@JUDGMENTTAG-ORDER
N.K. Gupta, J.@mdashThis order shall govern the disposal of above mentioned three petitions, as common question of fact and law is involved in these petitions. The applicants being a Banking-Company and its office bearers including various Vice Presidents, Directors, Managers and Shri Kawin B. Ajit, Head Resolution of Phoenix ARC Pvt. Ltd. have preferred the above mentioned petitions u/s 482 of Cr.P.C. to quash the FIR for the Crime No. 58/2011 lodged at Police Station Goharganj (applicants have wrongly mentioned in the cause title, actual Police Station is Umraoganj) District Raisen due to order passed by the Chief Judicial Magistrate, Raisen u/s 156(3) of Cr.P.C.
2. The facts of the case in a nutshell are that the respondents No. 3 and 4 are the companies having their business of manufacture of liquor etc. (hereinafter referred to as "borrower-companies" On 25.10.2005 applicant Kotak Mahindra Bank Ltd. (hereinafter referred to as "applicant bank") gave an offer to the respondents No. 3 and 4 for resolution of their debts with their lenders. Thereafter agreements took place between the applicant bank and the respondents No. 3 and 3 that the applicant bank shall participate in negotiations with Bank of India (for short "BOI"), Bank of Baroda (for short "BOB") and other banks to resort to one time settlement (for short "OTS") for their outstanding loans which were non-performing assets (for short "NPA") for concerned banks. The applicant bank shall get success fees for such negotiations. A term sheet was also executed between the parties. It was agreed that the applicant bank shall also provide the working capital to the respondents No. 3 and 4 and for such financial assistance 14% interest shall be charged from the borrower-companies. Thereafter negotiations took place between the applicant bank and other banks like BOI and BOB. The applicant bank assigned agreement from BOI and BOB in the year 2007 and thereafter again a fresh agreement with indicative term sheet took place between the parties. The respondents No. 3 and 4 have given some post dated cheques for payment of entire loan in installments. After sometime, it was found that some cheques were dishonored and applicant bank could not get the installment from the respondents No. 3 and 4. Therefore, in October 2009 a notice of winding up was given to the respondents No. 3 and 4. Thereafter the respondents No. 3 and 4 submitted an FIR before SHO Police Station Umraoganj, District Raisen for investigation of offence punishable under Sections 409, 420 and 120-B of IPC against the applicant bank and its eleven Directors and eight various Managers. It was mentioned in the FIR that the applicant Shri K.D. Ajit was one of the Managers in the applicant bank. The police obtained a reply from Manilal Kher, Advocate for the applicant bank. Thereafter the respondents No. 3 and 4 have filed a complaint before the Chief Judicial Magistrate, Raisen on 5.10.2010 for taking cognizance of offences punishable under Sections 406, 420 and 120-B of IPC committed by the various applicants. The Chief Judicial Magistrate, Raisen forwarded the complaint to the concerned Police Station on the same date for enquiry and thereafter the Chief Judicial Magistrate, Raisen waited for the report to be received from the police. On 1.3.2011 SHO, Police Station Umraoganj District Raisen informed that the applicants were not cooperating in investigation, and therefore it was directed that the complaint that was already sent to the police u/s 156(3) of Cr.P.C. be registered as an FIR and final report as per the provisions of Chapter XII of Cr.P.C. may be submitted including a report u/s 173 of Cr.P.C.
3. Heard the learned counsel for the parties at length. Learned counsel for the parties have addressed for more than twelve hours in three days. Out of that, learned counsel for the applicants addressed for more than nine hours.
4. Learned senior counsel and other counsel appearing on behalf of the applicants have submitted that in the complaint filed by the respondents No. 3 and 4, there was no pleading about any crime done either by the applicant bank or other applicants, and therefore the FIR registered by the Police Station Umraoganj District Raisen may be quashed on this count only. In support of this contention, learned counsel for the applicants have placed their reliance on the following judgments and orders of the Hon''ble Apex Court:-
(a)
(b)
(c)
(e)
(f)
It is also submitted that if prima facie case is not made out from the complaint or FIR, then it is an abuse of process of law and such abuse cannot be permitted. Learned counsel for the applicants have placed their reliance on the following judgments and orders of the Hon''ble Apex Court in this context:-
(a)
(b)
(c)
(d)
(e) Anjani Kumar Vs. State of Bihar & another, [(2008) 5 SCC 248].
It is also submitted that the entire transaction took place with the consent of respondents No. 3 and 4. It was commercial hence a civil transaction. Assets could be transferred from one bank to another bank. On this count, learned counsel for the applicants have placed their reliance on the judgment of the Hon''ble Apex Court in the case of
(a)
(b) Inder Mohan Goswami Vs. State of Uttraranchal, [(2007) 12 SCC 1].
(c) Anjani Kumar''s case (supra).
(d) M.N. Ojha''s case (supra).
Learned counsel for the applicants have submitted that the applicant bank resolved the financial problems of the respondents, but the respondents did not bother for regular payment. When post dated cheques issued by the respondents No. 3 and 4 were dishonoured, then to recover the money it was for the applicant bank to send such dissolution notices. Actually a civil suit is pending before the Debts Recovery Tribunal, and therefore there is no need to the applicants to do any other activity. The entire transaction is a civil transaction. The respondents No. 3 and 4 moved a petition before the Delhi High Court, thereafter before the Bombay High Court and withdrew both the petitions one by one. The respondents No. 3 and 4 moved a civil suit of declaration before the District Court, Bhopal, but it was dismissed at preliminary stage, and therefore the respondents No. 3 and 4 filed an FIR and a criminal complaint before the Chief Judicial Magistrate, Raisen only to create pressure upon the applicants. At present a loan of more than Rs. 60 crores is pending against the respondents No. 3 and 4 and they are not paying the same, therefore the applicants are the victims of cheating done by the respondents No. 3 and 4. Hence, it is prayed that the FIR lodged before the Police Station concerned may be quashed.
5. Learned counsel for the applicants have further submitted that the respondents made all the Directors and so many Managers to be party in the case, whereas entire Directors may not be made party. It is the duty of the Magistrate to scrutinize the matter carefully and to take cognizance against the persons, who were responsible for the alleged crime. If no allegation is made in a complaint about the overt-act of a particular accused, then he could not be made accused in the case. In this context, reliance is placed on the following judgments and orders of the Hon''ble Apex Court and so many cases:-
(a)
(b)
(c)
(d)
(f) Keki Hormusji Gharda Vs. Mehervan Rustom Irani, [(2009) 6 SCC 475].
(h)
Therefore, it is prayed that all the Directors holding the post of Vice President etc. may be absolved from the FIR and secondly the FIR may be quashed against those Directors and Managers of the applicant bank.
6. On the other hand, Shri R.D. Jain, learned Advocate General has submitted that at present an FIR is registered as per the order given by the Chief Judicial Magistrate, Raisen and collection of evidence is not complete, therefore at this pre-mature stage, the FIR may not be quashed. All the defence documents cannot be seen at this stage. In support of his contention, learned Advocate General has placed his reliance on the judgment of the Hon''ble Apex Court in the case of
7. It is also urged that disputed questions cannot be decided at this stage. A criminal proceeding can be prosecuted simultaneously with civil proceeding when some kind of criminal activity is in issue. At present facts are incomplete and hazy. In this regard, reliance is placed in the case of
8. It is also submitted by Shri R.D. Jain, learned Advocate General that vicarious liability will be settled according to the overt-act of various office bearers of the Company. In this context, reliance is placed on the judgment of the Hon''ble Apex Court in the case of
9. In rebuttal, learned senior counsel and other counsel appearing on behalf of the respondents No. 3 and 4 have submitted that initially an agreement took place for negotiation with the various banks for OTS and for providing working capital and it was agreed that 14% interest will be charged. Therefore, it was for the applicant bank to settle the NPA of various banks. Success fees was to be paid to the applicant bank from the side of the borrower-companies, but the applicant bank after getting advantage of NPA, without consent of the borrower-companies entered into assignment deeds with various banks, and therefore since the agreement was for the redressal of heavy burden of interest and loan, but by assignment, applicant bank being an agent of borrower did not look after the interest of the borrowers, on the contrary new contracts were created in the interest of the applicant bank, therefore interest of the borrower companies was forfeited. This was a cheating done by the applicant bank and its office bearers.
10. Learned counsel for the respondents No. 3 and 4 also challenged that various documents filed by the applicant bank cannot be looked into, because they are not proved beyond any doubt. Further agreements took place because of misrepresentation. The respondents No. 3 and 4 desired to get rid of those loans having penal interest and by assignment deeds, the respondents No. 3 and 4 were burdened to pay the interest @ 30%. It is not only a cheating, but criminal breach of trust done by the applicant bank and its office bearers. No consent of the respondents No. 3 and 4 was obtained for execution of the assignment deeds by the applicant bank with BOB and BOI. It is further submitted that the applicant bank took some post dated cheques from the respondents No. 3 and 4, but after lapse of some period, those cheques were not submitted to the bank for their encashment. Thereafter so many cheques were submitted to the bank in a single day so that respondents No. 3 and 4 could not pay the same in a day, and therefore default interest may be raised and harsh type of recovery proceedings could be initiated. Such type of activity done by the office bearers of the applicant bank amounts to cheating.
11. Similarly, attention of this Court was invited to the provisions of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for brevity "Special Act, 2002"). It is submitted that applicant bank worked as securitization company as defined in Section 2(1)(za) of the Special Act, 2002 by which a registration was required to the company u/s 3 of the Special Act, 2002, but no such registration was obtained by the applicant bank, and therefore applicant bank has committed an offence u/s 29 of the Special Act, 2002 and any Judicial Magistrate First Class is competent to take cognizance for that offence as per the provisions of Section 30 of that Act. The respondents No. 3 and 4 had every right to move various proceedings before the various authorities. Initially a petition was moved before the Delhi High Court and thereafter it was taken to the Bombay High Court, but it was withdrawn, because a complaint was sent to the Reserve Bank of India (for short "RBI"), and therefore petitions filed before the Delhi High Court and Bombay High Court were not dismissed on merits. Petition before the RBI is still pending and no order has been passed on that petition. Letters were sent by the applicant bank through its office bearers for dissolution of borrower companies. The respondents No. 3 and 4 tried to resolve the situation, but every time the office bearers of applicant bank directed to present a proposal according to their wishes with the condition that FIR should be withdrawn. But after submission of that offer, no such agreement took place between the parties and office bearers of applicant bank have been directing to raise rate of interest again and again. Rate of interest was raised from 14% to 15%, 24%, 30% and thereafter 33.5%. Under such circumstances, where the respondents No. 3 and 4 were under pressure of office bearers of applicant bank, and therefore when pressure reached to peak, then they could not give a proposal for 33.5% interest, because payment of such interest was impossible. Applicant bank did not give any NOC to take further loan from other financial institutions so that loan amount of the applicant bank could be repaid. In such circumstances, offence done by the applicant bank is very well established.
12. It is also submitted that according to the provisions of Section 291 and 292 of the Companies Act, any company is to be run by the Board of Directors and when the huge money is to be taken and to be recovered from any borrower, then it is for all the Directors to participate in the meeting of Board of Directors to take their decisions. Similarly, decision was to be taken by the Board of Directors of applicant bank for purchase of various debts from BOI and BOB, therefore it is for the Directors to prove that they were not involved in the transaction and no offence has been done by them. If any internal fabrication was there in applicant bank, then it should be shown by the concerned Directors or Managers. Since investigation is pending before the police, then police may delete name of such Directors or Managers, who are not involved in the crime, and therefore name of various applicants cannot be removed from the FIR at this stage as requested by the applicants.
13. It is further submitted that it was not a case of counter blasts, but offence was committed by the applicant bank and its office bearers. At present detailed scrutiny of documents presented by the parties before the Court is not at all required. No appreciation of evidence is required; no final conclusion is required to be drawn. At present it is to be seen that whether any crime is constituted against the applicants by the allegations made by the respondents No. 3 and 4 in their complaint. In this context, learned senior advocates for the respondents No. 3 and 4 have placed their reliance on the following judgments and orders of the Hon''ble Apex Court :-
(a)
(b)
(c) CBI Vs. Ravishankar Shrivastava, [AIR 2006 SC 2872(1)].
(d)
(e)
(f)
(g)
(h)
It is also submitted that in a cognizable offence, power of investigation given to the police is an absolute power and no interference can be made in such investigation. Learned senior advocates for respondents No. 3 and 4 have placed their reliance in this context on the following judgments and orders of the Hon''ble Apex Court:-
(a)
(b)
Under these circumstances, it is prayed that the applications filed u/s 482 of Cr.P.C. by the applicants may be dismissed.
14. In the light of dictums laid by Hon''ble Apex Court in aforesaid judgments and orders, after considering the submissions made by learned counsel for the parties, following points are to be considered in the present case. Firstly, what are the documents that can be considered at this stage? Secondly, whether there is any ambiguity in registration of FIR? Thirdly, whether the complaint filed by the respondents No. 3 and 4 is a counter blast or it indicates any crime committed by the applicant bank? Fourthly, that whether all the directors and managers of the applicant bank could not be made party in the case? And Lastly, as to whether the FIR may be quashed against the applicant bank or its directors and managers?
15. It is a general rule that if it is to be considered that any crime is committed then the prosecution evidence is the preliminary evidence which can be looked into. However, in exceptional cases, if defence evidence is so cognate as to indicate that if documents adduced by the defence are considered then, there should be a clear picture that no case is made out from the FIR. Under such circumstances, it would be necessary that the documents produced by the defence should be unimpeachable, acceptable and reliable. In support of this view, the ratio laid by Hon''ble the Apex Court in case of "M/s Jayant Vitamins Ltd. (supra) may be perused. Learned counsel for the respondents No. 3 and 4 has also invited the attention of this Court to the judgment of Hon''ble the Apex Court in the case of
16. In the present case, the respondents No. 3 and 4 sent an FIR to SHO, Police Station Umraoganj, District Raisen on 7.4.2010 but, no case was registered by the police. The police treated that FIR to be a complaint to the police and therefore, some enquiry was initiated. However, a complaint was filed by the respondents No. 3 and 4 before Chief Judicial Magistrate, Raisen on 5.10.2010 and on the same very day, learned Chief Judicial Magistrate sent it to SHO, Police Station Umraoganj to submit an enquiry report. If order dated 5.10.2010 passed by learned CJM, Raisen is perused then, it would be clear that learned CJM did not take any cognizance in the case u/s 200 or 204 of Cr.P.C. but, copy of the complaint was sent to the police for enquiry. Thereafter, learned CJM fixed various dates for receiving the report. Vide order dated 1.3.2011, learned CJM directed that investigation be made u/s 156 (3) of Cr.P.C. and a report be submitted after due investigation according to the provisions of chapter XII of the Cr.P.C. including a report u/s 173 of Cr.P.C. Shri Mathur learned Senior Advocate for the applicant bank has accepted that the first order dated 5.10.2010 was the order passed u/s 156 (3) of Cr.P.C. It appears that police could not understand the directions given by the learned CJM vide order dated 5.10.2010 and therefore, order dated 1.3.2011 passed by the CJM cannot be accepted to be a fresh order u/s 156 (3) of Cr.P.C. but, it was a clarification to the original order and therefore, FIR registered by the police in compliance to the order of the Chief Judicial Magistrate, Raisen was correct. No ambiguity is visible in registration of the FIR.
17. In the present case, FIR is registered on the basis of the complaint submitted before the CJM, Raisen and therefore, it should be seen that by pleadings of that complaint, whether any offence is made out against the applicants. Learned counsel for the applicants have read various paras of the complaint to show that by entire pleadings of the complaint, though allegations are made but no specific incident is pleaded to show that alleged offences are made out. Hence, no offence is made out from the complaint filed by the complainants. Learned counsel for the respondents No. 3 and 4 has submitted that initially when an FIR was lodged by the respondents No. 3 and 4 before concerned Police Station then, some documents were annexed with the FIR. Similarly, some documents were annexed with the complaint also and such documents were the part and parcel of the FIR and the complaint respectively. Therefore, the FIR which was registered on the basis of the complaint may indicate allegations in the pleadings of the complaint but, the document attached to the complaint were the part of that complaint and therefore, documents were the part of the FIR, therefore inference should be drawn from the complaint/FIR inclusive of the documents annexed with it. Contention of learned Senior Advocate for the respondents No. 3 and 4 is acceptable because if some documents were referred in the FIR and annexed with the FIR then, certainly pleadings shall be read with reference to documents and therefore, for consideration of that FIR, such documents are required to be considered with it.
18. Learned counsel for the respondents No. 3 and 4 have alleged about the crime committed by the applicant bank and remaining applicants in three different parts. Firstly, that being an agent of respondents No. 3 and 4, the applicant bank was required to get OTS negotiations with BOB and BOI to provide the advantage of NPA to the borrower-companies and it was agreed that if applicant bank provides working capital borrower-companies, then for such amount rate of interest would be 14% and thereby it was understood that after completion of the OTS negotiations the applicant bank shall get success fees whereas borrower-companies shall get rid of those debts (NPA) by the payment of settled OTS amount and a fresh transaction of payment of loan will begin with the applicant bank with 14% rate of interest. But after executing such negotiations, the applicant bank purchased various debts from BOI and BOB in favour of the applicant bank and counted penal interest on the amount which was agreed in OTS. That amounts to be a cheating. Secondly, that purchase of assets relating to the respondents No. 3 and 4 from various banks was an act of securitization and therefore, such type of act could not be done unless concerned bank or company is registered with the RBI being a securitization company u/s 3 of the Special Act, 2002 and therefore, by flouting the provisions of that act, the applicant bank has committed an offence u/s 29 of that Act. Thirdly, the applicant bank took so many post dated cheques for periodical installments from the respondents No. 3 and 4 and for few months, no cheque was produced to the bank for its encashment and thereafter, bundle of cheques were produced on a single date for encashment. Such type of act done by the office bearers of applicant bank also amounts to be a cheating and therefore, prima facie by pleadings of the respondents No. 3 and 4 various offences alleged against the applicant bank are made out.
19. As far as the first allegation is concerned, it would be clear from the document submitted by the applicants that initially a term-sheet of agreement was recorded. In that term-sheet applicant bank was entitled to get success fee, which was dependent upon the success of the negotiations. Thereafter, the applicant bank entered into an assignment agreement with BOB on 9.3.2007 and also with BOI. Thereafter, the agreements with borrower-companies were again modified. Such documents are submitted by the applicants in the case. Learned Senior Advocate for the applicant bank has submitted that after getting assignment deeds from various banks, the applicant bank purchased the previous debts of the respondents No. 3 and 4 and therefore, for repayment of such debts a fresh agreement in term-sheet was directed and in continuation with that term-sheet agreement when respondents No. 3 and 4 stopped depositing the amount then, notices for recall of financial facilities granted to the respondents No. 3 and 4 were given on 4.5.2009. Thereafter winding up notices were given on 27.10.2009. Each agreement was done by the respondents No. 3 and 4 with their free will and therefore, they could not challenge the subsequent term-sheet agreements now. The applicant bank has also filed a civil suit for recovery of amount before Debt Recovery Tribunal.
20. It is also urged that the respondents No. 3 and 4 went to various forums against those transactions but, basically it is a transaction of civil nature and therefore, FIR and complaint were the counter blast to the notice for recall of financial facilities given by the applicant bank.
21. Learned Senior Advocate for the respondents No. 3 and 4 has invited the attention of this Court to the judgment passed by Hon''ble the Apex Court in the case of
22. In this connection, at present the entire evidence laid by the applicant bank cannot be used as final evidence. In the light of ratio laid by Hon''ble the Apex Court in various cases of
"15(1). The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirely, disclosed no cognizable offence."
23. It would be clear from the allegations that initially the applicant bank proposed to the borrower-companies about the scheme by which they could get rid of those NPA and the applicant bank had proposed to charge succession fee for negotiations with various banks relating to OTS. Therefore, position of the applicant bank was of an agent of the borrower-companies and thereafter, the negotiations took place. If the applicant bank was an agent of respondents No. 3 and 4 therefore, it was for the agent to protect the rights of the respondent-companies. OTS took place with BOB and BOI to close their loan accounts. Such negotiations took place and settlement was done and therefore, BOB and BOI had not exercised their rights to auction the assets and by securitization of the borrower-companies. If payment after one time settlement was to be made, then the intention of the parties at the time of first agreement was that OTS may take place and the amount of OTS might be paid by the new loan transaction between the applicant bank and the borrower-companies in which 14% interest was to be paid. It is argued by learned Senior Advocates for the applicant bank that one financial bank could purchase the assets of the other company and such type of transaction was no where barred. Under such circumstance, for such transaction consent of the borrower-companies was not required. He relied upon the judgment of Hon''ble the Apex Court in the case of "ICICI bank Vs. Official liquidation" (supra), in which it is held that such type of assignment of debts will not be contrary to the public policy and such type of assignment is a routine phenomenon between two banks.
24. It is well established that a claim to a simple debt is assignable even if the debtor has refused to pay. The practice of assignment or ''selling'' of debts to debt collecting agencies and credit factors could hardly be carried out if the law was otherwise but, factual position in the present case is different. Sale of the debt was not initiated by either BOI or BOB. There was a specific agreement between the applicant bank and borrower-companies that negotiations relating to OTS will be done by the applicant bank being an agent of borrower companies and therefore, after settlement of OTS amount, which was payable to BOI and BOB was to be paid by the borrower-companies or applicant bank on behalf of the borrower-companies and the loan account which was NPA in eye of BOB and BOI was to be closed and a sum which was paid by the applicant bank on behalf of borrowers could start a new transaction between the applicant bank and respondents No. 3 and 4 and therefore, the respondents No. 3 and 4 were liable to pay the simple interest of 14% on the amount, which was settled in negotiations in OTS but, the applicant bank did not start the new transaction with the borrower-companies. Being an agent of borrower-companies, the applicant bank did not secure the interest of the borrowers but, on the contrary the applicant bank itself entered in separate agreements of the assignment with other banks and therefore, it is mentioned in the para 5.4 of the plaint filed before the DRT by the applicant bank that it was standing in the shoes of BOI and BOB, whereas it was in the interest of borrower-companies to close those accounts, after negotiations of OTS, by payment of remaining amount by one time payment and thereafter new transaction could start. Under such circumstances, by not securing the interest of the borrowers where succession fees was charged by the applicant bank which was relating to the negotiations of OTS and got the entire debts transferred in the applicant bank. Prima facie it cannot be said that conduct of the applicant bank was bonafide. It may amount to cheating. At this stage, if averments of the entire complaint with its documents, relating to the first allegation are perused, then it cannot be said that no offence is made out against the applicant bank.
25. Learned counsel for the respondents No. 3 & 4 has submitted that the applicant bank has claimed to be a secure creditor as the applicant bank has stepped in the shoes of BOB and BOI. It was quoted in para 5.4 of plaint filed by the applicant bank before the Debt Recovery Tribunal but the assets of a bank relating to the borrower-companies could be purchased within the limits of the provision enumerated in the Special Act. 2002. In Section 2(1)(z) of the Special Act, the definition of word "securitization" is given and in subsection (za) the definition of "securitization company" is given. Looking to the those definitions, it would be clear that the financial assets are to be purchased from one financial company by another one then it is a process of securitization and, therefore, purchase of assets from BOI & BOB amounts to be a process of securitization but according to the Section 3 of the Special Act 2002, for such activities the concerned company should be a registered company with RBI and if it is not registered then it is a violation of the provisions of Section 3 of the Special Act, 2002 punishable u/s 29 of that Act. Under such circumstances, the purchase of the assets of borrower from BOI & BOB by the applicant bank is an offence u/s 29 of the Special Act 2002.
26. Learned senior counsel for the applicant bank has submitted that such crime was not mentioned in the FIR, which was lodged by way of the complaint and, therefore, it cannot be considered at present. However, such type of arguments cannot be accepted at this stage because at present, it is prayed by the applicant bank that FIR may be quashed because no offence is made out. For example, if a case is registered against the accused for the offence committed u/s 302 of IPC that he killed his own wife and FIR is registered but it was found afterwards that murder was caused because of non-fulfillment of dowry demand etc and, therefore, the offence u/s 304-B of IPC is also made out then FIR cannot be quashed only for offence punishable u/s 302 of IPC. In such a case, where the offence was not visible only by the FIR, but such offence is found constituted from the perusal of the documents annexed with the FIR, though no specific pleading has been made then still the Court can see that prima facie whether such offence is made out or not, specially when quashing of an FIR is under consideration. On bare perusal of the documents annexed with the FIR, it cannot be said that no offence u/s 29 of the Special Act, 2002 is made out against the applicant bank.
27. The third allegation lodged by learned counsel for the respondents No. 3 & 4 is that post dated cheques were given to the applicant bank for payment of installments and installments were periodical, therefore, it is expected from the borrower to keep the amount of installments available in his bank account in the period of installments. It is not expected from him that he will keep 4-5 times of amount in his account. Under such circumstances, if the applicant bank did not submit the post dated cheques in the period of installments then the respondents No. 3 & 4 could not know that some post dated cheques were detained by the applicant bank and when a bundle of cheques was submitted in one day for their encashment, then the borrower is not expected to have the huge amount in his account, which was 5-10 times larger than his installments. If such type of activity has been done by the lender then certainly it was done to create a situation, where the borrower becomes a defaulter and thereby his assets can be auctioned. Looking to such type of activities, it cannot be said that the applicant bank has not done any cheating.
28. If allegations are considered as such then, it would be clear that post dated cheques were available with the applicant bank then there was no problem to the applicant bank to submit such cheques within the particular interval of the installments. The applicant bank has alleged in the notice of recall that the respondents No. 3 & 4 did not pay the installments in time where the cheques were not produced in the bank after appropriate interval of installments, then it cannot be said that the borrower did not pay the installments in time and, if multiple cheques are deposited in the bank in one day for their payment then it is not expected from the borrowers to maintain the huge fund in their account for payment of such multiple cheques. These overt-acts could be done to show the borrower to be the defaulter whereas such type of discretion is not available to the lender, then prima facie it cannot be said that by such activities, no crime of cheating was done by the applicant bank with the borrowers.
29. Under such circumstances, where by perusal of the complaint, it cannot be said that by considering the FIR, no offence is constituted against the applicant bank. In this context the observations made by the Hon''ble Apex Court in case of
"It is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents, which are beyond suspicion or doubt placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial Court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage."
But no such factual position is visible in the present case. I have gone through the citations referred by the learned senior Advocate for the applicants, however the present case is distinguishable on the facts, therefore the law laid down, in the aforementioned cases cannot be applied to the facts of the present case.
30. On the contrary, the ratio laid down in case of R. Kalyani (supra) as mentioned in para 23 of this order is applied in the present case then certainly FIR, which was lodged at Police Station, Umraoganj against the applicant bank cannot be quashed.
31. As far as the vicarious liability of various office bearers of applicant bank is concerned, it is for the complainant to plead and establish the liability of various persons, who are the Directors and Managers of the applicant bank. But learned counsel for the respondents No. 3 & 4 has invited attention of this Court to the provisions of Sections 291 & 292 of the Company Act that against the wishes of the borrower companies, their assets were purchased from two different banks, then certainly for such a decision, a meeting of all members of the Board of Directors was required and, therefore, by their decisions, such type of assignment could take place. Under such circumstances, if any Director feels that he was not involved in the crime then he can prove his innocence before the concerned police because the matter is under investigation. Similarly, it is argued against various Managers that they participated in the crime. The respondents No. 3 & 4 received some letters and documents from the applicant bank sent by some of the Directors and Managers, also various agreements took place between the applicant bank and the borrower-companies and some of the Directors and Managers executed those agreements. Their names are known to the complainants but, the complainants were not aware that out of all the Directors and Managers, who did not participate in the transaction. Under such circumstances, where so many acts have been done for the applicant bank ex-partly against the respondents No. 3 & 4, then respondents are not in a position to know the role of each of the Managers in the transaction individually. In case of such activities, the provisions of Section 120-B of IPC may also be applied and, therefore, role of the accused persons will be ascertained during the investigation.
32. Learned senior counsel for the applicant bank has submitted that according to the ratio laid down in various judgments and orders of the Hon''ble Apex Court as cited by him, the overt acts of each and every accused persons is to be pleaded and ascertained. Such type of addition of the names of various Directors and Managers cannot be done in the FIR without any pleadings against them.
33. Looking to the complexity of the case, where prima facie, it is alleged in the FIR that the offence of cheating has been done by the applicant bank and the investigation is pending, and at present no sufficient documents are produced by the various applicant bank to show that they were not involved in these transactions. Under such circumstances, it is premature to say anything about the conduct of the Directors and Managers, who are made party in the case. All the case laws cited by learned counsel for the applicants are binding to this Court but looking to the factual difference, they cannot be applied at present.
34. At present, this Court does not find any basis by which the FIR of cheating may be quashed against any of the applicants including applicant bank because their overt acts are yet to be ascertained during the investigation. On the basis of aforesaid discussion, I am of the view that the applicants could not show that the FIR lodged against them does not constitute any offence against them and, therefore, the inherent powers u/s 482 of Cr.P.C. cannot be invoked at this preliminary stage. Under such circumstances, the FIR lodged by the respondents No. 3 & 4 with the help of order of learned Chief Judicial Magistrate u/s 156(3) of Cr.P.C. cannot be quashed at this stage. Under such circumstances, the applications u/s 482 of Cr.P.C. filed by the various applicants and the applicant bank cannot be accepted. Consequently, all the three applications are hereby dismissed.
