Court No. - 65
Judgment Reserved on: 07.08.2019. Judgment Delivered on: 28.08.2019.
Case :- APPLICATION U/S 482 No. - 39453 of 2013 Applicant :- Gaya Prasad Pal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- M.M. Sahai Counsel for Opposite Party :- Govt. Advocate,Ram Kumar Tiwari,Shivam Yadav,Surendra Bahadur Singh Connected with Case :- APPLICATION U/S 482 No. - 37321 of 2013 Applicant :- Shiv Lal And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- M.M. Sahai Counsel for Opposite Party :- Govt. Advocate,R.P.Tiwari,Ram Kumar Tiwari,Shivam Yadav,Shivnath Singh,Surendra Bahadur Singh
Hon'ble Dinesh Kumar Singh-I,J.
1. Heard Sri M. M. Sahai, learned counsel for the applicant, Sri Ram Kumar Tiwari, learned counsel for Opposite Party no. 2 and Sri G.P. Singh learned A.G.A. for the State.
2. These above applications under Section 482 Cr.P.C have been moved with a prayer to quash the order dated 11.10.2013 and entire proceedings of Case No. 1062 of 2013 filed under section 420, 465, 468 and 471 IPC pending in the Court of Additional Chief Judicial Magistrate, Chitrakoot and also a prayer is made to stay the proceedings in this case till the disposal of this application.
3. As per the complaint the opposite party no. 2 Ram Siya is the Manager of Gyan Bharti Shiksha Sadan School, Karvi. The responsibility of keeping the documents of the said institution safe is upon the Principal of the said institution namely Shri Shiv Lal, the concerned clerk Ram Raj including that of the salary register. Between December 2006 and February 2011 both these persons namely, Shiv Lal and Ram Raj conspired with the Finance and Accounts Officer of Basic Shiksha, Chitrakoot and after forging the signatures of the complainant in salary register and other connected documents, without knowledge of the complainant had withdrawn crores of rupees of the Government, in which the Finance and Accounts Officer, Basic Shiksha, Chitrakoot Shri Durgesh Tripathi and one assistant of his office Shri Gaya Prasad were also involved because they did not get the verification done of the signatures of the complainant after calling him. On the connected cheques and concerned transfer list also, on the basis of his forged signatures money was continued to be drawn. The complainant came to know about all this in March 2011, when on some papers in the salary register, his signatures were obtained. Thereafter on 12/05/2011, a written complaint was given by him to the Finance and Accounts Officer, Basic Sikshak, Chitrakoot, Shri Durgesh Tripathi. It was requested in the said complaint that since the matter involved withdrawal of crores of rupees of the Government on the basis of forged documents and making forged signatures, the matter required to be registered and investigated. It was further mentioned in the said complaint that the principal of the said school Shri Shiv Lal had also made signatures of the complainant on various other documents and they were used as genuine documents by him for other illegal purposes, about which all facts would be possible to be known only after a detailed investigation. Besides the above persons, who all others were involved in this, would be possible to be found out only after the matter was investigated. It was further mentioned that the said documents which are being stated to have been forged and the signatures thereon have been forged, were not in possession of the complainant, hence the matter required to be investigated. He had gone to lodge a report in the matter to the police but the police declined to register the case as it related to the Government Servants, therefore the application was being presented in court under sections 156 (3) of the Criminal Procedure Code. The said complaint was registered as complaint case no. 2300 of 2011, Ram Siya, Manager Gyan Bharti Shiksha Sadan vs Shiv Lal, Principal Gyan Bharti Shiksha Sadan and others under sections 420, 465, 468 and 471 IPC, PS Karvi, District Chitrakoot, wherein the statement of the complainant/opposite party no. 2 was recorded under sections 200 Cr. P.C. and that of Krishna Awatar and Avdhesh Kumar Shukla as PW 2 and PW 1 respectively and thereafter summoning order dated 16/03/2012 was passed by holding that on the basis of the statement of the complainant and the above-mentioned two witnesses it was found primafacie proved that the accused Shiv Lal and Ram Raj in collusion with co-accused Durgesh Tripathi and Gaya Prasad Pal had prepared forged documents with forged signatures of the complainant, which were used as genuine ones and hence they all had committed offence primafacie under sections 420, 465, 468 and 471 IPC.
4. The contentions raised by the accused applicant Gaya Prasad Pal by filing affidavit are that a Society was registered in the name and style of Gyan Bharti Shiksha Sadan, Karvi, Chitrakoot under the provisions of Societies Registration Act, 1860 which was renewed from time to time since 1986. The complainant Ram Siya was working as Manager of the said institution as well as that of the Committee of Management. The Society started doing illegal activities, as a result of which it decided to remove the complainant from the office of Manager and accordingly the Society passed a resolution on 30/08/2011 for removing the complainant on the ground that he was unable to see the things and most of the time his son used to make signatures on the fee bills etc. In place of the complainant Shri Awadhesh Prasad was elected as Manager, a copy of the resolution of the society dated 30/08/2011 is annexed as Annexure 1. The said school is an aided school which was up to the junior high school standard, and hence Payment of Salary Act, 1978 was fully applicable in the institution. The salary bill of teaching and non-teaching staff used to be submitted under the signatures of the Principal and Manager both and the bank account used to be operated under the signatures of the Finance and Accounts Officer of the District and the Manager. Ram Siya who remained Manager for a longer tenure after the resolution of the Society dated 30/08/2011 and was using his signatures to operate the bank account in Allahabad U.P. Gramin bank, Karvi Branch, Chitrakoot. When this fact was brought to the notice of the Branch Manager that the complainant Ram Siya had been removed from the office of Manager, the Branch Manager wrote a letter on 12/10/2011 to the complainant restraining him not to use his signature which was attested by the Branch Manager to operate the bank account. The newly elected Manager namely, Awdhesh Prasad also agitated the dispute with respect to renewal of the Society which was made by the Assistant Registrar, Chit Funds and Society, Jhansi Region, Jhansi, upon which the Assistant Registrar made a detailed hearing and came to the conclusion that the complainant Ram Siya obtained the renewal certificate contrary to the Rules and it was found that information submitted by him was incorrect. Consequently the Assistant Registrar vide his letter dated 19/11/2011 recalled the order by which renewal of the certificate was made in favour of Ram Siya. Against the proceedings dated 30/8/2011, the Basic Siksha Adhikari, Chitrakoot attested the signature of Awdhesh Prasad. Feeling aggrieved by the said order, the complainant filed Civil Miscellaneous Writ Petition No. 67846 of 2011 in which this court directed for single operation of the salary account but none of the orders were stayed. At the time of filing the said writ petition, the petitioner concealed the material facts that the Assistant Registrar had already cancelled the renewal certificate which was issued in favour of Ram Siya vide order dated 19/11/2011. The complainant was forcing the applicant to fabricate the documents so that he could succeed in dispute pertaining to the Committee of Management but on the denial made by the applicants, the complainant filed an application under sections 156 (3) of the Criminal Procedure Code which was treated as a complaint case under the orders of Judicial Magistrate dated 23/09/2011. Feeling aggrieved by the summoning order dated 16/03/2012 in the said complaint case, the applicant had preferred Criminal Miscellaneous Application No.12311 of 2012 under sections 482 Cr.P.C. which was disposed of on 11/04/2012 directing the applicants to move application under sections 245 (2) of the Criminal Procedure Code before the Magistrate and that till the same was decided no coercive steps were directed to be taken. In compliance with the said order dated 04/04/2012, the applicants moved an application before the Magistrate, who vide order dated 11/10/2013 rejected the application under sections 245 (2) of the Criminal Procedure Code, which would indicate that the learned Magistrate proceeded in a manner as if he was deciding the dispute of Committee of Management and not an application under sections 245 (2) of the Criminal Procedure Code, the said order needs to be set aside. A bare perusal of the summoning order would demonstrate that the learned Magistrate has proceeded on assumption that the complainant was Manager of the Institution, which fact was incorrect. As a matter of fact the complainant was not even a Member at present of the Society, therefore the present complaint at his behest was without substance or correctness and was liable to be dismissed. It is further mentioned that the present proceedings were the outcome of counterblast as the applicants did not cooperate with the complainant in preparing the forged documents. The contents of the complaint do not make out any case against the applicants as no details have been given therein as to from which account the forgery was committed. In the said complaint it was mentioned that the applicants were withdrawing the amount by making forged signatures which continued from 2006 to 2011. The audit of account is done every year then how the complainant has filed a complaint after about 5 years without any explanation which shows that the same is malafide and needs to be quashed. The accused Durgesh Tripathi who was been summoned in the present case, had filed an Application u/s 482 Cr.P.C. No. 11335 of 2012 in which on 04/04/2012 the interim order was passed. Therefore it is prayed that order dated 11/10/2013 be set aside and entire proceedings of the case no. 2300 of 2011 be quashed.
5. From the side of the opposite party no. 2 counter affidavit has been filed which in which it is stated that the applicant had filed the document i.e. proposal for removing the opposite party no. 2 from the post of Manager of the Institution but the same does not concern with the offences committed by the applicant. The applicant has tried to twist the matter and wants to give colour of dispute of Committee of Management. In fact the opposite party no. 2 has been cheated by the accused persons and without hearing being given, he was removed from the post of Manager of the Institution. It happened under the conspiracy hatched by the accused persons and forgery and cheating was committed in the form of making forged signature of the Manager and money was withdrawn from the exchequer. Therefore at this stage the defence of the applicant could not be considered in view of settled position of law. The letter dated 12/10/2011 is simply a communicating letter by which the opposite party no. 2 was informed that he had been removed from the post of Manager and that he would not have to make any signature on the document nor would he be required to make any signature in connection with matters of Institution. But the said letter does not concern with the offence committed.
5. In rejoinder affidavit, the applicant has mentioned that the complainant had suppressed the material facts by not disclosing that he had been removed as a Manager of the Institution, at the time of filing the application under sections 156 (3) Cr. P.C.. The complainant has alleged that the applicant was making forged signatures between December 2006 to February 2011, which is the period when the jurisdiction of the Institution fell in District Banda and after November 2009, pursuant to the creation of new District Chitrakoot and after the appointment of Finance and Accounts Officer and he being given assignment of power of disbursement of salary and allotment of grant by the State Government, the bills were sanctioned by the officer of Chitrakoot, but this fact was not disclosed by the complainant nor any material has been filed to show that any complaint was made to the Finance and Accounts Officer of District Banda. It is further mentioned that in the writ petition no. 67846 of 2011 filed by O. P. No. 2, he made following averments in paragraph 10 of the petition that consequent upon the institution having been brought on the grant-in-aid, a joint salary account has also been opened which is operable under the signatures of the petitioner no. 3 as the Manager in collaboration with the office of the Basic Sikshak Adhikari. The said salary account exists at Allahabad U.P. Gramin Bank, Karvi, District Chitrakoot and bears account no. 14755. The aforesaid salary account is operated under the signatures of the petitioner no. 3 as the Manager and in support thereof a certificate dated 19/09/2011 issued by Allahabad U.P. Gramin Bank, Karvi Branch, District Chitrakoot, dated 19/09/2011 is annexed and marked as Annexure 3 to the writ petition. It is mentioned that the above statement was made on affidavit which was just contrary to the averments made in the present complaint filed, which shows that a false and fabricated affidavit was filed contrary to the self made averments of the O. P. no. 2, therefore entire proceedings were liable to be quashed and the O.P. no. 2 was liable to be prosecuted for perjury. The applicant’s main work was to check the sanctioned post, the name of person duly appointed and his working on the post and the pay scale and other allowances. While passing the salary bill of the Institution in question, the applicant took all the precautions in preparing the bills and produced the same to the competent authority for its sanction. According to the complainant, the salary bills were not properly signed by him between 2006 to 2011. The applicant came in picture only after November 2009 and he, on the basis of earlier bills, prepared his report for sanctioning the amount. The complaint against the applicant is biased and without any valid reasons. He discharged official duties and checked all the relevant material.
6. A supplementary affidavit was also filed by the applicant wherein he has stated that the learned Magistrate has relied upon the order passed in writ petition no. 67846 of 2011, which was filed against the order dated 01/11/2011 which attested the signatures of Shri Awdhesh Prasad as Manager of the Institution and that against the order dated 1/11/2011, this court after narrating the facts had only directed that the payment of salary to the teachers of the Institution shall be made through single operation, the copy of the said order is annexed as Annexure no. 1. The said writ petition has already been dismissed by this court vide judgment and order dated 15/03/2019 holding that the aggrieved person may file Civil Suit to establish his right, the copy of judgment is annexed as Annexure no. 2. It is further stated that the applicant was a Government servant, who was working under the Finance and Accounts Officer in the office of Basic Education Officer, Chitrakoot Shri Durgesh Tripathi, who was also impleaded in the impugned complaint. This court vide judgment dated 11/05/2018 has already directed that unless the provisions contained under section 197 Cr.P.C. are followed, no public servant can be prosecuted and no court shall take cognizance of any matter and accordingly the proceedings against Shri Durgesh Tripathi were quashed and the matter was remanded for hearing afresh in the light of the observations made in the judgment dated 11/05/2011 in 482 application no. 11335 of 2012.
7. In 482 application no. 11335 2012, this court has recorded that in the case on hand, the allegation in the complaint is that the Principal of the college Shri Shiv Lal and Accounts Clerk Shri Ram Raj had embezzled crores of rupees of the State Government under the garb of disbursement of salary to its teachers and non-teaching staff and that the applicant Durgesh Tripathi along with Gaya Prasad Pal were hand in glove in the embezzlement which occurred between 2006 to 2011. The allegation is not substantiated with any documentary evidence like an enquiry report or audit report which is done every year. Besides this, the applicant has been implicated for an offence which was alleged to have been committed between 2006 to 2011 while he joined service as Finance and Accounts Officer in August 2009, as such he could not be held liable for the period of his predecessor on post. A reference was also made in the said order that opposite party no. 2 had filed a writ – C no. 67846 of 2011, relevant paragraph of which is reproduced as below:
“It has been contended on behalf of the petitioners that since inception of the Institution in question Ram Siya continued to function as Manager and under his signature salary bill has been regularly passed. It has been stated that large-scale conspiracy has been played by the Principal of the Institution with the collision of concerned clerk of the Institution and fake papers have been prepared showing that election has been held on 30/08/2011. Based on the said election dated 30/08/2011, the Assistant Registrar, Firms, Societies and Chits, Jhansi Division, Jhansi proceeded to register the list of the office bearers. There after complaint has been made mentioning therein that fraud has been practised on the Assistant Registrar, Firms, Societies and Chits, Jhansi Division, Jhansi and on the same cognizance has been taken. The petitioners have stated that District Basic Education Officer has also submitted his report and addressed a letter to the petitioner mentioning therein petitioner for the first time as Ex-Manager, and has submitted that he has attested the signature on 14/09/2011 of Avdhesh Prasad. Petitioner's precise contention is that Avdhesh Prasad, respondent No. 7 is not even primary member of Society and neither Ram Prakash has ever been president nor member. Petitioners submit that large-scale manipulation has been done and wilfully and deliberately the institution in question has been sought to be usurped by rank trespasser.”
8. This court has recorded in the said judgment further that it is clear from the order that the complainant himself has stated that he was functioning as Manager and under his signature salary bills have been regularly passed up to 30/08/2011, which lies squarely in the teeth of and in contradiction to the allegation made in the complaint. So far as the ground taken by the applicant that the applicant is a responsible Government officer and public servant holding a Gazetted Post and without complying with the provision of Section 197 Cr.P.C. seeking prior approval from the State Government, the Chief Judicial Magistrate has illegally proceeded to take cognizance of the offence issuing process against the applicant, with regard to this there ought to have been a preliminary enquiry to disclose the nexus between the act complained of and the discharge of public duty. The reliance is placed upon Amal Kumar Jha vs State of Chhatisgarh and another, (2016) 6 Supreme Court Cases 734 in which it was held that there was need for preliminary enquiry to establish that act concerned had some nexus with discharge of official duty before Section 197 Cr.P.C. can be invoked. The concept of section 197 Cr.P.C. does not get immediately attracted on institution of the case, unless above said nexus is first established. The same was also reiterated in N.K. Ganguly vs Central Bureau of Investigation, New Delhi, (2016) 2 Supreme Court Cases 143. Further reliance is placed on the judgment of Hon’ble Supreme Court delivered in M.N. Ojha and others vs Alok Kumar Shrivastava and another, 2010 (1) ACR 794 (SC), wherein it has been held that “averments and allegations made in the complaint do not disclose the commission of any offence by the appellants or anyone of them. Sequence of events undoubtedly suggests that the criminal proceedings have been maliciously instituted with an ulterior motive of wrecking vengeance on the appellants and with a view to spite them due to personal grudge. The criminal law has been set in motion by Magistrate by mere asking to do so by the complainant. The High Court almost abdicated its duty in refusing to exercise its jurisdiction under sections 482 of the Code of Criminal Procedure though the case on hand required its interference in order to prevent abuse of process by court subordinate to it. A clear case is made out requiring our interference to secure the ends of justice. The order of the High Court was set aside and the criminal proceedings have been quashed. Interference by the High Court in exercise of its jurisdiction under sections 482 Cr.P.C. can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the enquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient ground for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint. It is well-settled and needs no restatement that the saving of the inherent power the High Court in criminal matters is intended to achieve a salutary public purpose “which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. If such power is not concerned, it may even lead to injustice.”
9. Citing the above citations this court had allowed the 482 Cr.P.C. application of the applicant (co-accused Durgesh Tripathi) whereby it quashed the summoning order dated 16/03/2012 passed by the C.J.M., Chitrakoot in complaint case no. 2300 of 2011 with the direction that the matter be remitted back to the court concerned to decide afresh in view of what had been stated in the said judgment.
10. The learned counsel for the opposite party no. 2 has relied upon the judgment of Hon’ble Supreme Court delivered in criminal appeal no. 129 of 2013, Inspector of Police and another vs Battenapatla Venkata Ratnam and another and connected appeals delivered on 13/04/2015 in which the question dealt with was whether sanction under sections 197 of the Code of Criminal Procedure, 1973 was required to initiate proceedings in respect of offences under sections 420, 468, 477A, 120 B read with sections 109 of the Indian penal Code and it was held that the alleged indulgence of the officers in cheating, fabrication of record and misappropriation could not be said to be in discharge of their official duty. Their official duty was not to fabricate records or permit evasion of payment of duty and cause loss to the revenue. Unfortunately, the High Court missed these crucial aspects. The learned Magistrate had correctly taken the view that if at all the said view of sanction was to be considered, it could be done at the stage of trial only. The other citation relied upon by the learned counsel of the O.P. No. 2 is the judgment of Hon’ble Supreme Court in Criminal Appeal No. 579 of 2019 arising out of SLP (Crl.) No.
21 of 2000, Devendra Prasad Singh vs State of Bihar and another, delivered on 02/04/2019 in which it was held that the rigour of section 197 of the Cr. P.C. would be attracted only when the alleged offence against a Government servant had some nexus or relation with the discharge of his official duties. Citing those rulings, the learned counsel for the opposite party no. 2 mainly argued that in the matter of co-accused Durgesh Tripathi the quashing of summoning order was done only on account of non-fulfilment of the mandatory provision of Section 197 Cr.
P.C. which mandated that prior approval and sanction from the Government was required in case the prosecution of a public servant, but the said order was erroneously passed against the law cited above as there was no nexus of the offence alleged to have been committed by the said Government servant with the discharge of his official duties as a Government servant.
11. I do not agree with the line of argument which has been advanced by the learned counsel for the opposite party no. 2 because the quashing of the impugned order in 482 application no. 11335 of 2012 was not solely done on the basis of non-compliance of the provision of Section 197 Cr.P.C., rather it was found by the Court that the alleged act of embezzlement of amount on the basis of forged documents and forged signatures of the complainant was stated to have taken place between 2006 to 2011 while the said allegation was not found substantiated due to lack of any documentary evidence such as enquiry report/audit report etc.. It is true that the provision of Section 197 Cr. P.C. cannot be held to be applicable where the public servant is alleged to have committed the offence of fabrication of record or misappropriation of public funds etc. as the said act cannot by any stretch of imagination be interpreted to mean that the said Government servant acted in discharge of his official duty. It could not be an official duty of a public servant to fabricate false records and misappropriate the public funds etc. in furtherance of the discharge of his official duty. In the present case the allegation is made that the accused were involved in withdrawal of salaries by using forged signature of the opposite party no. 2/complainant and by preparing forged documents, such kind of fact can never be treated to be having any nexus with the discharge of official duty of a Government servant. But I find that in the complaint itself it has been mentioned by the opposite party no. 2 that all those documents which he has suspected to have been forged and fabricated in order to draw the salary of the teaching staff and non- teaching staff of the said school with the aid of forged signature of the opposite party no. 2 were not in custody of the O.P. no. 2 and that the same required investigation. The trial court appears to have held the primafacie case proved on the basis of oral evidence of the complainant as well as 2 other witnesses, without having produced any such document which according to be O.P. No. 2 were forged by the accused applicant. He has got away easily by saying that such documents were not in his possession as the same were to be found in possession of the accused, but it cannot be presumed on that basis that the said documents being in possession of the accused were forged and fabricated unless a detailed enquiry was conducted in this regard from the side of prosecution as to whether any such document which is alleged to have been forged was actually forged. The signature of opposite party no. 2, which he has alleged to have been forged by the applicants in order to draw the amount of salary bills also needed to be a specifically proved by the help of handwriting experts etc. as to whether the said documents contained any forged signatures of the O.P. no. 2 so as to substantiate the complainant’s version. Till this evidence was gathered, it looks to this court that proper enquiry does not appear to have been conducted by the trial court and yet the accused applicants have been summoned. The trial court could have summoned all those documents which are stated to be in possession of the accused by the opposite party no. 2 and an expert opinion could also have been obtained by it with respect to the forgery committed in those documents but without having obtained such evidence it was not appropriate for the trial court to have summoned the accused applicants under the above-mentioned sections. The trial court could also have taken assistance of enquiry by police under Section 202 Cr. P.C. in this regard but that also does not appear to have been done. In view of above I do not see it proper to hold that prima facie case is made out against the accused- applicants solely on the basis of oral evidence of the complainant and 2 other witnesses examined by the trial court.
12. Therefore I am of the opinion that the impugned order deserves to be set aside and it is accordingly set aside with direction to the trial court that it shall decide the matter afresh in accordance with law as has been observed in the body of this judgment expeditiously within a period of 3 months.
13. Application is accordingly, disposed of.
Order Date :- 28.08.2019 AU h