NAVINCHANDRA VISHNUPRASAD SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Both these petitions are moved invoking jurisdiction of this Court under Section 482 of the Code of Criminal Procedure ( for short "Cr.P.C." ). The first petition is moved by one Navinchandra Vishnuprasad Shah - a guarantor with a prayer to quash the charge and the Criminal Case No.799 of 2005 pending before Metropolitan Magistrate Court No.20, Ahmedabad against the petitioner herein. The second mentioned petition is moved by one Bharatkumar Shantilal Sheth a power of attorney holder of loanees and a guardian of minor with a prayer to quash the above proceedings as also order dated 18.03.2008 passed below application Exh.2 Annexure "H" rejecting the application moved by the petitioner for discharge. The petitioner also prays for discharge from the above criminal case.

(2.) A loan was obtained on 29.2.1988 for business purpose by the firm M/s. Chirag Enterprises constituting father, daughter -in -law and grandson from Sahyog Co -operative Bank Limited which is now being represented by Jethabhai Khodidas Patel - the liquidator, respondent No.2 herein who has lodged original complaint. A notice for recovery was served upon the petitioners on 14.11.1990 after a notice was given to the bank by petitioners disowning the liability except to an extent of Rs.75,000/ -, This dispute gave rise to a Lavad Case being No.779 of 1991 which came to be decreed on 10.9.2003 against which appeal being No.1248 of 2003 was preferred wherein interim application was also moved which was granted on 09.07.2004 after bi parte hearing. The relevant order is produced at Annexure "E" to Special Civil Application No.5903 of 2008.

(3.) While the above proceedings were pending in appeal, FIR dated 3.8.2004 came to be filed against the petitioners and others alleging the offence under various provisions of IPC ranging between 29.12.1988 i.e. the date when the loan was taken to 29.2.2004. It is relevant to mention here that amongst the accused, the other four entities unconnected with the above loan transaction but who had availed loan through different transactions at different points of time from Sahyog Co -operative Bank Ltd, have also been arraigned as accused. The petitioners and others moved two Criminal Misc. Applications separately being 4659 of 2005 and 4660 of 2005 for quashing of the FIR. However, in the meanwhile, chargesheet came to be filed and therefore both the petitions were respectively withdrawn on 9.1.2006 and 12.9.2006 without inviting any order on merits since the Court opined that as chargesheet was filed the cases were not maintainable.