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2011 DIGILAW 596 (RAJ)

Virendra Modi v. State of Rajasthan

2011-03-18

VINEET KOTHARI

body2011
Hon'ble Dr. KOTHARI, J.—These two misc. petitions have been filed under Section 482 Cr.P.C. by the petitioner Virendra Modi, Managing Director of the respondent No.2 – Madhav Nagrik Sahkari Bank Limited, Sirohi aggrieved by the order dtd.5.7.2005 passed by the learned trial Court taking cognizance of offences under Sections 420, 467, 468 and 471 I.P.C. read with Section 120B I.P.C. on the basis of charge-sheet dtd.27.6.2003 filed by the Investigating agency. 2. The case of the petitioner is that the petitioner being Managing Director of the respondent No.2 – Bank filed a FIR on 30.5.2001 alleging therein that the accused Man Singh Deora and Ratan Singh Deora, both advocates practicing in Sirohi committed forgery in the awards passed by the Motor Accident Claims Tribunal in some cases and instead of compensation amount required to be deposited in the State Bank of India, Sirohi, by forging the award and signature of the Presiding Officer, deposited the said amount with the respondent No.2 - Bank which money was withdrawn by these two accused persons by forging the signatures of the claimants also and thus, on account of this cheating and forgery committed by these accused persons, the matter deserves to be investigated. 3. The learned counsel for the petitioner submitted that since initially the investigation of the matter did not proceed fairly, the petitioner approached this Court by way of criminal misc. petition No.502/2001 in the capacity of Managing Director of the said Bank, in which a detailed order was passed by the coordinate Bench of this Court on 3.3.2003 and since the investigation was handed over to Dy. S.P. Asha Ram in connection with FIR No.116/2001 and 107/2001 thereafter the investigation proceeded fairly. However, in the said order, it is also noticed at page 5 that without intimation to this Court, the investigation was changed and given to Additional S.P. Bhahadur Khan, which remained with the Additional S.P. Bhahadur Khan upto 3.8.2002 and from June, 2001 till 3.3.2003, since investigation has not been completed for one reason or other, one Dherendra Kumar Khichi, Addl. S.P., appeared before this Court and submitted that the investigation has now been assigned to him and keeping in view the past history of investigation, he prayed for some time to conduct further fair and impartial investigation and file report within a period of four weeks. S.P., appeared before this Court and submitted that the investigation has now been assigned to him and keeping in view the past history of investigation, he prayed for some time to conduct further fair and impartial investigation and file report within a period of four weeks. Later on, the police proposed to filed charge-sheet before the learned Court below and thereupon, the said misc. petition came to be disposed of vide order dtd.29.5.2003. Upon such re-investigation ordered in between, a charge-sheet No.93 dtd.13.6.2005 was filed before the learned Chief Judicial Magistrate, Sirohi. On the basis of said charge-sheet, the impugned cognizance order has been passed by the learned trial Court on 5.7.2005, against which the petitioner has approached this Court by way of present misc. petitions. The two misc. petitions have been filed as two FIRs were filed by the complainant. 4. The learned counsel for the petitioner Mr. Vineet Jain submitted that in the said charge-sheet, the present petitioner Virendra Modi has been enlisted as prosecution witness No.1 and he being the Managing Director of the respondent – Bank on the other hand unearthed the said cheating and filed FIR against the two advocates, named above and it is only after persistence of the said complainant that upon re-investigation, a charge-sheet was filed in the matter only on 13.6.2005 in which even though there was no material against the present petitioner, the learned Court below strangely while passing the impugned order has made the complainant himself as accused No.1 in the matter. He submitted that the learned trial Court has fallen into serious error in taking cognizance of the alleged offence against the complainant – petitioner himself making the entire case against the principal accused persons pale in shadow. He submitted that a bare perusal of the charge-sheet even after re-investigation would show that there was not even an iota of evidence against the present petitioner who was not only the complainant in the matter, but was the Managing Director of the Bank at the relevant point of time and still the learned trial Court arrayed the petitioner as accused in the said matter. He also submitted that in the present misc. petitions, since the record of the trial Court was summoned by this Court, therefore, the trial in the matter is held up for last six years since 2005, which deserves to be expedited in any case. 5. He also submitted that in the present misc. petitions, since the record of the trial Court was summoned by this Court, therefore, the trial in the matter is held up for last six years since 2005, which deserves to be expedited in any case. 5. The learned PP on the other hand opposed the submissions and submitted that the cognizance has been rightly taken against the present petitioner also and therefore, the present misc. petitions deserve to be dismissed. But learned PP could not substantiate his arguments at all. 6. Having heard the learned counsels, this Court is of the opinion that the impugned order dtd.5.7.2005 taking cognizance of offences under Sections 420, 467, 468 and 471 I.P.C. read with Section 120B I.P.C. cannot be sustained against the present petitioner Mr. Virendra Modi, the complainant and the Managing Director of the Bank. The chequered history of the case involving two advocates and their role in forging the awards passed by the Motor Accident Claims Tribunal and then depositing the compensation amount in a private bank instead of nationalised bank which is the usual mode of awards passed by the Motor Accident Claims Tribunal and then withdrawing the said amount of compensation themselves is a very serious matter, which not only deserved to be investigated expeditiously, but the accused persons ought to have been tried as expeditiously as possible. On the other hand, the record of the case reflects that not only the investigation was stalled and thwarted, but the inherent jurisdiction of this Court had to be invoked at one point of time by way of Criminal Misc. Petition No.502/2001 filed under Section 482 Cr.P.C., in which after detailed orders passed by this Court and investigation officers having been changed twice over, the charge-sheet could be filed only on 13.6.2005 after about 5 years of the filing of the FIR. The said charge-sheet apparently included the present petitioner at the top of the list of witnesses to be produced by the prosecution. One fails to understand as to how and on what basis, the learned trial Court while taking cognizance against the aforesaid two advocates Mansingh Deora and Ratan Singh Deora and one of the Bank – employee, namely, Ganesh Singh, also included the name of the complainant – Managing Director of the respondent – Bank himself as an accused in the said cognizance order. This Court need not go into the reasons which prevailed with the Presiding Officer, whether it was an inadvertent error or sheer non-application of mind or some other consideration prevailed with him, but certainly on the basis of material available before the learned trial Court, this Court sees no reason for the learned trial Court to have taken cognizance of the said offences against the present petitioner, who initiated the enquiry into this matter for the alleged offences committed by other named persons by filing FIRs. 7. It is well settled that while free and fair investigation is a sine-qua-non of criminal jurisprudence and free and fair trial is a fundamental right of the accused, at the same time, the harassment caused to an innocent person by commencing trial against him, where no material existed, would be equally violative of his fundamental right. This Court from a perusal of the impugned order, charge-sheet filed by the investigating officer and other relevant record produced before this Court, is at loss to find any basis for taking cognizance of these offences against the petitioners – complainant himself. 8. Consequently, these criminal misc. petitions are allowed and the impugned order dtd.5.7.2005 qua the present petitioner Mr. Virendra Modi, the then Managing Director of the respondent – Bank is quashed and the record of the trial Court be sent back to it forthwith with a direction to complete the trial as expeditiously as possible preferably within a period of one year from today in view of delay which has already been caused in the matter for last 10 years for variety of reasons.