Smt. Rekha Sharma vs State Of U.P. & Another
2012 Latest Caselaw 3370 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 22
 

 
Case :- CRIMINAL REVISION No. - 135 of 2010
 

 
Petitioner :- Smt. Rekha Sharma
 
Respondent :- State Of U.P. & Another
 
Petitioner Counsel :- J.J. Munir
 
Respondent Counsel :- Govt. Advocate,Akhilesh Srivastava,Rajesh Kumar Tiwari
 

 
Hon'ble Ramesh Sinha,J.

Heard Sri J.J. Munir, learned counsel for the revisionist, learned AGA for the State and Sri Dharam Pal Singh, learned Senior Advocate, appearing on behalf of opp. party No.2.

This criminal revision has been preferred against the judgment and order dated 22.12.2009 in Case No. 608/12/09 (Smt. Seema Sharma Vs. Balendu Sharma), under Sections 420, 467, 468, 471 I.P.C., Police Station Banna Devi, District-Aligarh by which the application moved by opp. party No.2, complainant, for releasing of a sum of Rs.4,25,000/- from the joint account of the revisionist and her late husband Balendu Sharma bearing S.B. Account No. 0511000200095353 maintained with Punjab National Bank, Civil Lines, Aligarh in favour of opp. party No.2 has been allowed by the Chief Judicial Magistrate, Aligarh.

Brief facts of the case giving rise to the present revision is that a First Information Report was lodged by opp. party No.2 against the husband of the revisionist, namely, Balendu Sharma on 17.11.2008 which was registered as Case Crime No. 783 of 2008, under Sections 420, 467, 468, 471 I.P.C., Police Station- Banna Devi, District-Aligarh alleging that she had gone to the Punjab National Bank to encash her cheques on 29.9.2008 where she found that revisionist's husband discharging his official functions. She further alleged that Balendu Sharma informed her that the funds to meet the cheque had not yet been received in her account and might be credited during late hours. Balendu Sharma took two cheques bearing No. 52857 from opp. party No.2 of her current account and cheque bearing No. 882708 of her S.B. Account each for a sum of Rs.2,08,000/- and assured her that as soon as funds arrived in her account he would withdraw the money and deliver it to her. Complainant/opp. party No.2 trusted Balendu Sharma and gave him the said cheques keeping in view the personal friendship between the parties. On 4.10.2008, the complainant/opp. party No.2 came to know that a sum of Rs. 4,25,000/- had been transferred from her current Account No.182500210005544 by Balendu Sharma to his own S.B. Account No.0511000200095353 maintained with the same bank i.e. Punjab National Bank, Civil Lines, Aligarh

It further transpired that after the registration of the FIR, police investigated the matter from 18.11.2008 to 13.9.2009 and found that the husband of the revisionist late Balendu Sharma had dishonestly and fraudulently transferred the disputed amount of Rs. 4,25,000/- from the S.B. Account of opp. party No.2 to his own S.B. Account which was with the Punjab National Bank, Civil Lines, Aligarh by forging certain documents, hence, found a cognizable case made out against him for the offence in question but as Balendu Sharma had expired on 2.10.2008, the police had to submit the final report in the case as the case could not proceed against the accused Balendu Sharma who had expired. Hence, the police submitted the final report in the matter in the Court of learned Magistrate. The acceptance of the final report is still sub-judice before the competent Magistrate till today.

It has been contended by the learned counsel for the revisionist that that the order passed by the learned Magistrate releasing the amount in favour of opp. party No.2 deciding the money claim under the garb of an order for releasing of the alleged case property, particularly in the absence of pendency of any investigation or trial before the learned Magistrate after filing a final report by the police on 13.11.2009, is manifestly illegal and without jurisdiction. He further urged that the opp. party No.2 had taken some advance from  late husband of the revisionist for utilization in her business and opp. party No.2 had returned to him through cheque No. 528757 drawn on her S.B. Account No.1825000100033254 dated 29.9.2008 and the amounts of the said cheques were credited to the joint S.B. Account of the revisionist and her late husband.

On the other hand, Sri Dharam Pal Singh, learned Senior Advocate, appearing on behalf of opp. party No.2 has argued that during the investigation a prima facie offence was disclosed against the husband of the revisionist Late Balendu Sharma who was an employee in the Punjab National Bank, Civil Lines, Aligarh. The opp. party No.2 had a current account as well as S.B. Account in the said bank. She runs a business in the name and style of M/s.Ambilee Hardware Company and she  is the proprietor of the said company. She used to receive payments from the foreign countries and she received payment from M/s. Samual Levis Ltd. (U.K.) and after clearance of the money from C.B.T. Mumbai, the same was credited in the account of complainant. She on 29.9.2008 at about 11.30 P.M. met the accused Balendu Sharma who had acquaintance and familiarity with her as he used to get the amount credited and deposited  in  accounts of  the complainant/opp. party No.2 from various business transactions in the Bank where he was employed. The complainant/opp. party No.2 took the help of Balendu Sharma for getting the cheques in question credited in her account.He further urged that  the final report submitted by the police during investigation of the case was merely  on the ground that the accused Balendu Sharma, husband of the revisionist, had expired and case could not proceed against him though while submitting the said report the Investigating Officer found a prima facie case against the husband of the revisionist for the offences committed by him under Sections 420, 467, 468, 471 I.P.C. He further contended that no money was taken by opp. party No.2, complainant,  from the late husband of the revisionist as advance for the business.

He further argued that the amount in question belongs to the complainant/opp. party No.2 as has also been revealed during investigation hence the Magistrate was right in passing the impugned order releasing the same in her favour.

Having considered the submissions advanced by the learned counsel for the parties, it is apparent from the case that the husband of the revisionist Late Balendu Sharma had dishonestly and fraudulently transferred the amount of Rs.4,25,000/- from the S.B. Account of the complainant/opp. party No.2 to his own S.B. Account which were in the Punjab National Bank, Civil Lines, Aligarh by misusing his position in the bank. During investigation the Investigating Officer found sufficient evidence and material which showed his complicity in the crime and the Investigating Officer was compelled to submit a final report in the case as the accused Balendu Sharma had expired and the case could not proceed against him. It further transpires that the complainant/opp. party No.2 being a business person used to get her money credited to her account in the said bank and took the assistance of the husband of the revisionist in getting the bank transactions for the money which she used to receive from her business.

The contention of the learned counsel for the revisionist that the learned Magistrate had committed illegality in passing the impugned order in exercise of powers Section 457 Cr.P.C. as from perusal of  Section 457 Cr.P.C. its object is different to what is being argued by the learned counsel for the revisionist. He argued that the order for releasing of the case property can be passed when any inquiry or trial is pending and in the present case no case is pending against the husband of the revisionist. The said contention of the learned counsel for the revisionist does not find  any substance  as it is apparent from the record that the husband of the revisionist was found to be involved in the case and sufficient material regarding his complicity has been found by the Investigating Officer during investigation but a final report was submitted in the case on account of the death of the accused Balendu Sharma. The learned Magistrate in my opinion has committed no illegality or impropriety or jurisdictional error in passing the impugned order for releasing of the amount of Rs.4,25,000/- which prima facie is apparent to be that of the complainant/opp. party No.2.

As has been pointed out by the learned counsel for the revisionist that a  suit has been filed by the revisionist before the Competent Court being O.S. No. 10 of 2010 (Smt. Rekha Sharma Vs. Punjab National Bank and another) in which complainant/opp. party No.2 is also one of the defendant which is pending before the Civil Court hence if the amount in question is released in favour of the complainant/opp. party No.2 then in case of decree of suit in favour of the revisionist the said amount cannot be recovered from the complainant/opp. party No.2.

In reply to the said argument, learned counsel for opp. party No.2 contended that in such a situation his client is ready to furnish a security of the amount in question in the nature of  bank guarantee etc.

Hence, keeping the above facts into consideration, it is ordered that the order passed by the learned Magistrate dated 22.12.2009 is modified to the extent that the amount of Rs.4,25,000/- be released in favour of the complainant/opp. party No.2 subject to the condition that she will furnish a bank guarantee of the amount in question i.e. Rs.4,25,000/- to the satisfaction of the C.J.M., Aligarh in the Punjab National Bank, Branch Civil Lines, Aligarh, which may be discharged after the disposal of the suit of the revisionist  by the Civil Court accordingly.

With the above observations, the criminal revision stands disposed of.

Order Date :- 6.8.2012

NS