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2023 DIGILAW 309 (UTT)

Krishan Lal v. State of Uttarakhand

2023-05-16

PANKAJ PUROHIT

body2023
JUDGMENT : Pankaj Purohit, J. This C482 application has been filed by the applicant, challenging the order dated 21.02.2011, passed by learned Civil Judge (S.D.)/Judicial Magistrate, District Udham Singh Nagar in Criminal Case No. 393 of 2010, to the extent whereby a direction was issued to the S.O. Kichha to register a criminal case under relevant sections of IPC against the applicant and the then Bank employees; the order dated 20.04.2012, passed by the learned Sessions Judge, District Udham Singh Nagar dismissing the Criminal Revision No. 71 of 2012, as time barred; and, a charge-sheet dated 26.06.2012 submitted in the pursuance of the first information report dated 03.03.2011 as F.I.R No. 51 of 2011. 2. The brief facts of the case, giving rise to filing of the present C482 application are that, an F.I.R was lodged by Shri Anil Kumar Karnatak, Branch Manager, Bank of Baroda, Branch Lalpur, District Udham Singh Nagar vide letter dated 25.04.2000 to S.O. Kichha, with the averments that a Bank Draft No.98/JK096891 dated 23.08.2000 for Rs.80,000/- was paid to M/s Krishi Vikas Kendra, Lalpur, by his branch on 26.08.2000, but when contacted with the branch, by which, the draft was issued, this fact came to the notice of the informant that the bank draft was issued, by the Branch Milak, on 23.08.2000 for Rs.8,000/- only. According to the informant, the amount of the aforesaid draft was fraudulently changed in words as well as in numbers and the payment was received in the bank account of the proprietor Shri Krishan Lal, S/o Mela Ram, R/o Azadnagar, Kichha account holder of M/s Krishi Vikas Kendra, Laal Pul, causing a loss of Rs.72,000/- to the informant – Bank. 3. On the basis of this F.I.R, a Case Crime No. 242 of 2000, under Sections 420, 467, 468 and 471 IPC was registered on 25.04.2000 at 18:15 hours against proprietor – Shri Krishan Lal of M/s Krishi Vikas Kendra, Lalpur. From the record, it appears that the investigation was started, which resulted into filing of a charge-sheet only against the accused Chandrapal, S/o Mangli Jatav on 07.12.2000, while the named accused i.e., the present applicant was not charge-sheeted and a final report was submitted against him. Rather, he was made prosecution witness in the charge-sheet. 4. From the record, it appears that the investigation was started, which resulted into filing of a charge-sheet only against the accused Chandrapal, S/o Mangli Jatav on 07.12.2000, while the named accused i.e., the present applicant was not charge-sheeted and a final report was submitted against him. Rather, he was made prosecution witness in the charge-sheet. 4. On the charge-sheet submitted against Chandrapal, cognizance was taken under Sections 420, 467, 468 and 471 IPC and a Criminal Case No. 393 of 2010, “State Vs. Chandrapal” was registered in the Court of learned Civil Judge (S.D.)/Judicial Magistrate, District Udham Singh Nagar. The aforesaid criminal case resulted into acquittal of the sole accused. A copy of the judgment and order dated 21.02.2011 is annexed as Annexure No.1 with the present C482 application, but while acquitting the accused – Chandrapal, the learned Judicial Magistrate directed the S.O. Kichha to register a criminal case against the applicant, and, the then Bank Clerk, Bank Accountant, Bank Manager and to investigate and inform the court of learned Judicial Magistrate within 15 days. It is also reflected from the record that pursuant to the aforesaid direction issued by the learned Judicial Magistrate while deciding the Criminal Case No. 393 of 2010, “State Vs. Chandrapal”, an F.I.R was lodged against the applicant along with four other accused including the then Bank Officials, under Sections 420, 467, 468 and 471 IPC in Police Station Kichha on 03.03.2011 at 19:10 hours. After investigation, on the F.I.R dated 03.03.2011, a charge-sheet dated 26.06.2012 was submitted only against the applicant while against four other accused, a final report was submitted. The learned Judicial Magistrate, Rudrapur, District Udham Singh Nagar took cognizance against the applicant and a Criminal Case No. 1417 of 2012, “State Vs. Krishan Lal and Another” was registered. 5. In the aforesaid backdrop, the present C482 application has been filed challenging the orders referred hereinabove. 6. Heard Mr. Harshpal Sekhon, learned counsel for the applicant and Mr. B.P.S Mer, learned Brief Holder for the State. 7. Krishan Lal and Another” was registered. 5. In the aforesaid backdrop, the present C482 application has been filed challenging the orders referred hereinabove. 6. Heard Mr. Harshpal Sekhon, learned counsel for the applicant and Mr. B.P.S Mer, learned Brief Holder for the State. 7. Learned counsel for the applicant vehemently argued that this is a case of abuse of process of law, inasmuch as, the applicant was arrayed as an accused in the F.I.R, in the year 2000, and, after investigation, the final report was submitted against him and he was made a witness by the Investigating Officer, in the charge-sheet submitted pursuant to the F.I.R lodged in the year 2000. 8. The applicant participated in the trial against the accused – Chandrapal and deposed before the learned trial court as P.W.1 and supported the case of the prosecution. The Criminal Case No. 393 of 2010 resulted into acquittal vide judgment and order dated 21.02.2011, and a direction was made to lodge the F.I.R against the applicant, who was P.W.1 in the trial. 9. Learned counsel for the applicant submitted that for the same offence, no second F.I.R can be lodged and as such, the direction given by the learned trial court was bad in the eyes of law. 10. Learned counsel for the applicant would further submit that during the course of the trial, of the Criminal Case No. 393 of 2010, under scheme of Code of Criminal Procedure, 1973 (for short “Cr.P.C.”), provision of Section 319 Cr.P.C. could have been invoked and the applicant may be summoned as an accused, if the court finds that the offence has been committed by the applicant. Therefore, now after the final disposal of the criminal trial, which resulted into acquittal of the sole accused, the direction could not have been issued by the learned trial court to lodge the F.I.R. 11. On the strength of the aforesaid arguments, it has been further submitted that the charge-sheet submitted only against the petitioner/applicant, after lodging the second F.I.R, cannot sustain and deserves to be set aside. The direction issued by the learned trial court resulted into the abuse of process of law and the applicant has been made to face the trial for the offence, for which, the applicant had been exonerated at the earlier stage while filing of the final report. 12. The direction issued by the learned trial court resulted into the abuse of process of law and the applicant has been made to face the trial for the offence, for which, the applicant had been exonerated at the earlier stage while filing of the final report. 12. Per contra, learned State counsel submitted that there is no illegality in issuing the direction and consequent, of which, the F.I.R has been lodged and the charge-sheet has been submitted against the applicant. It is further submitted that under inherent power of this High Court under Section 482 of the Cr.P.C., the Court cannot sift the evidence and the power shall be invoked very sparingly. 13. Having considered the arguments submitted on behalf of the parties and perusing the material available on record, this Court finds substance in the arguments advanced on behalf of the applicant. From the perusal of the record, it is manifestly clear that when the F.I.R was lodged against the applicant by whom the draft was submitted in the capacity of the proprietor of M/s Krishi Vikas Kendra, Lalpur, and the same was deposited in the account maintained in the bank, in the name of M/s Krishi Vikas Kendra, Lalpur, an investigation was conducted and a final report was submitted against the applicant and he was made a witness of the prosecution. The draft was made by Surendra Singh, S/o Harish Kumar. Subsequently, after lodging of the second F.I.R, during investigation, Surendra Singh was found to be the same person, Chandrapal, who was already acquitted by the learned trial court, but he was not charge-sheeted. Subsequently, all the other persons named in the subsequent F.I.R were also exonerated by the Investigating Officer by filing a final report against them except the applicant. 14. Section 319 of the Cr.P.C. is quoted as hereunder:- “319. Power to proceed against other persons appearing to be guilty of offence.-(1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (2) Where such person is not attending the Court, he may be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid. (3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed. (4) Where the Court proceeds against any person under sub- section (1) then- (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses re-heard; (b) subject to the provisions of clause (a), the case may proceed as if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.” 15. Sub-section (1) gives power to the learned trial court in an unequivocal term that in the course of any inquiry or trial of an offence, if it appears from the evidence that any person not being the accused, has committed any offence, for which, such person could be tried together with the accused, the Court may proceed against such person for the offence, which appears to have been committed by him. The learned trial court has got every opportunity, during the course of the trial, of summoning the applicant to face the trial, even if, he is a witness in the trial. But this Court feels that once the trial court proceeded with the trial without invoking the power under Section 319 of Cr.P.C., a direction for lodging the F.I.R at a subsequent stage regarding the same offence cannot be said to be legally invoking the powers. The learned trial court certainly exceeded its jurisdiction while directing the registration of the criminal case against the applicant. There is yet another aspect of the matter that even after the registration of the criminal case, all other accused persons named in the F.I.R, except the applicant have been exonerated by filing a final report, and, it is also found that Surendra Singh is the same person, who has been acquitted as Chandrapal in a Criminal Case No. 393 of 2010 by the learned trial court. In such an eventuality, it would be a futile exercise to direct the applicant to face the trial, which would result into nothing, but only acquittal. 16. In such an eventuality, it would be a futile exercise to direct the applicant to face the trial, which would result into nothing, but only acquittal. 16. A C482 application No.448 of 2012 was filed challenging the order dated 20.04.2012, whereby the Criminal Revision No. 71 of 2012 was dismissed as time barred. This C482 application was dismissed as infructuous after filing of the charge-sheet dated 26.06.2012 pursuant to second F.I.R No.51 of 2011 dated 03.03.2011. 17. This Court is also of the view that F.I.R for the same offence cannot be registered twice. It is sheer abuse of process of law, which should be rectified by this Court invoking the inherent powers under Section 482 of the Cr.P.C. In this view of the matter, the charge-sheet dated 26.06.2012 filed pursuant to the F.I.R No. 51 of 2011 dated 03.03.2011, is hereby quashed. Consequently, the entire proceedings of the Criminal Case No. 1417 of 2012, “State Vs. Krishan Lal” under Section 420, 467, 468 and 471 IPC, pending in the court of learned Judicial Magistrate, Rudrapur, Udham Singh Nagar is hereby quashed. 18. The present C482 application is disposed of in the aforesaid terms. 19. Pending application, if any, stands disposed of accordingly.