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2019 Supreme(Guj) 284
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.P. Thaker, J.
Tirthwshwar Plywood Pvt. Ltd. & Others – Appellants
Vs.
State of Gujarat & Others – Respondents
Criminal Miscellaneous Application No. 7809 of 2017
Decided On : 28-03-2019
Yatin Soni, Adv., Moxa Thakkar, Adv., B.M. Thakkar, Adv., R.C. Kodekar, Adv.
Headnote:
Criminal Law – Criminal Trial – Code of Criminal Procedure, 1973 – Section 482 – Indian Penal Code, 1860 – Sections 120 (B) read with Section 420 – Prevention of Corruption Act – Section 13 (2) read with Section 13 (1) (d) – Offence of cheating – RMA scheme – Failure to repay the amount of loan – Seeking qush of FIR/Proceedings – Alleged that M/s.Tirtheshwara Plywood Private Limited had asked for financial assistance under Raw Material Assistance Scheme (RMA), and applicant had submitted incomplete documents – This application was processed by accused no.3 and 2 recommended unit for a limit of Rs.8 Lacs under RMA Scheme – Accused no.4, after doing the financial appraisal of proposal along with accused no.2 recommended proposal to accused no.1 who approved this proposal of RMA assistance without asking for fulfillment of required documents by party, without going into details of documents submitted by parties and without following the instructions/ guidelines/circulars of the NSIC Limited issued from time to time – Accused no.5 to 10 submitted an application to avail raw material assistance scheme (RMA) in National Small Industries Corporation Limited (NSIC) and, thus, availed this facility under RMA scheme during – Whether allegations in the complaint prima facie make out a case or not and the Court is not to scrutinies the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Cod – As per this settlement, M/s.Tirtheshwara Plywood Private Limited has paid an amount of Rs.12 Lacs to original complainant-NSIC – Not only that the complainant-NSIC has also issued a "No Due Certificate" in this regard, specifically stating that the account of the unit is closed as per the record of the Corporation. Therefore, the allegation of non-payment of amount of loan availed do not survive in view of settlement arrived at and No Due Certificate issued by NSIC Limited – Assuming for the moment that the applicants have failed to repay the amount borrowed by them from respondent No.2, even then the same would not even constitute an offence of cheating. In order to constitute an offence of cheating, intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the process, to say that he committed an act of cheating – It may be pertinent to mention here that the amount in dispute is already paid back by the accused – There is no loss or damage caused to the complainant also. Considering the totality of the circumstances, this appears to be a fit case in which this Court can exercise its inherent powers under Section 482 of the Code for quashing the proceedings – It is also pertinent to note that the charge sheet has been filed for the offences punishable under the Prevention of Corruption Act, but there is no prima facie material to substantiate the charge against the present applicants – It is not the case of the prosecution that the present accused have indulged in the act of either taking or giving bribe. Therefore, the charges under the Prevention of Corruption Act are also not sustainable against the present accusedImpugned FIR quashed and set aside – Application is allowed. (Paras 17 to 20)
A. P. Thaker, J.
Rule. Ms. Moxa Thakkar, learned APP waives service of rule for respondent no.1, learned counsel, Mr.B.M.Thakkar waives service of rule for respondent no.2 and learned counsel Mr.R.C.Kodekar waives service on behalf of CBI.
2. By filing this writ application under Section 482 of the Code of Criminal Procedure, 1973, the applicants have prayed to quash and set aside the FIR being R.C.No.16(A) 2002-GNR registered on 11th July 2002 for the offences punishable under Sections 120 (B) read with Section 420 of IPC and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act filed by CBI/SRE, Gandhinagar Police Station.
3. The short facts of the case are that M/s.Tirtheshwara Plywood Private Limited-accused no.5 having Bharat Dahyabhai Bhavsar-Accused no.6, Sudhaben Bharatbhai Bhavsar-accused no.7, Dineshbhai Dahiyabhai Patel-accused no.8, Bharatbhai Nathabhai Patel-accused no.9, Vikrambhai Shankarbhai Patel-accused no.10 as Managing Director and Directors, submitted an application on 25.8.1994 to avail raw material assistance scheme (RMA) in National Small Industries Corporation Limited (NSIC) and, thus, availed this facility under RMA scheme during 15.9.1994 to 21.5.1997.
3.1 It is alleged that M/s.Tirtheshwara Plywood Private Limited had asked for financial assistance of Rs.29.75 Lacs under Raw Material Assistance Scheme (RMA), and the applicant had submitted incomplete documents. This application was processed on 5.9.1994 and 13.9.1994 by V.K.Sawhney -accused no.3, P.K.Haldar-accused no.2 recommended unit for a limit of Rs.8 Lacs under RMA Scheme. Rajesh Arora-accused no.4, after doing the financial appraisal of the proposal along with accused no.2 recommended the proposal to R.A.Agrawal-accused no.1, Regional General Manager, who approved this proposal of RMA assistance of Rs.7.50 Lacs without asking for fulfillment of required documents by the party, without going into the details of the documents submitted by the parties and without following the instructions/ guidelines/circulars of the NSIC Limited issued from time to time. These officers of NSIC Limited did not comply with the condition imposed while sanctioning Raw Material Assistance (RMA) Facility of Rs.7.50 Lacs to this company and disbursed the amount from time to time in excess of the sanctioned limit and in excess of their delegated financial powers.
3.2 It is contended that during the period from 15.9.1994 to 21.5.1997, NSIC Limited, Ahmedabad, paid total amount of Rs.7,68,000/- against RMA scheme and the company has made payment of dues of Rs.2,27,000/- and failed to make payment of remaining amount of Rs.11,68,021/- including interest and said NSIC Limited officials failed to recover this dues from the company. Due to this, NSIC Limited, Ahmedabad, suffered a wrongful monetary loss of Rs.11,68,021/- as on 31.3.2000 and the accused gained wrongfully. The above incident was reported to CBI and came to be registered as crime No.RC 16 (A) 2002-GNR. The offence was investigated and the investigating officer submitted a charge sheet and it was registered as CBI Special Case No.14 of 2004 and the charge has been framed by Special Judge, CBI, Mirzapur, Ahmedabad on 13.1.2015.
4. Mr.Yatin Soni, learned advocate for the applicants submitted that the only case against the applicants is failure to repay the amount of loan availed from NICS Limited, which was paid off by the applicants pursuant to a settlement arrived at M/s.Tirtheshwara Plywood Limited and NSIC Limited-original complainant. It is also submitted that only allegation of non-payment of amount of loan availed do not survive in view of settlement arrived at and No Due Certificate issued by NSIC Limited. Therefore, nothing remains against the accused and if the proceedings of Special Case No.14 of 2004 are not quashed qua the applicants then it would be the abuse of process of law. It is also submitted that this Court vide decision dated 27.10.2015 delivered in Criminal M
