MAHESH PATHAK Vs. STATE OF U P

JUDGEMENT

(1.) This petition under Article 226 of the Constitution seeks issuance of writ in the nature of certiorari quashing the F.I.R dated 11-11-1999 lodged by the respondent No.5 under Sections 409/420. IPC on the basis of which Case Crime No. 216 of 1999 come to be registered at police station Gopeshwar. District Chamoli.

(2.) The petitioner Mahesh Pathak is the Managing Director of a Company called Crystal Credits Corporation Limited. which it is said, was incorporated under the Companies Act. 1956 on February 4. 1992 by the Registrar of the Companies. Delhi and Haryana at New Delhi. The company, it is claimed, is entitled to do business as a Non Banking Finance Company. The informant, party respondent No.5, according to the F.I.R deposited a sum of Rs. 23,000/- in the Gopeshwar Branch of the Company on 16-3-1998 in a fixed deposit scheme which matured on 16.9.1999. The petitioner Dr. Mahesh Pathak according to the F.I.R. was instrumental in getting the money deposited by the informant in the Company. A sum of Rs. 28,622/- became payable to the informant on the expiry of the maturity period on 16-9-1999 but the money was not paid to the informant despite even after maturity. It is alleged in the F.I.R. that the accused persons namely, Govind Singh Negi, Regional Branch Manager. Crystal Credit Corporation Limited, Gopeshwar and Dr. Mahesh Pathak, the petitioner herein have embezzled the money. The main allegations in the F.I.R. reads as under:

(3.) It has been submitted by Shri Rakesh Thapliyal, learned counsel appearing for the petitioner that the allegations made in the F.I.R., prima facie, do not disclose commission of an offence punishable under Section-409/420, IPC. It has been submitted by the learned counsel that the relationships between the informant and the Company was of a creditor and debtor and not that of beneficiary and trustee. It has been submitted by the learned counsel that the dispute between the parties is essentially of civil nature and mere fact that it has been given clock of criminal offence would not justify investigation and arrest of the petitioner in the case. Reliance has been placed on Shanti Prasad Jam v. The Director of Enforcement and another and G. Sagar Surt and Another v. State of U.P. and Ors.. In the first case the Supreme Court has held thus: Now the law is well settled that when moneys are deposited in a Bank, relationship that is constituted between the banker and. the customer is one of debtor and creditor and not trustee and beneficiary. The Banker is entitled to use the moneys without being called upon to account for such user, his only liability being to return the amount in accordance with the terms agreed between him and the customer.