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2007 DIGILAW 509 (JHR)

Umesh Chandra Chaudhary v. State Of Jharkhand

2007-06-26

DABBIRU GANESHRAO PATNAIK

body2007
ORDER D.G.R. Patnaik, J. 1. The petitioner in this application has prayed for quashing the entire criminal proceedings initiated against him pursuant to the order of cognizance dated 20.2.2002 which is presently pending in the Court of Sri Vijay Kumar Srivastava, Judicial Magistrate, 1st Class Dhanbad vide GR No. 2007 of 1992 arising out of Dhanbad P.S. Case No. 337 of 1992 for the offences under Sections 420/467/468/34 of the Indian Penal Code. 2. The case was registered on the basis of a written report of the opposite party No. 2 at the police station. The allegations in the written report are that the informant was a Science Teacher in the DAV High School, Tasara (Pathardih) Dhanbad and he was authorised by the Head Master of the School to present at the Government Treasury Dhanbad, the bill for the amount of salary payable to the teachers of the School. He presented the bill at the Dhanbad Treasury by delivering the same to the preset petitioner who was then posted as an Assistant in the Government Treasury. It is alleged that after receiving the bill, the petitioner advised the informant to come on 7.5.1992 for taking back the bill after clearance by the Treasury Officer. The informant went to the Treasury office on 7.5.1992 and 8.5.1992 but on those dates, the petitioner was found on leave. It is further stated that on 11.5.2002, the informant along with the Head Master of the School came to the Treasury and on that date also, the petitioner was found on leave. However, on 14.5.1992, when the informant along with the Head Master visited the petitioner at the Treasury office and demanded return of the bill from the petitioner, they were asked by the petitioner to submit another bill, but later, he disclosed that the advice for payment of the bill amount was already forwarded to the State Bank of India vide Advice No. 3424, dated 2.5.1992. The informant thereafter came to the bank where he learnt that the total amount of the bill for Rs. 44,032/-was already encashed under the forged signature of the informant. The informant thereafter came to the bank where he learnt that the total amount of the bill for Rs. 44,032/-was already encashed under the forged signature of the informant. The informant alleges further that under pressure of the Head Master of the School and in view of the legal complications and to save his own service, he deposited the entire amount with the Head Master on 18.5.1992 and on such pressure, he had also executed some documents as per the dictates of the Head Master, the contents of which he does not remember. The informant has claimed that the head Master and the Head Masters his son along with the present petitioner had connived together and had dishonestly withdrawn the bill amount from the bank by forging informants signatures. 3. After investigation, the police submitted final report on 26.11.1992. However, on the basis of a protest petition filed by the informant the learned CJM directed the police to reinvestigate the case and pursuant to the order further investigation was conducted and charge-sheet was submitted after about ten years, on 10.2.1992 against the petitioner as well as against the Head Master and other accused persons on the basis of which the learned Court below by its order dated 20.2.2002 had taken cognizance of the offences under Sections 420/467/468/34, IPC and issued summons to the accused persons, including the petitioner to face trial. 4. A supplementary affidavit has been filed by the petitioner along with certain Annexures stating therein that the informant had subsequently filed a Money Suit No. 4 of 1995 for a decree of the same amount against the Head Master of the School, the present petitioner and the officials of the State Bank of India with the same allegation that the bill amount was encashed from the bank under forged signatures of the informant. The suit was contested by the petitioner and the other defendants. One of the issues in the suit was whether the defendants including the petitioner had defalcated the money and whether the plaintiff is entitled to recover the same. Upon thorough discussion of the entire evidence adduced on the issue, the learned Subordinate Judge recorded his findings that the defendants had not defalcated the alleged amount and had dismissed the suit. 5. Upon thorough discussion of the entire evidence adduced on the issue, the learned Subordinate Judge recorded his findings that the defendants had not defalcated the alleged amount and had dismissed the suit. 5. The petitioner in support of his player for quashing the criminal proceedings has advanced the following grounds: (i) that the informant has filed the case inter alia with mala fide intention to cause undue harassment to the petitioner by suppressing the material facts and misleading the Court to act upon incomplete statements and misrepresentation and therefore the continuance of the proceedings is an abuse and misuse of the process of the Court; (ii) that the informant had himself withdrawn the bill amount from the bank and on being confronted, he had accepted by a written acknowledgement addressed to the headmaster of the school that he had encashed the bill amount and had utilized the same for personal expenses and had subsequently deposited the entire amount with the Head Master so that the salaries to the teachers could be disbursed. Such acknowledgement was made in presence of the teachers of, the school who had agitated before the Head Master for the delay in disbursement of their salaries; (iii) that the petitioner being a clerk at the Treasury office had no role to play except processing the bill received at the Treasury, for being sanctioned by the Treasury Officer for payment; (iv) that even according to the allegations in the FIR, the informant had merely suspected that the bill amount was encashed by some unknown person with possible connivance of the petitioner and in absence of any cogent and reliable evidence collected in course of the investigation, the petitioner could not have been made liable for the f withdrawal of the money from the bank. 6. The main ground advanced by the petitioner as mentioned above is that the FIR was lodged with malajide intention by suppressing the materials fact. Learned Counsel for the petitioner has pointed out that admittedly, the informant was authorized not only to present the bill at the Treasury, but also to withdraw the cash from the bank on the basis of the bill after clearance from the treasury. Learned Counsel for the petitioner has pointed out that admittedly, the informant was authorized not only to present the bill at the Treasury, but also to withdraw the cash from the bank on the basis of the bill after clearance from the treasury. Admittedly, the bill was encashed from the bank which suggests that the bank had paid the money after being satisfied that the person who had appeared for receiving the payment, was duly authorized and such satisfaction could be made by the bank officials only after having tallied signature of the authorized person as appearing in the bill. Learned Counsel further explains that none of the bank officials has been made accused in this case, nor is there any allegation in the FIR that the bank officials had in any manner connived with the petitioner and had paid the bill amount to some other person. The investigation into the informants allegation which had taken more then ten years to conclude, also does not indicate that the petitioner had paid the amount of bill to some person other than the informant even on the basis of the alleged discrepancy in the signatures of the person who had received the cash, from the bank. Learned Counsel explains further that the same issues were discussed and threshed thoroughly in the money suit and the allegations of the informant against the petitioner have been disproved and rejected by the competent Court in the money suit. Learned Counsel for the opposite party No. 2 explains that according to the procedure laid down in the Jharkhand Treasury Code, the signature of the messenger has to be obtained in the messenger register at the time when the bill after clearance by the treasury officer is handed over to the messenger. The fact that the messenger register does not contain the signature of the informant disproves the claim of the petitioner that he had handed over the bill after clearance by the Treasury Officer to the petitioner. 7. The informant/opposite party No. 2 has filed his counter-affidavit wherein he has denied nd disputed the entire grounds of the petitioner claiming that the grounds are wholly misconceived, misleading and not acceptable. 8. Learned Counsel appearing for the opposite party No. 2 explains that admittedly, the informant was authorized by the Head Master of the school to submit the bill at the treasury office at Dhanbad. 8. Learned Counsel appearing for the opposite party No. 2 explains that admittedly, the informant was authorized by the Head Master of the school to submit the bill at the treasury office at Dhanbad. Admittedly, the informant had handed over the bill to the petitioner at the Treasury Office. The consistent case of the informant is that the petitioner did not promptly return the bill after clearance by the Treasury Officer and instead he had asked the informant to collect the bill on the next date, but had intentionally absented himself from duty for a week and thereafter, disclosed that the advice for payment of bill was forwarded to the bank and the amount was already encashed from the bank. Learned Counsel submits that the learned Court below had perused the police report and the materials placed before it and being satisfied that the materials do make out a prima facie case for the offences, took cognizance of the offences and issued summons to the accused persons on the basis of the police report. 9. On going through the contents of the FIR, it would appear that the allegations are clear and specific that the informant was authorized to submit the bill at the treasury and to collect it from the bank and that he had handed over the bill to the petitioner. But after clearance by the Treasury Officer, the bill was not returned to him by the petitioner. The bill was encashed from the bank by some person other than the informant without his knowledge. It further appears that though the police had earlier submitted a final report in favour of the accused but later, on further investigation pursuant to the direction of the learned Chief Judicial Magistrate, the police did submit charge-sheet recommending trial against the petitioner, the Head Master and the son of the Head Master for the aforesaid offences. On bare reading of the allegations in the FIR, there appears materials to suggest a prima facie case for the offences and in this view of the matter, it cannot be said that the order of cognizance passed by the learned Court below is improper or suffers from any defect on account of non-application of judicial mind. 10. On bare reading of the allegations in the FIR, there appears materials to suggest a prima facie case for the offences and in this view of the matter, it cannot be said that the order of cognizance passed by the learned Court below is improper or suffers from any defect on account of non-application of judicial mind. 10. The grounds advanced by the petitioner that the case has been filed with mala fide intention suppressing the material fact is based on certain documents purportedly executed by the informant wherein he had purportedly acknowledge to have encashed the bill from the bank and had later deposited the amount of the, bill with the Head Master of the school. The informant in his allegations in the FIR has stated that the documents referred to were in fact obtained from him way of coercion and on exerting undue pressure against his will and consent and he was compelled to deposit the amount with the head master by coercive methods. It is therefore obvious that the ground of mala fide as advanced by the petitioner are grounds by way of his defence which could be considered only at the trial. Learned Counsel argues that since the same allegations were also raised in the money suit by the informant and the same issues regarding the guilt of the petitioner was considered and the suit was dismissed on the ground that the informant has not been able to establish that the petitioner had defalcated the amount, the continuation of the proceedings for re-consideration of the same issues by the criminal. Court would be abuse of the process of the Court. As observed above, there being no defect or impropriety in the order of cognizance as recorded by the learned Magistrate, the issue as to whether the petitioner could be proceeded against and put on trial for the offence calls for consideration at a later stage which follows after cognizance of the offence. The first such stage would be available to the petitioner at the time of framing charge and he would have an opportunity to agitate before the trial Court on the basis of all the materials that may be available on record. 11. The first such stage would be available to the petitioner at the time of framing charge and he would have an opportunity to agitate before the trial Court on the basis of all the materials that may be available on record. 11. A criminal proceeding initiated pursuant to valid order of cognizance for the offences cannot be quashed on the sole ground of mala fide, unless there are materials to suggest that the continuation of the proceeding would result in grave injustice and would be an abuse of the process of the Court. 12. In view of the above discussions, I do not find any reasonable grounds to quash the criminal proceedings pending against the petitioner. The petitioner may raise his grounds before the learned Court below at the trial at the appropriate stage on the basis of the materials available on record. With these observations, this application is disposed of. The order of stay granted by order of this Court dated 25.8.2004, stands vacated.