Delhi High Court
Dilip K Bandopadhyay vs State & Anr. on 4 July, 2013
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 17th May, 2013
Judgment delivered on: 4th July, 2013
+ CRL.M.C. 3999/2011
DILIP K BANDOPADHYAY ..... Petitioner
Through: Mr. Mukul Talwar and
Mr. Sradhananda Mahapatra,
Advocates.
Versus
STATE & ANR. ..... Respondents
Through: Mr. Aseem Mehrotra, Advocate for
Respondent No. 2.
AND
+ CRL.M.C. 4037/2011
DR. B P JOSHI ..... Petitioner
Through: Mr. Mukul Talwar and
Mr. Sradhananda Mahapatra,
Advocates.
Versus
STATE & ANR. ..... Respondents
Through: Mr. Aseem Mehrotra, Advocate for
Respondent No. 2.
AND
Crl. M.C. Nos. 3999 & 4037-39 of 2011 Page 1 of 31
+ CRL.M.C. 4038/2011
DR.NITIN MALIK ..... Petitioner
Through: Mr. Mukul Talwar and
Mr. Sradhananda Mahapatra,
Advocates.
Versus
STATE & ANR. ..... Respondents
Through: Mr. Aseem Mehrotra, Advocate for
Respondent No. 2.
AND
+ CRL.M.C. 4039/2011
AJAY GUPTA ..... Petitioner
Through: Mr. Mukul Talwar and
Mr. Sradhananda Mahapatra,
Advocates.
Versus
STATE & ANR. ..... Respondents
Through: Mr. Aseem Mehrotra, Advocate for
Respondent No. 2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. Vide the present petitions, the petitioners seek quashing and setting
aside the Criminal Complaint No. 21/1/11 titled as "Aditya College of
Pharmacy & Science Vs. S.S. Mantha & Ors.", which was filed by the
complainant/respondent No.2 for the offences punishable under Section
420/468/471 read with 120-B of the Indian Penal Code, 1860 (for short
„IPC‟).
2. Also seek setting aside of the order dated 15.01.2011 passed by the
learned Metropolitan Magistrate, pursuant to which summons have been
issued to the petitioners.
3. Since all the petitioners have challenged the same complaint and the
impugned order, therefore, this Court has decided to dispose of all the
petitions by a common judgment.
4. The allegations against the petitioners are that they entered into a
criminal conspiracy with each other with a view to cheat the complainant and
cause harm to the reputation of the College. In furtherance of this intention,
the petitioners forged the inspection report and the words „„NOT
RECOMMENDED‟‟ were added later on. The complainant led the pre-
summoning evidence of two witnesses. One of the witnesses, i.e., Mr.
Devender Gupta (CW1) is the Founder-cum-Chairperson of the College and
other is Mr.Sitanshu Gupta (CW2), a friend of CW1.
5. Mr. Parag P. Tripathi, learned Senior Counsel appearing on behalf of
the petitioners submitted that the above said witnesses in their oral evidence
have merely tried to prove one telephonic conversation which is stated to
have taken place on 21.08.2009 between Mr. Devender Gupta (CW1) and
one Dr. Surinder Singh, the latter was one of the members of the Joint
Inspection Team that had inspected the premises of the Complainant Institute
on 20.08.2009.
6. He submitted, past history of the case is that on 21.05.2009, the
premises of the Complainant Institute was inspected as a Ist inspection by the
above Committee and since the said Committee found deficiencies, therefore,
affiliation was denied. The Complainant Institute challenged the Ist
inspection report vide W.P.(C) No. 9706/2009, which was dismissed by the
learned Single Judge of this Court. The complainant challenged the same by
way of LPA No. 384/2009, wherein the Division Bench of this Court directed
that a joint inspection to be conducted by the All India Council for Technical
Education (AICTE) and Guru Gobind Singh Indraprastha University (GGSIP
University) as the 2nd inspection. Accordingly, on 20.08.2009, the joint
inspection was conducted and same deficiencies, as were in the Ist inspection,
were found again. A copy of the report was handed over to the Complainant
Institute in the Court on 21.08.2009.
7. On 25.08.2009, the Complainant Institute had filed objections to the
report. As the aforesaid LPA No. 384/2009 was disposed of without granting
any relief, thus, the objections of the Complainant Institute were deemed to
have been rejected.
8. Learned counsel pointed out that in collateral proceedings being
W.P.(C) No. 12724/2009, Single Bench of this Court on 22.03.2010 directed
yet another inspection of the Complainant Institute by Sh. C.K. Mahajan, a
retired Judge of this Court. This was the third inspection.
9. On 27.03.2010, above named retired Judge found that the Complainant
Institute was not fit to be run as an educational institute to conduct the
B.Pharma Course. Accordingly, this Court while accepting the findings,
passed an order dated 05.05.2010 in W.P.(C) No.12724/2009 that students
admitted to the roll of the College should be transferred to some other
Institute affiliated with the University. This order was made absolute on
11.05.2010.
10. Further submitted, the Complainant Institute filed an appeal being LPA
No. 540/2010 challenging the order dated 11.05.2010, the same was
dismissed on 15.07.2010.
11. Thereafter, the Complainant Institute filed contempt petitions, which
were dismissed by this Court on different dates, i.e., 11.03.2010, 26.04.2010
and 16.08.2010.
12. Meanwhile, on 03.01.2009, complainant filed impugned complaint
before the learned Magistrate against ten individuals including the
petitioners.
13. Vide order dated 14.12.2009, not being satisfied with the pre-
summoning evidence led by the complainant, the learned Trial Court directed
the local police to investigate the allegations made in the complaint.
Accordingly, after investigation, on 13.01.2010 the police filed their report in
which they found that no case was made out.
14. Learned senior counsel further submitted that an enquiry was
conducted by an officer of the level of Assistant Commissioner of Police.
The said ACP, inter alia, recorded the statement of said Dr. Surinder Singh,
who was supposed to have admitted to Mr. Devender Gupta over the
telephone that the words „„NOT RECOMMENDED‟‟ were added later on.
15. In his statement to the Police, he categorically stated that "final
conclusion '„NOT RECOMMENDED‟' was mentioned before all the
members of the Committee. It is submitted that Mr. Devender Gupta had
telephonic discussion with me and I never told him that the report is
tempered because the final conclusion „„NOT RECOMMENDED‟' was made
in the report before all the members signed it."
16. He has further stated that "as far as recording of my voice on
telephone, we usually ignore such calls and try to get rid of this as soon as
possible. So whatever the conversation has been cited by Mr. Devender
Gupta is meaningless and without any substance and allegation".
17. Thereafter, the local police filed a report on 13.01.2010 with the
opinion that no offence was made out. The learned Trial Court allowed the
complainant to file the objections against the said report, which objections
were in the nature of a protest petition.
18. Considering the report filed by the police and the evidence led by the
complainant, the learned Trial Court vide order dated 15.01.2010 issued
summons against six persons out of total implicated by the complainant.
19. The learned Trial Court passed the aforesaid order primarily on the
ground that the police had not investigated the case properly and there is
evidence against the petitioners to be summoned for the offences under
Sections 465/469/471 read with Section 120-B IPC.
20. The petitioners have raised the issue of jurisdiction that the inspection
report has received the imprimatur of the Division Bench of this Court and
thus any allegations of forgery etc. could have been raised only before the
said Bench, which is the subject matter of the complaint, was conducted on
the express directions of a Division Bench vide its order dated 18.08.2009 in
LPA No. 384/2009. The inspection was conducted on 20.08.2009 and the
report was produced before the Division Bench, a copy whereof was also
provided to the complainant on 21.08.2009. As a result, the complainant filed
their objections on 25.08.2009.
21. Accordingly, after perusing the inspection report and the objections,
though the LPA was disposed of by this Court vide order dated 01.09.2009,
however, no relief was granted to the complainant. Thus, the inspection
report has received the imprimatur of this Court.
22. Learned counsel submitted that the allegations of forgery etc. against
the inspecting team or any of the officers of the AICTE or the GGSIP
University ought to have been raised before the Division Bench of this Court
and not by way of a private compliant under Section 200 of the Code of
Criminal Procedure, 1973 (for short „Cr.P.C.‟). The filing of the said
complaint amounts to overreaching the process of this Court and is, therefore,
contumacious.
23. He further submitted that perusal of the inspection report dated
20.08.2009 would show that last page is only a conclusion of the findings
recorded in the preceding pages. Thus, the allegation of forgery is completely
false as the words „„NOT RECOMMENDED‟‟is the only possible conclusion
of what is recorded in the earlier pages of the report.
24. Learned counsel submitted that in other words even if the words
„„NOT RECOMMENDED‟‟had not been written on the said report, the only
conclusion that any reasonable person could have drawn from the finding of
the report was that the inspection team did not find the Complainant Institute
fit for affiliation as a teaching institute. Therefore, there was no need for any
member of the team or anybody else to forge the words „„NOT
RECOMMENDED‟‟on the last page of the inspection report.
25. To strengthen his arguments, learned counsel has relied upon a case of
"Inder Mohan Goswami & Anr. Vs. State of Uttaranchal & Ors. (2007) 12
SCC 1 wherein it was held as under:
""Every High Court has inherent power to act ex debetio
justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent abuse of
the process of the Court ... The court must ensure that criminal
prosecution is not used as an instrument of harassment or for
seeking private vendetta or with an ulterior motive to pressurize
the Accused..."
26. Learned counsel further submitted that the Complainant Institute was
inspected on three different occasions in quick succession. The first
inspection was conducted on 21.05.2009, second inspection was conducted
on 20.08.2009, which is the subject matter of the complaint and the third was
conducted on 27.03.2010 by Justice C.K. Mahajan, a retired Judge of this
Court, in pursuance of the orders of a Single Bench of this Court in W. P. (C)
No 12724/ 2009.
27. The above noted retired Judge physically inspected the infrastructure
and other facilities and thereafter filed his report dated 04.04.2010 before this
Court, wherein he gave similar findings as were given in the joint inspection
report dated 20.08.2009.
28. For the convenience, comparison of the two reports is given below:-
Sr. No. Ground Considered Findings in the Joint Findings by Justice Mahajan
Report
1. With respect to the Most of the instruments In so far as reagents, salts,
Lab available are old and some chemicals that were available in
of them are .non functional. the Lab, they appear to be old
and outdated and generally bore
the year of manufacture as
2001, 2000, 2004, 2006, etc."
and further that ((Some
equipment appear to be old,
outdated and it was not possible
to verify if the machinery and
equipment was functional in the
absence of assistance from the
College. There were no Lab
Assistants available in the
College
2. With respect to the •The College building is The College is being run from
building and other rented and on non- rented premises. It is situated in
physical conforming area. The latest a congested residential area a 20
infrastructure Lease Agreement made on ft. road. The undersigned was
24th May, 2007, is for a not permitted to carry out
period of five year. The measurements with the
constructed area as assistance of the members of
mentioned is 2700,sq. mt. the AICTE to ascertain whether
The Agreement document is the building /premises
enclosed in Annexure-I, and conformed to the norms set
is not registered or notarized. down by the AICTE /
University. An attempt to
• The Committee was unable measure the area of the rooms /
to verify the exact built up Labs etc. was resisted by the
area, since the College members of the College present
authorities wanted the stating that this was not with the
Committee to restrict only to scope of the commission
four conditions mentioned in proceedings. The Court
the Court order, and was Commissioner was unable to
not allowed to undertake verify the exact built up area.
physical area verification on The College has a single entry
spot. and exit of about 4 feet. It also
has some area being used for
• No such certificate is residence. The building is not fit
available either on aspects of for running of a college.
safety from an engineer I
architect / civil bodies, or for • The rooms are not ventilated.
the purpose of fire safety and The premises have a narrow
escape / exit routes in the maze of lanes and stair cases
event of emergencies. See leading to the first and second
Annexure-II. Further that floor. The movement of
there is no possibility for students is restricted in the four
sports & cultural activities in walls of the compound.
the present set up and the Circulation of air and light is
building available. wholly inadequate. The College
Circulation is significantly failed to produce the site plan
inadequate. The mobility & and furnish dimensions of the
movement of students in the various rooms and of the whole
College building IS highly property. A single line sketch
restricted and unfavourable. for the College premises was
The staircases are improper filed. The same is annexed to
the report. I have perused the
AICTE norms with regard to
the land area and built up area
norms and it is clear that the
College does not conform to the
standards and norms. A visual
inspection of the premises
leaves no room for doubt that
the present location, and the
layout of the building,
surroundings and the lack of
facilities is not suitable for
imparting education. There is
no provision for fire safety and
emergency exit routes. There is
no space available for sports
and cultural activities in the
present set up.
3. With respect to the One principal and six • It was stated that the Principal
Principal and other lecturers were available on was qualified as she has 15
staff the date of inspection. They years of industrial• experience.
have recently joined (six of The College failed to produce
them from July or August, any documents in support
2009). The Principal is not thereof stating that the same has
qualified as per AICTE been filed in Court. The
norms. She does not possess Principal thus is not qualified"
Ph. D. degree, nor the
Industrial experience in • As per the records, most of the
senior capacity. (See staff was appointed in January,
Annexure-III) 2010 whereas the session
commenced in August, 2009.
The College when asked to
produce the record of
employment from August,
2009, refused to do the needful.
There was no Professor nor an
Associate Professor/Reader
appointed by the College
4. With respect to the 1. The College is situated in • To sum up, the chemicals,
conclusion a congested residential area; reagents are outdated, other
the access road to the than those purchased in the
College is 20 ft. On both recent past. Though there is
sides of the road there are some equipment, machinery in
continuous shops including the Labs as detailed in the
six shops within the College annexure, the same does not
building on the road side. appear to be adequate as it was
2. The College building has not physically possible to
single entry and exit of4 ft. examine each and every item
3. The ceiling of building are and ascertain whether the same
non-RCC make. is functional or not, being a
4. Part of the building is technical matter. The
being used as residential representatives of the AICTE &
area. University were not allowed to
5. There are some sign assist the Commissioner. It is
boards outside the College not possible to assess whether
building indicating ((Jamia the practicals could be done or
Milia Islamia Study Centre. were being done as the students
6. The present building is have not been attending the
not suitable and fit for College for some time. The
running a Pharmacy College. Labs do not indicate that they
The Committee was not set have been used for quite some
allowed to measure the area. time. The library is adequately
stocked. Adequate numbers of
computers were found in the
computer room. No record was
shown as to when the
equipment, computers,
machinery, chemicals, reagents
etc. were purchased other than
what is placed on record.
Teaching faulty is inadequate.
The College does not have a
Professor and Associate
Professor / Reader on its rolls in
terms of the AICTE norms. The
faculty staffs produced before
the Commission were all
lecturers. The Principal does not
possess PhD degree nor did she
produce any document to show
she has 15 years industrial
experience. She is, thus, not
qualified. The staff has joined in
January, 2010.
• I am informed that the
Pharmacy council of India has
not granted approval for B.
Pharma course to the College
and the degree granted shall be
of no value. The students
admitted to the said course have
a bleak future and shall suffer
unless the University makes
alternative arrangements to
enable them to complete the
course. After the inspection
students of the College met the
undersigned outside the College
premises and expressed their
anguish over the conditions
prevailing in the College.
29. Mr.Tripathi has argued that since findings of all the three inspecting
committees were almost identical, the present case is clearly a case of no
evidence, therefore, the complaint and the summoning order dated
15.01.2011 deserves to be quashed.
30. He has raised the legal issue that Section 65-B of the Indian Evidence
Act, 1872 deals with the admissibility of the electronic record. The said
provision squarely applies to the present case since the only evidence led by
the complainant in his deposition is a so called tape recorded conversation
between the Founder-cum-Chairman of the Complainant Institute and one
member of the inspecting team.
31. He submitted that the said tape recorded conversation clearly falls
within the definition of „electronic record‟, as defined by the Information
Technology Act, 2000 and adopted by the Indian Evidence Act, 1972.
32. It is submitted that none of the conditions laid down in Section 65-B of
the said Act were fulfilled by the complainant and its witnesses.
Consequently, the said electronic record cannot be read in evidence and is
liable to be ignored. The learned Court ought to have held that there was no
evidence led by the complainant in support of the complaint in view of the
conditions laid down in Section 65-B of the Indian Evidence Act, 1872.
33. He further raised another legal issue that no sanction was obtained
from the Government of NCT of Delhi (GNCT of Delhi), which had
appointed the petitioners. Section 197 Cr.P.C. specifically requires that
before taking cognizance of any offence, the Court ought to have required the
complainant to obtain previous sanction from the GNCT of Delhi. The
petitioners can only be removed from their office only after obtaining the
sanction of the GNCT of Delhi. The GGSIP University has been created by
an Act of the State Legislature of the National Capital Territory of Delhi and
the petitioner, Dilip K. Bandopadhyay is employed in connection with the
affairs of the said State. Moreover, the local police duly enquired into the
complaint by an officer of the level of Assistance Commissioner of Police.
34. He has argued that the Trial Court had found that there was not
sufficient evidence led by the complainant and, thus, directed the local police
to inquire into the matter. Consequently, the Trial Court could not have taken
cognizance or issued summons unless the police report revealed any fresh
evidence to incriminate the petitioners.
35. Learned counsel submitted that the complainant/respondent No.2 has
suppressed material facts deliberately that neither report dated 04.04.2010
submitted by Justice Mahajan (Retired) in Writ Petition (C) No. 12724/2009,
nor the orders dated 11.03.2010, 26.04, 2010 and 16.08.2010 passed by this
Court dismissing the three contempt petitions were filed by the complainant
before the learned Metropolitan Magistrate. Such a deliberate suppression of
material documents which were available with the complainant tantamounts
to committing a fraud on the Trial Court.
36. To strengthen his arguments, he has relied upon a case of Ashok
Chaturvedi & Ors. Vs. Shitul H. Chandhani & Anr. (1998) 7 SCC 698,
wherein the Supreme Court has held that:
".... Power under section 482 has to be exercised sparingly and
in the interest of Justice but allowing the criminal proceedings
to continue even where the complaint petition do not make out
any offence would be tantamount to an abuse of the process of
court, and therefore, there cannot be any dispute that in such
case power under section 482 of the Code can be exercised ..."
37. Also relied upon Indian Oil Corporation Vs. NEPC India Ltd. & Ors.
(2006) 6 SCC 736, whereby the Apex Court has held that:
" While no one with a legitimate cause or grievances
should be prevented from seeking remedies available in criminal
law, a complainant who initiates or persists with a precaution,
being fully aware that the criminal proceedings are
unwarranted and his remedy lies only in civil law, should
himself be made accountable, at the end of such misconceived
criminal proceedings, in accordance with law..."
38. In Zandu Pharmaceutical Works Limited & Ors Vs. Mohd. Sharaful
Haque and Anr. (2005) 1 SCC 122, the Supreme Court has held that:
" In the present case, the facts indicated that the
Complainant had not come to the Court with clean hands. The
Complaint was nothing but a sheer abuse of the process of law
and this is a case where power under Section 482 should have
been exercised. The High Court unfortunately did not take note
of the guiding principles as laid down in Bhajan Lal case
thereby rendering the judgement indefensible. The judgement of
the High Court is set aside, proceedings initiated by the
Complaint lodged are quashed..."
39. Learned counsel submitted that in the circumstances, the tape recorded
conversation, even if it is assumed to be true and admissible in evidence,
cannot be relied upon to summon the petitioners.
40. To strengthen his arguments on the issue mentioned above, learned
counsel has relied upon a case of „People's Union for Civil Liberties (PUCL)
Vs. Union of India & Another (1997) 1 SCC 301, wherein the Apex Court
held that:
"Telephone conversation is a part of modem man's life. It is
considered so important that more and more people are
carrying mobile telephone instruments in their pockets.
Telephone conversation is an important facet of a man's private
life. Right to privacy would certainly include telephone
conversation in the privacy of one's home or office. Telephone
tapping would, thus, infract Article 21 of the Constitution of
India unless it is permitted under the procedure established by
law...."
41. Learned counsel submitted that the complaint filed by the complainant
is just to harass and pressurize the petitioners.
42. The Hon'ble Supreme Court of India in Pepsi Foods & Anr. Vs.
Special Judicial Magistrate & Ors. (1998) 5 SCC 749 held that:
"No doubt the Magistrate can discharge the Accused at any
stage of the trial if he considers the charge to be groundless,
but that does not mean accused cannot approach the High
Court under Section 482 of the Code or Article 227 of the
Constitution to have the proceedings quashed against him when
the Complaint does not make out any case against him and still
he must undergo the agony of a criminal trial ... ".
43. On the other hand, Mr. Aseem Mehrotra, learned counsel appearing on
behalf of the complainant/respondent No.2 submitted that the complainant
made out a case for summoning of the petitioners as on 03.08.1999, the
College was granted approval by AICTE for starting a B. Pharmacy Degree
Course for the session 1999-2000 with 60 admissions. Thereafter, for the
sessions 2000-01, 2001-02, 2005-06 and 2006-07, the College was granted
extension of approval by AICTE with 30 admissions for each session.
44. Pursuant to order dated 21.02.2007 passed in W.P.(C) No. 13751/2006,
this Court directed the University not to insist upon the factors which are
covered by AICTE Act or Regulations. Accordingly, the college was granted
extension of approval by AICTE for session 2007-08; and University granted
provisional affiliation to the College and made 27 admissions to the College.
Thereafter, on 19.05.2008, College was granted further extension of approval
by AICTE for two years, i.e., session 2008-09 and 2009-10 with 30
admissions.
45. Learned counsel further submitted that for the session 2008-09,
inspection report of the University shows College was awarded 1708 marks
out of 2000. University made admissions of 30 students for the sessions
2008-09 through centralized counseling. Thereafter, in June, 2009, College
was inspected by the University and it awarded 335 marks out of 900 towards
building and 645 marks out of 1000 towards faculty and infrastructure.
46. The University did not recommend for admission for the session 2009-
10, though AICTE approval was for the session 2008-09 and 2009-10. He
submitted that the non-grant of admission was subject matter of challenge in
W.P. (C) No. 9706/2009, wherein joint inspection was ordered on
20.08.2009, in which the words „„NOT RECOMMENDED‟‟were mentioned.
Thereafter, Justice C.K. Mahajan ( Retd.) was appointed to carry out the
inspection, who submitted his report, which was accepted by this Court and
the students were transferred to other College.
47. The complainant filed its complaint on 05.11.2009 with the grievance
that the report dated 20.08.2009 was tampered with, in which summons have
been issued against the petitioners and other accused persons.
48. The respondent No.2 had led pre-summoning evidence by examining
the Chairman of the College and another witness to prove that the words
„„NOT RECOMMENDED‟‟ were added later on. In the pre-summoning
evidence, a tape recorded conversation which was recorded in a CD was
exhibited to prove that the Chairman of the College had spoken to three
experts in regard to the inspection carried out on 20.08.2009 and that these
experts had categorically stated that the words „„NOT RECOMMENDED‟‟
were not there when they signed the report.
49. Learned counsel has asserted that the conversation between the
Chairman of the College and three experts, who were part of the inspecting
team, is crucial for deciding the subject matter of the present petition. The
conversation between the Chairman of the College and Dr. Surinder Singh,
an expert from AIIMS is crucial as he stated that words „„NOT
RECOMMENDED‟‟ were not written by them.
50. Moreover, the conversation between the Chairman of the College and
Prof. P.K. Sahu also shows that the report was written by three persons. The
conversation further also shows that the University officials were annoyed
with the College. The last paragraph of the conversation with Prof. P.K. Sahu
notes that Prof. Sahu says that the Vice-Chancellor was annoyed with the
Chairman of the College and being experts they cannot write
„recommended‟. Thus, the evidence which the complainant led
unequivocally establishes that the words „„NOT RECOMMENDED‟‟ were
not there, when at least two experts, i.e., Prof. P.K. Sahu and Dr. Surendra
Singh had signed it, which establishes that it had been tampered with.
51. Learned counsel submitted that the other accused Nos. 3 and 7 have
not challenged the summoning order. Therefore, the order of the learned
Magistrate does not call for any interference.
52. He submitted that both the experts do not deny the converstation as
under:-
"a) That they spoke to the Chairman of the College;
b) They do not dispute that the transcript / conversation was
not spoken between them and the Chairman of the
College;
c) They do not say that the conversation set out in the
transcript is not correct;
d) That their voice has been tampered or has been dubbed
or erased."
53. Learned counsel submitted that in view of the above facts, the only
conclusion that the Chairman of the college and the experts spoke what has
been stated in the transcript.
54. He further submitted that there was positive evidence in shape of
recorded conversation. The IO had misdirected himself in carrying the
investigation. The entire emphasis of the investigation was whether College
had approval or not, which is evident from the status report. The second
status report dated 07.01.2010 is based on the statements of two experts,
namely, Prof. R.K. Khar and Dr. Surendra Singh, which was contrary to what
they spoke to the Complainant.
55. Though objections to the enquiry report were filed on 21.01.2010, the
learned Magistrate heard the complainant but did not pass orders thereon.
56. On maintainability of the complaint, the test is whether the allegations
in the complaint disclose a criminal offence or not. Learned counsel has
relied upon a case of Indian Oil Corporation Vs. NEPC India Ltd. (2006) 6
SCC 736.
57. The view taken in the above cited case has been reiterated in Amit
Kapoor Vs. Ramesh Chander (2012) 9 SCC 460, wherein in paragraph 26,
the Apex Court has observed as under:-
" This further raises a question as to the wrongs which
become actionable in accordance with law. It may be purely a
civil wrong or purely criminal offence or a civil wrong as also
a criminal offence constituting both on the same set of facts.
But if the records disclose commission of a criminal offence
and the ingredients of the offence are satisfied, then such
criminal proceedings cannot be quashed merely because a civil
wrong has also been committed. The power cannot be invoked
to 'stifle or scuttle a legitimate prosecution. The factual
foundation and ingredients of an offence being satisfied, the
court will not neither dismiss a complaint or quash such
proceedings in exercise of its inherent or original jurisdiction."
58. On the principles for quashing of criminal proceedings, the learned
counsel has relied upon a case of Amit Kapoor ( supra), wherein it has been
held as under:-
"7.1. Though there are no limits of the powers of the Court
under Section 482 of the Code but the more the power, the more
due care and caution is to be exercised in invoking these
powers. The power of quashing criminal proceedings,
particularly, the charge should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of the case
and the documents submitted therewith prima facie establish
the offence or not. If the allegations are so patently absurd and
inherently improbable that no prudent person can ever reach
such a conclusion and where the basic ingredients of a criminal
offence are not satisfied then the Court may interfere.
27.8. Where the allegations made as and they appeared from
the record and documents annexed therewith to predominantly
give rise and constitute a "civil wrong" with no "element of
criminality" and does not satisfy the basic ingredients of a
criminal offence, the court may be justified in quashing the
charge. Even in such cases, the court would not embark upon
the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to
observe is that it cannot examine the facts, evidence and
materials on record to determine whether there is sufficient
material on the basis of which the case would end in a
conviction; the court is concerned primarily with the
allegations taken as a whole whether they will constitute an
offence and, if so, is it an abuse of the process of court leading
to injustice.
27.10. It is neither necessary nor is the court called upon to
hold a full-fledged enquiry or to appreciate evidence collected
by the investigating agencies to find out whether it is a case of
acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also
amount to an offence, merely because a civil claim is
maintainable, does not mean that a criminal complaint cannot
be maintained.
27.12. In exercise of its jurisdiction, under Section 228
and/or under Section 482, the Court cannot take into
consideration external materials given by an accused for
reaching the conclusion that no offence was disclosed or that
there was possibility of his acquittal. The Court has to consider
the record and documents annexed therewith by the
prosecution.
27.16. These are the principles which individually and
preferably cumulatively ( one or more) be taken into
consideration as precepts to exercise of extraordinary and wide
plenitude and jurisdiction under Section 482 of the Code by the
High Court. Where the factual foundation for an offence has
been laid down, the courts should be reluctant and should not
hasten to quash the proceedings even on the premise that one
or two ingredients have not been stated or do not appear to be
satisfied if there is substantial compliance with the
requirements of the offence."
59. Learned counsel has further relied upon a case of S. Partap Singh Vs.
State of Punjab, AIR 1964 SC 72, wherein the Supreme Court has observed
that:-
" The question before the Supreme Court was whether
record of the conversation on a tape-record is admissible in
evidence for any purpose. The facts of the case were that the
Appellant was a Civil Surgeon in the employment of the State
Government who was placed under suspension and an inquiry
was ordered against him against his misconduct. The Appellant
filed a writ petition in the High Court challenging the order
placing him under suspension and other orders. The challenge
in the writ petition was that the Appellant was placed under
suspension on account of malafides which he attributed against
the Chief Minister. The Appellant in his writ petition referred to
various talks between himself and the Chief Minister's wife,
which he tape recorded. The writ petition was dismissed by the
High Court. However, the Supreme Court reversed the
judgment of the High Court and referred to talks between the
Appellant and Chief Minister's wife which were detailed in
paragraph, 15 of the judgment, to hold that the records are
genuine and conversation took place as recorded.
In paragraph 76, in the minority judgment: the Court
held that "Tape recordings can be legal evidence by way of
corroborating the statements of a person who deposes that the
statements of a person who deposes that the other speaker and
he carried on that conversation or even of the statement of a
person who may depose that he over-heard the conversation
between the two persons and what they actually stated had been
tape-recorded. Weight to be given to such evidence will depend
on other factors which may be established in a particular case.
It cannot be held, and it has not been so held by the Court
below, that the record of the .t-conversation on a tape record is
not admissible in evidence for any purpose and therefore we
need not say anything more about it."
60. Learned counsel has also relied upon a case of R.M. Malkani Vs. State
of Maharashtra (1973) 1 SCC 471, wherein the Supreme Court in paragraph
23 summarised the legal position as under:-
"23. Tape recorded conversation is admissible provided first
the conversation is relevant to the matters in issue; secondly,
there is identification of the voice; and, thirdly, the accuracy of
the tape recorded conversation is proved by eliminating the
possibility of erasing the tape record. A contemporaneous tape
record of a relevant conversation is a relevant fact and is
admissible under Section 8 of the Evidence Act. It is res gestae.
It is also comparable to a photograph of a relevant incident.
The tape recorded conversation is therefore a relevant fact and
is admissible under Section 7 of the Evidence Act."
61. Also relied upon the case of Mohd. Ajmal Amir Kasab Vs. State of
Maharashtra (2012) 9 SCC 1, wherein the conversation between the accused
and other persons in another country was used for convicting the accused
person.
62. Thus, it is settled law that a tape recorded conversation is relevant and
admissible in evidence.
63. Learned counsel has argued that the petitioners have tried to submit
that they are public servants and in the absence of any sanction, they could
not be tried. He submitted that this point was not argued before the Court
whereas it has been raised in the written submissions. Even otherwise, this
submission is misconceived inasmuch as the petitioners do not fall within the
definition of „Public Servant‟, as defined U/s 21 of Indian Penal Code, 1860.
The definition of „Public Servant‟ under the IPC and Prevention of
Corruption Act, 1988 is entirely different. While Section 2(xi) of the
Prevention of Corruption Act, 1988 defines „Public Servant‟ to include Vice-
Chancellor, Professor, Reader of any University, the definition of „Public
Servant‟ under Section 21 of IPC does not define Vice-Chancellor or any
other employee of University to be a Public Servant, therefore, there is no
merit in the instant petitions and they may be dismissed with heavy costs.
64. I have heard learned counsel for the parties. Case of the
respondent/complainant is that the petitioner entered into a criminal
conspiracy with each other with a view to cheat the complainant and cause
harm to the reputation of the College. In furtherance of this intention, the
petitioners forged the inspection report and the words „„NOT
RECOMMENDED‟‟ were added later on. To this effect, the complainant
filed the complaint before the Trial Court and vide order dated 15.01.2011,
the learned Magistrate issued summons against the petitioners. Earlier for the
session 1999-2000, the College was granted approval by AICTE with 60
admissions and thereafter, for the sessions 2000-01, 2001-02, 2005-06 and
2006-07, the College was granted extension of approval by AICTE with 30
admissions for each session. Thereafter, the College was granted extension of
approval by AICTE for session 2007-08 and University granted provisional
affiliation to the College and accordingly made 27 admissions to the College.
On 19.05.2008, the College granted further extension of approval by AICTE
for two years, i.e., sessions 2008-09 and 2009-10 with 30 admissions.
65. Despite the favourable inspection carried out by AICTE, the University
did not recommend for admission for the session 2009-10. The complainant
challenged the same vide W.P. (C) No. 9706/ 2009, wherein joint inspection
was ordered on 20.08.2009, in which the words „„NOT RECOMMENDED‟‟
were added later on.
66. Case of the petitioners is that on 21.05.2009, the premises of the
Complainant Institute was inspected by the Committee, which found
deficiencies, therefore, affiliation was denied. The Complainant Institute
challenged the said inspection report vide W.P.(C) No. 9706/2009, which
was dismissed by the learned Single Judge of this Court. The complainant
challenged the same by way of LPA No. 384/2009, wherein the Division
Bench of this Court directed that a joint inspection to be conducted by
AICTE and GGSIP University. Accordingly, on 20.08.2009, the joint
inspection was conducted and the same deficiencies, as were in the Ist
inspection, were found again.
67. On 25.08.2009, the Complainant Institute filed objections to the report.
The aforesaid LPA No. 384/2009 was disposed of without granting any
relief, thus, the objections of the Complainant Institute were deemed to have
been rejected.
68. Vide order dated 22.03.2010, in collateral proceeding being W.P.(C)
No. 12724/2009, Co-ordinate Bench of this Court directed another inspection
of the Complainant Institute by Justice C.K. Mahajan, retired Judge of this
Court. On 27.03.2010, above named retired Judge found that the
Complainant Institute was not fit to be run as an educational institute to
conduct B.Pharma Course. Accordingly, this Court while accepting the
findings, passed an order dated 05.05.2010 in W.P.(C) No.12724/2009 that
students admitted to the roll of the College should be transferred to some
other Institute affiliated with the University.
69. Being aggrieved, the complainant filed an appeal being LPA No.
540/2010 challenging the order dated 11.05.2010. The same was dismissed
on 15.07.2010. Thereafter, the Complainant Institute filed contempt petitions
which were dismissed by this Court on different dates as noted above.
Meanwhile, on 03.01.2009 complainant filed impugned complaint before the
learned Magistrate against ten individuals including the petitioners. Not
being satisfied with the pre- summoning evidence led by the complainant, the
learned Trial Court vide order dated 14.12.2009 directed the local police to
investigate the allegations made in the complaint. Accordingly, after
investigation, on 13.01.2010 the police filed their report in which they found
that no case was made out against the petitioners.
70. It is pertinent to mention here that enquiry was conducted by an officer
of the level of Assistant Commissioner of Police. The said officer recorded
the statement of Dr. Surinder Singh, who was supposed to have admitted the
conversation with Mr. Devender Gupta over the telephone that the words
„NOT RECOMMENDED‟ were added later on. Whereas, he categorically
stated that final conclusion „NOT RECOMMENDED‟ was mentioned before
all the members of the Committee. He further submitted that Mr. Devender
Gupta had telephonic discussion with him and he never told him that report is
tempered because the final conclusion „NOT RECOMMENDED‟ was made
in the report before all the members signed it. He even stated in his statement
that as far as recording of his voice on telephone, they usually ignore such
calls and try to get rid of this as soon as possible. So whatever the
conversation has been cited by Mr. Devender Gupta, i.e., the complainant is
meaningless and without any substance and allegation.
71. Considering the report dated 13.01.2010 filed by the police with the
opinion that no offence was made out, the learned Trial Court allowed the
complainant to file the objections against the said report. In view of the
report filed by the police and the evidence led by the complainant, the learned
Trial Court vide order dated 15.01.2010 issued summons against six persons
out of total ten implicated by the complainant primarily on the ground that
the police had not investigated the case properly and there is evidence against
the petitioners to be summoned for the offences under Sections 465/469/471
read with 120-B IPC.
72. Undisputedly, the joint inspection was conducted pursuant to
directions issued by a Division Bench of this Court vide its order dated
18.08.2009 in LPA No. 384/2009. The issue before this Court is that whether
the words „NOT RECOMMENDED‟ were added subsequently after signing
the report by all the members. Though on perusal of the conversation it
transpires that Dr. Surender Singh had stated in telephonic discussion that the
Vice-Chancellor of the University was not happy with the Institute and words
„NOT RECOMMENDED‟ were not written when they signed the report. But
on perusal of the inspection reports, one joint inspection carried out by
AICTE and the University and another by Justice C.K. Mahajan, retired
Judge of this Court, one can make out that the Complainant Institute could
not be extended any approval. The discrepancies found in two reports have
been shown in the comparative chart in para 28 above of this judgment.
73. On perusal of the telephonic conversation between Dr. Surender Singh
and Mr. Devender Gupta, the complainant, it seems that the complainant is
very friendly with Dr. Surender Singh and Professor P.K.Sahu, members of
the Inspection Team. It appears that they never wanted to displease the
complainant, therefore, Dr. Surender Singh in a casual manner has stated that
the words „NOT RECOMMENDED‟ were added later on. They did not
mention the words „NOT RECOMMENDED‟ and the same have been
written later on. If the said Dr.Singh had any legitimacy in his statement he
would have stated the same before the Assistant Commissioner of Police who
investigated the complaint pursuant to the directions issued by the Trial
Court. He categorically denied that the words „NOT RECOMMENDED‟
were discussed before the members and they signed the said report only after
the words „NOT RECOMMENDED‟ were there. If something was written
or added later on, in that case, Dr. Surender Singh and Professor P.K. Sahu
would have been the most offended persons. But this never happened.
74. I am conscious the law is settled in the case of Amit Kapoor (supra)
which has been relied upon by the respondent/complainant that if the records
disclose commission of a criminal offence and the ingredients of the offence
are satisfied, then such criminal proceedings cannot be quashed merely
because a civil wrong has been committed. The power cannot be invoked
under Section 482 Cr.P.C. to stifle or scuttle a legitimate prosecution.
However, in the above cited case, it is also observed that though there are no
limits of power of the Court under Section 482 of the Code but the more the
power, the more due care and caution is to be exercised in invoking these
powers. If the allegations are so patently absurd and inherently improbable
that no prudent person can ever reach such a conclusion and where the basic
ingredients of a criminal offence are not satisfied then the Court may
interfere. Where the factual foundation of an offence has been laid down, the
Courts should be reluctant and should not hasten to quash the proceedings
even on the premise that one or two ingredients have not been stated or do
not appear to be satisfied if there is substantial compliance with the
requirements of the offence.
75. Undisputedly, tape-recorded conversation is admissible provided,
firstly, the conversation is relevant to the mattes in issue, secondly, there is
identification of the voice and, thirdly, the accuracy of the tape-recorded
conversation is proved by eliminating the possibility of erasing thetape-
record. The tape-recorded conversation is, therefore, a relevant fact and is
admissible under Section 7 of the Evidence Act.
76. Power under Section 482 has to be exercised sparingly and in the
interest of justice but allowing the criminal proceedings to continue even
where the complaint petition do not make out any offence would be
tantamount to an abuse of the process of court, and therefore, there cannot be
any dispute that in such case power under Section 482 of the Code can be
exercised.
77. Undisputedly, the words „final recommendation‟ and „NOT
RECOMMENDED‟ were not part of the format of the inspection report. The
inspecting team adopted the format of the University. Since the joint
inspection was conducted on the directions of this Court, therefore, it was
necessary to give a final conclusion for the consideration of this Court.
78. It is pertinent to mention here that this was not so required in the first
inspection report since the same was to be placed before a body of experts
(the Board of Affiliation of the University) which takes the final decisions
whether to affiliate or not to affiliate the concerned Institute. Thus, merely
because the first inspection report does not contain any remarks against the
heading "Final Recommendation", it does not show that the said remarks in
the second inspection report were inserted later on.
79. It is also pertinent to mention here that the first inspection report was
conducted by a team constituted by the University, whereas the second
inspection team was a joint team comprising of nominees of the GGSIP
University as well as the AICTE, as directed by this Court vide its order
dated 18.08.2009. Thus, joint team deviated from the earlier pattern of not
having any remarks under the heading of "Final Recommendation".
80. In the present case, the tape recorded conversation being sought to be
led in evidence by the complainant is between the complainant and some
third party. Interestingly, subsequently during investigation, the said third
party has clarified that there was no forgery and the words „NOT
RECOMMENDED‟ were written in his presence. In the given situation, if
this Court allows continuing the proceedings before the Trial Court; firstly,
the conversation would not be proved and; secondly, there will be harassment
to the petitioners. Moreover, precious public time would be wasted without
any fruitful result.
81. Initially, the Trial Court had found that there was no sufficient
evidence led by the complainant, therefore, directed the local police to
enquire into the matter. Admittedly, the police filed the report wherein
specifically stated that no case is made out. In that eventuality, neither the
sufficient evidence led by the complaint is on record nor any fresh evidence
relied by the police to incriminate the petitioners is on record. In such
eventuality, the learned Trial Court should not have issued the summons
against the petitioners until and unless some substantial evidence has come
on record.
82. It is also pertinent to note that had the complainant brought each and
every proceeding and orders passed by this Court before the learned Trial
Court, the said court would not have passed the impugned order. If for a
moment it is assumed that the joint inspection report submitted by the
Committee was in favour of the Complainant College and thereafter,
deliberately, the words „NOT RECOMMENDED‟ were added, the position
would have been different. In both the inspection reports, there were lapses
found by both the Committees as discussed in para 28 above. Having lot of
lapses with the Institute, there was no question to grant recommendation.
83. In view of the above discussion, the present petitions are allowed.
Consequently, the Criminal Complaint No. 21/1/11 titled as "Aditya College
of Pharmacy & Science Vs. S.S. Mantha & Ors." and the consequent
proceedings emanating therefrom, if any, are quashed qua the petitioners and
the order dated 15.01.2011 passed by the learned Metropolitan Magistrate is
set aside qua the petitioners.
84. No order as to costs.
SURESH KAIT, J.
JULY 04, 2013
sb
