Pradeep Kumar And Another vs State Of U.P. And Another
2019 Latest Caselaw 984 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Case :- CRIMINAL MISC. WRIT PETITION No. - 23033 of 2010
 

 
Petitioner :- Pradeep Kumar And Another
 
Respondent :- State Of U.P. And Another
 
Counsel for Petitioner :- Parvez Alam,Mohammad Israr,Rajiv Lochan Shukla
 
Counsel for Respondent :- Govt. Advocate,Anuj Chaudhary,Madan Singh
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. Petitioners by way of the present Criminal Misc. Writ Petition have taken in challenge the summoning order dated 16.07.2010 passed by the learned Addl Chief Judicial Magistrate Nagina District Bijnor in the Criminal Case No 1175 of 2010 (Case Crime No 267 of 2010) under section 419, 420, 408 and 120 B IPC P.S Nagina District Bijnor as well as the order dated 7.12.2010 passed by Learned Sessions Judge Court no 5, District Bijnor in the Criminal Revision no 365 of 2010 whereby Criminal Revision aforesaid challenging the summoning order has been rejected.

2. This Court on 21.12.2010 passed the following order.

"Notice on behalf of respondent no.1 has been accepted by learned A.G.A., who prays for and is allowed four weeks time for filing counter affidavit.

Issue notice to the respondent no.2, who may also file counter affidavit within the same period. Rejoinder affidavit may be filed within two weeks thereafter.

List after six weeks

The submission is that the amount which is alleged to have been misappropriated by the petitioners was actually paid to the concerned teachers and this fact was found to be true by the DIOS in the inquiry held by him with regard to the same allegations on which the impugned prosecution has been initiated.

In view of the above, it is directed that till the next date of listing further proceedings of Case No.1175 of 2010, State Vs. Pradeep Kumar, under Sections 419, 420, 408, 120B I.P.C., P.S. Nageena, District Bijnor pending in the court of Additional Chief Judicial Magistrate, Nageena, District BIjnor shall remain stayed."

3. The factual matrix of the present case runs as follows:-

(I) A First Information Report dated 9.5.2010 was lodged against the Petitioners on 9.5.2010 by the complainant (Respondent No 2) namely Dr Tej Bahadur , Principal, Hindu Intermediate College, Nagina District Bijnor alleging that the Professional Course of Banking and Typing was introduced in the aforesaid college in the early 1990 and for the sessions 1998-1999 and 1999-2000, three Guest Faculties were engaged for the teaching of the aforesaid courses on the basis of honorarium for which the funds were provided by the State Government. One Guest Faculty namely, Shri Suneel Kumar Sharma filed an application before the Sub District Magistrate, Tahsil Nagina, District Bijnor for the arrears of the payment of the honorarium and with respect to which the grievance was referred to the petitioner no 1 namely Shri Pradeep Kumar, who did not reply satisfactorily and after cross checking the cash book and pass book, it was found that few payments which were made, were in the realm of doubt and when the complainant filed an application under the Right to Information Act, no information was provided to the complainant/informant. The Management of the aforesaid college had prohibited the Bank to provide the information with regard to the question raised by the Informant. The complainant again contacted the Regional office of the aforesaid Bank, who subsequently provided the information and on the basis of the information so provided, there emerged few facts details of which are mentioned below.

(ii) There was a cheque numbering RHF 198066 showing payment of Rs 13,500.00 to Shri Sanjay Verma, whereas the Photostat copy of the aforesaid cheque show that the payment was made to one Shri Jaipal. It appeared that petitioner no 2 namely Shri Vijay Kumar Shukla and the petitioner no 1 were the lynch-pin behind the aforesaid payment.

(iii) Likewise, Cheque No RHF 198069 issued to Shri Anuj Kumar Bishnoi is shown in the cash book whereas the counterfoil shows the payment was made to petitioner no 1 by the petitioner no 2. No person of the name of Anuj Bishnoi even worked in the Institution. It was also found in the pass book that Rs 50,000.00 were received on 5.11.1999 and the petitioner no 2 on 12.11.1999 made the payment to the petitioner no 1 by the cheque payment. It is alleged that the petitioners by playing fraud, embezzled Rs 77000/- which belonged to the institution and the aforesaid illegal act of the petitioner comes under the purview of an offence under section 419, 420, 408 and 120 B IPC.

(iv) The petitioners being aggrieved against the First Information Report, filed a Criminal Misc Writ Petition No 8438 of 2010 before this Hon'ble Court and the Hon'ble Court after hearing the counsel for the parties was pleased to stay the arrest of the petitioners vide order dated 19.5.2010 till the filing of the charge sheet.

(v) The Investigating officer recorded the statements of Dr Tej Bahadur, Shri Suneel Kumar Sharma, Shri Raj Kumar, Shri Anil Kumar, Shri Ashok Kumar and Shri Pradeep Kumar Jain and after investigation submitted charge sheet dated 19.6.2010 against the petitioners under section 419, 420, 408, 120 B IPC.

(vi) The learned Addl Chief Judicial Magistrate, Nagina took cognizance of the charge sheet and issued summons to the petitioners vide order dated 16.7.2010.

(vii) The petitioners challenged the order dated 16.7.2010 in Crl Revision No 365 of 2010 before the Addl Sessions Judge Court No 5 Bijnor. The learned Sessions Judge under order dated 7.12.2010 rejected the revision.

(viii) The petitioners challenged the summoning order as well as the order dated 7.12.2010 before this Court by way of filing the present Writ Petition.

4. In the writ petition, main ground raised by the petitioners was that after lodgment of FIR against the petitioners, the Asstt District Inspector of Schools had conducted an enquiry on the complaint filed by the teacher namely, Sunil Kumar Sharma, who had allegedly not been paid the honorarium and after considering the statements and the records converged to the conclusion that:-

** bl izdkj fu"d"kZ :i esa izdj.k ds Ikw.kZ ijh{k.k mijkUr Jh lquhy dqekj 'kekZ dh rglhy fnol esa izLrqr f'kdk;r fnukad 05-08-2008 iq"V lk{;ksa ds vHkko esa Hkzked] vlR; ,oa rF;ksa ds vk/kkj ij fujk/kkj ik;h x;h gSA mUgs fdlh Hkh izdkj dk ekuns; vo'ks"k ds :i es fn;k tkuk 'ks"k izrhr ugh gksrk gSA vk[;k vkidh lsok es izLrqr gSA **

and therefore, no criminal proceedings could be continued against him on same allegations.

5. The Opp Party no 2 filed a counter affidavit wherein he opposed the prayer of the writ petitioners and specifically mentioned in para 12 of the counter affidavit that:-

"Petitioners are habitual to make irregularity time to time, they have made many irregularities and against them inquiries were set up and the criminal cases were also registered. In one of the inquiry that was initiated against the Principal namely Vijay Kumar Shukla petitioner no 2 he was found responsible for embezzlement of Rs 2,79,350/- and the inquiry officer has held that a First Information Report shold be registered against the Principal."

In Para 13, it is mentioned that;-

" One criminal case has been registered against the petitioner no 1 namely Pradeep Kumar as case No 293/1993 under section 406, 409, 420, 408 IPC Police Station Negina District Bijnor in which he was sent to Jail and his bail was rejected by the learned court below vide order dated 19.4.1994."

In para 20, it is mentioned that:-

" It is submitted that after going through all the facts and circumstances of the case and after recording the statement of the witnesses and perusing the materials on records, the Investigating officer reached a conclusion that there are sufficient evidence against the petitioners hence he rightly and legally submitted the charge sheet against the petitioners under section 419, 420,408 and 120B IPC."

6. The petitioners filed rejoinder affidavit wherein they mentioned that Asstt District Inspector of Schools, District Bijnor on the complaint made by one Susheel Kumar Sharma had conducted an enquiry and it was found that Shri Anuj Kumar and Sanjay Kumar Verma were serving in the college and necessary honorarium was also paid to them. It was stated that the informant vide order dated 30.4.2012 was suspended by the management for the charges of gross financial irregularities and corruption. It is also stated that the informant is no longer holding the post of Is no more the Principal of the Hindu Intermediate College, Nagina, District Bijnor. It is also stated that the Investigating officer in a most mechanical manner under the influence of the informant (the then Principal) wrongly roped in the petitioners in the present case, which were self created by the informant and lately the management has suspended the informant due to illegal acts, criminal conspiracy, embezzlement etc of the institution.

7. The learned counsel for the petitioners also filed the written submissions. He submitted that-

(I)Even prima facie, no case is made out against the petitioners.

(II)FIR has been lodged after efflux of more than 10 years.

(III)Petitioners are not signatory authority of the alleged cheque issued and the Manager of the Institution is also required to sign the cheque for the payment. Further, the FIR is not lodged by the management of the institution nor any approval was granted by the management to initiate criminal proceedings against the petitioners.

(IV)The teachers working on honorarium have nowhere come up against the petitioners and further the alleged affidavits annexed with the counter affidavit are not part of case diary.

(V)On the basis of the complaint dated 5.8.2008, an enquiry was conducted by Assistant District Inspector of Schools (ADIOS) and a detailed report was submitted before the District Inspector of Schools, Bijnor categorically recording a finding that the complaint made by Sunil Kumar Sharma is not only wrong, but also without any basis besides being misleading.

(VI)The conduct of the Informant namely Dr Tej Bahadur (respondent no 2) as a Principal of the Institution since 2000, was not only bad but also the informant indulged in illegal activities since 2000 itself and the informant, on the basis of the complaints made against him was suspended from the institution vide order dated 30.4.2012 on the ground of embezzlement to the tune of Rs 67,26,927/-.

(VII) The learned counsel further relied upon a decision of Hon'ble Supreme Court in State of Haryana Vs Bhajan Lal 1992 (SCC) 1 SUPP 335 and submitted that the informant in order to implicate the petitioners in a false and frivolous case and as a counter blast of the complaints of the petitioner no 2, lodged a FIR against the petitioners with malafide intentions, and initiated malicious proceedings with an ulterior motive for wreaking vengeance and with a view to gratify the private and person grudge.

(viii) The enquiry report dated 8.9.2008 exonerated the petitioners from the alleged charge of embezzlement as alleged in the F.I.R and further the enquiry report dated 8.9.2008 has not been challenged by the informant or anyone else aggrieved, to any superior authority or court of law, therefore, the enquiry report in favour of the petitioners attained finality and still holds good.

8. The main thrust of the petitioner's counsel is that once enquiry report dated 8.9.2018 has exonerated the petitioners from the alleged charges of embezzlement as alleged in F.I.R and further when said inquiry remains unchallenged, in such situation, the criminal proceedings on identical facts cannot be proceeded further against the petitioners. In this connection, the petitioners have relied upon a decision of the Apex Court in Lokesh Kumar Jain Vs state of Rajasthan (2013 ) 11 SCC 130. Paras 28,29 and 30 being relevant are quoted below.

" 28. In P.S Rajya V State of Bihari (1996)9 SCC 1, this Court noticed that the appellant was exonerated in the departmental proceeding in the light of report of the Central Vigilance Commission and concurred by the Union Public Service Commission. The criminal case was pending since long, in spite of the fact that the appellant was exonerated in the departmental proceeding for same charge.

29.Having regard to the aforesaid fact, this Court held that if the charges which is identical could not be established in a departmental proceedings, one wonders what is there further to proceed against the accused in criminal proceedings where standard of proof required to establish the guilt is far higher than the standard of proof required to establish the guilt in the departmental proceedings.

30.Having regard to the factual scenario, noted above, and for the reasons stated below, we areof the opinion that the present case of the appellant is one of the fit cases where the High

31.Court should have exercised its power under Section 482 Cr.P.C It is not disputed by the respondent that the departmental proceeding was initiated against the appellant with regard to identical charges made in the F.I.R. It was alleged that as per CAG Inquiry Report dated 15th December, 2008 Rs 4,39,617/- has been misappropriated by the Appellant, all the copies of original bills and documents are available in the office of CAG and the original documents are available in the office of the Directorate, State Literacy Programme."

9. In P.S Rajya Vs State of Bihar 1996 SCC (Crl) 897, para 24 being relevant is quoted below.

"Even though all these facts including the Report of the Central Vigilance Commission were brought to the notice of the High Court, unfortunately, the High Court took a view that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27.3.1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs."

10. In Tej Singh Vs State of U.P. rendered in Crl Application under section 482/378/407 No 3152 of 2007 decided on 16.11.2018, a learned Single Judge of this Court observed that the core question which is to be considered is that if on same and identical charges petitioner has been exonerated in the departmental proceedings then in that circumstances in Charge sheet no 2 of 2008 dated 9.2.2008 filed in case crime no 333 of 2003 under section 409,420,467,468,471 and 120B IPC PS Kaiserganj District Bahraich which is instituted against the petitioner on the same charges can be allowed to continue or not?

After considering the materials on record, the learned Single Judge observed and held as under:

"In the instant matter, from the perusal of the record, the position which emerge out is that so far as the matter in regard to shortage of fertilizers is concerned, the said charges has not been established and proved against the petitioner.

Further from the Distribution Register (Vitran Register) none of the members of the Simiti has stated that signature of the petitioner was forged and there is neither any cutting nor overwriting in the said register. Moreover, it is also evident from the amterial on record that no fraud or any act has been done by the petitioner while holding post of Secretary of the Simiti in regard to which F.I.R was lodged .

From the perusal of the documents of the Simiti as well as bank, it is clearly established that no financial irregularities have been committed by the petitioner while discharging his duties on the post of Secretary of the Simiti.

Thus keeping in view of the above facts as well as position of law as stated herein above, the charge sheet No 2 of 2008 dated 0.2.2006 filed in Case Crime No 333 of 2003 under section 409, 420,467,468, 471 and 120 B IPC Police Station Kaiserganj District Bahraich as contained in annexure no 3 to the petition and the entire proceedings arising out of the charge sheet are hereby quashed."

11. The learned counsel for the State submitted that a Three Judge Bench of Hon'ble Supreme Court in State (NCT of Delhi Vs Ajay Kumar Tyagi reported in 2012 (9) SCC 685 has considered the issues which were referred to larger Bench. Para 9 being relevant is quoted below.

" When the matter came up for consideration before a Bench of this Court on 13.9.2010, finding conflict between two Judge Bench decisions of this Court, it referred the matter for consideration by a larger Bench and, while doing so, observed as follows:

" The facts of the case are that the respondent has been accused of taking bribe and was caught in a trap case. We are not going into the merits of the dispute. However, it seems that there are two conflicting judgments of two-Judge Benches of this Court: (I) PS Rajya V State of Bihar in which a two Juge Bench held that if a person is exonerated in a departmental proceeding, no criminal proceedings can be launched or may continue against him on the same subject matter, (ii) Kishan Singh V Gurpal Singh, where another two-Judge Bench has taken a contrary view. We areinclined to agree with the latter view since a crime is an offence against the State. A Criminal case is tried by a Judge who is trained in law, while departmental proceeding is usually held by an officer of the department who may be untrained in law. However, we are not expressing any final opinion in the matter.

In view of these conflicting judgments, we are of the opinion that the matter has to be considered by a larger Bench."

Hon'ble Apex Court further held as under:

"24. Therefore, in our opinion, the High court quashed the prosecution on total misreading of the judgment in the case of P.S. Rajya (Supra). In fact, there are precedents, to which we have referred to above speak eloquently a contrary view i.e. exoneration in departmental proceeding ipso facto would not lead to exoneration or acquittal in a criminal case. On principle also, this view commends us. It is well settled that the standard of proof in department proceeding is lower than that of criminal prosecution. It is equally well settled that the departmental proceeding or for that matter criminal cases have to be decided only on the basis of evidence adduced therein. Truthfulness of the evidence in the criminal case can be judged only after the evidence is adduced therein and the criminal case can not be rejected on the basis of the evidence in the departmental proceeding or the report of the Inquiry Officer based on those evidence.

25.We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy.

26.For the reasons stated above, the order of the High Court is unsustainable, both on facts and law. The accused shall appear before the trial court within four weeks from today. As the criminal proceeding is pending since long, the learned Judge in seisin of the trial shall make endeavour to dispose of the same expeditiously and avoid unnecessary and uncalled for adjournments."

12. In view of the above mentioned factual and legal background, now I consider the rival submissions. The contents of the complaint, statements recorded by the Investigating officer clearly show that prima rfacie case is made out against the petitioner. The relevant part of the complaint and statements as mentioned are quoted below.

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c;ku xokg QnZ %& cnfj;k¶r Jh vfuy dqekj xqIrk iq= Lo0 Mk0 cnzh izlkn xqIrk fu0xzk0 i/kku dLck uxhuk gky izOkDrk ,p0vkbZ0 dkyst uxhuk us c;ku fd vkt vkius esjs le{k iz/kkukpk;Z Mk0 rsx cgknqj ls [kkrk la0&13402 O;olkf;d f'k{kk laca/kh pSd dqd dh dkmUVj Qkbys] ikl cqd o dS'k cqd ewy :i ls dCts es ysdj QksVks izfr;ka djkbZ rFkk iz/kkukpk;Z ds vuqjks/k ij budh lqiqnZxh es ewy vfHkys[k es fn;s c;ku ,d fYkQkQk es j[kdj vkius viuh lhy fd;s rFkk QnZ vkius rS;kj dh gSA eSus vius gLrk{kj QnZ i c;ku xokg QnZ %& cnfj;k¶r Jh v'kksd dqekj iq= fo'kEHkj flag fu0 vEcsMdj uxj dLck uxhuk gky ySc lgk;d fgUnw baVj dkyst uxhuk us c;ku fd;k fd vkt vkius iz/kkukpk;Z Mk0 rst cgknqj ls O;olkf;d f'k{kk ls lacaf/kr [kkrk la0 &13402 ls lacaf/kr pSd dh dkmUVj Qkbys] ikl cqd o dS'k cqd ewy :i es vius dCts es yh gS rFkk budh [okfg'k ij ewy :i es bUgs lqiqnZxh es nh gS rFkk QksVks izfr;k djkdj ,d izfr Hkh nh gSA ewy vfHkys[k ,d fyQkQk es j[kdj lhy losZ eksgj fd;k o ewy lhy fd;k gSA QnZ vkius fy[kdj eSus i c;ku izcU/kd QnZ %& cnfj;k¶r Jh jkts'k dqekj tks'kh iq= vkj0,l0 tks'kh izcU/kd] ih0,u0ch0 'kk[kk uxhuk fctukSj us c;ku fd;k vkt vki dks eSus pSd la0198065] 198066 o 198069 dh ewy izfr;ka nh Fkh rFkk vkius voyksdu djds ewy :i es gh esjh lqiqnZxh es fn;s gS QnZ rS;kj dh Fkh eSus QnZ i ¼lR;izfr fyfi½

13. Now the issue left in the present matter to consider is whether on similar facts, once the petitioner is exonerated in an enquiry, can criminal proceedings be proceeded against him or not?

14. The position of law is now well settled by the judgment of the Hon'ble Apex Court in the decision in State (NCT Delhi) Vs Ajay Kumar Tyagi (supra). Para 25 of the said decision being relevant is again quoted below.

"25. We are, therefore, of the opinion that the exoneration in the departmental proceeding ipso facto would not result into the quashing of the criminal prosecution. We hasten to add, however, that if the prosecution against an accused is solely based on a finding in a proceeding and that finding is set aside by the superior authority in the hierarchy, the very foundation goes and the prosecution may be quashed. But that principle will not apply in the case of the departmental proceeding as the criminal trial and the departmental proceeding are held by two different entities. Further they are not in the same hierarchy." (Emphasis supplied).

15. Therefore, ipso facto, the petitioners cannot get benefit of exoneration in inquiry and merely on exoneration in departmental inquiry, criminal proceedings cannot be quashed. Further I have perused the Inquiry report also and found that even the inquiry report has not exonerated the petitioners. Rather the Asstt Distt Inspector of Schools in a very summarily manner rejected the complaint filed by Sunil Kumar; whereas the charge sheet has been filed on the basis of statements recorded of five witnesses and after investigating the matter thoroughly. Therefore, the contention of the petitioners is not legally sustainable. The judgments relied upon by the learned counsel for the petitioners are based on the judgment in PS Rajya Vs State of Bihar (supra) and as I have mentioned earlier that this case was referred to a large Bench in State NCT Vs Ajay Kumar Tyagi (supra) wherein it has been held that "We are, therefore of the opinion that the exoneration in the departmental proceeding ipso facto would not result in the quashing of the criminal prosecution."

16. Therefore in the above conspectus, the petition fails and is dismissed being devoid of merit. Interim order if any, shall stand vacated.S

Order Date :- 12.3.2019

MH