Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3806 (ALL)

S. P. Jalan v. State

2009-12-17

Y.K.SANGAL

body2009
JUDGMENT: Y.K.Sangal, J. Heard learned counsel for the applicant, learned counsel for the informant and learned AGA for the State and perused the record. This bail application has been moved on behalf of the accused applicant S.P. Jalan who is involved in case crime number 802 of 2009, under Sections 409, 420, 467, 468 and 471 IPC, Police Station Sahibabad, district Ghaziabad. Affidavit, counter affidavit and rejoinder affidavits have been exchanged between the parties. 2. Undisputedly, the applicant was Chairman and informant of the case P.C.Gupta was Secretary of Sanjiv Memorial Education Society, registered under the provisions of Registration Act. An application under Section 156(3) Cr.P.C. was moved by the Secretary of the society P.C. Gupta with the averments that a school in the name of Sanjiv Memorial Public School was being run by the society situated in Sahibabad. With an ulterior motive applicant/ accused, Chairman of the society with an intention to misappropriate the money of the society forcibly changed the name of school as Mayo International School. Mayo International School is another institution situated in Papparganj, Delhi. This school of Papparganj has no relation with the society. An account was opened in the Syndicate Bank branch, Papparganj, Delhi by the Chairman and cheque book was got issued by him in the name of Mayo International School, Shyam Enclave Shalimar Garden Extension of Ghaziabad and account is to be operated by any of them i.e. Either by the Chairman or by the Secretary of the society. Cheque Book and statement of the account were always kept by the accused applicant with him. Whenever informant tried to check the account always not permitted by the accused applicant and Branch Manager was also directed by the accused not to show the detail of the account to the informant. From the other Branch of the Syndicate Bank, the informant collected the details of the account and came to know that in between 11.09.2007 to 12.11.2008 total amount of Rs. 49.75 lacs was withdrawn by the accused-applicant through different cheques on different dates (detail given in the application under Section 156(3) Cr.P.C. by issuing cheques in his own signature and with an intention to play fraud and misappropriate /embazelled this money, transferred the same in the account in th name of other society , as such he committed offence of serious nature causing major loss to the society. An application was moved to S.S.P., Ghaziabad on 16.12.2008 but as no action was taken, so the application under Section 156(3) Cr.P.C. was moved. Under the order of learned Magistrate , case was registered at P.S. Sahibabad on 03.04.2009 and investigation in the matter was started. 3. Learned counsel for the applicant argued that during the course of investigation it was found by the Investigating Officer that not a single penny was transferred by the accused-applicant from this account of the school/society to personal account of the applicant. Only a sum of Rs. 90,000/- (Ninty Thousands) were found withdrawn cash by the applicant which was utilized by him for the expenses of the school under different heads. It was further argued that name of the school was get changed by the informant himself. In affidavit annexed with the application for bail in paragraph 11 of the affidavit detail of utilization of the money withdrawn tried to be given. 4. The affidavit of the applicant was replied by counter affidavit and in paragraph 13 on behalf of the informant that it is said that it is wrong to say that amount was deposited by the accused from the amount withdrawn by the Cheque as above but Rs. 22.70 lacs were received as donation from Sumangalam Shiksha Samiti for the purchase of land in Brij Bihar Scheme and rest amount was also deposited under the scheme which was received by donation. Nothing was taken as loan and no scheme for taking loan was get approved as per scheme of administration of the society . In paragraphs 18 and 19 of the counter affidavit certain other details were also given on behalf of the informant showing that what other amount of the society was embezzled and in what manner the fraud was played and embezzlement was made by the accused and total embezzlement was shown of Rs. 58,83,000/-. 5. Undisputedly, in extraordinary emergency meeting of General Body, the applicant was removed from the Chairmanship of the society on 16.04.2009 and vide order of Deputy Registrar dated 17.10.2009, the informant was authorised to continue to work of the society after removal of the applicant and copy of the order is also filed on behalf of the informant as Annexure no. 3 to the counter affidavit. 3 to the counter affidavit. Learned counsel for the applicant argued that this removal of him was quashed by this court vide order dated 08.07.2009 passed in writ petition no. 33180 of 2009. It was argued on behalf of the informant that order passed by the Deputy Registrar in Annexure -3 is still in force and it has not been challenged and quashed by any court. Learned counsel for the applicant argued that no commission of any offence was found in the matter and the I.O. , has prepared the final report in the mater but all of sudden with ulterior motive, the Circle Officer who was having ill will with the applicant, passed the order for further investigation in the matter and after this order, to give colour to the case during the course of investigation two forged receipts were prepared and produced with the forged signature of the applicant claiming that on two different dates Rs. 25 lacs and Rs. 23 lacs in cash were given to the applicant to deposit the same in the account of the society but the same was not deposited and misappropriated /embezzled by the applicant. No such amount was handed over by P.C. Gupta to the applicant and these receipts were forged. On the other hand receipts were brought on record during the course of investigation and when the applicant had denied his signature and execution of the receipts, both the receipts were sent to Government Laboratory for comparing his signature and writing but due to some technical reasons, report from the laboratory was not received so for getting compared of the signature of the applicant, on receipts with his admitted signature a report from the private expert was obtained who certified that signature on the receipts are similar to the admitted signature of the applicant. In rejoinder affidavit, learned counsel for the applicant argued that there was no need of the private expert report and why the wait was not made of the Government Laboratory not explained. Only by manipulation report of the private expert was obtained. Accused applicant has also obtained a report of an another expert who is more qualified than that of the expert of the informant and he certified that signatures of on the receipts do not tally with the admitted signatures of the applicant. 6. Only by manipulation report of the private expert was obtained. Accused applicant has also obtained a report of an another expert who is more qualified than that of the expert of the informant and he certified that signatures of on the receipts do not tally with the admitted signatures of the applicant. 6. It was further argued that these receipts were in existence as per own case of the applicant when the first information report was lodged. Why these receipts were not mentioned in the first information report and why the statement under Section 161 Cr.P.C. were not taken regarding these receipts, it is not explained. These receipts were brought on record during the course of investigation only when the final report was prepared and submitted to the authorities to give colour to the case. Learned counsel further argued that as these receipts were not detailed in the first information report, these cannot be considered in the investigation of the present case. In reply it was argued that because only these receipts were not mentioned in the first information report, why these cannot be considered in the investigation of the present case,not explained. A report was lodged with the allegations that applicant has played fraud and have misappropriated / embezzled the amount of the society and only some instances were given in the first information report. If during the course of investigation his other mis-deeds to support the case of the first information report comes in the light and investigating officer started investigation on the basis of these two receipts also it will not affect the merit of the investigation and it cannot be taken correct that investigation cannot be proceeded on the basis these two receipts. It was further argued that said embezzlement in first information report was reported of Rs. 49,75,000/- while in rejecting the bail application, the trial court taken into consideration the embezzlement of Rs. 58.83 lacs without any basis. Detail of this increased amount were not provided to the applicant. Learned counsel for the informant argued that this not stage to provide the detail and copy of the documents to the accused, only when the charge-sheet is filed in the court and cognizance is taken, he is entitled to the details of the amount embezzled and the record relied upon by the prosecution against him. 7. Learned counsel for the informant argued that this not stage to provide the detail and copy of the documents to the accused, only when the charge-sheet is filed in the court and cognizance is taken, he is entitled to the details of the amount embezzled and the record relied upon by the prosecution against him. 7. Another argument raised on behalf of the applicant is that applicant is seriously ill and he is heart patient and also suffering from various ailments. To support its case copy of report of the hospitals about his admission and discharge were also filed. Learned counsel for the informant argued that these papers relate to the year 2004-05. Till today, applicant is seriously ill and he is suffering from any of the ailments, no documents and prescription and report in support has been field. 8. It was further argued that arrest of the applicant was stayed by this court in writ petition no. 13071 of 2009 under Article 226 of the Constitution of India and it was directed by this court that only if credible evidence is made available against the applicant , he shall be arrested but without any credible evidence, the applicant was arrested by the police in collusion with the informant for which the applicant will file petition before the appropriate court after release on bail. To reply this argument, learned counsel for the informant stated that when credible evidence was found by the Investigating Officer in the case only then he applied to C.J.M. to issue a N.B.W. against the accused and under the order of the learned Magistrate after obtaining N.B.W., the applicant was arrested. It is wrong to say that there was no credible evidence found in the investigation. It was further argued that this court is dealing with the bail application of the accused and not considering the validity and legality of the order passed by the C.J.M. for issuing the N.B.W., so this argument of the learned counsel for the applicant cannot be taken into consideration at this stage. 9. Criminal history of the accused applicant was also brought on record on behalf of the informant . Applicant's counsel tried to explain these criminal history by saying that informant of the present case was instrumental in lodging these cases. 9. Criminal history of the accused applicant was also brought on record on behalf of the informant . Applicant's counsel tried to explain these criminal history by saying that informant of the present case was instrumental in lodging these cases. After investigation, final report was submitted by the police but rebutting this argument of the learned counsel for the applicant through counter affidavit informed the court that all these cases are still pending against the applicant either under the order of court or of superior officer of the police and still final report is not accepted by the court and applicant is still found involved in all these above case. Learned counsel for the informant further argued that if accused applicant is released on bail in the present case, he will again involved himself in other criminal activities. Hence his release will not be proper in the interest of society. It was further argued on behalf of the applicant that false report has been lodged against the applicant by the informant. Earlier he was with the informant in the work of society, later on he colluded with his opposite party group and lodged this report against him to harass and pressurize him. In reply learned counsel for the informant argued that it is correct that earlier the informant was working in the society along with the applicant as Secretary of the society and till the applicant was doing the work according to rules and regulations, he helped him in the work of the society and he started to work arbitrarily and when he found that he has misappropriated /embezzled the money of the society only then he filed an application under Section 156(3) Cr.P.C. It is wrong to say that in collusion of the opposite party group of the applicant, he has moved this application. 10. Learned counsel for the informant has also argued that this application for bail was pending in this court but the applicant tried to get released himself on bail from the Sessions Court by moving second bail application without disclosing that his application to release on bail is pending in this court. This shows that the applicant is not coming with clean hand. Learned counsel for the applicant argued that he applied for interim bail before the Sessions Judge but later on the same was not pressed and got rejected. This shows that the applicant is not coming with clean hand. Learned counsel for the applicant argued that he applied for interim bail before the Sessions Judge but later on the same was not pressed and got rejected. It was argued on behalf of the informant that if offence under Section 409 and 467 IPC is proved against him, he may be sentenced for life imprisonment . It was also argued that if the applicant is released on bail, he may tamper the evidence. 11. Seeing the circumstances, considering the arguments of learned counsel for the parties and learned AGA and seeing the complaint of embezzlement of such a big amount referred above the offence has complained, appears to be of serious nature. A murder may be committed in the heat of moment by the passions being aroused but such type of offence are committed with cool calculation and in deliberate, design with an eye of personal profit regardless of the consequences to the other members of the society . A disregard in the interest member of the society can be manifested only at the cost of forfeiting the trust and faith of the other member of the society to which the applicant was chairman. Without expressing opinion on the merit of the case, I do not find any sufficient ground to release the applicant on bail. Accordingly, application of bail of the applicant, is hereby dismissed.