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2021 DIGILAW 70 (MP)

Janardan Pandey v. Amit Kumar Sahu

2021-01-25

RAJENDRA KUMAR SRIVASTAVA

body2021
ORDER : Rajendra Kumar Srivastava, J. 1. This Miscellaneous Criminal Case has been filed by the applicant under Section 482 of the Cr.P.C. for quashing the order dated 02.12.2019 and further proceedings thereto pursuant to private complaint filed by the complainant/respondent No. 1. By the impugned order, the JMFC Waidhan, District-Singrauli took the cognizance against the applicant under Sections 406, 469 and 120-B of IPC. 2. According to case, complainant/respondent No. 1 has filed a private complaint before the JMFC, Waidhan stating therein that respondent No. 1 was posted as T.G.T. at Delhi Public School Vindhyanagar, District-Singrauli. The present applicant was working as a Principal of said school. While posting of the complainant, the present applicant wanted some illegal benefit and on refusal thereof, he started keeping grudge with the complainant and on account thereof, on 11.07.2018, in conspiracy with other persons, the present applicant asked about the conduct report of the complainant from the other co-accused (R.K. Pandey, Principal of DPS, Agra) and head of Kids Corner Happy Senior Secondary School, Firozabad and in response thereof co-accused-R.K. Pandey and Deepak Kumar (Clerk of Kids Corner Happy Senior Secondary School, Firozabad) had sent a false e-mail about the conduct of complainant/respondent No. 1 to the present applicant and based on the aforesaid conduct report, the present applicant recommended the termination of complainant/respondent No. 1 and therefore on 23.03.2019, the complainant was terminated from his post without giving any opportunity of hearing. As per the complainant/respondent No. 1, when he wrote a letter to the earlier Principal of DPS Agra, he had received the report about his good conduct. He further mentioned in the complaint that he also wrote a letter to Ms. Rupali Bhatnagar, Principal of Kids Corner Happy Senior Secondary School, Firozabad, who informed him that the e-mail about the work conduct was falsely sent by the clerk Deepak Kumar, who has been terminated now. 3. After recording the statements of complainant as well as two other witnesses, the learned JMFC found sufficient reason to take the cognizance under Sections 406, 469 and 120-B of the IPC against the present applicant and other co-accused-RK. Pandey. 4. Learned counsel for the applicant submits that learned JMFC has failed to appreciate the fact that the entire complaint has been initiated in order to achieve ulterior motive. Pandey. 4. Learned counsel for the applicant submits that learned JMFC has failed to appreciate the fact that the entire complaint has been initiated in order to achieve ulterior motive. He submits that the learned JMFC has also failed to look the fact that the action taken by the DPS Society is civil nature, against which criminal proceeding can not be initiated. The complaint does not show necessary ingredients to constitute the offence under Sections 406, 469 and 120-B of the IPC. In fact, the present applicant is working as Principal and on account of undesirable behaviour of the complainant as well as in response to complaint filed by the students and their parents, the present applicant has only sought feedback from the earlier employer of the complainant which can not be termed as an offence under the IPC. For the sake of argument, if it is presumed that the allegations made by the complainant is true, even then, no offence is made out against the present applicant as allegation regarding preparing or sending false work conduct report, is against the Deepak Kumar who has not been impleaded as an accused in private complaint. In support of private complaint filed by the respondent No. 1, no witness has been examined who make abundantly clear that any alleged misconduct was ever done by the applicant. There is no prima-facie material which shows any form of connectivity of the present applicant with Deepak Kumar who alleged to have sent a false conduct report of the complainant/respondent No. 1 through e-mail. In fact, a request was made by the present applicant to the complainant to teach other similar subjects but the complainant was refused to do so. In addition to above, the complainant was creating nuisance in the school premises and in this regard show cause notice had also been issued against him by the applicant. The complainant used to disobey the order given by the present applicant. Therefore, the applicant had to sent a report about the misconduct of the complainant to the Higher Authority. Subsequently, the director of DPS Society, namely, Ms. Sandhya Awasthi carried a sudden inspection in the school on 12.01.2018 and vide letter dated 12.07.2018, she informed about her observation regarding the grave misconduct of the complainant/respondent No. 1 during her visit. The complainant was terminated after following due procedure of law. Subsequently, the director of DPS Society, namely, Ms. Sandhya Awasthi carried a sudden inspection in the school on 12.01.2018 and vide letter dated 12.07.2018, she informed about her observation regarding the grave misconduct of the complainant/respondent No. 1 during her visit. The complainant was terminated after following due procedure of law. The report of inquiry committee is also annexed in the case as Annexure A/15. The complainant has already challenged his termination order before this High Court and same is pending for consideration. The present applicant can not be fastened with any criminal liability. In support of his contention he relied on the judgment passed in the cases of Anand Kumar Mohatta Vs. State (NCT of Delhi); (2019) 11 SCC 706, Sheila Sebastian Vs. R. Jawahar Raj; (2018) 7 SCC 581 , Ahmedali Qureshi & another Vs. State of U.P. & Ors, Vinod Natesan Vs. State of Kerala; (2019) 2 SCC 401 , M. Suresh & Ors. Vs. State of Andhra Pradesh & another; (2018) 15 SCC 273 , Joshep Salvaraj Vs. State of Gujrat; (2011) 7 SCC 59 , Indramohan Goswami & another Vs. State of Uttranchal (2007) 12 SCC 1 and Vesa Holdings Pvt. Ltd. Vs. State of Kerala; (2015) 8 SCC 293 . 5. Learned counsel for the Respondent No. 1 as well as counsel for the respondent No. 2/State opposes the petition submitting that sufficient prima facie material is available in the case to constitute the aforesaid offences against the applicant. They submit that the applicant being a principal of Delhi Public School Vindhyanagar, District-Singrauli, was continuously humiliating the complainant/respondent No. 1 and in its furtherance, under the conspiracy with other co-accused, designed a plan of termination of the respondent No. 1 and they succeeded thereon. The learned JMFC has rightly took the cognizance and no interference is required in the case. 6. Heard. 7. Since, the present case involves the issue pertaining to quashment of cognizance and proceedings thereto by invoking inherent powers under section 482 of Cr.P.C., it is pertinent to examine the factors which are to be taken into consideration while deciding such issue. In the landmark decision State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 Supp (1) SCC 335, it has been held by the Hon'ble Apex Court as under:- "102. In the landmark decision State of Haryana & Ors. vs. Bhajan Lal & Ors., 1992 Supp (1) SCC 335, it has been held by the Hon'ble Apex Court as under:- "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 channelised and inflexible guidelines or rigid formulae 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 entirety 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 uncontroverted 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. (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." 8. Similarly, in the case of Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 , the Hon'ble Apex has laid down following guidelines in respect of inherent powers under section 482 of Cr.P.C.:- "27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice." Although, the guidelines issued in Amit Kapoor's case are with regard to quashing of charge either in exercise of jurisdiction under Sections 397 or 482 of the Cr.P.C., as the case may be but in the opinion of this Court, the principle can be applied in quashment of private complaint too. 9. After hearing counsels of both the sides, it appears that issue arising in the present case is whether the act of present applicant is sufficient to constitute the offence under Sections 406, 469 and 120-B of IPC. It should be kept in mind that while examining the said issue, this court is not expected to conduct a detailed inquiry under the garb of inherent powers under section 482 of Cr.P.C. and it only has to see whether from material available on record, prima facie case is made out or not. On perusal of the private complaint, it is evident that the allegation against the present applicant is that he is involved in conspiracy with other co-accused person and on the basis of false information about work conduct, he recommended the termination of respondent No. 1 from the post of TGT at Delhi Public School, Vindhyanagar Singrauli. In my opinion, to reach the conclusion, the aforesaid penal provisions are to be considered broadly. 10. In my opinion, to reach the conclusion, the aforesaid penal provisions are to be considered broadly. 10. The definition of criminal breach of trust is given in Section 405 of IPC and according thereof whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". On perusal of contents of the Section 405 of IPC and the legal precedents passed by the Hon'ble Supreme Court in this regard, the necessary ingredients to constitute the offence of criminal breach of trust are mentioned as under:- "i) A person should have been entrusted with property, or entrusted with dominion over property; (ii) That person should dishonestly misappropriate or convert to their own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; and (iii) That such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust." 11. Entrustment of any property is an essential ingredient of the offence under Section 406 of IPC. In the present case, learned JMFC took the cognizance under Section 406 of IPC against the applicant on the ground that the applicant being principal of DPS Vindhyanagar, has misused his power and post going contrary to Bye-Laws of CBSE, New Delhi, has made appointments and promotions of persons illegally and arbitrarily. There is no allegation about entrustment of any property against the present applicant. The respondent No. 1/complainant has failed to show whether the applicant obtained any benefit from the alleged act. Therefore, on account of absence of basic ingredient, no offence under Section 406 of IPC is made out against the present applicant. 12. There is no allegation about entrustment of any property against the present applicant. The respondent No. 1/complainant has failed to show whether the applicant obtained any benefit from the alleged act. Therefore, on account of absence of basic ingredient, no offence under Section 406 of IPC is made out against the present applicant. 12. As far as Section 469 of IPC is concerned, learned JMFC found that under the conspiracy, present applicant and other co-accused were involved in preparation of forged e-mail about the work conduct of complainant/respondent No. 1 with an intention to harm his reputation. The JMFC took the cognizance under Sections 469 and 120-B of IPC against the present applicant and co-accused R.K. Pandey. 13. On perusal of the complaint as well as impugned order, it is crystal clear that the applicant has only sought the opinion about the conduct of respondent No. 1 from the earlier employer of the complainant/respondent No. 1 and the alleged mail have been sent by co-accused-R.K. Pandey and one Deepak Kumar. Deepak Kumar has not been impleaded as an accused in the private complaint by the respondent No. 1. The documents annexed with the case show that some complaints were also filed by the students and other teachers against the respondent No. 1. Further, being principal of said school, the applicant has asked the explanation of respondent No. 1 and in response, the respondent No. 1 has duly filed his reply. Further, vide annexure A/11, the applicant has drawn attention of this Court towards visit of Ms. Sandhya Awasthi, Director of DPS Society dated 12.01.2018 and on perusal thereof, it appears that on 12.01.2018, during visit, Ms. Sandhya Awasthi found the conduct of respondent No. 1 is causing distress to the rest of the staff and students. Therefore, in such circumstances, the act of the applicant in seeking opinion about the conduct of respondent No. 1 from his earlier employer is not unnatural. As per complainant himself, he was informed by the Head of Kids Corner Happy Senior Secondary School, Firozabad that a false information containing e-mail was sent by their clerk-Deepak Kumar, hence, in any eventuality, if it is presumed that any forged or reputation harmful electronic mail was sent against the respondent No. 1, prima facie, the same was sent by Deepak Kumar, who is not made a party of private complaint. The respondent No. 1 has also failed to show any form of connectivity between Deepak Kumar and present applicant. Moreover, it is also found that the complainant/respondent No. 1 has been terminated after conducting a detailed inquiry by Dr. J.C. Panth, Enquiry Officer and as informed by the applicant, the complainant/respondent No. 1 has already challenged his termination before this High Court by way of filing W.P. No. 22490/2019. Therefore, no case under Sections 469 and 120-B of the IPC is made out against the present applicant. 14. In view of the above said discussions, the cognizance taken by the JMFC Waidhan, District-Singrauli is perverse and deserves to be set aside. Consequently, the petition is allowed. The impugned order dated 02.12.2019 is hereby set-aside against the present applicant. It is made abundantly clear that findings of this order may not affect the proceedings wherein the termination has been challenged by the complainant/respondent No. 1.