JUDGMENT
C.Y. Somayajulu, J.
1. These petitions are filed to quash the F.I.Rs registered against the petitioners on the basis of complaints given by the UCO Bank (i.e., 2nd respondent in all these petitions) for offences under Section 420, 464 and 468 IPC. Since common questions of fact and law arise in these petitions, they are being disposed of by a common order.
2. 2nd respondent (the Bank) filed private complaints against the petitioners alleging that petitioners, who are working in the office of the Accountant General, availed consumer loans by producing salary slips issued by the Salary Disbursing Officer, with copies of irrevocable letter of authority given by them (petitioners/borrowers) authorizing him (Salary Disbursing Officer) to deduct the monthly installment amount to be paid by them to the Bank, directly to the credit of their loan account with the bank, and an undertaking letter of the Disbursing Officer, undertaking to deduct the monthly installments payable by the petitioners from their salary and that those amounts would be remitted to the credit of the account of the borrowers/petitioners, and when petitioners committed default in payment of the monthly installments due from them, it approached the Salary Disbursing Officer with a request to enforce the undertaking given by him, it came to light that the undertaking letters of Salary Disbursing Officer produced by the petitioners before the Bank were in fact not given by him, and hence are liable for punishment under Section 420, 464 and 468 IPC, were referred to police for investigation. So police registered the impugned F.I.Rs against petitioners.
3. The contention of the learned Counsel for the petitioners is that the second respondent-Bank by suppressing material fact of its launching prosecution against the petitioners for an offence under Section 138 of the Negotiable Instruments Act (for short “the Act”) gave reports against the petitioners to adapt arm twisting method of harassing and inconveniencing the petitioners, by trying to convert a civil liability into a crime. Relying on paras 54 and 56 in ANDHRA PRADESH SCHEDULED TRIBES EMPLOYEES ASSOCIATION V. ADITYA PRATAP BHANJ DEV AND OTHERS, (F.B.) at 462 reading
54. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood.”
“56. In an action of deceit the plaintiff must prove actual fraud. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, without caring whether it be true or false.
A false statement, made through carelessness and without reasonable ground for believing it to be true, may be evidence of fraud but does not necessarily amount to fraud. Such a statement, if made in the honest belief that it is true, is not fraudulent and does not render the person make it liable to an action of deceit.
and relying on para 13 of INDIAN BANK V. SATYAM FIBRES (INDIA) PVT. LTD., reading
“…………… the appellant, in fact, raised the plea before the Commission that its judgment dated 16-11-93, which was based on letter No. 2776, was obtained by the respondent by practicing fraud not only on the appellant but on the Commission too as letter No. 2776 dated 26-8-91 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that the Authorities, be they Constitutional, Statutory or Administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as Fraud and Justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that Fraud and deceit defend of excuse no man (Fraus et dolus nemini patrocinari debent).”
and relying on para 13 of G.SAGAR SURI V. STATE OF U.P, 2000 (1) ALT (Crl.) 168 (SC) reading
“13. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. In the instant criminal case without regard to their role or participation in the alleged offences with a sole purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellant and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420, IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do.”
he contends that since fraud vitiates all proceedings and since the Bank fraudulently suppressed the fact of its launching proceedings under Section 138 of the Act against the petitioners, all the F.I.Rs are vitiated by fraud and hence are liable to be quashed. Relying on K.LAXMA REDDY V. STATE OF A.P., 2003 (1) ALT (Crl.) 309 (A.P) he contends that the learned Magistrate was in error in referring the complaints to police for investigation without examining any witnesses.
4. The contention of the learned Counsel for the bank is that since cheques issued by the petitioners towards the installment amounts due and payable by them to the bank were dishonoured for want of funds, the Bank, after issuing notices as per Section 138 of the Act, lodged complaints under Section 138 of the Act when the petitioners failed to pay the amounts covered by the dishonoured cheques. It is his contention that when the petitioners committed further default in payment of the installments due and payable by them, the bank with a view to enforce the undertaking given to it approached the Disbursing Officer in the office of the petitioners with a request to fulfill the obligation undertaking by him, and came to know that the undertakings produced by the petitioners were forged and since the petitioners played fraud on the bank by obtaining loans on forged documents the present complaints were filed by the Bank. It is his contention that since the cause of action for filing these complaints arose subsequent to the bank filing complaints under Section 138 of the Act, against the petitioners, there was no scope for the second respondent making a reference to these documents in the complaints filed under Section 138 of the Act. It is his contention that petitioners had filed writ petitions for the same relief, and since initiation of two proceedings for the same relief is but an abuse of process of court, petitioners are not entitled to any relief.
5. Principles governing quashing of complaints/F.I.Rs are laid down by the Supreme Court in STATE OF HARYANA V. BAJAN LAL, and are reiterated in STATE OF KARNATAKA Vs. DEVENDRAPPA, . As per the ratio in those decisions, if the allegations in the F.I.R. when taken to be true, prima facie disclose commission of a cognizable offence, question of quashing of F.I.R. does not arise. It is also well known that criminal proceedings cannot be quashed under Section 482 Cr.P.C. basing on the defence of the accused.
6. There can be no two opinions about the fact fraud vitiates proceedings and anything done under fraud is liable to be set aside, but there absolutely is no force in the contention on behalf of petitioners that non-disclosure of the incidents and the documents referred to in the impugned F.I.Rs, in the proceedings initiated by the bank against the petitioners under Section 138 of the Act amounts to fraud, firstly because the case of the bank is that the fact that petitioners produced false and fabricated documents came to light subsequent to the initiation of the proceedings under Section 138 of the Act and secondly because the cause of action for lodging these F.I.R.s is different from the cause of action for an offence under Section 138 of the Act and so, even assuming that the bank even at the time of filing of complaints under Section 138 of the Act was aware that petitioners produced fake and false documents at the time of obtaining loans, non-mention of that fact in the proceedings under Section 138 of the Act is not and cannot be a ground for quashing the F.I.Rs, because in a proceeding under Section 138 of the Act the question for consideration would be, whether the accused had issued a cheque on an account maintained by him, in discharge of a legally enforceable debt and if that cheque was dishonoured for want of funds and if the drawer of the cheque after service of notice of dishonour and demand for payment, failed to pay the amount covered by the dishonoured cheque or not. Other offences if any, committed by the drawer of the cheque either at the time of obtaining the loan, or drawing the cheque are irrelevant for deciding a case under Section 138 of the Act, which is a non-cognizable offence, relating to which no person other than the payee or holder in due course of a dishonoured cheque can make a complaint. So, the bank not making a reference to the events mentioned in the impugned F.I.Rs, in the complaints filed by it under Section 138 of the Act, by no stretch of imagination can be termed as a fraud on the court or on the petitioners.
7. The decisions relied on by the learned counsel for petitioners have no relevance to this case. Here I feel it relevant to state that it is the petitioners, who can be said to have played fraud on this Court because the factum of their filing Writ Petitions for quashing the very same F.I.R, is not mentioned in these petitions. Initiating two different proceedings for the same relief and non-disclosure of pursuing other remedy also, is but a fraud on the Court. Petitioners who played fraud on the Court, must be thinking that bank also might have acted like them, like a person looking through a coloured glass. This attitude of the petitioners reminds me of a Telugu proverb, when translated into English, means that a person pointing an accusing finger against another, should know that three fingers of his are pointing towards him. When one resorts to mudslinging he should remember that his hand would first become dirty, the mud missing the target, notwithstanding.
8. Obtaining loan on the basis of forged documents gives raise to both civil and criminal actions. So merely because the bank has a right to proceed against the petitioners in a civil court for recovery of the amount lent to them, petitioners cannot prevent bank launching criminal proceedings for the offences alleged against them. In the facts and circumstances of this case, by no stretch of imagination, can it be said that the bank is trying to convert civil liability of the petitioners into a criminal action with a view to harass them. Moreover, as rightly contended by the learned Counsel for the bank, the bank would not get any benefit by the petitioners being subjected to disciplinary proceedings by their employer.
9. By referring the case to police under Section 156(3) Cr.P.C. without examining witnesses, the Magistrate cannot be said to have committed any error. When the Magistrate himself records the statements of witnesses cited in the Complaint question of his referring the complaint to police for investigation under Section 156 (3) Cr.P.C. does not arise at all. The facts in K.LAXMA REDDY case (4 supra), are entirely different from the facts of this case. So the said decision is of no help in deciding these cases.
10. Since the allegations in the complaints show prima facie case against the petitioners, I find no grounds to quash the proceedings against the petitioners.
11. Hence, the criminal petitions are dismissed.