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2015 DIGILAW 1478 (BOM)

Vijay Krushnarao Hazarey v. Shivkala

2015-07-06

A.B.CHAUDHARI

body2015
JUDGMENT : A.B. Chaudhari, J. Rule. Rule returnable forthwith. Heard finally by consent of the parties. FACTS: 2. The applicant is Dean of the Government Dental College, Nagpur while applicant no. 2 is Administrative Officer and accused no. 3 is a retired clerk of the said College. 3. This application is directed against an order issuing process. Non applicant no. 1 filed complaint bearing No. 61/2013 in the court of Chief Judicial Magistrate, Nagpur for an offence punishable under Sections 409, 468, 471, 471-A, 201 read with Section 34 of the Indian Penal Code. Non applicant no. 1- complainant stated that she retired from service as Staff Nurse on 29.02.2012 from Government Dental College and Hospital, Nagpur and at that time, applicant no. 1-accused no. 1 was Dean of the said Dental College while other applicants-accused were Administrative Officer and Clerk respectively. The further allegation in the complaint is that on 08.11.2000, without her knowledge and consent, an amount of Rs. 80,000/- was withdrawn from her GPF account. Applicant nos. 1 to 3 prepared forged and fabricated documents for the said withdrawal at the time of withdrawal itself i.e. in the year 2000 and she came to know about the said fraudulent withdrawal only in the year 2009-10 when she found her GPF contribution was reduced from Rs. 6,000/- to Rs. 2,000/- i.e. why in the year 2013 she filed the private complaint case on 03.01.2013 in the Court of Chief Judicial Magistrate, Nagpur. The Court called report under section 156 (3) of the Code of Criminal Procedure. The Investigating Officer filed its report after detailed investigation including the report of handwriting expert of the Government. ARGUMENTS: 4. Learned counsel for the applicants and learned Public Prosecutor for non applicant no. 2-State argued in support of the applicants, obviously because the Investigating Officer, after thorough investigation, found that no offence was made out and non applicant no. 1-complainant was merely beating around the bush. The learned counsel for the applicants invited my attention to the application for withdrawal of the GPF amount in the sum of Rs. 80,000/- dated 17.10.2000 signed by the complainant, opinion of the handwriting expert, that was obtained by the Investigating Officer, receipt showing receipt of the amount of Rs. 80,000/- signed by non applicant no. 1 duly verified by the handwriting expert. He, therefore, submitted that the complaint lodged by non applicant no. 80,000/- dated 17.10.2000 signed by the complainant, opinion of the handwriting expert, that was obtained by the Investigating Officer, receipt showing receipt of the amount of Rs. 80,000/- signed by non applicant no. 1 duly verified by the handwriting expert. He, therefore, submitted that the complaint lodged by non applicant no. 1 is purely out of spite. 5. Learned counsel for the applicant further contended that all the reports of the handwriting expert as well as Investigating Officer submitted to the Court have not been looked by the trial Judge, which is apparent from reading of the impugned order itself. 6. Per contra, Mr. Lambat, learned counsel for non applicant no. 1, vehemently submitted that against the order issuing process, the applicants have not filed revision before the Sessions Court. Referring to the various documents and reports provided by the handwriting expert about non tallying of the signatures, learned counsel for non applicant no. 1 attempted to show discrepancy in the signatures etc. When asked about the delay of 13 years in lodging the report and private complaint, Mr. Lambat submitted that non applicant no. 1 was on leave for five years and further that her date of knowledge was 2009-10 when, for the first time, she noticed that contribution of provident fund was reduced from Rs. 6,000/- to Rs. 2,000/- and it is, thereafter, complaint came to be lodged. He further submitted that the application deserves to be dismissed since non applicant no. 1 has established that the applicants have misappropriated the amounts belonging to her. CONSIDERATION: 7. Upon hearing learned counsel for the rival parties and upon perusal of the entire documents on record including the stand taken by the Government and having seen the conduct of non applicant no. 1, it is clear that the complaint is being made for the first time in the year 2013 in respect of the alleged withdrawal of Rs. 80,000/- in the year 2000. Non applicant no. 1-complainant does not have any personal knowledge that the withdrawal was made by applicants i.e. Dean, Administrative Officer and Clerk. It is her perception without any positive pleading or prima facie proof that the withdrawal must have been made by the applicants. Even that could be understood had non applicant no. 1- complainant made a grievance within the reasonable time. 1-complainant does not have any personal knowledge that the withdrawal was made by applicants i.e. Dean, Administrative Officer and Clerk. It is her perception without any positive pleading or prima facie proof that the withdrawal must have been made by the applicants. Even that could be understood had non applicant no. 1- complainant made a grievance within the reasonable time. It is a common knowledge that Government servants check the salary account every month when they receive salary and agitate even if even a rupee is paid less by the Government. In the present case, it clearly appears that after withdrawal of Rs. 80,000/-, for which she had signed the application as well as receipt thereof, obviously the contribution was reduced to Rs. 2,000/- from Rs. 6,000/- way back in the year 2001. It is lame to contend that non applicant no. 1 did not come to know about it till the year 2009-10. The difference of Rs. 4,000/- per month was distinct and clear and it is unfathomable that she did not know about it for 13 years. Even otherwise, every year annual statements of GPF account are available with the employer. Comparison of the signatures on the receipt of Rs. 80,000/- and applications and other documents clearly shows that the signatures are of complainant and none else, which is clearly corroborated by the report of the handwriting expert of the Government. The perception carried out by the non applicant no. 1 that Rs. 80,000/- must have been withdrawn by Dean, Administrative Officer and Clerk of the Dental College is nothing but her figment of imagination after 13 long years. The investigating officer had submitted two long drawn reports to the court after reports made by the handwriting expert. However, perusal of the order of the Chief Judicial Magistrate does not show that he has applied his mind to these reports before making order of issuance of process. Since, the action alleged had taken place in the year 2000 in the official course of business, sanction under Section 197 of Cr.P.C. was required, which was not taken. 8. In the case of Mrs. Priyanka Shrivasatava & anr v. State of U.P. & Ors; 2015 AIR SCW 2075 the apex Court came down heavily on such litigants whose only aim is to cause harassment to the officials and make them kneel down for achieving oblique motive. 8. In the case of Mrs. Priyanka Shrivasatava & anr v. State of U.P. & Ors; 2015 AIR SCW 2075 the apex Court came down heavily on such litigants whose only aim is to cause harassment to the officials and make them kneel down for achieving oblique motive. Perusal of the documents, investigation papers supported by the report of the handwriting expert and the fact that non applicant no. 1 kept quiet for 13 long years leads to draw the only inference that non applicant no. 1 clearly, out of her figment of imagination, lodged complaint before the trial court. There is no satisfactory explanation whatsoever as to why grievance was not made for so many years. There is no evidence much less prima facie with the complainant that before 13 years these applicants had withdrawn her Rs.80,000/-. On the contrary, expert's report shows that the applicants never made any forgery and on the contrary, the signatures on all relevant documents are of the complainant. To make such serious allegations against the high ranking officers like Dean of Government Dental College, without any substance or without any prima facie proof putting them to harassment shows that it is non applicant no. 1 who has committed criminal misconduct. The entire complaint and the order issuing process is an abuse of process of law. 9. The submission that the revision has not been preferred by the applicants before the Sessions Judge will have to be rejected since this Court has found that the complaint itself and then the order of issuance of process is an abuse of process of law and, therefore, the Court must exercise powers under Section 482 of the Code of Criminal Procedure to nip in the bud such types of activities of tormenting the applicants. Obviously, non applicant no. 1's complaint was mala fide and with some oblique motive. She must, therefore, be saddled with costs. That being so, I make the following order. ORDER (1) Criminal Application No. 584/2014 is allowed. (2) Rule made absolute in terms of prayer clause (ii) with costs of Rs. 5,000/- each payable to applicant nos. 1 to 3 within a period of four weeks from today by non applicant no. 1, failing which the same shall be recovered from dues payable to her by Government.