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2021 DIGILAW 427 (JK)

Suman Sharma v. Union of J&K

2021-08-23

RAJNESH OSWAL

body2021
JUDGMENT : CRMC No. 600/2015 1. The present petition has been filed by the petitioner for quashing the FIR number RC 0042015A0005 dated 29-01-2015 registered against the petitioner by the Central Bureau of Investigation (CBI). 2. The petitioner is the President of NGO, namely, M/s. SS Institute of Professional and Technical Education(Girls) and claims to be running this NGO with the object of achieving women empowerment by imparting various training program to the beneficiaries selected for design and technical development workshop and skill up-gradation training program in order to make the artisans skilful and self-dependent. It is stated that the five programs were sanctioned in favour of petitioner’s NGO by the Government of India, Ministry of Textile, Office of the Commissioner Handicrafts, New Delhi for providing training programme (skill up-gradation of the artisans) in Sozni Embroidery Craft at Block Khour J&K. The NGO concerned has completed the five programs as per the rules and directions issued vide sanction dated 05.11.2012 and as per different communications made by the Government of India from time to time to the NGO. The payment of all the programs has been released in favour of the NGO after adopting the procedure which includes utilization certificate issued by the Chartered Accountant and progress, achievement report counter signed by the Asst Director Handicrafts but despite this, a false and frivolous case has been registered by the CBI, respondents herein against the petitioner who is the President of the NGO by registering the FIR impugned for commission of offences under sections 120-B, 420, 461, 467, 468 and 471 RPC and 5(1)d and 5(2) of the J&K Prevention of Corruption Act. It is stated that the said FIR has been registered without appreciating the fact that these are the centre sponsored schemes and projects and all payments have been made in favour of the concerned NGO under prescribed rules and regulations and the same is sanctioned by the Government authorities. Further the payments have been made by the Central Government authorities after proper verification of documents and claims of the NGO. The payment application of NGO has been processed by the concerned Assistant Director Handicrafts along with the relevant documents so there is no question of cheating and tampering of records by the concerned NGO. Further the payments have been made by the Central Government authorities after proper verification of documents and claims of the NGO. The payment application of NGO has been processed by the concerned Assistant Director Handicrafts along with the relevant documents so there is no question of cheating and tampering of records by the concerned NGO. The false and frivolous allegation has been made against the petitioner that being the President of the concerned NGO in connivance with Assistant Director Handicrafts Department petitioner, has siphoned government funds of Rs.17,25,000/- during the period 2000 onwards, that is impossible as the total cost of the five programs was Rs.10,83,000/. As per the instructions of the Development Commissioner, the wage compensation to each artisan and beneficiary under the program was to be paid through an account payee cheque however, in the present case, concerned authorities of the NGO has issued the cheque in favour of the beneficiaries but those beneficiaries belonged to remote areas and being uneducated were reluctant to take these account payee cheques and requested the NGO to get the cheques encashed through their sources and distribute cash at their home for payment of wages and ultimately in order to pay the wages to the artisans/beneficiaries, the above said cheques were encashed by organization in cash and amounts were disbursed to the artisan/beneficiaries. 3. The petitioner has questioned the FIR on the ground that there is nothing on record that demonstrates the involvement of the petitioner in the commission of the offences mentioned in the impugned FIR, particularly when no complaint has been filed by any artisan or Government of India against the NGO. The allegations contained in the impugned FIR taken at their face value do not constitute any offence, the allegations made in the FIR are absurd and has been registered with mala fide intention and ulterior motive to implicate the petitioner in false and frivolous case. The petitioner has placed on record the copy of the records of payment of cash disbursed to the artisans, designers and teachers. 4. The petitioner has placed on record the copy of the records of payment of cash disbursed to the artisans, designers and teachers. 4. The response has been filed by the respondents in which it is stated that the instant case was registered on 29.01.2015 under sections 120-B, read with sections 420, 467, 468 and 471 and 5(2) and 5(1) d of the J&K Prevention of Corruption Act against the petitioner, President of M/s. SS Institute of Professional and Technical Education (Girls), Som Nath, the then Assistant Director Handicrafts, Jammu and unknown others for criminal conspiracy, abuse of official position, cheating and dishonestly inducing delivery of property, forgery of valuable security, using the forged documents as genuine and thereby causing wrongful loss to the Government Exchequer. It has been alleged that the Assistant Director, Handicrafts in criminal conspiracy with the petitioner, President of M/s SS Institute of Professional and Technical Education(Girls), 564, Subhash Nagar Jammu, with dishonest and fraudulent intention, wrongly recommended the utilization certificate of programs of centrally sponsored schemes/workshop of the NGO for disbursement. The funds to the tune of Rs.17,25,000/- approximately were siphoned off by the NGO without conducting the workshops. It was further alleged in the FIR that the petitioner, Suman Sharma, President of the Institute had misappropriated the honorarium of artisans by issuing bearer cheques those were encashed by the NGO. It is further stated that during investigation conducted between 29.01.2015 to 18.12.2015 (before stay) and from 03.02.2020(i.e. after vacation of stay to till date i.e. 28.04.2021), statements of 158 witnesses have been recorded and 111 documents have been collected. It is established during the investigation that the Institute had responded to a public advertisement notice issued during the year 2011 by the office of the Development Commissioner, Handicrafts, New Delhi for the year 2011-2012. The Development Commissioner, Handicrafts, New Delhi had issued 08 sanction orders including baseline survey of artisans, in favour of M/s. SS Institute of Professional and Technical Education (Girls). In each sanction order, while initial 50% of grant was released as advance i.e. before conducting the intervention and the remaining 50% of the grant was sanctioned and released after forwarding of reimbursement documents by the Assistant Director Handicraft to the Regional Director, Northern Region. The details of the 08 sanction orders have been mentioned in the response filed by the respondents. The details of the 08 sanction orders have been mentioned in the response filed by the respondents. Amount of Rs.17.25 lacs were sanctioned in lieu of 8 sanction orders in favour of the said NGO for conducting different programs of skill up-gradation training programs and design workshops. The first five sanction orders were executed by the NGO against which reimbursement were received by them. The maximum duration of the intervention as well as financial limits for the grant-in-aid varied from intervention to intervention. For Design Development Workshop, the maximum financial ceiling is Rs.1.80 lacs and duration of workshop is 15 days and for training of handicrafts other than carpets maximum financial ceiling is 1.81 lacs and duration of training is 04 months. The 50% of the advance payment of sanctioned amount of a particular intervention was directly credited in the bank account of the NGO and the remaining 50% was released directly in the bank account of NGO after receipt of intervention completion documents from the NGO, as reimbursement. The 17 self help groups of 250 artisans were formed by the Institute in different villages of Block Khour, Jammu. It has been established that an amount of Rs.16.75 lacs have been credited in the Account No. 10024155089 of the Institute maintained with SBI Rehari Chungi Branch Jammu through 12 NEFT transactions from account number 03175428901 of the Department of Development Commissioner (Handicraft) New Delhi held at Central Bank of India, Udyog Bhavan Branch, New Delhi against eight sanction orders for carrying out different activities in the villages of Pargwal, Rangpur, Balwal, Channi Tana, Chandi Phagwari and Moh Brahmana. Further the NEFT transaction of Rs. 50,000/- was credited in the account No. 10024155089 of the Institute maintained with SBI, Rehari Branch Jammu from account No. 3000179712 of the Department of Development Commissioner(Handicraft) New Delhi maintained with Central Bank of India, Safdarjung Enclave Branch, New Delhi. In tabulation form, it has been mentioned that sum of Rs. 5,42,000/- was returned by the NGO as such the total amount received by the NGO is Rs.11.83 lacs. It has been established in the investigation that some of the lady artisans had neither participated in the training program of the Institute nor did they receive cheques from the petitioner. However some lady artisans admitted having participated in such programs for a few days but nothing was paid to them. It has been established in the investigation that some of the lady artisans had neither participated in the training program of the Institute nor did they receive cheques from the petitioner. However some lady artisans admitted having participated in such programs for a few days but nothing was paid to them. Most of the lady artisans shown as having participated in the training programs, have also denied having either appended their signatures over the payment receipts or having received payments through cheques as has been shown in the payment receipts of the NGO at different villages of block Pargwal. In one of such instance, the account payee cheques bearing No. 189845 dated 04.03.2013 and 398453 dated 08.04.2013, each for Rs. 3000/- shown to be issued to Smt. Sushma Devi w/o Sh. Mangat Ram, for participating in skill up-gradation training program held at village Balwal w.e.f. 19.12.2012 to 19.04.2013, are actually cancelled cheques but have been shown to have been received by her at serial No. 6 of the payment receipt. Similarly, Smt. Vijay Kumari w/o Sh. Balbir Singh and Smt. Asha Devi w/o Sh. Bhagwan Dass, have also been shown to have issued account payee cheques bearing numbers 189850 dated 04.03.2013, 398458 dated 08.04.2013 and 189844 dated 04.03.2013 and 398452 dated 08.04.2013, each for Rs.3000/- respectively. These cheques have been shown to have been received by them at serial Nos. 11 and 5 of the payment receipt respectively. The respondents claim to have established that most of the cheques shown as issued to artisans by Smt. Suman Sharma, President of the Institute, on the record of her NGO, had been withdrawn by her in connivance with her employees to defraud the Government and siphon off the funds. Most of the lady artisans have revealed that Deepak Thukral, Designer did not attend the training programmes of design workshop, shown as conducted between 17.01.2013 to 31.01.2013 held at village Pargwal and 01.02.2013 to 15.02.2013 at village Rangpur for complete 15 days and Smt. Renu Kumari Designer did not attend the training programs of Design Workshop, shown as conducted between 29.01.2013 to 12.02.2013 held at village Pindi for complete 15 days. It is further stated that the petitioner, the President of the Institute processed false and fraudulent receipts of instructors, artisans and rent deed for payment and misused private representatives (employed by her). It is further stated that the petitioner, the President of the Institute processed false and fraudulent receipts of instructors, artisans and rent deed for payment and misused private representatives (employed by her). GEQD has given positive opinion on the specimen signatures on bearer cheques issued against the names of lady artisans of village Balwal. It is also stated that the Chartered Accountant has made a statement that he had mentioned in the utilization certificate issued by him that payment to trainees/designers/ master craftsperson expert have been made through account payee cheques on the basis of letter dated 22.04.2013 issued to him by the President of the NGO. In the response it has been also mentioned that the then Assistant Director, failed to comply with the guidelines of the Office of Development Commissioner, Handicraft Department, New Delhi dated 01.07.2011. 5. Mr. Abhinav Sharma, learned senior counsel has vehemently argued that no offence is made out from the bare perusal of the FIR and further that the NGO has made payments to all the artisans and there is no complaint by any artisan that she has not received any payment from the NGO. He further argued that some of the artisans belonged to remote areas and they were reluctant to receive the payment through account payee cheques and as such payment was made through cash. Learned senior counsel further submitted that the Investigating Officer has not taken into consideration the various payments made validly by the NGO during investigation. 6. Per Contra, Ms. Monika Kohli, learned counsel for the respondents argued that all the contentions raised by the petitioner in the present petition have been taken care of by the Investigating Officer during the course of investigation and further that the investigation is complete and only challan is to be filed. 7. Heard and perused the record. 8. 6. Per Contra, Ms. Monika Kohli, learned counsel for the respondents argued that all the contentions raised by the petitioner in the present petition have been taken care of by the Investigating Officer during the course of investigation and further that the investigation is complete and only challan is to be filed. 7. Heard and perused the record. 8. From the record, it is evident that preliminary enquiry was registered against M/s. SS Institute of Professional and Technical Education (Girls) and 9 other NGOs on the basis of source information report that the NGOs through their representatives in league with the officials of marketing and service Extension centres Jammu under the office of Regional Director (NR) and Office of the Development Commissioner (Handicrafts), Ministry of Textiles, Government of India, New Delhi were wrongly got sanctioned centrally sponsored schemes/workshop and thereafter siphoned off Central Government funds worth crores of rupees without conducting workshops as per guidelines. During the course of enquiry, it was found that the interventions 18 in numbers were not conducted properly or not conducted at all with mala fide intention to cheat the public as well as handicraft department. The panel designer was supposed to remain present at the workshop site for a specified time period that is ten days in a fifteen days workshop. However, enquiry revealed that the panel designers had attended the workshop on the day of inspection of the concerned Assistant Director only. It was also revealed during the enquiry that the fake utilization certificates were prepared and showed the compensation paid to the artisans through the cheques. The artisans disowned their signatures on the Acquaintance Roll in token of having received payments. The Handicraft Officer concerned instead of verifying the genuineness or otherwise of utilization certificates, countersigned the same which were used by the petitioner for reimbursement of second installment and adjustment of advance as first installment and thereby cause wrongful loss to the Government Exchequer. Certain other instances of irregularities were also mentioned in the enquiry report the details of which are not required to be mentioned herein. After the conclusion of the preliminary enquiry, FIR impugned was registered. 9. First contention that has been raised by the petitioner is that the FIR impugned does not disclose commission of any offence by the petitioner. The learned counsel had strenuously argued that once the sum of Rs. After the conclusion of the preliminary enquiry, FIR impugned was registered. 9. First contention that has been raised by the petitioner is that the FIR impugned does not disclose commission of any offence by the petitioner. The learned counsel had strenuously argued that once the sum of Rs. 5,42,000/- was returned by the NGO then how the NGO can misappropriate a sum of Rs.17.25 lacs as mentioned in the FIR. The argument though attractive but deserves to be rejected because of simple reason that FIR need not be an encyclopedia and the purpose of the FIR is only to set the criminal law in motion, so as to find out the truth of the allegations leveled in FIR. The Investigating Officer during the course of investigation has considered this aspect and has come to the conclusion that a sum of Rs.11,83,000/-was received by the NGO as three interventions were returned by the petitioner. The allegations leveled in the FIR required investigation that was initially stayed by this Court and subsequently the respondents were permitted to proceed ahead with the investigation. During the course of the investigation, the Investigating Officer has collected the incriminating material against the petitioner and the other accused so it cannot be said that there is no case against the petitioner. In the response filed by the respondents, it is evident that certain amounts have been shown to be paid against the cancelled cheques. The respondents had produced the proposed challan for the perusal of the Court and in the said challan, the details of misappropriation have been specifically mentioned. The claim of the petitioner that certain amounts paid validly by the NGO have not been taken into consideration during investigation though misconceived, is a disputed question of fact and cannot be adjudicated upon in a petition under section 561-A(now 482) Cr.P.C. The contention of the petitioner that the present petition has been filed with the ulterior motive just to falsely implicate the petitioner is also misconceived as it was not only the NGO of the petitioner but also nine other NGOs, those were the subject matter of the enquiry. 10. Now it is to be seen as to whether the FIR in question is liable to be quashed on the grounds urged by the petitioner. 10. Now it is to be seen as to whether the FIR in question is liable to be quashed on the grounds urged by the petitioner. Law is well settled that while examining the validity of a FIR, the Court is not supposed to act like an investigating agency as well as appellate court to determine the merits of the allegations leveled in the FIR. Once the FIR contains the allegations disclosing the commission of cognizable offence, then the same become a matter of investigation. 11. In Dineshbhai Chandubhai Patel v. State of Gujarat, reported in (2018) 3 SCC 104 , the Apex Court has held as under: “29. The High Court, in our view, failed to see the extent of its jurisdiction, which it possesses to exercise while examining the legality of any FIR complaining commission of several cognizable offences by the accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof. 30. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the complainants and vice versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine the questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 31. In our considered opinion, once the court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code. 32. 31. In our considered opinion, once the court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code. 32. The very fact that the High Court in this case went into the minutest details in relation to every aspect of the case and devoted 89 pages judgment to quash the FIR in part led us to draw a conclusion that the High Court had exceeded its powers while exercising its inherent jurisdiction under Section 482 of the Code. We cannot concur with such approach of the High Court. 33. The inherent powers of the High Court, which are obviously not defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down by this Court while exercising inherent powers must always be kept in mind else it would lead to committing the jurisdictional error in deciding the case. Such is the case here.” 12. For all what has been discussed above, I am of the considered opinion that the allegations leveled in the FIR against the petitioner disclose the commission of cognizable offence and further in view of the investigation conducted by the Investigating Officer, this is not a case that warrants the exercise of powers under section 561-A (now 482) Cr.P.C. for quashing the FIR. The petition, as such, is found to be without any merit and the same is dismissed. WP(C) No. 1581/2020 13. During the pendency of the aforesaid petition for quashing FIR bearing No. RC:0042015A0005 dated 29.01.2015, the petitioner has also filed the present writ petition under Article 226 of the Constitution of India on 09.10.2020, for commanding respondent No. 2 to 4 not to interfere in the smooth functioning of the petitioner’s NGO under the name of M/s SS Institute of Professional and Technical Education (Girls) and further for commanding the respondent Nos. 2 to 4 not to defame the name of the NGO of the petitioner. 14. Ever since filing of the present writ petition, none appeared on behalf of the petitioner. 2 to 4 not to defame the name of the NGO of the petitioner. 14. Ever since filing of the present writ petition, none appeared on behalf of the petitioner. However, vide order dated 02.11.2020, on the submission made by the learned counsel for the respondents in CRMC No. 600/2015, the present petition was listed along with the petition filed under section 561-A Cr.P.C. 15. No notice has been issued in this writ petition but the respondents have filed the response. 16. Be that as it may, a perusal of the writ petition reveals that the same has been filed with ulterior motive just to stall the investigation and that too when this Court in CRMC No. 600/2015 (supra) directed continuance of the investigation. Needless to say that the stay of investigation in aforesaid CRMC No. 600/2015 remained in force from 2015 and till 03.02.2020 and during this period, the petitioner never claimed that the respondents are trying to interfere with the smooth functioning of the petitioner’s NGO and it was only after the respondents were permitted to investigate the matter, the present writ petition has been filed. 17. This Court is of the considered view that the present petition has been filed just to hamper the investigation. There is no merit in this writ petition, as such, the same is dismissed.