Dhrub Narayan Upadhyay, J. - (1.) THIS writ petition (criminal) has been filed for quashing the F.I.R. including entire criminal prosecution arising out of Doranda (Argora) P.S. case No. 446 of 2011 dated 2.11.2011 corresponding to G.R. No. 5513 of 2011 registered u/s. 420, 467, 468, 471/34 I.P.C. pending in the Court of learned S.D.J.M., Ranchi.
(2.) THE facts in brief is that Minakshi Sahkari Grih Nirman Samiti Ltd. (hereinafter to be referred as the 'MSGNSL') had taken a loan of Rs. 1,50,00,000/ - (Rupees one crore fifty lacs) from the Bihar State Housing Cooperative Federation Ltd., Patna (hereinafter to be referred as the 'Federation'), from its regional office situated at Indira Palace, Hinoo, Ranchi, P.S. Doranda against their project i.e. for construction of apartment at Kaju Bagan, West End Park, Hehal, Sukhdeo Nagar, Ranchi and the property was put under mortgage with the Federation. An agreement was also executed between the MSGNSL and the Federation and as per the agreement, the flats constructed can only be sold after seeking No Objection Certificate from the Federation. It was revealed that writ petitioners who are the President and the Secretary of MSGNSL, without seeking no objection certificate, sold the flats to different persons for their wrongful gain and loan amount was not repaid, as a result an outstanding of Rs. 4,21,28,611 has become due. Since the writ petitioners have committed forgery and misappropriated the property for their wrongful gain, a written report was lodged by the Assistant Manager (Law) of the Federation, Patna with Argora P.S., Ranchi and on the basis of written report, Doranda (Argora) P.S. case No. 446 of 2011 dated 2.11.2011 u/s. 420, 467, 468, 471/34 I.P.C. has been registered. The writ petitioners have prayed to quash the said F.I.R. and the criminal prosecution arising out of the same on the ground that it is a malicious prosecution launched with an intention to harass and humiliate the petitioners. It is admitted that the MSGNSL has taken loan against its project to construct flats on a piece of land situated at Kaju Bagan, Hehal and the MSGNSL has also put the property under equitable mortgage. Due to certain reason, the MSGNSL has failed to repay the loan and for recovery of the loan amount the Federation has filed Certificate Case No. 3/2004 which is pending before the District Cooperative Officer -cum -Certificate Officer, Ranchi. In view of the provisions of section 48 of Bihar & Orissa Cooperative Society Act, the dispute, if any, is required to be referred before the Registrar and no criminal prosecution is required to be initiated. It is further contended that after construction of flats, application for issuance of No Objection Certificate was filed but the Federation has refused to provide No Objection Certificate by its letter dated 22.1.2003. Thereafter the MSGNSL had filed C.W.J.C. No. 1785 of 2003 to quash the said letter dated 22.1.2003. The Hon'ble Patna High Court vide order dated 12.8.2003 had been pleased to stay the operation of said letter. Thereafter flats were sold by the writ petitioners. C.W.J.C. No. 1785 of 2003 was stood withdrawn with a liberty to the writ petitioner to approach the Federation for resolving the dispute under 2005 Package. The Federation in spite of resolving the dispute lodged this criminal case for wreaking vengeance. As per the Bihar State Housing Cooperative Federation Ltd., Patna, Bye -Laws & Conditions for Loan, Clause 47, "Any dispute arising with regard to a loan sanctioned under these rules shall originally lie with court situated at Patna." It was submitted that the dispute arose is purely of civil in nature and therefore no criminal prosecution is permitted to be continued, if it is allowed, it would amount an abuse of process of law. The writ petitioners have also relied upon the judgments reported in : (2013) 11 SCC 673 Paramjeet Batra v. State of Uttarakhand and others, : (2013) 6 SCC 740 Chandran Ratnaswami v. K.C. Palanisamy and others and : (2011) 7 SCC 59 Joseph Salvaraj A. v. State of Gujarat and others.
(3.) ON the other hand, learned counsel, appearing for the respondent Federation has submitted that it is not a case in which the borrowers have failed to repay the loan, but it is a case in which facts available indicate that the writ petitioners have intentionally with mens rea misappropriated the property for their wrongful gain and wrongful loss to the Federation and committed criminal breach of trust and sold the property which was under equitable mortgage with the Federation in utter violation of the terms and conditions mentioned in Para -1 of the agreement dated 24.5.1997 which is very clear that borrowing society (MSGNSL) shall not transfer the land and property furnished in security to any other persons till redemption of loan without written consent of Federation. It is apparent from the F.I.R. that the writ petitioners instead of depositing the sale proceeds in loan account, misappropriated the same. The agreement dated 24.5.1999 held between the parties was extended and supplemented by other agreements in order to help the borrowing society, but they were having deceptive intention from before in their mind and it would reveal from the facts available that the Federation on further occasion extended the loan amount but the writ petitioners cheated the Federation and committed criminal breach of trust and sold the flats constructed on the land which was under mortgage and misappropriated the sale proceeds. The law as well as the terms and conditions of the agreement are very clear on each and every point. When the writ petitioners failed to abide by the conditions laid down in the agreement and failed to repay the loan amount, the Federation, as per the terms of the agreement, lodged certificate case for recovery of the loan amount. When the writ petitioners by taking advantage of interim order passed in C.W.J.C. No. 1785 of 2003, sold the property without seeking consent of the Federation, F.I.R. was lodged for proper action against them. The writ petitioners never approached the Federation for One Time Settlement under the Scheme, 2005 floated by the Federation, but in order to create defence, they had written letter No. 15 dated 18.10.2011 (Annexure -5 to the writ petition) after institution of the F.I.R. and the contention of the aforesaid letter is nothing but statement of untenable grievances. Lastly it was submitted that jurisdiction of the criminal courts in inquires and trials is envisaged under Chapter XIII of the Code of Criminal Procedure.;