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Ankush Gupta v/s Joginder Paul Singh


    CRMC. No. 329 of 2017

    Decided On, 29 October 2021

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE RAJNESH OSWAL

    For the Appellant: Navyug Sethi, Advocate. For the Respondent: Raghubir Singh, Advocate.



Judgment Text

1. The present petition has been filed by the petitioner under section 561-A Cr.P.C. (now 482 Cr. P.C.) for quashing the criminal complaint, titled, Joginder Paul Singh vs. Ankush Gupta for commission of offences under sections 323, 504, 506 RPC pending before the Court of Sub Judge (JMIC), Nowshera (hereinafter to be referred as the trial court) as also the order dated 17.05.2016 passed by the trial court by virtue of which process has been issued against the petitioner.

2. It is contended in the petition that the petitioner in the year 2016 was serving as a Branch Manager, Grameen Bank, Nowshera and brother of the respondent No. 1 had taken loan of Rs. 6.75 lac for purchase of a Tempo Traveler vehicle on 30.05.2013. The respondent stood as a guarantor to the said loan. The brother of the respondent did not liquidate the said loan as a consequence of which, the said loan account was declared as N.P.A. As per the records of the Bank, the total outstanding loan against the borrower as on 31.03.2017 stood at Rs. 2,75,089/- It is further stated that the respondent in order to pressurize the Bank officials to settle the loan amount by waiving of the balance outstanding devised a novel method and in this behalf, he filed a totally false and frivolous complaint against the petitioner on 17.05.2016 before the trial court and learned trial court after recording the statements of respondent/complainant and his wife, issued the process against the petitioner vide order dated 17.05.2016.

3. The petitioner has prayed for quashing of the criminal proceedings arising out of the abovementioned complaint including the order dated 17.05.2016 by virtue of which process was issued against the petitioner on the following grounds:

(a) That the allegations leveled in the complaint are vague and the learned trial court without evaluating the allegations has issued the process against the petitioner in a routine manner.

(b) That the respondent has not given any details as to how much money as one time settlement was deposited by him on behalf of his brother and on which date the said amount was deposited in the Bank. More so, there was no request made either by the complainant or by the borrower to the Jammu and Kashmir Grameen Bank for one time settlement with regard to the liquidation of the entire loan account with interest.

(c) That in order to wriggle out of his responsibility and liability to repay the loan amount, the respondent has concocted the entire story of beating and threatening by the petitioner just to build a pressure upon the petitioner and the Bank officials to succumb to his illegal pressure of settling the unpaid loan and interest. Rather on 10.05.2016, the respondent alone visited the Bank and threatened the petitioner that if he did not issue the NOC in favour of his brother in lieu of waiving of the loan and interest outstanding against his brother, he will get the petitioner involved in the criminal case.

(d) That had any such incident as has been alleged in the complaint taken place on 10.05.2016, then the petitioner would have reported the matter to the higher officers of the petitioner or to the Police.

(e) That from the perusal of the impugned complaint, it reveals that the ingredients of section 323, 504, 506 are missing and the complaint is being used as a tool for causing harassment and victimization to the petitioner, as such, the criminal complaint and process issued against the petitioner is abuse of process of law.

4. Mr. Navyug Sethi, learned counsel for the petitioner submitted that the present criminal proceedings initiated against the petitioner are nothing but abuse of process of law and the sole motive was to harass the petitioner so as to force him to issue NOC for the loan account of the brother of the respondent.

5. On the other hand, Mr. Raghubir Singh, learned counsel for the respondent submitted that all the essentials of offences for which the process has been issued by the learned trial court are present in the complaint filed by the respondent and as such, the same cannot be quashed.

6. Heard learned counsel for the parties and perused the scanned record obtained from the trial court.

7. Before appreciating the contentions of learned counsel for the parties, it is necessary to take note of the allegations leveled in the complaint filed by the respondent against the petitioner. It is stated in the complaint that the brother of the respondent had obtained the loan from the Grameen Bank, Branch Nowshera for purchase of a Tempo Traveler and respondent stood as a guarantor to the said loan account. The brother of the respondent fell ill, as such could not make payment to the Bank and the respondent made the payment of the loan on behalf of his brother and the loan was paid as one time settlement but the petitioner did not issue NOC in favour of his brother. On 10.05.2016, the respondent had gone to the Bank after 4.00 p.m. and requested to issue NOC with regard to the payment of said loan. However, the petitioner started abusing the respondent and respondent restrained him from abusing. On this the petitioner attacked the respondent and administered beating to the respondent with legs and fists and threatened him if he came again in the Bank he would murder the respondent in the Bank. On the basis of these allegations, the learned trial court vide order dated 17.05.2016 issued the process against the petitioner for commission of offences under section 323, 504, 506 RPC after recording the statements of the complainant/respondent and his wife.

8. From the perusal of the complaint, it is evident that brother of the complaint had availed the loan and respondent stood as a guarantor. It further transpires from the complaint that brother of the respondent could not liquidate the loan and it was the respondent who claimed to have deposited the loan amount under one time settlement. In order to substantiate the said contention, the respondent did not place on record any evidence in the form of receipt with regard to the payment of the loan by the respondent under one time settlement either before the trial court or before this court. However, the petitioner has placed on record the loan account statement of the brother of the respondent, which is not disputed by the respondent. Thus, it is clear that the loan amount has not been liquidated either by the borrower or his brother (respondent), who stood as a guarantor.

9. In the present times, the borrowers are devising novel methods to pressurize the bankers to agree to their unjustified demands and the instant case is one of the classical example of the same. Once it was the case of the respondent that he had liquidated the loan amount under the one time settlement then the learned Magistrate should have asked the respondent to place on record the receipt with regard to the payment made by him to the bank. It needs to be noted that the Bank officials are performing their official duties and they have to act in accordance the rules and regulations prescribed by the Bank. The petitioner in the instant case could not have issued the NOC in absence of liquidation of the loan. Had the learned Magistrate directed the respondent to produce the receipt of deposit of amount or the documents with regard to the one time settlement scheme, it would have demonstrated the genuineness of the story projected by the respondent. The Magistrate must be careful while entertaining such complaints where the allegations are leveled against the persons regarding the commission of offences, who are discharging their official duties and have no personal interest in the same. It is very easy to file complaint and get the process issued just by examining himself as witness and one closely related witness, as in the instant case, where the complainant has examined himself and his wife as witness in support of complaint. In the complaint it is not mentioned that the complainant had gone to the bank with his wife. Even in the preliminary statements recorded in support of complaint, neither the respondent nor his wife has stated that they had gone to the bank together. The learned Magistrate in the instant case has acted in a mechanical manner while issuing process contrary to the mandate of law laid down in in Pepsi Foods Ltd. v. Special Judicial Magistrate, reported in (1998) 5 SCC 749, where Apex Court has held as under:

28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.

10. In M.N. Ojha v. Alok Kumar Srivastav, (2009) 9 SCC 682, wherein the complaint was filed against the bank officer by the guarantors, the Apex Court has held as under:

“21. In our considered view, criminal law has been set in motion by the complainant to harass the bank officers needlessly and to wreak personal vengeance in order to bring them under pressure not to further prosecute the proceedings already initiated by the appellants against the complainant on behalf of the Bank.

22. In our considered opinion, the learned SDJM set the criminal law in motion against the appellants without even examining the allegations and averments made in the complaint filed by the respondent complainant. The learned SDJM took cognizance of the case without considering the allegations on merits.

23. Had the learned SDJM perused the complaint properly he would have realised that the complainant himself had made a mention about the lodging of the FIR for criminal breach of trust and other offences against the respondent complainant and others. Had he looked into the complaint properly, he would have certainly asked the complainant to furnish a copy of the said FIR.

24. A copy of the legal notice issued on behalf of the respondent complainant to the appellants was filed along with the complaint and a mention is made about it in the order passed by the learned SDJM. Had the learned SDJM perused the said legal notice, he would have realised that the complainant himself admitted about his execution of agreement of guarantee and other docu

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ments unconditionally agreeing to discharge the loan amount in case of failure of the principal borrower to pay the said amount to the Bank. 25. Had the learned SDJM applied his mind to the facts and circumstances and sequence of events and as well as the documents filed by the complainant himself along with the complaint, surely he would have dismissed the complaint. He would have realised that the complaint was only a counterblast to the FIR lodged by the Bank against the complainant and others with regard to the same transaction.” 11. This Court is of the considered opinion that the criminal complaint has been filed against the petitioner by the respondent with ulterior motive so as to harass the petitioner in order to force him to issue NOC, which he otherwise could not have issued in absence of liquidation of the loan amount. The continuance of such criminal proceedings launched with ulterior motive shall amount to abuse of process of law. 12. In view of above, the proceedings of the criminal complaint titled “Joginder Paul Singh versus Ankush Gupta” pending before Learned Sub Judge (JMIC) Nowshera alongwith the order dated 17.05.2016 are quashed. The copy of the order be sent to the trial court.
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