[1.0] Present Special Criminal Application under Article 227 of the Constitution of India has been preferred by the petitioner herein – original complainant to quash and set aside the impugned order dated 14.05.2008 passed by the learned Judicial Magistrate, First Class, Petlad passed in Inquiry Case No.35/2003 upon 'C' summary report filed by the Investigating Officer in that case and consequently dismissing the said complaint as well as the impugned judgment and order dated 24.11.2008 passed by the learned Additional Sessions Judge, Anand in Criminal Revision Application No.57/2008. [2.0] Facts leading to filing of the present petition in nutshell are as under:
[2.1] That the petitioner herein – original complainant had filed a private complaint under Section 190 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) in the Court of learned JMFC, Petlad against accused persons respondent Nos.2 to 6 herein for the offences punishable under Sections 406, 420, 465, 467, 468, 409 and 120B of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) alleging interalia that though it has alleged that the complainant has taken the loan of Rs.2 lacs from the bank – Petlad Commercial Bank, no such loan is taken by him and loan documents are forged documents and even no such amount of Rs.2 lacs has been withdrawn by him and somebody had withdrawn the said amount. That in the said complaint, initially the learned Magistrate passed an order for sending the said complaint for police investigation under Section 156(3) of the CrPC. However, subsequently, the order of police investigation under Section 156(3) of the CrPC came to be recalled and the learned Magistrate passed an order for inquiry under Section 202 of the CrPC. That thereafter after holding inquiry under Section 202 of the CrPC, the learned JMFC, Petlad dismissed the said complaint in exercise of powers under Section 203 of the CrPC on 29.09.2004 mainly on the ground that for the recovery of aforesaid amount of Rs.2 lacs, a suit is already filed and therefore, with a view to not to make the payment of loan amount, the complaint has been filed. It appears that being aggrieved and dissatisfied by the learned JMFC, Petlad dated 29.09.2004 in dismissing the said complaint as well as recalling the earlier order of sending the complaint for police investigation under Section 156(3) of the CrPC, the petitioner preferred Criminal Revision Application No.153/2004 before the learned Sessions Court, Nadiad and the learned Additional Sessions Judge, Nadiad by judgment and order dated 23.02.2005 allowed the said Revision Application and quashed and set aside the order passed by the learned JMFC, Petlad in dismissing the Court Inquiry No.35/2003 and the order by which the earlier order to send the complaint for police investigation under Section 156(3) of the CrPC was recalled and remanded the matter to the learned JMFC, Petlad. It appears that thereafter the learned JMFC passed an order on 01.04.2006 sending the said complaint for police investigation under Section 156(3) of the CrPC to P.I., Petlad Town Police Station and the learned Magistrate directed the Investigating Officer to submit the report. That thereafter after investigation, Investigating Officer of Petlad Town Police Station had submitted the 'C' summary report by submitting that dispute is purely of civil nature for which a suit before the learned Board of Nominee Court is pending. That the said 'C' summary report was objected by the petitioner. It was submitted that the IO has not investigated the case properly and even statement of the complainant and other witnesses have not been recorded. Therefore, it was requested not to accept the 'C' summary report and it was requested to pass the order for reinvestigation. That the learned JMFC, Petlad by impugned order dated 14.05.2008 has accepted the said 'C' summary report. Being aggrieved and dissatisfied with the order passed by the learned JMFC, Petlad in accepting 'C' summary report, the petitioner preferred Criminal Revision Application No.57/2008 before the learned Sessions Court, Anand and the learned Additional Sessions Judge, Anand by impugned judgment and order dated 24.11.2008 has dismissed the said Revision Application with cost. Being aggrieved and dissatisfied with the impugned orders passed by the learned Magistrate accepting the 'C' summary report and the order passed by the Revisional Court in confirming the said order, the petitioner preferred the present Special Criminal Application under Article 227 of the Constitution of India.
[3.0] Shri Jigar Gadhvi, learned advocate appearing on behalf of the petitioner has vehemently submitted that the learned Magistrate has materially erred in accepting the 'C' summary report. It is submitted that it was specifically pointed out to the learned Magistrate that there was no proper investigation by the IO and even the statement of the complainant as well as other witnesses were not recorded. It is submitted that the learned Magistrate has materially erred in accepting the 'C' summary report solely on the ground that dispute is of civil nature and for recovery of amount of Rs.2 lacs, a civil dispute is pending in the Court of learned Board of Nominee Court. It is submitted that merely because a suit was filed by the Bank to recover the amount of Rs.2 lacs, the complaint was not required to be quashed and set aside. It is submitted that as such there were specific allegations and averments in the complaint with respect to forging the loan documents and the signature / thumb impression of the petitioner and it was specifically alleged that the petitioner has not withdrawn any amount of Rs.2 lacs as alleged and somebody had withdrawn the amount of Rs.2 lacs. Therefore, all these allegations and averments were required to be investigated by the IO. It is submitted that the aforesaid allegations cannot be investigated by the learned Board of Nominees in the suit. It is submitted that even otherwise considering the decisions of the Hon'ble Supreme Court in the case of Kamaladevi Agarwal v. State of W.B. & Ors. reported in (2002)1 SCC 555 as well as in the case of Vitoori Pradeep Kumar v. Kaisula Dharmaiah & Ors. reported in (2002)5 SCC 581 as well as recent decision in the case of Mohammed Ibrahim and Ors. v. State of Bihar and Anr. reported in 2010 (1) GLH 184 both civil proceedings and criminal proceedings are permitted simultaneously as both are different. Therefore, it is submitted that Revisional Court has also materially erred in dismissing the Revision Application and confirming the order passed by the learned Magistrate accepting the 'C' summary report. Therefore, it is requested to allow the present Special Criminal Application.
[4.0] Learned advocates appearing on behalf of the original accused have tried to oppose the present petition by submitting that there are concurrent finding of facts given by both the Courts below which are not required to be interfered by this Court in exercise of powers under Article 227 of the Constitution of India. It is submitted that the learned Magistrate has rightly accepted the 'C' summary report on the ground that with respect to the recovery of Rs.2 lacs, a suit is already filed by the Bank and therefore, the dispute is of civil nature. Under the circumstances, it is requested to dismiss the present petition.
[5.0] Heard the learned advocates appearing for respective parties at length and considered the impugned orders passed by both the Courts below. At the outset it is required to be noted that the IO submitted the 'C' summary report mainly on the ground that civil dispute is pending between the parties and a suit is already filed by the Bank in the Court of learned Board of Nominees for recovery of the amount of Rs.2 lacs and the impugned complaint has been filed so as not to make payment of the loan amount and the said 'C' summary report has been accepted by the learned Magistrate which has been confirmed by the learned Revisional Court. However, it is required to be noted that as such there are specific averments and allegations in the complaint that the loan documents have been concocted and forged and the petitioner complainant in whose favour the loan was disbursed has not put his signature / thumb impression and some other person has taken the loan amount. Therefore, the aforesaid allegations are required to be investigated by the IO. Merely because a suit is filed for recovery of the amount, it cannot be said that no criminal offence is made out at all and/or the same is not required to be investigated at all. As per catena of decisions of the Hon'ble Supreme Court, even if the dispute is of civil nature, it might involve ingredients of criminal offence also and both parallel proceedings are maintainable. It is required to be noted that it was the specific case on behalf of the complainant before the learned Magistrate that there is no proper investigation by the IO and even the statement of the complainant as well as other witnesses are not recorded. It is required to be noted that even the alleged documents are required to be seized and the same are required to be send to the handwriting expert to consider the allegations of the complainant that the loan documents are not signed by him and somebody else has taken the amount of Rs.2 lacs. The aforesaid aspects are not considered by both the Courts below. Under the circumstances, impugned orders passed by both the Courts below cannot be sustained and the same deserve to be quashed and set aside and the matter is to be remanded to the learned trial Court with a further direction to the concerned IO to further investigate the matter and submit appropriate report/chargesheet.
[6.0] In view of the above and for the reasons stated above, present Special Criminal Application succeeds. The impugned order passed by the learned JMFC, Petlad dated 14.05.2008 passed in Court Inquiry No.35/2003 accepting the 'C' summary report as well as the impugned judgment and order dated 24.11.2008 passed in Criminal Revision Application No.57/2008 are hereby quashed and set aside and the matter is remanded to the learned trial Court and the Court Inquiry No.35/2003 is ordered to be restored to file and the concerned IO of Petlad Town Police Station is hereby directed to carry out further investigation of the case on the allegations and averments made in the complaint and thereafter submit appropriate report/chargesheet before the concerned Magistrate and the learned Magistrate thereafter to consider the same in accordance with law and on merits. The aforesaid exercise by the IO shall be completed within a period of six months from the date of receipt of the present order. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(M.R. Shah, J.) menon