RAMANLAL PARSOTTAM CHOKSI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners are the original accused in Criminal Case No. 1092 of 1992 pending in the court of the learned Metropolitan Magistrate, Ahmedabad. The complainant of that case is Anandkumar Premchand Jain, respondent No. 2 in this petition. Petitioner No. 1 is the Chairman of the New Manekchowk Co-operative Bank Ltd. and petitioner Nos. 2 and 3 are the officers employed by the said bank. The complainant has filed the said complaint alleging that the three accused had called the complainant in July 1988 and told him that if the complainant paid Rs. 8.50 lacs being the dues of Lalman Khyaliram, then they would see that the three shops belonging to Lalman would be transferred with possession in favour of the complainant. It is further alleged that relying upon this assurance, he paid on 30-7-1988, a sum of Rs. 8.50 lacs to the bank for wiping out the debt of Lalman. The accused, however, did not transfer with possession the said three shops in favour of the complainant but executed two deeds of assignment whereby only the mortgage rights which the bank had were transferred in favour of the complainant. It is further alleged that it was represented by the accused to him at that time that as other creditors had also to recover certain amounts from Lalman, it was not possible for the accused to obtain consent of Lalman for transfer of the said shops and that in case they were not able to get consent of Lalman and for that reason were not able to hand over possession of the shops to the complainant, then they would credit the said amount of Rs. 8.50 lacs in the accounts of the complainant and his brothers. It is further alleged that in this manner, the accused have cheated the complainant and have thereby committed an offence punishable under Section 420 read with Section 34 of the Indian Penal Code. The said complaint was filed on 9-4-1992. The learned Magistrate issued process against all the three accused. Challenging the issuance of process, the petitioners have filed this petition.

(2.) What is contended by the learned Advocate for the petitioners is that the bank had to recover a large sum from Vinay Premchand Jain, Rakesh Premchand Jain, Chandresh Premchand Jain, Kaladevi Premchand Jain and Sulochna Anandmal Jain. As they were not paying the same, the bank was obliged to file a suit being Civil Suit No. 536 of 1992 before the Board of Nominees in March 1992. In order to bring pressure and to abuse process of court, the accused mala fide and by way of counter-blast, filed the aforesaid complaint on 9-4-1992. He also submitted that if the complaint is read closely, it would become clear that it does not disclose any offence and that the real dispute between the parties is of a civil nature.

(3.) It is a fact that the complaint came to be filed by the complainant after the suit was filed by the bank against the wife and brothers of the complainant. The shops did not belong to the bank nor as the bank in possession thereof. They were only mortgaged with the bank. It is, therefore, not probable that the bank could have promised to transfer the said shops in favour of the complainant with possession. It could have only transferred the right, title and interest which it had in the said shops. It is also pertinent to note that the deeds of consignment were executed on 20-7-1988 and 22-7-1988; whereas the payment of Rs. 8.50 lacs was made on 30-7-1988. Thus, the complainant knew what was going to be transferred by the bank in favour of the complainant. The complainant, as it appears from the complaint itself, had taken advice of a lawyer and thereafter had made the payment. It is, therefore, difficult to appreciate how it can be said that he was cheated by the accused. The version coming out from the complainant in the complaint is so improbable that no reasonable man would place reliance upon it. This is, therefore, fit case in which the process issued by the court deserves to be quashed.