Allahabad High Court
Smt. Renu Verma vs The State Of U.P And Another on 4 February, 2020
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Case :- U/S 482/378/407 No. - 1424 of 2011 Applicant :- Smt. Renu Verma Opposite Party :- The State of U.P and another Counsel for Applicant :- Dilip Kumar, Gaurav Misra, Ishan Baghel, Parmanand Sharma, Rajiv Gupta, Rajrshi Gupta, Rama Pati Shukla Counsel for Opposite Party :- Govt. Advocate Hon'ble Dinesh Kumar Singh, J.
1. The present petition under Section 482 Cr.P.C. has been filed for quashing of the entire proceedings of Special Trial No. 3 of 2011, State Vs. Renu Verma, pending in the Court of Special Judge, Anti Corruption, Gorakhpur, under Sections 120-B, 420, 467, 468 and 471 IPC and Section 7/12/13 (1)(d) and 13(2) of Prevention of Corruption Act, arising out of charge-sheet No.2 of 2010 dated 15.12.2010. Further prayer has been made for setting aside the orders dated 17.1.2011 and 17.2.2011 passed by the Special Judge, Anti Corruption, Gorakhpur taking cognizance and summoning the petitioner.
2. The petitioner is a qualified doctor having degrees of M.B.B.S. and Master of Surgery in Gynecology from Moti Lal Nehru Medical College, Allahabad. After obtaining the qualification, she joined the Provincial Medical Service of the State Government. However, subsequently she resigned from the Government service and started her own independent practice.
3. It appears that in the year 1991, the petitioner established a Nursing Home in the name and style of M/s Tanuj Nursing Home at Pratapgarh. The petitioner applied for license under Rule 61(1)(2) of the Drugs and Cosmetics Rules, 1945 for having a pharmaceutical shop at the Nursing Home. The said application was made to the Chief Medical Officer, Pratapgarh.
4. Two licenses in Forms 20 and 21 of Rule 61(1)(2) of the Drugs and Cosmetics Rules, 1945 were issued to the petitioner for running a medical store on 17.4.1995. It is stated that the said licenses were issued in the name of the petitioner being an active partner of M/s Shail Medical Store, Katra Road, Civil Lines, Pratapgarh. The said firm was registered under the Uttar Pradesh Sales Tax Act/Uttar Pradesh Trade Tax Act having registration No. PG0048242. It is the case of the petitioner that in the drug license the name of qualified person was shown as Jagjivan Ram. The petitioner did not mention the name of Jagjivan Ram as she herself was a qualified person and, she was running her Nursing Home in the same premises, where the medicines were to be stored and to be given to the patients under the prescription. The aforesaid licenses were granted for a period from 17.4.1995 to 31.12.1996. It is stated that the petitioner informed the licensing authority that Ram Kumar Agarwal was working as Pharmacist having Registration No.10921 dated 2.1.1979. Accordingly, an application was given to the licensing authority to the effect that instead of Jagjivan Ram, name of Ram Kumar Agarwal be substituted. It is also said that reminder was also sent for correction of the pharmacist on 15.12.1995. The prosecution, however, denied these letters to have been received in the office of the Chief Medical Officer.
5. On 1.1.1997, the renewal of the licence for medical store was granted having the same mistake i.e. instead of name of Ram Kumar Agarwal as the person in-charge of the medical store, name of Jagjivan Ram was finding place in the renewal license. The petitioner has further stated that in the renewal application, a notarized affidavit of Ram Kumar Agarwal, Pharmacist was also submitted on a stamp paper. A copy of the notarised affidavit has been placed on record. On 28.5.2002, the medical store in the Nursing Home for which the license was granted, was closed and this was duly informed to the Sales Tax Department. No application was made, thereafter, for renewal of the license.
6. In the meantime, an FIR at Case Crime No.1159 of 1998 came to be registered on 22.08.1998 at Police Station Kotwali, District Pratapgarh against four officials, one Clerk working in respect of the drug license matters, two Deputy Chief Medical Officers and Chief Medical Officer under Sections 120-B, 420, 467, 468, 471 IPC and Section 13(1)(d) read with Section 13(2) of The Prevention of Corruption Act. It was alleged that Gaya Prasad Pandey, Drug Clerk took money and issued licenses to 12 medical stores, including one granted to the petitioner. The other officials were also involved in the commission of the offence. The investigation was conducted and the Investigating Officer had filed a charge-sheet chart along with list of witnesses to say that who were the persons to witness the incident of taking of the money in respect of giving drug licenses.
7. This Court stayed the arrest of the petitioner till filing of the charge sheet. On 15.12.2010 charge sheet was submitted against the accused, including the petitioner. However, the Chief Medical Officer was exonerated. Learned Special Judge took cognizance of the offence on 17.1.2011 and summoned the accused, including the petitioner vide order dated 17.2.2011. The petitioner approached this Court by filing the present petition under Section 482 Cr.P.C. impugning the charge sheet and the order of cognizance and issued summons.
8. This Court vide order dated 29.3.2011 had passed an interim order that no coercive action should be taken against the petitioner.
9. Sri I.B. Singh, learned Senior Advocate assisted by Mr. Ishan Baghel, learned counsel for the petitioner has submitted that the petitioner informed the clerk of the Chief Medical Officer about not knowing anyone by the name of Jag Jivan Ram as a person qualified on the perusal of license issued under Forms 20 and 21 of Rule 61(1)(2) of the Drug and Cosmetics Rules, 1945 and all the conditions mentioned under the said rules are complied with. The said corrections were promised by the clerk, Gaya Prasad. Also, the applicant sent a reminder letter of intimation on 15.12.1995 but no information was received from the office of the Chief Medical Officer after which the applicant approached the license clerk for the correction of original license. Furthermore, business of M/s Shail Medical store commenced with effect from 01.04.1996 under the terms and conditions of the licenses and an application was intimated to the office of the Chief Medical Officer for informing about deputing Ram Kumar Agarwal as the person in charge.
10. The petitioner subsequent to renewal of license from 1.01.2001 to 31.12.2002 moved an application on 20.12.2000 along with duly sanctioned treasury challan dated 19.12.2000 with pharmacist certificate of Ram Kumar Agarwal. It was promised to be corrected, but failure of the same after various reminders and applications and the medical store was closed in year 2002. It was also argued that the license has been granted in favour of M/s Shail Medical store on her application and the conditions of license issued under Forms 20 and 21 of Rule 61(1)(2) of the Drug and Cosmetics Rules, 1945 has been completely abided.
11. The arguments advanced by the learned AGA are refusal of letters from the revisionist. Also, it is alleged that the petitioner is using the name of Jagjivan as the in-charge to save herself as she never informed about the situation and requested to change the name of the in-charge on the licence through letters or otherwise. It is also argued that there is no evidence by the revisionist prior to the lodging of the FIR as to the employment of Ram.
12. I have considered the facts and circumstances of the case, evidence on record and the submissions advanced by the parties carefully.
13. Rule 64 of the Drug and Cosmetics Rules, 1945 provides conditions to be satisfied before a licence in form [20, 20-B, 20-F, 20-G, 21 or 21-B] is granted (or renewed). The conditions include that the shop in pursuance of the licence granted is to be in-charge of a competent person who is a registered pharmacists or who has passed the matriculation examination or is equivalent with four years' experience in dealing with drugs (or who holds a degree of a recognized University with one year's experience in dealing with the drugs) and also the premises should not be less than 10 sq. mtrs.
14. In the present case, the petitioner was herself a fully qualified medical practitioner as she was a Master of Gynecology. It does not appeal to reason why she would give name of a fictitious person, Jagjeevan Ram as a qualified person to run the shop under licence issued by the Department. It appears that she was asked by the office of the C.M.O to sign the already prepared form for granting the licence. She was fully qualified and believing the representation by the office of the Chief Medical Officer, she signed the application. The application submitted by the petitioner in pursuance of the licence for medical shop reveals that her qualification was mentioned to be intermediate, that too is handwritten in a typed application.
15. There is nothing on record to suggest that she has paid bribe to the officers of the C.M.O office to run a medical shop at her Nursing Home. Provisions of the Prevention of Corruption Act, 1988 cannot be attracted without there being sufficient, cogent and credible evidence available on record. The fact remains that the petitioner herself is qualified to obtain a licence for running a medical shop and there is no evidence of her paying bribe to any officers of the C.M.O office and the charge-sheet was filed against her without their being any credible evidence against her.
16. In the proceedings filed by the petitioners against the other accused, it has been informed at the Bar that the charges have not been framed yet. The criminal proceedings should not be set in motion as a matter of course. If the conviction of an accused is not even remotely possible, the proceedings ought to be quashed.
17. If continuation of the proceedings would not lead to any conviction of the accused, it would only result in harassment of the accused and the same should be quashed. The Supreme Court in the case of Devendra & Ors. Vs. State of Uttar Pradesh & Anr., (2009) 7 SCC 495 has observed the powers under Section 482 Cr.P.C. in paragraph 26 as under :-
".... When the allegations made in the first information report or the evidences collected during investigation do not satisfy the ingredients of an offence, the superior courts would not encourage harassment of a person in a criminal court for nothing".
18. In the present case, there is no such material on record to satisfy the dishonest inducement on the part of petitioner as the petitioner filed various applications for change of name of the pharmacist and the same had receiving by the Clerk of the office of the Chief Medical Officer, Pratapgarh. Along with that, various reminder letters were also filed by the petitioner before the FIR was lodged which failed to show the dishonest or fraudulent intention. The Supreme Court in the case of G.V. Rao v. L.H.V Prasad and others, (2000) 3 SCC 693 in paragraph 7 held as under :-
"There should have been inducement, either dishonestly or fraudulently, and because of such inducement, the person induced should have done or omitted to do something which she would not have otherwise done or omitted to do."
19. In the offence of cheating, from bare perusal of the Section 415 IPC, this Court observes that there are two elements in the offence of cheating, namely deception or dishonest intention to do or omit to do something and in the present case, petitioner has no reason to forge the documents which can be concluded from the qualification of the actual pharmacist as well as applications filed to the office of the Chief Medical Officer on various occasions.
20. Adjudicated on the benchmark principles noted above, the present case, in my judicial view warrants interference inasmuch as the ingredients of the offence of cheating punishable under Section 420 IPC and its allied offences under Sections 467, 468 and 471 are not made out. The continuation of the proceedings will increase the burden on the judicial machinery and would not warrant any justice.
21. With regard to quality of evidence requisite for establishing charge of conspiracy, it has been observed by the Supreme Court in the case of State of Kerala Vs. P. Sugathan and another (2000) 8 SCC 203 in the para 12 as under:-
" .... A few bits here and a few bits there on which the prosecution relies cannot be held to be adequate for connecting the accused with the commission of the crime of criminal conspiracy. It has to be shown that all means adopted and illegal acts done were in furtherance of the object of conspiracy hatched. The circumstances relied for the purposes of drawing an inference should be prior in time than the actual commission of the offence in furtherance of the alleged conspiracy."
22. Applying the aforesaid legal principles enumerated by the Supreme Court, it is observed that there is no evidence collected by the prosecution to showcase any conspiracy or agreement between the petitioner and main accused persons either to do any illegal act or legal act through illegal means. The regular intimation of the default on the part of the office of the Chief Medical Officer infers the absence of any conspiracy on part of the petitioner. The offence under Section 120-B IPC does not meet the basic ingredients by the charge-sheet as there is no evidence against the allegations to make out a case thereunder.
23. The Supreme Court in the case of State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp. (1) SCC 335 in para 111 has held that "Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused."
24. Analyzing the averments in the final report in entirety and accepting the allegations to be true, the ingredients of the Prevention of Corruption Act on the part of the accused right at the beginning or subsequent to the application for drug license has neither been expressly stated nor indirectly suggested in Final Report.
25. The offences charged under Sections 7, 12, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act are not made out as the petitioner is not a public servant and the charges were not altered which were originally charged for the main accused persons in their public duty as public servants. Moreover, the investigating officer failed to bring any evidence on record to prove the alleged offences. Although, Section 420 IPC could have been the only offence against the petitioner prima facie but due to lack of evidence on record, the same is not made out. Furthermore, there is no credible evidence to prove the allegations of preparation as well as furnishing any fictitious documents or affidavit for obtaining license.
26. Once the final report was submitted under Section 173 of the Cr.P.C, normally the accused, if aggrieved by the Final Report shall be relegated to approach the Magistrate for discharge but in the present case, looking at the time lapse since the filing of the charge-sheet, the Hon'ble Court finds no reason to send it again for discharge to lower Court and harass the petitioner after prolonged period of time.
27. In light of the aforesaid discussion, the petition is allowed and the entire proceedings of Special Trial No.3 of 2011, State Vs. Renu Verma, arising out of Case Crime No.1159 of 1998, pending in the Court of Special Judge, Anti Corruption, Gorakhpur, under Sections 120-B, 420, 467, 468 and 471 IPC and Section 7/12/13 (1)(d) and 13(2) of Prevention of Corruption Act and, the charge-sheet No.2 of 2010 dated 15.12.2010 and also the orders dated 17.1.2011 and 17.2.2011 passed by the Special Judge, Anti Corruption, Gorakhpur are hereby quashed qua the petitioner only. It is apprised that any observation made in this order shall not have any bearing on the prosecution case qua the other accused persons.
( Dinesh Kumar Singh, J. ) Order Date:- 4th February, 2020 *** Rao/-