Yashwant Sonkar v. State of Chhattisgarh

: Mr. Malay Jain, Panel Lawyer. Hon’ble Mr. Ramesh Sinha, Chief Justice Hon’ble Mr. Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 24/02/2025

#1. Heard Mr. Sangeet Kumar Kushwaha, learned counsel for the petitioner as well as Mr. Malay Jain, learned Panel Lawyer for the State/respondent.

#2. By this petition under Section 482 of the Criminal Procedure Code, 1973, the petitioner seeks quashing of the FIR bearing Crime No. 0126/2019 2 dated 14.03.2019 registered at Police Station, Dhamtari, District Dhamtari for the offences under Sections 34, 420 of the IPC and Section 10 of the Chhattisgarh Protection of Depositors Interest Act, 2005 and the charge sheet filed in respect of the same alongwith other consequential criminal proceedings.

#3. The prosecution case, in brief, is that a report was lodged on 14.03.2019 by the complainant namely Mordhwaj Kumbhkar at Police Station, City Kotwali, Dhamtari that the Directors and Branch Manager and Cashier of Mahanadi Advisory Services Private Limited Company allured him and got invested Rs. 1,47,41,897/- him and many other people with a false promise to get benefit by different scheme. By this false allurement huge amount was got deposited by the Company and when the maturity period of investment was over, the ofÏce of the Company was found closed and Director and employees of the Company fled away. As such, the petitioner and other accused have committed the offence as mentioned above. The online FIR discloses the period of offence is in between

19.07.2010 to 16.05.2016. No explanation of delay was mentioned in the online FIR published and 5 persons namely the petitioner-Yashwant Sonkar, Kuleshwar Sonkar, Mayank Sonkar, Chitrasen Sahu and Hemant Dewangan were named in the FIR. Crime No. 126/2019 was registered against the petitioner and other co-accused persons for the offence under Sections Sections 34, 420 of the IPC and Section 6, 10 of the Chhattisgarh Protection of Depositors Interest Act, 2005 and Section 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. After investigation charge sheet has been filed before the trial Court concerned.

#4. Mr. Sangeet Kumar Kushwaha, learned counsel for the petitioner submits that the petitioner was appointed as a Assistant Manager in the 3 Mahanadi Advisory Company on 05.03.2012 and was paid salary of Rs. 20,000/- per month and his income tax etc was paid on behalf of Company in lieu of his work and as directed by the Director of the Company. He could not take any policy making decision in the Company and he did not play any role in collection of invested money for various schemes of the Company. Even he did not deposit any amount in his account separately. The complainant Mordhwaj Khumbhkar had not produced a single receipt of money deposited nor any certificate of maturity but despite that the FIR was lodged immediately. The reason for delay in lodging the FIR has not been explained. The petitioner was never been the Director of the Company which is confirmed by the Registrar of Companies Bangalore, who has given the certified list of Directors of Mahanadi Advisory Company as per demand made by the investigating ofÏcer during the investigating of the case which list is part of charge sheet filed by the police. The present Directors of Mahanadi Advisory Company was working from September 2017 as per list of Directors which is the part of charge sheet one of them, Mr. Mallikarjuna Director Mahanadi Advisory company who is presently continuing, through his Advocate sent a legal notice dated 20.02.2019 to the complainant of the case Mordhwaj Kumbhakar and three others were sent notice for doing activities against theinterest of the Company which proves that Mordhwaj Kumbhakar was embezzling the money of investors. Mordhwaj Kumbhkar was appointed on an important post of Consultant on

03.01.2013 in the Company. The complainant Mordhwaj Kumbhakar maliciously concealed his complaint of being a consultant, member of Board of Management and shareholder of the Company and received profit bonus in the amount from Company till February, 2019. It is humbly submitted that as per the altered FIR the complainant waited for the 4 maturity of his amount till 2019 and on refusal to make payment of the same, a written report was lodged in the month of March 2019. It goes to show that the alleged commission of crime took place in the year 2019, though it has been stated that since 2010 to 2016 crime was committed however the complainant has simply said he was waiting for the maturity of the amount hence it is evident from the record that the alleged crime was committed or cause of action arose only in the year 2019. It is lastly submitted that the State of Chhattisgarh in exercise of power under Section 17 of the Act of 2005, has framed rules to carry out the provisions of the Act of 2005. The rules are called the Chhattisgarh Protection of Depositor Interest Rules 2015 (for short, the Rules of 2015). Rule 5 of the Rules of 2015 provides a mechanism for redressal of complaints made under the Act of 2005, and the District Magistrate/Collector has been appointed as competent authority to deal with any complaint with regard to fraud committed by any financial establishment. This provision has been enacted to protect the interest of the depositors as well as the financial establishment. In the case in hand the police authorities or the complainant did not make any complaint to the competent authority. The police has not forwarded the written complaint to competent authority to find out the veracity or genuineness of the written complaint. The provisions contained in Rule 5 of the Rules of 2015 is mandatory in nature. Therefore the alleged offence under Section 10 of the Act of 2005 has become redundant. No cognizance can be taken against the petitioner under Section 10 of the Act of 2005. Hence, this petition deserves to be allowed.

#5. On the other hand, Mr. Malay Jain, learned Panel Lawyer appearing for the State/respondent submits that from perusal of the FIR, it indicates that there are prima-facie allegations against the present petitioner also. 5 The FIR could be quashed only where upon reading the contents of FIR no prima-facie case is made out, which is not the case herein. After due investigation charge sheet has been filed. The petitioner has not been able to show that no offence is made out against him in the charge sheet. As per the contents of the FIR the allegation against the petitioner is that the during the period 2010 to 2016 the petitioner and other co-accused persons have taken deposits from the complainant and other persons by alluring them that their money will be doubled in short time, thereby, huge amount of Rs. 1,46,41,897/- have been illegally collected by the petitioner and other co-accused persons. Upon investigation the investigation agency has collected documentary and other evidences in relation to the crime in question and recorded statement of the complainant and other persons, which prima facie proves the charges against the petitioner. It is submitted that the inherent power of the Hon'ble Court under Section 482 of the Cr.P.C. should be very sparingly and cautiously used only when the court comes to the conclusion that there would manifest injustice or there would abuse of process of the court, if such power is not exercised so far as the inherent power can be exercised when the allegation under the FIR or the complaint together with other material collected during the investigation taken at their face value did not constitute an offence, thus, at this stage, it is not open for the court either to shift the evidence or to appreciate the evidence and come to the conclusion that, no prima facie case is made out. The Hon'ble Supreme Court in catena of the decision held that. whenever the police authority receive any report regarding cognizable offence, then, they have to register a case upon basis of report if, the charges levelled against the accused to be cognizable and according to the settled procedure the State/respondent, i.e. concerned Police Station was left 6 with no option, but to register a cognizable offence against the petitioner and other co-accused persons, which is just and proper. Apart from that, it has also been held by the Hon'ble Apex Court that, an FIR cannot be quashed sparingly until and unless, it is without jurisdiction, so, the instant petition is liable to be dismissed.

#6. We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.

#7. From perusal of the materials available on record, prima facie it appears that a cognizable offence is made out against the petitioner. In the case in hand, a huge amount of money is alleged to be defrauded by the petitioner and the other co-accused persons by luring the innocent people. It is well settled in a catena of decisions that the inherent power of the Court under Section 482 of the Cr.P.C. should be very sparingly and cautiously used only when the Court comes to the conclusion that there would manifest injustice or there would abuse of process of the court, if such power is not exercised so far as the inherent power can be exercised when the allegation under the FIR or the complaint together with other material collected during the investigation taken at their face value do not constitute an offence, which is not the case in hand.

#8. Even otherwise, the charges have been framed by the learned trial Court against the petitioner on 01.11.2021, though recording of the evidence of prosecution witnesses have not yet started. As such, this Court is of the considered opinion that it is not a fit case where this Court should exercise its inherent powers under Section 482 of the Cr.P.C and as such, this petition is dismissed.

#9. When a specific query was put to the learned counsel for the parties with regard to the stage of trial, it has been informed that charges have been framed against the petitioner-Yashwant Sonkar on 01.11.2021. Initially, 7 charge sheet was filed by the police against Yashwant Sonkar, Chitrasen Sahu and Hemant Dewangan. Thereafter, supplementary charge sheet has been filed against the co-accused Mayank Sonkar on 09.03.2022 and against Kuleshwar Sonkar on 18.07.2024. Charges have also been framed against co-accused Mayank Sonkar on 16.06.2022. There are total 75 prosecution witnesses and at present, the case is fixed for

25.02.2025 for hearing on application under Section 306 and 319 of the Cr.P.C.

#10. It appears that charges have not been framed against all the accused persons which may cause unnecessary delay in conclusion of the trial against the petitioner herein against whom charges were farmed way back on 01.11.2021. The FIR relates to the year 2019 and after lapse of about more than 5 years, there is no substantial progress in the trial as recently, charge sheet has been filed against one co-accused namely Kuleshwar Sonkar only on 18.07.2024. Hence, there is every possibility that the conclusion of trial of all the accused persons would take quite long time, and as such, we deem it appropriate to direct the trial Court concerned to separate the trial of the petitioner from other co-accused persons, if so required , and the trial Court would be at liberty to proceed with the trial so far it relates to the petitioner herein individually, in accordance with law. Sd/- (Ravindra Kumar Agrawal) JUDGE Sd/- (Ramesh Sinha) CHIEF JUSTICE Amit AMIT KUMAR DUBEY AMIT KUMAR DUBEY