Darshan Kaur & Others vs Gurvinder Singh Saini
2010 Latest Caselaw 3746 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI


+     CRL.M.C. 2210/2007


      DARSHAN KAUR & ORS                              ..... Petitioners
                   Through:              Mr. Hitender Kapur, Adv.

                    versus


      GURVINDER SINGH SAINI                        ..... Respondent
                    Through:             Mr. Raj Kumar Sherawat, Adv.


      CORAM:
      HON'BLE MR. JUSTICE SANJIV KHANNA


              ORDER

%              12.08.2010

1     Petitioners Smt. Darshan Kaur, Sh. Amardeep Singh Duggal, Sh. Surjeet

Singh and Smt.Gurpreet Kaur have challenged the summoning order dated 15th September, 2006 passed by the learned Metropolitan Magistrate summoning them under Section 383 and 120-B of the Indian Penal Code, 1860 (hereinafter referred to IPC in short) on a complaint made by Mr. Gurvinder Singh Saini, the respondent. The relevant portion of the summoning order records as under:-

"Having gone through the contents of the documents filed in support of it especially annexure A whereby the accused was directed to pay 25% of his salary to the accused No.4 Gurpreet Kaur and having considered the statement of the complainant on oath. I am of the view that there is sufficient material on record to proceed against the accused persons for their having committing offence punishable under Section 120B and 383 of the Indian Penal Code."

2 The petitioners state that the complaint is abuse process of law by an employee who has been in constant litigation with the school. It is submitted that

CRL.M.C.2210/2007 Page 1 the annexure A to the complaint is a forged and fabricated document or a procured document. Annexure A was never produced in original and what was filed before the learned Metropolitan Magistrate, is a notarized copy. It is submitted that no school or principal will write any such letter as it would result in instant` disqualification or de-recognition of the school under the provisions of Delhi School Education Act.

3 Annexure A relied upon and referred to in the summoning order dated 15th September, 2006 is a photocopy of the alleged Memorandum dated 11th November, 2004 which has been attested as a true copy by a notary. The Memorandum dated 11th November, 2004 is addressed to the respondent and states that the respondent had not been depositing 25% of his salary from July, 2004 to October, 2004 and accordingly, he must deposit the same with Ms. Gurpreet Kaur, Clerk by 15th November, 2004, failing which his services would be terminated. It is further stated that the order was being issued pursuant to orders of Sardar Surjeet Singh and Sardar Amardeep Singh Duggal, Chairman. 4 It may be noticed that the private complaint was filed by the respondent before the learned Metropolitan Magistrate on 2nd December, 2005 nearly one year after the so-called circular/memorandum dated 11th November, 2004. Annexure B to the complaint are some letters which were addressed by the respondent to various authorities making complaints against the school/office bearers. The first letter forming part of annexure B is a letter dated 13th July, 2005 written by the respondent to the Principal of the school with copies to several authorities/Media including Education Minister of Delhi, the Director of Education and Chairman CBSE Education Officer. In this letter, it is stated that the respondent was working in the school since July, 2000 as a Physical Education Teacher but his salary had been wrongly fixed. It was alleged that the respondent was being paid/released only 40% of the dearness allowance contrary to the rules of the Central Government. As per the rules dearness allowance should be 65%. It was stated that the respondent was finding it difficult to survive in an expensive city like Delhi and he was not being paid the dearness allowance as per law. The respondent was borrowing money from his friends as he was the only earning

CRL.M.C.2210/2007 Page 2 member of his family and he had to meet requirements and demands of his family members. There is no allegation in this letter about re-payment or refund of 25% of the salary or to the Memorandum dated 11th November, 2004. Similarly, the respondent had written another letter dated 18th August, 2005 to the Commissioner of Police alleging that the some members of the management were trying to falsely implicate him in a criminal case. In this letter, it was stated that he was not being paid proper dearness allowance and his salary had not been fixed in the proper pay scale by the school management. No reference is made to the Memorandum dated 11th November, 2004. There is no allegation about refund or payment of 25% of the salary to the school.

5 Annexure D to the complaint is the charge sheet which was served by the school on the respondent and he was asked to submit his reply by 07th October, 2005. Annexure E to the complaint is another complaint dated 19th October, 2005 made by the respondent to the Director of Education. In this letter for the first time the respondent has stated that as per verbal orders he was being forced to pay 25% every month to the school authorities and he had received a memorandum dated 11th November, 2004 in writing for non-payment of 25% of the salary of the respondent in cash for the period between July, 2004 to October, 2004. Thus the respondent had made the allegation of refund or return of 25% salary in cash as per the Memorandum dated 11th November, 2004, on or about 19th October, 2005 and that too after school had issued the charge sheet Annexure D. This Memorandum was not referred to and relied upon by him against the school in his earlier complaints dated 13th July, 2005 and 18th August, 2005. 6 The respondent in fact had filed a Civil Writ Petition No.18084/2005 on 29th August, 2005. In this writ petition, the respondent had submitted that his pay scale was wrongly fixed and he was entitled to pay scale of Rs.5500-175-9000 and not Rs.4500-125-7000. In this writ petition the respondent has stated as under :-

" (B) Because the respondents are paying the salary to the petitioner in the pay scale of Rs.4500/- whereas the scale allowed for P.E.T. in all other schools whether public or Govt. is Rs.5500/-. Hence the petitioner has been denied of his rightful salary in the proper scale and respondents have

CRL.M.C.2210/2007 Page 3 failed to follow the Rules of Delhi Education Act and failed to do their duties.

( C) Because the petitioner is entitled for salary in the pay scale of Rs.5500-175-9000/- from the date of his appointment and therefore is entitled for the arrears of salary."(emphasis supplied)

7 In this writ petition the respondent did not state or allege that he was being asked to repay 25% of the salary in cash back to his school authorities. In fact as is apparent from the averments made in the writ petition quoted above it was accepted that the respondent was being paid salary in the pay scale of Rs.4500/-. 8 Learned counsel for the respondent has submitted that the allegation of refund of salary was irrelevant for the purpose of writ petition, besides it is a question of fact. It is not possible to accept the said contention. The respondent had made grievance against the school about fixation of his pay scale and he wanted his pay scale to be upgraded to Rs.5500-175-9000. In case he was being compelled to pay back 25% from his salary in cash, which is a very serious charge, allegations should have been made. Moreover the Memorandum dated 11th November, 2004 is a written document. As noticed above, the allegation was made for the first time in the complaint dated 19th October, 2005, which was written to the Director of Education, Delhi after the charge sheet was issued to the respondent. No such allegation was made even in the earlier complaint or representation dated 13th July, 2005 or to the Commissioner of Police and others dated 18th August, 2005. Therefore, there is merit in the contention of the petitioner that the private complaint which was filed on 2nd December, 2005 is clearly false, and absue of process of law and has been filed only to harass and humiliate the petitioners herein. In this regard it may be appropriate to refer the decision of the Supreme Court in K.L.E. Society and Ors. v. Siddalingesh, (2008) 4 SCC 541. In this case an employee peon working in a college had filed a complaint alleging commission of offences under Sections 403/405 and 415 r/w Section 34 of the I.P.C. The Supreme Court noticed that the said complainant had filed a complaint under the Industrial Disputes Act, 1947 making an allegation that he was paid lower amount and his signatures were obtained for higher amounts.

CRL.M.C.2210/2007 Page 4 The said complaint was pending. However, earlier the complainant had filed a writ petition before the High Court in which no such allegation about any deduction or payment of lower amount was made. The Supreme Court held that exercise of power under Section 482 of the Cr.P.C. is an the exception and not in the law but the same should be exercised to prevent abuse of the process of law and to otherwise secure the ends of justice. Judicial process should not be made an instrument of oppression, or, needless harassment. Reference was made to the earlier decision of the Supreme Court in State of Haryana Vs. Bhajan Lal, 1992 Supp. (1) 355 in which following guidelines have been laid down:-

"(1) Where the allegations made in the first information report or the 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 allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) 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.

(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on

CRL.M.C.2210/2007 Page 5 the accused and with a view to spite him due to private and personal grudge."

Several other decisions were also referred and the order taking cognizance and summoning the accused was quashed.

9 Learned counsel for the respondent referred to Smt. Chand Dhawan Vs. Jawahar Lal, (1992) 3 SCC 317, Maninder Kaur Vs. Rajinder Singh, 1992 (Supp) SCC 25 and Rakesh Sharma Vs.Mahavir Singhvi, 2008 (104) DRJ 402, in which it has been held that summoning order should not be normally interfered and at this stage a prima facie view is to be taken. He also submits that additional documents cannot be allowed to be taken into consideration. I considered the said contention but do not find any merit in the contentions raised by the respondent. The petitioner has placed on record certified copy of the writ petition filed by the respondent. The same cannot be disputed and denied by the respondent. Even otherwise I have relied upon the documents filed by the respondent himself along with his complaint. It is well settled that inherent jurisdiction can be exercised to prevent abuse of the process of court and to otherwise secure the ends of justice. 10 In view of the aforesaid findings, the present petition is allowed and the summoning order/order taking cognizance dated 15th September, 2006 is set aside and quashed. The petition is accordingly disposed of.

SANJIV KHANNA, J.

       AUGUST 12, 2010
       J/NA




CRL.M.C.2210/2007                                                             Page 6