Court No. - 65
Case :- APPLICATION U/S 482 No. - 15869 of 2019
Applicant :- Abhishek Bhandari
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Mahesh Prasad Yadav,Girish Kumar Pandey
Counsel for Opposite Party :- G.A.
Hon'ble Karuna Nand Bajpayee,J.
Sri Nitin Kumar Gupta and Sri Prashant Sharma, Advocates have filed their joint vakalatnama on behalf of opposite party no.2 which is taken on record.
This application u/s 482 Cr.P.C. has been filed seeking the quashing of charge sheet dated 13.10.2018 as well as the entire proceedings of Criminal Case No. 5895 of 2018, State versus Abhishek Bhandari and others, arising out of Case Crime No. 774 of 2018, u/ss 406, 420, 467, 468, 471 and 120-B IPC, P.S. Surajpur, District Gautam Budh Nagar, pending in the Court of Addl. Chief Judicial Magistrate-II, Gautam Budh Nagar.
Heard applicant's counsel, learned AGA and learned counsel for opposite party no.2.
Entire record has been perused.
Submission of counsel for applicant is that the applicant was working as H.R. in the company of opposite party no.2 and as he had made some complaints against Company regarding non payment of Provident Fund towards employees, the present F.I.R. has been lodged in order to harass him. Further submission is that two other co-accused persons namely Rajendra Kumar and Chandana Jain had also filed an application u/s 482 Cr.P.C. before this Court in which interim order was passed in their favour. Certain other contentions have also been raised by the applicant's counsel but all of them relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required.
Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard.
The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736. The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has recognized certain categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked.
Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.
Perusal of the present petition shows that the case of applicant is quite different from that of co-accused Rajendra and Chandana Jain. The perusal of F.I.R. shows that there are two set of allegations against the accused persons. The allegation regarding misappropriation of money and irregularities in the canteen of the company is against all three named accused persons i.e. the present applicant and two other co-accused persons Rajendra Kumar and Chandana Jain. So far as the first and primary allegation of misappropriation of Rs.14 lacs of the company is concerned, the same is solely against the applicant. The allegation in this regard as contained in the F.I.R. is that the applicant, who was working as H.R. of the company was authorized/empowered to disburse the salary of employees of the company through Pay Card. Further allegation is that the applicant defrauded the company and had siphoned huge amount. Further allegation is that some of the workers who had worked for a few days and had left the company without taking their salary, the applicant used to draw their salary for the whole month and transfer the same to some other account for his own use. Whenever such employees returned back to get their salary for only that period in which they had served the company, then applicant used to pay their salary for only that period from some other accounts. Further allegation is that the applicant had committed theft of letters head, and canteen registers of the company and had tried to destroy the evidence regarding crime committed by him. During investigation, Investigating Officer had recorded the statement of the first informant who had supported the prosecution version. On 12.10.2018 the first informant had given all documentary evidence to the I.O. relating to forgery and misappropriation of money committed by the applicant with the company. Some forged documents executed by the applicant was also handed over to the I.O. Investigating Officer after conducting fair investigation had submitted charge sheet against the applicant for the offence punishable u/s 406, 420, 467, 468, 471, 120-B I.P.C. and learned Magistrate after perusing the entire documents on record including the case diary, had taken cognizance of the case and had issued summons to procure the attendance of the applicant.
The submissions made by the applicant's learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.
The prayer for quashing the same is refused as I do not see any abuse of the court's process either.
However, in view of the peculiar facts and circumstances of the case, it is directed that in case after surrendering in the court below an application for bail is moved on behalf of the accused within four weeks from today, the same shall be considered and decided in accordance with law.
In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.
It is further clarified that for the present this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.
With the aforesaid observations, this application is finally disposed off.
Order Date :- 25.4.2019 CPP/-M. Kumar