Shiksha Educational Trust And 2 ... vs State Of U.P. And Another
2021 Latest Caselaw 6945 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R. 
 
Court No. - 37
 
Case :- APPLICATION U/S 482 No. - 6747 of 2021
 
Applicant :- Shiksha Educational Trust And 2 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Deepak Kumar Jaiswal,Sanjay Kumar Gupta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

1. Heard learned counsel for the applicant and learned A.G.A. for the State and perused the record.

2. The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the proceeding of Criminal Complaint No.1860 of 2019 (old No. 1057/2019) Bank of India Vs. Shiksha Educational Trust and others pending in the Court of Additional Chief Judicial Magistrate II, Varanasi, under Section 138 of Negotiable Instrument Act, 1881, P.S.- Kotwali, Varanasi, including Summoning Order dated 29.04.2019 (Annexure-5) as well as N.B.W. dated 09.07.2020 (Annexure-6) and dismiss the Criminal Complaint No. 1860; Bank of India Vs. Shiksha Educational Trust and others dated 11.03.2019 (Annexure-3).

3. It appears that the applicant nos. 2 and 3 have challenged the proceedings more particularly after the non-bailable warrant came to be issued on them. They had not challenged the summoning order at the first instance.

4. As far as averments made in the application are concerned it has been submitted by the learned A.G.A., are not such which would permit this Court to quash the proceedings. The provisions of Section 482 of Cr.P.C. for quashing are not made out.

5. Facts as narrated in brief are that a proposal for O.T.S. was submitted by Pratima Singh, Chair Person with an application to Chief Manager, Bank of India Lohatia Branch, Varanasi; Bank of India accepted the O.T.S. proposal on certain conditions which are accepted by the applicants; A resolution was passed giving number of 4 Cheques No. 7405, 7406, 7407 and 7408 dated 30.11.2018, 30.12.2018, 30.01.2019 and 01.02.2019; Letter mentioning Cheque Nos. and dated were submitted before the Chief Manager by the Trust; Letter for renewal of O.T.S. by giving 4 new Cheques No. 7419, 7420, 7417 and 7418 dated 20.01.2019, 08.02.2019, 28.02.2019 and 25.03.2019 which was submitted before Zonal Manager; Letter for payment of dues under O.T.S. by giving 4 new Cheques nos. 7419, 7420, 7417, 7418 dated 20.01.2019, 08.02.2019, 28.02.2019 and 25.03.2019 which was submitted before Chief Manager; Cheque No.7406 for Rs. 100 Lacs was issued in the name of Bank of India; Return Memo was issued by Union Bank of India with remark ''funds insufficent' ; Legal Notice in respect of dishonor of Cheque No.7406 dated 30.12.2018 for Rs.100 Lac was allegedly given; Letter of Chief Manager cancelling O.T.S. proposal dated 14.07.2018 sanctioned on 19.11.2018; Complaint U/S 138 N.I. Act, was filed by Bank of India through Chief Manager which was registered as Criminal Complaint No.1860 of 2019 (old No. 1057 of 2019); statement of complainant, Chief Manager U/s 200 Cr.P.C. in the form of affidavit was recorded; the summoning order was never challenged before this Court.

6. The averments and complaint by the complainant will also not permit this Court to exercise jurisdiction under Section 482 Cr.P.C. I am fortified in my view by the decision rendered in State of Telangana Vs. Habib Abdullah Jeelani and others, (2017) 2 SCC 799. There are serious allegations against the accused. Therefore it cannot be said that this is a case which requires to be entertained. The Court as per the contours of Section 482 Cr.P.C. cannot grant indirectly which cannot be granted directly. I am even fortified in my view by the decision rendered in Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra AIR 2021 SC 1918.

7. At the stage the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. Of course it has been pointed out in Bhajan Lal cases, 1992 Supp (1) SCC 335, an F.I.R. or a complaint may be quashed if the allegations made therein are so absurd and inheretently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding, obviously because on the allegation in the F.I.R. it was not possible to do so. Therefore, it must be held that the High Court has committed a gross error of law in quashing the F.I.R. and the complaint. Accordingly, the impugned judgment is set aside and the petition filed by the respondent in the High Court under Section 482 Cr.P.C. is dismissed.

8. After coming to know that the non-bailable warrant has been issued this is a clear device of challenging the entire proceedings under Section 482 Cr.P.C. It is not known if the police has already arrested the accused as the warrants were issued long back before one year. The summoning order is dated 29.04.2019 which means that for a period of two years the respondents have not appeared before the learned Magistrate.

9. It is submitted by learned A.G.A. that the present application is devoid of merits just because there are litigation pending before DRT and DRAT Allahabad and complaint cannot be quashed. It cannot be said that the proceedings are bad. No case is made out for interference under Section 482 Cr.P.C. at this juncture.

10. Hence, the application is required to dismissed. However if the applicants choose, they may appear before the Court below and if the non-bailable yet not served on them, they may request the Court for recalling of non-bailable warrants.

11. It is a after thought only after the non-bailable warrants were issued that the applicants have approached this Court, they did not appear before the Court below nor challenge the summoning order were issued. The summoning order were never challenged. The submission of Sri Deepak Kumar Jaiswal that dual proceedings cannot take place both under DRAT and under Section 138 of N.I. Act is not tenable as there is no bar if the cheque is bounced on the basis of insufficiency of funds, may be because of one time settlement or rejection of the same cannot be countered under Section 482 Cr.P.C..

12. I have heard the parties and have perused the entire record. Prima facie ingredients of the offence are made out from the papers on record. On the touchstone of the decision of the Apex Court and in a recent decision of High Court of Gujarat in case of A. H. Patel vs. State of Gujarat reported in 2014 (1) GLR 766 as the facts are similar to this case the said decision and the parameters fixed in the recent decision has holding that if the relevant aspects deserves to be investigated, the same cannot be circumvented under Section 482 of the Code.

13. The Apex Court in case of State of Orissa vs. Ujjal Kumar Burdhan reported in 2012 (1) GLH 875 (SC) has observed that:

"7. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide. Nevertheless, inherent powers do not confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety do not constitute the offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out against those incharge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.

8. In State of West Bengal and Ors. Vs. Swapan Kumar Guha and Ors.(1982) 1 SCC 561: 1982 SCC (Cri) 283, emphasising that the Court will not normally interfere with an investigation and will permit the inquiry into the alleged offence, to be completed, this Court highlighted the necessity of a proper investigation observing thus: An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed . When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed , the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an offence has been disclosed.... Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case.... If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence.

"(emphasis supplied)."

14. It is held that High Court should be loath in exercise of jurisdiction under Section 482 of Code to enter into the process of determining the veracity of complaint. In case of Sathis Mehra vs. State of N.C.T. Of Delhi and anr reported in AIR 2013 SC 506 it is held by the Apex Court that when there are serious allegations, they cannot be quashed under Section 482 when prima facie case is made out.

15. The Apex Court in case of Rajiv Thapar vs. Madan Lal Kapoor reported in AIR 2013 (3) SCC 330 has held that :

"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have farreaching consequences inasmuch as it would negate the prosecution's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution /complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiable refuted, being material of sterling impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

As observed by Hon'ble Apex Court, the powers vested in the High Court under Section 482 of the Code, when exercised, have far reaching consequences, most important being the consequence that it would negate the prosecution's/ complainant's case without allowing the prosecution/ complainant to lead evidence and that, therefore, the exercise of the said powers should be with utmost caution, care and circumspection. This is a case which cannot be said to be one where extraordinary power require to be exercised as basic ingredients of the alleged offences are there.

16. In view of the above, I do not feel that this petition requires to be entertained. The petition is devoid of merits and is dismissed. Interim relief is vacated forthwith. The police shall take action immediately regarding non-bailable warrants. Writ be sent to the concerned police station to take further action.

17. Moreover recently the Division Bench while exercising a broader jurisdiction under Article 226 of the Constitution of India in Criminal Misc. Writ Petition No. 14852 of 2017 (Ompal Singh And 3 Ors Vs. State Of U.P. And 2 Ors.) has rejected the petition for quashment.

18. This petition is after thought of challenging the non-bailable warrant, the application is devoid of merits and is dismissed with exemplary costs of Rs. 50,000/- to be deposited with the Legal Service Authority which can be utilized for the patients of Covid-19 as officers of such institutions after falling to appear before the Court below have come up with this challenge which is a belated challenge filed after a period of two years. They have purposefully not appeared before the Court below. The summoning order was issued on 28.04.2019. All these facts which the applicants have mentioned herein, they could have mentioned before the Court below after appearing before the Court below.

19. From these factual data, it is submitted that two proceedings cannot simultaneously be proceeded. All these are in the realms evidence. The liabilities were prima facie there and therefore it cannot be said that the issuance of summons is bad. The amount of cheque and and contours of Section 138 of N.I. Act, cannot be said to have been prima faice not made out. The summoning order cumulated into bailable and non-bailable warrants. The grounds urge and the annexures annexed cannot be perused under Section 482 Cr.P.C. when prima facie case is made out. 20. It cannot be said that the complaint bared by SARFAESI Act, 2002. If it was against the O.T.S., the O.T.S. is not bounty but there a meritorious for liability and therefore both the proceedings can simultaneously be carried out because of the Pandemic the matter remain pending here. If the accused are still not arrested the only indulgence which can be shown. They may appear before the Court below and the Court below may consider their applications for cancellation of non-bailable warrants.

21. No case for under Section 482 Cr.P.C. is made out. The application is dismissed with exemplary costs of Rs. 50,000/-.

Order Date :- 2.7.2021

Krishna*

F. Order

On oral request before this order is signed, the cost is reduced to Rs.5,000/- (five thousand).

Order Date :- 2.7.2021

Krishna*