other

accused than the present applicant. The role of the present

applicant was lesser than the other accused. The complaint in

question has been quashed qua all the accused, including the

main borrower, except the present applicant. The Co-ordinate

Bench of this Court has quashed the impugned complaint qua

other accused i.e. borrower, loan officer, valuer, etc., copy of

the said orders are on record. There is no monetary loss to

the bank. The bank has received entire dues from the

borrower. Since the offence qua other accused has been

quashed, it would be futile exercise if the complaint

impugned be continued with the present applicant.

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8. Further, it will be fruitful to mention at this stage

the judgment of Hon'ble Supreme Court in the case of State

of Haryana V/s Bhajan Lal reported in AIR 1992 SC 604, wherein the Hon'ble Supreme Court has observed thus -

"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.XIV and of the principles of law enunciated by this court in a series of decisions relating to the exercise of the extraordinary power under Art.226 or the inherent powers under sec.482 of the Code which we have extracted and reproduced above, we give the following categories of cases 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 guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) 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.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do

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not disclose a cognizable offence, justifying an investigation by police officers under sec.156(1) of the Code except under an order of a Magistrate within the purview of sec.155(2) of the Code.

(3) 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.

(4) 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 sec.156(2) of the Code.

(5) 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.

(6) 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.

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(7) 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. While quashing the impugned complaint qua one

of the other accused persons, the Co-ordinate Bench has

observed in paragraphs 7 to 9 recorded on Special Criminal

Application No.7400 of 2019 dated 14.06.2022 as under :

" 7. I have considered the submissions made by learned advocates appearing for respective parties. I have also considered the fact that principal borrower has preferred Special Criminal Application No.5456 of 2018 before this Court for quashing the FIR in question. This Court, while allowing the aforesaid application, has observed in paras:3 to 7 as under:

"3. Pursuant to the notice issued by this Court, the respondent No.2 Bank has been represented by learned advocate Mr. Trivedi.

It appears that the impugned FIR came to be lodged at the instance

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of respondent No.2 Bank on the ground that the loan amount was not paid by the present petitioner.

                     However,      it       appears       that      the
                     petitioner     has      paid        the      entire
                     loan    amount         with       interest     and
                     there is no outstanding against

the loan availed by the petitioner.

Even No Due Certificates dated 22.5.2018 and 14.6.2018 have been issued by the Bank which are placed along with the petition at Annexures C and D respectively. Mr. N.V. Gandhi, learned advocate appearing for the petitioner would, therefore, submit that when the amount of loan is paid with interest and no due certificates have been issued in favour of the petitioner, the impugned FIR may be quashed and set aside.

                     4.     Mr.    J.T.        Trivedi,        learned
                     advocate        appearing            for       the
                     respondent         No.2       -     Bank       has
                     opposed this petition and would






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                     submit that the Bank lodged the
                     FIR way back in the year 2005
                     and the loan amount came to be

paid by the applicant recently. He would further submit that the respondent No.2 Bank had to file Civil Suit under the provisions of the Gujarat Cooperative Societies Act. He, therefore, would submit that appropriate cost may be awarded to the Bank.

5. Having heard learned advocates appearing for the respective parties and having considered the No Due Certificates dated 22.5.2018 and 14.6.2018 and considering the allegations made in the FIR in question, I am of the opinion that no fruitful purpose would be served if the petitioner - accused is prosecuted before the learned Trial Court.

When the amount is already paid by the petitioner, I am of the opinion that further continuation of criminal proceedings in relation

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to the impugned FIR against the applicant would be unnecessary harassment to the applicant.

6. Resultantly, this application is allowed and the impugned FIR bearing I C.R. No.80 of 2005 registered with Bhavnagar C Division Police Station filed against the present applicant is hereby quashed and set aside qua the applicant. Consequently, all other proceedings arising out of the aforesaid FIR are also quashed and set aside qua the applicant. Rule is made absolute.

7. As far as the cost is concerned, the petitioner shall pay an amount of Rs.5,000/- towards cost to the respondent No.2 Bank within a period of two weeks from today. The said amount shall be directly paid to the Bank by an A/c. Payee cheque. No extension shall be granted to the petitioner for deposit of the said

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amount."

8.1 The aforesaid facts would go to show that what weighed with the Court while quashing the complaint qua principal borrower was that the entire loan amount was paid by the principal borrower under OTS Scheme. The Bank has also issued No Due Certificate in favour of principal borrower and hence the complaint qua principal borrower was quashed. While quashing the complaint in respect of principal borrower, coordinate Bench of this Court opined that now since No Due Certificate is issued in favour of principal borrower, no fruitful purpose would be served if the accused is ordered to face the trial before the trial Court. This being the observations made by the coordinate Bench in respect of principal borrower, - the main accused, this Court is of the view that no fruitful purpose would be served by prosecuting the present applicant, who is guarantor, as Bank has already received loan amount repaid under the OTS Scheme and issued No Due Certificate thereafter and accordingly the complaint qua that applicant

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viz. Kalpanaben Kantilal Shah is quashed by this Court vide order dtd.06.09.2018 passed in Special Criminal Application No.5456 of 2018.

8.2 As far as submission of learned advocate Mr.Soni for the Bank about the outstanding amount of Rs.10 Crores is concerned, the figure of Rs.10/- Crores this Court could not find anywhere on record. Further, the complaint is confined only to account of principal borrower viz. Kalpanaben Kantilal Shah and hence Court is required to consider the allegations levelled in charge as well as in the charge-sheet levelled against the present applicant in respect of present FIR. As far as other loan accounts are concerned, there may be separate proceedings and, therefore, this Court cannot take into consideration the total amount for which the present petitioner has acted as guarantor. Hence, the aforesaid submission made by learned advocate Mr.Soni is rejected.

9. In view of aforesaid discussion, the FIR being I - C.R.No. 80 of 2005 registered with Bhavnagar 'C' Division Police Station,

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Bhavnagar against the present applicant viz. Jyotiben Rajendrabhai Shah is ordered to be quashed and set aside along with consequential proceedings arising out of the said FIR."

10. In view of above facts and circumstances of the

case as well as considering the other relevant material,

including the orders of quashing passed by the Co-ordinate

Bench of this Court qua other accused, the impugned

complaint need to be quashed qua the present applicant.

11. For the reasons recorded above, the following order

is passed.

11.1 The present application is allowed.

11.2 The impugned FIR being CR-I No.80 of 2005

registered with the Bhavnagar 'C' Division Police Station,

District : Bhavnagar is hereby quashed qua the present

applicant only.