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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
G.R. UDHWANI, J.
NAVINCHANDRA VISHNUPRASAD SHAH - Petitioner(s)
Versus
STATE OF GUJARAT & ANR. - Respondent(s)
CRIMINAL MISC. APPLICATION NO. 5903 of 2008 with CRIMINAL MISC.APPLICATION NO. 5673 of 2008
Decided on : 08/05/2013
Code of Criminal Procedure – Sections 482, 218, 379 – Quashment of – Petitions are moved invoking jurisdiction of this Court under Section 482 of the Code of Criminal Procedure – First petition is moved by -a guarantor with a prayer to quash the charge and the Criminal Case pending before Metropolitan Magistrate Court against the petitioner herein – Second mentioned petition is moved by power of attorney holder of loanees and a guardian of minor with a prayer to quash the above proceedings as also order dated 18.03.2008 passed below application rejecting the application moved by the petitioner for discharge – Held, Test is to peruse the case papers and without appreciating them or adding value to it, find out as to whether in reliance of penal provisions are attracted – Courts should not venture to appreciate the evidence as it would have after recording of the evidence in a full-fledged trial – Test under the above provision would not be as to whether after full-fledged trial there are chances of innocence of accused – Test is whether, on perusal of the evidence placed before the court before trial or at the stages referred to in various sections as above constitute an offence under relevant penal provisions, and for that the courts shall have to peruse the relevant law and find out whether the facts fit in the ingredients constituting an offence – This takes the court to section 218 of Cr.P.C. which requires a separate charge and trial for distinct offences unless an application is given by accused in writing and the Magistrate forms an opinion that a joint trial of all the charges is not likely to prejudice the accused – This rule will apply when charges against same person are in multiple – It is an admitted position that all the different groups of accused are alleged to have committed the offences at different points of time arising out of different transactions and no application as contemplated under the above proviso was given – None of the conditions contemplated in clauses (a) to (g) of section 223 were attracted and therefore the trial court was not justified in framing a joint charge – Charge cannot be sustained – Petition Allowed (Paras 25, 26, 28, 29)
G.R. UDHWANI, J.
1. Both these petitions are moved invoking jurisdiction of this Court under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”). The first petition is moved by one Navinchandra Vishnuprasad Shah -a guarantor with a prayer to quash the charge and the Criminal Case No.799 of 2005 pending before Metropolitan Magistrate Court No.20, Ahmedabad against the petitioner herein. The second mentioned petition is moved by one Bharatkumar Shantilal Sheth a power of attorney holder of loanees and a guardian of minor with a prayer to quash the above proceedings as also order dated 18.03.2008 passed below application Exh.2 Annexure “H” rejecting the application moved by the petitioner for discharge. The petitioner also prays for discharge from the above criminal case.
2. A loan was obtained on 29.2.1988 for business purpose by the firm M/s.Chirag Enterprises constituting father, daughter-in-law and grandson from Sahyog Cooperative Bank Limited which is now being represented by Jethabhai Khodidas Patel – the liquidator, respondent No.2 herein who has lodged original complaint. A notice for recovery was served upon the petitioners on 14.11.1990 after a notice was given to the bank by petitioners disowning the liability except to an extent of Rs.75,000/-, This dispute gave rise to a Lavad Case being No.779 of 1991 which came to be decreed on 10.9.2003 against which appeal being No.1248 of 2003 was preferred wherein interim application was also moved which was granted on 09.07.2004 after bi parte hearing. The relevant order is produced at Annexure “E” to Special Civil Application No.5903 of 2008.
3. While the above proceedings were pending in appeal, FIR dated 3.8.2004 came to be filed against the petitioners and others alleging the offence under various provisions of IPC ranging between 29.12.1988 i.e. the date when the loan was taken to 29.2.2004. It is relevant to mention here that amongst the accused, the other four entities unconnected with the above loan transaction but who had availed loan through different transactions at different points of time from Sahyog Co-operative Bank Ltd, have also been arraigned as accused. The petitioners and others moved two Criminal Misc. Applications separately being 4659 of 2005 and 4660 of 2005 for quashing of the FIR. However, in the meanwhile, chargesheet came to be filed and therefore both the petitions were respectively withdrawn on 9.1.2006 and 12.9.2006 without inviting any order on merits since the Court opined that as chargesheet was filed the cases were not maintainable.
4. By a charge dated 5.4.2008, the petitioners and others were charged with the offences punishable under Sections 420, 421, 424, 465, 468, 471 and 114 of Indian Penal Code (for short “IPC”). The petitioner – Bharatkumar Shantilal Sheth preferred the above-mentioned application for discharge before the above charge was framed. It was, however, rejected, and as stated above, he has, in his petition, challenged the said order as well.
5. Learned Senior Advocate Mr.D.D.Vyas with learned advocate Mr. Deep Vyas for the petitioners contended that, even if the documents accompanied with the chargesheet were to be read at face value, no offence worth the name against the petitioners was made out. He invited attention of this Court to the statement made by Jethabhai Khodidas Patel – complainant who has averred that Jippal Remedies Pvt. Ltd., Dilip Rajkumalpal & Co., Thripal Commodities & Co., Chirag Enterprise and Ranbo Track Pvt. Ltd., were sanctioned the loan but no false or forged documents, certificates etc., were found to have been submitted by them at the time of loan application. Learned Senior Advocate, while relying upon the aforesaid documents produced with the chargesheet, submitted that this is not a case where the petitioners could have been charged for the offences as above.
5.1 Learned Counsel also submitted that the joint charge along with other persons unconnected with the loan t
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