1. The present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure has been preferred by the applicant herein, who has been arraigned as an accused subsequently, to quash and set aside the impugned Criminal Case No. 950/2008 pending in the Court of learned Metropolitan Magistrate, Court No. 5, Ahmedabad.
2. The facts leading to the present Criminal Miscellaneous Application in a nutshell are as under;
2.1. Initially one FIR came to be lodged by respondent no. 2-original complainant against one Chitranjanbhai Shankar Vaidya and Krishnakanth Jasubhai Amin with Karanj Police Station for the offence punishable under Sections 403, 406, 409, 120(B) and 114 of the Indian Penal Code for misappropriation of an amount of Rs. 35,000/-, which was received by them by way of donation. The said FIR came to be investigated by the Investigating Officer and the original accused came to be chargesheeted and the chargesheet came to be filed by the concerned Investigating Officer. It is required to be noted that in the said chargesheet the applicant was cited as a witness. Thereafter, the trial against the original accused persons was proceeded further and witness summons came to be issued against respondent no. 2-original complainant and at that stage respondent no. 2-original complainant submitted an application for further investigation under Section 173(8) of the Code of Criminal Procedure by submitting that at the relevant time the applicant was Clerk cum Accountant, who was writing the accounts and initially an entry was made that the said amount has been deposited by original accused no. 1-Chitranjanbhai, however, subsequently, the same was removed and, therefore, it was alleged that the applicant has also committed the offence and/or abetted other accused persons, who has committed the offence for which they are chargesheeted. It is submitted that at the relevant time, the Investigating Officer has not recorded the statement of the applicant properly and, therefore, it was requested for further investigation. It is required to be noted that in the meantime, from the date of the chargesheet till the said application was given, there was dispute with the trust and the services of the applicant was terminated and thereafter she was again taken back on duty. Thereafter, the aforesaid application came to be submitted and the learned Magistrate passed an order for further investigation under Section 173(8) of the Code of Criminal Procedure and directed the concerned Investigating Officer to submit the report. It appears that thereafter there was further investigation carried out by the Investigating Officer. Even necessary entry in the books of accounts was also sent to the handwriting expert and in the FSL report it is stated that the entry is not in the handwriting of the applicant. The Investigating Officer had submitted supplementary chargesheet against the applicant and consequently the case is registered against the applicant, being Criminal Case No. 950/2008 and the applicant is being tried. Being aggrieved and dissatisfied with the impugned FIR, the applicant, who has been arraigned as an accused subsequently, has preferred the present Criminal Miscellaneous Application under Section 482 of the Code of Criminal Procedure.
3. Shri R.J. Goswami, learned advocate appearing on behalf of the applicant has vehemently submitted that as such the applicant has not committed the offence as alleged. It is submitted that even nothing has been found against the applicant that she has abetted other accused persons for misappropriation. It is submitted that on the contrary the applicant was threatened by the accused persons, who were at the relevant time trustees and even the handwriting experts opinion is also against the prosecution. It is submitted that thereafter there was dispute with the trust with respect to her services with a malafide intention and, therefore, it is submitted that when there is no material against the applicant at all, to continue the criminal proceedings against the applicant would be unnecessary harassment to her and the same shall be abuse of process of law and Court and, therefore, it is requested to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned criminal proceedings so far as the applicant is concerned.
4. Shri K.L. Pandya, learned APP has appeared on behalf of the State and the Investigating Officer. He has produced the relevant chargesheet papers before this Court for the perusal of the Court. However, he is not in a position to point out anything by which it can be said that the applicant has committed any offence as alleged and/or has abetted the accused persons for misappropriation for which they are chargesheeted. He is also not in a position to dispute that as such the handwriting experts opinion from the FSL is in favour of the applicant and it has been found that the alleged entry was not in her handwriting.
5. Shri Gondalia, learned advocate has appeared on behalf of respondent no. 2-original complainant. He is also not in a position to dispute the above. He is also not in a position to show any material and/or evidence collected by the Investigating Officer collected during the course of the investigation by which it can be said that the applicant has committed the offence as alleged and/or has abetted other accused persons for misappropriation .
6. Having heard the learned advocates appearing on behalf of the respective parties and considering the facts narrated hereinabove, it appears to the Court that because of some internal dispute between the applicant and the trust with respect to her service, subsequent application has been given by respondent no. 2-original complainant to implicate the applicant. It is required to be noted that as such in the Complaint the applicant was not arraigned as an accused. It is also required to be noted that after the investigation the Investigating Officer submitted the chargesheet in the year 2008 and the applicant was cited as witness. Only after some dispute between the applicant and respondent no. 2-original complainant that too after a period of 2 ½ years the original complainant has tried to implicate the applicant. Even on merits also there is no material and/or evidence collected by the Investigating Officer during the course of the investigation by which it can be said that the applicant has misappropriated and/or has abetted other accused persons for misappropriation for which they are chargesheeted. It is also required to be noted that even the handwriting experts opinion given by the FSL is also in favour of the applicant and it is specifically found that the alleged entry is not in the handwriting of the applicant. Under the circumstances, to continue the criminal proceedings against the applicant would be unnecessary harassment to her and the same shall be abuse of process of law and the Court. Under the circumstances, this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure.
7. In view of the above and for the reasons stated hereinabove, the present application succeeds and the impugned Complaint, being Criminal Case No. 950/2008 pending in the Court of learned Metropolitan Magistrate, Court No. 5, Ahmedabad is hereby quashed and set aside. However, the same shall be without prejudice to the rights and contentions of the prosecution against other accused persons, who are facing the trial and the learned trial Court to proceed further with the trial against other accused persons in accordance with law and on its own merits, without, in any way, being influenced by the present order, which would be qua the applicant herein only. Rule is made absolute accordingly.
(M.R.
SHAH, J.) siji