Jeewan Prasad Sharma vs State Of Uttarakhand And Others
2023 Latest Caselaw 1337 UK

                                           Judgment Reserved on: 09.05.2023
                                           Judgment Delivered on: 16.05.2023


       IN THE HIGH COURT OF UTTARAKHAND
                   AT NAINITAL
            Criminal Misc. Application No.1410 of 2014


Jeewan Prasad Sharma                                        .......Petitioner

                                     Vs.

State of Uttarakhand and others                              ...Respondents

Mr. Nagesh Aggarwal, learned counsel for the applicant.
Mr. Kuldeep Singh Rawal, learned AGA with Mr. Pankaj Joshi, learned Brief
Holder for the State.
Mr. Ashutosh Thakral, learned counsel for respondent nos.2 & 3.



Hon'ble Pankaj Purohit, J.

Heard Mr. Nagesh Aggarwal, learned counsel for the applicant, Mr. Kuldeep Singh Rawal, learned AGA for the State and Mr. Ashutosh Thakral, learned counsel for respondent nos.2 & 3.

2. None has put in appearance on behalf of respondent no.4 despite service.

3. By means of this C482 petition filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) the applicant has put a challenge to the order dated 08.10.2014 passed by the court of learned IInd Additional Sessions Judge, Roorkee, Haridwar in Criminal Revision No.17 of 2014 Jeewan Prasad Sharma vs. State and others as well as the order dated 12.12.2013 passed by the court of Additional Civil Judge (Sr. Div.)/Judicial Magistrate, Roorkee, Haridwar in Misc. Application No.243 of 2013 Jeewan Prasad Sharma vs. Manager, Axis Bank and others, whereby an application moved by the applicant under Section 156(3) of Cr.P.C. to lodge a first information report and to investigate the matter, has been rejected.

4. The brief facts of the case which emerge from perusal of the record are that the applicant and respondent no.4 are real brothers. The applicant, according to his contention, is sole proprietor of a firm under the name and style of M/s Shri Sharma Tent Company. In the application filed under Section 156(3) of Cr.P.C., it is contended by the applicant that respondent no.4 taking an undue advantage of his little knowledge and trust got an account opened in the Axis Bank, Roorkee Branch in the name of a firm M/s Shri Sharma Tent, Company allegedly, in connivance with respondent nos.2 and 3, who happened to be the then bank officials of the Axis bank, who inducted the name of respondent no.4 (brother of applicant) as a joint account holder, in the account which was opened in the name and style of M/s Shri Shrama Tent Company.

5. Learned counsel for the applicant further submits that the account was opened inducting the name of respondent no.4 as a joint holder without seeking any consent of the applicant nor there was any proposal or resolution to that effect. The respondent no.4 in connivance with respondent no.2 and 3 continued to withdraw money from the account of the firm which was registered in the name of applicant without informing the applicant. The applicant duped of money unauthorizedly and illegally which made a serious offence of theft, forgery and criminal breach of trust. The applicant further states that he tried to lodge first information report of the aforesaid incident with the local police authorities but the same was not lodged. As a consequence of not lodging of the first information report, under the compelling circumstances, the applicant filed an application under Section 156(3) of Cr.P.C. before the court of Judicial Magistrate, Roorkee with a prayer to direct respondent no.1 to register the FIR and investigate the matter.

6. The learned Judicial Magistrate, Roorkee after hearing the applicant and perusal of the documents available on record, came to the conclusion that prima-facie, no case of registration of FIR and of conducting an investigation by police authorities in Criminal Case No.243 of 2013, Jeewan Prasad Sharma vs. Manager, Axis Bank and others, is made out against the accused persons. Consequently, the application filed under Section 156(3) Cr.P.C. was rejected vide its order dated 12.12.2013. The reasoning which has been assigned by the learned Judicial Magistrate in its order dated 12.12.2013 is that the applicant could not make it clear as to how much money was there in the account and how much money was withdrawn from the account by whom and even the bank statements were not made available on the record. The applicant also could not make it clear that as to whether the account was joint with respondent no.4-Jyoti Prasad Sharma or singly operated.

7. The matter was taken to the court of learned IInd Additional Sessions Judge, Roorkee by filing the Criminal Revision No.17 of 2014, Jeewan Prasad Sharma vs. State and others, challenging the order dated 12.12.2013 passed by the learned Judicial Magistrate, Roorkee. The learned IInd Additional Sessions Judge, Roorkee very meticulously examined the record and after hearing the applicant found that the applicant could not prove that he was proprietor of Sharma Tent House. In the Paper No.5 Kha submitted with the application issued by the Commercial Tax Department applicant was shown to be the dealer with an exemption "Dealer is suspended by office and the date of suspension was shown 04.12.2012" even in Paper No.6 Kha there is no mention of the name of the applicant as proprietor of the Sharma Tent House. Although, the applicant came up with the case that he opened an account with Axis Bank in the name of Sharma Tent House by virtue of being its proprietor, but he could not produce any document of opening an account; neither any cheque book, pass book was issued in the name of the applicant; bank statement has not been brought on record. He also failed to prove as to who had withdrawn an amount of Rs.6,00,000/- from the bank; he even failed to make it clear as to whether the money was withdrawn through cheque, ATM or by withdrawal.

8. The learned IInd Additional Sessions Judge also recorded in its judgment that if the account was opened by the applicant and he was the account holder of the bank as to why the bank account statement was denied to him; not a single document regarding transaction in the bank was produced and even the date of opening of the account was not mentioned.

9. On the basis of the above reasoning, the learned IInd Additional Sessions Judge, Roorkee affirmed the order dated 12.12.2013 passed by the learned Judicial Magistrate, Roorkee in Misc. Case No.243 of 2013 Jeewan Prasad Sharma vs. Manager Axis Bank and others under Section 156(3) Cr.P.C after rejecting the criminal revision vide its judgment and order dated 08.10.2014. Hence, this C482 Application.

10. The respondent nos.2 & 3 filed their counter affidavits to the C482 Application on 18.02.2023, and supported the judgments impugned in the present C482 Application on the ground that the applicant failed to adduce any evidence in support of his case. It has further been submitted by the respondent nos.2 & 3 that this Court has no jurisdiction to appreciate the evidence at the stage of proceedings under Section 482 of Cr.P.C. and the fresh evidence, which has been brought by the applicant were not part of the proceedings under Section 156(3) Cr.P.C. and even in revision, therefore, it cannot be appreciated at this stage. It has also been submitted that even no prima-facie case is made out against respondent nos.2 & 3, who are bank officials and have been falsely roped in, in the instant case which is an absolute abuse of process of law against the answering respondents.

11. It has been vehemently argued on behalf of the applicant that both the impugned orders deserve to be set aside by this Court in exercise of its inherent power under Section 482 of the Cr.P.C. and application under Section 156(3) of Cr.P.C. be allowed with a direction for lodging of FIR and the investigation against the respondents.

12. During the course of arguments the Court's attention was drawn to Annexure No.6-bank statement filed by the applicant. Though these documents were not available in the court below but still, this Court perused the document but the document is of no help to the applicant as from the bank statement it is clear that the account of Shri Sharma Tent House is maintained in the Axis Bank Branch, Roorkee, was a joint account and the first entry of the deposit of Rs.5,000/-(five thousand) is made by Jyoti Prasad Sharma, respondent no.4 (brother of the applicant) being shown joint account holder of the account in dispute. There is no illegality or criminality in the said transaction made by respondent no.4. So far as the allegations that respondent nos.2 & 3 in connivance with respondent no.4 opened the forged account does not hold water and the same is liable to be rejected. There is yet another aspect of the matter that respondent nos.2 and 3 in their official capacity have been impleaded while the criminal offence can only be lodged against an individual. In this view of the matter too the application under Section 156(3) of Cr.P.C. cannot be allowed.

13. This Court does not find any illegality and impropriety in both the judgments impugned. The court below has rightly rejected the application filed under Section 156(3) of Cr.P.C and the same was rightly affirmed by the court of IInd Additional Sessions Judge, Roorkee.

14. In view of the aforesaid reasons, this Court does not inclined to invoke its inherent power under Section 482 of Cr.P.C. in the aforesaid matter.

15. The C482 Application is accordingly, dismissed.

(Pankaj Purohit J.) 16.05.2023 Arti