HASAN ALI KHAN Vs. STATE

JUDGEMENT

(1.) The petitioner prays for a writ of Certiorari to call for records relating to FIRs. in Crimes Nos. 5 of 1990 and 86 of 1990 issued by the respondents and quash the same on the ground that the FIRs. do not disclose commission of any offence.

(2.) The petitioner is carrying on business in the name and style of A1-Sameer Enterprises at 504, Mount Nassir Apartments, Saifabad, Hyderabad. In the same building another person by name Rafiullah Khan is carrying on business of export of mineral salts, etc., under the name and style of A1-Fatah Exim Services. The said Rafiullah Khan has given general power of attorney in favour of his son Rahamtullah Khan. The side Rafiullah Khan is having current account in the State Bank of India, Charminar branch. He hails from Nellore District. One Syed Abdul Alam, who is an employee of the State Bank of India, worked in the S.B.I. branch at Gudur in Nellore District, thus Rafiullah Khan and Syed Abdul Alam became friends. Syed Abdul Alam was transferred as Manager of the S.B.I., Charminar branch. The petitioner also has an account with the S.B.I., Charminar branch. The petitioner says that the said Rafiullah Khan, his son Rahamtullah Khan and another person Azad Khan approached the petitioner for a short term loan of Rs. 30 lakhs. When the petitioner expressed his inability, they gave two cheques of Rs. 15 lakhs each bearing Nos. 856756 and 856757, dated 20-12-1989 containing the endorsement "good for payment". The Bank Manager also assured that the cheques were as good as cash and served as good security for taking short term loan. They promised to repay the amount from out of the sums expected from foreign buyers of the said persons. The petitioner contacted the authorities of the Grindlays Bank Ltd. Abids, Hyderabad for the said loan against the aforesaid post-dated cheques, who promised to give a maximum amount of Rs. 25 lakhs provided cheques worth double the amount of loan to be given by the bank were pledged. On 25-11-1989 the said persons secured two more cheques of Rs. 9 lakhs each, one of them was issued by Dr. K. Butchi Reddy, Managing Director of Kancharla Farms, Liberty Road, Himayatnagar, Hyderabad, and these cheques were also endorsed "good for payment". On the strength of those cheques the petitioner took a loan of Rs. 25 lakhs under two promissory notes dated 25-11-1989 and 29-11-1989. He further says that when the payment became due, he contacted the said persons for clearing the loan taken from the Grindlays Bank Ltd. Out of the said amount of Rs. 25 lakhs the petitioner credited an amount of Rs. 5 lakhs to his account in the S.B.I., Charminar branch. Therefore, to clear the loan of the Grindlays Bank the petitioner issued cheques of Rs. 21 lakhs. While so, he learnt that in January, 1990 a complaint was given to the 1st respondent alleging cheating in respect of the said transaction. He also informed the S.B.I. authorities about the entire transaction but the 1st respondent registered Crime No. 5 of 1990 against him and others. The petitioner retained cheques of Rs. 30 lakhs issued by Rafiullah Khan to safeguard his interest for realisation of the amounts of the cheques issued by him in favour of the Grindlays Bank. As the validity of the cheques issued by the said persons was expiring he presented those cheques in the Central Bank of India on 18-6-1990, but the S.B.I., Charminar branch returned the cheques without clearing. On these facts another complaint was made by the S.B.I., Charminar branch on 26-6-1990 and 27-6-1990, on the basis of which Crime No. 86 of 90 C.C.S., was registered. On 25-8-1990 the petitioner was arrested and was released on bail on 27-8-1990. He says that wide coverage was given to his arrest stating that he was arrested for presenting a forged bank draft of Rs. 32 lakhs and he filed a private complaint against four newspapers, viz., Indian Express, News time, Deccan Chronicle and Siasat. It is stated that the entire action was full of mala fides by the Bank and the police officials. It is further stated that the S.B.I. has no authority to dishonour cheques of Rs. 30 lakhs. To settle the entire controversy as well as the liabilities of the parties, the petitioner was advised to file civil suits and accordingly he filed O.S. No. 1023 of 1990 on the file of the 2nd Addl. Judge, against the bank praying for appropriate declaration. For the recovery of the amount already realised by the petitioner, the bank filed another suit O.S. No. 256 of 1990 on the file of the 2nd Addl. Judge, City Civil Court, Hyderabad, against the petitioner, and O.S. No. 615 of 1990 in the same Court against Rahamtullah Khan and others for recovery of the amount of Rs. 12,59,000.00. It is stated that the allegations of fraud and cheating are subject matter of the said civil suits and that the criminal prosecution was initiated against him only as a pressure tactics. It is in these circumstances that the petitioner seeks a writ to quash the said FIRs.

(3.) The relevant averments in the counter-affidavit are as follows :- The petitioner is the proprietor of A1-Sameer Enterprises and one Rafiullah Khan and his son Rahamthullah Khan who holds General Power of Attorney of his father actively participate in the business carried on under the name and style "A1-Fateh Exim Services". The business carried on by them is export of mineral salts. The petitioner and Rahamthullah Khan hold independent accounts in the S.B.I., Charminar branch. One Syed Abdul Alam and Rahamthullah Khan became friends at Nellore where Syed Abdul Alam worked as branch manager. In Hyderabad their contacts were renewed and they hatched a plan to defraud the S.B.I., Charminar branch to a tune of Rs. 26 lakhs with the connivance and collusion of one another. On 2-1-1990 three cheques totalling Rs. 26 lakhs (two for Rs. 9 lakhs each and one for Rs. 8 lakhs) drawn by A1-Sameer Enterprises favouring the Grindlays Bank Ltd., were presented by the Grindlays Bank Ltd. The said cheques were received in clearing at S.B.I., Charminar branch on 2-1-90. In the usual course the accountant Mohd. Zulfaquar Ali handed over these cheques to Syed Abdul Alam, the Branch Manager. The cheques should have been either debited or returned on the same day, but the said Syed Abdul Alam did not return the cheques "referred to drawer" as there was no balance to the credit of the petitioner; instead he kept those cheques in his possession mala fide with an intention to cheat the bank. While balancing the clear Cash Book of 3-1-90, on 5-1-90 when it was found that the above cheques were missing Syed Abdul Alam was questioned but he could not give a satisfactory reply. He, however, admitted that he kept those cheques for an amount of Rs. 26 lakhs with him and handed over to K. Nageswara Rao, Branch Manager. By keeping the cheques under a pre-planned conspiracy he cheated the bank to a tune of Rs. 26 lakhs. He opened the accounts of the above firms without proper introduction taking undue advantage of his position and gave loans beyond his powers. The petitioner issued cheques for Rs. 26 lakhs knowing fully well that they will be dishonoured, but believed that the bank manager Syed Abdul Alam would conceal the facts about the balance in his account by illegally holding the cheques without the knowledge of the other staff. The said Syed Abdul Alam with the connivance of Rahamthullah Khan and the petitioner, successfully cheated the bank to a tune of Rs. 26 lakhs on account of illegal detention of cheques. The action is part of well-knit plan with the active connivance of the Bank Manager. The said Bank Manager, Syed Abdul Alam, was placed under suspension pending enquiry into the irregularities of misconduct. It is further stated that the petitioner managed to obtain four cheques bearing Nos. 856756, 8567757, dated 20-12-1989 each for Rs. 15,00,000.00 and Nos. 967752 and 967753, dated 22-12-1989 each for Rs. 9 lakhs issued by the said Rahamthullah Khan and Dr. Butchi Reddy, respectively, which were marked "good for payment" by the Bank Manager Syed Abdul Alam, though the practice of making "Good for payment" was not in vogue at that time. The issuance of the cheques as well as the presentation of the cheques of these persons are part of fraudulent design to cheat the bank to raise the credit, by misusing the machinery of clearing system of the bank and gained Rs. 26 lakhs fraudulently. The said four cheques amounting to Rs. 48 lakhs were presented at Grindlays Bank Ltd. Abids branch and three cheques for Rs. 26 lakhs were issued for drawing the amounts from the S.B.I. Charminar Branch. It is stated that while the investigation in Crime No. 5 of 1990, under Sections 417 and 420, IPC, was in progress, the petitioner presented two cheques dated 20-12-1989 for a sum of Rs. 15 lakhs payable to A1-Sameer Enterprises at Central Bank of India Khairatabad branch by opening an account on 18-6-1990. The said cheques were managed to be taken by the Grindlays Bank Ltd., Abids, after drawing an amount of Rs. 26 lakhs. Those cheques were also marked "Good for Payment" by the said Syed Abdul Alam. When the said cheques were received in clearing from the Central Bank of India, Khairatabad branch, the complainant noticed and identified the cheques as per the endorsement "good for payment", immediately informed the Manager, Central Bank of India, Khairatabad branch and stopped further payment. Sri K. Nageswar Rao, the present manager of the S.B.I., Charminar branch gave a complaint on the basis of which Crime No. 86/90 under Sections 420 and 511, I.P.C. was registered at C.C.S. Hyderabad. The investigation was taken up and the petitioner was arrested and produced before the 11th Metropolitan Magistrate, Hyderabad, on 25-8-1990, but was ordered to be produced on 27-8-90 Monday. The said Rahamthullah Khan and the petitioner obtained anticipatory bail in Crime No. 5 of 90 of Mir Chowk Police Station. The investigation in Crime No. 5 of 90 was completed, but charge sheet could not be filed due to the interim order issued by the High Court. It is stated that the F.I.Rs. disclose cognizable offences and further investigations reveal that the petitioner's activities fulfilled the requirements of the offences under which the FIR is issued. In the investigation it is established that the petitioner cheated S.B.I., Charminar Branch in collusion with Rahamthullah Khan and the bank manager Syed Abdul Alam and unlawfully gained Rs. 26 lakhs. There is clinching evidence to prove the guilt of the petitioner. In the circumstances, it is prayed that the writ petition may be dismissed.