Srikanta Paul vs State Of Assam And Anr.

This application under Section 482 CrPC has been filed for quashing the FIR dated 30.01.2017 and the proceeding in BI(EO) Case No. 6/2017

under section 120B/120/468 IPC.

Learned Sr. Counsel Mr. D. Das, assisted by learned counsel Mr. S. Chamaria for thepetitioner and Mr. D. Das, learned Addl. P.P., Assam as

well as learned counsel Mr. H. Rahman for the respondents were heard.

Learned Sr. Counsel Mr. D. Das submitted that the respondent, proprietor of M/s Steel &Grip, Chabua, availed a cash credit limit (CCL) loan to

the tune of Rs. 5.7 lakhs and term loan of Rs. 11.90 lakhs from the United Bank of India, Chabua Branch. Subsequently, the said CCL loan was

enhanced from time to time. However, the respondent No. 2 became a defaulter for not making timely repayment of installments against the loan

availed by him, and as such the bank filed an O.A. case before the Debt Recovery Tribunal (DRT), Guwahati, which was registered as O.A. No.

74/2012. In the said case, the respondent No. 2 also raised counter claim and the DRT, by judgment and order dated 14.07.2016 allowed the O.A.

preferred by the bank and dismissed the counter claim of the respondent No. 2. Against the judgment of the DRT, the respondent No. 2 preferred an

appeal before the Debt Recovery Appellate Tribunal, Kolkata, which was also dismissed and having failed in the civil litigation, the instant FIR was

lodged with the ulterior motive to obstruct the bank from realizing the money as per the judgment of the DRT as well as the Appellate Tribunal. It was

also submitted that the allegations made in the FIR, were more or less pertaining to deficiency of service and all those allegations were made before

the DRT and the learned Tribunal rejected the same. Having failed to succeed in the civil litigation, the present FIR was filed, with malafide intention

only to harass the bank employees and to obstruct execution of the order passed by the DRT. Mr. Das, learned Sr. Counsel further submits, that the

FIR does not disclose any cognizable offence and the allegations made in the FIR, at best could make out a case of deficiency of service, which does

not attract criminal liability and as such, prayed for quashing the FIR as well as the proceeding arising therefrom, placing reliance on the celebrated

decision of the Apex Court in State of Haryana Vs. Bhajanlal reported in 1992 Supp (1) SCC 335.

Learned counsel for the respondent No. 2 submits that the Investigating Agency shouldbe given opportunity to investigate the matter, inasmuch as,

this court cannot enter into an enquiry to ascertain the correctness or veracity of the allegations made in the FIR.

The scope of interference by High Court in the matter of quashing a complaint or anFIR at the threshold, in exercise of power under Section 482

CrPC is no longer res-integra. The Apex Court in a catena of decisions laid down the principle and guidelines for quashing a complaint or FIR in

exercise of inherent power under Section 482 CrPC. In R.P. Kapoor Vs. State of Punjab reported in AIR 1960 SC 866, the Apex Court summarized

the following three categories of cases where the inherent power under Section 482 CrPC can and should be exercised to quash the proceeding:

(i) When it manifestly appears that there is legal and statutory bar against institution and continuance of the proceeding;

(ii) When the allegation made in the FIR or complaint taken at their face value and accepted in their entirety do not constitute any offence alleged and

(iii) When the allegation constitute an offence, but there is no legal evidence or the evidence adduced clearly or manifestly fails to prove the charges.

The Apex Court in Bhajanlal (supra) summarized the following categories of cases where the inherent power can and should be exercised by the

High Court, either to prevent abuse of process of the court or to secure the ends of justice.

“(1) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their

entirety do not prima facie constitute any offence or make out a case against the accused;

(2) where the allegations in the First Information Report and other materials, ifany, accompanying the F.I.R. do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code;

(3) where the uncontroverted allegations made in the FIR or 'complaint and theevidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused;

(4) where the allegations in the FIR do not constitute a cognizable offence butconstitute only a non-cognizable offence, no investigation is permitted by

a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(5) where the allegations made in the FIR or complaint are so absurd andinherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused;

(6) where there is an express legal bar engrafted in any of the provisions of theCode or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party;

(7) where a criminal proceeding is manifestly attended with mala fide and/orwhere the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.â€​

Thus, one of the primary condition to exercise the inherent power under Section 482CrPC for quashing a criminal proceeding at the threshold is to

look into the allegations made in the FIR or complaint and to see whether the allegations made in the FIR or complaint, when taken at their face value

and accepted in their entirety, prima facie makes out any criminal offence. If the allegation made in the FIR taken at their face value and accepted in

their entirety do not prima facie, constitute any offence or do not make out a case against the accused, the High Court should not hesitate to quash

such proceeding for ends of justice or to prevent the abuse of process of the court. As a corollary to the same, if the allegation made in the FIR taken

at their face value and accepted in their entirety prima facie makes out an offence, the power under Section 482 CrPC should not be exercised.

Keeping in view the above principle, let me look into the allegations made in the FIRlodged by the respondent No. 2, in order to ascertain, whether

the allegations made therein, prima facie make out any offence against the petitioner.

It was alleged in the FIR lodged by the respondent No. 2, that there were grievances ofirregularities, anomalies, wrong doing and various

deficiencies in service of the United Bank of India (UBI), Chabua Branch. The respondent No. 2 being the proprietor of M/S Steel & Grip, A.T.

Road, Chabua has been carrying on business since 1987. The UBI branch, Chabua, initially sanctioned a CCL loan of Rs. 35,000/- in favour of the

respondent No. 2Â and later on, the limit of cash credit was enhanced. Computer banking system (CBS) was introduced in UBI, Chabua, in the year

2000, and because of handling of computer by the inexperienced employees of the bank, various irregularities, abnormalities and deficiencies of

service were noticed.

The UBI without any explanation given to the customers, introduced computer bankingsystem and failed to provide the statement of accounts in

respect of cash credit accounts. The bank also suddenly changed the cash credit account number of respondent No. 2 without giving intimation. There

were anomalies in the cash credit account number because of inducting new number. The statements of account pertaining to the cash credit account

of respondent No. 2 issued by the bank, was not correct and manufactured falsely for the gain of the bank. The respondent No. 2 was also not aware

as to on what basis, and from which date, manual operation of the UBI Chabua branch was transformed into the computer system in respect of the

cash credit and term loan. It was also alleged that during operation of the computer banking system, the UBI, Chabua Branch, also deliberately and

determinately resorted to manual preparation of account which was in clear violation of the banking norms. The UBI Chabua Branch failed to furnish

proper statement of accounts, showing data wise clear and transparent account chronologically. After installation of computer system, the bank

wrongly debited huge amount from the CC account without consent of the respondent No. 2 on different dates. It was also alleged that the bank

charged excess interest amount from their account in the year 2008, 2009, 2010 and 2011. An amount of Rs. 25,000/- was shown to have been

withdrawn against UBI cheque No. 327317 and allegedly such cheque was not issued by the respondent No. 2. It was stated that such withdrawal

was a fraud on the part of the bank. In one instance, respondent No. 2 issued UBI cheque No. 358877 and requested to do NEFT payment to their

client, but the said amount was not credited in the account of the client. On enquiry by its accountant, the respondent No. 2 came to know, that the

said amount was reversed back to the account of the respondent No. 2, which was apparently a deficiency in service. For all those allegations, the

respondent No. 2 approached the ombudsman and other bank authorities. However, the ombudsman rejected the application of the respondent No. 2

and thereafter the FIR was lodged.

I have gone through the affidavit-in-opposition filed by respondent No. 2 as well as thereply thereto given by the petitioner.

Having gone through the allegations made in the FIR, it appears that most of theallegations were more or less relating to the anomalies or

deficiency in the service of the bank to the customers. Except the allegations of drawal of Rs. 25,000/- against a cheque allegedly not issued by the

respondent No. 2, there was no other allegation to constitute a cognizable offence.

From the record and the affidavit filed by the parties, it appears that said Rs.25,000/-was withdrawn against cheque No. 327317 which was a self

drawn cheque by the respondent No. 2 and from the affidavit submitted by the petitioner in reply to the counter affidavit filed by the respondent, it

appears that withdrawal of Rs. 25,000/- was also alleged before the Debt Recovery Tribunal and the claim was rejected by the Tribunal. When the

cheque was a self drawn cheque, the amount would ultimately go to the account of the respondent No. 2. Evidently, the respondent No. 2 defaulted in

repayment of the loan and having failed to succeed in all forums to avoid payment of the loan, ultimately lodged the FIR. There was no allegation in

the FIR regarding criminal conspiracy. In my considered view ingredient of the offence under Section 468 or 420 IPC are also not traceable in the

FIR lodged by the respondent No. 2.

In order to constitute an offence under Section 420 IPC, there must be deception andinducement to deliver any property. The allegation made in

the FIR does not make out even prima facie that the respondent was deceived or fraudulently induced by the bank to deliver any property. There is

also no ingredient to constitute offence under Section 468 or 120-B IPC. Therefore, the entire allegations made in the FIR, even if taken at their face

value and accepted in its entirety, in my considered view, do not make out a cognizable offence. Lodging the FIR after having failed in all the forums,

with the allegations, which were hopelessly falling short of making out prima facie, any offence, clearly demonstrated the intention of the respondent

No. 2, that the present FIR was nothing but a feeble attempt to give criminal flavor to a civil dispute to avoid the consequence of civil litigation or to

obstruct the bank from realizing its due. When the FIR failed to make out any offence, it would be a travesty of justice to allow the criminal

proceedings to continue which, apparently is a motivated one. Accordingly, the FIR and the criminal proceeding in BIEO Case No.6/2017 are hereby

quashed. Â

The criminal petition stands allowed.

Send down the LCR.