Himachal Pradesh High Court
Reserved On: 13.08.2024 vs State Of Himachal Pradesh & Ors on 10 September, 2024
2024:HHC:8260
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 436 of 2022
Reserved on: 13.08.2024
.
Date of Decision: 10.09.2024.
Bhag Chand Jain ...Petitioner
Versus
State of Himachal Pradesh & Ors. ...Respondents
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
r to
For the Petitioner : Mr P.P. Chauhan, Advocate through
Video Conference and Ms Tara Devi
and Ms Aditi Rana Advocates, in
person.
For the Respondents : Mr. Prashant Sen, Deputy Advocate
General for respondents No.1 and
3/State.
Mr Naresh Kumar Sharma,
Advocate, for respondent No.4.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for quashing
the proceedings pending before the learned Special Judge Solan,
District Solan, H.P. (learned Trial Court) in Case No. 2-S/7 of 2020,
titled State vs Vidya Sagar & ors. and also for quashing of F.I.R. No.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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05/2011 dated, 30.08.2011, registered for the commission of offences
punishable under Sections 420 and 120-B of IPC read with Section
.
13(i)(d), 13(2) of Prevention of Corruption Act registered at Police
Station SV & ACB (SIU) Solan, District Solan, H.P. qua him.
2 It has been asserted that F.I.R. No. 5 of 2011 was registered
against the petitioner and other persons alleging that the petitioner
along with his late father Shri CD Jain was Director in M/S Himachal
Aluminum Company, Baddi, District Solan, H.P. The Company applied
for and availed a composite loan of ₹90,00,000/- i.e. 25,00,000/- CC
Limit, ₹15,00,000/- as loan against bills and ₹50,00,000/- as loan
against bank guarantee. The loan was approved by the Board of
Directors of the Bank on 19.12.1994 and the Company was informed of
this fact vide letter dated 20.12.1994. The petitioner and his brother
Sunil Jain mortgaged 11% and 8% of their share in the property known
as Rajasthan Bhawan, situated at The Mall Road, Solan, Himachal
Pradesh. The Mortgage Deed dated 28.03.1995 was executed by the
petitioner in favour of the Bank. The name of the Company was
mentioned as M/S Himachal Conductors whereas the loan was taken
by M/S Himachal Aluminum Company. The share of the petitioner
and his brother was worth ₹97,500/- only. The valuation report
prepared by the Architect showed the value of the property as 2.15
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Crores. After adding the value of the land as ₹10,64,930/-the total
value of the share of the petitioner and his brother was ₹11,62,500/-.
.
No Objection Certificate from other co-sharers was not attached to
the loan file. The Company purchased five flats from Himachal
Pradesh Housing and Urban Development Authority (HIMUDA) at
Parwannoo. These were wrongly hypothecated to the bank because
the Company could not have transferred these flats as per the
agreement between HIMUDA and M/S Himachal Aluminum Company.
The petitioner failed to comply with the terms and conditions of the
sanction of the loan. The loan was sanctioned and disbursed in
connivance with the bank officials. The charge sheet mentions that
the petitioner being the Director of the Company and being the son of
the Managing Director was responsible for availing the loan facility.
The petitioner was not managing the affairs of the Company. Late CD
Jain, father of the petitioner, was the Managing Director of the
Company. Jogindera Central Cooperative Bank, Himachal Pradesh had
filed a criminal complaint against the petitioner and other Directors in
the year 1998, titled Jogindera Central Cooperative Bank Vs. Himachal
Aluminum and others. The petitioner was acquitted in the complaint by
the learned Judicial Magistrate First Class, Solan, District Solan, H.P.
An appeal was preferred against the acquittal but the same was
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withdrawn. An appeal is pending before this Court bearing Cr.MP(M)
No. 3665 of 2019. The petitioner has no connection with the
.
Company and the offences alleged in the F.I.R. The petitioner was
merely a Director and the prosecution has been launched without
arraying the Company as an accused. The petitioner is facing double
jeopardy as he was tried and acquitted by the competent Court for the
commission of offences mentioned in the F.I.R. The petitioner was a
different loan.
r to
guarantor of M/s Himachal Conductors Ltd. and had executed a
Mortgage Deed for a term loan of ₹ 15,00,000/-, which is an entirely
A civil dispute has been converted into a criminal case
to pressurize the petitioner to pay money. The learned Trial Court
erred in summoning the petitioner. Therefore, it was prayed that the
present petition be allowed and the proceedings pending before
learned Trial Court and F.I.R. registered against the petitioner be
quashed.
3. The petition is opposed by filing a reply by respondents No.
1 to 3, making preliminary submission regarding the lack of
maintainability. The contents of the petition were denied on merits.
It was asserted that K.S. Chaudhary filed a complaint alleging that the
bank officials of Jogindera Central Cooperative Bank, Solan, H.P. had
intentionally caused a wrongful loss of about two crores and
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corresponding gain to M/S Himachal Aluminum Company Baddi,
District Solan, H.P. by abusing their official position. The State
.
Vigilance and Anti-Corruption Bureau registered an F.I.R. after
conducting a preliminary inquiry. It was found after investigation
that M/S Himachal Aluminum Company, Baddi, District Solan, H.P.
had applied to the Chairman, Jogindera Central Cooperative Bank for
sanctioning credit facilities of ₹90,00,000/- to the Company. CD Jain,
petitioner and Shanti Lal were the Directors of M/S Himachal
Aluminum Company, Baddi, District Solan, H.P. who had applied for
the credit facility/CCL on behalf of the Company. The Board of
Directors in its meeting approved the credit facilities/CCL on
11.12.1994 subject to the fulfillment of 15 conditions before disbursing
the loan. The General Manager of Jogindera Central Cooperative
Bank, Solan, District Solan, H.P. approved the CCL transaction on
28.12.1994. The petitioner opened the CCL hypothecation account in
Jogindera Central Cooperative Bank, Branch Solan, H.P. The Branch
Manager allowed the operation of the loan account without obtaining
sufficient collateral security. Two properties were mortgaged but their
value was insufficient and the mortgaged property was not free from
encumbrances. M/S Himachal Aluminum Company executed a
Guarantee Bond on 28.03.1995 in favour of the bank. The mortgage
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Deed was wrongly taken on record knowing fully well that it was
executed by M/S Himachal Conductors Ltd. which had no connection
.
with the CCL sanctioned in the name of M/S Himachal Aluminum
Company. The petitioner was authorized by the Company to execute
the documents and sign promissory notes, cheques and other
documents. The petitioner concealed material facts from the Court.
As per the assessment made by the Revenue Department, the value of
share.
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Rajasthan Bhawan was assessed at ₹40,85,000/- in which the
petitioner B.C. Jain owned an 8% share and Sunil Jain owned an 11 %
Officers/officials of the bank never inspected the stock
hypothecated to the bank. The machinery/goods hypothecated to
Jogindera Central Cooperative Bank, Branch, Solan, District Solan,
H.P. were removed by the Company from the spot. A charge sheet was
filed against the bank official and petitioner. Earlier a complaint was
filed by Jogindera Central Cooperative Bank, Branch Solan, District
Solan, alleging that the accused had misappropriated the
hypothecated goods. It was not alleged in the complaint that the
accused Company had cheated the Bank by producing fake documents
of valuation and without furnishing any collateral security. The loan
was sanctioned without approval of the Branch Manager and various
documents were not placed on record. The loan was sanctioned
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against the norms in favour of the petitioner and there is no double
jeopardy. Hence, it was prayed that the present petition be dismissed.
.
4. Respondent No. 4 also opposed the petition by filing a
separate reply taking preliminary objections regarding lack of
maintainability and the concealment of material facts. The contents of
the petition were denied on merits. It was asserted that as per the
Articles of Association of Himachal Aluminum Company Private
Limited, the petitioner is the first Director of the Company. He was
authorized to enter into an agreement with the bank and to execute
the various documents. The police conducted the investigation and
found sufficient material against the petitioner to submit the charge
sheet against him. Therefore, it was prayed the present petition be
dismissed.
5. The police also filed a status report outlining various steps
of the investigation.
6. Separate rejoinders denying the contents of the replies and
affirming those of the petition were filed.
7. I have heard Mr P.P. Chauhan, through video conferencing,
Ms Tara Devi and Ms Aditi Rana, learned counsel for the petitioner, Mr
Prashant Sen, learned Deputy Advocate General for respondents No.1
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and 3/State and Mr Naresh Kumar Sharma, learned counsel for
respondent No.4.
.
8. Mr P.P. Chauhan, learned counsel for the
petitioner/accused (through V.C.) submitted that the F.I.R. was lodged
based on false facts. The petitioner was prosecuted by the Bank by
filing a complaint and was acquitted by the competent court. The FIR
cannot be registered on the same allegations. Hence, he prayed that
the present petition be allowed and the proceedings pending before
the learned Trial Court and the F.I.R. be quashed. He relied upon the
judgment of Hon’ble Supreme in T.P. Gopalakrishnan vs. State of
Kerala, 2022 (14) SCC 323 in support of his submission.
9. Mr. Prashant Sen, learned Deputy Advocate General for
respondents No. 1 to 3 submitted that the plea of the petitioner
regarding double jeopardy is not correct. The FIR has been filed
against the bank officials and the petitioner for disbursing and
availing the loan without furnishing the necessary documents and
fulfilling the terms and conditions imposed by the Board of Directors
while sanctioning the loan. The previous complaint did not deal with
such a dispute. Therefore, he prayed that the present petition be
dismissed.
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10. Mr Naresh Kumar Sharma, learned counsel for respondent
No.4 adopted the submissions of the learned Deputy Advocate General
.
and submitted that the complaint and the F.I.R. pertain to different
aspects of the transactions and there is a bar to proceed further in the
matter. Therefore, he prayed that the present petition be dismissed.
11. I have given considerable thought to the submissions
made at the bar and have gone through the record carefully.
12.
The law regarding the exercise of jurisdiction under
Section 482 of Cr.P.C. was considered by the Hon’ble Supreme Court in
A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was
observed: –
“9. The law with regard to the exercise of jurisdiction under
Section 482 of Cr. P.C. to quash complaints and criminal
proceedings has been succinctly summarized by this Court inthe case of Indian Oil Corporation v. NEPC India Limited (2006) 6
SCC 736: 2006 INSC 4521 after considering the earlier precedents.
It will be apposite to refer to the following observations of this
Court in the said case, which read thus:
“12. The principles relating to the exercise of jurisdiction
under Section 482 of the Code of Criminal Procedure to
quash complaints and criminal proceedings have been stated
and reiterated by this Court in several decisions. To mention
a few–Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri)
234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh
Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of
Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC::: Downloaded on – 11/09/2024 20:30:37 :::CIS
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2024:HHC:8260591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla
[(1996) 8 SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State
NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl
Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC.
269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State
of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M.
Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19]
and Zandu Pharmaceutical Works Ltd. v. Mohd. SharafulHaque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]. The principles,
relevant to our purpose are:
(i) A complaint can be quashed where the allegations
made in the complaint, even if they are taken at theirface value and accepted in their entirety, do not prima
facie constitute any offence or make out the case alleged
against the accused.
For this purpose, the complaint has to be examined as a
whole, but without examining the merits of the
allegations. Neither a detailed inquiry nor a meticulous
analysis of the material nor an assessment of the
reliability or genuineness of the allegations in the
complaint is warranted while examining prayer for
quashing a complaint.
(ii) A complaint may also be quashed where it is a clear
abuse of the process of the court, as when the criminal
proceeding is found to have been initiated with mala
fides/malice for wreaking vengeance or to cause harm,
or where the allegations are absurd and inherently
improbable.
(iii) The power to quash shall not, however, be used to
stifle or scuttle a legitimate prosecution. The power
should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence alleged. If
the necessary factual foundation is laid in the
complaint, merely on the ground that a few ingredients
have not been stated in detail, the proceedings should
not be quashed. Quashing of the complaint is warranted
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only where the complaint is so bereft of even the basic
facts which are necessary for making out the offence.
(v.) A given set of facts may make out: (a) purely a civil
wrong; or (b) purely a criminal offence; or (c) a civil
.
wrong as also a criminal offence. A commercial
transaction or a contractual dispute, apart from
furnishing a cause of action for seeking remedy in civil
law, may also involve a criminal offence. As the nature
and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of
contract, for which a civil remedy is available or has
been availed, is not by itself a ground to quash the
criminal proceedings. The test is whether the
allegations in the complaint disclose a criminal offence
or not.”
13. Similar is the judgment in Maneesha Yadav v. State of U.P.,
2024 SCC OnLine SC 643, wherein it was held: –
“12. We may gainfully refer to the following observations of
this Court in the case of State of Haryana v. Bhajan Lal1992 Supp
(1) SCC 335: 1990 INSC 363:
“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and ofthe principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary
power under Article 226 or the inherent powers underSection 482 of the Code which we have extracted and
reproduced above, we give the following categories of cases
by way of illustration wherein such power could be
exercised either to prevent abuse of the process of any court
or otherwise to secure the ends of justice, though it may not
be possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or rigid
formulae and to give an exhaustive list of myriad kinds of
cases wherein such power should be exercised.
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(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out.
a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where the allegations in the FIR do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress for
the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
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is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and to spite him
due to private and personal grudge.
.
103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should
be exercised very sparingly and with circumspection
and that too in the rarest of rare cases; that the court
will not be justified in embarking upon an enquiry as
to the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that
the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to
its whim or caprice.”
14. The present petition has to be considered as per the
parameters laid down by the Hon’ble Supreme Court.
15 It was laid down by Hon’ble Supreme Court in Prem Chand
Singh v. State of U.P., (2020) 3 SCC 54 that where the subject matter of
the two F.I.R. was the same and the accused was acquitted in the first
FIR, he cannot be prosecuted by adding some sections in the second
F.I.R. It was observed: –
“8. FIR No. 160 of 1989 alleges that the respondent on account
of his job invariably stayed outside. The appellant had created aforged general power of attorney from the respondent in his
name with regard to his lands bearing Gata No. 77/0.87 decimal
and sold it on the basis of the forged general power of attorney
which the respondent became aware of on 25-7-1989. The
respondent denied having ever executed any general power of
attorney in favour of the appellant. The respondent does not
dispute that the appellant was acquitted of the charge by
judgment dated 7-8-1998. The fact that the judgment may not
have been made available is therefore inconsequential.
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xxxxx
10. The respondent then filed an application under Section
156(3) CrPC which was forwarded by the Magistrate to the police
leading to the registration of FIR dated 9-10-2008. The.
allegations are similar in that the appellant put up an imposter
in place of the respondent and along with one Sushil Kumar
Singh and Arvind on the basis of a general power of attorney,
which the respondent had never executed, sold his lands. TheFIR itself recites that earlier the appellant had sold the lands of
the respondent on the basis of the same general power of
attorney, but conceals the order of acquittal dated 7-8-1998,
and also the institution of Civil Suit No. 353 of 2007 forannulment of the same.
11. It is, therefore, apparent that the subject matter of both the
FIRs is the same general power of attorney dated 2-5-1985 and
the sales made by the appellant in pursuance of the same. If thesubstratum of the two FIRs is common, the mere addition of
Sections 467, 468 and 471 in the subsequent FIR cannot be
considered as different ingredients to justify the latter FIR as being
based on different materials, allegations and grounds.
12. Section 300 CrPC provides as follows:
“300. A person once convicted or acquitted not to be tried
for the same offence.–(1) A person who has once been
tried by a court of competent jurisdiction for an offenceand convicted or acquitted of such offence shall, while
such conviction or acquittal remains in force, not beliable to be tried again for the same offence, nor on the
same facts for any other offence for which a different
charge from the one made against him might have beenmade under sub-section (1) of Section 221, or for which
he might have been convicted under sub-section (2)
thereof.”
13. In view of the conclusion that the substratum of the two FIRs
is the same and that the appellant has already stood acquitted
on 7-8-1998 of the charge with regard to forging any general
power of attorney of the respondent, we are of the considered
opinion that the subsequent prosecution of the appellant in FIR
No. 114 of 2008 dated 9-10-2008 is completely unsustainable.
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In the result, the FIR dated 9-10-2008, the orders dated 18-12-
2015, 31-5-2016 and the impugned order dated 1-3-2017 [Prem
Chand Singh v. State of U.P., 2017 SCC OnLine All 1264] are set
aside. The appeal is allowed.” (Emphasis supplied)
.
16 It was held in T.P. Gopalakrishnan’s case (supra) that where
previous proceedings were taken in which the accused was convicted
or acquitted, the second proceeding in relation to the same set of facts
is not permissible. It was observed:-
“29. There are three conditions for the application of the
clause. Firstly, there must have been previous proceeding before
a court of law or a judicial tribunal of competent jurisdiction in
which the person must have been prosecuted. The saidprosecution must be valid and not null and void or
abortive. Secondly, the conviction or acquittal in the previous
proceeding must be in force at the time of the second
proceeding in relation to the same offence and same set of facts,
for which he was prosecuted and punished in the firstproceeding. Thirdly, the subsequent proceeding must be a fresh
proceeding, where he is, for the second time, seeking to be
prosecuted and punished for the same offence and the same set
of facts. In other words, the clause has no application when thesubsequent proceeding is a mere continuation of the previous
proceeding, for example, where an appeal arises out of suchacquittal or conviction. In order to sustain a plea of double
jeopardy, it must be shown that all the aforesaid conditions ofthis clause are satisfied, vide S.A. Venkataraman [S.A.
Venkataraman v. Union of India, 1954 SCC OnLine SC 26: AIR 1954
SC 375].
17. The term same offence was defined as an offence whose
ingredients are the same. It was observed:-
31. Before dealing with the issue at hand, it is necessary to
understand what the term “same offence” means and includes.
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The term “same offence” in simple language means, where the
offences are not distinct and the ingredients of the offences are
identical. Where there are two distinct offences made up of
different ingredients, the embargo under Article 20 of the
.
Constitution of India, has no application, though the offences
may have some overlapping features. The crucial requirement
of Article 20 is that the offences are the same and identical in all
respects, vide State (NCT of Delhi) v. Navjot Sandhu [State (NCT of
Delhi) v. Navjot Sandhu, (2005) 11 SCC 600: 2005 SCC (Cri) 1715].
18. It was held that where a person was tried for the
commission of offences punishable under Section 13(i)(c) and 13(2) of
Prevention of Corruption Act and Sections 409 and 477 of IPC, he
cannot be tried again for the commission of offences punishable
under Sections 13(i)(c) and 13(2) of Prevention of Corruption Act and
Section 409 of IPC. It was observed:-
“45. Applying the said provision to the present case, it is noted
that earlier the petitioner was tried in CCs Nos. 12, 13 and 14 of
1999 for the offences under Section 13(1)(c) read with Section
13(2) of the Act as well as under Sections 409 and 477-AIPC. InCCs Nos. 24 and 25 of 2003, the appellant is being tried once
again for the offences under Section 13(1)(c) read with Section13(2) of the Act and Section 409 IPC for the same period. There
is no material on record to demonstrate that CCs Nos. 24 and 25
of 2003 have been initiated pursuant to the consent of the StateGovernment. It is also not brought on record that CCs Nos. 24
and 25 of 2003 are for any distinct offence for which a separate
charge had been made against the appellant and the earlier
trials.”
19. This position was reiterated in Amandeep Singh Saran v.
State of Chhattisgarh, (2024) 6 SCC 541, wherein it was observed: –
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11. A reference to Section 300(1) CrPC, which lays down that a
person once convicted or acquitted cannot be tried for the same
offence, will not be inappropriate in the matter of such a
formative analysis, as mentioned above. This law based on the.
maxim “nemo debet bis vexari” is founded on the condition that
the initial trial must be by a court of competent jurisdiction for
the offences concerned. We are afraid, in the scenario now
obtained if this Court is not passing appropriate directions, the
appellant-accused may have to face fresh trial or prolonged
proceedings even after the conclusion of proceedings before the
court where the matter is presently pending. To know the raison
d’étre for our remark, one may have to refer to various
provisions of law, including the provisions referred to infra.
20. The copy of the earlier complaint (Annexure P-3) shows
that the Bank had filed a complaint against the Company, C.D. Jain,
B.C. Jain and S.L. Mehta for the commission of offences punishable
under Sections 409, 417, 418 etc. of IPC. It was asserted that the
Company contacted the Bank to get the loan/credit. The bank
demanded various documents from the Company. The accused
submitted the documents and mortgaged the property with the Bank.
The Bank sanctioned cash credit limit of ₹90,00,000/-
(hypothecation of ₹25,00,000/- Cash Credit Limit of ₹15,00,000/-
against the bills and ₹50,00,000/- against the bank guarantee). The
accused executed a Demand Promissory Note, Hypothecation Deed,
and the Bank Guarantee of ₹50,00,000/- in favour of NSIC Ltd. The
hypothecated goods were to be held as exclusive property of the bank.
The Company was not to create any charge or mortgage. The accused
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also submitted a stock statement to the bank vide letter dated
20.01.1995 showing that stock worth ₹ 15.55 lakhs was in the custody
.
of the accused as Trustee. The accused also submitted a letter dated
20.12.1994 showing that the value of the mortgaged property was
assessed at ₹2.15 crores. The Company subsequently sold the
hypothecated goods without proper permission from the bank and
misappropriated the sale proceeds. The Company failed to pay
₹33,82,000/- to the NSIC.
The NSIC invoked the bank guarantee and
the bank was compelled to pay ₹33,82,000/- to the NSIC. The Bank
demanded the outstanding amount from the accused but the accused
failed to pay the amount. Hence, the complaint was made against the
accused.
21. F.I.R. No. 5 of 2011 reads that the Company applied to the
bank for sanctioning of Credit facilities of ₹1.25 Crores on 15.11.1994.
The Credit Facility of ₹ 55 Lakhs was recommended by the General
Manager of the Bank. The Credit Facility of ₹90,00,000/- was
extended. The Branch Manager allowed the operation of the loan
account on 28.12.1994 without obtaining any collateral security. Two
properties were mortgaged as collateral security but the security was
insufficient. A Mortgage Deed of the houses located at Parwanoo was
executed but the bank had the first charge on the property. The Bank
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Manager allowed the payment of the amount to the Company even
though the bank was entitled to the same. The police registered the
.
F.I.R. and filed a Charge Sheet against CD Jain, Vidyasagar Sharma,
Ishwari Dutt, Jeet Ram and Bhag Chand Jain. It was asserted against
the petitioner that he had mortgaged his share to the Bank. The value
of the shares of B.C. Jain and Sunil Jain was ₹97,500/- and it was
wrongly shown as ₹2.15 crores. As per the report of the Revenue
co-sharers.
r to
department, the total value of the mortgaged property was
₹10,64,930/- No Objection Certificate was not taken from the other
The documents submitted by the Company were not
verified by any person. The petitioner and his father had shown the
value of the property more than the market value. Hence, offences
punishable under Sections 420 and 120-B of IPC were established
against the petitioner.
22. A perusal of the allegations made in the F.I.R. and the
complaint show that they pertain to taking the loan by furnishing
inadequate security and misappropriation of the hypothecated goods.
One of the offences alleged against the petitioner was 420 of IPC in the
charge sheet whereas the petitioner was shown to have committed
offences punishable under Sections 409, 417 and 418 of IPC in the
earlier complaint. A copy of the judgment passed by the learned
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Judicial Magistrate First Class, Solan, H.P. shows that the accused
were acquitted for the commission of offences punishable under
.
Sections 406 and 418 of IPC.
23. Section 418 of IPC, punishes a person who cheats another
with the knowledge that he is likely thereby to cause wrongful loss to
a person whose interest he was bound to protect.
24. Section 420 of IPC, punishes a person who cheats another
25. to
person by dishonestly inducing him to deliver the property.
Thus, it is apparent that both these Sections require
cheating by the accused. Cheating has been defined under Section 415
of IPC and this definition is common for the offences punishable
under Sections 418 and 420 of IPC. Since the petitioner was prosecuted
for the commission of offences punishable under Sections 417 and 418
of IPC in the previous complaint regarding the transaction of taking
the loan and is being prosecuted for the commission of an offence
punishable under Section 420 of IPC in the present FIR; hence, the
requirement that a person should have been prosecuted for the
commission of the same offence is satisfied.
26. F.I.R. and the complaint arose of the transaction related to
the taking the loan from Jogindra Central Co-operative Bank,
execution of various documents and misappropriation of the
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hypothecated goods; hence, the same set of facts is involved in the
complaint and the F.I.R.
.
27. The police have also added Section 120-B of IPC, namely
the conspiracy to commit an offence stating that the loan was
disbursed wrongly in connivance with the bank officials. This Section
was not invoked in the earlier complaint but the same will not make
any difference. Hon’ble Supreme Court has categorically held in T.P.
Gopalakrishnan’s case (supra) that where the several acts were
connected, these cannot be split and separate proceedings cannot be
taken in respect of them.
28. In the present case, the transaction was pertaining to
taking a loan and the same could not have been split by saying that the
criminal conspiracy was not involved in the first complaint. Hence,
the submission that the F.I.R. is based on the same set of facts and
involves the same offences for which the petitioner was tried earlier
has to be accepted as correct and a mere addition of Section 120-B of
IPC will not make any difference.
29. Consequently, the prosecution cannot proceed with the
F.I.R. and the proceedings arising out of the same as the same would
be an abuse of the process of the Court. Thus, the present petition is
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allowed and F.I.R. No.05/2011, dated 30.08.2011, for the commission of
offences punishable under Sections 420 and 120-B of IPC read with
.
Sections 13(i)(d) & 13(2) of Prevention of Corruption Act, registered at
Police Station SV& ACB(SIU) Solan, District Solan, H.P.is ordered to be
quashed qua the petitioner. Consequent upon the quashing of FIR,
criminal proceedings pending/initiated against the petitioner-
accused in pursuance thereto before the learned Special Judge, Solan,
30. to
District Solan, H.P. are also ordered to be quashed qua the petitioner.
The observations made hereinunder shall remain confined
to the disposal of the petition and will have no bearing, whatsoever,
on the criminal case pending before the learned Trial court.
31. Petition stands disposed of in the above terms, so also
pending applications, if any.
(Rakesh Kainthla)
Judge
10th September, 2024
(ravinder)
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