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2007 DIGILAW 2871 (ALL)

BRAHMA DUTTA SHARMA v. STATE OF U P

2007-11-29

AMAR SARAN, V.K.VERMA

body2007
AMAR SARAN AND VIJAY KUMAR VERMA, JJ. We have heard learned Counsel for the petitioners and the learned AGA, and Counsel for the complainant. 2. The petition by B. D. Sharma is being treated as the leading petition because learned Counsel for the petitioner has principally raised arguments in this petition. We are disposing of all the connected petitions and Criminal Misc. Application filed under section 482 Cr. P. C. , which was connected by an order passed by a Division Bench dated 11. 10. 2007 by a common order in this writ petition. 3. Essentially the allegations in the F. LR. lodged at case crime No. 221 of 2004 under sections 420, 467, 468, 406 IPC P. S. Kotwali, district Ghaziabad dated 1. 5. 2004 at 6. 30 a. m. by the informant Mahesh Singh Yadav, who was the Secretary to the General Manager of the U. P. Co-operative Bank, Ghaziabad, were that the 18 named accused persons entered into a conspiracy with the then Secretary R. D. Sharma and they formed fake companies and opened accounts. As collateral, they also mortgaged some of the lands with the Bank for obtaining the loans. However, even the mortgaged lands were disposed of and loans were not paid. This fraud has been committed by preparing forged and fabricated documents by the relatives of R. D. Sharma with his aid. The said fraud was being committed for six to 7 years. 4. It may be noted that now charge-sheets have been submitted in all the criminal cases against the petitioners in the present and the connected writ petitions and as such in our view the petitions have even become infructuous. 5. However, as vehement arguments were raised on merits, we are also alluding to the same. It was argued that for the same crime for which initially only case crime No. 221 of 2004 was assigned, subsequently separate crime No. 221 A to 221 M have been assigned and therefore separate charge-sheets in the said crimes, which related to a single cause of action are illegal. In one of the petitions, viz. the petition by R. D. Sharma, the Investigating Officer has submitted a counter affidavit. In one of the petitions, viz. the petition by R. D. Sharma, the Investigating Officer has submitted a counter affidavit. It has been mentioned in paragraph No. 4 of the counter affidavit that as it was revealed that several offences had taken place at different times with different accused persons involved therein, accordingly, for the sake of convenience of investigation, so that the precise role of the accused in each and every crime could be ascertained hence separate crime numbers had been allotted and permission from the higher officials had even been taken by the previous Investigating Officer in this regard. 6. Learned Counsel for the petitioner strongly objected that crime numbers could not be changed as per convenience of the I. O. But the I. O. had clearly pointed out that as the embezzlement had taken place for a long period of time involving different accused and clear evidence could be collected regarding commission of the crimes by the different accused, separate crime numbers were assigned. 7. One petition preferred by Hari Mohan Kaushik has even been dismissed by a Bench of Honble Sushil Harkauli and Honble A. K. Singh, JJ. by a final order dated 21. 5. 2007, which reads as follows:- " We have heard learned Counsel for the petitioner. Considering the amount of Rs. 8,44,00,000/- involved as alleged in Annexure 13 of this writ petition, we do not find any error in the action of investigating agency of bifurcating the investigation into separate cases in order to avoid confusion. In the F. I. R. enclosed as Annexure 1. the amount had not been disclosed, hence the interim order obtained on that basis is not being followed. Considering all the above, we are not inclined either to quash the F. I. R. or to stay the arrest of the petitioner. The petition is, accordingly, dismissed. " 8. Therefore, it appears that the stand taken by the Investigating Officer for assigning separate crime numbers in order to avoid confusion has met with the approval of another Division Bench of this Court which had passed the order dated 21. 5. The petition is, accordingly, dismissed. " 8. Therefore, it appears that the stand taken by the Investigating Officer for assigning separate crime numbers in order to avoid confusion has met with the approval of another Division Bench of this Court which had passed the order dated 21. 5. 2007 vacating the interim order of stay that the co-accused petitioner had obtained in that case and which thereupon after vacating the stay of arrest, dismissed the petition and refused to quash the F. I. R. Notably there has been no challenge to the aforesaid order before the Apex Court which has been allowed to become final. 9. Learned Counsel for the petitioner, however, tried to state that even subsequent to this order, the same Bench headed by Honble Sushil Harkauli, J. had again stayed the arrest on the same ground. However, he has not been able to draw our attention to any such order and in any case a final order dismissing the petition for reasons mentioned therein would prevail over any interim order. Even otherwise for the technical irregularities in the investigation, if at all, which caused no prejudice to any accused, we find no ground for quashing the F. I. R. and criminal proceedings merely because separate crime numbers have been assigned to different cases. At the stage of charge, it is always open for the petitioner to raise any plea for joint or separate trials, if it is legally permissible and certainly on the mere ground that separate crime numbers have been assigned, the F. I. R. cannot be quashed. 10. The second contention raised by the petitioners Counsel was that the charge-sheets in various cases have been filed hurriedly in a mala-fide manner owing to pressure of this Court, because a Bench passed an order in this petition on 11. 10. 2007. We do not agree with this submission. In an order passed by a Division Bench consisting of one of us Honble Amar Saran, J. and Honble S. K. Jain, J. it was only observed that as the matter appeared to be iii the nature of a scam, which fact is borne out by the allegations that there had been embezzlement to the tune of Rs. In an order passed by a Division Bench consisting of one of us Honble Amar Saran, J. and Honble S. K. Jain, J. it was only observed that as the matter appeared to be iii the nature of a scam, which fact is borne out by the allegations that there had been embezzlement to the tune of Rs. 8,44,00,000 of the Bank by the petitioner and the other accused as a charge-sheet had been submitted in the case of the main accused R. D. Sharma, we saw no reason why the investigation was not concluded, even though the F. I. R. was dated 1. 5. 2004 against the rest of the accused including the petitioner. We, therefore, directed the Investigating Officer to be present in Court and to explain why the investigation had not been concluded in these circumstances and warned him of taking of serious view in the event of any future lapse. We do not think that this has resulted in any undue pressure on the Investigating Officer to submit the charge-sheets. There are other orders on the record, which have been filed in this writ petition, such as an order dated 28. 6. 2005 passed by a Bench of Honble Anjani Kumar, J. and Honble A. P. Sahi, J. directing the Investigating Officer to conclude the investigation within three months and another order to the same effect passed by a Bench of Honble Imtiyaz Murtaza, J. and one of us Honble Amar Saran, J. dated 11. 5. 2005 to the same effect. Otherwise too there is absolutely no justification for the investigation to be prolonged for such a long time especially when a charge-sheet had already been submitted against one of the accused R. D. Sharma implying that the I. O. had been satisfied that a prima facie offence was disclosed by the investigation. For all these reasons there is no force in this submission. 11. Thirdly, it has been argued that in many matters the petitioners had paid back the loan which they had taken or had agreed to pay back the loan money, and some no dues certificates have been obtained in some cases hence no offence was disclosed. It was further contended that it was wrongly alleged that the petitioner B. D. Sharma was a Director in the Bank. It was further contended that it was wrongly alleged that the petitioner B. D. Sharma was a Director in the Bank. We think all these are questions of fact which can only be raised during the trial of the case when the petitioner could lead evidence in defence. Even in an application under section 482 Cr. P. C. these submissions by way of defence cannot be considered. Moreover subsequent repayment of a loan and obtaining of a no-dues certificate or agreement to pay back a loan cannot wipe out the character of criminal offence, if the same was initially committed by forging documents and indulging in other illegalities. 12. It was finally argued that the proceedings in criminal Misc. Application No. 15406 of 2005 had been stayed in the case of Ravi Dutt Sharma by a Single Judge Honble Mrs. Poonam Srivastava, J. by an order dated 21. 10. 2005 in case crime No. 221 of 2004. On perusal of the order, we find that although time was granted for filing a counter affidavit on 21. 10. 2005, but no counter affidavit has been filed, and the grounds for staying the proceedings are contained in the third paragraph of the said order, which reads as follows:- " It is submitted that for the same offence, two first information reports have been registered, one at case crime No. 23 of 2004 dated 14. 1. 2004 in which the investigation is still continuing and subsequent first information report has been registered at case crime No. 221 of 2004 dated 1. 5. 2004. The charge sheet has been submitted in subsequent first information report i. e. in case crime No. 221 of 2004. It is further submitted that the complete inquiry was conducted and on the basis of the inquiry report, the present first information report has been registered, which is also basis of previous first information report. " 13. We think that the aforesaid ground has already been met by the Division Bench decision of Honble Sushil Harkauli and Honble A. K. Singh, JJ. by a final order dated 21. 5. 2007 alluded to hereinabove, where it was observed that there was-no problem in assigning separate crime numbers considering the mammoth amount of the embezzlement and the fact that the crimes extended over a period of time. by a final order dated 21. 5. 2007 alluded to hereinabove, where it was observed that there was-no problem in assigning separate crime numbers considering the mammoth amount of the embezzlement and the fact that the crimes extended over a period of time. Also, if there are any objections about any duplication of the investigation, or about any error in the charge sheet which is likely to cause prejudice, all these objections can be raised before the Trial Court at the appropriate stage. In "state of Maharashtra v. Sharadchandra Vinayak Dongre, 1995 (32) ACC 25 (SC)," it has been observed that even if there are any irregularities in the submission of the charge sheet, which is described as an incomplete charge sheet by the police, or the police seeks time to file a supplementary charge sheet, the Magistrate is not precluded in taking cognizance on the basis of the incomplete charge sheet, and the label put on the charge sheet by the police is immaterial. Quite appositely it has been observed in para 7 in the aforesaid law report that: we cannot persuade ourselves to accept the view of the High Court that if the investigating officer terms a police report as "incomplete," it takes away the jurisdiction of the Magistrate to take cognizance of the offence, even if in the opinion of the Magistrate, the material is sufficient for him to be satisfied that it was a fit case for him to take cognizance of the offence. The Magistrate is not bound by the label given to the report or the charge-sheet by the investigating officer and it is for him to decide whether the report and the material on which it is based is sufficient for him to take cognizance or not. It is pertinent to notice that the police report submitted before the Chief Judicial Magistrate did not even say that it was an "incomplete" charge-sheet or police report. The High Court was, therefore, not at all justified in opining that since the charge-sheet on the prosecutions own showing was "incomplete," the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. 14. No legal impediment also on a Division Bench disposing of the application under section 482 Cr. The High Court was, therefore, not at all justified in opining that since the charge-sheet on the prosecutions own showing was "incomplete," the Chief Judicial Magistrate could not have taken cognizance and quash the order of the CJM taking cognizance of the offence. 14. No legal impediment also on a Division Bench disposing of the application under section 482 Cr. P. C. , which was directed to be tied up with this bunch of writ petitions by an order passed by an earlier Division Bench of Honble S. S. Kulshrestha, J. and Honble A. K. Roopanwal, J. dated 5. 4. 2007, was pointed out by the learned Counsel for the petitioner. Furthermore, we have already observed that a prima facie offence is disclosed on the F. I. R. and the defence material can only be considered at the appropriate stage during trial and the same cannot be taken note of in an application under section 482 Cr. P. C. In these circumstances we do not need to await any counter affidavit to be filed to the application under section 482 Cr. P. C. We are accordingly disposing of the 482 Cr. P. C. application also on merits, by observing that we find no force in the same. 15. In this view of the matter, the present and all connected writ petitions and the application under section 482 Cr. P. C. are dismissed as devoid of merit. 16. The interim orders are vacated forthwith. As the matter has remained pending for a long time, we now direct the Trial Court to conclude the trial within six months, if possible. Registry is directed to communicate this order to the Trial Court within three weeks. Petitions Dismissed. .