Equesterian Federation Of India & ... vs I.S. Lamba
2009 Latest Caselaw 5024 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

                Crl. M.C.NO. 3143-47/2006

                           Judgment delivered on :07 December, 2009


Equesterian Federation of India & Ors.       ......Petitioners
                   Through: Mr. Rajiv Dutta, Sr. Advocate with
                                       Mr.Kumar Dushyant Kumar, Adv.

                              versus
I.S. Lamba                             ..... Respondents

                              Through: Nemo.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may                       Yes
   be allowed to see the judgment?

2. To be referred to Reporter or not?                              Yes

3. Whether the judgment should be reported                         Yes
   in the Digest?


KAILASH GAMBHIR, J. (ORAL)

By this petition filed under Section 482 Cr.P.C., the

petitioner seeks quashing of the summoning order dated

Crl.M.C.No. 3143-47/2006 pg. 1 22.12.2005 passed by the learned M.M. Ms. Gitanjali Goel, under

Section 406, 420 and 34 IPC.

The brief facts of the present case are as under:

In the present petition the petitioners have been

arraigned as accused in the complaint case filed by the

respondent no.2 under Section 200 Cr.P.C. wherein after recording

the pre-summoning evidence on behalf of the complainant, the

learned M.M. issued summons to the petitioners for an offence

under Section 406, 420 IPC read with Section 34 IPC.

The petitioner no.2 served in the Indian Army at the

rank of Lt. General. Similarly petitioner no.3 is a retired Major

General of the Indian Army and was the Vice President of the

Equestrian Federation of India. The petitioner no.4 is also a retired

Major General of the Indian Army and was the Vice President (Vet)

of the Equestrian Federation of India. The petitioner no.4 is also a

retired Major General of the Indian Army and the petitioner no.5 is

serving as a Colonel in the Indian Army.

The case of the petitioners is that the respondent no.2

is in the habit of filing cases against the petitioner no.1 and its

Crl.M.C.No. 3143-47/2006 pg. 2 officers on one pretext or the other with the sole objective to

harass them so that he can manage to become a part of the

Executive Committee. Major General B.S. Panwar (Retd.,)

petitioner no.3 herein, was appointed by Equestrian Federation of

India to proceed to Riding School, Stockholm (Sweden) along with

other persons who were invited by the same to see the standards

of the Equestrian Sport of India Riders and to meet the officials,

riders, trainees and other involved persons in the Equestrian Sport

in order to explore the possibilities of co-operation between India

and Sweden. The respondent has been paid Rs. 15,000/- for

attending EFI course for CD/TD in Event, held at Lexington

Kentucky during April, 2004 and Rs.500 for the expenses for the

transportation from Delhi to Meerut for Attending Coaching Camp.

The case of the petitioners is that entire expense incurred by the

EFI has been duly accounted and entered into the Ledger Book

and every entry is very clear.

Mr. Dutta, learned Senior Advocate appearing for the

petitioners submits that the complaint case filed by the

respondent no.2 against the petitioners, is a gross abuse of the

Crl.M.C.No. 3143-47/2006 pg. 3 process of the court. Counsel further submits that if the allegations

leveled by the complainant/respondent no.2 are accepted as

correct, even then no cognizable offence is made out against the

present petitioners. Mr. Dutta further submits that the respondent

no.2 has not been appearing in the matter for the last many

occasions which would itself show that the respondent has nothing

to say in opposition to the present petition. Mr. Dutta submits that

all the petitioners at the relevant time were high ranking officers

and the respondent deliberately did not disclose the posts and

status of the petitioners. Counsel further submits that the learned

trial court in a most mechanical manner passed the summoning

order without carefully going through the averments of the

complaint as well as the pre-summoning evidence. Counsel further

submits that the respondent no.2 is in the habit of filing false

cases against the other high ranking officers and his sole aim is to

defame the prestigious body i.e. Equestrian Federation of India,

so that somehow or the other he manages to become the

Executive Member of the said Federation.

              On merits, Mr. Dutta      submits that   the respondent



Crl.M.C.No. 3143-47/2006                                    pg. 4
 complainant        has leveled false allegations in the complaint by

submitting       that      the   funds   of   the   said   federation    were

misappropriated by the present petitioner by hatching a criminal

or planned conspiracy. The contention of the counsel for the

petitioner is that it is the Federation itself which has circulated the

accounts of the said body when its Annual General Meeting was

convened for 24.7.2005. Counsel further submits that in the said

account separate expenses were shown as incurred by the

Federation towards the visit of Major General B.S. Panwar,

Additional Director General who was nominated by the Federation

to attend the Swedish Equestrian Educational Centre Stockholm,

Sweden from 6.6.2003 to 12.6.2003. Counsel contends that the

said amount was not accounted by the Federation in the account

of the petitioner. Counsel thus submits that as far as the

payment made by the respondent/complainant was concerned i.e.

an amount of Rs. 15,500/-, the same is separately reflected in the

statement of accounts of the Federation and the said entry has no

connection with the other entry which was independent and

separate from the expenses incurred for the other officers who

Crl.M.C.No. 3143-47/2006 pg. 5 were deputed to attend the said conference. Counsel thus submits

that the complaint filed by the respondent was patently false and

vexatious and the continuation of the said complaint case against

the petitioners would be gross abuse of the process of the court.

I have heard learned counsel for the petitioner at

considerable length.

It is trite law that machinery of criminal law cannot be

set into motion as a matter of routine. Criminal prosecution is a

serious matter and should not be indulged by people to serve their

selfish designs. Issue of process is a serious job and the courts

cannot mindlessly and ritualistically issue process. The party

against whom allegations are leveled has to go through the ordeal

and agony of a criminal trial which may tarnish his image and lead

to adverse consequences. It would be pertinent to reproduce the

relevant paras from the judgment in "Pepsi Foods Ltd. and Anr.

Vs. Special Judicial Magistrate and Ors. 1998 Crl. L.J. 1 in

this regard:

"27. Summoning of an accused in a criminal cases is a serious matter. Criminal law cannot be set into motion as a matter of course.

Crl.M.C.No. 3143-47/2006 pg. 6 It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

I have perused the records produced and the entries

which are the cause of the present complaint and it appears that

the present case is nothing but an abuse of the process of the

court. The Ld. M.M. erred in issuing the process in this case as to

issue a process what needs to be satisfied firstly is whether the

allegations made in the complaint prima facie establishes the

offence and secondly whether it is expedient in the interest of

justice to permit a prosecution both of which are not fulfilled in the

case at hand.

The petitioners have placed reliance on the judgment of

this court in K.K. Agarwal and Another Vs. Enforcement

Crl.M.C.No. 3143-47/2006 pg. 7 Directorate (MANU/DE/0827/2009). The said judgment is

relevant in the present case and it would be pertinent to

reproduce the following paras:-

"As regards exercise of power under Section 482 CrPC, while relying on its earlier decision in State of Karnataka v.

L. Munniswamy and Ors. MANU/SC/0143/1977 :

1977CriLJ1125 , the Apex Court has held in the case of B.S. Joshi v. State of Haryana 2003 CBC 393 (Sc) that it would not be expedient to allow a lame prosecution to continue and the ends of justice are higher than the ends of mere law. In this connection the following extract from paragraph 10 of the aforesaid case in B.S. Joshi is pertinent.

In State of Karnataka v. L. Munniswamy and Ors., considering the scope of inherent power of quashing under Section 482, this Court held that in the exercise of this wholesome power, the High court is entitled to quash proceedings if it comes to the conclusion that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature.

10. Also, it is no more res integra that the standard of proof required in criminal proceedings is higher than that required before adjudicating authority, therefore if an accused is exonerated before the adjudicating authority then criminal proceedings on same set of facts cannot be allowed to continue against him."

Nobody has chosen to represent the respondent

despite number of opportunities granted by this court, therefore,

the matter is heard in the absence of the respondent.

Crl.M.C.No. 3143-47/2006 pg. 8 Hence in the light of the above submissions of the

petitioner, the summoning order dated 22.12.2005 passed by the

Ld. M.M. is hereby quashed.

The petition stands disposed of accordingly.

December 07, 2009                        KAILASH GAMBHIR,J
MG




Crl.M.C.No. 3143-47/2006                                     pg. 9