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Himachal Pradesh High Court · body

2016 DIGILAW 1747 (HP)

Devinder Kumar Dhar v. State of H. P.

2016-08-22

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Section 482 of Code of Criminal Procedure to quash FIR No. 23 of 2011 dated 26.1.2011 registered under Sections 419, 420, 467, 468, 471 and 120-B IPC and also to quash criminal proceedings pending before criminal Court situated at Una (H.P.). Brief facts of the case 2. Brief facts of case as alleged by prosecution are that petitioner/co-accused Devinder Kumar was posted as Branch Manager in Corporation Bank at Ambala Branch on 25.1.2011 and petitioner Devinder Kumar issued forged certificate Annexure P-3 in favour of Mr.K.P. Bhardwaj relating to amount of Rs.1 crore and certified in forged manner in Annexure P-3 that Mr.K.P.Bhardwaj is valuable customer of Corporation Bank and is having saving account with Corporation Bank at Ambala city and at Panchkula branch of Corporation Bank also. It is alleged that co-accused Devinder Kumar has given false and fabricated certificate Annexure P-3 for transshipment of huge amount of money amounting to Rs.1 crore in connivance with other co-accused in order to facilitate the other co-accused for commission of criminal offence. It is alleged that petitioner has given false and fabricated certificate Annexure P-3 for commission of criminal offence with recital in fabricated certificate Annexure P-3 that Mr.K.P.Bhardwaj had sold his property at New Delhi and amount of Rs.1 crore would be remitted to his account vide cash transaction carried in vehicle No. HR-03H-6194. It is alleged that petitioner has given certificate Annexure P-3 that transshipment of Rs. 1 crore in vehicle No. HR-03H-6194 is genuine banking transaction for credit of SB account of captioned party. FIR No. 23 of 2011 dated 26.1.2011 registered against petitioner and other co-accused under Sections 419, 420, 467, 468, 471 and 120-B IPC in P.S. Una District Una H.P. After registration of FIR investigation conducted and charge sheet filed against accused persons. 3. Response filed on behalf of State of H.P. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of State and also perused the record carefully. 4. 3. Response filed on behalf of State of H.P. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of State and also perused the record carefully. 4. Following points arise for determination in present petition:- Point No.1 Whether petition filed under Section 482 of Code of Criminal Procedure is liable to be accepted as mentioned in memorandum of grounds of petition and whether it is expedient in the ends of justice to announce judicial decision relating to complicated issue of fact of conspiracy in proceedings under Section 482 Cr.P.C. before trial of case? Point No.2 Final order. Findings upon Point No. 1 with reasons 5. Submission of learned Advocate appearing on behalf of petitioner that petitioner has no connection with criminal offence and petitioner has issued the certificate Annexure P-3 only for carrying the cash to branch of bank situated at Ambala and certificate was issued by exercising official duty in the interest of Bank and no criminal act of conspiracy can be attributed to petitioner is rejected being devoid of any force for the reasons hereinafter mentioned. Court has carefully perused certificate issued by petitioner Annexure P-3 placed on record. Copy of Annexure P-3 placed on record is quoted in toto:- 6. CORPORATION BANK AMBALA BRANCH HARYANA To whomsoever it may concern OR/DKD/AMB/14/2011 25.01.2011 This is to certify that Shri K.P. Bhardwaj is our valued customer having his Saving Bank Account with us and at Panchkula Branch also. He has sold his property at New Delhi and amount of Rs.1 crore is being remitted to his account vide cash transaction and carried in vehicle No. HP-3H6194. This is a genuine banking transaction for the credit of SB A/c of captioned party. Sd/- For Corporation Bank Senior Manager, Ambala City 7. Petitioner has given certificate that Shri K.P. Bhardwaj has sold his property at New Delhi amounting to Rs.1crore and same is remitted to his account vide cash transaction carried in vehicle No. HR-03H-6194. Petitioner has also given certificate that same is genuine banking transaction for credit of SB Account of captioned party. Court is of the opinion that Branch Manager can legally give the certificate relating to transaction conducted inside the bank. Court is of the opinion that Branch Manager has no legal authority to give any certificate relating to transaction conducted outside the premises of bank. Court is of the opinion that Branch Manager can legally give the certificate relating to transaction conducted inside the bank. Court is of the opinion that Branch Manager has no legal authority to give any certificate relating to transaction conducted outside the premises of bank. In present case prima facie it appears that petitioner has given certificate relating to sale of property by Mr.K.P. Bhardwaj situated at New Delhi. As per certificate Annexure P-3 placed on record Mr.K.P. Bhardwaj has sold the property at New Delhi in consideration amount of Rs.1 crore and petitioner has given certificate relating to property of Mr.K.P.Bhardwaj sold at New Delhi in consideration amount of Rs.1crore. Allegations against the petitioner are that petitioner committed criminal conspiracy with other co-accused in order to facilitate other co-accused to commit criminal offence punishable under Sections 419, 420, 467, 468, 471 and 120-B IPC. 8. Criminal offence under Section 120-B IPC is an agreement between the parties to do a particular criminal act. To bring home the charge of criminal conspiracy within ambit of Section 120-B IPC it is necessary to establish that there was an agreement between parties for doing an unlawful act. It is well settled law that it is difficult to establish conspiracy by way of direct evidence. See AIR 1999 SC 782 title Sanjiv Kumar vs. State of H.P. See AIR 1999 SC 1086 title Vijayan vs. State of Kerala. See JT 2010(13) SC 284 title Johan Pandian vs. State. Whether petitioner committed criminal conspiracy with co-accused or not is a complicated issue of facts. It is well settled law that complicated issue of facts should not be decided in proceedings filed under Section 482 Cr.P.C. Same fact will be decided by learned Trial Court during trial of case after giving due opportunity to both parties to prove their case. 9. It is well settled law that complicated issue of facts should not be decided in proceedings filed under Section 482 Cr.P.C. Same fact will be decided by learned Trial Court during trial of case after giving due opportunity to both parties to prove their case. 9. Statements of following persons annexed with final charge sheet filed against accused persons namely (1) Vivek Kumar, (2) Chanchal Wali, (3) HC Malkiat Singh, (4) HC Randhir Singh, (5) HC Sher Singh, (6) C.Sukh Ram, (7) Suresh Kumar, (8) Kamal, (9) Kishan Bhandari, (10) Karma Sonam, (11) Karma Chungyalpa, (12) Dhava, (13) Karma Tenam, (14) Soni Ram, (15) Rattan Chand, (16) Karma Dudal, (17) Yupten Sherap, (18) Maali Ram, (19) Banwari Lal Sharma, (20) Manish Sharma (21) Smt. Shering, (22) Tashi Tarti, (23) Rajender Mohan, (24) Narinder Sharma, (25) A.K. Bhardwaj, (26) Kartik Bhardwaj, (27) Vijom Bhardwaj, (28) Raj Kumar Dogra, (29) C.Sawarn Singh, (30) HHC Ramesh Chand, (31) HHC Ashwani Kumar, (32) Smt. Madhu Bhardwaj, (33) Om Parkash Bhardwaj, (34) HC Sudarshan Kumar, (35) HC Rajinder Kumar, (36) Anil Soni, (37) Raghunath singh, (38) Virji Kaul, (39) Anil Gupta, (40) Rajesh Singh, (41) Janak Raj, (42) Karma T-Shiring, (43) Jagdish Chand, (44) Ravinder Kumar, (45) Deep Aangra, (46) HC Satish Kumar, (47) ASI Yog Raj, (48) Karma Daadul, (49) Sandeep Kakad, (50) Vipin Kumar, (51) C.Surender Kumar, (52) Vijay Kumar, (53) Sukhdev Singh, (54) HC Vinod Kumar, (55) HC Sanjay Kumar, (56) Gurukirpal Singh, (57) Subodh Kumar Sonal, (58) H.N. Chittu (Hari Narayan), (59) Rajesh Tomar, (60) Visheshwar Sharma, (61) Mam Raj Sharma, (62) Dr.Minakshi Mahajan, (63) Amitendra Parmar, (64) Mrs. Mohini Makhijani, (65) Subhash Chand Sharma, (66) Pawan Kapila, (67) Shekhar Kumar, (68) Vipin Gupta, (69) MHC Ajaib Singh, (70) HC Satish Kumar, (71) ASI Manoj Kumar, (72) Manoj Jamwal, (73) Surender Sharma, (74) Rakesh Singh, (75) Yash Pal Singh, (76) SHO Negi Ram, (77) ASI Kaur Chand, (78) Addl.SP Sh.K.G. Kapoor and (79) SHO Ruldu Ram Thakur and fifty two documents also filed along with final charge sheet. Court is of the opinion that in view of statements of 79 witnesses recorded during investigation and in view of 52 documents annexed with charge sheet against accused persons it is not expedient in the ends of justice to announce judicial decision relating to conspiracy at this stage of case without trial. 10. Court is of the opinion that in view of statements of 79 witnesses recorded during investigation and in view of 52 documents annexed with charge sheet against accused persons it is not expedient in the ends of justice to announce judicial decision relating to conspiracy at this stage of case without trial. 10. It is well settled law that High Court should not decide disputed question of facts in proceedings under Section 482 of Code of Criminal Procedure 1973 prior to trial of case by learned Trial Court. See AIR 2014 SC 3352 title Mosiruddin Munshi vs. Md. Siraj and another. See (2009)1 SCC 516 title R.Kalyani vs. Janak C. Mehta. See (2009)4 SCC 443 title Mahesh Chaudhry vs. State of Rajasthan. See AIR 2014 SC 2567 title Rishipal Singh vs. State of U.P. See (2004)1 SC 691 title State of M.P. vs. Awadh Kisore. Defence plea of petitioner would be determined by learned Trial Court after giving due opportunities to both parties to prove their case. It is well settled law that power of quashing FIR and criminal proceedings should be exercised sparingly by Court with circumspection. Normal process of criminal trial should not be cut short in a casual manner. See (1995)2 SCC 449 State of T.N. vs. Thirukkural Perumal. Issue of absence of mensrea or actus reus would be decided by learned Trial Court during trial of case after giving due opportunity to prove their case. Point No. 1 is answered in negative. Point No.2(Final Order) 11. In view of findings upon point No.1 petition filed under Section 482 Cr.P.C, is dismissed. Certificate issued by petitioner Annexure P-3 dated 25.1.2011 will form part and parcel of order. Parties are directed to appear before learned Trial Court on 31.8.2016. Observations will not effect the merits of case in any manner and strictly confine to disposal of present petition. Certified copy of this order be sent to learned Trial Court for compliance. Cr. MMO No. 203 of 2014 is disposed of. Pending miscellaneous applications if any also stands disposed of.