Dr.K.Anil Kumar, Hyderabad. vs Secy., Home Dept., Hyd 2
2021 Latest Caselaw 2582 Tel

       THE HONOURABLE SRI JUSTICE K.LAKSHMAN

                 WRIT PETITION No.2536 OF 2012

ORDER:

This Writ Petition is filed by the petitioner/A.2 in C.C.No.7874

of 2019, to quash the proceedings in C.C.No.7874 of 2019 in RC

No.13/2009/CBI/ACB/HYD pending on the file of XXI Additional

Chief Metropolitan Magistrate, Nampally, Hyderabad. The offences

alleged against the petitioner herein are under Sections 409 and 420

read with 120-B of IPC. The petitioner herein is A.2 in the said

Calendar Case.

2. Heard Sri D.V.Seetha Rama Murthy, learned Senior counsel

representing Sri N.Ashwani Kumar, learned counsel for the petitioner,

and Sri K.Surender, learned Special Public Prosecutor appearing for

2nd respondent. Despite service of notice, none appeared for 3rd

respondent. Perused the record.

3. FACTS OF THE CASE ARE AS FOLLOWS:-

i) Panineeya Sanskrit College Trust (for short, the PSCT') is

represented by A.1, its Chairman and Managing Trustee.

ii) All India Council for Technical Education (for short, 'the

AICTE'), New Delhi, has issued advertisement vide No.AICTE/Legal/

11/01/2008, dated 07.11.2008 inviting applications for

establishment of new institutions for Technical Programmes for the

Academic Year 2009-10 and beyond.

iii) The said PSCT, represented by its Chairman and Managing

Trustee-A.1 has submitted an application dated 29.12.2008 to the

AICTE, Hyderabad, to start new Engineering College for the Academic

Year 2009-10.

KL,J Wp_2536_2012

iv) The said application was forwarded to the AICTE, New Delhi

and the New Delhi Office processed the said application/proposal

further.

v) As per norms of the AICTE, for establishment of a new

Technical Institution, the requirement of instructional area has been

prescribed as follows:-

a) 2920 square meters (Carpet Area),

b) Administrative area as 535 square meters (Carpet Area),

c) Circulation and other area as 995 square meters

d) Total built up area as prescribed as 4300 square meters.

vi) The proposals submitted by the institutions for setting up

new Engineering Colleges will be processed by the AICTE at different

stages including physical inspection by the Expert Committee Team

(for short, 'the EC Team') to ascertain readiness of the institution in

terms of built up area etc., during their inspection. The AICTE will

issue Letter of Approval and the Engineering Colleges commence in

the Academic Session.

vii) Pursuant to the said application, dated 29.12.2008

submitted by the PSCT, represented by its Chairman and Managing

Trustee/A.1, the EC team has inspected the said site proposed by the

PSCT on 25. 06.2009.

viii) The petitioner herein, Honorary Secretary of the said

Institution, was present and signed under declaration as applicant on

behalf of the Institution. As per the information furnished by the

Institution, the said EC Team mentioned the instructional Carpet

Area as 2920 square meters, Administrative Carpet Area as 535

square meters and Circulation and other area as 995 square meters,

in the report.

KL,J Wp_2536_2012

ix) The EC Team submitted its report along with annexures with

recommendation and after its processing, the AICTE accorded

approval to the said PSCT for setting new Engineering College who in

turn started the said college and the classes were commenced since

October, 2009.

x) On the basis of reliable source information, on 12.08.2009,

the CBI Team consisting of CPWD Engineer etc., conducted Joint

Surprise Check at the Institution, in the presence of the Trustee

Member D.Ravi and drawn Joint surprise Check proceedings. The

CPWD Engineer submitted the report with an opinion that there was

shortage in the built up area against the requirement prescribed by

the AICTE.

xi) The Joint Surprise Check team noticed that two other

Institutions viz: a CBSE School and B.Ed. College were also found

operating from one of the buildings of the Institution.

xii) As per AICTE norms, at the time of visit of the EC Team, no

other courses are to be conducted from the approved/earmarked

premises.

xiii) The B.Ed. College and CBSE School were being run in one

of the old buildings in the said premises. Prior to the commencement

of Engineering College in the said premises, there is Name Board with

the details of CBSE school and B.Ed. college i.e. Panineeya Maha

Vidyalaya Public School (CBSE) & B.Ed. College at the entrance of the

gate which was repainted with the name of "Panineeya Institute of

Technology and Science.

xiv) According to the prosecution, the A.1 being Chairman and

Managing Trustee of the said Trust, concealed the fact of running of

CBSE and B.Ed. courses in the same building meant for proposed KL,J Wp_2536_2012

Engineering College in the application submitted to the AICTE during

November, 2008.

xv) A.1 failed to bring the said fact to the notice of the EC Team

during their visit to the institution on 25.06.2009. Thus, A.1 caused

the buildings shown to the Expert Committee Team and given

impression that the buildings were exclusively earmarked for the

proposed Engineering College.

xvi) A.1 submitted documents to the AICTE in order to obtain

approval for starting Engineering College. In the said process, he also

submitted false Valuation Certificate dated 22.05.2009 of M/s

Srinivas and Associates in which the valuation of the Educational

RCC framed structure consisting of 3 floors was mentioned as

Rs.233.56 lakhs. However, Sri A.S.V.S.Srinivas, Proprietor of M/s

Srinivas and Associates denied to have known A.1 nor issuing of said

forged valuation certificate. Thus, A.1 by submitting the said false

valuation report, cheated the AICTE, New Delhi.

xvii) Thus, A.1 and A.2, in pursuance of criminal conspiracy

and in order to obtain approval from the AICTE for starting new

Engineering college, falsely suppressed the fact of running the said

two courses in one of the buildings of the premises and obtained

favorable report from the Committee. They showed an old building in

which a CBSE School and B.Ed. College were running as a building

meant for running the proposed Engineering College. Thus, A.1 and

A.2 with dishonest and fraudulent intention suppressed the real facts

and got approval by the AICTE for running Engineering College.

xviii) The EC Team has not carefully carried out the Inspection

on 25.06.2009 and they are very casual in preparation of the report

and they have submitted the report to the AICTE.

KL,J Wp_2536_2012

xix) Thus, according to the prosecution, the petitoner/A.1 has

committed the offences under Sections 409 and 420 read with 120-B

of IPC.

xx) During the course of investigation, the Investigating Officer

has recorded statements of 19 witnesses.

xxi) With the said facts, the CBI has laid charge sheet against

the petitioner herein/A.2 and A.1.

     4. CONTENTIONS            OF    LEARNED      COUNSEL      FOR    THE
PETITONER:

i) Referring to the contents of the charge sheet, learned Senior

Counsel would submit that the petitioner herein no way concerned

with the said PSCT and he is not Secretary of the Trust at any point of

time.

ii) The contents of the charge sheet lacks ingredients of the

offences alleged against the petitioner herein.

iii) Even then the CBI has laid the charge sheet in mechanical

manner against the petitioner herein.

iv) With the said submissions, learned Senior counsel sought to

quash the proceedings against the petitioners in C.C.No.7874 of 2019.

5. CONTENTIONS OF LEARNED SPECIAL PUBLIC PROSECUTOR APPEARING FOR RESPONDENT No.2:

i) A.1 has appeared before the EC Team and signed the

undertaking which resulted in granting of permission to the said

Institution for running Engineering College.

ii) Whether the petitioner herein is Secretary of the Institution

or not is a triable issue and the petitioner has to face trial and prove

his innocence.

iii) Thus, there are triable issues which will be considered by the

trial Court after conducting full-fledged trial. The petitioner herein, KL,J Wp_2536_2012

instead of facing trial, filed the present Writ Petition to quash the

proceedings against him.

iv) The petitioner has alternative remedy of filing discharge

application seeking to discharge him from the said Calendar Case.

v) Instead of availing said alternative remedy, he has filed the

present Writ Petition.

vi) The petitioner herein and also A.1 have misrepresented with

regard to specified area and valuation report. Therefore, on reliable

information, the CBI has conducted surprise check with the help of

CPWD, measured the area, came to conclusion that the area is less

than the prescribed area by the AICTE. The said PSCT has been

running a CBSE School and B.Ed. college against the norms of the

AICTE and thus they have obtained permission for running an

Engineering College in violation of the norms of the AICTE.

vii) There is clear suppression and misrepresentation of facts.

viii) With the said submissions, learned Special Public Prosecutor,

sought to dismiss the Wit Petition.

ANALYSIS AND FINDINGS OF THE COURT:-

6. A perusal of paragraph No.8 of the Writ Affidavit would

reveal that the petitioner herein has specifically pleaded as follows:-

"I am a doctorate in M.B.A. and as I was requested to be present at the time when the AICTE team visited the college at the time of inspection, before grant of approval, I was present. I signed the Report of the AICTE's Inspection Team. It is not on behalf of the Trust or the College either as Secretary or otherwise. I have no connection or relationship with the said Trust or the College."

Thus, the petitioner himself has categorically admitted about his

presence at the time of Inspection by the AICTE and signing of the

report of the AICTE's Inspection Team. Now he is claiming that he is KL,J Wp_2536_2012

no way concerned with the said Trust and not even Secretary. It is

relevant to note that the petitioner herein is not an illiterate as he

himself admitted that he did his Doctorate in MBA. Thus, he is highly

educated, he was present at the time of Inspection and signed the

report of the AICTE inspection team. Now he cannot plead ignorance.

7. However, it is relevant to note that whether the petitioner

herein is a Secretary or not is a triable issue and the petitioner has to

face trial and prove his innocence.

8. The Investigating Officer has recorded the statements of 19

witnesses during the course of investigation and he has collected 25

documents. On analysis of both the documentary and oral evidence

only, the Investigating Officer has laid charge sheet. According to the

prosecution, the petitioner herein is the Secretary and he was present

at the time of Inspection and signed the Inspection report of the

AICTE. The said fact was admitted by the petitioner himself in the

writ affidavit.

9. There are serious allegations against both the petitioner

herein/A.2 and A.1. They have misrepresented the AICTE Inspection

Team. They have wrongly shown the valuation report and also area as

per the norms of the AICTE. In the said premises, A.1 is running a

CBSE school and B.Ed. College which is against the norms of the

AICTE. Thus, prima facie, both the petitioner herein/A.2 and A.1, in

collusion with each other, misrepresented the AICTE team and

obtained permission for starting of Engineering College. Thus, the

petitioner herein/A.2 now cannot claim that he is nothing to do with

the said college and he is not a Secretary to the said Trust. However,

it is a triable issue which is to be considered by the trial Court.

KL,J Wp_2536_2012

10. It is relevant to note that Section 415 of the IPC which is the

explanation to Section 420 of IPC which says that "Whoever, by

deceiving any person, fraudulently or dishonestly induces the person so

deceived to deliver any property to any person, or to consent that any person

shall retain any property, or intentionally induces the person so deceived to

do or omit to do anything which he would not do or omit if he were not so

deceived, and which act or omission causes or is likely to cause damage or

harm to that person in body, mind, reputation or property, is said to

"cheat".

11. In the case on hand, the allegation against the petitioner

herein is that he, in collusion with A.1, induced the Inspection Team

of the AICTE, deceived them to do a particular thing by

misrepresenting with regard to the specified area and suppressed the

fact of running a CBSE school and B.Ed. college in the very same

premises. Thus, with the said inducement, the Inspection team

submitted their report which resulted in granting permission to the

said Institution for running Engineering College. Thus, the petitioner

herein, in collusion with A.1, induced the Inspection Team to do

which they were not to do and thus they have deceived the Inspection

Team.

12. In view of the said discussion, the petitioner herein cannot

now contend that the contents of the charge sheet lacks the

ingredients of the offence alleged against him.

13. In this regard, it is apt to refer to the decision rendered by

the Hon'ble Supreme Court in Kamal Shivaji Pokarnekar v. The

State of Maharashtra1, wherein the Apex Court has categorically

held that quashing criminal proceedings was called for only in a case

. AIR 2019 SC 847 KL,J Wp_2536_2012

where complaint did not disclose any offence, or was frivolous,

vexatious, or oppressive. If allegations set out in complaint did not

constitute offence of which cognizance had been taken by Magistrate,

it was open to High Court to quash same. It was not necessary that, a

meticulous analysis of case should be done before trial to find out

whether case would end in conviction or acquittal. If it appeared on a

reading of complaint and consideration of allegations therein, in light

of the statement made on oath that the ingredients of the offence are

disclosed, there would be no justification for High Court to interfere.

The defences that might be available, or facts/aspects which when

established during trial, might lead to acquittal, were not grounds for

quashing complaint at threshold. At that stage, only question

relevant was whether averments in complaint spell out ingredients of

a criminal offence or not. The Court has to consider whether

complaint discloses that prima facie, offences that were alleged

against Respondents. Correctness or otherwise of said allegations

had to be decided only in trial. At initial stage of issuance of process,

it was not open to Courts to stifle proceedings by entering into merits

of the contentions made on behalf of Accused. Criminal complaints

could not be quashed only on ground that, allegations made therein

appear to be of a civil nature. If ingredients of offence alleged against

Accused were prima facie made out in complaint, criminal proceeding

shall not be interdicted.

14. In Skoda Auto Volkswagen India Private Limited Vs.

The State of Uttar Pradesh and Ors2, the Hon'ble Apex Court

referring to the various judgments rendered by it categorically held

that the High Courts in exercise of its inherent powers under Section

AIR 2021 SC 931, KL,J Wp_2536_2012

482 of Cr.P.C has to quash the proceedings in criminal cases in rarest

of rare cases with extreme caution.

15. In view of law laid down by the Hon'ble Apex Court and in

view of the above said discussion, coming to the case on hand, as

discussed supra, there are several triable issues. This Court while

hearing an application under Section 482 of the Cr.P.C. cannot

consider the defences which are supposed to be taken by the

petitioner during the trial before the trial Court as held by the Hon'ble

Apex Court, and therefore, this Court is not inclined to quash the

proceedings against the petitioner herein/A.2 in C.C.No.7874 of 2019

in RC No.13/2009/CBI/ACB/HYD pending on the file of XXI

Additional Chief Metropolitan Magistrate, Nampally, Hyderabad.

16. In the result, the Writ Petition is dismissed. There shall be

no order as to costs.

17. Consequently, miscellaneous petitions, if any, pending

shall stand closed.

____________________ K. LAKSHMAN, J Date:14.09.2021.

vvr