Allahabad High Court
Gian Dutt Pandey @ Gyan Dutt Pandey vs Union Of India Nad Another on 31 October, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 39037 of 2019 Applicant :- Gian Dutt Pandey @ Gyan Dutt Pandey Opposite Party :- Union Of India Nad Another Counsel for Applicant :- Vinod Kumar Pandey,Ranvijay Chaubey Counsel for Opposite Party :- A.S.G.I.,Sanjay Kumar Yadav Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Ranvijay Chaubey, learned counsel for the applicant, Sri Gyan Prakash, learned Sr. Counsel assisted by Sri Sanjay Kumar Yadav, learned counsel for the C.B.I. The present application has been filed with a prayer to quash the impugned charge sheet dated 1.7.2019 and cognizance order dated 1.7.2019 as well as entire proceeding of Special Case No. 7 of 2019, arising out of F.I.R. No. rc0062016A0023, u/s 120B, 420, 468 & 471 IPC & 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, P.S. C.B.I./SPE, District Lucknow.
It has been argued by the learned counsel for the applicant that applicant has been falsely implicated. Applicant is employee of Sanjay Aggrawal, who is proprietor of M/s. Karishma Health, Lucknow. As per allegation in the F.I.R. an account was opened by applicant stating himself to be properietor of M/s. C.I. Laboratory by using some forged drug license as there was no such genuine firm by the said name owned by applicant. It is further alleged that some amount was received in the aforesaid account, which amount was later on transferred to Sanjay Aggrawal. It is further argued that he was initially an employee of Sanjay Aggrawal and he has only made one signature in Hindi while opening bank account and has not had any transaction through the said bank account. The entire transactions have been made by Sanjay Aggrawal. These facts have not been taken into consideration by the Investigating Officer and the charge sheet has been filed in a routine manner against him which needs to be quashed.
Learned counsel for the applicant has placed reliance upon judgment of the Apex Court in the case of Sunil Bharti Mittal Vs. Central Bureau of Investigation, (2015) 4 SCC 609. Paragraph no. 53 of the said judgment is as follows:-
"53. However, the words "sufficient grounds for proceeding" appearing in the Section are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
Learned counsel for the applicant has further placed reliance upon Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity and Ors., 2010 LawSuit (SC) 212. Paragraph no. 31 of the said judgment is as follows:-
"31. It is a settled legal proposition that not only administrative but also judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the Court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the Court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration justice - delivery system, to make known that there had been proper and due application of mind to the issue before the Court and also as an essential requisite of principles of natural justice. "The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before Courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the Court concerned had really applied its mind."Vide State of Orissa Vs. Dhaniram Luhar AIR 2004 SC 1794; and State of Rajasthan Vs. Sohan Lal & Ors., 2004 5 SCC 573."
Learned counsel for the applicant has also argued that co-accused Sanjay Aggrawal as well as Dr. R.K. Sharma have already been granted relief for not being arrested for 30 days, within which time, they are allowed to move an application before the trial court to be disposed of in accordance with law considering directions given by the Apex Court in its judgment dated 14.7.2015 in S.L.P. (Crl.) No. 833 of 2015 (arising out of impugned final judgment and order dated 16.1.2015 in AN No. 152/2015 passed by the High Court of Judicature, Lucknow Bench) has issued following directions (Citation: 2015 SCC Online SC 1107). Therefore, the identical relief should also be granted to the accused-applicant.
Learned counsel for the C.B.I. has drawn attention to paragraph 19, 21 and 22 of the charge sheet, in which role of the applicant has been mentioned. It is mentioned therein that applicant had opened a fake bank account no. 018511023879, at Hazratganj Branch of Dena Bank representing himself to be proprietor of M/s. C.I. Laboratories on the basis of forged bogus KYC documents and bogus drug license and he used the said fraudulent bank account in the name of M/s. C.I. Laboratories for realizing the payments made by the CMOs of different districts of U.P. against the purported supply of drug and also some funds were diverted from the said account to M/s. Karishma Health Care, Lucknow. It is also mentioned in the said paragraph of the charge sheet that specimen signature was also found to tally with the signature of the accused-applicant, by which the said account was opened, which was in Hindi, therefore, involvement of accused-applicant in the present occurrence cannot be ruled out.
Learned counsel for the C.B.I. has further vehemently opposed grant of any relief as has been given to co-accused Sanjay Aggrawal and Dr. R.K. Sharma, as the same has not been prayed by the learned counsel for the applicant in writing.
After having gone through the charge-sheet and the material collected by the Investigating Agency, it cannot be denied that cognizable offence is not made out against the accused applicant.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings of the aforesaid case is refused.
However, looking to the fact that the Apex Court in its judgment dated 14.7.2015 in SLP (Crl.) No.833 of 2015 (Arising out of impugned final judgment and order dated 16.1.2015 in AN No. 152/2015 passed by the High Court of Judicature, Lucknow Bench) has issued following directions. (Citation: 2015 SCC Online SC 1107).
(i) Such of the petitioners as have not already furnished bail bonds to the satisfaction of the trial courts concerned shall do so within a period of two weeks from today in which event the protection against arrest shall continue but only subject to their furnishing such bonds.
(ii) The trial court(s) shall satisfy themselves about the deposit of the amount directed by us, in terms of our Order(s) passed in each one of the cases. In case deposit is not made as directed, the same shall be made within four weeks from the date the trial Court issues a direction to that effect after verification.
(iii) Liberty is reserved to the CBI to move the trial court concerned in case the amount already deposited by the petitioners does not match the amount on a proportionate basis that should be recovered from them having regard to the amount alleged to have been misappropriated or wrongfully paid/received. Should the petitioner(s) fail to deposit any such further amount directed by the trial court, the bail order granted in his/her favour shall stand cancelled without any further reference to this Court.
(iv) The trial court(s) shall be free to direct deposit of Passports by the accused-persons in such of the cases at it may consider just and proper.
(v) The petitioners shall not tamper with the evidence in any manner whatsoever and if they do so, the Court shall be free to cancel the bail granted to the accused concerned.
(vi) The amount deposited by the petitioners shall be remitted by the trial court(s) to the State Government, Department of Health and Family Welfare, for utilisation in the ongoing NRHM Scheme.
(vii) The trial court(s) shall endeavour to expedite the trial and shall be free to pass appropriate order(s) against the petitioners including an order withdrawing the concession of bail granted to them or any one of them, if the accused do not cooperate or otherwise resort to dilatory tactics.
In view of above, this Court directs that in case the accused-applicant surrenders before the trial court within 30 days and moves bail application, the same shall be disposed of by the trial court considering the directions given by the Apex Court in the aforesaid judgment.
For a period of 30 days from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
With aforesaid direction, this application is finally disposed of.
Order Date :- 31.10.2019/A.P. Pandey