1. The present petitions have been filed for quashing of entire proceedings of charge-sheet bearing No.38 of 2011 dated 20.07.2011 arising out of Case Crime No.344 of 2011 under Sections 323, 504 IPC, 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Police Station Akbarpur, District Ambedkar Nagar.
2. Petitioner No.1 (Zaheer Abbas) and petitioner No.2 (Abhishek Dubey), who are petitioners in Crl. Misc. Case No.519 of 2013, were Branch Manager and Deputy Branch Manager respectively of HDFC Bank, Sahzadpur, Akbarpur, District Ambedkar Nagar at the relevant time while the petitioner (Alok Ranjan Kumar), who is the petitioner in Crl. Misc. Case No.696 of 2013, was an employee of the same Bank.
3. In the year 2005, respondent No.4/complainant had opened an account being Saving A/C No.00781000252114 with HDFC Bank, Hazratganj Branch, Lucknow in the name of H.K. Choudhary. After opening the aforesaid account, he applied loan for a two wheeler. He submitted a loan application form for the said purpose. In the loan application form, the complainant mentioned that he was a proprietor of Asma Nursing Home situated at Thakurganj Road, Lucknow. He mentioned his profession as doctor. He also mentioned that he was the owner of the House No.3/45, Virat Khand, Gomti Nagar, Lucknow.
4. The Bank believing the testimonials of the complainant sanctioned loan of Rs.33,000/- for two wheeler. Loan Agreement was executed between the Bank and respondent No.4. As per the loan agreement, loan amount was to be paid in 36 equal monthly installments of Rs.1,220/-. Despite several reminders, respondent No.4 did not pay the installments as agreed and he became the defaulter except for one installment.
5. After taking loan of Rs.33,000/-, he paid only one installment towards the loan. The cheques given by respondent No.4 for repayment of installments got dishonoured and, therefore, the Bank filed a complaint under Section 138 of the Negotiable Instruments Act in the Court of Judicial Magistrate-II, Lucknow being Complaint No.191 of 2009: HDFC Bank vs H.K.Choudhary. Respondent No.4 had been summoned by Judicial Magistrate-II, Lucknow on the complaint under Section 138 of the Negotiable Instruments Act filed by the HDFC Bank.
6. The Bank opened its new branch in District Ambedkar Nagar in the year 2010. Respondent No.4 approached HDFC Bank, Branch Shazadpur, Akbarpur, District Ambedkar Nagar on 26.10.2010 and applied for opening of saving account in the Branch of HDFC Bank. Respondent No.4 gave his another address than what was given in the account which he had opened at Lucknow. He mentioned that he was resident of Village Sutar Para, Police Station Jahangirganj, District Ambedkar Nagar. He mentioned his profession as self employed and engaged in Real Estate Business. He signed the declaration that he did not have any other saving bank account with the HDFC Bank concealing the fact that he was an existing account holder with the HDFC bank and defaulter of the Bank. Respondent No.4 had given his Mobile No.9935766666 for instant alert in respect of any transaction in his new saving bank account which was opened at Ambedkar Nagar. The Bank, however, found out that respondent No.4 had earlier opened account with HDFC Bank at Lucknow and, he was a defaulter for repayment of two wheeler loan. Consequently, a letter dated 22.12.2010 was issued by the Bank to respondent No.4 informing that despite several repeated reminders by way of phone calls, visits and request letters etc., respondent No.4 had not taken any step for payment of the loan. In view of the aforesaid facts and circumstances of the case, the Bank had been forced to mark "Hold Funds" in the above stated account in exercise of the "Banker's Lien and Right To Set Off" to the extent of total outstanding of the loan account.
7. Despite service of the said letter, respondent No.4 failed to clear his outstanding and, therefore, the new A/C No.18821930002581 was put on hold by the Bank. It was said that after the account of respondent No.4 was put on hold, an SMS alert was sent to respondent No. 4 which he had received. He got infuriated by the said action of the Bank and to teach lesson to the petitioners, he filed an application under Section 156(3) Cr.P.C. on 31.01.2011 based on concocted and completely false allegations.
8. Learned counsel for the petitioners, Mr. Vikas Vikram Singh has submitted that cognizance was taken by the learned Magistrate on the said application and the learned Magistrate directed registration of the FIR. In compliance of the said direction, the FIR got registered. The police after investigating the offence filed impugned charge-sheet in which the petitioners have been summoned. Learned counsel for the petitioners submits that respondent No.4 did not disclose all these facts in his application. He further submits that the Bank Manager would not know the caste of respondent No.4 and, there was no occasion for the Branch Manager to abuse respondent No.4 by his caste. He further submits that withdrawal of cash could not have been otherwise permitted inasmuch as the account was put on hold and the SMS alert was sent to respondent No.4. Therefore, the story set up by respondent No.4 that he went to the Bank to withdraw the cash was completely false and concocted. Learned counsel also submits that no withdrawal of cash form was submitted by respondent No.4. He also submits that the Bank does not allow withdrawal of cash on withdrawal form. The cash can be withdrawn either by presenting a cheque or by using ATM card, but the practice of withdrawing cash or withdrawal form is not prevalent in the Bank.
9. On the other hand, Mr. Sanjay Kumar Yadav, learned counsel for respondent No.4 submits that respondent No.4 did not receive any SMS regarding his account being put on hold, as alleged. He went to the Bank to withdraw the cash. He had some urgent work, therefore, he requested the cashier to process his withdrawal out of turn but the cashier asked him to come in queue. He went to the Branch Manager and complained against the cashier. However, the Branch Manager and his Deputy Manager assaulted him and abused him by his caste. He, therefore, submits that when there are evidence of the eye witnesses, proceedings should not be quashed and the trial Court should be allowed to complete the trial. The petitioners would be at liberty to take defence whichever is available to them during trial.
10. I have perused the record carefully and considered the arguments advance on behalf of the parties.
11. Respondent No.4 has not filed any affidavit in reply to the petition under section 482 Cr.P.C. Stand of the Bank is very specific that respondent No.4 had opened a bank account with the Bank earlier at Lucknow. He applied for loan of two wheeler and the Bank sanctioned the loan of Rs.33,000/-. Respondent No.4 after availing the loan, defaulted in making payment. He paid only one installment and thereafter, did not pay. Despite several reminders and requests, respondent No.4 did not make payment of loan amount. The cheques issued by him got dishonored. Therefore, proceedings under Section 148 of the Negotiable Instruments Act were initiated against him. Respondent No.4 was summoned by the learned Magistrate under Section 138 of the Negotiable Instruments Act.
12. Respondent No.4 concealing the material fact that he had already a bank account with HDFC Bank, opened second savings account at Ambedkar Nagar. The Bank, however, after examining the document including the Pan Card etc., could come to know that respondent No.4 had a Bank account at Lucknow with the Bank and, he was defaulter in respect of repayment of two wheeler loan. In the account opening form, he mentioned his profession as Doctor running Asma Nursing Home. He gave a permanent address of Lucknow but in the bank account which he opened at Ambedkar Nagar, he mentioned his profession as self employed dealing with Real Estate Business. He also gave permanent address of Ambedkar Nagar.
13. When a person approaches a Court of law, he is duty bound to disclose true and correct facts. Respondent No.4 did not disclose true and vital facts in his application. It would not be possible for a Bank Manager to know the caste of each and every customers. It cannot be believed that respondent No.4 could not receive SMS Alert regarding his account being put on hold. This is usual practice of the Bank that if any transaction takes place in the Bank account of a customer, an SMS alert is sent to the customer concerned. Banks are using software which automatically generate the SMS alerts. Therefore, stand of respondent No.4 that he did not receive SMS alert would be against the banking practice and cannot be accepted that he did not receive the SMS alert from the Bank when his bank account was put on hold. There was no occasion for respondent No.4 to withdraw the cash from the account which was not in operation inasmuch as it was put on hold. Therefore, the story set up by respondent No.4 that he went to the Bank to withdraw cash by withdrawal form is not believable.
14. Bank Manager, who was not the resident of the area, would also not be aware of the caste of respondent No.4, therefore, allegation of abusing him by his caste was only a figment of imagination of respondent No.4 and cannot be real. The conduct of respondent No.4 itself does not inspire confidence.
15. In view of the aforesaid, it appears that the proceedings have been initiated by respondent No.4 out of vengeance against the Bank officials for putting on hold his account which he opened at Ambedkar Nagar by concealing material facts. Respondent No.4 therefore, filed an application under Section 156(3) Cr.P.C. on which impugned charge-sheet has been filed after FIR was registered. Criminal proceedings cannot be initiated to take revenge or out of vengeance or to settle scores.
16. In the present case, proceedings are nothing but an abuse of process of the law and, therefore, this petition deserves to be allowed.
This Court, therefore, allows the petition and quashes the entire proceedings of charge-sheet bearing No.38 of 2011 dated 20.07.2011 arising out of Case Crime No.344 of 2011 under Sections 323, 504 IPC, 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, Police Station Akbarpur, District Ambedkar Nagar.
Order Date :- 26.11.2019 prateek