Research › Search › Judgment

Allahabad High Court · body

2010 DIGILAW 1271 (ALL)

PRADIP KUMAR KATIYAR v. STATE OF UTTAR PRADESH

2010-04-20

S.S.CHAUHAN

body2010
JUDGMENT S.S. CHAUHAN, J. – This petition has been filed challenging the charge-sheet of the case “The State v. Kishan Dwivedi and others”, vide Case No. 1036 of 2007. under sections 406/408/409/410/413/415/418/ 420/464/465/467/ 468/ 471/120-B I.P.C., P.S. - Achalganj, District - Unnao, pending in the Court of Judicial Magistrate, Unnao along with the proceedings arising out of the said charge-sheet. It has also been prayed that cognizance and summoning order dated 17.7.2004 passed under the aforesaid sections vide Case No. 1036 of 2007 pending in the Court of Judicial Magistrate, Unnao may also be quashed. 2. The facts in brief are that the petitioner was a partner in M/s Aashi Enterprises, a partnership firm, having its office at 118/13, Kaushalpuri, Gumti No.5, P.S. - Nazirabad, District - Kanpur Nagar and was doing business with consumer-goods company, namely, M/s Hindustan Lever Limited (for short “the Company”) in the capacity of its “Re-Distribution Stockist” since 1996 under agreement with the Company. It is stated that there were other Re-Distribution Stockists of the Company. The Company was doing business with all its Re-Distribution Stockists through its Clearing & Forwarding Agent, namely, M/s Wescon situated at District - Unnao having jurisdiction over the Central and Eastern Uttar Pradesh and covering Kanpur region also. Informant, Sri Ravi Menon, was the General Manager of M/s Wescon who lodged the FIR. 3. According to the prosecution case, petitioner's firm, namely, M/s Aashi Enterprises and other Re-Distribution Stockists firms, namely, M/s Aar Kay Agency and M/s Regal Sales received the goods of the Company through M/s Wescon, but did not make the full payments against the supplies and consequently, three FIRs were lodged against the petitioner and others separately on the basis of alleged involvement of three Re-Distribution Stockists, namely, M/s Aashi Enterprises, M/s Aar Kay Agency and M/s Regal Sales by the Company through its Regional Commercial Manager namely, Sri Hardeep Singh. 4. The petitioner sent a letter dated 20.8.2003 on coming to know that some fraud was being committed by the officials of the Company and the C&F Agent. The officials of the Company lodged three FIRs at different police stations at Kanpur Nagar against different Re-Distribution Stockists including the petitioner. 4. The petitioner sent a letter dated 20.8.2003 on coming to know that some fraud was being committed by the officials of the Company and the C&F Agent. The officials of the Company lodged three FIRs at different police stations at Kanpur Nagar against different Re-Distribution Stockists including the petitioner. Feeling aggrieved with the lodging of the FIR, the petitioner preferred Writ Petition No. 5414 (M/B) of 2003 at Allahabad which came up for hearing on 15.9.2003 and during the course of the arguments, learned Counsel for the Company argued that the Re-Distribution Stockists and the C&F Agent, namely, M/s Wescon were hand-in-gloves in the commission of the alleged crime. The said writ petition was disposed of on the same day vide order dated 15.9.2003. On 17.9.2003 Sri Ravi Menon, General Manager of M/s Wescon, District Unnao lodged an FIR of the whole matter in the form of case noted above against the petitioner and others, Which was registered at Crime No. 407 of 2003 under the aforesaid sections. Offences were investigated after lodging the FIR and charge-sheet has been submitted. The aforesaid charge-sheet is under challenge in this petition. 5. Submission of learned Counsel for the petitioner is that at the time of argument in Writ Petition No. 5414 (M/B) of 2003, the Company realized that the petitioner and M/s Wescon were in hand-in-gloves in the commission of the crime, it was their specific argument and that is why an FIR was lodged on 17.9.2003 by Ravi Menon, General Manager of M/s Wescon in order to save his skin. The subject-matter of offence has been investigated and FIRs have also been lodged against the petitioner at Kanpur. The case is being proceeded at Kanpur against the petitioner along with two other Re-Distribution Stockists. Allegations are the same and, therefore, for the same allegations, the petitioner cannot be prosecuted at Unnao and the charge-sheet is hit by provisions of section 162, Cr.P.C. It has also been submitted that there is no offence inter se conspiracy between the Re-Distribution Stockists and C&F Agent and, therefore, the allegation of conspiracy was not made out and it was the subject-matter of Kanpur trial. 6. 6. In order to emphasise his point of view, learned Counsel for the petitioner has relied upon the decisions rendered in Baldev Singh v. State of Punjab T.T. Antony v. State of Kerala and others, lnder Mohan Goswami and another v. State of Uttaranchal and others, State of Karnataka v. L. Muniswamy and others K.L.E. Society and others v. Siddalingesh and Roy V.D. v. State of Kerala. 7. Learned Counsel for the opposite parties, on the other hand, has submitted that there was larger part of conspiracy inter se between Re-distribution stockists and Kishan Dwivedi, an employee of M/s Wescon, who happens to be Clearing and Forwarding Agent of the Company proceeded to lodge the FIR against the petitioner and others by invoking section 120-B IPC. It is submitted that more than ten crore rupees has been usurped in collusion with by Kishan Dwivedi and Re-Distribution Stockists and forged cheques were submitted after receiving the goods from the Company. The said cheques were never encashed and the amount was never received although the next consignment was released under the resumption that the amount of first consignment has been received. So he has submitted that the Trial Court has committed no illegality in proceeding against the petitioner as the present petition contains gross abuse of process of the Court. The law as settled by the Apex Court does not permit this Court to quash the charge-sheet in view of Central Bureau of Investigation v. K.M. Sharan and the learned Counsel for the opposite parties has also relied upon the case of Nirmal Singh Kahlon v. State of Punjab and others and other cases to contend that when there is larger part of conspiracy, separate and distinct offence can certainly be made out and can be investigated and enquired into by the investigating agency and the case can also proceed in such circumstances. In support of his contention, learned Counsel for the opposite parties, has also relied upon the judgments rendered in State Through Superintendent of Police, CBI/SIT v. Nalini and others Hardeo Singh v. State of Bihar and another, State of Bihar v. Ramesh Singh, Medchi Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. and others and Bank of Rajasthan v. Keshav Bangur and another. 8. I have heard learned Counsel for the parties and gone through the record. 9. 8. I have heard learned Counsel for the parties and gone through the record. 9. Argument of learned Counsel for the petitioner that in respect of same offence trial is going on at Kanpur as the Company has lodged three FIRs against the Re-Distribution Stockists for commission of fraud at Kanpur and three trials are going on, the present FIR and the charge-sheet, therefore, is a gross abuse of process of the Court and the petitioner cannot be held responsible for the same cannot be accepted. 10. It is also stated that period is the same and amount is the same and therefore, the trial cannot proceed in the light of the fact that larger conspiracy between M/s. Wescon and Re-Distribution Stockists came to light and thereafter the present FIR has been lodged. The complainant and the accused persons in the present FIR are different inasmuch as the present FIR was lodged by the Clearing and Forwarding Agent, namely, M/s Wescon whose employee Kishan Dwivedi had committed serious criminal offences in conspiracy with the other accused persons who were of different firms of Re-Distribution Stockists. The cases pending at Kanpur have been filed by the Company against individual Re-Distribution Stockists. The amount of fraud, the number of invoices and other documents are different in the present case as compared to the cases pending at Kanpur and the aforesaid three persons have not been arrayed as accused together in any of the said three cases pending at Kanpur. This is a larger part of conspiracy between different Re-Distribution Stockists and accused Kishan Dwivedi and, therefore, the trial can proceed at Unnao. 11. Learned Counsel for the petitioner has placed reliance upon paragraph 17 of the judgment rendered in the case of Baldeve Singh (supra), which is reproduced hereunder: - “17. Conspiracy is defined in section 120-A, IPC to mean: “120-A. Definition of criminal conspiracy – When two or more persons agree to do. or cause to be done, - (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. Explanation. - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.” An offence of conspiracy which is a separate and distinct offence, thus, would require the involvement of more than one person. Criminal conspiracy is an independent offence, It is punishable separately, its ingredients being: (i) an agreement between two or more persons; (ii) the agreement must relate to doing or causing to be done either; (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. It is now, however, well settled that a conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. While however doing so, it must be borne in mind that meeting of the mind is essential; mere knowledge or discussion would not be sufficient.” 12. So far the argument of learned Counsel for the petitioner that inter se conspiracy is not evident from the evidence on record, the Court summoned the Investigating Officer and also perused the case diary and the relevant statements have also been filed along with the supplementary affidavit from which it cannot be said that the offence of criminal conspiracy inter se between the Re-Distribution Stockists and Kishan Dwivedi is not made out. From the short counter-affidavit filed by Sub-Inspector of P.S. Achalganj, District-Unnao and the statement of Ravi Menon filed along with the supplementary affidavit go to indicate that there was inter se conspiracy between Kishan Dwivedi, Rishi Shukla, Vimal Singh, Pradeep Kumar Kattyar, Vinod Kumar Malhotra Kailash Chandra Malhoh'a and Hasan Ali and Rs. 11,66,00,000/- has been usurped as against 254 cheques which are in respect of 1009 invoices. The cheques were not deposited in the account of the Company. It has been specifically come in the statement of Ravi Menon that they conspired with each other. All the cheques, which were given, were not encashed. Similar is the statements of Sushil Bothra, Sushil Mishra, Ravi Kant Trivedi and all the statements go to indicate that there was conspiracy between the petitioner and other Re-Distribution Stockists vis-a-vis Kishan Dwivedi. 13. It has been specifically come in the statement of Ravi Menon that they conspired with each other. All the cheques, which were given, were not encashed. Similar is the statements of Sushil Bothra, Sushil Mishra, Ravi Kant Trivedi and all the statements go to indicate that there was conspiracy between the petitioner and other Re-Distribution Stockists vis-a-vis Kishan Dwivedi. 13. To emphasise that under inherent jurisdiction the High Court can quash the proceedings under the present circumstances does not appeal to reason on account of the fact that conspiracy has been considered in the case of Nirmal Singh Kahlon (supra) as well as Bank of Rajasthan v. Keshav Bangur and another (supra) by the Apex Court and laid down the law to the effect that when there is larger part of conspiracy or larger offence or offence is in larger perspective, then investigation can go on and the Court will not interfere in the matter. Pragraphs-50, 51 and 53 of the judgment rendered in Nirmal Singh Kahlon (supra) are reproduced hereinbelow : - “50. An offence committed by an individual or two and an offence disclosed in a scandal involving a large number of officers from the lowest category to the highest category is distinct and different. In the first FIR although the provision of section 120-B of the Penal Code was mentioned, no allegation of conspiracy had been made. As indicated hereinbefore, it centered round a large number of acts of omissions and commissions on the part of the appellant Kahlon alone, as would be evident from the following: “...By misusing his powers, he has made wrong appointments for his benefit and the deserving candidates were overlooked. By doing this ex-Rural Development and Panchayats Minister has committed crime under sections 420, 467, 468,120-B, IPC and sections 13(1)(d), (e) read with section 13(2) of the Prevention of Corruption Act....” 51. In the aforementioned circumstances, the decision of this Court in Ram Lal Narang v. State (Delhi Administration), assumes significance. This Court therein was concerned with two FIRs; both lodged by the Central Bureau of Investigation. The first one contained allegations against two persons, viz., Malik and Mehra under section 120-B of the Penal Code read with sections 406 and 420, IPC thereof wherein CBI filed a charge-sheet. This Court therein was concerned with two FIRs; both lodged by the Central Bureau of Investigation. The first one contained allegations against two persons, viz., Malik and Mehra under section 120-B of the Penal Code read with sections 406 and 420, IPC thereof wherein CBI filed a charge-sheet. Later on, however, some subsequent events emerged resulting in lodging the FIR not only against Malik and Mehra but also against Narang and his two brothers. This Court opined: (SCC pp. 331-32, paras 11-12) . “11. .......The offences alleged in the first case were section 120-B read with section 420 and section 406, IPC, while the offences alleged in the' second case were section 120-B read with section 411, IPC and section 25 of the Antiquities and Art Treasures Act, 1972. It is true that the Antiquities and Art Treasures Act had not yet come into force on the date when the FIR was registered. It is also true that Omi Narang and Manu Narang were not extradited for the offence under the Antiquities and Art Treasures Act, and, therefore, they could not be tried for that offence in India. But the question whether any of the accused may be tried for a contravention of the Antiquities and Art Treasures Act or under the corresponding provision of the earlier Act is really irrelevant in deciding whether the two conspiracies are one and the same. The trite argument that a Court takes cognizance of offences and not offenders was also advanced. This argument is again of no relevance in determining the question whether the two conspiracies which were taken cognizance of by the Ambala and the Delhi Courts were the same in substance. The question is not whether the nature and character of the conspiracy has changed by the mere inclusion of a few more conspirators as accused or by the addition of one more among the objects of the conspiracy. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. The question is whether the two conspiracies are in substance and truth the same. Where the conspiracy discovered later is found to cover a much larger canvas with broader ramifications, it cannot be equated with the earlier conspiracy which covered a smaller field of narrower dimensions. We are clear, in the present case, that the conspiracies which are the subject matter of the two cases cannot be said to be identical though the conspiracy which is the subject-matter of the first case may, perhaps, be said to have turned out to be part of the conspiracy which is the subject-matter of the second case. As we mentioned earlier, when investigation commenced in FIR R.C. 4 of 1976, apart from the circumstance that the property involved was the same, the link between the conspiracy to cheat and to misappropriate and the conspiracy to dispose of the stolen property was not known. 12. The further connected questions arising for consideration are, what was the duty of the police on discovering that the conspiracy, which was the subject-matter of the earlier case, was part of a larger conspiracy, whether the police acted without jurisdiction in investigating or in continuing to investigate into the case and whether the Delhi Court acted illegally in taking cognizance of the case?" 53. Even in Ram Lal Narang v. State (Delhi Admn.) we have seen that two of the accused, viz., Mehra and Malik, were common. When two conspiracies are alleged; one is larger than the other, there may be some common factors but the nature of offence would differ. An offence committed would not be judged by mere mentioning of the sections but the mode and manner in which 'the same was committed as also the nature thereof.” 14. So far the question of conspiracy is concerned, the Apex Court in the case of State Through Superintendent of Police, CBI/SIT v. Nalini and others (supra) in paragraph 583, has very clearly laid down that the charge of conspiracy cannot be ruled out. Relevant portion of paragraph 583 of the said judgment is reproduced hereunder : - “583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles. 1. ............................... 2. ............................... 3. ............................... 4. Relevant portion of paragraph 583 of the said judgment is reproduced hereunder : - “583. Some of the broad principles governing the law of conspiracy may be summarized though, as the name implies, a summary cannot be exhaustive of the principles. 1. ............................... 2. ............................... 3. ............................... 4. Conspirators may for example, be enrolled in a chain - A enrolling B, B enrolling C, and so on; and all will be members of a single conspiracy if they so intend and agree, even though each member knows only the person who enrolled him and the person whom he enrols. There may be a kind of umbrella-spoke enrolment, where a single person at the centre does the enrolling and all the other members being unknown to each other, though they know that there are to be other members. These are theories and in practice it may be difficult to tell which conspiracy in a particular case falls into which category. It may however, even overlap. But then there has to be present mutual interest. Persons may be members of single conspiracy even though each is ignorant of the identity of many others who may have diverse roles to play. It is not a part of the crime of conspiracy that all the conspirators need to agree to play the same or an active role. 5. ............................................ 6. ................................................... 7. .................................................... 8. ................................................... 9. .................................................... 10. ..................................................” 15. So far the question of double jeopardy and reliance placed by learned Counsel for the petitioner on T. T. Antony (supra) is concerned that does not come to the help of the petitioner in view of the law propounded by the Apex Court in the case of Nirmal Singh Kahlon (supra). I do not want to enter into the merit further as it would• affect the trial and therefore, whatever finding has been recorded will be tentative in nature and will not be binding upon the Trial Court. 16. In the case of Hardeo Singh (supra) the extent of conspiracy between the Bank Manager and the appellant was considered and the Apex Court refused to interfere in the matter on the ground that some link or factor connecting the charge of criminal conspiracy was existing. 17. The question of discharge has to be considered at the stage of the discharge. 17. The question of discharge has to be considered at the stage of the discharge. These are the proceedings for quashing of the charge-sheet, therefore, the judgment rendered in The Assistant Collector of the Customs, Bombay and another v. L.R. Melwani and another and State of Bihar v. Ramesh Singh (supra) are in different context. 18. The Apex Court while considering the power of the High Court under section 482, Cr.P.C. to quash charge-sheet ruled in the case of Central Bureau of Investigation v. K.M. Sharan (supra). After reviewing the entire case law on the subject, the Apex Court proceeded to hold that quashing of charge-sheet by the High Court was not proper. Paragraph 31 of the• said judgment is reproduced hereunder:"31. At this stage, the High Court in its jurisdiction under section 482, CrPC was not called upon to embark upon the enquiry whether the allegations in the FIR and the charge-sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are matters which can be examined only by the Court concerned after the entire material is produced before it on a thorough investigation and evidence is led.” 19. The last argument of learned Counsel for the petitioner is that the case pending at Unnao may be transferred to Kanpur. 20. This request of learned Counsel for the petitioner cannot be accepted on account of the fact that the case, which has been instituted at Unnao covers a large conspiracy and hence a different nature of evidence has to .be led at Unnao in comparison to Kanpur. Therefore, the Court does not find feasible to transfer the aforesaid case to Kanpur. 21. The petition is devoid of merit. It is accordingly dismissed. Petition Dismissed.