Madhya Pradesh High Court
Shiv Kumar Sharma vs The State Of Madhya Pradesh on 6 August, 2024
Author: Vivek Rusia
Bench: Vivek Rusia
1 MCRC-13012-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON August 6, 2024
MISC. CRIMINAL CASE No. 13012 of 2023
SHIV KUMAR SHARMA
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri N.K. Gupta, Senior Advocate, with Shri Raghvendra Dixit and Shri
S.D.S. Bhadoriya, Advocates for the petitioner.
Shri Rohit Mishra, Additional Advocate General for the respondent no. 1
state
Shri D.P.Singh, Advocate for respondent nos. 2 and 3.
WITH
WRIT APPEAL No. 934 of 2022
DISTRICT COOPERATIVE CENTRAL BANK MARYADIT H.O. COURT
ROAD SHIVPURI DISTRICT SHIVPURI (M.P.) THROUGH
Versus
SHIVKUMAR SHARMA AND OTHERS
Appearance:
Shri D.P.Singh, Advocate for the appellant.
Shri N.K.Gupta, Senior Advocate, with Shri Raghvendra Dixit and Shri
S.D.S. Bhadoriya, Advocates for respondent no. 1.
Shri Rohit Mishra, Additional Advocate General for the
respondents/State.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 8/8/2024
5:23:17 PM
2 MCRC-13012-2023
JUDGEMENT
Per: Justice Vivek Rusia
As these matters arise out of the same controversy, they are being decided
by this common judgment.
2. M.Cr.C. No.13012/2023 has been filed by Shiv Kumar Sharma
(hereinafter referred to as the petitioner) seeking quashment of FIR No.486/2022
registered at Police Station Karera, District Shivpuri, for the offences punishable
under sections 420, 409, 120B of the IPC and sections 12, 13(1)(a), 13(1)(b),
13(1)(c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and
consequential proceedings, whereas W.A. No.934/2022 has been filed by District
Co-operative Central Bank Maryadit against the order dated July 22, 2022 passed
in W.P. No. 12313/2022.
3. Facts of the case, in short, are as follows:
The aforesaid FIR was registered on a complaint made by Sarjan Singh
Bhadauriya, Branch Manager, District Co-operative Central Bank, Branch Karera.
Apart from the petitioner, the FIR has also been registered against Sitaram Thakur,
Banking Assistant, Gurudev Kushwah, Peon, Arun Bhargava, Peon, and Ravindra
Bhargava, Incharge Branch Manager. The FIR has been lodged in respect of the
withdrawal and misappropriation of Rs. 3,82,79,236/-. The preliminary audit
report submitted by Chartered Accountant S.K. Lulla & Co. revealed that
withdrawals of Rs. 23,41,175 on November 13, 2017, Rs. 49,80,000 on January
11, 2018, Rs. 70,60,505 on July 4, 2018, Rs. 38,97,556 on February 18, 2019, and
Rs. 2,00,00,000 on April 25, 2019 were suspicious, resulting in a loss of Rs.
3,82,79,236 to the bank in which petitioners Shiv Kumar Sharma, Gurudev
Kushwah, Arun Bhargav, Sitaram Thakur, and Ravindra Bhargav are prima facie
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involved.
4. Before the investigation could be started, the petitioner rushed to this
Court by way of this petition on the ground that the present FIR is nothing but a
counter-blast to the order dated May 11, 2022, passed by this Court in W.P. No.
10975/2022. It is submitted that the petitioner has not committed any
misappropriation or corruption. The FIR has wrongly been registered against him.
According to the petitioner, a recovery notice dated April 13, 2022 was sent to the
petitioner, demanding Rs. 3,82,79,236/-. Before issuing show-cause notice, no
inquiry report/audit report was supplied to him, and no opportunity of hearing was
given. Petitioner filed W.P. No. 10975/2022, challenging the recovery notice
dated April 13, 2022. The petition was disposed of on a concession recorded by
the respondents that a copy of the inquiry report/audit report shall be supplied to
the petitioner for filing a reply and preparing his defence.
5. According to the petitioner, instead of complying with the aforesaid
order, the branch manager sent a written complaint to SHO, Police Station Karera,
for lodging an FIR. District Co-operative Central Bank also filed a review petition,
which was dismissed on July 18, 2022. Petitioner approached this Court by way of
W.P. No. 12313/2022, seeking quashment of the complaint dated May 18, 2022,
and direction to the respondents to follow the procedure prescribed in sections 83
to 85 of the M.P. Co-operative Societies Act, 1960. By order dated July 22, 2022,
this Court allowed the writ petition, observing that instead of quashing the
complaint made to the SHO, the same shall be kept in abeyance till the final order
is passed by the competent authority after giving due opportunity of hearing.
Again, direction was given to the bank to positively supply a copy of the
preliminary inquiry report to the petitioner before proceeding further in the
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matter. It was further observed therein that, so far as the audit report is concerned,
the same has already been filed along with the return. The petitioner has already
been granted the opportunity to file a reply /objection to the preliminary report
within 10 days from the date of receipt of the preliminary report. The writ court
has also observed that if the finding is recorded that the petitioner is responsible
for defalcation, then the said complaint made by the respondent/bank shall
automatically stand revived in toto, and if the petitioner is found innocent, then the
bank shall withdraw the complaint that has been sent to the SHO, Police Station,
Karera. A cost of Rs. 50,000/- has also been imposed on the bank for bypassing
the order passed by this court in W.P. No. 10975/2022. Being aggrieved by the
aforesaid order, the District Co-operative Bank has filed W.A. No. 934/2022.
6. We have heard and learned counsel for the parties.
7. The writ court has not quashed the complaint sent by the branch manager
to the SHO. On the said complaint, FIR No. 486/2022 has already been registered
not only against the petitioner but against four others who are not before this
Court. The FIR has been registered as per the procedure prescribed under the
Cr.P.C. and the PC Act. The investigation is liable to be completed by the police,
and if, in the investigation, nothing adverse is found against the petitioner, no
chargesheet would be filed against him. The petitioner twice rushed to this court
after receiving a demand notice sent by the bank. The writ court has rightly
observed that a direct demand notice was sent without conducting any inquiry and
without giving any opportunity of hearing to the petitioner, and liberty has been
granted to the petitioner to submit a reply and face the proceedings. The writ court
has stayed the investigation in the criminal case until the inquiry is completed by
the competent authority. The scope of the inquiry and the scope of the
investigation by the police are both altogether different. The inquiry by the bank
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shall be conducted under the provisions of the Service Rules as well as the Co-
operative Societies Act, while the investigation shall be conducted by the police in
respect of offences punishable under sections 420, 409, and 120B of the IPC and
sections 13(1)(a), 13(1)(b), 13(1)(c), 13(1)(d), and 13(2) of the Prevention of
Corruption Act. At this stage, the petitioner cannot be given a clean chit that he
did not commit any offense, and the FIR has wrongly been registered against him.
At this stage, neither the Bank has conducted any enquiry nor the Police have
completed the investigation. The petitioner filed the writ petition challenging the
written complaint sent by the bank to the police, but thereafter an FIR was
registered, which has not been quashed. Therefore, the investigation ought not to
have been stayed by the writ court. Let the police conduct the investigation, and if
nothing is found against the petitioner, then a closure report can be filed against
him or he may be dropped from the list of accused.
8. Hence, M.Cr.C. No. 13012/2023 is dismissed . This M.Cr.C. was also
dismissed vide order dated 12/4/2023, against which the petitioner approached the
Apex Court by way of Civil Appeal No. 3347 of 2023, in which interim protection
was granted to the petitioner on 18/8/2023 and continued till 8/1/2024. Shri
Gupta, learned senior counsel, submits that because of interim protection, the
petitioner has not been arrested by the police so far; therefore, the said protection
should be continued for a period of four weeks so that the petitioner may apply
under Section 438 of the Cr.P.C.
9. The prayer made by Shri Gupta appears to be genuine.
10. The interim protection granted by the Apex Court shall continue for a
further period of four weeks from today.
11. In view of the aforesaid discussion, W.A. No. 934/2022 is also disposed
of with the direction that the police shall start and conclude the investigation in
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pursuance of the FIR registered at Crime No. 486/2022. The bank shall complete
the inquiry as directed by the writ court. Subject to completion of the inquiry
within thirty days from today, the cost of Rs. 50,000/- imposed on the bank is
hereby waived.
A copy of this order will be retained in the connected appeal.
(VIVEK RUSIA) (RAJENDRA KUMAR VANI)
JUDGE JUDGE
(and)
