MUMTAZ ALAM Vs. STATE OF BIHAR

JUDGEMENT

(1.) Since in both the petitions, filed under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Cr.P.C.") petitioners have prayed for quashing of order dated 25.7.2006 passed by Sri A.K. Singh, Judicial Magistrate, 1st Class, Patna in Complaint Case No. 1317(C) of 2006, whereby, the learned Magistrate has taken cognizance of offence under Sections 406, 420, 468 & 499 of the Indian Penal Code and also for quashing of entire criminal proceeding in the said complaint case, both petitions were heard together and are being disposed of by this common order. Short fact of the case is that opposite party No. 2 namely, Sri Arun Kumar Govil, Managing Director of M/s. S.M. International Ltd. had filed a complaint petition in the Court of Chief Judicial Magistrate, Patna, disclosing therein, that he had approached the Managing Director of Bihar State Credit & Investment Corporation (hereinafter referred to as "BICICO") for sanction of loan for establishment of an industry, and accordingly, a term loan of Rs. 50 Lakhs was sanctioned on certain terms and conditions, which was to be re-paid in installment with interest as per repayment schedule. The BICICO in joint financing with BSFC had sanctioned a term loan of Rs. 50 Lakhs, subject to approval of re-finance of Industrial Development Bank of India (hereinafter referred to as "I.D.B.I."). Subsequently, the BICICO informed the complainant/opposite party No. 2 that I.D.B.I., had sanctioned seed capital assistance and after disbursement of Rs. 12.35 Lakhs. It was alleged by the complainant that the Managing Director, BICICO, fraudulently cancelled the seed capital assistance after disbursement of Rs. 8.40 Lakhs and adjusted the same against the term loan of BICICO. According to the complainant, the said cancellation was an act of criminal breach of trust putting him to huge financial loss. Subsequently, after examination of complainant on oath, the learned Judicial Magistrate, 1st Class, Patna, took cognizance of offences under Sections 406, 420, 468 & 499 of the Indian Penal Code and directed for issuance of processes. In 1st case i.e. Cr. Misc. No. 43329 of 2010, as alleged, the petitioner No. 1 was the In-charge Recovery (Jharkhand), BICICO and petitioner No. 2 was Assistant Manager, OTS, BICICO. Cr. Misc. No. 29248 of 2008 has been filed by Sri Prem Singh Meena, who was at the relevant time was Managing Director of the BICICO.

(2.) Learned counsel for petitioners in both the cases, at the very outset, has argued that on perusal of the contents of the complaint petition itself, no criminal offence is made out. However, the learned Judicial Magistrate, in a cryptic manner, has passed order of cognizance, which is not sustainable in the eye of law. Learned counsel for the petitioners further submits that primarily the complaint petition was filed with a purpose to put pressure on the officials of the BICICO, so that, they may not take any sincere effort in recovery of the loan amount from the complainant/opposite party No. 2. It has been argued that since the loan amount was not paid, after all formalities even steps were taken for initiating certificate proceeding against the complainant under the provisions of Public Demands Recovery Act and only thereafter, the present complaint petition was filed, that too, without mentioning as to what action was taken by which of the petitioners showing commission of any criminal offence. It has been emphatically argued that in entire complaint petition there is no whisper regarding omission or commission, directly or indirectly, by any of the petitioners of both the cases. In sum and substance, it has been argued that the complaint petition was filed maliciously and with oblique motive to pressurize the officials of the BICICO not to take steps in the light of recovery of loan amount from the complainant.

(3.) Sri Amit Srivastava, learned counsel for the petitioners in Cr. Misc. No. 43329 of 2010, while referring to statement made in paragraph No. 13 of the petition submits that I.D.B.I., had sanctioned seed capital assistance of Rs. 12.35 Lakhs to the complainant/opposite party No. 2, which was communicated by the BICICO on 16.11.1983. The documents relating to seed capital assistance were executed by opposite party No. 2 on 7.4.1986. The I.D.B.I., later on cancelled the seed capital assistance due to the reason that the company of the complainant after changing its name as S.M. International Ltd. had gone in public issue of Rs. 66 Lakhs. Thereafter, BICICO also cancelled the seed capital assistance of Rs. 12.35 Lakhs as per instruction of I.D.B.I., and the amount of seed capital assistance disbursed to the complainant/opposite party No. 2 was converted into term loan. The said decision of the Board of Directors of BICICO was duly communicated to opposite party No. 2 on 21.10.1986. Sri Srivastava, further submits that despite several notices, loan amount was not cleared by the opposite party No. 2, and finally, due to outstanding dues of Rs. 554.84 Lakhs as on 30.9.2001, BICICO was constrained to put the unit of opposite party No. 2 on sale. Since the complainant/opposite party No. 2 had intentionally withheld public money and put the BICICO to huge loss, BICICO took action on agreed terms and conditions. Subsequently, a certificate case was also filed against complainant/opposite party No. 2 to recover the said dues. Sri Srivastava, further by referring to averment made in the petition submits that in the year 2004 BICICO came out with a one time settlement scheme, known as OTS, 2004, offering benefits to defaulter units falling under various categories and to avail the benefit of the said scheme, the complainant/opposite party No. 2 falsely informed the BICICO that they are sick unit and hence an offer to settle the dues of Rs. 83.97 Lakhs was communicated on 24.11.2004 subject to submitting proof of sick unit by BIFR/APEX Body as per OTS, 2004. The complainant/opposite party No. 2 had no proof of being a sick unit. Thereafter, the opposite party No. 2 changed his stand and informed the BICICO that they fall under non-commission category of OTS, 2004, and accordingly, a revised settlement amount of Rs. 54.61 Lakhs was worked out and communicated to opposite party No. 2 vide letter dated 29.12.2004. The said offer was subject to furnishing proof that the unit is a non-commission unit as per OTS, 2004, and payment of settlement amount within the validity period of OTS, 2004. Thereafter, the complainant/opposite party No. 2 submitted a demand draft and post dated cheques for getting substantial benefit of OTS, 2004 under non-commission category and later on number of cheques submitted by complainant/opposite party No. 2 were dishonored by his Bank. Thereafter, opposite party No. 2 was given notices by the BICICO to replace the dishonored cheques and due to non-compliance, cases under Negotiable Instrument Act were filed by the BICICO against complainant/opposite party No. 2. The opposite party No. 2 had not paid the balance OTS amount to BICICO. Even after adjustment of some of the amount paid by the complainant/opposite party No. 2, total dues amount as on 31.3.2008 comes to Rs. 1664.78 Lakhs, which was also communicated to the complainant. It has been clarified that petitioner No. 1 in Cr. Misc. No. 43329 of 2010, at the relevant time, was posted as Deputy Manager, whereas, petitioner No. 2 was on deputation of BICICO and was posted as Assistant Manager. It has been reiterated that the present complaint petition was filed in a calculative way by the complainant only and only with a view to pressurize the officials of the BICICO not to take any action for recovery of the dues amount from the complainant, and accordingly, the order of cognizance as well as entire criminal proceeding in Complaint Case No. 1317(C) of 2006 pending before the Judicial Magistrate, 1st Class, Patna, is liable to be set aside.