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2010 DIGILAW 2993 (ALL)

S. P. Jalan v. State of U. P.

2010-09-27

RAVINDRA SINGH

body2010
JUDGMENT: Ravindra Singh, J. Heard Sri Viresh Mishra, Senior Advocate, assisted by Sri Vikas Chandra Mishra, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri Murlidhar Mishra, learned counsel for the complainant. This is second bail application moved by the applicant S.P. Jalan, with a prayer that he may be released on bail in case crime no. 802 of 2009 under sections 409,420,467,468,471 I.P.C. P.S. Sahibabad district Ghaziabad. The criminal misc. first bail application no. 31505 of 2009 has been rejected by Hon'ble Y.K.Sangal,J. on 17.12.2009 after considering the merits of the case. This bench has been nominated by the Hon'ble the Chief Justice on 13.7.2010 to hear this bail application. 2. The facts, in brief, of this case are that the F.I.R. of this case has been lodged by Sri Prakash Chandra Gupta against the applicant on 3.4.2009 at 9.30 p.m. in respect of the incident illegally occurred since 1.9.2007 to 12.11.2008 alleging therein that the first informant was the secretary of Sanjeev Memorial Educational Society, 236 Main Park, Sahibabad Ghaziabad and the applicant was the chairman to the above mentioned Society, the Society was running the school in the name and style of 'Sanjeev Memorial Public School' Sahibabad Ghaziabad, the applicant being the chairman of that Society has changed the name of the above mentioned School, forcibly as Mayo International School. The Mayo International School is already situated in Paparganj Delhi, which was having no concern with the first informant and its society of the school, the applicant has opened an account in the name of the above mentioned school in syndicate Bank, Papargnj Delhi Branch, and has obtained a cheque book in the name of 'Mayo International School, Shyam Enclave,Shalimar Extension, II' the account was to be operated by any of them, i.e. either by the Chairman or by its Secretary, but the applicant was always getting the cheque book and the statement of the Bank, the applicant refused to show the statement of the Bank to the first informant and he extended threat to commit the murder of the first informant. It was stated by the applicant that the Bank Manager had told not to show any documents, when the first informant obtained the account and statement of the Syndicate Bank from its another Branch, he came to know that the applicant had withdrawn an amount of Rs. It was stated by the applicant that the Bank Manager had told not to show any documents, when the first informant obtained the account and statement of the Syndicate Bank from its another Branch, he came to know that the applicant had withdrawn an amount of Rs. 22.85 Lakhs on 11.9.2007 through cheque no. 522401, he withdrew an amount of Rs. 10 lakhs on 19.11.2007 through cheque no. 522410, he withdrew Rs. 10 lakhs on 17.11.2007 an amount of Rs. 3 lakh on 25.6.2008, and an amount of Rs. 3 lakhs on 30.6.2008 he withdrew an amount of Rs. 90,000 on 12.11.2008 through cheque no. 465375 the total amount withdrawn by the applicant was 49.75 lakhs by putting his signature on the cheque and he had transferred the money of the institution in the account opened in the name of other school and institution. it is alleged that the applicant with an dishonest intention played fraud and misappropriate/embezzled the money of the above mentioned institution, the applicant has committed serious offence, he may be punished. 3. It is contended by the learned counsel for the applicant that the applicant is a qualified Chartered Accountant, he is an old assessee of the income Tax, he also run another company of which he is the Managing Director. He is also the Chairman of an institution namely Mayo International School, he has not committed any offence, nor he has embezzled any amount of the money, the first informant is also a qualified Chartered Accountant, according to the prosecution version itself the applicant was the Chairman of Sanjeev Memorial Educational Society and the first informant was its Secretary, the rules and regulation of the society empower the Chairman " to spend any amount for the completion of society work or to fulfil the main aims and objects of the society without the prior permission of the Managing committee." if the entire allegation of the F.I.R. is considered in the light of the above mentioned rules, it will be established that it is a case of no evidence and no offence is made out against the applicant. 4. 4. In this case after completing the investigation, the charge sheet has been submitted, on which the learned magistrate concerned has taken cognizance, thereafter, learned C.J.M. Ghaziabad has framed the charges under sections 409,420,467,468,471 I.P.C. on 4.1.2010 in criminal case No. 21125 of 2009, the offences are triable by the magistrate whereas in the light of the said allegations and the material collected by the I.O. no charge under sections 409,420,467,468,471 I.P.C. is made out. The F.I.R. of this case has been lodged on account of the management dispute, the first informant Mr. P.C.Gupta himself gave a complaint against the rival group of the Management Committee, as the Secretary of Mayo International School to the District Magistrate, I.G. Police, D.I.G. Police, S.S.P. Ghaziabad the S.H.O. concerned on which necessary directions were issued by the above mentioned higher authorities, the first informant Mr. P.C. Gupta, as Secretary himself has completed all the necessary formalities to change the name of the school, he himself claimed to be the Secretary. To change the name of the school to 'Mayo International School' he moved an application to the Education Department. He also filed a writ petition no. 57097 of 2008 before this Hon'ble Court in which he filed his affidavit; that he had moved an application before the C.B.S.E. Board for registration of the school in the name and style of 'Mayo International School' the Assistant Secretary of the C.B.S.E. Board has granted registration vide its letter dated 11.5.2006, he moved an application before the B.S.A. Ghaziabad for changing of the name of the school, from 'Sanjeev Memorial School' to 'Mayo International School.' The Senior Health Officer of Nagar Nigam, Ghaziabad has also issued a certificate that the school of the petitioner has completed the standard of health and hygiene. The first informant also filed another complaint in the court of C.J.M. Ghaziabad in Misc. Application No. 1899 of 2009 in which it was mentioned that the name of Sanjeev Public Memorial School was changed as Mayo International School by the general body of the Society and on the basis of the said resolution, he applied to the B.S.A. to change the name of the school, such entries have been made by the I.O. in the case diary, the charge of embezzlement of Rs. 49.75 Lakh is absolutely false and baseless because it was the joint account, the account was to be operated jointly either by the first informant or the applicant. The money was deposited by the applicant himself from his own resources as he was the chairman of both the school, the I.O. of this case after thorough investigation came to the conclusion that no offence is disclosed as money was transferred through cheque in the interest of the institution, has been properly accounted for. The money was not utilized by the applicant for his personal use, the transactions were in the satisfaction of the loan taken by the society from those payees. The transaction was properly done i.e. the amount of Rs. 22.85 Lakhs was transferred to Mayo International School, was the loan taken from the Mayo International School, which was returned back to Mayo International School, similarly Rs. 10 lakhs was the refund of loan received from Kastura Medicos by the Sanjeev Memorial Public School, the second entry against the Kastura Medicos was, in fact, the bank reject of RTGS transfer to Kastura Medicos, thereafter, there was one debit entry of Rs. 10 Lakhs along with credit entry of Rs. 10 Lakhs simultaneously due to this RTGS reject of transfer of Rs. 10 Lakhs to Kastura Medicos, two amount of Rs. 3 lakhs each were in fact deposited with Ghaziabad Development Authority for allotment of plot in favour of Sanjeev Memorial Public School, rest of the amount of Rs. 90,000/- was in fact utilized for paying the salary to the school employees. The entire allegation with regard to the misappropriation of money has been properly explained as above. It is wrong to say that only the applicant was operating the bank account, cheques were issued by the first informant Mr. P.C. Gupta also, reasons for lodging the First Information report is that of rival group of the Management Committee comprising of Ashok Mishra and Smt. Renu Sharma, who wanted to grab the school against whom the complaint was made by the first informant himself have entered into a conspiracy with the first informant and to sell the school along with its assets to one Surendra Kumar Kaushik for which an agreement dated 20.10.2008 was executed, now the litigation is pending before the Deputy Registrar Firm Society and Chits. In the present case, the arrest of the applicant was stayed by the Division Bench of this court, thereafter the final report was submitted but the same was not accepted but the order of further investigation was passed thereafter the first informant filed a forged receipts issued by him saying that he had collected the money in cash from many persons, the collected money in cash was given to the applicant, the same has been misappropriated, but surprisingly such huge amount of money in lacs was not deposited in the bank account, the forged receipts have been prepared by the first informant so that the allegation of misappropriation of the money may be made against the applicant after submission of the final report the only additional material collected by the I.O. was the deposit receipts issued by the first informant but the amount of those receipts has not been made the part of the charge, all such receipts are bogus and fabricated. The learned C.J.M. has framed the charges without considering all the facts and circumstances of the case, the charge is also illegal. The applicant is a man of high respect. He is ailing and he is under treatment in All India Institute of Medical Sciences, New Delhi. He is in Jail since 16.10.2009. It is also submitted that if the Hon'ble court comes to the conclusion that the applicant has embezzled any amount, he is ready to deposit the same. 5. In reply to the above contention, it is submitted by the learned A.G.A. and Sri Murlidhar Mishra, learned counsel for the complainant that it is second bail application. The criminal misc. first bail application has been rejected by a detailed order, considering all the facts and circumstances of the case, the additional ground taken by the applicant is 'that the charge has been illegally framed by the learned C.J.M. concerned, whereas no such charge under sections 409,420,467,468,471 I.P.C. is made out on the basis of the material collected by the I.O.' for which it is submitted that the charge has been framed on the basis of the material collected by the I.O. which has already been considered at the time of the disposal of the first bail application, the material collected by the I.O. is prima facie disclosing the commission of the offence punishable under sections 409,420,467,468, 471 I.P.C. there is no illegality in framing of charge. the 2nd additional ground in respect of the money collected by the first informant by issuing the receipts to the depositors is concerned, it has not been made the part of the charge, at this stage it can not be appreciated that the receipts are forged it may not be a ground to release the applicant on bail. The 3rd additional ground will respect to the offer to deposit the embezzled amount is concerned, it may also not be a ground for bail, there is no new good ground to consider for releasing the applicant on bail, therefore, the second bail application may be rejected. 6. Considering the facts, circumstances of the case, submissions made by the learned counsel for the applicant, learned A.G.A., counsel for the complainant and from the perusal of the record it appears that it is a second bail application. The criminal misc. first bail application no. 31505 of 2009 has been rejected on 17.12.2009 by Hon'ble Y.K. Sangal,J. The new grounds taken by the applicant in the second bail application are (i) that the charge framed by the learned C.J.M. concerned of the offence punishable under sections 409,420,467,468,471 I.P.C. is illegal and on the basis of the allegations and the material collected by the I.O. no such offences are made out, the (ii) ground that the receipts showing the deposits issued by the first informant are forged and fabricated because the receipts are not having the complete address of the depositors and amount received is in lacs, which has not been deposited in the bank, the allegation that such huge money in cash was given to the applicant is absolutely false and unreliable, it has been created after submission of final report, but at the stage of further investigation, (iii) the applicant is ready to deposit the embezzled amount of money. The ground number one in respect of framing of the charge is concerned, it has been framed on the basis of material collected by the I.O. during the investigation, such material has been considered at the time of disposal of the first bail application, at this stage the appreciation of the material for ascertaining the trial may not be done, the material collected by the I.O. is prima facie disclosing the commission of the offence, it may not be a new ground. The second ground that the receipt of deposits are bogus or fabricated is concerned, admittedly the amount of money received through such receipts has not been part of the charge and at this state, the question of its genuineness may not be decided therefore, it may not be a good ground to release the applicant on bail. So far as the last submission that if this court comes to the conclusion that the applicant has embezzled any amount, he is ready to deposit the same, is concerned, at this stage no conclusion may be drawn by recording the finding that the applicant has embezzled a particular amount of money, it may be drawn by the trial court, therefore, such offer to deposit the embezzled amount of money, may not be entertained for the purpose of bail. The first bail application has been rejected, after considering the material collected by the I.O. during investigation, the facts and circumstances of the case, by a detailed order, there is no good ground in the second bail application to release the applicant on bail, the prayer for bail is refused. 7. However, considering the facts that the applicant is in jail, since 16.10.2009 and the charge has been framed by the learned C.J.M. concerned it is directed that the proceedings of the trial shall be expedited, the same shall be commenced, if possible, on day to day basis. With the above direction, this application is finally disposed of. Let a copy of this order may be communicated to the learned C.J.M. Ghaziabad forthwith for expediting the proceedings of the trial pending against the applicant.