Allahabad High Court
Rajeev Sharma vs State Of U.P. And Others on 14 May, 2019
Equivalent citations: AIRONLINE 2019 ALL 1358, (2019) 4 BANKCAS 526
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 47 A.F.R. Case :- APPLICATION U/S 482 No. - 12338 of 2004 Applicant :- Rajeev Sharma Opposite Party :- State Of U.P. And Others Counsel for Applicant :- A.K. Gupta,J.P. S. Chauhan Counsel for Opposite Party :- Govt. Advocate,Amit Hon'ble J.J. Munir,J.
1. This Application under Section 482 Cr.P.C. has been filed by Rajeev Sharma, one time Branch Manager, Bank of Baroda, Station Road Branch, Najibabad, District Bijnor. At the time of filing this Application, the Applicant was posted as Branch Manager, Ossian Plaza Branch, Bank of Baroda, Sector 18, NOIDA, District Gautam Budh Nagar. By this Application, he has sought to quash the criminal complaint giving rise to Complaint Case no.1586 of 2003, Sri Krishna Gupta vs. Rajeev Sharma, and the summoning order dated 26.07.2003 passed by the Judicial Magistrate, Najibabad, District Bijnor in the aforesaid case, under Sections 218 and 219 IPC. The complaint and all proceedings arising from it, that are hereinafter referred to as the impugned proceedings, were brought by opposite party no.2, Sri Krishna Gupta. Sri Krishna Gupta is now no more.
2. A question arose as to what would be the fate of the impugned proceedings, the sole complainant being dead. This issue arose as the impugned proceedings arise out of a complaint, and not a case instituted on a police report. This Court before proceeding to hear the present Application, dealt with the issue vide order dated 05.02.2019, thus:
"It is noticed that the issue about a person aggrieved being permitted to conduct the prosecution in the event the complainant were dead, is permissible under Section 302 Cr.P.C. The permission to conduct a prosecution can be granted to any person other than a police officer, below the rank of Inspector. The issue fell for consideration of the Hon'ble Supreme Court in Chand Devi Daga & Ors., Vs. Manju K. Kumatini & Ors., (2018)1 SCC 71. In the said case, after consideration of the provisions of Section 256 Cr.P.C. and 302 Cr.P.C., their Lordship's were of opinion that the heirs of a deceased complainant are competent to prosecute a criminal miscellaneous petition before the High Court, which in that case was a petition under Section 482 Cr.P.C."
3. In view of the aforesaid position of law, this Court made vigorous efforts to reach out to the heirs of the deceased complainant, opposite party no.2. The Agency of the learned Chief Judicial Magistrate and the Superintendent of Police, Bijnor was put to much strain for the purpose. It has come on record that the only legal heirs of the deceased complainant traced out are his grandson, Atul Gupta and his grandson's wife, Meena Gupta. The learned A.G.A. was required to enquire from the aforesaid heirs of the complainant if they were interested to pursue it. The learned A.G.A. sent a Memo no.3559, dated 25.02.2009 to the Superintendent of Police, Bijnor requiring him to find out whether the complainant's grandson was minded to pursue the complaint. Learned A.G.A. did not receive any response from the Superintendent of Police, Bijnor. Thus, on 29.03.2019, this Court was left with no alternative but to proceed with the hearing of this Application with the assistance of the learned counsel for the Applicant and the learned A.G.A. on behalf of the State; judgment was reserved on 29.03.2019. It must also be placed on record that before the hearing this Application had come to be dismissed in default on 07.03.2005, and Misc. Restoration Application no.58005 of 2005 to recall the said order was made within seven days, on 14.03.2005. The said restoration application had not been allowed all along. It was allowed by an order of 29.03.2019, recorded on the restoration application separately, before the matter proceeded to hearing.
4. That facts giving rise to the present Application are thus: the Applicant was posted as the Branch Manager at the Najibabad Branch of the Bank of Baroda, District Bijnor in the year 2002. An Account with an abbreviated description called FDRMPM A/c, bearing no.767 was opened with the Bank of Baroda, Najibabad Branch on November 20, 1996. It was opened on the basis of a resolution of a Company, going under the name and style of Rama Paper Mills Ltd., Keeratpur, Bijnor. This resolution was passed by the Company on 05.11.1996. At that time, the Applicant was not posted as the Branch Manager at the aforesaid Branch. The complainant/ opposite party no.2, Sri Krisna Gupta, since deceased, who shall be hereinafter referred to as the ''complainant' filed a complaint case bearing no.466 of 2002 against a certain Pramod Goel, another Baliram, still another Vipn Kumar, besides Ramesh Chand Jain and Arun Goel, under Section 138 of the Negotiable Instruments Act. In the said case, a summoning order was passed against the accused on 12.10.1999. All the five accused summoned in Complaint Case no.466 of 2002, preferred by the complainant, that is to say, Vipin Kumar, Pramod Goel, Baliram and Ramesh Chand Jain made an application to set side the summoning order dated 10.12.1999. The said application was allowed, by all accounts by the Magistrate, and the summoning order dated 12.10.1999 against these four accused was set aside. The complaint as against them was dismissed - all by an order dated 04.07.2002. It appears from a perusal of paragraph 7 of the counter affidavit filed in opposition to the present application by the complainant that he challenged the order dated 04.07.2002, dismissing the complaint against four of the five accused in the case under Section 138 of the NI Act, vide Application u/s 482 Cr.P.C. no.6876 of 2002. The record of proceedings of the aforesaid application shows that Application u/s 482 6876 of 2002 has come to be dismissed for non-prosecution vide order dated 05.04.2013, and has not been restored till date.
5. It was, however, found by the learned Magistrate, seized of Complaint Case no.466 of 2002, under Section 138 of the NI Act that Arun Kumar Goel alone was responsible to the Company for the conduct of its business, and that other Directors were not responsible. Thus, Arun Kumar Goel's summoning was maintained. Sri Naresh Kumar Agrawal, Advocate sought certain information from the Applicant regarding Account no.767 of Rama Paper Mills Ltd., Keeratpur, Bijnor, amongst which there was specific information sought that the Applicant furnished on 25.06.2002. In the said information, it was mentioned that regarding operation of the Bank Account in question, the instructions of operation were that either Sri Pramod Kumar Goel, Managing Director or Sri Arun Goel, Director will operate the said Account. The further information provided was that the Account Openiing Form was signed by Mr. Arun Goel, Director; that in response to another information sought by Sri Naresh Kumar Agrawal from the Applicant as regards Account no.767 of Rama Paper Mills Ltd., the Applicant, in his official capacity as the Branch Manager, provided the same to the effect that the Account Opening Form was signed by the Chairman-Managing Director, Pramod Kumar Goel and the Executive Director, Arun Kumar Goel. This information was supplied by the Applicant by endorsing ''Yes' in answer to a specific question framed by Sri Naresh Kumar Agrawal, Advocate, Civil Court, Najibabad, in his enquiry to the following effect:
"क्या रामा पेपर मिल्स लि0 कीरतपुर का Current Account No. 767 दिनांक 20-11-96को बैंक आँफ बड़ोदा की नजीबाबाद शाखा में F.D.R. R.P.M. A/c के नाम से खोला गया -
1. जिसमें Account Opening Form पर Chairman Cum Managing Director प्रमोद गोयल एवं Executive Director अरुण गोयल के हस्ताक्षर हैं।
हाँ"
6. It is said by the Applicant that in due course, he was transferred from District Bijnor to NOIDA, then falling in the District of Ghaziabad. The impugned proceedings were initiated against the Applicant on allegations that the complainant had filed Complaint Case no.866 of 1999, Sri Krishna Gupta vs. Pramod Kumar Goel and others. In that case, four of the five accused, except Arun Goel were discharged by the Court vide order dated 04.07.2002, relying on the information supplied by the Applicant who was the Branch Manager of the Bank, where he gave certain information with regard to opening of FDRMPM A/c no.767. According to the complainant, the four other accused were discharged by the Court because the Applicant mentioned in one of the two informations that the Account Opening Form was signed by Arun Goel alone, whereas in the subsequent information, he has come out to say that it was jointly signed by Pramod Kumar Goel and Arun Goel. On the said basis, it was alleged in the complaint giving rise to the impugned proceedings, that the Applicant gave incorrect information deliberately in connivance with the accused of Complaint Case no.866 of 1999 with intent to cause injury to the complainant and save the accused from legal punishment. This according to the complainant renders the Applicant liable to be punished under Sections 218 and 219 IPC.
7. The learned Magistrate, before whom the matter came up, after going through the statement of the complainant under Section 200 Cr.P.C. and documents, being a copy of the order dated 24.06.2002, and a Photostat copy of the information supplied in question-answer form by the Bank, proceeded to summon the Applicant to stand his trial for the offences punishable under Sections 218 and 219 of the Penal Code.
8. Aggrieved, the present Application seeking to quash the impugned proceedings has been filed.
9. Heard Sri J.P.S. Chauhan, learned counsel for the applicant and Sri Indrajeet Singh Yadav, learned A.G.A. on behalf of the State and perused the record.
10. Learned counsel for the Applicant has submitted that the discharge order dated 04.07.2002, or whatever kind of order it was exonerating four of the five accused, who were initially summoned in Complaint Case no.466 of 2002, was based on the premise that there was no evidence to show that the alleged offence was committed, in collusion with the other accused. The Magistrate in that case relied on the resolution of the Company, and not on the information given by the Applicant. It was further urged that the Applicant furnished information in all bona fides without any culpable intent on his part. He submits that if there was any doubt, the complainant could have got the record of documents filed in Complaint Case no.466 of 2002 summoned, which would have clarified the issue. There is absolutely no basis to file the complaint, which is patently mala fide. It is also urged that assuming that all allegations are true, no offence under Section 219 IPC is made as the Applicant never gave any report, order, verdict, or decision at any stage of a judicial proceeding, knowing it to be contrary to law. He submits that the ingredients of Section 219 IPC are not at all made out ex facie. It is urged most strenuously by the learned counsel for the Applicant that the impugned proceedings have been brought for the sake of harassing the Applicant, out of some misdirected malice and ill-will, harboured by the complainant.
11. The learned A.G.A. has submitted, relying on the counter affidavit filed on behalf of the complainant, that the offences charged are clearly made out. He has drawn the attention of the Court to paragraph no.2 of the counter affidavit where it is specifically asserted that the information asked from the Applicant on 24.06.2002, was to the effect whether FDRMPM Current A/c no.767 was being operated by Sri Arun Goel, Director, or Pramod Kumar, Managing Director, to which the Applicant replied, ''Yes', Account Opening Form is not signed by Sri Arun Kumar Goel, and again on 12.07.2002 when information was sought whether both, Sri Arun Goel and Sri Pramod Kumar Goel, have signed the Account Opening Form of FDRMPM Current A/c no.767, it was replied, ''Yes' both have signed. The learned A.G.A. has drawn the attention of the Court to the summoning order, where the Magistrate has referred to these informations furnished by the Bank, to conclude against the Applicant. Sri Indrajeet Singh Yadav, learned A.G.A. has further drawn the attention of the Court to paragraph no.3 of the counter affidavit where it is urged that information given by the Applicant on 24.06.2002 led the Magistrate to discharge Pramod Goel, Baliram, Vipin Kumar and Ramesh Chand Jain in Complaint Case no.466 of 2002, whereas Current Account no.767 was signed by both, Arun Goel and Pramod Kumar Goel. It is further said that the Applicant, Rajeev Sharma has deliberately withheld the information, as he had colluded with Pramod Kumar Goel.
12. This Court has given a thoughtful consideration to the rival contentions. So far as the offence under Section 219 IPC is concerned, the same is not made out on a bare reading of the complaint, giving rise to the impugned proceedings. Section 219 IPC reads as under:
"219. Public servant in judicial proceeding corruptly making report, etc., contrary to law.--Whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order, verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both."
13. Apparently, the information that was furnished by the Applicant on 24.06.2002 was under the Right to Information Act, or may be under some other public information mechanism, which does not at all show that it was ever given by him being a public servant by way of a report, order, verdict, or decision at any stage of a judicial proceeding. The information was furnished without the purpose of the same being to serve as a report in the course of judicial proceedings. Of course, there is no question of a Bank Manager pronouncing an order, verdict, or decision in the course of a judicial proceeding. The closest that the matter could come to the ingredients of Section 219 IPC would be a report, but the information supplied by the Applicant, does not show it to be a report made at any stage of a judicial proceeding. It is just an information supplied, under whatever statutory obligation to a member of the public, may be an Advocate. The memorandum of information does not indicate to its face that the person seeking the information intended to use it during the course of a judicial proceeding, which clearly leads to the inference that the ingredients of Section 219 IPC are not at all made out, even if all allegations in the complaint giving rise to the impugned proceedings are to be accepted as they stand.
14. So far as the other offence under Section 218 IPC is concerned, the two informations given by the Applicant, one of which is accurate that the Account Openiing Form was signed both by Arun Goel and Pramod Kumar Goel, whereas the earlier information inaccurate, in itself shows that for the worst, it may be a case of negligence in discharge of his official work by the Applicant, but it does not in any way constitute an offence under Section 218 IPC. There is no material, prima facie, in support of the impugned proceedings to show that the Applicant even knew the purpose to which the information sought would be employed. At the same time, the fact that he supplied an accurate information on a subsequent date, shows that the earlier information was the product of some callousness in appraisal of the Bank records. There is ex facie no intention of the kind to save a person from punishment for, if it were so, information in the second instance would never have been accurately given by the Applicant. Rather, it shows that the person who sought the information selectively used the one favourable to him before the Court, seized of the Section 138 NI Act proceedings, in order to ensure a discharge, or recall of the summoning order against four of the five accused there. This is not to say that the Magistrate discharged or set aside or recalled his order in the Section 138 NI Act proceedings at the instance of the complainant on account of the information issued by the Applicant. The Applicant has contended that it was on some other basis, but this Court is not inclined to go into those questions. A similar issue arose before their Lordships of the Supreme Court in Rishipal Singh vs. State of U.P. and another, (2014) 7 SCC 215. In that case too, the accused/ appellant was a Branch Manager and crux of the allegations against him can be best gathered from paragraph 4 of the report of their Lordships' decision in Rishipal Singh (supra), which reads thus:
"4. The main allegation levelled against the appellant was that when a written information had already been given on 17-5-2004 to the appellant who was the Branch Manager of the Bank not to honour the lost cheques and cancel them, he should have performed his duties with utmost responsibility and when the stolen/lost cheque was presented, he should have given the information of its presentation to the police as well as to the complainant. On the contrary, the appellant neither handed over the person who presented the cheque, to the police, nor brought to the notice of the complainant about its presentation. It is because of the involvement of the appellant in the conspiracy he has not discharged his duties as Branch Manager with responsibility and acted against the instructions in the letter dated 17-5-2004 only to harass the complainant and his family financially and mentally. Thus the appellant played a role in the conspiracy, and therefore, the complainant lodged the complaint under the aforesaid sections of IPC against the appellant as well as other accused."
15. After an exhaustive review of authority about all that is to the exercise of powers under Section 482 Cr.P.C., their Lordships concluded thus, in paragraphs 15, 16 and 17 of the report:
"15. The facts of the case which are not in dispute, for better appreciation of the facts and arguments advanced on behalf of the appellant, it is necessary for us to have a thorough look at the letter dated 17-5-2004 addressed to the appellant Branch Manager by Respondent 2.
"Sir, It is requested that the Applicant has issued cheque book in which from Cheques Nos. 083691 to 083700 were 10 cheques in Account No. 1132, out of which, payment up to Cheque No. 083696 has been received and on rest of the cheques are signatures of the Applicant account-holder. The above chequebook and other necessary papers were in my handbag and I by bus from Pikhuwa was coming to Ghaziabad then in the bus itself by mistake that bag was left and even on making too much search could not be found. Its information immediately I have given at Police Station Sihani Gate.
Therefore, it is requested that you may treat the above cheques as cancelled and on that may not kindly make payment to any person.
It will be very kind of you."
A reading of the above letter makes it very clear that the complainant had instructed the appellant Branch Manager not to pass cheques bearing Nos. 083697 to 083700, the four cheques which were already signed. There is no dispute that after submitting the above letter to the appellant, when Cheque No. 083697 was presented in the Bank on 2-8-2004, the same was not cleared by the appellant Branch Manager in view of the letter of the complainant. Subsequently, the appellant was transferred from that branch to Dhaulana Branch on 21-8-2004, there was an instruction to the Bank to inform the account-holder or police when the cheque is presented. It appears from the letter that only a request was made to the Bank that the said four cheques shall not be honoured.
16. If we look at the complaint and the letter addressed by the complainant to the Branch Manager, the entire grievance of the complainant appears to be that based on the written information which had been given to the appellant on 17-5-2004, when the stolen cheque was presented, he should have given a complaint to the police. As the appellant has not chosen to give the complaint to the police, according to the complainant the other accused hatched a conspiracy with the appellant Branch Manager and accordingly cheated him.
17. It is no doubt true that the courts have to be very careful while exercising the power under Section 482 CrPC. At the same time we should not allow a litigant to file vexatious complaints to otherwise settle their scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold. A clear reading of the complaint does not make out any offence against the appellant Branch Manager, much less the offences alleged under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC. We are of the view that even assuming that the Branch Manager has violated the instructions in the complaint in letter and spirit, it all amounts to negligence in discharging official work, at the maximum it can be said that it is dereliction of duty."
16. No doubt, the offences charged in that case were of a different genre, but the principle applies with equal force to the impugned proceedings brought under Sections 218 and 219 IPC. Why it applies, has been discussed in some detail in the earlier part of this judgment.
17. On the facts in hand, this Court is convinced that the impugned proceedings have been brought by the complainant, who is no more and whose interest has been represented before this Court by the State as the Prosecutor of all criminal causes, that the complainant acted out of some misplaced vengeance against the Applicant in bringing the impugned prosecution. He seems to have thought that the Applicant was responsible for four of the five accused proceeded with against by him, in the complaint under Section 138 of the NI Act, going scot free; but that was apparently his personal impression. The Magistrate clearly erred in not applying his mind to the ingredients of the offence under Section 218 IPC and also to the evidence on record to find out whether indeed, an offence under Section 218 IPC was made out. The impugned proceedings to the understanding of this Court are clearly an abuse of process of Court, which ought not to be permitted to continue.
18. In the result, this Application succeeds and is allowed. The impugned proceedings giving rise to Complaint Case no.1586 of 2003, Sri Krishna Gupta vs. Rajeev Sharma, under Sections 218 and 219 IPC, P.S. Najibabad, District Bijnor, pending before the Judicial Magistrate, Najibabad, District Bijnor are hereby quashed.
Order Date :- 14.5.2019 Anoop