O.P. Verma vs State Of U.P. And Others
2018 Latest Caselaw 532 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED/AFR
 
Court No. - 63
 

 
Case :- APPLICATION U/S 482 No. - 833 of 2012
 

 
Applicant :- O.P. Verma
 
Opposite Party :- State Of U.P. And Others
 
Counsel for Applicant :- Vikas Srivastava
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Amar Singh Chauhan,J.

Heard Sri Vikas Srivastava, learned counsel for the applicant, learned AGA for the State and Sri Ashish Kumar Sinha, learned counsel appearing on behalf of opposite party no. 2.

The applicant, O.P. Verma, through this application under section 482 Cr.P.C. has invoked the inherent jurisdiction of the Court with a prayer to quash the proceeding of Criminal Case No. 121 of 2011, arising out of Case Crime No. 139 of 2004 under sections 409, 467, 468, 471, 120B IPC, Police Station Kotwali, District Ghaziabad, pending before the court of Additional Chief Judicial Magistrate, Court No. 3, Meerut.

Brief facts which are requisite to be stated for adjudication of this application are that the opposite party no. 2 Tara Chandra lodged the First Information Report against the President of the Society one Sri B.D. Sharma and Sri R.D. Sharma on 19.3.2004 being Case Crime No. 139 of 2004 under sections 409, 467, 468, 471, 120B IPC at Police Station Kotwali, District Ghaziabad with the allegation that the applicant was working as Secretary in AJPA Sahkari Awas Samiti Limited, Ghaziabad and after getting fake sign, the Bank Secretary Sri R.D. Sharma and President of the Society Sri B.D. Sharma by hatching conspiracy with the Vice-President Bal Kishan Sharma withdrew the amount of Rs. 3.5 crores from the account of the Society and embezzled the said amount and, on the complaint of the informant, an order under section 35 of the Co-operative Societies Act, 1965 was passed placing the Committee of Management under suspension and Administrator was appointed to look after the said Society. The Investigating Officer of Police, after collecting the investigation, submitted charge sheet against the said accused. The opposite party no. 2 filed an affidavit alongwith an application before the learned Sessions Judge, Ghaziabad stating therein that under some mistaken belief he has lodged the First Information Report and the account of the Society is correct, no fraud or embezzlement has been committed by Sri B.D. Sharma and Sri R.D. Sharma, who were named as accused and also request was made to drop the proceeding. The complainant itself filed a Criminal Misc. Application No. 10889 of 2005 under section 482 Cr.P.C. before this Court for quashing the entire proceeding of Case Crime No. 139 of 2004 under sections 420/467 IPC in which another Bench of this Court passed an appropriate order and quashed the proceeding. Thereafter in compliance of the order dated 20.2.2007, learned Additional Chief Judicial Magistrate, Ghaziabad closed the criminal proceeding. Before submitting charge sheet by the civil police, the investigation was transferred to Co-operative Cell and Investigation Officer of the Cooperative Cell after making detailed investigation submitted the charge sheet against the applicant as well as a number of accused and ACJM Meerut (Cooperative Cell) took the cognizance against the applicant as well as other accused.

Feeling aggrieved the applicant moved this application before this Court.

It is submitted by learned counsel for the applicant that the matter has already been quashed by another Bench of this Court vide order dated 20.2.2007 passed in Criminal Misc. Application No. 10889 of 2005 under section 482 Cr.P.C. and thereafter record of the case was directed to be consigned to record room and just after two years again the Investigating Officer, Cooperative Cell submitted charge sheet in the same crime number before learned ACJM (Cooperative) Meerut against the applicant and after taking cognizance, NBW was issued against the applicant. It is relevant to mention here, after quashing the matter by this Court, Investigating Officer, Cooperative Cell started further investigation without any judicial order as well as any administrative order and filed another charge sheet dated 20.11.2010 against the present applicant in same Case Crime No. 139 of 2004 under sections 409, 467, 468, 471, 120B IPC at Police Station Kotwali, District Ghaziabad before the Additional Chief Judicial Magistrate-III, Meerut and learned Magistrate took cognizance on 23.12.2010 in that charge sheet and registered the Case No. 2168 of 2010 against the present applicant. It is also submitted that after quashing the proceeding in Case Crime No. 139 of 2004 by this Court on 29.2.2007 no further order of further investigation was passed by any competent authority. The Investigating Officer, Cooperative Cell filed another charge sheet dated 23.12.2010 without collecting any evidence against the present applicant. It is also pertinent to mention here that the present applicant is not named in First Information Report and also not he is concern in any manner to the present case. Matter has already been settled between the parties in Case Crime No. 139 of 2004 but only for harassment Investigating Officer, Cooperative Cell filed another charge sheet against the applicant which is liable to be quashed by this Court. It is further submitted that matter was referred to the Arbitrator/Additional Registrar, Cooperative Society, Lucknow being Arbitration Case No. 36/2005-2006 (AJPA vs. Sahkari Awas Samiti Limited and six others) which was decided that society shall deposit the said amount in the Cooperative Bank, in four installments. In compliance the Society has deposited the said amount with interest. It is also submitted that in view of the arbitration award the Society has deposited the amount to the bank and matter being a civil dispute cannot be dragged before the criminal court. The proceeding is nothing but an abuse of the process of the court.

Learned counsel for the opposite party no. 2 and learned AGA contend that the matter has been decided through arbitration award and in compliance of award, the applicant, who are members of the society, have deposited the amount into bank. No useful purpose would be served to keep this petition pending before this Court and the same may be disposed of at this stage.

The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:

"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or 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 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, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".

In the case in hand, the opposite party no. 2 lodged an FIR with the allegation that the amount has been withdrawn from the Cooperative Bank but later on the complainant moved an application and affidavit stating therein that under some mistaken belief he has lodged an FIR and the account of the Society is correct. No fraud or embezzlement has been committed by the accused and also the complainant filed Criminal Misc. Application No. 10889 of 2005 under section 482 Cr.P.C. (Tara Chandra Verma vs. State of U.P. and two others) in which operative part is as follows:

"Thus, in view of the above, when the parties have come to the term there would be no use to prolong a criminal prosecution which will result in acquittal. When the complainant does not want to prosecute the case any more the chance of ultimate conviction is almost nil. The procedural delay in conclusion of the trial would simply linger the matter and may create a bad effect at any stage.

Consequently, the Criminal Misc. Application under section 482 Cr.P.c. is hereby allowed. The proceedings in Criminal Case No. 3856 of 2004 (State vs. B.D. Sharma and another) arising out of Case Crime No. 139 of 2004 under sections 420, 467, 468 IPC, Police Station Kotwali, District Ghaziabad, pending in the court of 8th Additional Chief Judicial Magistrate, Ghaziabad are quashed against applicant Tara Chand Verma only. The applicant if on bail bond, need not surrender and sureties stand discharged.

The interim order shall stand vacated."

In compliance of that above order, the Additional Chief Judicial Magistrate, Ghaziabad passed an order dated 10.10.2007 by which the criminal proceeding of the case was dropped and record was got consigned. Before filing the charge sheet the investigation was transferred to the I.O. Cooperative Cell and after concluding investigation, the I.O. submitted the second charge sheet against the applicant on which the ACJM, Court No. 3/Special Court (Cooperative) Meerut took cognizance and issued NBW against the applicant.

In Vijayakumar vs. Kamarudhin and others, 1999 Cr.L.J. 1294, it has been held by Kerala High Court that the State Government has no authority to direct a different investigating agency, the C.B.C.I.D. to further investigate the case in place of the local police. Therefore, the very re-registration of the crime and further investigation by the C.B.C.I.D. are illegal and unsustainable without obtaining formal permission from the court, second investigation is not permissible.

In another case Thanchand and others vs. State of Rajasthan and another, 1998 Cr.L.J. 3700 (Raj), it has been held that order directing second investigation during pendency of the first investigation is not proper. Further it was observed that on the same facts, the police cannot register a second case, if it is brought to its notice that on an earlier occasion a case has already been registered and that was either under investigation or had already been investigated. When it was brought to the notice of the Additional Chief Judicial Magistrate that a criminal case has already been registered on the basis of the first complaint and investigation was being conducted in that case, there was no justification for making an order for registering another case on the basis of the/second complaint dated 16th January, 90. In any case, the second investigation directed by the Additional Chief Judicial Magistrate could not be done independently of the investigation of the first case. I, therefore, find sufficient force in the submission of the learned counsel for the petitioners that the order dated 20th September, 91 passed by the Additional Chief Judicial Magistrate, Bali directing the investigation under Section 156(3) Cr.P.C. was not proper.

In Meka Karthik and others vs. State of Andhra Pradesh, 2014 (2) crimes (AP), it has been held that initially the learned Magistrate applied his judicial mind to the final report submitted by the Sub Divisional Police Officer referring the case as false. In spite of the fact that the case was referred as false, the learned Magistrate applying his judicial mind took cognizance of the aforesaid offences against A.1 only and then committed the case against A.1 to the Court of Session. The learned Magistrate therefore subsequently basing on the protest petition filed by the 2nd respondent-de facto complainant, cannot take cognizance of the offences for the second time against A.1 to A.3 on the same facts. The Magistrate while acting under Section 200 of Cr.P.C. takes cognizance of the offences, but not cognizance of the accused. When once he took cognizance of the entire offences against A.1 only, he cannot again take cognizance of the offences against A.1 to A.3 basing on the very same facts. Therefore, taking cognizance of the offence by the learned Magistrate by his order dated 06.09.2010 against all the accused and issuing non-bailable warrants against them is bad in law.

Hon'ble the Supreme Court, in case of Madhavrao Jiwaji Rao Scindia & another vs. Sambhajirao Chandrojirao Angre & others, 1988 (25) ACC 163 has held as under:

"The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."

The Hon'ble Apex Court in the case of Mohammed Ibrahim and others Vs. State of Bihar and another [(2009) 8 SCC 751] has held that this court has time and again drawn attention to the growing tendency of the complainants attempting to give the cloak of a criminal offence to matters which are essentially and purely civil in nature, obviously either to apply pressure on the accused, or out of enmity towards the accused, or to subject the accused to harassment. Criminal courts should ensure that proceedings before it are not used for settling scores or to pressurize parties to settle civil disputes. But at the same time, it should be noted that several disputes of a civil nature may also contain the ingredients of criminal offences and if so, will have to be tried as criminal offences, even if they also amount to civil disputes.

The Hon'ble Apex Court in the case of Vimla (Dr.) Vs. Delhi Administration [AIR 1963 SC 1572] has explained the meaning of the expression "defraud" thus:

"14..... the expression 'defraud' involves two elements, namely, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money, and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied."

It is clear that by alleging or showing that a person acted fraudulently, it cannot be assumed that he committed an offence punishable under the Code or any other law, unless that fraudulent act is specified to be an offence under the Code or other law. In the instant case, civil police has submitted the charge sheet and ACJM Ghaziabad took the cognizance but the proceeding was quashed by another Bench of this Court vide Criminal Misc. Application No. 10889 of 2005. After two years the same matter was again investigated by the opposite party no. 3 without there being any order of competent court and submitted the charge sheet again and learned ACJM Meerut (Cooperative) took the cognizance which is not sustainable, in view of above discussion. Moreover, there was an arbitration clause between the parties and dispute was referred to the Arbitrator and got decided through Arbitration Case No. 36/2005-2006 with the direction that Cooperative Society shall deposit the amount in four installments with interest and in compliance amount in question has been deposited by the society. Therefore, there is no evidence of wrongful gain to the society and and its Member and wrongful loss to the Co-operative Bank. Efficacious remedy was sought under section 70 of the Co-operative Society Act and matter was settled and the parties have come to the term, there would be no use to prolong a criminal prosecution which will result in acquittal. In case proceeding is allowed to continue it would be nothing but an abuse of the process of court.

In view of the above discussion and submission, the application has substance and is liable to be allowed. Application is allowed and the charge sheet dated 23.4.2007 in Criminal Case No. 121 of 2011, arising out of Case Crime No. 139 of 2004 under sections 409, 467, 468, 471, 120B IPC, Police Station Kotwali, District Ghaziabad, pending before the court of ACJM, Court No. 3, Meerut, is hereby quashed.

Order Date :- 15.5.2018

Puspendra