Gujarat Industrial Co-op. Bank Ltd. and ors. Vs. Prakashchandra Navnitrai Vora and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/744439
SubjectCriminal
CourtGujarat High Court
Decided OnJan-31-1995
Judge J.N. Bhatt, J.
Reported in(1996)2GLR445
AppellantGujarat Industrial Co-op. Bank Ltd. and ors.
RespondentPrakashchandra Navnitrai Vora and ors.
Excerpt:
- - 8. having regard to the facts and circumstances of the case, this court is fully satisfied that the impugned order of issuing process under sections 420 and 114 of the indian penal code is unjust, illegal and requires to be quashed.j.n. bhatt, j.1. the petitioners are the original accused persons against whom respondent no. 1 - original complainant filed criminal complaint being criminal case no. 3899 of 1989 in the court of learned chief judicial magistrate, at rajkot, for the offences punishable under sections 406, 420, 120-b, 114 and 34 of the indian penal code. after verification of the complaint before the trial court, the learned magistrate, at rajkot, issued process for the offences punishable under sections 420 & 114 of the indian penal code. the impugned order came to be passed, on 6-9-1989. the trial court directed that the orrences be registered against the accused persons for the offences punishable under sections 420 and 114 of the indian penal code and to issue summons returnable on 18-0-1989. the original accused persons being aggtrieved by the said order of the trial court has preferred this petition under articles 226 and 227 of the constitution of india and under section 482 of the code of criminal procedure, 1973 (code).2. the learned advocate for the petitioners-original accused persons, has taken this court through relevant material on record. original complainant respondent no. 1 herein filed criminal complaint on the allegations that the accused persons have committed various offences. the trial court has ordered to register the offence under sections 420 and 114 of the indian penal code only.3. it has been, seriously, contended on behalf of the original accused persons petitioners herein that the original complainant has resorted to criminal proceedings with an ulterior motive in order to capture management and power of the original accused no. 1 - bank and to pressurise the accused persons. thus, it is argued that there is abuse of process of court and therefore, impugned order against the accused persons should be quashed.4. the complainant, inter alia, stated in his complaint that all the accused persons have committed criminal breach of trust and dishonesty in not granting membership of the bank, though the amount for share and re. 1 /- towards entry fee had been collected from the complainant on 15-6-1989. it is alleged in the complaint that accused persons have not granted membership and allotted share as assured and promised by the accused persons despite several representations.5. the impugned order of the trial court is manifestly perverse and patently illegal in view of the facts and circumstances emerging from the complaint and other material on record. it is also very clear from the complaint itself that in order to raise capital of the bank, viz., gujarat industrial co-operative bank (said bank) the resolution was passed by the board of directors and accordingly, the process was going on for raising funds by making more and more members and allotting shares to the members. it is pertinent to note from the complaint that there were about 18,000 to 20,000 applicants who had applied for membership of the said bank. non-allotment of shares applied for and non-refunding the amounts spent towards the shares and fees from 31-5-1989 from the date of filing of the complaint, i.e., on 6-9-1989 and further not allotting the same, all the accused persons have committed criminal breach of trust, the complaint came to be filed. the material particulars and ingredients attracting offences alleged must be prima facie manifested from the averments and allegations made in the complaint. the trial court has unfortunately not appreciated this aspect while issuing the process under section 420 and 114 of the indian penal code. the complainant had applied for membership and for issuance of certificates on 31st may 1989 and within three months and five days, when the process for scrutiny and allotment of shares applications was going on the complainant resorted to criminal proceedings. according to the provisions of bye-law no. 5 of the bank in the revised bye-laws of the original accused no. 1 - statutory bank, specific provision is incorporated as to how one would obtain the membership of the bank. there is also provisions in bye-law no. 7 that the board of directors has right to reject any application for membership or may allot less number of shares than actually applied for. the amount paid with the applications for membership, if rejected, obviously will have to be refunded to the applicants concerned. even if less number of shares are allotted, excess amount will have to be refunded, but that question would arise only when the decision is taken with regard to the request on the application for membership of the bank. bye-law no. 5 further provides the qualifications and circumstances under which the membership can be obtained of the bank. as there were as many as 18,000 to 20,000 applications for shares and membership of bank and allotment of the shares, it would obviously take time to scrutiny and scrutinise such big volume of applications. it is an admitted fact that complainant's request and application for shares and membership of the bank was not decided at the time when the complaint was filed. no decision was taken by the competent authority of the bank under the bye-laws with regard to the applications for membership of the bank preferred by the complainant. this aspect is also considered by the trial court while passing the impugned order for issuing process under section 420 and 114 of the indian penal code.6. apart from that the material ingredients and particulars attracting provisions of section 420 of the code are not manifested in the complaint or in the verification against all the accused persons. no specific information or material with name of the accused is stated in the complaint as to who gave such false assurances or who committed breach of criminal trust. the original accused no. 1 is a statutory bank. accused no. 2 is the statutory authority of accused no. 1 - bank. no name of accused no. 2 is mentioned. other accused persons are the office-bearers and directors of the said bank residing at different places in the state of gujarat. without considering all these aspects and circumstances and even on the statement made by the accused in verification on 6-9-1989, the trial magistrate, with due respect, has mechanically issued the impugned order and has thereby committed serious illegality.7. ordinarily, powers under section 482 of the code should not be exercised, if the complaint prima facie discloses material ingredients attracting the alleged offence or offences the case may be and if the trial court has applied its mind to the facts and principles to the relevant material ingredients of the alleged offence before passing impugned order for issuing the process. in light of facts and circumstances of the case narrated hereinabove even emerging from the record of the present case, this court has no hesitation in finding that the impugned order of issuing process by the learned chief judicial magistrate, at rajkot, on 6-9-1989 in criminal case no. 3899 of 1989 filed by the respondent-original complainant is not only manifestly perverse or unjust but is patently illegal resulting into misuse of process of court. despite pendency of civil litigation between the accused persons and other applicants, criminal complaint came to be filed. apart from that there was not a fit and appropriate case for issuing process under section 420 of the indian penal code and that too against all the officers of the statutory bank and the directors of the said bank.8. having regard to the facts and circumstances of the case, this court is fully satisfied that the impugned order of issuing process under sections 420 and 114 of the indian penal code is unjust, illegal and requires to be quashed. accordingly, this petition is partly allowed and impugned order of issuing process passed by the trial court is, hereby, quashed. rule is made absolute to the aforesaid extent only.
Judgment:

J.N. Bhatt, J.

1. The petitioners are the original accused persons against whom respondent No. 1 - original complainant filed Criminal complaint being Criminal Case No. 3899 of 1989 in the Court of learned Chief Judicial Magistrate, at Rajkot, for the offences punishable under Sections 406, 420, 120-B, 114 and 34 of the Indian Penal Code. After verification of the complaint before the trial Court, the learned Magistrate, at Rajkot, issued process for the offences punishable under Sections 420 & 114 of the Indian Penal Code. The impugned order came to be passed, on 6-9-1989. The trial Court directed that the orrences be registered against the accused persons for the offences punishable under Sections 420 and 114 of the Indian Penal Code and to issue summons returnable on 18-0-1989. The original accused persons being aggtrieved by the said order of the trial Court has preferred this petition under Articles 226 and 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure, 1973 (Code).

2. The learned Advocate for the petitioners-original accused persons, has taken this Court through relevant material on record. Original complainant respondent No. 1 herein filed criminal complaint on the allegations that the accused persons have committed various offences. The trial Court has ordered to register the offence under Sections 420 and 114 of the Indian Penal Code only.

3. It has been, seriously, contended on behalf of the original accused persons petitioners herein that the original complainant has resorted to criminal proceedings with an ulterior motive in order to capture management and power of the original accused No. 1 - Bank and to pressurise the accused persons. Thus, it is argued that there is abuse of process of Court and therefore, impugned order against the accused persons should be quashed.

4. The complainant, inter alia, stated in his complaint that all the accused persons have committed criminal breach of trust and dishonesty in not granting membership of the Bank, though the amount for share and Re. 1 /- towards entry fee had been collected from the complainant on 15-6-1989. It is alleged in the complaint that accused persons have not granted membership and allotted share as assured and promised by the accused persons despite several representations.

5. The impugned order of the trial Court is manifestly perverse and patently illegal in view of the facts and circumstances emerging from the complaint and other material on record. It is also very clear from the complaint itself that in order to raise capital of the Bank, viz., Gujarat Industrial Co-operative Bank (Said Bank) the resolution was passed by the Board of Directors and accordingly, the process was going on for raising funds by making more and more members and allotting shares to the members. It is pertinent to note from the complaint that there were about 18,000 to 20,000 applicants who had applied for membership of the said Bank. Non-allotment of shares applied for and non-refunding the amounts spent towards the shares and fees from 31-5-1989 from the date of filing of the complaint, i.e., on 6-9-1989 and further not allotting the same, all the accused persons have committed criminal breach of trust, the complaint came to be filed. The material particulars and ingredients attracting offences alleged must be prima facie manifested from the averments and allegations made in the complaint. The trial Court has unfortunately not appreciated this aspect while issuing the process under Section 420 and 114 of the Indian Penal Code. The complainant had applied for membership and for issuance of certificates on 31st May 1989 and within three months and five days, when the process for scrutiny and allotment of shares applications was going on the complainant resorted to criminal proceedings. According to the provisions of Bye-law No. 5 of the Bank in the revised Bye-laws of the original accused No. 1 - Statutory Bank, specific provision is incorporated as to how one would obtain the Membership of the Bank. There is also provisions in Bye-law No. 7 that the Board of Directors has right to reject any application for Membership or may allot less number of shares than actually applied for. The amount paid with the applications for Membership, if rejected, obviously will have to be refunded to the applicants concerned. Even if less number of shares are allotted, excess amount will have to be refunded, but that question would arise only when the decision is taken with regard to the request on the application for Membership of the Bank. Bye-law No. 5 further provides the qualifications and circumstances under which the Membership can be obtained of the Bank. As there were as many as 18,000 to 20,000 applications for shares and membership of Bank and allotment of the shares, it would obviously take time to scrutiny and scrutinise such big volume of applications. It is an admitted fact that complainant's request and application for shares and membership of the Bank was not decided at the time when the complaint was filed. No decision was taken by the competent authority of the Bank under the Bye-laws with regard to the applications for membership of the Bank preferred by the complainant. This aspect is also considered by the trial Court while passing the impugned order for issuing process under Section 420 and 114 of the Indian Penal Code.

6. Apart from that the material ingredients and particulars attracting provisions of Section 420 of the Code are not manifested in the complaint or in the verification against all the accused persons. No specific information or material with name of the accused is stated in the complaint as to who gave such false assurances or who committed breach of criminal trust. The original accused No. 1 is a statutory Bank. Accused No. 2 is the statutory authority of accused No. 1 - Bank. No name of accused No. 2 is mentioned. Other accused persons are the office-bearers and Directors of the said Bank residing at different places in the State of Gujarat. Without considering all these aspects and circumstances and even on the statement made by the accused in verification on 6-9-1989, the trial Magistrate, with due respect, has mechanically issued the impugned order and has thereby committed serious illegality.

7. Ordinarily, powers under Section 482 of the Code should not be exercised, if the complaint prima facie discloses material ingredients attracting the alleged offence or offences the case may be and if the trial Court has applied its mind to the facts and principles to the relevant material ingredients of the alleged offence before passing impugned order for issuing the process. In light of facts and circumstances of the case narrated hereinabove even emerging from the record of the present case, this Court has no hesitation in finding that the impugned order of issuing process by the learned Chief Judicial Magistrate, at Rajkot, on 6-9-1989 in Criminal Case No. 3899 of 1989 filed by the respondent-original complainant is not only manifestly perverse or unjust but is patently illegal resulting into misuse of process of Court. Despite pendency of civil litigation between the accused persons and other applicants, criminal complaint came to be filed. Apart from that there was not a fit and appropriate case for issuing process under Section 420 of the Indian Penal Code and that too against all the officers of the statutory Bank and the Directors of the said Bank.

8. Having regard to the facts and circumstances of the case, this Court is fully satisfied that the impugned order of issuing process under Sections 420 and 114 of the Indian Penal Code is unjust, illegal and requires to be quashed. Accordingly, this petition is partly allowed and impugned order of issuing process passed by the trial Court is, hereby, quashed. Rule is made absolute to the aforesaid extent only.