KEYUR BIPINCHANDRA DESAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners before this Court are accused Nos. 9 and 10 in the Criminal complaint filed by the respondent No.2 Bank, for the offences punishable under Sections 406, 420, 465, 468, 471 read with 114 of Indian Penal Code. The petitioners pray that invoking jurisdiction of this Court under Section 482 of Code of Criminal Procedure, the proceedings initiated by respondent Bank through its officer Shri Bharatkumar Ambalal Panchal, be quashed as the same is bad and unsustainable on the grounds mentioned in paragraph 5 of the memo of petition. I have considered the submissions made by learned Advocate Mr. Gupta for the petitioners, Mr.A.D. Oza, Learned Public Prosecutor for the respondent State and Mr. B.B. Naik for the complainant Bank.

(2.) It is submitted by Mr. Gupta that they are wrongly dragged into a sensitive litigation, though they were not party to any of the transactions referred to in the complaint filed before the Police. Initially the complaint was filed in the Court of Judicial Magistrate First Class, Anand and thereafter, it has been sent for investigation vide order passed under Section 156(3) of Cr.P.C and at present, undisputedly the Police is investigating the offence. He submitted that about 10 persons are named as accused in the complaint, wherein petitioner No.1 is arraigned as accused No.9 and petitioner No.2 is arraigned as accused No.10. I have considered the complaint filed by Bharatkumar Ambalal Panchal, an officer of the Bank, on 13th November, 2003 before the Judicial Magistrate First Class at Anand, narrating the fraud played with the Bank, which was ultimately registered as M.Case No. 74 of 2003. The crime is registered against the petitioners for the offences punishable under Sections 406, 420, 465, 467, 468, 471 read with 114 of Indian Penal Code. It is contended by the petitioners, stating the facts leading to the complaint in paragraph 2 of the memo of petition, that the FIR in question does not disclose any offence qua present petitioners and the alleged transaction had taken place in the year 1999 and the petitioners have been appointed as Power of Attorney of accused Nos. 2, 3 and 4 for the first time in the year 2003. So it would be wrong to presume even prima-facie that the petitioners were party in hatching the conspiracy, or have entered into conspiracy with motive hatched earlier against the Bank. The transaction referred to by the complainant is advancement of loan to a Partnership firm running in the name and style of Shreeji Cold Storage. It is submitted that the steps taken by both the petitioners are in the interest of the persons who have given power to them to act on behalf of the executant and if any mistake is committed in acting bonafide on behalf of the persons who had given Power of Attorney, it cannot be equated with any criminal role on either presumption or surmise, and therefore the proceedings initiated against both these petitioners should be terminated in the midst of investigation.

(3.) Mr. Gupta has relied upon the following decisions of the Hon'ble Supreme Court to substantiate his contention:- 1. State of Haryana and others Vs. Ch. Bhajan Lal and others, reported in AIR 1992 SC 604. 2. S.N. Palanitkar and others Vs. State of Bihar and another, reported in AIR 2001 SC 2960. 3. Ajay Mitra Vs. State of M.P and others, reported in (2003) 3 SCC 11.