Allahabad High Court
Kunwar Pal Singh vs State Of U.P And Another on 2 May, 2023
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- APPLICATION U/S 482 No. - 42467 of 2022
Applicant :- Kunwar Pal Singh
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Sujeet Kumar Rai
Counsel for Opposite Party :- G.A.
Hon'ble Shekhar Kumar Yadav,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material available on record.
This application under Section 482 Cr.P.C. has been filed by applicant to quash the entire proceedings of Criminal Case No. 4668 of 2022 (State Vs Kunwar Pal Singh), arising out of Case Crime No. 1184 of 2019, under Sections 409/420 IPC, P.S. Kotwali, District Mainpuri, pending in the Court of CJM, Mainpuri including the charge sheet and the summoning order/cognizance order.
Record discloses that an FIR was lodged by private respondent vide Case Crime No. 1184 of 2019, under Sections 409, 420 IPC at P.S. Kotwali, District Mainpuri against the applicant to the effect that, the applicant, who is secretary of the Cooperative Society has instead of releasing the dues to the members of the Society appropriated the same to his own salary account. Against which, applicant approached this Court by filing Criminal Misc Writ Petition No. 24702 of 2019, which has been dismissed vide order dated 3.12.2019 reserving the right of the applicant to get bail or anticipatory bail as may be advised. Thereafter, applicant approached this Court by filing Criminal Misc Anticipatory Bail Application U/s 438 Cr.P.C. No. 101 of 2022, which has been disposed of vide order dated 18.5.2022 by granting anticipatory bail till submission of the police report under Section 173(2) Cr.P.C. before the competent court. Thereafter, after concluding the investigation, charge sheet came to be filed against the applicant on 30.5.2022 under Section 409/420 IPC, whereupon cognizance has been taken by the Magistrate, concerned vide order dated 16.10.2022. It is this order which is subject matter of challenge before this Court.
The contention of the learned counsel for the applicant is that no offence against the applicant is disclosed and the present prosecution has been instituted with malafide intentions for the purposes of harassment. Learned counsel for the applicant submits that even if the allegations alleged in the FIR are treated to be true, none of the ingredients of offence alleged are made out. It is alleged that there was no entrustment of any property against the applicant and therefore the question of breach of trust did not arise.
Submission of learned counsel for the applicant is that applicant was appointed on the post of Accountant in Kshetriya Sadhan Sahkari Samiti Limited, Byoti Khurd, Block Sultanganj, District Mainpuri by the Committee of Management of the Society, which is a registered under the provisions of UP Co-operative Societies Act, 1965 as well as UP Co-operative Societies Rules, 1968. The contention of learned counsel for the applicant is that there were arrears of his own salary, which was appropriated with the consent of the Management. It is further submitted that the applicant is a retired Secretary of the Co-operative Society and he did not misappropriate any amount of the society and there had never been allegation of misappropriation during his entire service period. Further submission is that applicant is neither a public servant, nor a banker, merchant, factor , broker or agent nor salary has been paid to him by the State Exchequer, hence, offence under Section 409 IPC is not made out against the applicant.
Per contra, learned AGA contended that the applicant was a Public Servant in view of Section 21 of IPC and in that capacity he was entrusted with the funds of the Society, which has been misappropriated by him. It is further submitted that the applicant has rightly been summoned under Section 409, 420 IPC. It is further submitted that the question as to whether the amount alleged misappropriated by him or the same has been appropriated by him on account of salary, is question of facts and that has to be decided on the basis of the evidence led during trial.
From the perusal of material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of M/s Neeharika Infrastructure PVT Ltd. Vs State of Maharashtra, AIR 2021 SC 1918, R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283, State of M.P. Vs Awadh Kishore Gupta and others [(2004) 1 SCC 691, and Dr. Monica Kumar and Another Vs State of UP and Others, (2008) 8 SCC 781. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. or 245 Cr.P.C. as the case may be, before the court below and he is free to take all the submissions in the said discharge application before the trial court.
This Court since has refrained from commenting on the merits of the matter lest the case of the applicant may get prejudiced at the time of arguing on framing of charge.
The prayer for quashing the proceedings of case as well as charge sheet is refused.
At this stage, learned counsel for the applicant submitted that directions may be given to the court below to consider the bail application of the applicants in view of the judgment in the case Satendra Kumar Antil vs. Central Bureau of Investigation and another, 2021 SCC Online SC 922.
In the case of Satendra Kumar Antil (supra), the Hon'ble Supreme Court laid down the guidelines for deciding of the bail application. For that purpose, the cases have been divided under four categories. The Hon'ble Supreme Court has observed that the trial courts and the High Courts will keep in mind the aforesaid guidelines, while considering the bail application. This Court has no doubt, that as and when, the applicants approach the trial court for bail, same shall be heard and disposed of expeditiously by the court below in view of the settled law laid by this Court in the case of Satendra Kumar Antil (supra).
As such application has no force and is accordingly disposed of.
Order Date :- 2.5.2023
RavindraKSingh
