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2008 DIGILAW 1010 (CAL)

K. R. R. Nair v. State

2008-11-20

ASHIM KUMAR BANERJEE

body2008
JUDGMENT:- (1.) The petitioner is working as Chief Fire Officer under the Administration. He was implicated in a criminal case. He approached the Chief Judicial Magistrate with a prayer that the case should not be proceeded with as the charges were so vague it would lead to an obvfous result of acquittal. Learned Chief Judicial Magistrate rejected his prayer. He filed a revisional application before learned Sessions Judge where he was unsuccessful. He filed ah application before this Court inter alia challenging the order of the Chief Judicial Magistrate so merged in the order of learned Sessions Judge. (2.) " In course of hearing, Mr. Mandal appearing for the prosecution raised a point of maintainability as according to him, in view of Section 399 of the Code of Criminal Procedure once revisional application was rejected by learned Sessions Judge High Court was not entitled to interfere with the same. (3.) On such plea being taken, the petitioner withdrew his application with liberty to take appropriate steps. Such leave was granted. (4.) With the leave of this Court, petitioner has now come up inter alia praying for quashing of the charge-sheet under Section 482 of the Cr.P.C. (5.) On perusal of the pleadings as well as the documents it reveals as follows: Petitioner while working as Chief Fire Officer instructed an inspection team which was on tour to Hyderabad for the purpose of inspection of some equipments to be supplied by M/s. Andrew and Sons to the effect that since they were already in Hyderabad they should inspect three trailer fire pumps which were ready for inspection to be supplied by the said firm M/s. Andrew and Sons. On such telephonic instructions, the inspection team inspected the pumps and submitted report. (6.) On the issue of report however there was some controversy, as according to the prosecution, the report was prepared at Port Blair after the inspection team had come back from Hyderabad whereas the petitioner contends that report was prepared at Hyderabad however, the inspecting team put their signature after coming back to Port Blair. (7.) Be that as it may, on the basis of such inspection report payment was made to M/s. Andrew and Sons at the time when the pumps were not delivered to the administration. The fact remains, pumps were delivered much after. (7.) Be that as it may, on the basis of such inspection report payment was made to M/s. Andrew and Sons at the time when the pumps were not delivered to the administration. The fact remains, pumps were delivered much after. On an enquiry being made it was found that the pumps were working with minor problems as would appear from the inspection report. (8.) The criminal case was initiated by the Administration against the petitioner inter alia on the ground that he persuaded the inspection team to submit a report and he persuaded accounts department to pass the bill of the firm on the basis of purported inspection report which according to the prosecution, was a forged document. (9.) Second allegation was that he passed bill for consumption of diesel by signing logbook for running of the said trailer pumps when those trailer pumps were in fact not delivered to the Administration. (10.) Page 47 is the inspection report annexed to the petition. The prosecution contends that signature of R. P. Yadav and Sasanka Paul are not in dispute. However, in place where P. Surendra Rajan, Works Manager of Andrew and Sons was to sign, Mr. Andew a partner of the said firm signed. (11.) In this backdrop upon perusal of the relevant provisions of the Indian Penal Code, I do not find any cognizable offence committed by the petitioner. (12.) Section 463 of the I.P.C. stipulates, if any false document is made to support any claim with intent to commit fraud it would amount to forgery. "Making of false document" has been defined under Section 464 of I.P.C. where it inter alia provides that if any person dishonestly or fraudulently makes, signs, seals or executes a document with the, intention of causing it to be believed that such document was made signed, sealed, executed and transmitted by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed. (13.) Out of three signatures two are not in dispute. Both Sasanka and Yadav admitted that they had signed. (14.) We are then concerned only with the signature of Surendra Rajan, Works Manager of the firm which supplied the equipments. In place of Rajan Andrew signed. Andrew is the partner of the firm. He is superior to Rajan in hierarchy. Neither the said firm nor Mr. Both Sasanka and Yadav admitted that they had signed. (14.) We are then concerned only with the signature of Surendra Rajan, Works Manager of the firm which supplied the equipments. In place of Rajan Andrew signed. Andrew is the partner of the firm. He is superior to Rajan in hierarchy. Neither the said firm nor Mr. Andrew nor Rajan disputed the said signature. (15.) I am unable to find out as to how this document could be said to be a "forged document". (16.) Petitioner was charged with the offence under Section 468 which inter alia provides that if any person commits forgery he shall be punished with imprisonment. I have just now discussed the provision of Sections 463 and 464 of I.P.C. to find out what "forgery" means. With my understanding of law, the document at page 47 cannot be said to be a "forged document". (17.) On that basis, if a criminal case is allowed to be proceeded with the petitioner would unnecessarily be harassed. (18.) Second allegation was signing of the logbook. Xerox copies of the logbook were produced wherein it appears that the petitioner had passed use of certain quantity of diesel. It was not meant for any vehicle or pumps. I am unable to find out any reasonable cause under which this logbook could be set up as evidence as against the petitioner to support the allegation that he intentionally passed out consumption of diesel for being used in the pumps being the subject matter of the present petition. (19.) Petitioner has also been charged with the provisions of Sections 409, 420 and 471 of I.P.C. In the instant case, as per the agreement, payment was to be made upon satisfactory inspection. Accordingly, payment was made which was passed by the higher authority. Petitioner was only charged for the offence alleged in the charge-sheet. Neither Yadav nor Sasanka was made co-accused. I am unable to find out any reason how petitioner could be charged with the allegations of cheating unless Yadav and Sasanka helped him and obliged him by signing the inspection report without any inspection. (20.) The authority after delivery of the pumps conducted an inspection and found those running satisfactorily. (21.) Mr. Mandal however submits that initially a defect was found in the pumps which was later on repaired. This cannot be a subject matter of a criminal proceeding. (20.) The authority after delivery of the pumps conducted an inspection and found those running satisfactorily. (21.) Mr. Mandal however submits that initially a defect was found in the pumps which was later on repaired. This cannot be a subject matter of a criminal proceeding. (22.) The matter can be viewed from another angle. This was an incident of 2003. Uptil now petitioner was not proceeded with departmentally. Yadav and Sasanka were also not proceeded with departmentally. The allegations were in the nature which deserved a departmental enquiry. If the petitioner unusually favoured Andrew and Sons it was a major offence and deserved a departmental enquiry. The authority did not proceed against him. (23.) When the authority does not wish to proceed against him departmentally and when the authority did not proceed against Yadav and Sasanka I am unable to find out how this criminal case, even prima facie can be held to be maintainable. (24.) Mr. Mandal appearing for the prosecution while opposing the application contends that it is not a rarest of rare case where the prosecution should be debarred from proceeding as against the petitioner on the basis of the charge-sheet. In case, prosecution fails to prove the charges, the petitioner would come out with an honourable acquittal. For that at this preliminary stage, this Court should not exercise its discretion under Section 482 of Cr.P.C. (25.) In support of his contention Mr. Mandal relies on the Apex Court decision in the case of State of U.P. v. Pirthi Chand and Anr. reported in (1996)2 SCC 37 . Paragraph 12 of the said being relevant herein, is quoted below: "12. It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence -the Court may embark upon the consideration thereof and exercise the power." (26.) The Apex Court was of the view that the Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. (27.) In the instant case, as discussed above, if I take the allegations mentioned in the charge-sheet on their face value, I would find no cognizable offence committed, as it did not disclose enough material to book the petitioner under Sections 409/420/468/471 of the I.P.C. (28.) In my considered view, at best petitioner could be proceeded with departmentally for dereliction of duty by unusually favouring a supplier. The department has chosen not to proceed against him departmentally although considerable time has passed in the meantime. (29.) I feel that if this proceeding is allowed to continue it would add to unusual misery and hardship to the petitioner. The department has chosen not to proceed against him departmentally although considerable time has passed in the meantime. (29.) I feel that if this proceeding is allowed to continue it would add to unusual misery and hardship to the petitioner. (30.) The charge-sheet impugned herein is quashed and set aside. (31.) This order is passed only in respect of the petitioner and not other co-accused, if any. (32.) There will be no order as to costs. (33.) Operation of this order would, however, remain stayed for eight weeks from date. Prosecution, however, is requested not to proceed with the case in the meantime.