High Court

Legal Reasoning

cria-3827.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3827 OF 20231) Gautam S/o Bhimrao Narwade, Age-39 years, Occu:Business, R/o-Dhanora Road, Rajiv Nagar, Beed, Taluka and District-Beed,2) Shantabai W/o Bhimrao Narwade, Age-73 years, Occu:Housewife, R/o-Dhanora Road, Rajiv Nagar, Beed, Taluka and District-Beed. ...APPLICANTS VERSUS 1) The State of Maharashtra, Through the Police Station Officer, Dindrud Police Station, District-Beed,2) Atul S/o Madhukar Thombare, Age-43 years, Occu:Business, R/o-Dindrud, Taluka-Majalgaon, District-Beed. ...RESPONDENTS ... Mr. Nitin Bhavar Patil Advocate for Applicants. Mr. G.A. Kulkarni, A.P.P. for Respondent No.1. Mr. K.S. Solanke Advocate h/f. Mr. S.J. Naik Advocate for Respondent No.2. ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 3rd APRIL, 2025 cria-3827.232ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Application has been filed under Section 482 of theCode of Criminal Procedure, for quashing the proceedings inR.C.C. No. 228 of 2021 pending before the learned JudicialMagistrate First Class, Majalgaon, District-Beed, arising out ofthe First Information Report (for short “the FIR”) vide CrimeNo. 9 of 2021 registered with Dindrud Police Station, District-Beed on 2nd February 2021, for the offence punishable underSections 406, 420 read with Section 34 of the Indian Penal Code.2.Heard learned Advocate Mr. Nitin Bhavar Patil for theapplicants, learned APP Mr. G.A. Kulkarni for respondent No.1and learned Advocate Mr. K.S. Solanke holding for Mr. S.J. NaikAdvocate for respondent No.2. In order to cut short, it can bestated that the learned Advocates for respective parties haveargued in support of their contentions.3.Respondent No.2 in the FIR states that he is a permanentresident of village Dindrud, Taluka-Majalgaon, District-Beed.Applicant No.1 used to go to village Dindrud with one DayanandNirmal, resident of village Neknoor, Taluka and District-Beed, as cria-3827.233said Dayanand Nirmal’s wife hails from Dindrud. That is how theinformant came in contact with applicant No.1. Applicant No.1introduced him as Zonal Manager of the State Bank of India. Theinformant had plan to raise a cotton industry by name,Chandrabhaga Cotton Industries Private Limited, Dindrud andtherefore, for getting loan from the State Bank of India to theextent of Rupees Eleven Crores, he has collected all thedocuments. He had made discussion with applicant No.1regarding the loan documents, as applicant No.1 had introducedhim that he is the Zonal Manager of the State Bank of India.Applicant No.1 had told the informant that he should give all thedocuments after making signatures to him and applicant No.1would approve the said loan. However, for the entire work, theinformant will have to incur the expenditure to the extent ofRs.11,00,000/- (Rupees Eleven Lakhs), which he should pay toapplicant No.1. Since the relationship between the informant andapplicant No.1 was good, he agreed and kept faith on applicantNo.1. Informant gave all the documents including the signatureson blank forms in respect of loan applications and gave it toapplicant No.1. Applicant No.1 went to the house of informant on10th February 2018 and told him that he should transfer him theamount of Rs.11,00,000/- as early as possible, then he would cria-3827.234process the loan proposal. The informant therefore, paid anamount of Rs.3,90,000/- in cash in presence of witness UddhavRaghunath Kichame. Thereafter, as per the say of applicantNo.1, the informant transferred an amount of Rs.2,00,000/- inthe account of mother i.e. applicant No.2 by RTGS method on14th February 2018. Then he had transferred in all Rs.7,90,000/-in the accounts of applicant No.1 and applicant No.2 at differentplaces by 13th February 2019. Thus, according to the informant,he has paid in all Rs.11,00,000/- for sanction of his loan amountbut still his loan proposal was never sanctioned. Therefore, wheninformant asked applicant No.1 to return his amount, applicantNo.1 had given him two cheques. But upon presentation of thosecheques, those were dishonoured. The informant, therefore,states that he has been cheated by both the applicants and theyhave misappropriated the amount which has been given by theinformant.4.The first and foremost fact to be noted is that theinformant is a businessman, as he says his occupation asbusiness. He cannot be equated with the layman and therefore,it is presumed that he has the knowledge as to how the loanproposal is required to be submitted, at which Bank it is required cria-3827.235to be submitted etc. The informant himself says that he believedin whatever applicant No.1 had represented before him. Therecannot be blind faith without there being a cross-check to anysuch proposals. In fact demanding money for sanction of loanamounts to bribe and the informant ought not to have paid bribeto a bank official. The informant says that when ultimately hefound that applicant No.1 is avoiding to meet him and give theupdates of sanction of loan, upon inquiry he received theinformation that applicant No.1 is not serving as Zonal Managerwith the Bank. In fact the informant ought to have made inquiryin the beginning itself. If the basic precautions are not taken,then it cannot be stated that such person cheats another.5.The facts further show that after the informant realizedthat applicant No.1 is avoiding to give updates about thesanction of the loan and when the informant made an inquiryand came to know that applicant No.1 is not the Zonal Managernor in the employment of the Bank, no FIR was lodgedimmediately at that time. Rather, he had then accepted twocheques from applicant No.1. One cheque was for Rs.5,00,000/-and another was for Rs.6,00,000/-. The informant says thatapplicant No.1 had given an assurance that those cheques would cria-3827.236be honoured. In this circumstance, in fact it amounts to waiverof the allegations for the fraud or misrepresentation or cheatingfor the acts till the acceptance of the cheques. If that waiver isthere, then no offence can lie in respect of those allegations. Inother words, the earlier contract between the informant andapplicant No.1 had then taken up a different shape. Theinformant accepted the cheques as part of a legally enforceabledebt or liability as per his contention as a part of the subsequenttransaction or proposal. Now, after those two cheques weredishonoured, it appears that the informant has not lodged acomplaint under Section 138 of the Negotiable Instruments Act.In fact, we have already clarified that the customers are notrequired to pay any amount for sanction of the loan by the bankin their favour and therefore, we have described that if anypayment is made for the sanction of such loan amount, it wouldbecome a bribe, in a sense, it is not a legally recoverableamount. If that transaction itself is illegal, there is no question ofcheating.6.Now, during the course of the investigation, theinvestigating officer has recorded statements of witnessesincluding witness Uddhav Kichame, in whose presence part of cria-3827.237the amount was paid and in fact he is the bank employee. Hestates that he is serving in Chandrabhaga Urban Multistate Co-operative Credit Society Limited, Dindrud. He has not stated inhis statement, as to why he has not stopped the informant fromtransferring any amount when the informant, who would be thecustomer seeking loan, was not supposed to pay any amount forclearance of the loan proposal by the Bank. Even if he has giventhe said statement under Section 161 of the Code of CriminalProcedure supporting the prosecution, even prima facie it isunacceptable. Rather, the informant had requested this witnessi.e. Uddhav Kichame to send amount of Rs.2,00,000/- toapplicant No.1 from his account and accordingly he had giventhat amount. Now, this is transaction within transaction. Saidwitness Uddhav Kichame, who himself is a bank employee,cannot be said to be the party who would give bribe to anotherbank employee (we are presuming that till that date theinformant was under the impression that applicant No.1 wasemployed as Zonal Manager of the Bank). 7.Another witness is Shaikh Firoj Shaikh Usman, who waspresent at the time when informant had allegedly given cash ofRs.3,90,000/- to applicant No.1. Again, at the cost of repetition cria-3827.238we would say that though the witnesses are saying that theinformant had given amount of Rs.11,00,000/- to applicant No.1,yet it can be straightway stated that it was not a legaltransaction and therefore, for illegal transaction there cannot bea cheating. Hence, prima facie no offence can be said to havebeen made out. 8. Another aspect is that, as regards applicant No.2 isconcerned, she is mother of applicant No.1 and appears to beilliterate lady about 70 years of age. Merely because someamount was said to be transferred in her account, it cannot besaid that she is the part of incident of alleged cheating. 9.Therefore, this is a fit case where we should exercise ourpowers under Section 482 of the Code of Criminal Procedure, asit would be unjust to ask the applicants to face the trial. Hence,we pass following order:- O R D E R(I)The Application stands allowed.(II) The proceedings in R.C.C. No. 228 of 2021,pending before the learned Judicial Magistrate First cria-3827.239Class, Majalgaon, District-Beed, arising out of theFirst Information Report vide Crime No. 9 of 2021registered with Dindrud Police Station, District-Beed on 2nd February 2021, for the offencepunishable under Sections 406, 420 read withSection 34 of the Indian Penal Code, standsquashed and set aside as against applicant Nos. 1and 2 i.e. - 1) Gautam S/o Bhimrao Narwade and2) Shantabai W/o Bhimrao Narwade. [SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/APR25