CR.MA/7126/2007 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 7126 of 2007 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================== SATISHKUMAR PARSHOTTAMDAS PATEL - Applicant(s) Versus THE STATE OF GUJARAT & 1 - Respondent(s) ========================================= Appearance : MR VM PANCHOLI for Applicant(s) : 1, MR IM PANDYA, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR UTPAL M PANCHAL for Respondent(s) : 2, ========================================== CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 01/04/2008 ORAL JUDGMENT 1. By this application, the applicant seeks quashment of the first information report being DCB Police Station, Surat I – C.R. No.62/2003 and the proceedings initiated pursuant CR.MA/7126/2007 2/7 JUDGMENT thereto qua the present applicant. 2. The facts of the case stated briefly are that the respondent No.2 herein had lodged the above referred first information report against the applicant and other accused on 22nd November, 2003, for the offences punishable under Sections 406, 408, 420, 45, 467, 468, 471, 477(A), 34 and 120B of the Indian Penal Code. The complainant is a member of one Ratnaprabha Cooperative Housing Society. The allegation in the first information report is that the accused viz. Vinodbhai is a Chairman of the said Society. The accused Kedarnath Sharma is a Secretary of the said Society and one Prakashbhai Patel is the Manager of the Managing Committee of the said Society. The complainant and other witnesses have purchased the plots in the said Society before 1990 and have made payment to the President, Secretary and others for the said plots. It is alleged that one Popular Infrastructure Ltd., Ahmedabad which is now known as Pioneer Infrastructure Ltd. has obtained a loan of Rs.15 crores from Indus Ind Bank Ltd., Ahmedabad. It is further alleged that the office bearers of Ratnaprabha Cooperative Housing Society Ltd., have passed a resolution without the knowledge of the members of the society and mortgaged the bungalow of the complainant and other witnesses without their knowledge and have thereby abetted the Directors of Pioneer Infrastructure Ltd., in obtaining the loan of Rs.15 crores. In the said complaint, the present applicant is shown as a member of the managing committee of one Kumkumnagar Cooperative Housing Society Ltd., and it is CR.MA/7126/2007 3/7 JUDGMENT alleged that the President and Secretary of the said Kumkumnagar Cooperative Housing Society Ltd. have also mortgaged the property of Kumkumnagar Cooperative Housing Society Ltd., with the Indus Ind Bank and thereby, abetted the Pioneer Infrastructure Ltd. in obtaining the aforesaid loan of Rs.15 crores and have thereby committed the alleged offences. 3. Heard Mr.V.M.Pancholi, learned advocate for the applicant, Mr.I.M.Pandya, learned Additional Public Prosecutor for respondent No.1 – State of Gujarat and Mr.U.M.Panchal, learned advocate for the respondent No.2 – original complainant. 4. Mr.V.M.Pancholi, learned advocate for the applicant has submitted that the first information report and the proceedings pursuant thereto are nothing but an abuse of process of law. It is submitted that the alleged offence is stated to have been committed during the period between 22nd February, 1999 to 30th April, 1999. However, during the said period, the applicant was not present in India and therefore, the question of the applicant having committed the alleged offence does not arise at all. In support of his submissions, the learned advocate has referred to various documentary evidence annexed along with the application, to point out that at the relevant time, the applicant was residing in the U.S.A. It is submitted that the applicant has never visited India after 1993 and therefore, on the date of the alleged offence i.e. in the year 1999, the applicant was not present in India and, therefore, the name of the applicant is falsely CR.MA/7126/2007 4/7 JUDGMENT mentioned by the complainant in the impugned first information report. 5. It is submitted that, assuming without admitting that the applicant was present in India at the relevant time, a perusal of the impugned first information report shows that the provisions of Sections 406 and 420 IPC are not attracted. It is submitted that the only allegation against the applicant is that he is a member of the managing committee of one Kumkumnagar Cooperative Housing Society Ltd., and the said society has mortgaged its property with the Indus Ind Bank, which in turn has given a loan of Rs.15 crores to one Popular/Pioneer Infrastructure Ltd. It is submitted that the applicant has not mortgaged the property of the complainant or other witnesses with the Indus Ind Bank by passing any resolution to that effect and therefore, the offence of forgery also cannot be said to have been made out against the present applicant. Attention of the Court is drawn to the averments made in ground (f) of the application, to point out that in the proceedings instituted by the bank before the Debt Recovery Tribunal, a consent decree has been passed and the same has been executed. It is submitted that the amount to be paid in terms of the consent decree has also been repaid. It is further submitted that, in the circumstances, when the applicant was not even present in India at the relevant time and when the disputed amount has already been repaid in terms of the settlement arrived at between the bank and the concerned accused persons, continuation of the present proceedings against the applicant would CR.MA/7126/2007 5/7 JUDGMENT amount to abuse of the process of court. It is submitted that, in the circumstances, the first information report and the proceedings initiated pursuant thereto be quashed qua the present applicant. 6. On the other hand, Mr.I.M.Pandya, the learned Additional Public Prosecutor has pointed out that it is not the function of this Court to examine the documentary evidence submitted by the applicant and give a finding as to whether at the relevant time the petitioner was present in India. 7. Whereas, Mr.U.M.Panchal, learned advocate for the respondent No.2 – original complainant has submitted that the entire amount due and payable to the Indus Ind Bank, in respect of which the complaint is lodged, has been repaid, hence, the complainant is no longer aggrieved and therefore, appropriate orders as may be deemed fit, may be passed. 8. In the background of the facts noted above, it is an admitted position that the complaint in question had been lodged in connection with a loan obtained by one Popular/Pioneer Infrastructure Ltd. by mortgaging the property of the complainant and others with the Indus Ind Bank, pursuant to a resolution passed by the managing committee of the concerned society. The petitioner has been arraigned as an accused as he was stated to be a member of the managing committee of the Kumkumnagar Cooperative Housing Society Ltd. It is the specific case of the petitioner that at the relevant point of CR.MA/7126/2007 6/7 JUDGMENT time, when the offence is stated to have been committed, he was not present in India, and that, he was at all times during the relevant period, residing in the U.S.A. The applicant has also placed a plethora of documentary evidence in support of his say that, at the relevant time, he was residing in the U.S.A. However, as rightly submitted by the learned Additional Public Prosecutor, it is not the function of this Court to sift through the documentary evidence submitted by the applicant to ascertain as to whether at the relevant time he was actually residing in the U.S.A. or not. The question as to whether the applicant was actually residing in the U.S.A. at the relevant time is a matter of evidence which can only be decided by the Trial Court during the course of trial. 9. However, considering the concession given by the learned advocate for the respondent No.2, wherein he has stated that in view of the fact that the entire disputed amount has already been repaid, he is no longer interested in pursuing the complaint any further along with the other attending circumstances, this Court is of the view that no fruitful purpose would be served if the present proceedings are permitted to continue qua the present applicant. 10.For the foregoing reasons, the application succeeds and is, accordingly, allowed. The first information report being DCB Police Station, Surat I – C.R. No.62/2003 and the proceedings initiated pursuant thereto, are hereby quashed qua the present applicant, who has been CR.MA/7126/2007 7/7 JUDGMENT arraigned as accused No.6 therein. Rule is made absolute accordingly. [HARSHA DEVANI, J.] parmar*