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Allahabad High Court · body

2013 DIGILAW 909 (ALL)

YOGESH TIWARI v. STATE OF U. P.

2013-03-20

NAHEED ARA MOONIS

body2013
Naheed Ara Moonis, J. Heard Sri V.P.Srivastava, learned Senior Advocate assisted by SriP.N.Singh learned counsel for the applicant and the learned AGA and have taken through the record. By means of the present application under Section 482 Cr.P.C. the applicants have invoked inherent jurisdiction of this Court with a prayer to quash the charge sheet dated 11.9.2012 arising out of case crime no.39 of 2012 ( now Sessions Trial No. 1877 of 2012) under Sections 420/467/468/469/471/506 IPC, P.S. Sisamau District Kanpur Nagar whereof cognizance has been taken by the learned Metropolitan Magistrate VIII. Kanpur Nagar against the applicant. The facts emanating from the prosecution in a short conspectus is that the opposite party no.2 filed an application under section 156 ( 3) Cr.P.C. in the Court of Additional Chief Metropolitan Magistrate Ist Kanpur Nagar stating therein that the applicant and co-accused introduced themselves men of high status having approaches with high dignitaries in the irrigation department. They will get the tender of Om Hut Pump Canal Phase-II to the tune of Rs. 7368.62 lacs in favour of the complainant and demanded Rs. 75.00 lacs for greasing the palm of higher authorities. Rest of the amount will be taken after finalisation of tender in his favour. The complainant paid Rs. 5.00 lacs on 30.4.2010, Rs. 20.00 lacs on 1.5.2010 and Rs. 50,000/- on 6.5.2010. The complainant was in contact with the accused persons on their assurances that he should wait . In the month of September 2010, the aforesaid accused persons showed the complainant forged departmental order demanding rest of the amount. When the complainant enquired from the department concern, it emerged that no such tender was passed in his favour. On the demand of the complainant, accused persons returned Rs. 18,00,000/- .On demand of return of entire amount, the accused persons lost their temper and were highly infuriated extending threats to his life. The complainant approached to the Director General of Police U.P.Lucknow who directed to Deputy General of Police Kanpur for enquiry. The Deputy Director General of Police Kanpur referred the matter to the Circle Officer Sisamu District Kanpur but no first information report was lodged. Pursuant to the order of the Magistrate, first information report was lodged against the accused persons. The complainant approached to the Director General of Police U.P.Lucknow who directed to Deputy General of Police Kanpur for enquiry. The Deputy Director General of Police Kanpur referred the matter to the Circle Officer Sisamu District Kanpur but no first information report was lodged. Pursuant to the order of the Magistrate, first information report was lodged against the accused persons. The investigating officer collected credible and clinching material against the applicants on the basis of which charge sheet was submitted and the learned Magistrate has taken cognizance of the aforesaid offence. It is contended by learned senior counsel appearing on behalf of the applicant that the investigation of the case was done in very pedantic and casual manner as the investigating officer while recording the statement of the witnesses has taken their affidavits on record as part of their statement under section 161 Cr.P.C. In their statement the witnesses have stated that they have already filed affidavits which may be treated part of their statement. Such affidavits signed and given by the witnesses to the investigating officer will not have any evidentiary value and is also hit by the provisions of section 162 of Cr.P.C . The entire story set up by the prosecution is a bundle concoction and fabrication as it is not possible and comprehensible that the complainant had paid such hefty amount in cash on different dates to the accused persons of which there is no documentary proof. The cash book produced by the clerk during investigation does not indicate that the cash balance which is alleged to have been paid was deducted for that purpose from the total balance amount . There is no entry of deduction in the cash book on the alleged dates. In case the complainant has paid any amount, he can approach before the appropriate forum for the recovery of same. The initiation of the criminal proceeding at the instance of the complainant for money transaction is nothing but sheer abuse of process of law . The investigating officer has not investigated the matter fairly and impartially manner. The charge sheet has been submitted in very pedantic and perfunctory manner without delving into the depth about the truth & veracity of allegation. The investigating officer has not investigated the matter fairly and impartially manner. The charge sheet has been submitted in very pedantic and perfunctory manner without delving into the depth about the truth & veracity of allegation. It is submitted that signatures were obtained and were sent to forensic laboratory along with voucher which was signed by the applicant .The investigating officer had availed the services of the private hand writing expert who had confirmed that signature on the voucher were of the applicant . There is another report of hand writing expert which does not corroborate that the hand writing of the applicant was same. The entire material collected by the investigating officer has been manipulated with an ulterior motive of maligning the applicant . There is material discrepancies in the prosecution version toppling the foundation of the case. In corroboration of his substance qua statement signed by the witnesses under section 161 Cr.P.C, learned counsel for the applicant has placed reliance upon judgment of the Apex Court in the case of State of U.P.Vs. M.K.Anthony 1984 STPL ( LE) 11640 SC . If the statement of the prosecution witnesses were so recorded, it cannot be read against the applicant . The statement recorded by investigating officer should not be signed by the witnesses. In such circumstances the prosecution of the applicant is malicious to wreak vengeance may be vitiated and the charge sheet may be quashed. Per contra learned AGA refuting the submission advanced by the learned counsel for the applicant contended that the investigating officer has recorded the statements of eye witnesses at the earliest opportunity after registration of the case. Prompt investigation of witnesses under section 161 Cr.P.C. lends assurance to the court about the credibility of witnesses . If the affidavits of the witnesses taken while examining the witnesses under section 161 Cr.P.C. it will not wipe off the entire prosecution case. The investigating officer has recorded the statement of complainant in detail which alone lends support to the prosecution case . If there is inordinate delay in examination of the witnesses under section 161 Cr.P.C. it will wipe out their memory after some time. It is not the function of the Court to monitor investigation so long as the investigation does not transgress any provision of law. If there is inordinate delay in examination of the witnesses under section 161 Cr.P.C. it will wipe out their memory after some time. It is not the function of the Court to monitor investigation so long as the investigation does not transgress any provision of law. Learned AGA has referred para 12 of the judgment rendered by the Apex Court in Sunil Clifford Daniel Vs. State of Punjab lAWS ( SC) 2012-9-15 that in the event that a police officer, ignorant of the statutory requirement asks a witness to sign his statement, the same would not stand vitiated. The court below has not committed any illegality or perversity in taking the cognizance of the matter .The investigating officer has collected material evidence showing the complicity of the applicant in the commission of the said crime. Even if there is minor variation or omission in the statement of the prosecution witnesses,it would not amount to rejection of total evidence. The charge sheet cannot be jettisoned merely on the ground of affidavits of witnesses which were taken as part of their statement under section 161 Cr.P.C. The witnesses cannot be considered as unreliable despite the bar of section 162 Cr.P.C. From the perusal of the materials on record and looking into the facts and after considering the arguments of the learned AGA for the State, it cannot be said that no offence has been made out against the applicants. Cognizance taken by the trial court, whereby the applicants have been summoned to face the trial suffers from no illegality merely because the investigating officer has taken the affidavit filed by the witnesses as part of statement under section 161 Cr.P.C to the case diary. Such statement cannot be rejected outright by holding that the evidence of a witness given in the Court would become inadmissible . It may be a violation of section 162 Cr.P.C. but the court is always empowered to look into the case diary and put the court on caution necessitating in depth scrutiny of the evidence. On account of infirmity or technical error in recording the statement of witnesses by the investigating officer, whose evidence otherwise appears to be trustworthy cannot be brushed aside at the initial stage to throttle the legitimate prosecution. It is a question of fact to be determined in the light of the circumstances of each case. On account of infirmity or technical error in recording the statement of witnesses by the investigating officer, whose evidence otherwise appears to be trustworthy cannot be brushed aside at the initial stage to throttle the legitimate prosecution. It is a question of fact to be determined in the light of the circumstances of each case. If the investigation is defective, the court has to be circumspect in evaluating the evidence and it pales into insignificance when ocular testimony is found credible and cogent and as such the prayer for quashing the proceedings on this ground is refused. At the stage of issuing process the court below is not expected to examine and assess in detail the material place on record. Only this has to be seen whether prima facie cognizable offence is made out or not. The Apex Court has also laid down the guidelines in the case State of Haryana Vs. Bhajanlal, 1999 SCC( Crl) 426, and State of Bihar Vs. P. P. Sharma, 1992 SCC( Crl) 192.where the criminal proceedings could be interfered and quashed in exercise of its power envisaged under section 482 Cr.P.C. Having considered rival submissions advanced by the learned counsel for the parties, this Court does not find any justifiable ground for quashing the proceedings or the charge sheet of the aforesaid case in exercise of its inherent powers conferred under section 482 Cr.P.C. . The application is accordingly dismissed. However, considering the facts and the circumstances of the case, it is directed that in case applicant appears before the court concerned in the aforesaid case within 45 days from today and applies for bail, the same shall be heard and disposed of in view of decision rendered in the case Smt. Amrawati and another Vs. State of U.P. reported in 2005 Cr.L.J. 755 which was approved by the Hon'ble Apex Court in Lal Kamlendra Pratap Singh Versus State of U.P. ( 2009) 4 SCC 437 No coercive steps shall be taken against the applicant within the stipulated period of 45 days. In case the applicant does not appear before the court below within stipulated time the court below shall be at liberty to take appropriate action against the applicant in accordance with law.