Gauhati High Court
Helaluddin Ahmed vs The State Of Assam And Anr on 15 September, 2020
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
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GAHC010055442020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 229/2020
1:HELALUDDIN AHMED
S/O. LT. BODORUDDIN AHMED, VILL. NAPAM BARUWATI GAON, P.O.
DEOPANI, P.S. GELAKEY, DIST. SIVASAGAR, ASSAM, PIN-785684.
VERSUS
1:THE STATE OF ASSAM AND ANR.
REP. BY PP, ASSAM.
2:L.S CHANGSAN
IAS
THE MISSION DIRECTOR OF AXOM SARBA SIKSHA ABHIJAN MISSION
KAHILIPARA
GUWAHATI-781019
Advocate for the Petitioner : MR. M U MAHMUD
Advocate for the Respondent : PP, ASSAM
BEFORE HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN JUDGEMENT AND ORDER 18.09.2020 Heard Mr M U Mahmud, learned counsel appearing for the appellant/accused as well as Mr N K Kalita, learned Addl. P.P., Assam appearing for the State/respondent No.1 and Mr. S. Bora, learned standing counsel for the SSA.
2. By filing this petition under Section 482 of the CrPC, the petitioner has sought for quashing of Page No.# 2/9 the Charge Sheet No.456/2017, dated 31.12.2017, under Sections 468/471/420/409 of the IPC, corresponding to G.R. Case No.10315/2010, submitted before the learned Chief Judicial Magistrate, Kamrup (M) at Guwahati.
3. The case of the petitioner is that on 31.12.2010, the Mission Director of the Axom Sarba Siksha Abhijan Mission (SSA), Mrs. L.S. Changsan lodged an FIR in the Dispur Police Station alleging inter-alia that fraudulent withdrawal of SSA fund had come to her knowledge from one Durga Doley of SBI of Dispur Branch, who produced a letter vide No.SSA/Acctt./Plan/17/2001/Pt-II/8244, dated 20.12.2010, addressed to the Senior Accounts Officer of the Bank Sri Nabajyoti Thakur. By that letter, it was ordered to transfer a sum of Rs.2.40 crores to the A/C. No.31543781972 of SBI, Khanapara Branch, in the name of Bimal Gogoi, Managing Director of M/s. Rongpur Construction and Suppliers Pvt. Ltd., from the SSA Account No.10821415714. The concerned letter No.SSA/Acctt./Plan/17/2001/Pt-II/8244, dated 20.12.2010 was verified in the SSA office and found that no such letter was issued from the SSA office. Being worried, the Mission Director checked the account of the SSA and found that an amount of Rs.140 lakhs was transferred to the A/C. No.30545253878 of SBI, Sivasagar Branch in the name of one Tomijuddin Ali, Managing Director of M/s. Brahmaputra Construction & Suppliers Pvt. Ltd., from the SSA Account No.10821415714. The transfer of the fund was given effect by using a letter bearing No.SSA/Acctt./Plan/17/2001/Pt-I/6922, dated 12.10.2010, shown to have been signed by the Informant as the Commissioner & Secretary to the Govt. of Assam, Education Department and Mission Director, SSA, Assam. On verification it was seen that no such instruction was issued to SBI, Dispur Branch for transfer of fund amount to Rs.140 lacs, to any individual or Private Limited firm.
4. On receipt of the FIR, the Dispur P.S. Case No.1905/2010, under Section 468/471/420/409 of the IPC and in the midst of investigation, the case was handed over to the CID for completing the investigation. After the completion of investigation, the case was charge sheeted vide Charge Sheet No.456/2017, dated 31.12.2017, under Section 468/471/420/409 of the IPC, against seven accused including the present petitioner, to stand the trial.
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5. Being aggrieved, the present petition is filed by the petitioner, by contending that the allegation made against the petitioner is totally false and fabricated. He alleged that he has been falsely implicated by the other co-accused due to personal grudge. The petitioner stated that during the investigation, the I.O. collected the bank details/ statement of accused Tomijuddin Ali, Amanullah, Raja Saikia and Smti. Jonali Saikia and the account statement of the SSA, Assam and it was found that an amount of Rs.1.40 crores have been transferred from SSA Account to the account of Tomijuddin Ali, on the basis of a forged SSA Letter bearing No. SSA/Acctt./Plan/ 17/2001/Pt-I/6922, dated 12.10.2010. Thereafter, said Tomijuddin Ali withdrew the said amount on different dates and also transferred to the accounts of Amanullah Ali (Rs.24,70,000/-), Raja Saikia (Rs.73,60,000/-) and to Kulen Das and his wife Jonali Das (Rs.45,000/-). During investigation, the I.O. found that accused Durga Doley, Service Manager of SBI, Dispur Branch did not verify the SSA Letter and also did not follow the required procedure and intentionally transferred the huge SSA amount to the accused Tomijuddin Ali and the then Asstt. Manager, SBI, Khanapara Branch, namely Rani Das were found to be involved in this case and allowed Tomijuddin Ali to withdraw the said amount. The FSL report also reveals that the SSA letter was purportedly prepared by Md. Tomijuddin, by putting forged signature of the Mission Director, SSA, Assam.
6. The petitioner further contends that the I.O. could not collect any materials against the petitioner to show that he is involved in the offence alleged except the oral testimony of the accused Tomijuddin, who was directly involved in this case. The I.O. tried to establish a nexus between the petitioner and accused Tomijuddin, only on the basis of the CCTV footage of the SBI, Khanapara Branch, wherein the petitioner was shown to be accompanied with Tomijuddin at the time of withdrawal of money, from Tomijuddin's account. Further it is contended that the petitioner lent an amount of Rs.5 lacs to Tomijuddin and for the recovery of the said amount, the petitioner was asked by Tomijuddin to collect the said amount from the bank premises of the SBI, Khanapara Branch and accordingly the petitioner accompanied accused Tomijuddin but no amount was paid to him by Page No.# 4/9 accused Tomijuddin.
7. Thus, according to the petitioner, the charge sheet submitted against him is quite illegal, having no sanction of law in absence of proper evidence and there is no chance of conviction of the petitioner, whereas, it is the accused Md Tomijuddin, who alleged to have forged the signature of the Mission Director, SSA and only on the basis of statement of co-accused, present accused petitioner cannot be robed with such offence.
8. I have considered the submissions of the learned counsel for the petitioner as well as learned counsel for the State and also the learned Standing Counsel, SSA.
9. LCR as well as the Case Diary has been produced, which I have gone through. Mr Kalita, learned Additional Public Prosecutor has submitted that from the oral as well as the documentary evidence including the CCTV footage and other relevant materials, the complicity of the present petitioner is reflected and on the basis of the evidence collected, the charge sheet has also been filed against the accused persons. There appears no any cogent reasons to interfere into the matter under challenge as the prosecution has been able to collect sufficient materials for proceeding against the accused person. The power under Section 482 CrPC cannot be invoked to resist the legitimate prosecution at the threshold and the entire matter is to be decided only on the basis of the evidence on record and authenticity of the allegation is to be tested only on trial.
10. The learned Standing Counsel for the respondent No. 2 (SSA) has vehemently objected to the prayer made by the petitioner that it is a false pretext that the petitioner has no criminal antecedent, rather he has serious criminal background, which reveals from various cases pending against him. In this regard, the petitioner has referred to Sivasagar PS Case No. 1073/2017, under Sections 120 (B)/420/409 IPC (corresponding GR Case No. 1829/2017), Sivasagar PS Case No. 155/2018, under Sections 109/420 IPC, read with Section 12 of the PC Act, to name a few. It has been urged before this Court that having regard to the incriminating materials in the Case Diary as well as the charge Page No.# 5/9 sheet, such a petition for quashing should be dismissed in limine.
11. The learned counsel for the petitioner, however, contends that in absence of positive evidence, the petitioner should not be compelled to face the criminal proceedings as there is no chance of conviction.
12. Primarily, the petitioner has challenged the prosecution case on the ground that there is no legal evidence against him and false allegation has been made by the co-accused against him out of grudge.
13. In the present case, obviously, on the basis of the allegation about serious defalcation of Government fund, the criminal law was set into motion and in due course of investigation, the complicity of the perpetrators in the offence has been made out and charge sheet has been accordingly submitted.
14. Regarding the present petitioner, it has been submitted in the charge sheet, as below:-
During investigation, it is found that one accused, namely, Helaluddin Ahmed was involved actively in the case as mastermind who made the design of the whole conspiracy of the case. In this regard, co-accused, namely, Tomijuddin Ali, Raja Saikia, Amanullah and other witnesses have stated that accused Helaluddin was the mastermind under whom they have committed the crime. Some photographs of Helaluddin and Tomijuddin, who jointly received SSA amount in cash from accused Rani Das at SBI, Khanapara Branch has been seized from the bank, which was recorded in the CCTV Camera of the SBI.
15. Thus, after detailed investigation, after recording relevant witnesses and documents and finding sufficient evidence about involvement of 7 (seven) accused persons, named in the charge sheet, including the present petitioner, charge sheet has been submitted against them. Such a finding against the accused person suggesting complicity of the present petitioner with the offence is prima facie case made out for proceeding.
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16. The petitioner, herein, has admitted his acquaintance with the accused Tomijuddin and about some transactions with him and has stated that the aforesaid transaction was purely personal between the duo but not in connection with the present case and he has been falsely implicated due to some grudge.
17. Provision under Section 482 of the Code empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court and to secure ends of justice and such power should be exercised very sparingly and with circumspection and that to in the rarest of rare cases, the extra- ordinary or inherent power do not confer any arbitrary jurisdiction on the Court to act according to its whims. The Court will not justify in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR or complaint. In Minu Kumari & Anr. Vs. State of Bihar & Ors reported in 2006 4 SCC 359, it has been held that inherent jurisdiction though wide but exercise of such jurisdiction is justified by the case specifically laid down in Section 482. Such power to be exercised to prevent the process of the Court but not to be exercised to stifle a legitimate prosecution. Further it has been held that Section 482 of the procedure does not confer any new power on the High Court. It only saves the inherent power which the Court possessed and it envisage three circumstances under which the inherent jurisdiction may be exercised, namely, (I) to give effect to an order under the Court, (II) to prevent the abuse of process of Court (III) to otherwise secure ends of justice. While exercising such power, the Court does not function as a Court of appeal or revision. Exercise of powers under the Section would be justified to quash any proceeding if it finds the initiation/continuance of it amounts to abuse of process of Court or quashing of this proceeding would serve the ends of justice.
18. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460, the Hon'ble Supreme Court laid down the principles to be considered for proper exercise of jurisdiction, particularly with regard to quashing criminal proceedings in exercise of jurisdiction under Section 397 or Section 482 and same are Page No.# 7/9 summarized as follows:-
"1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
7. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence.
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9. Another very significant caution that the Court have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of Court leading to injustice.
10. It is neither necessary nor is the Court called upon to hold a full fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
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19. In CP Subhash v. Inspector of Police Chennai, (2013) 11 SCC 559, it was once again reiterated by the Hon'ble Supreme Court that where complaint prima facie makes out commission of offence, High Court in ordinary course should not invoke its powers to quash such proceedings, except in rare and compelling circumstances.
20. In the light of the above proposition of law laid down by the Hon'ble Supreme Court for invoking the provision of Section 482 CrPC, when we turn to the present case, it is found that a prima facie has been made out against the accused person and falsity of the allegation or otherwise is a subject matter of trial and the Court at this stage, cannot appreciate the evidence collected by the prosecution, whether the case will end in acquittal or conviction. This Court cannot hold an enquiry to ascertain the authenticity of the allegation or the meticulous examination of evidence for exercising the power under Section 482 CrPC. Such a power cannot be invoked as a matter of rule, but as an exception with circumspection and with care and caution. The petitioner, herein, has to prove his own Page No.# 9/9 assertion that the accused Tomijuddin took an amount of Rs. 5 lacs from him and as has been asked by said Tomijuddin, he went to him to collect the money, but still it remained unpaid. It is purely a disputed fact and is to be tested in course of trial only, whereas, the IO has collected CCTV footage of Bank towards such transaction.
21. In the backdrop of the present case, this Court is of considered opinion that it is not a fit case to invoke the inherent jurisdiction under Section 482 CrPC and accordingly, the same is rejected.
JUDGE Comparing Assistant