AKSHAY KUMAR GOEL Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) By way of instant petition filed under Sec. 482 Cr.P.C., read with Sec. 227 of the Constitution of India, prayer has been made on behalf of the petitioner for quashing of FIR No.129, dtd. 12/4/2019, registered at police Station, Una Sadar, District Una, H.P., under Ss. 406, 410, 420, 120-B and 34 of IPC as well as consequent proceedings pending before the competent court of law.

(2.) For having bird's eye view, facts leading to the registration of FIR sought to be quashed in the instant proceedings are that the Branch Manager, Vijaya Bank, Una, District Una, H.P., sanctioned the loan amount of Rs.10,00,000.00on dtd. 12/1/2015 to the petitioner, who in turn, executed an agreement/ deed of hypothecations dtd. 12/1/2015 and hypothecated the machinery in favour of the bank. Since the petitioner allegedly committed default in repayment of loan and had committed serious irregularities in the operation of the accounts, bank, as detailed hereinabove, firstly called upon the petitioner to make the payment regularly, but subsequently debt of the petitioner was classified as'NPA' on 30/9/2018. On 7/6/2018, notice for the recovery of loan was issued by the bank to the petitioner, but despite that he made the default in payment. Thereafter, demand-cum re-possession seizure notice was issued to the petitioner and to the surety on 1/10/2018. The authorization letter for re-possession/ seizure of machinery was issued to seizure agent on 30/10/2018, but by that time allegedly petitioner had absconded with the hypothecated machinery and it was not found at the place of business. The letter by recovery agent addressed to the Regional Manager for (Recovery) Vijaya bank dtd. 29/11/2018, is annexed with as Annexure R-2 with the reply filed by Superintendent of Police Una, wherein he reported that borrower has disposed off the machinery, therefore FIR for fraud may be lodged against the borrower. In the aforesaid backdrop, respondent No.3, Uma Shankar Kumar, Branch Manager, Vijaya Bank, Una lodged complaint in the police station, but it appears that no action was taken by the police on the complaint of the bank and as such, it was compelled to file complaint under Sec. 156(3) Cr.P.C in the Court of Judicial Magistrate 1st Class, Court No.III, Una, praying therein to order for registration of the case against the petitioner under Ss. 406, 410, 420, 120-B and 34 of IPC. In the aforesaid background, FIR sought to be quashed in the instant proceedings came to be lodged against the petitioner, who as per the reply filed by respondent No.1 stands declared proclaimed offender in the case vide order dtd. 29/1/2021 passed by court below.

(3.) Precisely, the grounds, as has been raised in the petition and further canvassed by Mr. George, learned counsel representing the petitioner for quashing of FIR, are that once petitioner has already repaid the entire amount of loan alongwith up-to -date interest, he cannot be prosecuted for his being allegedly committed the offence of criminal breach of trust punishable under Sec. 406 of IPC. Learned counsel for the petitioner while inviting attention of this Court to Ss. 405 and 406 IPC, argued that if any person entrusted with any property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law, such person can be said to have committed the offence of criminal breach of trust punishable under Sec. 406 of IPC. Learned counsel for the petitioner further argued that at no point of time machinery alleged to have been sold by the petitioner was entrusted to him by the complainant, rather same as per own case of the complainant was hypothecated by petitioner with the bank. Learned counsel for the petitioner further argued that though machinery or other property kept as collateral security in lieu of loan was hypothecated with the bank, but always remained in the ownership of the petitioner and as such, there is no question, if any, of entrustment of property by the bank to the petitioner. If it is so, no case much less under Sec. 405 of IPC, is made out against the petitioner. While referring to Sec. 420 of IPC, learned counsel for the petitioner argued that there is no material on record to suggest that petitioner committed cheating and dishonestly induced respondent-bank to deliver its property to any person, or any part of a valuable security, which is capable of being converted into a valuable security. He argued that to attract Sec. 482 Cr.P.C, there has to be dishonest intention from very beginning, which is sine qua non to hold the accused guilty for the commission of said offence. He argued that as per own case of respondent-bank, petitioner was regular in making repayment of loan for some time, but subsequently on account of irregular payments, his account was classified as'NPA' on 30/9/2018. He argued that had petitioner had an intention to cheat the bank from very beginning, he would have not paid single installment after availing loan facility from the respondent bank, rather he kept on paying installments regularly, but subsequently on account of some financial crunch became irregular in payment but that does not mean that he had an intention from very beginning to cheat and misappropriate the loan amount. Learned counsel for the petitioner further argued that since no case much less substantial is made out against the petitioner under Ss. 405 and 406 of IPC for the reasons stated hereinabove, no fruitful purpose would be served by keeping the FIR sought to be quashed alive. He argued that to the contrary, petitioner, who is innocent and has not committed any offence as is being alleged against him, would be put to great hardship. He argued that moreover entire loan amount now stands repaid and as such, otherwise also, no case is made out against the petitioner and as such, prayer made in the instant petition deserves to be allowed. In support of his aforesaid contention, learned counsel for the petitioner has placed reliance upon the following judgments passed by Hon'ble Apex Court:-