Rajesh Chetwal vs State
2011 Latest Caselaw 4104 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL.M.C. No.1656/2011

                                Date of Decision : 24.08.2011

RAJESH CHETWAL                                ...... Petitioner

                        Through:Mr. D.M. Govardhan, Adv.


                              Versus
STATE                                    ......      Respondent
                        Through:Mr. M.N. Dudeja, APP withMr.
                                Ram Gupta, Adv. for R-2.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?             YES
2.     To be referred to the Reporter or not ?  YES
3.     Whether the judgment should be reported
       in the Digest ?                          YES

V.K. SHALI, J.

1. This is a petition under Section 482, Cr.P.C. filed by the

petitioner for quashing of FIR No. 692/99 registered at

Police Station Connaught Place, New Delhi under Section

409/420 IPC.

2. Briefly stated, the facts of the case are that a complaint

was lodged by the Chief Manager, State Bank of India,

Vijaya Building, 17, Barakhamba Road, New Delhi with

Connaught Place Police Station alleging that the SBI has

a Central Office at Madam Cama Road, Nariman Point,

Mumbai and a local head office at 11, Parliament Street,

New Delhi. The Bank provides "Letter of Credit Advising

Service" to the customers and non-customer exporters.

The exporters enter into contracts with their Overseas

Clients for exporting goods and the Overseas Clients

arrange Letters of Credit (LC) through their banks. The

foreign banks send to SBI, Letter of Credit by mail, telex,

swift for further advising to the exporters. Upon receipt

of such LCs, the SBI verifies the genuineness of the

instruments and enter the details of each LC in its books.

Then, it attaches a forwarding letter with the details of

the LC and levy thereupon charges to the LC and hand it

over to the courier for delivery to the exporters. From

the customers, the bank recovers charges by debiting

their account with the Bank and the courier recovers

charges from the non-customers before the delivery of

the LC to the exporters. Similar procedure is adopted for

advising any amendment to the LC.

3. The complainant had also given the scale of quantum of

charges which are levied in this regard for different

services provided by the Bank. It was alleged that the

present petitioner, Rajesh Chetwal, R/o B-1/149,

Paschim Vihar, New Delhi, who has worked on the desk

of LC Advising as Deputy Manager from November 1992

to May 1996, while advising some LCs/amendments,

executed transfers without entering in the books of the

Bank and pocketed the commission collected in cash

from some exporters. It was further alleged that in order

to give it the shape of a genuine transaction and to gain

the confidence of the exporters, he sometimes even

issued receipts to them. It was alleged that Mr. Chetwal

was not authorized to collect the commission and even if

he ought to have collected the same, then he should

have deposited it in the Bank. It was also stated in the

complaint that the petitioner had drawn an amount of

approximately Rs.3.25 lakhs by collecting the

commissions from different exporters, namely, M/s.

Innovative Textiles Pvt. Ltd., M/s. Nahar Industrial

Enterprises Ltd., Ludhiana and M/s. STI Ltd., Bhagwan

Dass Road, New Delhi, but the same was not deposited

with the Bank. It was also alleged that this fraud came

to the notice of the Bank in September, 1996, thereafter,

he was transferred immediately and a report was lodged

by the Bank against the petitioner for committing fraud

and on the basis of the aforesaid complaint, the local

police of PS Connaught Place registered an FIR No.

692/99 under Section 409/420 IPC. After investigation,

the charge sheet was filed in the competent court. After

pro-longed delay, it is stated that the charges against the

present petitioner have been framed on 06.05.2009 and

the present petition has been filed on 05.04.2011 for

quashing the aforesaid FIR on the ground that the

ingredients of Section 409 and 420 IPC are not made

out.

4. I have heard the learned counsel for the petitioner at the

stage of admission with regard to the maintainability of

the petition on the ground of inordinate delay and laches

in approaching the Court for quashing of the FIR and the

consequent proceedings. He has contended that the

inherent powers of the Court under Section 482, Cr.PC

are starting with a non-obstante clause and despite the

fact that there may be a provision to the contrary in the

Cr.PC, still the High Court has the power to pass any

appropriate order in a given case to the prevent the

abuse of processes of law and to secure the ends of

justice. The contention of the learned counsel for the

petitioner, Mr. Govardhan, is that while framing the

charge under Section 409 and 420 IPC against the

petitioner, even the ingredients as laid down by the Apex

Court in a catena of authorities are not satisfied. It was

contended by him that so far as the exercise of power by

the High Court under Section 482 Cr.PC is concerned,

that is not conditioned by any law of limitation much less

by the doctrine of inordinate delay and laches. The

learned counsel for the petitioner has relied upon the

judgments of the learned Single Judge of our own Court

in Inder Mohan & Othrs versus The State, 1972

CriLJ 1569 and Enforcement Directorate versus Ajay

Bakliwal, 101 (2002) DLT 92, wherein it has been held

that Article 131 of the Limitation Act /provisions of the

Limitation Act does not apply to the proceedings under

Section 482 Cr.PC.

5. It was contended by learned counsel for the petitioner

that although the charge sheet in respect of the FIR in

question was filed in the year 1999 but the present

petition was filed only after framing of charges on

account of the fact that the petitioner was quite hopeful

that he will be discharged at the stage of framing of

charges. He also contended that a petition for quashing

of FIR ought not be filed prior to framing of charge.

Reliance in this regard is placed on Sewak Ram

Sobhani Vs. R.K.Karanjiya AIR 1981 SC 1514.

6. The third submission made by the learned counsel for the

petitioner is that even if the question of delay or laches is

considered, the right to file the present petition accrued

to the petitioner only after framing of charge, which

admittedly in the instant case was done on 09.05.2009

and if the cause of action itself accrued on 09.05.2009,

for the purpose of filing of the present petition, it could

by no stretch of imagination be said that the present

petition is belated or that there are any laches on the

part of the petitioner so as to deprive the petitioner from

getting his present petition adjudicated on the merits of

the case.

7. I have carefully considered the submissions made by the

learned counsel for the petitioner. I have also gone

through the number of authorities cited by the learned

counsel for the petitioner.

(i) State of Haryana versus Bhajan Lal, 1992

Suppl. (1) SCC 335

(ii) Pepsi Foods Ltd. versus Special Judicial

Magistrate, (1998) 5 SCC 749

(iii) Janta Dal Vs. H.S. Chowdhary & Ors. 1992 (4)

SCC 305

(iv) Hridaya Ranjan Prasad Verma & Ors Vs. State

of Bihar & Anr (2000) 4 SCC 168

(v) Kailash Kumar Sanwatia Vs. The State of Bihar

& Anr 2003 (4) Crimes 50 SC

(vi) Hiralal & Ors. Vs. State of UP 2009 (11) SCC 89

(vii) R.Kalyani Vs. Janak C. Mehta & Ors. 2009 (1)

SCC 516

(viii) Madavrao Jiwaji Rao Scindia & Ors. Vs.

Sombhajirao Chandrojirao Angre & Ors. 1988

(1) SCC 692

(ix) Enforcement Directorate Vs. Ajay Bakliwal2002

DLT (101) 92

8. Most of these authorities deal with the question of

ingredients which are required to be satisfied for an

offence under Section 409 or 420 IPC, in cases where

there has been a full-fledged trial and thereafter the

matter has reached to the Apex Court by way of Special

Leave to Appeal, etc.

8. At the outset, I must mention that these days the effort

of the counsel is to burden the Court with number of

authorities irrespective of the fact that whether they

have application to the facts of the case or not and leave

it to the Judge to fend his ways in deciding the matter.

Obviously, when the number of judgments cited by a

counsel on the same point are large and distinguishable

even on merits, there is no use to deal with each and

every authority so cited. Further the Supreme court has

also observed the trend of the courts relying upon the

authorities without taking note of the fact that the fact of

the judgment which is reported are different from the

one in which its application is sought. This view has

been expressed by the Supreme Court firstly in

Harayana Financial Corporation Vs. Jagdamba Oil

Mills 2002 (3) SCC 496 where the Apex Court observed

that the law laid down by the Apex Court should not be

applied like theorem. Similarly, in Sushil Suri Vs. CBI

& Anr AIR 2011 SC 1713, it has been observed by the

Apex Court that difference of one material fact can result

in a change of circumstances as a consequence of which

ratio of one judgment may not be applicable in the facts

of the other case. Meaning thereby, before applying the

law laid down by the Apex Court one has to bear in mind

the facts of each and every case as to whether the law

which is sought to be applied would be applicable or not.

9. Keeping in view, these broad parameters so far as the

judgment of Apex Court in State of Haryana versus

Bhajan Lal, 1992 Suppl. (1) SCC 335, Pepsi Foods

Ltd. versus Special Judicial Magistrate, (1998) 5

SCC 749, Janta Dal Vs. H.S. Chowdhary & Ors. 1992

(4) SCC 305 and Hiralal & Ors. Vs. State of UP 2009

(11) SCC 89 are concerned, they laid down the broad

principle of law with regard the petition under Section

482 Cr.P.C. or the powers thereof for quashing of the FIR

or the criminal complaint. In Pepsi Foods case

(Supra) it has also been observed since the order of

summoning impairs the personal liberty of a person,

therefore, it should not be passed as a matter of course.

There is no dispute about the law laid down in these

authorities, but certainly they are not applicable to the

facts of the present case. So far as the judgment in

case titled Hridaya Ranjan Prasad Verma & Ors. Vs.

State of Bihar & Anr. (Supra) and Kailash Kumar

Sanwatia Vs. The State of Bihar & Anr. (Supra) with

regard to the contention of the learned counsel for the

petitioner that no prima facie ingredients of Section 409

or 420 IPC are made out, is concerned, it may be

mentioned that both these cases are the cases where the

finding has been rendered by the Apex Court after a trial

has been undergone. Certainly, the propositions of law

laid down in the facts of the said case where a person

has faced the trial and the matter has ultimately reached

to the Apex Court Cannot be compared with the facts of

the present case where the charge sheet was filed in the

year 1999 and the charges have been framed in respect

of an offence under section 409 or 420 IPC, in the year

2009 which clearly show that the learned Magistrate has

framed the charges after due application of his mind. At

the stage of framing of charge only prima facie case is to

be made out and the guilt of the accused is not to be

proved on the touch stone of beyond reasonable doubt.

In the instant case also, the learned Trial Judge has

already applied its mind and arrived at a reasoned finding

that a prima facie case against the petitioner u/S

409/420 IPC is made out and accordingly, it has directed

the framing of the charge. The said order was not

assailed by the petitioner by way of revision which was to

be filed within 90 days and obviously now it is not open

to the petitioner to wake up after expiry of almost two

years and assail the order of framing of charge under

Section 409/420 IPC by invoking the provision of Section

482 Cr.P.C contending that the petitioner has changed

the counsel and he has been ostensibly advised to do so.

If this is permitted to be done, then I am afraid that no

trial Court would be able to function. This will be gross

abuse of the processes of law. Apart from this, the

question which arises for consideration is as to whether

the petitioner is barred on account of laches and

inordinate delay in invoking the jurisdiction u/S 482

Cr.P.C.

10. So far as the question of application of provisions of the

Limitation Act is concerned, I agree with the contention

of the petitioner that the same is not applicable and to

this extent the judgment of the Single Judge in

Enforcement Directorate Vs. Ajay Bakliwal (supra)

& Inder Mohan & Othrs Vs The State (supra)is not in

dispute. But the question which arises for consideration

is as to whether the petitioner is barred by principle of

inordinate delay and laches on the part of the petitioner

in invoking the powers of the High Court under Section

482, Cr.PC.

11. There is no dispute that Section 482 Cr.PC starts with a

non-obstante clause and that being unfettered by any

provision of law contained in Cr.PC, the High Court is

conferred with the powers to pass orders to prevent the

abuse of process of law or to secure the ends of justice.

There is also no dispute about the fact that no period of

limitation has been prescribed by the Limitation Act

within which a petition under Section 482 Cr.PC ought to

be filed. But the contention which the learned counsel

for the petitioner has failed to address convincingly is

that the principle of laches or inordinate delay is not

applicable to a petition under Section 482 Cr.PC. In this

regard, I disagree with the contention of the learned

counsel for the petitioner that the principle of laches or

inordinate delay is not applicable to the provisions of

Section 482 Cr.PC. In this regard, it may be pertinent to

refer to a few judgments of other High Courts which have

dealt with similar question.

12. In Bata & Others versus Anama Behera, 1990 Crl.LJ

1110, the learned single Judge of the Orissa High Court

observed as under :-

"Though for filing an application under section 482 there is no limitation, the application should be filed within a reasonable time, so that the progress of the case is not disturbed at a belated stage. A revision petition challenging an order can be filed within 90 days from the date of the order similarly a period of 90 days which is at par with a revision petition should be treated as reasonable time for filing an application under section 482 and if it is filed beyond the period of 90 days the applicant would have to explain the cause of the delay."

13. Similarly in Gopal Chauhan versus Smt. Satya &

Anr., 1979 Crl.LJ 446, it was observed that a petition

under Section 482 Cr.PC and Article 227 of the

Constitution of India filed after expiry of 3 years from the

date of summoning ought not to be entertained when the

case is fixed for the stage of evidence and that too, when

the petitioner has approached the Revisionist Court.

14. Thus, although the question of inordinate delay and

laches has not been dealt with in many cases but the fact

remains that a party who invokes the jurisdiction of the

High Court for the purpose of quashing of FIR and the

consequent proceedings by embarking on to show that

the ingredients of Section 409 or 420 IPC are not made

out, is not only required to meet the test of expeditious

dispatch of approaching to the Court but he should also

be able to show that the facts are so glaring that it calls

for interference of the High Court rather than raising the

disputed questions of fact. In the present case, the FIR

was admittedly registered in the year 1999 and a charge

sheet had also been filed in the same year. Therefore,

the petitioner was aware as to what are the accusations

against him when he appeared before the Court for the

first time in 1999 as a complete set of the charge sheet

must have been supplied to him. If at all, the petitioner

felt that there was a case for quashing of FIR, he ought

to have approached the Court at the earliest possible

stage. I agree with the observation made by the Orissa

High Court that if a revision against an order of

summoning could be filed within a period of 90 days then

ordinarily a period of 90 days should have been sufficient

to invoke the jurisdiction of High Court under Section 482

Cr.PC. Admittedly, this has not been done and if the

period is calculated from 1999, the present petition has

been filed after more than 11 years and, therefore, there

was inordinate delay and laches on the part of the

petitioner for which not even an iota of explanation is

forthcoming in the petition.

15. Even if, the contention of the learned counsel for the

petitioner that the cause of action for filing the petition

accrued to the petitioner only after 09.052009 when the

charges against him under Section 409 and 420 IPC were

framed, is taken to be correct even then from the date

of framing of the charge, there has been a lapse of

almost two years in invoking the jurisdiction of this

Court. As I have observed hereinabove that a revision

against an order ought to be filed within a period of 90

days and the said period has been held by Orissa High

Court Court to be reasonable and sufficient to invoke the

revisionary power of a Court, then ordinarily the said

period can also be said to be reasonable in normal

circumstances while preferring a petition under Section

482 Cr.PC while as in the instant case, there is a lapse of

almost two years without there being even an iota of

averment in the petition as to what the petitioner was

doing during these two years. The learned counsel

during the course of argument, had made a submission

that he was recently engaged and when on being

engaged he found that the charge against the petitioner

was not sustainable, he preferred the present petition

under Section 482 Cr.PC.

16. I do not agree with the contention of the learned counsel

for the petitioner that the change of counsel should be

the ground for entertaining a belated petition under

Section 482 Cr.P.C. If that is permitted to be done, then

there will be a spate of cases filed by the parties on the

plea that the counsel who has filed the petition has been

engaged recently as a consequence of which no trial

before the Trial Court would be either able to proceed or

get concluded.

17. For the reasons mentioned above, I am of the considered

opinion that the present petition is highly belated and

inordinately delayed as the charge sheet was filed in the

year 1999 and since then the petitioner was aware of the

allegations against him. Even if the date of cause of

action for filing the petition is taken from the date of

framing of charge then also there is delay of almost two

years in invoking the jurisdiction of the High Court.

Therefore, the petition is totally misconceived and the

same is accordingly dismissed.

V.K. SHALI, J.

AUGUST 24, 2011 MA