1.0 Present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the petitioners hereinoriginal accused to quash and set aside the impugned complaint being Inquiry Case No. 56 of 2002 pending in the Court of learned JMFC, Surat as well as M Case No. 6 of 2002 of DCB Police, Surat City lodged against the applicants for the offences punishable under Sections 406, 420, 467, 468, 471, 120B, 114 r/w 34 of the Indian Penal Code. The petitioners have also prayed to quash and set aside the non bailable warrant issued against the petitioners.
2.0 At the outset, it is required to be noted that Shri R.R. Marshall, learned Senior Advocate appearing for the applicants does not press the present application qua applicant nos. 1, 2 and 4 so far as their prayer to quash and set aside the impugned complaint is concerned and seeks permission to withdraw the same. However, he has requested to convert the non bailable warrant into bailable warrant so far as applicant nos. 1, 2 and 4. Under the circumstance, present Criminal Miscellaneous Application is dismissed as withdrawn so far as applicants no. 1, 2 and 4 are concerned. Under the circumstance, this Court is required to consider the present application qua rest of the applicants i.e. applicants nos. 3 and 5 to 14 to quash and set aside the impugned complaint/ inquiry / M Case.
3.0 That the original complainant has filed a private complaint in the Court of learned JMFC, Surat against all the accused being Inquiry Case No.56 of 2002, for the offences punishable under Sections 406, 420, 467, 468, 471, 120B, 114 r/w 34 of the Indian Penal Code alleging inter alia that the complainant is a resident of Surat and claims that he is engaged in the business of investment. Accused no.1 Bank is a Registered Cooperative Bank under the Cooperative Act and is engaged in the business of Banking. Accused No.2 is the then Chairman, Accused No.3 is the then Managing Director, Accused no.4 is the then Manager of the Bank, Accused no.5 is the then Sr. Officer, Accused nos. 6 and 7 are the then Vice Chairman and the then Joint Managing Director respectively and accused nos. 8 to 14 are the Directors of the Bank.
3.1. It is the case of the complainant that in connection with one transaction he had handed over three under cheques duly signed by him for the amount of Rs. 30 lacs, Rs. 30 lacs and Rs. 40 lacs respectively. The name of the Payee was not written in the said three instruments. It is the case of the complainant that at the relevant time he had incurred some debt and some amount was due and payable by him in favour of the Bank of India and Indian Bank and to discharge the said liability he had issued the three cheques referred to above as securities and had handed over to accused no.2 the then Chairman of the Bank. It is the case that the same were handed over to accused no.2the then Chairman of the Bank with a view to raise money from the market to enable him to discharge his liability towards Bank of India as well as Indian Bank. It is the case of the complainant that somehow he managed to raise the money and discharge his liability. Thereafter the complainant requested accused no. 2 the then Chairman of the Bank to return the aforesaid three instruments which were in possession and custody of accused no.2. It is the case of the complainant that accused no.2 did not return the three cheques in question to the complainant, but accused no.2 is alleged to have filled up the name of of accused no.1 bank i.e. The Panchsheel Mercantile Cooperative Bank Ltd as the payee of the cheques and presented the cheques for encashment. The three cheques said to have been drawn in favour of accused no.1 Bank by the complainant, were dishonoured on account of insufficient funds in the account of the complainant. It is the case of the complainant that in this manner the accused no.2 the then Chairman of the Bank who was obliged to return the three instruments back to the complainant, failed to return and hand over the same but dishonestly entered the name of the Bank as the payee and deposited the same in the Bank for encashment. It is the case of the complainant that on the basis of which the accused person i.e. the Bank has lodged a false complaint against him for the offence under Section 138 of the Negotiable Instruments Act for dishonour of three cheques. It is the case of the complainant that there was no existing debt or liability of the complainant on the date when he had handed over three cheque to accused no.2. It is the case of the complainant that there was no legally enforceable debt but by misusing the three instruments and by trying to monetarily gain something wrongfully, subsequently a false complaint under Section 138 of the Negotiable Instruments Act came to be lodged. It is alleged by the complainant that in this manner the accused persons have committed the offence of Criminal breach of trust, cheating, forgery of valuable security, forgery for the purpose of cheating and using as genuine a forged document.
3.2. That the learned Magistrate sent the said complaint for police investigation under Section 156(3) of the Code of Criminal Procedure to DCB Police, Surat City and the said complaint has been registered as M Case No. 6 of 2002. That DCB Police, Surat City investigated the complaint and submitted “B” Summary Report with prosecution before the learned JMFC, Surat. That the learned JMFC after giving an opportunity to the complainant rejected the “B” Summary with prosecution report filed by the police and ordered issuance of the process against the accused persons for the aforesaid persons and also ordered issuance of non bailable warrants against all the accused i.e. petitioners. Being aggrieved and dissatisfied with the impugned complaint as well as order passed by the learned Magistrate directing to issue process against the applicants no. 3 and 5 to 14 for the offence punishable under Sections 406, 420, 467, 468, 471, 120B, 114 r/w 34 of the Indian Penal Code and directing to issue non bailable warrant against accusedpetitioners, petitioners have preferred present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure.
4.0 Shri Marshall, learned Senior Advocate for the petitioner nos. 3 and 5 to 14 has vehemently submitted that as such petitioner nos. 3 and 5 to 14 have not committed any offence as alleged. It is submitted that at the most it can be said that the main allegations are against the original accused nos. 1, 2 and 4. It is submitted that looking to the allegations and averments in the complaint no case is made out against the applicant nos. 3 and 5 to 14 for the offence alleged, for which the learned Magistrate has directed to issue process against the applicants. It is submitted that only allegation against the applicant nos. 3 and 5 to 14 is that the applicants as a Directors are party to the resolution passed by the Bank to file complaint against the complainant for the offence under Section 138 of the Negotiable Instruments Act. It is submitted that except above there are no further allegations and averments in the complaint making out even prima facie case for the offence alleged. Therefore, it is requested to allow the present application.
4.1. Shri Marshall, learned Senior Advocate for the petitioners has further submitted that even the learned Magistrate has materially erred in directing to issue non bailable warrant against the applicants. It is submitted that in the facts and circumstance of the case the order passed by the learned Magistrate directing to issue non bailable warrant against the applicants deserve to be quashed and set aside. Shri Marshall, learned Senior Advocate for the applicants inclusive of applicant nos. 1, 2 and 4 has stated at the bar that applicants no. 1 ,2 and 4 shall appear before the learned trial Court / Magistrate on 27.1.2012 and therefore, it is requested to convert the non bailable warrant into bailable warrant so far as applicants no. 1 ,2 and 4 are concerned.
5.0 Shri Dabhi, learned APP has appeared on behalf of the Investigating Officer and Ms. Shah, learned advocate has appeared on behalf of the heirs of the original complainant (as during the pendency of the proceedings original complainant has died). She is not in a position to satisfy the Court how the applicants no.3 and 5 to 14 have committed any offence for the offence under Sections 406, 420, 467, 468, 471, 120B, 114 r/w 34 of the Indian Penal Code, for which the learned Magistrate has issued the process against them. Therefore, it is requested to pass appropriate order.
6.0 Having heard the learned advocates for the respective parties and considering the material on record inclusive of impugned complaint, it appears that so far as applicant nos. 3 and 5 to 14 are concerned they are arraigned as accused as Directors of the original accused no. 1 Bank and only allegation against them is that they were party to the resolution passed by the Bankoriginal accused no.1 to file complaint against the complainant for the offence under Section 138 of the Negotiable Instruments Act. Except above, there are no specific allegations and averments against applicant Nos. 3 and 5 to 14 even making out a prima facie for the aforesaid offences. Looking to the averments and allegations in the complaint, it appears that main allegations seems to be against the original accused nos. 1, 2 and 4 whose application is not pressed by them. Under the circumstance, when no prima facie case is made out against the applicant nos. 3 and 5 to 14 for the offences alleged, to continue the criminal proceedings against them would be unnecessary harassment to them and would be abuse of process of law and Court and therefore, this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned complaint / criminal proceedings qua applicant nos. 3 and 5 to 14.
6.1. Now, so far as the prayer on behalf of the applicant nos. 1,2 and 4 to convert nonbailable warrant into bailable warrant, learned advocate for the respondents have not seriously opposed the same. As stated above, Shri Marshall, learned Senior Advocate for the applicant nos. 1, 2 and 4 has stated at the bar that the applicant nos. 1. 2 and 4 shall appear before the concerned Magistrate on 27.1.2012. Under the circumstance, the prayer of applicant nos. 1,2 and 4 to convert non bailable warrant issued against them into bailable warrant deserves consideration.
7.0 In view of the above and for the reasons stated above, present application succeeds in part. The impugned Criminal proceedings against the applicant nos. 3 and 5 to 14 arising out of the Criminal Inquiry Case No. 56 of 2002 pending in the Court of learned JMFC, Surat as well as M Case No. 6 of 2002 registered with DCB Police, Surat City are hereby quashed and set aside. Consequently, the order passed by the learned learned JMFC, Surat directing to issue process against the applicant nos. 3 and 5 to 14 for the offences punishable under Sections 406, 420, 467, 468, 471, 120B, 114 r/w 34 of the Indian Penal Code and directing to issue non bailable warrant against them are hereby quashed and set aside. Rule is made absolute to the aforesaid extent so far as applicant nos. 3 and 5 to 14 are concerned. However, the same shall be without prejudice to the rights and contentions of the prosecution against applicant nos. 1, 2 and 4 and the trial against them shall be proceeded further by the learned Magistrate in accordance with law and without in any way being influenced by the present order of quashing and setting aside the criminal proceedings qua applicant nos. 3 and 5 to 14. So far as applicant nos. 1, 2 and 4 are concerned, present appliction is dismissed as withdrawn so far as their prayer to quash and set aside the impugned criminal proceedings are concerned and Rule is discharged. However, non bailable warrant issued against the applicant nos. 1, 2 and 4 is concerned, same is directed to be converted into bailable warrant in a sum of Rs. 10,000/ on condition that the applicants no. 1, 2 and 4 shall appear before the learned Magistrate on 27.1.2012 as agreed by Shri Marshall learned Senior Advocate for the applicant nos. 1, 2 and 4. Rule is made absolute to the aforesaid extent only so far as applicant nos. 1, 2 and 4 are concerned. D.S. Permitted.
kaushik sd/ (M.R.SHAH, J.)