BABUBHAI MAHIJIBHAI TALPADA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) 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.) FACTS leading to filing of the present petition in nut-shell are as under:

(3.) 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/charge-sheet.