Citation : 2022 Latest Caselaw 2032 Jhar
Judgement Date : 6 June, 2022
Cr.M.P. No.3270 of 2013
Wt.
Cr.M.P. No.3642 of 2017
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.3270 of 2013
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Lal Bahadur Singh, S/o Sri Ramdeo Singh R/o Adarsh Nagar,
Simlabahal Colliery, P.O. & P.S- Jharia, District- Dhanbad,
Jharkhand-828111 .... .... .... Petitioner
Versus
The State of Jharkhand, through C.B.I. ... .... .... Opposite Party
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With
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Jyotish Chandra, Son of Late Jagdish Prasad Saw, Resident of Qtr.
No.A2, CCWO Colony, P.O. and P.S. Saraidhela, District- Dhanbad,
Jharkhand .... .... .... Petitioner
Versus
The State of Jharkhand through Central Bureau of Investigation
.... .... ...Opposite Party
For the Petitioners : Mr. Shresth Gautam, Advocate (In Cr.M.P. No.3270 of 2013)
Mr. Indrajit Sinha, Advocate (In Cr.M.P. No.3642 of 2017)
For the C.B.I : Mr. Navneet Sahay, A.C. to A.S.G.I.
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PRESENT
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HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
C.A.V. ON 10.03.2022 PRONOUNCED ON 06.06.2022
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Anil Kumar Choudhary, J.
Heard the parties.
2. These criminal miscellaneous petitions have been filed invoking the jurisdiction of this court under section 482 of the Code of Criminal Procedure, for quashing the entire criminal proceedings initiated against the petitioners including the order dated 24.02.2015 whereby cognizance
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of the offences has been taken by the learned 11th Additional Sessions Judge-cum-Special Judge (C.B.I.) Dhanbad in connection with R.C. Case No.01 (A)/2013 (D) registered for the commission of the offences punishable under Sections 120B read with 419, 420, 468 and 471 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988.
3. The brief facts of this case is that an information was received by the Central Bureau of Investigation that the engineers as well as the Finance Manager of the erstwhile Kustore area of B.C.C.L, Dhanbad in criminal conspiracy with the petitioner Lal Bahadur Singh who is the main conspirator being the brother of Kumbhnath Singh proprietor of M/s. D.K.Singh, Dhanbad for the purpose of cheating and defrauding B.C.C.L, Dhanbad got allotted 16 number of work orders related to Civil (Capital) Nature of work for construction of P.C.C Road, drains, boundary and laying pipelines etc. and ensured that without completion of the said work the contractor raises bills which were paid to the contractor in connivance with the petitioners and the co-accused persons causing a wrongful loss to the B.C.C.L. to the tune of ₹ 1,23,13,354/- approximately and corresponding gain to the petitioners and the co-accused persons. It is further alleged that the petitioners in criminal conspiracy with the co- accused persons knowing pretty well that Sri Kumbhnath Singh by impersonating as the proprietor of M/s. D.K.Singh, fraudulently got 16 work orders issued and made payments by way of cheques on behalf of B.C.C.L. to Kumbhnath Singh and the said cheques were encashed by Sri Kumbhnath Singh by impersonating as the proprietor of M/s. D.K.Singh in the bank account opened at Bank of India, Ena Branch, Dhanbad with the help of the petitioner Lal Bahadur Singh.
The specific allegation against the petitioner Lal Bahadur Singh is that he is the main conspirator in the case. He was doing contract work in the said Kustore Area in different names. He started work in the name of M/s. D.K.Singh through his brother Kumbhnath Singh so that the actual beneficiary could not be detected. He had the intention from the initial stage to take the payment without doing the works, which he got allotted
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in favour of the said firm, though he was knowing pretty well that Sri Deepak Kumar Singh is the actual proprietor of M/s. D.K. Singh even then he introduced the account of his brother Sri Kumbhnath Singh as the proprietor of M/s. D.K. Singh. He was instrumental in opening the CD account of his said brother in which account the payments related to purported M/s. D.K. Singh which were in fact ill-gotten money used to be parked and without the active connivance of the petitioner Lal Bahadur Singh, his said brother could not have been able to get the said works in the name of M/s. D.K. Singh nor could have received the payment without executing the works.
The specific allegation against the petitioner Jyotish Chandra is that while he was working as the Additional General Manager,Kustore area of B.C.C.L during the period 2008 to April 2010 he was responsible for strict compliance of the laid down procedures of B.C.C.L/CIL for the civil contract work of B.C.C.L but he did not ensure the actual requirements of the work before forwarding the estimate proposals to B.C.C.L headquarters. It is also alleged that this petitioner forwarded the files related to the work orders in respect of which fraud has been committed and this case has been instituted; to the B.C.C.L. headquarters, in the absence of Area CGM. It is further alleged that this petitioner being one of the members of the Tender Committee did not ensure the genuineness of the proprietor or the authorised representatives of the firms participating in the tender process and he being the member of the Tender Committee did not ensure the rate analysis in order to justify the rate quoted by L - 1 bidder i.e. M/s. D.K. Singh who had quoted rate more than 70% of the estimated cost in all the 16 works. It is also alleged that this petitioner did not ensure issue of required Budget Allocation/Budget Concurrence of the said work from the B.C.C.L headquarter and instead himself approved the recommendations of the Tender Committee Members in capacity of Area General Manager in all the 16 matters/files.
4. After completion of investigation of the case, the Central Bureau of Investigation submitted charge-sheet inter alia finding that the petitioners along with the co-accused persons having committed the offences
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punishable under section 120 B read with sections 419, 420, 468 and 471 of the Indian Penal Code and under section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988.
5. Mr. Shresth Gautam-learned counsel for the petitioner submits that the allegation against the petitioners are all false. It is next submitted that the petitioner Lal Bahadur Singh has neither helped nor became the introducer for opening of the bank account with the Bank of India bearing Account No.471620110000114 to which the defrauded amount has been credited. It is then submitted that though the petitioner Lal Bahadur Singh is the introducer for opening the bank account with Bank of India bearing Account no.471620100000199 but no amount has been credited in the said bank account. It is then submitted that continuance of this criminal proceeding against this petitioner is gross abuse of process of law which would result in an injustice to the petitioner.
6. Mr. Gautam relied upon the judgment of the Hon'ble Supreme Court of India in the case of Manoranjan Das v. State of Jharkhand, (2004) 12 SCC 90 wherein in the facts of that case the appellant was convicted for the offences punishable under section 420/109 of the Indian Penal Code for having introduced a fake person to open an account with a bank and later on fraud was committed in the said bank account and unlike this case there was no allegation of any criminal conspiracy with which the appellant of that case was involved, the Hon'ble Supreme Court observed as under in paragraph 5:
"5. Xxxxxxxxx We perused the evidence produced by the prosecution and there is nothing on record to show that the appellant was in any way related to the fraud committed by Loknath Acharya on the Bank. The prosecution did not even produce the form in which the appellant had signed for introducing Loknath Acharya for starting a current account with the Bank. The evidence of the three witnesses also does not show any complicity of the appellant in committing any act of cheating. The appellant had introduced Loknath Acharya to the Bank only for opening an account and that by itself does not spell out any fraud or cheating."
And submitted that in this case also the petitioner Lal Bahadur Singh has only introduced the bank account holder at the time of opening of the bank account hence it cannot be said that the said petitioner has
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committed any offence punishable in law.
7. Mr. Gautam next relied upon the judgment of Hon'ble Supreme Court of India in the case of Ashok Transport Agency v. Awadhesh Kumar & Another, (1998) 5 SCC 567 and submitted that as has been observed by the Hon'ble Supreme Court of India in that case a proprietary concern is only the business name in which the proprietor of the business carries on the business. A suit by or against a proprietary concern is by or against the proprietor of the business. In the event of the death of the proprietor of a proprietary concern, it is the legal representatives of the proprietor who alone can sue or be sued in respect of the dealings of the proprietary business and as has been of observed in the case of Shankar Finance & Investments vs. State of A.P. & Others, (2008) 8 SCC 536 in paragraph 10 as under:-
"10. As contrasted from a company incorporated under the Companies Act, 1956 which is a legal entity distinct from its shareholders, a proprietary concern is not a legal entity distinct from its proprietor. A proprietary concern is nothing but an individual trading under a tradename."
hence the petitioner Lal Bahadur Singh cannot be held liable for the acts, deeds and things done by the proprietor of M/s. D.K. Singh namely Mr Kumbhnath Singh. It is then submitted that on this score also the petitioner cannot be held liable for the alleged offences involved in this case.
8. Relying upon the judgment of Hon'ble Supreme Court of India in the case of CBI, Hyderabad vs. K. Narayana Rao, (2012) 9 SCC 512 paragraph 24 of which reads as under:-
"24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in
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pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inference which are not supported by cogent and acceptable evidence."
Mr. Gautam submits that in this case the prosecution has failed to put forth sufficient material to make out a case of criminal conspiracy against the petitioner Lal Bahadur Singh.
9. In respect of the petitioner Jyotish Chandra it is submitted by Mr. Indrajit Sinha that this petitioner has not been named in the First Information Report and taking the allegations against him in entirety to be true, still no case is made out against this petitioner. It is further submitted by Mr Sinha that during the tenure of this petitioner as the Additional General Manager, Kustore Area from 17.10.2008 to 15.04.2010 there was no allotment of any work order, execution of work, preparation of work certificate, Bill, indent nor any payment was made, so this petitioner cannot be held liable for any of the alleged offences involved in this case. It is then submitted that though this petitioner was the member of the Tender Committee but the responsibility was to be shouldered by the Area Civil Engineer, the relevant person being Mr. C.P. Sharma who was also a member of the Tender Committee. It is further submitted that some of the documents related to this case bear the signature of this petitioner in capacity of the in-charge General Manager as the concerned General Manager was on leave on the concerned date. It is also submitted that the petitioner had no knowledge about the impersonation of the proprietor of M/s. D.K. Singh.
10. It is lastly submitted by Mr. Sinha that the entire criminal proceedings initiated against the petitioners including the order dated 24.02.2015 whereby cognizance has been taken by the learned 11th Additional Sessions Judge-cum-Special Judge (C.B.I.) Dhanbad in connection with R.C. Case No.01 (A)/2013 (D) registered for the commission of the offences punishable under Sections 120B read with 419,
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420, 468 and 471 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 being not sustainable in law be quashed.
11. The learned counsel for the Central Bureau of Investigation on the other hand defended the order taking cognizance dated 24.02.2015 by the learned 11th Additional Sessions Judge-cum-Special Judge (C.B.I.) Dhanbad in connection with R.C. Case No.01 (A)/2013 (D) registered for the commission of the offences punishable under Sections 120B read with 419, 420, 468 and 471 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 and submits that the facts of those cases, the judgments of which have been relied upon by the petitioners are entirely different from the facts of this case hence the ratio of those cases are not applicable to the facts of this case. It is then submitted that the statement of account of the bank account of M/S D.K. Singh operated by Sri Kumbh Nath Singh-who is the real brother of the petitioner Lal Bahadur Singh bearing no.471620100000199 of which bank account the petitioner Lal Bahadur Singh was the introducer, a sum of ₹ 97 lakhs was transferred on a single day on 12.05.2009 to the bank account of the petitioner Lal Bahadur Singh and this goes to show the active involvement of the petitioner in the whole conspiracy as the mastermind and the real beneficiary and the investigation showed that the said money is on account of double payment made by B.C.C.L. in respect of the same single work in respect of which the First Information Report of this case has been registered. It is also submitted that the investigation of the case revealed that the petitioner Lal Bahadur Singh aided and abetted the impersonation by his real brother Kumbh Nath Singh as the proprietor of M/s. D.K. Singh. The learned counsel for the Central Bureau of Investigation further submits that the Income Tax Department raided the common premises of the petitioner Lal Bahadur Singh and his brothers including the co-accused Kumbh Nath Singh and confiscated credit balance of ₹ 100 crore approximately lying in various accounts of them maintained with Bank of India, Ena Branch and other places. It is then submitted that the
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complicity of the petitioner Lal Bahadur Singh is also crystal clear from the fact that he was instrumental along with his associates in opening fire from firearms on the team members of the B.C.C.L. Internal Vigilance who are the public servants and who went for a discreet enquiry and in respect of which Jharia P.S. Case no.283/2012 was registered inter alia involving the offences punishable under section 307 of the Indian Penal Code and section 27 of the Arms Act and in connection of that case inter alia the petitioner Lal Bahadur Singh was arrested. It is next submitted by the learned counsel for the Central Bureau of Investigation that the contention of the petitioner that the allegations against him are false, at best can be their defence which can be appreciated by the trial court during the course of the trial of the case but the same cannot be considered at this stage in exercise of the power under section 482 of the Code of Criminal Procedure by way of a Mini Trial hence it is urged upon that on the basis of the grounds agitated by the petitioners, these petitioners have miserably failed to make out a case for quashing the entire criminal proceedings initiated against the petitioners including the order dated 24.02.2015 whereby cognizance has been taken by the learned 11th Additional Sessions Judge-cum-Special Judge (C.B.I.) Dhanbad. It is lastly submitted that both these petitions being without any merit, be dismissed.
12. Having heard the submissions made at the bar and after carefully going through the materials in the record, it is pertinent to mention here that two coordinate benches of this court have dismissed the prayer for quashing the entire criminal proceeding as made by the co-accused Dinesh Kumar Singh vide order dated 19.02.2020 passed in Cr.M.P. No.1592 of 2015 and in Cr.M.P. No.3369 of 2017 of the co-accused Bholanath Choudhary which was disposed of on 20.06.2018 with a liberty to raise the points at the appropriate stage. This court vide order dated 23.02.2022 in Cr.M.P. no.302 of 2016 dismissed the prayer for quashing the entire criminal proceedings initiated against the petitioners including the order dated 24.02.2015 whereby cognizance has been taken by the learned 11th Additional Sessions Judge-cum-Special Judge (C.B.I.) Dhanbad in
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connection with R.C. Case No.01 (A)/2013 (D) registered for the commission of the offences punishable under Sections 120B read with 419, 420, 468 and 471 of the Indian Penal Code and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 made by the co-accused Vijay Kumar Thakur.
13. Now coming to the judgments relied upon by the petitioners, the facts of the case of Manoranjan Das (supra) are entirely different from the facts of this case. In the facts of that case where there was no material in the record to show any complicity of the accused person of that case in committing any act of cheating and there was nothing on record to show that the accused person was in any way related to the fraud committed by the co-accused, the Hon'ble Supreme Court of India set aside the conviction of the appellant before it. But in this case the allegation against the petitioner Lal Bahadur Singh is that since the beginning as part of conspiracy he got opened the fake account and substantial amount from the fake account was transferred to his account later on. Moreover this case is at the nascent stage of cognizance. The Hon'ble Supreme Court of India has deprecated the practice of quashing of cognizance at the nascent stage by observing thus in the case of Rathish Babu Unnikrishnan v. State (Govt. of NCT of Delhi) and Another 2022 reported in 2022 SCC OnLine SC 513 in paragraph number 16 to 18 as under:
"16. The proposition of law as set out above makes it abundantly clear that the Court should be slow to grant the relief of quashing a complaint at a pre-trial stage, when the factual controversy is in the realm of possibility particularly because of the legal presumption, as in this matter. What is also of note is that the factual defence without having to adduce any evidence need to be of an unimpeachable quality, so as to altogether disprove the allegations made in the complaint.
17. The consequences of scuttling the criminal process at a pre-trial stage can be grave and irreparable. Quashing proceedings at preliminary stages will result in finality without the parties having had an opportunity to adduce evidence and the consequence then is that the proper forum i.e., the trial Court is ousted from weighing the material evidence. If this is allowed, the accused may be given an un-merited advantage in the criminal process. Also because of the legal presumption, when the cheque and the signature are not disputed by the appellant, the balance of convenience at this stage is in favour of the complainant/prosecution, as
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the accused will have due opportunity to adduce defence evidence during the trial, to rebut the presumption.
18. Situated thus, to non-suit the complainant, at the stage of the summoning order, when the factual controversy is yet to be canvassed and considered by the trial court will not in our opinion be judicious. Based upon a prima facie impression, an element of criminality cannot entirely be ruled out here subject to the determination by the trial Court. Therefore, when the proceedings are at a nascent stage, scuttling of the criminal process is not merited."
14. Similarly Hon'ble Supreme Court of India deprecated the practice of quashing of cognizance and thereby nipping the criminal prosecution in the bud itself, as is evident from the observations made in the case of Central Bureau of Investigation Vs. Sanjiv Paul in Criminal Appeal No. 67 of 2017 arising out of SLP (Crl.) No. 9590 of 2013 dated 10.01.2017, paragraph nos. 3 & 4 of which reads as under:-
"3. On due consideration, we are of the view that the stage at which the High Court had quashed the proceedings was not appropriate. We, therefore, interfere with the order of the High Court but leave it open to the respondent-accused to seek discharge before the learned trial Court. All questions are left open to be urged before the learned trial Court
4. Appeal, consequently is disposed of in terms of the above."
15. So far as the judgments in the cases of Ashok Transport Agency v. Awadhesh Kumar (supra) Shankar Finance & Investments v. State of A.P. (supra) are concerned, they are the settled principles of law and there is no quarrel about the same. But in this case, the petitioner Lal Bahadur Singh has not been arrayed as an accused in capacity of involvement in the business of M/s. D.K. Singh rather he has been implicated in this case for his own acts of commission of the offence as the main conspirator of the criminal conspiracy by which B.C.C.L. has been defrauded of several crores of rupees out of which handsome amount has been transferred to the bank account of the petitioner Lal Bahadur Singh as well. Hence this court is of the considered view, that the ratio of the said two judgments has no applicability, in the facts of this case.
16. The judgment rendered by the Hon'ble Supreme Court of India in
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the case of CBI v. K. Narayana Rao (supra) has also reiterated the settled principle of law regarding establishing the ingredients of the offence of criminal conspiracy. There is no dispute regarding the said settled principle of law. The fact remains that unlike the case of CBI v. K. Narayana Rao (supra) in this case there is specific allegation against the petitioner Lal Bahadur Singh that he was the main conspirator as well as the beneficiary of the handsome portion of the defrauded amount. The petitioner Jyotish Chandra is alleged to have played an active role being part of the criminal conspiracy by committing the following acts of omission and commission:
i) He did not ensure the actual requirements of the work before forwarding the estimate proposals to B.C.C.L headquarter.
ii) He forwarded the files related to the work orders in respect of which fraud has been committed and this case has been instituted; to the B.C.C.L. headquarter in the absence of Area CGM.
iii) He being one of the members of the Tender Committee did not ensure the genuineness of the proprietor or the authorized representatives of the firms participating in the tender process
iv) He being the member of the Tender Committee did not ensure the rate analysis in order to justify the rate quoted by L - 1 bidder i.e. M/s. D.K. Singh who had quoted more than 70% of the estimated cost in all the 16 works.
v) He did not ensure issue of required Budget Allocation/Budget Concurrence of the said work from the B.C.C.L headquarter and instead himself approved the recommendations of the Tender Committee members in capacity of Area General Manager in all the 16 matters/files. Hence in the considered opinion of this court, the ratio of CBI v. K. Narayana Rao (supra) is of no help to the petitioners of this case in view of overwhelming material against them showing their involvement in the criminal conspiracy.
17. It is a settled principle of law that at the stage of consideration of charge an accused cannot rely on the materials by way of defence as has been held by the Hon'ble Supreme Court of India, in the case of M.E.
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Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru (2020) 2 SCC 768 wherein, the Hon'ble Supreme Court has held as under in paragraph no.29:-
"29. It is not open to the accused to rely on the material by way of defence and persuade the court to discharge him." (Emphasis Supplied) The Hon'ble Supreme Court of India in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. reported in AIR 1992 SC 604 extracted and reproduced the category of cases by way of illustration wherein the power of the court be exercised either to prevent the abuse of process of any court or otherwise to secure the ends of justice in paragraph - 108 which reads as under:
"108. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and the principles of law enunciated by this in a series of decisions relating to the exercise of the extra ordinary power under Article 226 or the inherent powers under Section 482 of the code which we have extracted and reproduced above, we give the following category of cases by way of illustration wherein the power of the Court be exercised either to prevent the abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
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 F.I.R. 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 F.I.R. 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 F.I.R. do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by Cr. M.P. No.302 of 2016 9 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 F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever
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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 concerned Act (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 the concerned Act, 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 the accused and with a view to spite him due to private and personal grudge.
It is needless to mention, that the petitioners have failed to make out any of the grounds as mentioned in the aforesaid illustrations for quashing of the criminal proceeding against them. Further it is a settled principle of law that in exercise of the power under Section 482 of the Code of Criminal Procedure, the Court cannot go for Mini Trial by entering into the defence of the parties and give a finding in one way or the other. The undisputed fact remains that the B.C.C.L. has been defrauded of Rs.1,23,13,354/- approximately and the petitioners even do not dispute that anywhere in these petitions. The only contention of the petitioners is that they are not responsible for that. In view of the nature of allegations and the supporting materials in respect of them, this Court is of the considered view that this is not a fit case to quash the entire criminal proceeding against them at this stage.
18. Accordingly, these criminal miscellaneous petitions, being without any merit, are dismissed.
(Anil Kumar Choudhary, J.)
High Court of Jharkhand, Ranchi Dated 06/06/2022 AFR/ Animesh
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