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2004 DIGILAW 356 (RAJ)

Anil Sahdev v. State of Rajasthan

2004-03-10

H.R.PANWAR

body2004
JUDGMENT 1. - By the instant criminal misc. petition under Section 482 Cr.RC. the petitioner seeks quashing of first information report No. 138/2003 dated 6.11.2003 of Police Station Hathipole, Udaipur. 2. I have heard learned counsel for the parties, perused the first information report and also the documents annexed with this criminal misc. petition by the petitioner. 3. On 6.11.2003 Rooplal Patel, who is a trustee of Institution of Triable (Tribal) Sanitation Health Education and Nutrition Society, Udaipur (for short "the society" hereinafter) lodged the above noticed FIR with the police with the allegation that Dr. N.K. Pipliwal was incharge of the Blood Bank but due to his hip fracture he underwent an operation and, therefore, for time being petitioner Anil Sahdev was given the charge on 12.10.2002. The petitioner was handling the bank transaction of the blood bank with other two signatories. In order to cause wrongful gain to himself the petitioner opened a bank account showing himself to be a proprietor with oblique motive to cause a wrongful gain to himself and use the amount of society for his own use. The petitioner deposited the amount of society in the account opened in his personal name showing himself to be a proprietor and misappropriated the funds. The amount which was required to be deposited in the society's bank account was not deposited, on the contrary deposited in his personal account and the same was utilised by the petitioner himself, therefore, the cheques issued by the society were dishonoured for want of funds. The allegation against the petitioner is that he forged various documents and used those forged documents as genuine. The documents are said to be of valuable security. On this report the police registered crime report against the petitioner for the offence punishable under Section 406, 418, 420, 467, 468 and 471 IPC. The matter is at the investigation stage. 4. From the bare perusal of the FIR prima facie the cognizable offences as noticed above are made out. Learned counsel for the petitioner has placed on record certain documents Anx 2 to Anx. 6 and on the strength of defence sought to be proposed in the case he submits that the instant FIR be quashed. 5. In State of Haryana and others v. Ch. Learned counsel for the petitioner has placed on record certain documents Anx 2 to Anx. 6 and on the strength of defence sought to be proposed in the case he submits that the instant FIR be quashed. 5. In State of Haryana and others v. Ch. Bhajanlal and others, AIR 1992 SC 604 , Hon'ble Supreme Court while considering the case for quashing of FIR/complaint held that the power under Section 482 Cr.RC. should be exercised sparingly and that too in the rarest of rare cases. The Apex Court illustrated following categories in which the FIR can be quashed : (i) "Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (ii) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (iii) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (iv) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (vi) Where there is an expression legal bar engrafted in any of the provisions of the Code of concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (vi) Where there is an expression legal bar engrafted in any of the provisions of the Code of concerned Act (under which a criminal proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (vii) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 6. In State of M.P. v. Awadh Kishore Gupta and others, (2004) 1 SCC 691 , the Apex Court held that exercise of power under Section 482 Cr.RC. in an exception and not the rule. In Chand Dhawan v. Jawahar Kak, (1992) 3 SCC 317 , the Hon'ble Supreme Court observed that when the materials relied upon by the parties are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. In State of M.P. v. Awadh Kishore's case (supra) the Apex court held that inherent powers should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. 7. Keeping in view the above preposition of law, when the factual position of the instant case is considered then it cannot be said that the First Information Report even if it is taken at its face value and accepted in their (its) entirety do(es) not prima facie constitute any cognizable offence or the materials collected by the investigation so far do not disclose a cognizable offence. It also cannot be said that the allegations made in the FIR are so absurd or inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused petitioner. Nothing has been pointed out by the learned counsel during the course of arguments as to an express or any legal bar engrafted in any of the provisions of law for institution or continuation of the proceedings. In this view of the matter this is not a fit case warranting interference exercising inherent powers. So far as the documents annexed with this petition is concerned, it is not appropriate at this stage to make any observation on those documents as they are yet to be produced and proved. The petitioner may file the documents before the Investigating Agency on which he relies at the appropriate stage.Consequently, the instant criminal misc. petition under Section 482 Cr.RC. filed by the petitioner is hereby dismissed.Petition dismissed. *******