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2008 DIGILAW 1353 (PNJ)

Meera Wadhwa v. Gian Chand Gupta

2008-08-11

AJAI LAMBA

body2008
JUDGMENT Ajai Lamba, J 1. This petition filed under Section 482 Cr.P.C. seeks quashing of complaint dated 5.5.2004 (Annexure P-10) titled ‘Gian Chand Gupta vs. Meera Wadhwa, Manager, Haryana Financial Corporation’ and order dated 20.11.2004 (Annexure P-11) whereby the petitioner has been summoned to stand trial for committing offences under Sections 167, 420, 477-A IPC. 2. Learned counsel appearing for the petitioner has contended that the complaint and subsequent proceedings are liable to be quashed as it has been filed after a delay of 8 years and 4 months of the cause of action, if any, accruing in favour of the respondent-complainant. 3. The second argument is that the petitioner had acted in official capacity on behalf of the Haryana Financial Corporation. The petitioner being a public servant within the meaning of Section 21 IPC cannot be proceeded in a criminal complaint such as the present one. 4. The third argument of the learned counsel is that the complaint is not maintainable. The respondent had earlier filed a criminal complaint with the same allegations in regard to the same incident. It was dismissed for non-prosecution. The present complaint has been filed while concealing the factum of the earlier complaint only so as to harass the petitioner. 5. The fourth argument is with regard to the same incident. Earlier a civil suit was filed. A case was filed with the District Consumer Disputes Redressal Forum. All these proceedings have been carried on the criminal and civil side only so as to harass the petitioner. The proceedings are clear abuse of process of law and process of Court. 6. Learned counsel appearing for the respondent-complainant has contended that there has been no delay in filing of the complaint in so much as the respondent-complainant has been pursuing the remedies available to the respondent all-through this period. It has also been contended by the learned counsel that the petitioner has been proceeded against in a private capacity and not as an officer. It was the petitioner-accused who had not disbursed the loan and therefore, the institution could not be blamed for the private actions of the petitioner. 7. With regard to earlier filing of complaint on the criminal side, filing of civil suit and filing of complaint before the District Consumer Disputes Redressal Forum, the facts have been admitted as being matter of record. 8. 7. With regard to earlier filing of complaint on the criminal side, filing of civil suit and filing of complaint before the District Consumer Disputes Redressal Forum, the facts have been admitted as being matter of record. 8. The facts, on perusal of the record, are that M/s Nav Jyoti Agro Chemicals Private Limited of which respondent, Gian Chand Gupta is the Director, applied for loan of Rs.17 lac. The loan was sanctioned on 12.4.1994. Disbursement of Rs.4 lac was sought for a diesel engine and a bill for Rs.2,02,000/-was submitted. 9. A cheque for a sum of Rs.3,40,000/-was prepared. Before the cheque could be handed over to the respondent-complainant, the petitioner was asked by her senior officers to conduct an enquiry. The petitioner submitted her report dated 14.1.1996 (Annexure P-16) and on the strength of the report, she recommended to the Corporation that the cheque be not released. Running sheet No.35 of the report is the relevant portion which has been endorsed by the petitioner. It reads as under:- “As per BM’s orders I have visited the Supplier of G.Set namely M/S Venus Electricals Indus, Delhi. During discussions with the Supplier it gathered that the Gen. Set of Shaktiman make are not new available, but these are acquired through Military in auction, after that it is assembled from the parties to purchase it from military. The party further yet to submit the original bill of the Gen. Set as the earlier submitted by it was challan and it was inadvertently considered by me as a bill. It is, therefore, recommended that in the meantime we may cancel the Cheque and advise the party to clear the above remarks. Submitted for orders please. Sd. Meera Wadhwa 14.1.1996” 10. A perusal of the aforementioned portion of the file with regard to which the criminal acts have been alleged indicates that the petitioner had only recommended certain action. It was on the instructions of Branch Manager that an enquiry was conducted whereupon recommendations were made. It was or he senior officers to either accept the recommendations or to reject. This part of the matter has not been disputed by the learned counsel for the respondent complainant. 11. The respondent filed a criminal complaint dated 28.7.1999 which has been placed on record as Annexure P-1. The complaint is with the same allegations as in the complaint impugned in this petition. This part of the matter has not been disputed by the learned counsel for the respondent complainant. 11. The respondent filed a criminal complaint dated 28.7.1999 which has been placed on record as Annexure P-1. The complaint is with the same allegations as in the complaint impugned in this petition. Be that as it may, the complaint was dismissed for non prosecution vide order dated 25.3.2000, Annexure P-3. Perusal of the order, Annexure P-3 shows that no affidavit on behalf of the complainant was filed nor the complainant appeared at the stage of preliminary evidence. 12. The respondent-complainant did not stop here. Rather he filed a civil suit on 14.2.1998, the plaint whereof has been placed on record as Annexure P-4. Although only Haryana Financial Corporation has been impleaded as a defendant, however, serious allegations of malafide and of demanding illegal gratification have been made in the plaint. It seems that the Haryana Financial Corporation took the matter seriously and filed written statement. Para 3 and 4 of the written statement i.e. relevant portion wherein allegations were made against the petitioner, have been reproduced in the body of the petition in para 6. The contents of written statement are relevant to be considered and read as under:- “PARA 3: That the contents of para No.3 of the plaint are admitted to the extent that amount of Rs.3,77,000/-was released on 21.10.94 and an amount of Rs.3,75,000/-was released on 1.12.1994. It is wrong to say that the plaintiff demanded Rs.4,00,000/-for the purchase of Kirlosker diesel engine in the month of December. The plaintiff requested for purchase of Shaktiman Diesel Engine generator set from Venus Electric Industries. The Branch Manager asked Smt. Mira Wadhwa who was dealing the case to verify proper supply of Generator Set and Pulverise and the cost paid by the plaintiff is reasonable before making the payment. Smt. MiraWadhwa visited M/s Venus Electrical Industries Delhi. The supplier of Shaktiman Diesel Engine Generator Set. She came to know through the Supplied that new Shaktiman Generator Sets are not available in market, but they are acquired through the auction from the Military and such they are sold to the purchaser on his request for the purchase of Shaktiman Generator set was declined. It is vehemently denied that Smt. Mira Wadhwa kept the cheque in her bag and demanded and type of gratification from the plaintiff. It is vehemently denied that Smt. Mira Wadhwa kept the cheque in her bag and demanded and type of gratification from the plaintiff. The plaintiff has levelled a baseless allegation on Smt. Mira Wadhwa because she made the correct report about the supply of Shaktiman Generator set which did not suit the plaintiff as he wanted to purchase a second hand generator set by producing false bill of new generator set, when Smt. Hira Wadhwa refuse to oblige him he started making baseless allegation against her for she would file separate complaint against the plaintiff. It is wrong to say that the cheque was cancelled by Smt. Mira Wadhwa. The cheque was cancelled by the Branch Manager after verifying the facts. The cheque was for both Generator set and Pulverise and such that was cancelled. PARA 4: That the contents of para No.4 of the plaint is admitted. That the plaintiff complained against Smt. Mira Wadhwa who is the officer of Haryana Financial Corporation posted at Branch Office Rohtak. But this complaint was false and baseless in order to Pressurise Smt. Mira Wadhwa Assistant Manager. It is wrong to say that the subsidy was not released by defendant No.1 being prejudices due to complaint of Smt. Mira Wadhwa. The subsidy was not released because the plaintiff did not fulfilled all the requirement for releasing the subsidy even otherwise the subsidy has been released when the plaintiff has fulfilled all the requirement for releasing the subsidy. The plaintiff has not put to any loss by the defendant. The loss if any is due to the acts of the plaintiff. The amount subsidy is not Rs.2.50 lac. If the plaintiff could not get the electric connection the defendants are not responsible for that. The rest of the para is denied for want of knowledge even as otherwise it is the duty of the plaintiff to create funds for the smooth functioning of the unit.” (Emphasis added) 13. Gist of the reply is on the basis of the noting sheet noticed in earlier part of the judgment. The stand of Haryana Financial Corporation further was that baseless allegations have been made against the petitioner. It has been denied by the Haryana Financial Corporation that the cheque was cancelled by the petitioner. The stand of Corporation rather is that the cheque was cancelled by the Branch Manager after verifying the facts. The stand of Haryana Financial Corporation further was that baseless allegations have been made against the petitioner. It has been denied by the Haryana Financial Corporation that the cheque was cancelled by the petitioner. The stand of Corporation rather is that the cheque was cancelled by the Branch Manager after verifying the facts. It has also been brought out that the complaints were made against the petitioner (in this petition) in order to pressurise her. 14. Be that as it may, the suit was withdrawn by way of making a statement. The order passed by the Civil Court has been placed on record as Annexure P-5 and is dated 21.7.1999. The relevant portion of the order reads as under:- “In view of statement made by learned counsel for plaintiff, the suit is dismissed as withdrawn. No ground has been made out for granting permission to institute fresh suit.” 15. Surprisingly, the respondent did not stop here and filed yet another civil suit against the Haryana Financial Corporation despite the fact that permission to institute fresh suit was not given. The plaint has been placed on record as Annexure P-6. Filing of the earlier suit was concealed. It needs particular mention that again allegations of demanding illegal gratification have been made against the petitioner. The civil suit was not pursued and the same was accordingly dismissed in default vide order dated 3.1.2001, Annexure P-7. 16. The respondent thereafter filed a complaint before the District Consumer Disputes Redressal Forum, Jhajjar, wherein, alongwith Haryana Financial Corporation, even the petitioner was arrayed as party. Same allegations were made as made in the earlier cases. The allegation of demanding illegal gratification was yet again made. The case, however, was dismissed by the Forum vide Order dated 16.3.2004, Annexure P-9. 17. Perusal of the order indicates that the respondent withdrew the complaint against the Haryana Financial Corporation, however, ursued it against the petitioner. The Forum, owever, ordered that the complaint as against the petitioner was not maintainable and was dismissed as such. 18. Consideration of facts above noticed clearly shows that the respondent-complainant had a cause of action (if any) on the recommendations on cancellation of the cheque on 14.1.1996. As against this, the present complaint has been filed on 5.5.2004 i.e. after 8 years and 4 months (approximately). 18. Consideration of facts above noticed clearly shows that the respondent-complainant had a cause of action (if any) on the recommendations on cancellation of the cheque on 14.1.1996. As against this, the present complaint has been filed on 5.5.2004 i.e. after 8 years and 4 months (approximately). The complaint is clearly belated and continuance of the same would result in abuse of process of Court and process of law, and therefore, the inordinate delay in itself would be a legally tenable reason to quash the complaint and the proceedings. 19. Perusal of the facts would show that the petitioner had been directed by the Branch Manager to conduct an enquiry. In discharge of official duties of the petitioner, enquiry was conducted and report was submitted on 14.1.1996 as has been reproduced in earlier part of the judgment. Clearly the petitioner was not even in a capacity to take decision and had only recommended action. The action had been recommended for reasons given in the noting itself. 20. Even if the facts alleged are admitted to be correct, the record established that the petitioner has not committed any offence. The petitioner has discharged her duties as directed. The action that aggrieved the respondent was that of the Corporation. The petitioner is a mere functionary at a junior level. All the allegations made in various forums have not been substantiated. In view of the above also, the proceedings are required to be quashed. 21. The two civil suits (Annexures P-4 and P-6) filed by the respondent were against the Haryana Financial Corporation, and therefore, the respondent was aggrieved by the action of the Haryana Financial Corporation. Despite this admitted fact, not only the allegations with total irresponsibility have been made in the civil suits but also in the criminal complaints and the complaint before the District Consumer Disputes Redressal Forum. 22. The conduct of the respondent clearly indicates that the proceedings were initiated to pressurise the petitioner (a public servant) who had acted only in discharge of her duties as directed by her senior officers. It becomes the duty of the Court to protect a public servant who is victimised by way of abuse of process of Court and abuse of process of law. It becomes the duty of the Court to protect a public servant who is victimised by way of abuse of process of Court and abuse of process of law. In cases such as the present one, the act of arraying the petitioner in person as respondent in various complaints/ making allegations in civil suit without any basis, is required to be not only deprecated but also discouraged. For harassing the petitioner in total abuse of process of Court and of law also, therefore, the proceedings need to be quashed. 23. The action of the respondent is totally vexatious as is made out by filing of the second complaint. The earlier complaint was filed on 28.7.1999 (Annexure P-1). It was dismissed for non prosecution on 25.3.2000 (Annexure P-3). In pursuance of total vexatious action, the present complaint has been filed, however, while concealing the factum of filing of the earlier complaint. 24. Learned counsel appearing for the petitioner in this regard has rightly relied on Yash Pal Sachdeva v. Rajesh Kumar, 1984 Chandigarh Criminal Cases 166. In the said case, it has been held that if the filing of earlier complaint has been concealed, filing of second complaint is an abuse of process of Court. 25. To similar effect is Gram Panchayat/ Gram Sabha of village Kasiana vs. Kaka Singh, 1996(3) RCR (Criminal) 260. In that case also, complainant had lost litigation at all stages in all Courts. While filing the complaint, he did not disclose earlier proceedings, thus it resulted into complete harassment of the petitioners. 26. The contentions of the learned counsel for the respondent, clearly, cannot be accepted that there has been no delay and the respondent-complainant was pursuing the remedies in various forums. The facts need not be repeated to show that the argument is baseless. 27. In view of the above, I am of the considered opinion that complaint, subsequent order of summoning and proceedings are nothing but abuse of process of law. The documents clearly indicate that no offence has been committed by the petitioner who is a public servant. The respondent had approached an institution i.e. Haryana Financial Corporation. The petitioner was merely an Assistant Manager and was given a particular limb of duty which she performed and made recommendations. The acts on which allegations of commission of offence have been alleged, do not even remotely indicate commission of offence. 28. The respondent had approached an institution i.e. Haryana Financial Corporation. The petitioner was merely an Assistant Manager and was given a particular limb of duty which she performed and made recommendations. The acts on which allegations of commission of offence have been alleged, do not even remotely indicate commission of offence. 28. The petition is allowed. The complaint, summoning order and consequent proceedings are accordingly quashed. 29. The conduct of the respondent in harassing the petitioner by way of repeated abuse of process of Court indicates vexatious action. Earlier a criminal complaint was filed but not pursued. Civil suit was filed while making irresponsible and unsubstantiated allegation which was withdrawn without liberty to file afresh. Yet, while concealing filing of earlier civil suit, another civil suit was filed which was also not pursued. Although complaint was not maintainable yet one was filed before Consumer Disputes Redressal Forum and now the criminal complaint at issue has been filed without disclosing filing of earlier similar complaint. It stands established that although cause of action was not available, repeated litigation has been filed before different forums. The misuse of Court process in the manner indicated above is nothing but vexatious action on the part of the respondent. The respondent needs to be discouraged to approach the Court with false and vexatious allegation to drag a public servant in unnecessary litigation. 30. Under the circumstances, the respondent is burdened with costs Rs.10,000/- to be paid to the petitioner.