Research › Search › Judgment

Jharkhand High Court · body

2012 DIGILAW 350 (JHR)

Rustam Ali v. State of Jharkhand

2012-03-12

R.R.PRASAD

body2012
JUDGMENT Mr.Manoj Kumar Sah Before the case was taken up for hearing, on the point of its merit, it was pointed out by the learned counsel appearing for the petitioners that the petitioner no.1 has died which fact has been stated in the supplementary affidavit filed on 15th July, 2009 whereby death certificate of the petitioner no.1 has been annexed. 2. In view of the facts as stated above, let the name of petitioner no.1 be deleted from the memo of petition. 3. Heard learned counsel appearing for the parties. 4. This application has been filed for quashing of the entire criminal proceeding of Complaint Case no.47 of 1994 including the order dated 28.2.2003 whereby and whereunder the then learned Judicial Magistrate, 1st class, Ranchi having found prima facie case being made out against the petitioners under Section 406/120B of the Indian penal Code summoned them to face trial. 5. The facts giving rise to this application are that the complainant – opposite party no.2, Md.Badrudduja was the General Secretary of Milli Talimi Mission, Ranchi upto the year 1980.The said Society got Millat Academy, established at Ranchi. In order to develop the school and to help out the poor students of the said school when donation was asked for from Rabta Alam Islami, Saudi Arabia, it was given to Opposite party no.2, who was the then General Secretary of the Society received huge grant in dollars from the authority of the embassy of kingdom of Saudi Arabia. The complainant instead of depositing it with the Society or the Academy defalcated it, for which Kotwali P.S case no.78 of 1984 was lodged. On investigation, the allegation was found to be true and hence, charge sheet was submitted. When opposite party no.2 was put to trial, he was convicted under Section 406 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years. In the said case, the petitioner no.1 (since died during the pendency of this petition) and also petitioner nos. 2 and 3 were the witnesses. However, the petitioner no.4 though was witness but was not examined during evidence and that the petitioner no.5 is the Principal of the Academy. 6. Further it appears that apart from the criminal case, Money Suit has also been filed for recovery of the amount which opposite party no.2 had misappropriated. 2 and 3 were the witnesses. However, the petitioner no.4 though was witness but was not examined during evidence and that the petitioner no.5 is the Principal of the Academy. 6. Further it appears that apart from the criminal case, Money Suit has also been filed for recovery of the amount which opposite party no.2 had misappropriated. On being found guilty, he was expelled from the membership of the Mission in April, 1984 and was removed from the service of the H.E.C. 7. It further appears that the complainant – opposite party no.2 lodged a case in the year 1989 alleging therein that the petitioners have misappropriated the amount of the Society. The said case was registered as Kotwai P.S.case no.798 of 1989. 8. The police having found the allegation to be false, submitted final form, upon which protest petition was filed which also got dismissed. Thereafter a Complaint case bearing no.47 of 1994 was lodged on the same allegations which were there in the first information report wherein it has been alleged that internal audit report of the year 1983 of the Society discloses that payments of Rs.2.5 lacs were shown but it were without receipts and that amounts collected from the students were not accounted for and that out of Rs.14,08,971/-collected from the students a sum of Rs.1,87,529 was not deposited. Like that several other irregularities were found. Thus, it has been alleged that internal audit of the year 1983 does indicate that a sum of Rs.4,93,142.27 has been embezzled/misappropriated by the petitioners. 9. Further it was stated that internal audit of the year 1984 also did disclose about the embezzlement/misappropriation of the amount and in this way, it was alleged that the accused persons have misappropriated the amount to the tune of Rs.7,33,000/-On such complaint, cognizance of the offence was taken which is under challenge. 10. Mr. Sohail Anwar, learned Sr. counsel appearing for the petitioners submitted that Millat Mission is a registered society and as per the byelaws, the audit of the account of each year is done through internal auditor and thereafter annual financial accounts are prepared which are finally checked and audited by the Chattered Accountant appointed by the General Body who are not the members of the Mission. Audit for the year 1983-84 was also initially audited by two internal auditors and thereafter objections were raised. Those objections were rectified. Audit for the year 1983-84 was also initially audited by two internal auditors and thereafter objections were raised. Those objections were rectified. Thereafter when the audited account was passed through by the Managing Board of the Mission, it was approved by the General Body of the Mission Thereupon, Managing Board of the Mission took a resolution (Annexure 5) wherein it was resolved that nothing is there against the petitioners. 11. It was further submitted that in spite of all these happenings, a case was lodged, which in the facts and circumstances stated above, is actuated with malice and has been filed in order to wreak vengeance as he on the information given by the petitioner no.1 (since died) had been convicted and under this situation, entire criminal case is fit to be quashed. 12. As against this, learned counsel appearing for the opposite party no.2 submitted that this is not the stage to consider as to whether the allegations made in the complaint are true or false, rather falsity or truthfulness of these allegations can be looked into only during trial and that when the allegation is there of defalcation of huge amount, order taking cognizance never warrants to be quashed. 13. It be recorded that Hon’ble Supreme Court in a case of State of Haryana and others vs. Bhajan Lal and others [1992 Supp(1) SCC 335] has been pleased to lay down the categories of the cases by way of illustrations wherein extraordinary power under Article 226 of the Constitution of India or the inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure ends of justice. One of such categories is as follows: “Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 14. Thus, the point for consideration is as to whether case of the petitioner does fall within this category or not ? 15. It has already been noticed that the petitioner no.1 (since died) had lodged a case against the opposite party no.2 for misappropriation/defalcation of the huge amount received from South Arabia as grant to the Society. Thus, the point for consideration is as to whether case of the petitioner does fall within this category or not ? 15. It has already been noticed that the petitioner no.1 (since died) had lodged a case against the opposite party no.2 for misappropriation/defalcation of the huge amount received from South Arabia as grant to the Society. Upon his conviction even his membership form the Society had been terminated. However, the complainant by referring to certain irregularities found in internal audits of the Society made in the year 1983 and 1984 lodged a case in the year 1989. With respect to that the stand of the petitioners is that when those objections were rectified, it was placed before the Managing Committee who passed through the accounts of the year 1983-84 which was approved by the General Body when the Chartered Accountant had made final audit and the Managing Committee even condemned the action of the complainant. Thus, it does appear that whatever irregularities were found by the internal auditors, those seem to have been rectified and thereafter it was passed through by the Managing Committee and lastly the General Body got it approved after the accounts were audited by the Chattered Accountant. 16. It is no doubt true that the petitioners are placing reliance on the document, i.e. resolution of the Board which is the document of the defence and not of the complainant but the same seems to be impeachable in nature and hence, notice of it can betaken in view of the decision rendered in a case of State of Orissa vs. Debendra Nath Padhi [(2005) 2 SCC 568] where the Hon’ble Supreme Court has been pleased to hold in exercise of power under Section 482 of the Code of Criminal Procedure the Court can put his reliance on the document which is sterling in character. On placing reliance over the document (Annexure 5) one would find the allegations to be of without substance. 17. Thus, under the circumstances, it can easily be said that the criminal proceeding is manifestly attended with malice which has been instituted with ulterior motive for wreaking vengeance and with a view to spite him due to personal grudge. 18. Accordingly, the entire criminal proceeding of Complaint Case no.47 of 1994 including the order taking cognizance is hereby quashed. 19. In the result, this application is allowed.