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2016 DIGILAW 1985 (HP)

Shyam Lal v. State of H. P.

2016-09-16

P.S.RANA

body2016
ORDER : P.S. Rana, J. Present petition is filed under Section 482 of Code of Criminal Procedure 1973 to quash FIR No. 32 of 2013 dated 16.7.2013 registered under Sections 409, 467, 468, 471 and 120(B) IPC at P.S. Reckeong Peo District Kinnaur H.P. and also to quash criminal proceedings of case No. 20/2 of 2014 title State of H.P. vs. Shyam Lal and another. Brief facts of the case 2. It is alleged that Senior Executive Engineer Electrical Division HPSEBL Reckongpeo filed FIR No. 32 of 2013 dated 16.7.2013 against accused persons namely Shyam Lal and Piare Lal alleging that Shri Shyam Lal draftsman was working in Electricity Division and has committed embezzlement of public money amounting to Rs.30,055/- (Rupees thirty thousand fifty five). FIR was registered and investigation conducted by Investigating Agency. Investigating Agency filed charge sheet against Shyam Lal petitioner and Piare Lal before learned Chief Judicial Magistrate Kinnaur at Reckongpeo on 30.5.2014. Feeling aggrieved against FIR and consequential criminal proceedings petitioner filed present petition. 3. Court heard learned Advocate appearing on behalf of petitioner and learned Additional Advocate General appearing on behalf of non-petitioners Nos. 1 to 3 and learned Advocate appearing on behalf of non-petitioner No.4 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 1973 is liable to be accepted as mentioned in memorandum of grounds of petition? Point No.2 Final order. Findings upon Point No. 1 with reasons 5. Submission of learned Advocate appearing on behalf of petitioner that petitioner was asked to assist the tender process committee to complete the formality of tender work and petitioner was asked to fill up the register and was asked to help the Superintendent of office for completion of tender process and petitioner did not receive any tender earnest money from contractors and same was received by Shri Piare Lal Sr. Assistant who actually issued the receipts against money received by him and on this ground petition be allowed is rejected being devoid of any force. Fact whether petitioner received tender earnest money from contractors or not is a complicated issue of facts. Judicial findings relating to complicated issue of facts cannot be given at this stage of case. Assistant who actually issued the receipts against money received by him and on this ground petition be allowed is rejected being devoid of any force. Fact whether petitioner received tender earnest money from contractors or not is a complicated issue of facts. Judicial findings relating to complicated issue of facts cannot be given at this stage of case. Judicial findings would be given after giving due opportunity to both parties to lead evidence in support of their case. 6. Submission of learned Advocate appearing on behalf of petitioner that separate disciplinary proceedings were initiated against the petitioner and inquiry officer submitted the report that petitioner is not liable and thereafter findings of inquiry officer remitted back and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that departmental proceedings and criminal proceedings under Indian Penal Code 1860 are distinct proceedings. It is well settled law that criminal proceedings under Indian Penal Code 1860 cannot be dropped automatically simply on ground that separate departmental proceedings are under process relating to same facts. It is well settled law that two parallel proceedings relating to same facts qua distinct offence could continue in accordance with law. See AIR 1961 SC 578 title State of Bombay vs. S.L.Apte. See AIR 1954 SC 375 title S.A.Venkataraman vs. Union of India. 7. Submission of learned Advocate appearing on behalf of petitioner that Senior Executive Engineer Electric Division HPSEBL Reckongpeo Kinnaur H.P. has enmity with petitioner because when Senior Executive Engineer Electric Division was posted at Kaza along with petitioner there was case of embezzlement registered against official who was close friend of Senior Executive Engineer and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Fact whether Senior Executive Engineer has enmity with petitioner because petitioner has registered embezzlement case against friend of Senior Executive Engineer at Kaza is also complicated issue of facts. It is held that judicial findings relating to complicated issue of facts cannot be given at this stage of case unless opportunity is granted to both parties to lead evidence in support of their case. 8. Submission of learned Advocate appearing on behalf of petitioner that petitioner is not involved in embezzlement of amount because earnest money of tender is received by Sr. 8. Submission of learned Advocate appearing on behalf of petitioner that petitioner is not involved in embezzlement of amount because earnest money of tender is received by Sr. Assistant Piare Lal and same is counter signed by SDO and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Whether earnest money of tender was received by Senior Assistant Shri Piare Lal or not is also complicated issue of facts. It is not expedient in the ends of justice to give judicial findings relating to complicated issue of facts at this stage of case unless opportunity is granted to both parties to lead evidence in support of their case. 9. Submission of learned Advocate appearing on behalf of petitioner that petitioner has no mala fide intention in recording the entry in register because if petitioner would have intention for embezzlement then he would actually record less amount in register than the money received and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Issue relating to absence of mensrea on part of petitioner cannot be decided at this stage of case because issue relating to absence of mensrea is a complicated issue of facts and it is not expedient in the ends of justice to give judicial findings relating to complicated issue of facts unless opportunity is granted to both parties to lead evidence in support of their case. 10. Submission of learned Advocate appearing on behalf of petitioner that tender processing committee did not adopt the proper procedure as per manual and on this ground petition be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Issue whether tender committee did not adopt the proper procedure is also complicated issue of facts. Judicial findings relating to non-adoption of proper procedure cannot be given at this stage of case unless opportunity is granted to both parties to lead evidence in support of their case. 11. After perusal of statement of prosecution witnesses annxed with charge sheet i.e. (1) Ajit Singh Negi (2) Piar Pur Negi (3) Jai Pal Singh (4) Deepak Chauhan (5) Jagdish Chand (6) Uveesh Chander (7) Mohan Singh (8) Bhupender Singh (9) Inder Singh (10) Kaami Lama (11) Dr. 11. After perusal of statement of prosecution witnesses annxed with charge sheet i.e. (1) Ajit Singh Negi (2) Piar Pur Negi (3) Jai Pal Singh (4) Deepak Chauhan (5) Jagdish Chand (6) Uveesh Chander (7) Mohan Singh (8) Bhupender Singh (9) Inder Singh (10) Kaami Lama (11) Dr. Visheshwar Sharma (12) Punya Ram (13) HC Sarju Ram (14) C. Rajesh Kumar (15) Deputy Superintendent Yadav Chand, (16) Yodha Ram and (17) Laxman Kumar recorded under Section 161 Cr.P.C. prima facie there are sufficient grounds to proceed against the accused/petitioner. 12. After perusal of documentary evidence placed on record i.e. (1) Challan form (2) FIR (3) Complaint along with documents (4) Recovery memo (5) Letter No. 434(Sectt.)FTE/2/DOFP/2011 (6) Tender form sale register (7) Tender opening register (8) Notice Inviting tender (9) Applications of contractors for tender (10) Tender document dated 3.7.2013 (11) Receipt Book No. 0084201 to 0084300 (12) Receipt Book No. 0084201 to 0084400 (13) Applications of contractors to withdraw deposited earnest money (14) Letter No. 8120 dated 2.1.2014 along with cash book page No. 72 dated 4.7.2013 (15) Copies of appointment and posting order of petitioner Shyam Lal draftsman (16) Copies of appointment and posting order of co-accused Piare Lal cashier (17) Specimen handwriting and signatures of petitioner/co-accused Shyam Lal Draftsman S-1 to S-24. (18) Specimen hand writing and signatures of co-accused Piare Lal cashier S-25 to S-48. (19) Report filed by SFSL Junga it is held that prima facie there are sufficient grounds to proceed against the petitioner. 13. Offence under Sections 409, 468, 471 IPC are cognizable criminal offence. It is well settled law that investigating agency is under statutory obligation to investigate the case relating to FIR filed in cognizable criminal cases. It is well settled law that disputed and controversial facts should not be made basis for quashing criminal proceedings. It is well settled law that High Court should exercise jurisdiction under Section 482 Cr.P.C. for quashing FIR and criminal proceedings sparingly and with circumspection. It is well settled law that evaluation of truth and falsity would be possible when evidence would be recorded by learned Trial Court in accordance with law. 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 439 title Mahesh Chaudhary vs. State of Rajasthan. 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 439 title Mahesh Chaudhary vs. State of Rajasthan. See AIR 2014 SC 2567 title Rishi Pal Singh vs. State of U.P. See (2004)1 SCC 691 title State of M.P. vs. Awadh Kishore Gupta. See AIR 2005 SC 359 title State of Orissa vs. Debendra Nath. See (1995)2 SCC 449 State of T.N. vs. Thirukkural Perumal. See (1992) Supp 1 SCC 335 title State of Haryana vs. Bhajan Lal. See (2012)10 SCC 155 title State of M.P. vs. Surendra Kori. See AIR 1981 SC 1548 title Mohd. Akbar Das and others vs. State of J&K. In view of above stated facts and case law cited supra point No. 1 is answered in negative. Point No.2(Final Order) 14. In view of findings upon point No.1 petition filed under Section 482 Cr.P.C. is dismissed. Parties are directed to appear before learned Trial Court on 30.9.2016. Observations will not effect merits of case in any manner and will be strictly confine to disposal of present petition. File of learned Trial Court along with certify copy of order be sent back forthwith. Cr. MMO No. 193 of 2015 is disposed of. Pending miscellaneous applications if any also stands disposed of.