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CRM-M-13299-2017
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CRM-M-32288-2016 [OM]
Date of Decision:- August 10, 2017
N.D. Prashar ….Petitioner
Versus
State of Haryana and another ….Respondents
2 CRM-M-13299-2017
Mehar Chand Prashar and another ….Petitioners
Versus
State of Haryana and others ….Respondents
CORAM: HON’BLE MR. JUSTICE SHEKHER DHAWAN
Present: Mr. P.S.Ahluwalia, Advocate,
for the petitioner in CRM-M-32288-2016.
Mr. Mohan Sharma, Advocate,
for the petitioners in CRM-M-13299-2017
Mr. Munish Dev Sharma, AAG, Haryana
Mr. Rahul Dev Singh, Advocate for
Mr. Rakesh Gupta, Advocate,
for respondent No.2.
SHEKHER DHAWAN, J.
The above mentioned two petitions under Section 482 of
Code of Criminal Procedure [Cr.P.C.] are for quashing of FIR No. 257
dated 31.12.2015(Annexure P/1) registered under Sections 406, 420 and
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120-B IPC at Police Station, Sector 14, Panchkula and all consequential
proceedings arising therefrom. Therefore, both the petitions are being
disposed of by this common order. For facility of reference, facts are
being taken from CRM-M-32288-2016.
2. Facts relevant for the purpose of decision of these cases; that
Canara Bank submitted a complaint that M/s Globe Enterprises had taken
a loan and in lieu thereof had hypothecated the entire stock with the bank
and the said hypothecated stock was disposed of in clandestine manner
with a view to cause loss to the bank. In fact, the present FIR relates to a
dispute out of loan account whereby M/s Globe Enterprises had
approached the complainant bank for grant of financial assistance and
limit of Rs.2.00 Crores was sanctioned and the same was utilized by M/s
Globe Enterprises. Besides mortgaging their immovable property, stocks
of the firm were also hypothecated as a security for repayment of loan
amount. At the time of visit of bank officials to the premises of M/s Globe
Enterprises, it was discovered that the entire stocks which were
hypothecated with the bank, had been removed and the factory premises
were lying vacant and that was done by the accused persons to defeat the
securities of the bank. Plant and machinery, which was installed at the
factory site, was also found missing.
3. Petitioners have sought quashing the the FIR on the grounds
viz:-
i). that the investigating agency had not taken into
consideration the fact that petitioner N.D.Prashar had
retired from the firm in September, 2014 vide retirement
deed, Annexure P/2. In fact, the present petitioner is co-
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victim with the complainant bank as N.D.Prashar had
been cheated and defrauded by his own brother and
family members. He himself has filed a complaint
(Annexure P/3) for cheating, theft and embezzlement
against his brother on 18.8.2015;
ii). That nothing survives in the case as the brother of the
petitioner, through his family members has repaid the
entire loan amount qua M/s Globe Enterprises which had
led to the registration of the FIR in the present case and
the said fact is also reflected from the order (Annexure
P/4) passed by learned Sessions Judge, Panchkula.
Iii). That on the basis of entire facts, no offence punishable
under Section 406 IPC is made out against the
petitioners.
4. In the reply filed by the State, contention was raised that the
FIR No. 257 dated 31.12.2015 (Annexure P/1) under Sections 406, 420
and 120-B IPC was registered against the present petitioners and co-
accused Deepak Prashar. Final report under Section 173 Cr.P.C. was
submitted on 29.11.2016. As per bank records, loan amount was paid
and bank account of M/s Globe Enterprises was closed. However, while
replying on merits, the State took the plea that there are serious
allegations against the petitioners and they are not entitled to invoke the
inherent jurisdiction of this Court under Section 482 Cr.P.C. as the
petitioners have violated the conditions of loan agreement and after
securing the loan from the bank, they removed the entire stock from the
premises of the factory to defeat the security of the bank. N.D. Prashar,
petitioner never informed the bank with regard to his retirement from M/s
Globe Enterprises. However, repayment of loan amount by the family
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members of the petitioner cannot absolve them from their criminal liability
as the petitioners disposed of the property hypothecated with the bank
and prayed that the present petition be dismissed.
5. At the time of arguments, learned counsel for the petitioners
submitted that the allegations against the petitioners are regarding
misappropriation of hypothecated goods. However, as per judgment of
Hon`ble Supreme Court in M/s Indian Oil Corporation Vs. M/s NEPC
India Ltd. and others, 2006(3) R.C.R. (Criminal) 740, such an act does
not amount to misappropriation or cheating and no offence can be said to
have been committed by the petitioners under Sections 406 and 420 IPC.
6. Learned counsel for the petitioners further contended that in the
present case also, if at all the allegations of the complainant are taken to
be correct, the ownership and possession of the hypothecated property
was never transferred to the bank and as such, it was not a case of
misappropriation or cheating at any stage. On the basis of these facts, the
liability, if any, towards the bank is a civil liability and not a criminal liability.
More so, if at all, the entire version of FIR is taken into consideration, no
offence under Section 420 IPC is made out as there are no allegations of
the complainant – bank that intention of the present petitioners was
dishonest to cheat the bank at the outset. On this point, reliance was
placed upon judgment of this Court in Pardeep Kumar Vs. State of
Haryana, 1996(2) R.C.R. (Criminal) 791.
7. While arguing on these points, learned State counsel as well as
learned counsel for complainant-bank (respondent No.2) submitted that
such like cases of misappropriation of hypothecated property involving
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dishonest intention on the part of loanee, result into economic offence and
there are no grounds for quashing of criminal proceedings. On this point,
reliance was placed on the judgment of Hon`ble Supreme Court in State,
Rep. by Inspector of Police Central Crime Branch Vs. R. Vasanthi
Stanley and Anr., 2015 AIR (SCW) 5375 and Central Bureau of
Investigation Vs. Maninder Singh, 2015 (4) R.C.R. (Criminal) 190.
8. Learned counsel for the respondents also submitted that
petitioner – N.D. Prashar had given in writing to the Superintendent of
Police, SAS Nagar, Mohali that they had constituted two separate firms
and the entire business was being looked after, controlled and managed
by him and M.C.Prashar and his wife Sunita Rani and in fact, the loan
amount raised from the bank account was siphoned to different accounts
and cheating was done by the petitioners and now they cannot take the
plea that no offence has been committed. They further submitted that the
matter is otherwise pending before the Court below for arguments on
charge and these please can at the best be taken by the petitioners before
the trial Court, but it does not make out a case for quashing of FIR.
9. Having considered the submissions made by learned counsel
for the parties and appraisal of record and facts of this case, this Court is
of the considered view that undisputedly, loan facility was sanctioned in
favour of M/s Globe Enterprises and that facility was actually availed by
the petitioners. The properties of M/s Globe Enterprises were
hypothecated with the bank as security and that way, the same was
entrusted-property with the bank. At the time of visit by the officials of the
bank to the factory premises of M/s Globe Enterprises, it was found that
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the entire hypothecated stock was missing and even plant and machinery
was missing and on that basis, present FIR was registered.
10. Now, question comes for consideration is whether disposal of
hypothecated property by the loanee would be a case of misappropriation
and cheating and whether that can be made the basis for registration of
FIR and continuation of criminal proceedings?
11. Learned counsel for the petitioners had placed reliance upon
the judgment in M/s Indian Oil Corporation’s case (supra). However,
the facts of the present case are entirely distinguishable from the facts of
the cited case. In that case, M/s Indian Oil Corporation had taken re-
course to civil remedies and filed two civil suits for recovery of the amount
and also initiated proceedings for winding up of M/s NEPC India Limited
and the Court observed that those facts established that civil remedies
were available in law and IOC had taken recourse to such remedies.
Moreso, Hon`ble Apex Court observed that the defence, that may be
available or facts/aspects when established during the trial, may lead to
acquittal are not grounds for quashing the complaint at the threshold and
that at this stage, the Court was only concerned with the question whether
the averments in the complaint spell out the ingredients of a criminal
offence or not. The facts of the case are also distinguishable from the
facts of M/s Indian Oil Corporation’s case (supra), as in that case,
aircrafts were continued to be stationed at Chennai and Coimbatore
Airports; that the two engines of VT-NEK through removed from the
aircraft were still lying at Madras Airport; the two DART 552 TR engines of
VT-NEJ were dismantled for the purpose of overhauling/repairing; they
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were fitted to another Aircraft (VT-NEH). The facts of the present case do
not indicate any such circumstance.
12. As regard to the view taken by this Court in Pardeep Kumar’s
case (supra), again the facts of the case in hand are quite at variance
from the facts of cited case because in Pardeep Kumar’s case (supra),
the loanee had taken a loan of Rs.25000/- from Punjab National Bank in
March, 1984 and the loan amount was repaid with interest at the agreed
rate in 72 installments. The loanee had been paying the installments upto
17.9.1994 and thereafter, he had not paid the balance amount. On the
basis of FIR, only allegations were that he had violated the terms of
agreement entered into between him and the bank and that was the
reason and basis for quashing of FIR in that case.
13. However, similar matter regarding quashing of FIR involving
economic offence was before Hon`ble Supreme Court in R. Vasanthi
Stanley’s case (supra) and it was observed by the Apex Court that
offence that has the potentiality to create a dent in the financial health of
the institutions is not to be quashed on the ground that there is delay in
trial or the principle that when the matter has been settled it should be
quashed to avoid the loan on the system.
14. Similar view was taken by the Apex Court in Janta Dal Vs.
H.S.Chowdhary, (1992) 4 SCC 305, wherein it was observed as under:-
“.. the inherent power Under Section 482 Code of Criminal
Procedure though unrestricted and undefined should not be
capriciously or arbitrarily exercised, but should be exercised in
appropriate cases, ex debito justitiae to do real and substantial
justice for the administration of which alone the courts exist.”
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15. Hon`ble Apex Court in Maninder Singh’s case (supra)
while dealing with such like cases involving dishonest intention on the part
of the loanee after availing loan from the bank or settling the loan amount
by making the repayment, observed as under :-
(i). Development in means of communication, science
technology etc. have led to an enormous increase in
economic crimes viz. phishing, ATM frauds etc. which are
being committed by intelligent but devious individuals
involving huge sums of public or government money. These
are actually public wrongs or crimes committed against
society and the gravity and magnitude attached to these
offences is concentrated at public at large.
(ii). In economic offences, court must not only keep in view that
money has been paid to the bank which has been defrauded
but also the society at large.
(iii). On the ground that the accused has settled the amount with
the bank would be a misplaced sympathy.
(iv). If the prosecution against the economic offenders are not
allowed to continue, the entire community is aggrieved.”
16. In this case, the allegations against the petitioners are of
‘forgery’, ‘breach of trust’, ‘cheating’ and ’embezzlement of public money’.
After facing such serious charge of forgery, the petitioners want the
proceedings to be quashed on account of some settlement with the bank.
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The development in means of communication, science and technology
etc. have led to an enormous increase in economic crimes viz phishing,
ATM frauds etc. which are being committed by intelligent but devious
individuals involving huge sums of public or Government money. These
are actually public wrongs or crimes committed against society and the
gravity and magnitude attached to these offences is concentrated at public
at large.
17. Hon’ble Supreme Court, while dealing with such like matters
for quashing of FIR and criminal proceedings in exercise of inherent
power under Section 482 Cr. P.C., in Maninder Singh’s case (supra) ,
concluded as under:-
“11. The inherent power of the High Court Under Section 482
Code of Criminal Procedure should be sparingly used. Only
when the Court comes to the conclusion that there would be
manifest injustice or there would be abuse of the process of
the Court if such power is not exercised, Court would quash
the proceedings. In economic offences Court must not only
keep in view that money has been paid to the bank which has
been defrauded but also the society at large. It is not a case
of simple assault or a theft of a trivial amount; but the offence
with which we are concerned is a well planned and was
committed with a deliberate design with an eye of personal
profit regardless of consequence to the society at large. To
quash the proceeding merely on the ground that the accused
has settled the amount with the bank would be a misplaced
sympathy. If the prosecution against the economic offenders
are not allowed to continue, the entire community is
aggrieved.”
18. It is well established principle of law that inherent power
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conferred on this Court under Section 482 Cr.P.C. has to be exercised
sparingly with circumspection and in rare cases and that too to correct
patent illegalities of when some miscarriage of justice is done. The most
common case where inherent jurisdiction is generally exercised is where
criminal proceedings are initiated illegally, vexatiously or without
jurisdiction and where the allegations made in the complaint, even if they
are taken at their face value and accepted in their entirety, do not prima
facie constitute the alleged offence and make out a case against the
petitioner. Such a view was taken by Hon`ble Apex Court in Union of
India Vs. Bajanlal, AIR 1992 SC 604. However, in the present case, if
the contents of the FIR and the material available on the file and relevant
provisions of law, referred to by learned counsel for the parties, are taken
into consideration in the light of the above observations, it is not a case
where prima facie case is made out or there is sufficient material available
on the file to quash the present FIR.
19. Resultantly, the present petitions seeking quashing of the FIR
and consequential proceedings arising therefrom, lack merit and stand
dismissed.
20. Any observations made hereinabove shall not be construed
as an expression of opinion on the merits of the case and shall have no
bearing on trial.
August 10, 2017 ( SHEKHER DHAWAN )
som JUDGE
Speaking/Reasoned Yes
Reportable Yes
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