Single judge High Court of Gujarat allowed criminal miscellaneous applications to quash FIR against applicants accused as strangers to fraud. Court held prima facie case was made out only against principal borrower, while applicants role was vague and remote.
FIR against applicants qua quashing. Proceeding against principal borrower to be left.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R/CR.MA/9276/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 9276 of 2009 With CRIMINAL MISC.APPLICATION NO. 9966 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.G.URAIZEE Sd/-
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| 1 Whether Reporters of Local Papers may be allowed to see the judgment ? |
NO |
|---|---|
| 2 To be referred to the Reporter or not ? | NO |
| 3 Whether their Lordships wish to see the fair copy of the judgment ? | NO |
| 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? |
NO |
5 Whether it is to be circulated to the civil judge ? NO
========================================= KIRITBHAI PATEL....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
=========================================
Appearance: Mr Pradeep Patel for the Applicant
Dr Narendra Khare with Mr Virendra M Gohil for Respondent No. 2 Mr Neeraj Soni, Addl. Public Prosecutor for the Respondent-State
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CORAM: HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 03/12/2013
COMMON ORAL JUDGMENT
I have heard Mr Pradeep Patel, learned counsel for the applicants in both the applications, Mr Neeraj Soni, learned Additional Public
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Prosecutor for Respondent No.1 – State and Dr Narendra Khare with Mr Virendra M Gohil for Respondent No. 2 – original complainant – Bank.
2 The present petitions have been filed under Section 482 of the Code of Criminal Procedure, 1973 (‘the Code’ for short) to quash and set aside the FIR being C.R. No.I 44 of 2009 dated 22nd July 2009 registered with Sojitra Police Station for the offences punishable under Sections 420, 406, 465, 467, 468, 471, 114 and 120B of the Indian Penal Code (‘the IPC’ for short).
3 Criminal Misc. Application No.9276 of 2009 is filed by accused No.4 – Kirtibhai Patel, who is Dealer of Sonalika Tractors whereas Criminal Misc. Application No.9966 of 2009 is filed by accused Nos.2 and 3, who stood as guarantors to the loan sanctioned to accused No.1 - Mr Baraiya Shankarbhai Somabhai. Since the facts are common, therefore, both the petitions are disposed of by this common judgment and facts are extracted from Criminal Misc. Application No.9276 of 2009.
4 The short facts of the present petition are that one Mr Baraiya Shankarbhai Somabhai, who is cited as accused No.1, approached respondent No.2 – Bank for loan to purchase the tractor of Sonalika make. Respondent No.2 – Union Bank of India had sanctioned the loan and disbursed a sum of Rs.2,90,000/- to said Mr Baraiya Shankarbhai Somabhai. The borrower made default in repayment of the loan amount and therefore Respondent No.2 seized the Tractor and recovered a part of the loan amount by auctioning the Tractor. At the same time, Respondent No.2-Bank approached the Revenue Officer for creating mortgage on the land belonging to accused No.1 and others. At this point of time, Respondent No.2-Bank came to know that the Power of Attorney produced by the borrower at the time of sanctioning and
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disbursement of the loan was sham and bogus as it was purportedly executed by dead persons, namely, Maniben Somabhai and Shantaben who had expired in the year 1998. Thus, Respondent No.2 having realised that the borrower (Accused No.1), the present applicants and accused No.5 have conspired with each other to defraud the government money, filed the aforesaid complaint being C.R.No.I 44 of 2009 on 22nd July 2009 with Sojitra Police Station. Therefore, the present application came to be filed for quashing the aforesaid complaint.
5 Mr Pradeep Patel, learned counsel for the applicants has vehemently contended that there is a delay of five years in lodging the complaint after it came to the knowledge of Respondent No.2 in the year 2005 that the Power of Attorney produced before it was a bogus one. He has further submitted that no specific role is attributed to the applicants in the FIR and there is nothing in the FIR which would remotely suggest that the present applicants were aware of the fact that the Power of Attorney produced by the borrower was a bogus and sham one. He has also further submitted that the Bank has duly recovered the loan amount partly by auctioning the tractor and the balance amount by virtue of the Scheme floated by the Central Government in the year 2008 and that there are no outstanding dues of the borrower. He further submitted that the dispute involved is purely and essentially of a civil nature and hence he has urged that the petitions may be allowed and the complaint against the present applicants may be quashed.
6 On the other hand, learned Additional Public Prosecutor, Mr Neeraj Soni and learned counsel, Mr Virendra Gohil for Respondent No.2-Bank submitted that the transaction between the applicants and Respondent No.2 cannot be said to be purely of a civil nature and it is submitted that there is a colour of criminal intent and act on the part of the applicants and other accused persons and therefore the complaint
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cannot be quashed on the ground that the dispute is of a civil nature. They have further submitted that a bare reading of the FIR shows that the present applicants had accompanied accused No.1 – borrower to the Bank for loan and therefore it was well within the knowledge of the present applicants that the Power of Attorney was bogus. They, therefore, have vehemently submitted that the petition may be dismissed.
7 It emerges from the complaint at Annexure-A that one Mr Baraiya Shanker Somabhai, who is arraigned as accused No.1, approached Respondent No.2-Bank for loan for purchase of the tractor. The applicants of Criminal Misc. Application No.9966 of 2009 stood as Guarantors while petitioner of Criminal Misc. Application No.9276 of 2009 was the Dealer of Sonalika Tractors. A bare perusal of the complaint makes it explicitly clear that it was accused No.1 – Baraiya Shanker Somabhai who had produced the Power of Attorney, which was subsequently found to be bogus. It is true that looking to the nature of the transactions it cannot be said to be solely and essentially of civil nature and there is colour of criminal offence in it, but what we have to examine is whether the applicants have played any role or have committed any act which would come within the purview of a criminal offence. Merely by making bald assertion that all the accused persons including the present applicants came to the bank and requested the Bank to disburse the loan for purchase of Tractor by accused No.1 - Baraiya Shanker Somabhai would not ipso facto give rise to a presumption that all the accused persons hatched a conspiracy and by producing the bogus Power of Attorney obtained finance from Respondent No.2-Bank for purchase of Tractor by accused No.1 - Baraiya Shanker Somabhai. Learned counsel, Mr Pradip Patel for the applicants has relied upon the reported decision of the Honourable Supreme Court in the case of Chunduri Siya Ram Krishna and Anr. v.
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Reddi Ravindra Babu and Anr., AIR 2009 SC 3250 more particularly paragraphs 19, 20, 21 and 22 thereof, which are reproduced hereunder:
“19. We have carefully examined the charge sheet which is a part of the record and which was prepared on the basis of the aforesaid report dated 02.07.2005 and also on the basis of the investigation carried out by the police thereafter in which they had gathered certain information. We have read those allegations made in the charge sheet against all the appellants herein. Most of the allegations in the aforesaid charge sheet are mainly directed against Accused No. 1.
“20. The allegations made against other accused are that Accused No. 1 diverted huge quantities of paddy to NRI industries, Ponnur and made it disappear with the active assistance of Accused Nos. 2 to Accused No. 9 and that Accused No. 1 purchased lands at Nethaji Nagar, Nidubrolu in the name of benamies with the assistance of Accused No. 6 and that Accused No. 1 also purchased valuable properties at Bangalore with the help of Accused No. 2. These are the only allegations made against the role of the present appellants namely Accused Nos. 2 and 3 and Accused Nos. 6, 7 and 8. No specific role is ascribed to any of the aforesaid persons except for stating that the huge quantities of paddy was diverted by Accused No. 1 and made to disappear with the active assistance of Accused No. 2 to Accused No. 9. Without ascribing any specific role to any one of them the aforesaid allegation appear to us to be very bald and vague. Similarly the allegations made against Accused No. 2 and Accused No. 3 that they had helped their father in purchasing some property is also very vague as no specific role is ascribed to them.
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“21. In our considered opinion, no useful purpose would be served by allowing the prosecution against aforesaid accused persons (the appellants herein). There is no concrete and direct allegation against all these persons ascribing any definite role to each one of them in the offence alleged. The statements shown to us as allegations amounting to prima facie evidence against them, according to us, are very bald and vague statements on the basis of which no case could be made out.
“22. We are of the opinion that such allegations do not make out a case of prima facie evidence. Consequently, we have no other option but to quash the proceedings as against the appellants herein i.e. Accused Nos. 2 and 3 and Accused Nos. 6 to 8. While doing so, however, we make it clear that we express no opinion so far as the allegations made in the said charge sheet against Accused No. 1 and other accused persons are concerned. We also make it clear that the observations made herein by us are only with respect to the criminal proceedings and none of these observations shall be construed as an opinion of ours so far civil liability, if any, is concerned.”
8 Here, in the present case while the material allegations are made against accused No.1 - Baraiya Shanker Somabhai, who is the borrower and as aforesaid only bald allegations are made against the present applicants that they had accompanied accused No.1 when he came to the bank for getting loan to purchase the tractor. In the backdrop of these peculiar facts, it is very clear that there is no prima facie case against the present applicants. The chances of conviction of the applicants are remote and bleak. No fruitful purpose would be served by allowing the prosecution against the present applicants to continue.
9 In the result, the present applications succeed and are hereby allowed. The offence registered against the present applicants vide FIR
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being C.R. No.I 44 of 2009 dated 22nd July 2009 registered with Sojitra Police Station for the offences punishable under Sections 420, 406, 465, 467, 468, 471, 114 and 120B of the IPC is hereby quashed. It is made clear that the said FIR is quashed qua the present applicants only. So far as accused No.1 - Baraiya Shanker Somabhai and accused No.5 - Patel Ajaybhai Narendrabhai are concerned, the law shall take its own course and the case against them shall be decided in accordance with law. Rule is made absolute accordingly.
Sd/- (A.G.URAIZEE, J.)
*mohd
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3 issues framed by the court
Whether the complaint against applicants stands the test of prima facie criminal case requiring quashing.
Whether specific allegations of criminal intent or active role against applicants exist in the FIR.
Whether mere accompaniment to a bank for loan disbursement constitutes ground for accusing applicants in offence.
Colour shows how this judgement treated each authority
Chunduri Siya Ram Krishna and Anr. v. Reddi Ravindra Babu and Anr.Referred¶37
AIR 2009 SC 3250 · Who else cites this
1 provisions across 1 enactments
KIRTIBHAI PATEL
STATE OF GUJARAT
UNION BANK OF INDIA
A.G.URAIZEE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
