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2015 DIGILAW 862 (GAU)

Surendra Kumar Sharma v. State of Assam

2015-07-17

C.R.SARMA

body2015
JUDGMENT : C.R. Sarma, J. 1. By this criminal petition, filed under section 482 of the Code of Criminal Procedure (for short Cr.P.C.) the petitioner, who is one of the accused persons in GR. Case No. 1352/1992, arising out of the FIR dated 01.11.1992 filed by the private respondent has prayed for quashing the proceeding in GR. case No. 1352/1992, aforesaid, the charge sheet and the order dated 2.7.2008, whereby the Court took cognizance of offence and issued process. The petitioner, in 1992 worked as the Branch Manager of Bareilly Corporation Bank (for short BCB) at Shyamganj Branch and Ms. Nirmal Chawal Udyog had a current account in the Philibit Branch of the said bank. M/s. Gattani Flour Milkl of Jorhat, Assam is a business establishment, situated at Jorhat in Assam and is represented by its Director Sri Hira Jha. The B.C.B. subsequently got amalgamated with the Bank of Baroda. 2. In 1992, Mr. Nirmal Chawal Udyog entered into a business deal with M/s. Gattani Flour Mills Limited for sale of 4680 quintals of wheat in favour of M/s. Gattani Flour Mill. In the same year, two current accounts were opened with the Shamganj Branch, BCB, in the name of M/s. Luxmi Trading Company and M/s. Pawan Trading Company. The proprietors of these two firms were the partners of M/s. Nirmal Chawal Udyog. Both the parties mutually agreed that the payment against the consignment would be made in the name of M/s. Luxmi Trading Company, on receipt of railway receipt (for short R.R.) of the said quantity. 3. In due course, M/s. Gattani Flour Mills received 32 consignment notes (R.R.) for the said quantity of wheat and on receipt of the R.Rs. M/s. Gattani Flour Mills purchased two Bank drafts of Rs. 1,44,500 in the name of M/s. Luxmi Trading Company and accordingly sent the same. M/s. Luxmi Trading Company, on receipt of the said drafts, deposited the same in the account of M/s. Luxmi Trading Company in Shyamganj Branch of BCB. Though, an amount of Rs. 7,45,000/- was withdrawn by the payee by encashing one of the two drafts, the other draft for Rs. 7,00,000/- could not be en-cashed as its name was wrongly spelt as 'Laxmi' instead of Luxmi'. Though, an amount of Rs. 7,45,000/- was withdrawn by the payee by encashing one of the two drafts, the other draft for Rs. 7,00,000/- could not be en-cashed as its name was wrongly spelt as 'Laxmi' instead of Luxmi'. Subsequently M/s. Gattani Flour Mills approached the railway for receiving the consignment, but it was found that no such consignment was sent by the party, which sent the said R.Rs. Upon enquiry, it was found that the said railway receipts (R.R.) were fake. Hence, M/s. Gattani Flour Mill, on 01.11.1992, filed an FIR with police at Jorhat and the same was registered as Jorhat Police Station Case No. 588/1992. Accordingly police launched investigation into the matter. On 03.10.2010 i.e. after about 8 (eight) years of lodging the FIR, police arrested the petitioner and he was released on bail. 4. A Money Suit, being Money Suit No. 41 of 1993, was also filed by the informant, in the court of the Civil Judge, Jorhat against M/s. Nirmal Chawal Udyog and 22 others including the petitioner. The case was contested by the respondents. The learned Civil Judge, by his judgment and order, dated 26.05.2008, while decreeing the suit against M/s. Nirmal Chawal Udyog and its partners, held that the claim of the plaintiff against other defendants including the petitioner was not maintainable. 5. At the close of the investigation, police submitted charge sheet under Sections 406/402/468 of the Indian Penal Code (hereinafter called the IPC) against the petitioner and other accused persons, showing the petitioner as an absconder. However, he was subsequently arrested and released on bail. On receipt of the charge, the Chief Judicial Magistrate, by his order dated 2.7.2008 took cognizance and issued process for appearance of the accused persons. Hence, this quashing proceeding has been filed by the petitioner. 6. The contention of the petitioner is that the petitioner, who was a Manager of the concerned Bank (i.e. BCB), neither entered into any conspiracy, nor played any role in preparation of the said false R.Rs. and en-cashing the drafts and as such he was in no way involved with the alleged offences. 7. I have heard Mr. P.K. Tiwari, learned senior counsel appearing for the petitioner, Mr. K. Munir, learned Addl. Public Prosecutor and Mr. M. Sarania, learned counsel appearing for the informant/respondent No. 2 and perused the record. Mr. and en-cashing the drafts and as such he was in no way involved with the alleged offences. 7. I have heard Mr. P.K. Tiwari, learned senior counsel appearing for the petitioner, Mr. K. Munir, learned Addl. Public Prosecutor and Mr. M. Sarania, learned counsel appearing for the informant/respondent No. 2 and perused the record. Mr. Tiwari, learned Senior counsel, referring to the allegations made in the FIR, the charge sheet and the evidence collected by the investigating agency has submitted that there is no whisper indicating involvement of the petitioner with the fraudulent withdrawal of money and issuance of false R.Rs. It is also submitted that the concerned current accounts were allowed to be opened by observing the existing procedure and that the draft being in order the encashment of the same was permitted. Mr. Tiwari, learned senior counsel has also submitted that there is no allegation or evidence, on record, to show that the petitioner had prayed any role in obtaining the false R.Rs. and persuading the private respondent to send the bank drafts. It is also submitted that, in the money suit, filed by the informant, the Civil Court, while decreeing the suit, did not grant any relief against the petitioner. The learned Senior counsel has submitted that, in view of absence of any evidence regarding involvement of the petitioner, the continuance of the said criminal case, against the petitioner would yield no fruit, rather the same will cause abuse of process resulting miscarriage of justice them by compelling an innocent public servant to face a criminal trial. In view of above, the learned senior counsel has prayed for quashing the proceeding in respect of the petitioner. In support of his contention, the learned Senior Counsel has relied on the following decisions:- 1. Ashok Chaturvedi & Ors. Vs. Shitul H. Chanchani & Anr. reported in (1998) 7 Supreme Court Cases 698. 2. Samsung India Electronic Pvt. Ltd. & Anr. Vs. State of Assam, reported in (2012) (4) GLT 546 and 3. Hari Char an Kurmi Vs. State of Bihar, reported in AIR 1964 SC 1184 . 4. Punjab National Bank & Ors. Vs. Surendra Prasad Sinha, reported in AIR 1992 SC 1815 . 5. Smt. Nagawwa Vs. V. Veenanna Shivalingappa Konjalgi & Ors., reported in AIR 1976 SC 1947 . 8. Refuting the said argument, advanced on behalf of the petitioner, Mr. State of Bihar, reported in AIR 1964 SC 1184 . 4. Punjab National Bank & Ors. Vs. Surendra Prasad Sinha, reported in AIR 1992 SC 1815 . 5. Smt. Nagawwa Vs. V. Veenanna Shivalingappa Konjalgi & Ors., reported in AIR 1976 SC 1947 . 8. Refuting the said argument, advanced on behalf of the petitioner, Mr. M. Sarania, learned counsel for the respondent No. 2 has submitted that M/s. Nirmal Chawal Udyog, in collusion with the petitioner and other bank staff, had opened the bank account in the name of M/s. Luxmi Trading Company and dishonestly induced the respondent to send the bank drafts by sending fake R.Rs. and thus, falsely persuaded the respondent No. 2 to believe that the consignment was sent through the railway. It is also submitted that the payee of the said draft, without connivance and active role of the petitioner, could not have en-cashed the draft and cheated the respondent No. 2. Therefore, it is submitted that the petitioner was also a party to the preparation of the fake R.Rs. and that without sending the consignment had sent the R.Rs. for dishonestly inducing the respondent No. 2 to accept the fake R.Rs. as genuine and send the drafts, on the false believe that the consignment was sent through railway. In view of the above it is submitted that there are sufficient materials showing a prima-facie case against the petitioner and that no interference is warranted at this stage. The learned counsel for the respondent No. 2 has relied on the following decisions:- 1. State of Haryana & Ors. Vs. Bhajanlal & Ors. reported in 1992 Supple (1) SCC 335. 2. Ravinder Kumar Adhanlal Goenka Vs. Rugmini Ram Raghav Spinners Ltd. reported in (2009) 11 SCC 529 . 3. State of Bihar Vs. Murad Ali Khan reported in 1988 (4) SCC 655. 4. Ranjan Dwivedi Vs. CBI, 9. Mr. K. Munir, learned Addl. Public Prosecutor, adopting the argument advanced by the learned counsel for the private respondent, has submitted that there is sufficient evidence showing a prima-facie case against the petitioner and that in view of submission of charge-sheet no interference is warranted at this stage. 10. The respondent No. 2 i.e. Sri Hira Jha, Director of respondent No. 2 M/s. Gattani Roller Flour Mills Pvt. Ltd. has filed an affidavit-in-objection in response to the petition filed by the present petitioner. 10. The respondent No. 2 i.e. Sri Hira Jha, Director of respondent No. 2 M/s. Gattani Roller Flour Mills Pvt. Ltd. has filed an affidavit-in-objection in response to the petition filed by the present petitioner. The deponent stated that M/s. Nirmal Chawal Udyog, M/s. Pawan Trading Company. and M/s. Luxmi Trading Company, represented by one set of persons or interrelated, persons had entered into a contract for supply of wheat to respondent No. 2 and that with an intention to defraud and cheat the respondent No. 2 had entered with a conspiracy and that the instant petitioner had himself tailored the entire episode and suggested the account holder to issue fake R.Rs. and that the petitioner had given consent for opening of the said accounts. The deponent also stated that the State Bank of India, Khatima Branch, finding the accounts to be suspicious sent a caution note to the Bareilly Corporation Bank, while issuing a clearance advice on 23.10.1992 for an amount of Rs. 15,52,620/- to be transferred in the bank account of M/s. Luxmi Trading Co. maintained with the Bareilly Corporation Bank, Shyamganj Branch. It has also been stated by the respondent No. 2 that the ledger folio of the account of M/s. Luxmi Trading Co. showed that an amount of Rs. 15,52,120/- and Rs. 2,48.680/- were credited in the account on 24.10.1992 and withdrawn on 28.10.1992 and alleged that the then Branch Manager i.e. the petitioner Mr. Surendra Kumar Sharma did not follow the caution note at the time of releasing the amount and that another clearing advice dated 28.10.1992, issued by Bank of Baroda for Rs. 4,95,000/- insured to the Bareilly Corporation Bank, Shyamganj Branch also carried a caution note to the then Branch Manager to check the credentials of the party, before releasing payment. It is also stated that the C.I.D. Assam had written a letter to Barailley Corporation Branch, Philibhit Branch directing the Branch Manager to stop operation of bank account No. 860 standing in the name of M/s. Nirmal Chawal Udyog. The deponent further stated that the entire transaction was designed to defraud the parties and siphon money from one account to another and that the Forensic Laboratory, U.P., Agra found the signatures shown in the name of Prem Kumar and Pawan Kumar were of the same person. The deponent further stated that the entire transaction was designed to defraud the parties and siphon money from one account to another and that the Forensic Laboratory, U.P., Agra found the signatures shown in the name of Prem Kumar and Pawan Kumar were of the same person. The deponent also stated that the Investigating Officer, after procuring prima facie evidence, has filed the charge-sheet against the petitioner and others and that the petitioner cannot escape from criminal liability. 11. Having heard the learned counsel for the parties, I have carefully perused the FIR, the Charge-sheet and also the evidence collected by the investigating agency. In the present case he petitioner has been booked under Sections 406/420/468 I.P.C. The allegations made in the said affidavit-in-objection are found to be raised for the first time i.e. after filing of the charge sheet. Neither the FIR nor the charge-sheet contains the said allegations, indicating the involvement of the petitioner. The alleged caution notes issued by the State Bank of India relates to some other transaction. There is nothing, on record, to show that the concerned account was allowed to be opened with any ulterior motive, or that the petitioner had played any role in sending the fake R.Rs. The principle and legal proposition to be followed in considering a quashing proceeding, under Section 482 Cr.P.C., has been laid in a catena of decisions:- 12. In the case of Bhajan Lal (Supra), the Supreme Court laid downs the following guide lines relating to exercise of the extra-ordinary power under Article 226 or the inherent powers under section 482 Cr.P.C. "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the un-controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) 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." While laying down the said guidelines, the Supreme Court also cautioned as follows: "103. (7) 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." While laying down the said guidelines, the Supreme Court also cautioned as follows: "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 13. In Ranjan Dwivedi (Supra) the Supreme Court, has observed that High Court is not to act as a Trial Judge while exercising power under Section 482 Cr.P.C. and that the High Court should examine material on record for limited purpose of satisfying itself about the existence of sufficient grounds for proceeding the accused. High Court should not appreciate evidence as a Trial Judge and not required to appreciate evidence to conclude whether the materials produced were sufficient or not for convicting the accused. 14. In Ravindra Kumar Madhanlal Goenka (Supra) the Supreme Court observed that the jurisdiction under Section 482, Cr.P.C. could be exercised to prevent abuse of the process of any Court or otherwise to secure the end of justice and that such inherent power is to be exercised sparingly and with circumspection. It is settled law that the High Court in exercising jurisdiction under Section 482 Cr.P.C. is not to embark upon an enquiry to find whether the allegations in the complaint are likely to be established by evidence or not The function of the trial Court is to decide when the evidence comes before him. 15. As held in Murad Ali Khan (Supra), the Supreme Court has observed that Criminal offence is a wrong against the State and the society even though it has been committed against an individual. 15. As held in Murad Ali Khan (Supra), the Supreme Court has observed that Criminal offence is a wrong against the State and the society even though it has been committed against an individual. Normally, in serious offences, prosecution is launched by the State and a Court of law has no power to throw away prosecution solely on the ground of delay in approaching a Court of law. 16. In the case of Ashok Chaturvedi and others (Supra) the Supreme Court observed: "Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised." The Supreme Court also observed that the contention that the accused would get opportunity to submit at the time of framing of charges, is no ground for debarring him from approaching the court even at the earliest point of time. 17. In Nagawal Vs. Veeranne AIR 1976 SC 1947 the Supreme Court observed that Magistrate's order issuing process can be quashed if the order is found to be capricious and arbitrary and having been based either on no evidence or on materials which are wholly irrelevant or inadmissible. As held in the case of Punjab National Bank Vs. Surendra Prasad Singha, AIR 1992 SC 1815 , Magistrate using process is to find whether the concerned accused is legally responsible for the offence charged for. In view of the above, proposition of law it can be understood that a proceeding, or FIR or complaint order can be quashed, in exercise of powers under section 482 Cr.P.C. for the purpose of preventing miscarriage of justice and abuse of process, if the allegations made, therein, do not disclose a prima-facie case. However, in exercising the powers under Section 482 Cr.P.C., Court is not required to appreciate the evidence, to ascertain the truth in the allegations, which is the function of the trial Court. The test to be undertaken in a proceeding under Section 482 Cr.P.C. is whether non-exercise of the power would ultimately lead to abuse of the process of Court. However, in exercising the powers under Section 482 Cr.P.C., Court is not required to appreciate the evidence, to ascertain the truth in the allegations, which is the function of the trial Court. The test to be undertaken in a proceeding under Section 482 Cr.P.C. is whether non-exercise of the power would ultimately lead to abuse of the process of Court. In the case at hand, in the FIR, lodged by the respondent No. 2 it has been alleged that no consignment was sent by M/s. Nirmal Chawal Udyog and that the R.Rs. received by the informant were found to be forged or fake. The allegations made in the FIR aforesaid indicates that the concerned supplier had dishonestly induced the respondent No. 2 to send the bank drafts by sending forged/fake R.Rs. and that one of the bank draft, which was in order, was en-cashed. No allegation has been made against the present petitioner, who was the Branch Manager of the concerned Bank, with whom the bank account was opened. There is nothing to find that the petitioner had allowed to open the bank account flouting the existing procedure and with an intention to cheat the respondent. The petitioner, being a Branch Manager, it was within his power and lawful duty to allow the customers to open bank account and release money against deposit of genuine bank draft etc. There is nothing to show that the petitioner had allowed the said account holder to open the bank account, having knowledge that the party was not a genuine one. Also there is nothing, on record, to find that the petitioner had played any role in sending the forged/false R.Rs. aforesaid. In the charge-sheet submitted by the investigating officer, except mentioning the name of the petitioner along with other accused persons, nothing has been stated about the role played by him in sending the said R.Rs. Admittedly, the bank drafts were genuine and as such release of the money, on deposit of the bank draft, cannot be treated as an offence. The bank officer had no authority to stop the payment in respect of the bank draft, which was found to be genuine. From the record, it appears that the investigating agency failed to collect any evidence or materials to show the involvement of the petitioner with the issuance of false R.Rs. The bank officer had no authority to stop the payment in respect of the bank draft, which was found to be genuine. From the record, it appears that the investigating agency failed to collect any evidence or materials to show the involvement of the petitioner with the issuance of false R.Rs. Therefore, I have no hesitation in holding that no prima-facie case has been shown against the petitioner. The impugned order, passed by the learned Magistrate reads as follows:- "02.07.08: Case record is received on transfer. Cognizance is taken. Issue N.B.W.A. against the absconder accused and summon to the rest accd. Fix 06.08.08 for app." The learned Magistrate also, while taking cognizance and issuing process, did not record any reason with regard to taking of cognizance. In view of the principles held in the case of Bhajanlal (Supra), it is found that neither the FIR lodged by the informant, nor the materials collected by the investigating agency reveals a prima facie case requiring continuation of the proceeding against the petitioner. Therefore, in my considered opinion, in the absence of any prima-facie case against the petitioner, continuation of the proceeding would amount to abuse of process and put the petitioner to unnecessary harassment. Therefore, I find no difficulty in holding that, for ends of justice and in order to prevent abuse of process, the proceeding against the petitioner is required to be quashed. Accordingly, I find sufficient merit in this petition. The petition is allowed. The proceeding in GR. case No. 1352/1992, pending before the learned Chief Judicial Magistrate, Jorhat, so far it relates to the present petitioner is quashed. Return the LCR.