1 By way of the present application, the applicants who are original accused Nos. 2, 3 and 4 in C.C. No. 1887 of 2005 (Criminal Complaint No. 5001 of 2005) have challenged the Order dated 28.7.2005 issued by learned Judicial Magistrate, First Class (First Court) , Vadodara, by which the learned Magistrate has issued summons under Sections 406, 420 and 120-B of the Indian Penal Code against the applicants as well as quashment of complaint filed by respondent No.2 - Mukesh Kanubhai Shah.
2 It is the case of the applicants that the applicant No. 3 is the Bank, which undertakes banking activities and applicant No.1 is the General Manager in the main Branch at Mumbai and applicant No.2 is the Branch Manager at Vadodara of the Bank. The complainant applied for financial assistance from the Bank for construction of a new house and made application through the Officer/Sales–Mortgages of the Bank. It is the say of the complainant that the Officer assured him that after completing the required formalities, as per the rules of the Bank, the Bank will finance for home loan at the tune of Rs.10 lacs. The Bank demanded Rs. 5,000/- for processing the entire loan papers which was paid by the complainant vide Cheque No. 084844 to the Bank which was encashed by the Bank. As per EMI, the complainant gave 36 advance cheques of Rs.8,056/- each from 18.3.2005 to 15.2.2005 having Cheques No. 089001 to 089036 and also gave a blank Cheque No.089037, as demanded by the Bank.
3 It is the say of the complainant that by letter dated 30th July, 2004, the Bank informed that the loan amount to the tune of Rs. 10 lacs, as a home loan, has been sanctioned and the period of re-payment will be 240 months with other conditions as mentioned in the said letter. It is the case of the complainant that though the sanctioned amount of Rs. 10 lacs was not disbursed in favour of the complainant, all the accused persons, with dishonest intention to cheat the complainant, deposited one cheque No.089001 dated 18.3.2005 for Rs. 8,056/- towards the first EMI. It was alleged in the complaint that though the loan was not disbursed, the Bank, in connivance with the Officers, deposited the said cheque in the loan account.
4 Since the loan amount was not disbursed, the complainant informed the Bank not to encash the remaining cheques.
5 With these allegations that though the loan was not disbursed, the Bank had encashed Rs.5,000/- towards process fee as well as towards one EMI of Rs. 8,056/-, constitutes the offence under Sections 406, 420, 467, 468, 471 and 120-B of the Indian Penal Code. After verification, the learned Magistrate found, which is reflected in the Order dated 28.7.2005, that there are no ingredients of offence under Sections 467, 468 and 471 of the IPC as alleged by the complainant, however, issued summons only for the offences under Sections 406, 420 and 120-B of the I.P.C.
6 Being aggrieved and dissatisfied with the the said Order, the applicants-accused challenged the order of issuing summons as well as prayed to invoke inherent power under Section 482 of the Criminal Procedure Code and quashment of said complaint, which came up for hearing before this Court on 16.11.2007. The Court while admitting the matter, granted ad- interim relief, by which the further investigation pursuant to the order dated 28.7.2005 passed in Criminal Case No. 1887 of 2005 (Criminal Complaint No. 5001 of 2005) was stayed. The respondent No.2 – complainant was served with the said order but did not remain present on several occasions. On 19.3.2008 by observing that despite service of notice of rule, there was no appearance on behalf of respondent No.2, the interim relief which was granted on 16.11.2007 staying the further investigation, came to be confirmed. Till today, the respondent No.2 has chosen not to file any appearance and has also not filed any reply contesting the present application which is filed under Section 482 of the Code of Criminal Procedure to quash and set aside the criminal case.
7 Heard learned Advocate Mr. P.R. Abichandani for the applicants. He has taken this Court through several aspects of the matter. The relevant dates in the present case are as under:
That the complaint was filed on 27.6.2005 and on the same day, the learned Judicial Magistrate fixed the matter for hearing on 11.7.2005. Though, the matter was fixed on 11.7.2005, no orders were passed by the Magistrate. The verification of the complainant was made on 25.7.2005 and finally the impugned order of issuing summons was passed on 28.7.2005. He submits that the allegations made in the FIR are not the true facts. The Bank has committed no offence as alleged by the complainant. He submits that the loan papers were processed and examined by the Officers and, therefore, Rs. 5,000/- was deposited which was received from the complainant towards the processing fees which is taken in every case. Since sufficient documents which are required for sanctioning of the loan were not supplied, the complainant was requested to supply the same and was informed that after supplying the necessary documents, the amount shall be disbursed as a home loan. He submits that a Demand Draft for Rs.8,50,000/-
, a copy of which is produced at page 27 of the petition, was prepared towards the home loan in the name of the applicant, but it was not disbursed in absence of any sufficient documents which were demanded by the Officer of the Bank. Again Demand Draft of Rs. 10 lacs dated 18.4.2005 was also prepared in the name of the respondent No.2 – complainant, but the same was not disbursed since the Chennai Office instructed not to disburse the same and, therefore, it was cancelled. Due to these reasons, the loan amount could not be disbursed.
8 He further submits that since the correspondence was going on between the Head Office as well as the Branch Office, by mistake, the first installment of Rs. 8,056/- was encashed by the Bank. Since the loan was was not sanctioned, the Bank by its letter dated 14th May, 2005, sent a Pay Order No. 120676 dated 14.5.2005 being the refund of the first installment, which was encashed by the Bank. The letter dated 14.5.2005 along with a xerox copy of the Pay Order are produced by the applicants along with this application. In view of this factual aspect, he submits that by Pay Order of Rs.8,056/- the encashed first EMI was already paid to the complainant on 14th May, 2005, the allegations made in the complaint are totally false and the intention of the complainant was to harass the Bank by dragging it in the criminal proceedings.
9 The amount of Rs. 5,000/- which was encashed by the Bank towards process fee is concerned, he submits that by letter dated July 1, 2005, the Bank sent a letter along with a Pay Order No. 004598 for Rs. 5,000/- to the complainant and made it clear that, though there is no policy of the Bank to refund the processing fee, as a special case, the same has been refunded to him. He submits that in view of the payment of Rs. 5,000/- on July, 1, 2005, the complainant was aware about the receipt of Rs. 5,000/- and, therefore, the verification was made before the learned Magistrate on 25.7.2005 is a false statement made by the complainant before the court. He submits that the complainant suppressed the fact that he had received Rs. 8,056/- in the month of May and Rs. 5,000/- in July itself and, therefore, the conduct of the complainant is required to be deprecated.
10 After having heard Mr. Abichandani, learned Advocate for the applicants and Mr. Neeraj B. Soni, learned APP for the respondent No.1 – State and after perusing the complaint as well as the documentary evidence came on record and in absence of any reply by the original complainant, this Court is of the view that the complainant had received the money partly before filing of the complaint and partly before the date of verification. Therefore, this Court is of the view that the allegations set out in the complaint do not constitute any offence under Sections 406, 420 and 120-B of the IPC and, therefore, this Court would like to exercise its inherent powers under Section-482 of the Criminal Procedure Code. This Court is also of the view that if the investigation is permitted to be carried out further by the Police Officers, it would be an abuse of process of law which was intended by the complainant.
11 In the result, the Application is allowed. The Criminal Case No. 1887 of 2005 (Criminal Complaint No. 5001 of 2005) is quashed and set aside qua the applicants and consequently the Order dated 28.7.2005 passed by the Judicial Magistrate, First Class, (1st Court) Vadodara, issuing summons under Sections 406, 420 and 120-B of the Indian Penal Code is also quashed and set aside. Rule is made absolute accordingly. D.S. is permitted.
(A.J. DESAI, J.) pnnair