Shiv Nath Arora & Anr. vs State Of U.P. & Anr.
2013 Latest Caselaw 6047 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved
 

 
Case :- CRIMINAL REVISION No. - 284 of 2013
 

 
Revisionist :- Shiv Nath Arora & Anr.
 
Opposite Party :- State Of U.P. & Anr.
 
Counsel for Revisionist :- Rama Kant Jayswal, Parul Kant
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Arvind Kumar Tripathi (II),J.

1. Heard Shri Rama Kant Jayswal, learned counsel for the revisionists, Ms Meera Tripathi, learned AGA for the State respondent and Shri Gopal Mishra, leanred counsel for opposite party no.2

2. This criminal revision has been filed challenging the order dated 25.5.2013 passed by the learned Chief Judicial Magistrate, Hardoi in Case No.783 of 2010 by which the learned court below has rejected the application under Section 321 Cr.P.C. by allowing the application moved by the Assistant Prosecuting Officer dated 18.2.2013.

3. The fact, in short, is that an application under Section 156 (3) Cr.P.C. was moved by Babu Ali alleging that he has taken loan from the Urban Development Co-operative Bank, Station Road, Railwayganj, Hardoi on 4.8.1991 for purchasing a Marshal Jeep. The entire loan was paid, and the then Manager Shri Shiv Nath Arora, and has given no dues certificate on 29.11.2002. Despite this fact, the branch manager and the secretary of the bank Vijay Pal gave notice on 6.9.2005, which was received by the applicant. A reply was sent to the bank manager through registered post, and that was served on the manager Shri Shiv Nath Arora, who also gave a reply. Again, a notice was sent through District Registrar Co-operative Societies U.P., Hardoi. Its reply was also given. The bank manager moved an application before the Chief Judicial Magistrate, Hardoi for lodging report against the applicant, which was rejected by the court. The applicant has deposited the entire dues, but the manager and the secretary did not deposit the money in the bank, and misappropriated it. On 19.8.2006, at about 4 pm, when the applicant was waiting for bus at Gopamau Bus Station, then the secretary Vijay Pal came there and caught hold him and stated that either you deposit the bank dues, or your total property will be auctioned, and you will be sent to jail. The applicant told him that the entire amount has been deposited, and no dues certificate has been obtained, then the secretary Vijay Pal threatened him by his rifle that you will be killed and you will have to deposit the bank dues. This scene was witnesses by several witnesses, who intervened, and rebuked the revisionists. The applicant went to lodge FIR in the Police Station Kotwali, but no report was registered. The applicant moved an applicant before the Superintendent of Police, Hardoi on 21.8.2006, but of no avail. Thereafter, the applicant filed an application under Section 156 (3) Cr.P.C. On this application, the learned Chief Judicial Magistrate passed the orders and FIR was registered under Sections 406, 420, 467, 468, 506 IPC. After investigation, a final report was submitted. After protest petition, final report was rejected, and the court concerned was directed for re-investigation. After re-investigation, charge sheet was submitted. During pendency of the case, an application was moved by the Prosecuting Officer under Section 321 Cr.P.C. for withdrawal of the prosecution. This application was rejected vide impugned order. Feeling aggrieved, this criminal revision has been filed.

4. It was argued from the side of the revisionists that while deciding the application under Section 321 Cr.P.C. for withdrawal, the Magistrate is not required to pass a reasoned order in order to access the evidence to discover the case would end in conviction or acquittal. For this, learned counsel for the revisionists has relied upon the decision in the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877. Learned counsel also argued that the duty of the trial court is to see that the grounds of withdrawal are legally valid, and the application made by the prosecutor is bona fide and is not collusive. In revision, for an order under Section 321 Cr.P.C. the duty of the High Court is to see that the considerations by the trial court on the application under Section 321 Cr.P.C. was not misdirected, and the grounds of withdrawal are legally valid. It was also argued that the court is to see is that the Public Prosecutor was not actuated by extraneous, or misappropriate considerations while moving application for withdrawal from the prosecution. Even if it is possible to have another view, different from one, taken by the Public Prosecutor while moving application for withdrawal from prosecution, the High Court should be reluctant to interfere with the order unless it comes to the conclusion that the Public Prosecutor has not applied his mind to the facts and circumstances of the case, and has simply acted at the behest of the government. or has been actuated by erroneous, or misappropriate considerations. If the view of the Public Prosecutor is one, which could, in the circumstances, be taken by any reasonable man. The court cannot substitute its own opinion for that of the Public Prosecutor, by making a roving inquiry into the material on record. It was also argued that in the case the court below has made indepth inquiry and rejected the application, which is erroneous in the eyes of law. It was also submitted that there is paucity of evidence, which was not considered by the court below.

5. In the case of Abdul Karim v. State of Karnataka, (2000) 8 SCC 710 relying on the earlier decision of the Constitution Bench in Sheonandan Paswan v. State of Bihar, 1987 (1) SCC 299, following observations were made regarding withdrawal of case under Section 321 Cr.P.C.: -

"......What the court has to see is whether the application is made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The court, after considering the facts of the case, has so see whether the application suffers from such improprieties or illegalities as would cause manifest injustice if consent was given. When the Public Prosecutor makes an application for withdrawal after taking into consideration all the material before him, the court must exercise its judicial discretion by considering such material before him, and, on such consideration, must either give consent or decline consent. The section should not be construed to mean that the court has to give a detailed reasoned order when it gives consent. If, on a reading of the order giving consent, a higher court is satisfied that such consent was given on an overall consideration of the material available, the order giving the consent has necessarily to be upheld. Section 321 contemplates consent by the court in a supervisory, and not an adjudicatory manner. What the court must ensure is that the application for withdrawal has been properly made, after independent consideration by the Public Prosecutor to withdraw from the prosecution of any accused. The discretion exercisable under Section 321 is fettered only by consent from the court on a consideration of the material before it. What is necessary to satisfy is to see that the Public Prosecutor has acted in good faith and exercise of discretion by him is proper."

6. Learned counsel appearing for opposite party no.2 relying upon the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877 argued that the impugned order is perfectly justified, and there is no need for interference in this order.

7. The Apex Court in the case of Sheonandan Paswan v. State of Bihar and others, 1983 SCC (Crl.) 224 has given certain guidelines, which would be material for the purposes of instant case: -

"1. The withdrawal from the prosecution is an executive function of the Public Prosecutor.

2. The discretion to withdraw from the prosecution is that of the Public Prosecutor and none else, and so, he cannot surrender that discretion to someone else.

3. The Government may suggest to the Public Prosecutor that he may withdraw from the prosecution but none can compel him to do so.

4. The Public Prosecutor may withdraw from the prosecution not merely on the ground of paucity of evidence but no other relevant grounds as well in order to further the broad ends of public justice, public order and peace. The broad ends of public justice will certainly include appropriate social, economic.

5. The Court performs a supervisory function granting its consent to the withdrawal.

6. The Court's duty is not to reappreciate the grounds which led the Public Prosecutor to request withdrawal from the prosecution but to consider whether the Public Prosecutor applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations. The Court has a special duty in this regard as it is the ultimate repository of legislative confidence in granting or withholding its consent to withdrawal from the prosecution."

8. The Apex Court has, in the same decision, held that since the trial court's supervisory power of either granting, or refusing to grant permission is judicial function, the same is liable to correction by the High Court under its revisional power. Both, under the old, as well as present Cr.P.C.

9. The Apex Court in Rajendra Kumar Jain v. State through Special Police Establishment, (1980) 3 SCC 435 = AIR 1980 SC 1510 set the same legal proposition from Section 321 of the Cr.P.C., which has been adapted in the case of Sheonandan Paswan v. State of Bihar and others, 1983 SCC (Crl.) 224.

10. These principles clearly lie emphasis on the independent application of mind by the Public Prosecutor. This clearly goes to show that if the Public Prosecutor has independently applied its mind, and comes to the conclusion that it is the case,which is suitable to be withdrawn, then the court cannot re-appreciate the grounds. The court has only to consider whether the Public Prosecutor has applied his mind as a free agent, uninfluenced by irrelevant and extraneous considerations.

11. In the instant case, the application filed by the Senior Prosecuting Officer is on record, which is Exhibits 22 and 23. The grounds mentioned in the application is that the informant (1) even after the date of no dues certificate, paid the amount due through account payee cheques, and after issue of recovery certificate remaining amount of loan was paid; (2) there is paucity of evidence; (3) there is no personal animosity between the petitioner employees and the informant. It is evident that this FIR has been lodged in order to put undue pressure over them. The evidence collected by the second Investigating Officer is of weak nature.

12. A careful perusal of the grounds clearly reveals that the Prosecuting Officer has applied his judicial mind, and after going through the evidence collected by the Investigating Officer, has moved the application for withdrawal.

13. In the subsequent investigation, the only evidence collected was that the signature of Shiv Nath Arora on no dues certificate was compared by the admitted signature of Shiv Nath Arora.

14. It is a settled view that the report of hand writing expert is a weak type of evidence, and conviction cannot be passed on the report of hand writing expert. In the case of S. Gopal Reddy Vs. State of Andhra Pradesh 1996 Criminal Law Journal 3237, the Apex Court has held as under: -

"The evidence of an expert is a rather weak type of evidence and the Courts do not generally consider it as offering 'conclusive' proof and, therefore, safe to rely upon the same without seeking independent and reliable corroboration. In Magan Bihari Lal Vs. State of Punjab, AIR 1977 SC 1091, while dealing with evidence of a handwriting expert, this Court opined (at p.1093):

"We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra V. State of U.P., AIR 1957 SC 381, that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence. This Court again pointed out in Ishwari Prasad V. Md. Isa, AIR 1963 SC 1728, that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar V. Subodh Kumar, AIR 1964 SC 529, where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert pinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 1967 SC 1326, and it uttered a note of caution pointing out that it would be risky to find a conviction solely on the evidence of a handwriting expert before acting upon such evidence, the Court must always try to see whether it is corroborated by other evidence, direct or circumstantial."

15. In the case of Magan Bihari Lal v. State of Panjab, AIR 1977 SC 1091, the Apex Court has held as under: -

"In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Railway Administration with his Headquarters at Agra and he had nothing to do with the train by which Wagon No. SEKG .40765 was dispatched from Munda to Bikaner, nor with the train which carried that wagon from Agra to Ludhiana. He was not a Guard on either of these two trains. There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Banmore Station. It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration, could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time. It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt Ex. PW 10/A was that of the same person who wrote the specimen handwritings Ex. 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a hand- writing expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law. It was held by this Court in Ram Chandra v. State of U.P. AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items o[ internal and external evidence. This Court again pointed out in Ishwari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar v. Subodh Kumar, AIR 1964 SC 529 where it was pointed out by this Court that expert's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear_ direct evidence or by Circumstantial evidence. This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert and before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial. It is interesting to note that the same view is also echoed in the judgments of English and American courts. Vide Gurney v. Longlands, (1822) 5 B & Ald 330 and Matter of Alfred Fogter's Will, 34 MIch 21. The Supreme Court of Michigan pointed out in the last mentioned case "Every one knows how very unsafe it is to rely upon any one's opinion concerning the niceties of penmanship--Opinions are necessarily received, and may be valuable, but at best this kind of evidence is a necessary evil." We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence being opinion evidence, is by its very nature, weak and infirm and cannot of itself form and the basis for a conviction. We must, therefore, try to see whether,in the present case, there is, apart from the evidence of the handwriting expert B. Lal, any other evidence connecting the appellant with the offence." (para 7)

16. It is on record that the recovery notice was issued to Babu Ali on several dates prior to his filing application under Section 156 (3) Cr.P.C. The statement of loan account is annexure 20, which goes to show that one cheque amounting to Rs.10,499/-, and second cheque of Rs.10,306/- was deposited in the loan account on 16.1.2003 and 18.2.2003 respectively. After that, one cheque amounting to Rs.9437/-, second cheque amounting to Rs.11,944/-, third cheque amounting to Rs.3,117/-, and fourth cheque amounting to Rs.22,681/- were deposited on 9.4.2003, 19.4.2003, 20.5.2003 and 25.7.2003 respectively. After receiving the notice dated 6.9.2005, Rupees Two Lacs was deposited by cash on 24.8.2006.

17. When no dues certificate was given, then there was no occasion for Babu Ali to deposit certain amount in the loan account. It will also be important to refer that prior to these cheques, referred above, and after these cheques, every transaction in this account is through cash. This clearly goes to show that even after the alleged no dues certificate, the informant Babu Ali was depositing the amount in his loan account. This loan account was opened on 4.8.1991, when the informant has taken loan loan for purchase of Marshal Jeep. The alleged "no dues" certificate is said to have been issued on 29.11.2002. A perusal of loan account (Annexure 20) shows that after the issuance of alleged "no dues" certificate, the informant Babu Ali has deposited five cheques and cash Rs.40,000/-, Rs.7800/- and Rs.13,400/- respectively, and afterwards Rs.2,00,000/- on 25.8.2006. This amount shows that even after the alleged "no dues" certificate, the informant was paying, or depositing instalments towards repayment of loan amount. The application for withdrawal is Annexure 22. Ground No.2, mentioned in Annexure 22 is also regarding the same fact. The application under Section 156 (3) Cr.P.C. was moved on 9.10.2006, and it is clear that this application was moved after the entire loan amount was repaid.

18. During the course of argument, it was categorically asked that from which account the cheques were issued and deposited, then the learned counsel for revisionist no.2 answered that this account is also in the name of respondent no.2's firm, and from that firm account these five cheques were issued and deposited in the loan account. This clearly goes to show that the application under Section 156 (3) Cr.P.C. was moved for personal grudge, or any other motive, which the informant was nursing in his heart.

19. It was submitted by learned counsel for respondent no.2 that the Public Prosecutor has received instructions from the government, which shows that the Public Prosecutor has not applied his judicial mind.

20. The provisions of section 321 Cr.P.C does not lay any bar on the public prosecutor to receive any instruction from the Government before he files an application under this section. Unlike the Judge or the Magistrate, the Public Prosecutor is not an absolutely independent officer. He is an appointee of the Government. So there is the relationship of Counsel and client between the Public Prosecutor and the Government. In other words the Public Prosecutor cannot act without instructions of the Government and he cannot conduct a case absolutely on his own, or contrary to the interest of his client. If he receives any such instructions, he cannot be said to act under extraneous influences. He has to apply his mind independently and take a decision as to whether he should file an application under section 321 Criminal Procedure Code for withdrawal or not. Then alone he could approach the court for consent for withdrawal.

21. The alleged no dues certificate is Annexure CA - 3 filed by respondent no.2 himself. It is Form No.35 of R.T.O. office. It is simply an information for termination of hire purchase approach agreement. No doubt, it has been given by the revisionist no.1, but that does not mean that any fraud was committed by the revisionists. The loan account clearly reveals that by the date 30.11.2002, the loan was not paid, and large number of amount was due. In these circumstances, the Branch Manager cannot be said to have misappropriated the money. If that was the case, then it was incumbent upon the informant to show the source of money, which he had paid to the bank authorities for clearing the dues, This fact has not been considered by the second investigator. The amount of Rs.Two Lacs was deposited on 25.8.2006. This deposit slip also contains the signature of Babu Ali, but the second investigator has also not thought it proper to compare the signature of the informant from the cash deposit.

22. The above facts go to show the paucity of evidence also. The application given by the Public Prosecutor that the evidence collected by the second investigator is very weak in nature also finds support from the above fact.

23. The above facts clearly go show that the Prosecuting Officer has used his independent mind, and considered all the circumstances.

24. Learned counsel for respondent no.2 has relied upon the case of Sheo Nandan Paswan v. State of Bihar and others, AIR 1987 SC 877. In this case too, the Apex Court has held as under: -

"Section 321 Cr.P.C. is virtually a step by way of composition of the offence by the State. The State is the master of the litigation in criminal cases. It is useful to remember that by the exercise of functions under Section 321, the accountability of the concerned person or persons does not disappear. A private complaint can still be filed if a party is aggrieved by the withdrawal of the prosecution but running the possible risk of a suit of malicious prosecution if the complaint is bereft of any basis." (para 74)

"Since Section 321 does not give any guideline regarding the grounds on which a withdrawal application can be made, such guidelines have to be ascertained with refer- ence to decided cases under this section as' well as its predecessor Section 494. I do not propose to consider all the authorities cited before me for the reason that this Court had occasion to consider the question in all its aspects in some of its decisions. Suffice it to say that in the Judgments rendered by various High Courts, public poli- cy, interests of the administration, inexpediency to proceed with the prosecution for reasons of State and paucity of evidence were considered good grounds for withdrawal in many cases and not good grounds for withdrawal in certain other cases depending upon the peculiar facts and circumstances of the cases in those decisions. AIR 1932. Cal. 699 (Giribala Dasi v. Mader Gazi), AIR 1943 Sind 161 (Emperor v. Sital Das), AIR 1936 Cal. 356 (Marihar Sinha v. Emperor), AIR 1949 Patna 233 (The King v. Moule Bux and Ors.) AIR 1952 Raj. 42 and 1933 Privy Council 266 are some of the cases which were brought to our notice.

Ram Naresh Pandey's case reported in 1957 SCR 279 is a land mark case which has laid down the law on the point with precision and certainty. In this decision the functions of the Court and the Public Prosecutor have been correctly outlined. While discussing the role of the Court, this Court observed:

"His discretion in such matters has necessarily to be exercised with. reference, to such material as is by then available and it is not a prima facie judicial determination of any specific issue. The Magistrate's functions in these matters are not only supplementary, at a higher level, to those of the executive but are intended to prevent abuse. Section 494 requiring the consent of the Court for withdrawal by the public prosecutor is more in line with this scheme, than with the provisions of the Code relating to inquiries and trials by Court. It cannot be taken to place on the Court the responsibility for a prima facie determination of the triable issue. For instance the discharge that results therefrom need not always conform to the standard of "no prima facie case" under Sections 209(1) and 253(1) or of 'groundlessness' under Sections 209(2) and 253(2). This is not to say that a consent is to be lightly given on the application of the public prosecutor, without]a careful and proper scrutiny of the grounds on which the application for consent is made."

This decision was approved by this Court in M.N. Sankaranarayanan Nair v. P.V. Balakrishnan & Ors., [1972] 2 SCR 599 as is seen at page 606:

" .....In the State of Bihar v. Ram Naresh Pandey, 1957 SCR 279 it was pointed out by this Court that though the Section does not give any indication as to the ground on which the Public Prosecutor may make an application on the consideration of which the Court is to grant its consent, it must none-the-less satisfy itself that the executive function of the Public Prosecutor has not been improperly exercised and that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes ..... "" (para 75)

25. From the discussions made above, the order passed by the court below is liable to be quashed.

26. Accordingly, the criminal revision is liable to be allowed, and is hereby allowed. Order dated 25.5.2013 passed by the learned Chief Judicial Magistrate, Hardoi in Case No.783 of 2010 is hereby quashed. The matter is remanded back to the court concerned for deciding application under Section 321 Cr.P.C. afresh in the light of the observations made above.

Order Date :- September 25, 2013

Anupam

(Justice Arvind Kumar Tripathi - II)