Allahabad High Court
Lalit Mohan Pant vs The State Of U.P Thru Principal Secy., ... on 27 November, 2014
Author: Vishnu Chandra Gupta
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH COURT NO.21 Judgement reserved on 27.10.2014 Judgement Delivered on 27.11.2014 AFR CRIMINAL MISC. CASE NO.5159 OF 2012 (U/s 482 of Code of Criminal Procedure) Lalit Mohan Pant aged about 55 years Son of Sri Jeevan Chandra Pant Resident of 25, Bajrang Vihar, Kursi Road, Police Station Gudamba, District Lucknow ..... Petitioner Versus 1. State of U.P. through Principal Secretary Home Department, Government of U.P. Civil Secretariat, Lucknow 2. Chief Judicial Magistrate, District Lucknow. 3. Radhey Shyam Gupta Son of Late Kripa Dayal Gupta Resident of C-99, Sector-A, Mahanagar, Police Station Kotwali Mahanagar, District Lucknow. ...... Opposite Parties Counsel for Petitioner:- Sri Sanjay Kumar Counsel for Respondent :- AGA and R.S. Gupta-in-person Hon'ble Vishnu Chandra Gupta,J.
This petition has been filed by Sri Lalit Mohan Pant to quash the order dated 04.07.2005 passed by learned Chief Judicial Magistrate, Lucknow in Case No.1064 of 2003(Final report Case) (State Versus Lalit Mohan Pandey) arising out of Case Crime No.605 of 2003, under Sections 406, 420 IPC, Police Station Kotwali Hazratganj, District Lucknow rejecting the final report submitted by the police in the aforesaid case and treating the protest petition of opposite Party No.3 Radhey Shyam Gupta, as complaint and order dated 01.02.2012 passed by learned Chief Judicial Magistrate, Lucknow in Case No.8202 of 2005 (Radhey Shyam Gupta Vs. Lalit Mohan Pant), summoning the petitioner to face the trial under Section 420 IPC (Annexures no.1 and 2 respectively to this petition).
Brief facts for deciding this petition are that according to opposite party no.3 Radhey Shyam Gupta, who is an Ex-Officer of postal department, purchased five Kisan Vikas Patras (in short 'KVPs') of Rs.10,000/- each bearing KVPs no.30CC 688349 to 688352 on 23.07.1996 from Jawahar Bhawan Post Office. The aforesaid KVPs were purchased under Registration No.2789 dated 12.08.1996 through Cheque No.0415613 worth Rs.50,000/- of SB Account No.877261, GPO, Lucknow. The aforesaid KVPs were issued in the joint name of Rohit Gupta, who is the son of opposite party no.3, and Radhey Shyam Gupta opposite party no.3. These KVPs were 'Joint B' type and the amount thereunder was payable to 'either or survivor'. The aforesaid KVPs were present for encashment by the first holder Rohit Gupta in the post office. The payment of which has been given to Rohit Gupta through Cheque No.H-503522 dated 24.10.2001 after getting signatures of Rohit Kumar Gupta as an acknowledgment of receipt of payment. The signatures of Rohit Gupta was duly identified by Pushpila Bisht, Advocate of this Court. After the encashment of aforesaid KVPs, a first information report has been lodged on 02.10.2003 by the opposite party no.3 against Lalit Mohan Pant the petitioner, with the allegations that inspite of application dated 28.04.2001 containing information of loss of aforesaid KVPs given to Sub-Post Master, Jawahar Bhawan, the petitioner Lalit Mohan Pant with connivance of others after making forged signatures enchashed the amount of aforesaid KVPs in between September, 2001 to November, 2001. The aforesaid application dated 28.04.2001 is acknowledged by Sri Sushil Kumar Mishra, Assistant Post Master, Jawahar Bhawan on the same day.
On the basis of this FIR, the case was registered under Sections 406 420 IPC against Petitioner Lalit Mohan Pant and some unknown persons but after investigation a final report has been submitted by the police before the Magistrate. The opposite party no.3 filed protest petition and thereafter the protest petition was treated as a complaint and after recording statement under Sections 200 and 202 Cr.P.C., the present petitioner has been summoned.
I have heard Sri Sanjay Kumar, learned counsel for the petitioner, learned AGA for the State and the opposite party no.3-in-person.
It has been submitted by learned counsel for the petitioner that the amount under the aforesaid KVPs has actually been paid to Rohit Gupta after due verification and after getting approval from his higher authorities. It has also been submitted that Rohit Gupta in reply to the application dated 28.04.2001 of the opposite party no.3 informed to the post office that those KVPs were neither lost nor stolen but the same are his possession being the first holder and on his request, the payment has been made after getting the approval from the higher authorities. An Original Suit No.24 of 2003 (Annexure-4 to this petition) has been filed by the opposite party no.3 against his son Rohit Gupta, his daughters Smt. Reena Gupta, Smt. Neelima Gupta and Km. Rakhi Gupta along with nine others of the postal department, is still pending in the court of learned Additional Civil Judge (Senior Division), Court no.21, Lucknow. In the said suit, the relief sought is that the plaintiff Radhey Shyam Gupta be declared to be the sole owner of the money of the aforesaid KVPs/NSCs and the cheques drawn in favour of defendants and is entitled to get the entire money along with 18% interest thereon from the date of investment and till the final payment to the plaintiff. Relief of permanent Injunction has also been sought against the postal authorities from discharging remaining certificate lying in the custody of the defendants, who are the son and daughters of O.P.No.3.
It has further been submitted that the aforesaid original suit has been filed on 30.01.2003, much before lodging of the first information report. The pleadings of paragraph 14 of the aforesaid suit reveal that Rohit Gupta already misappropriated the value of the cheque and amount paid under the KVPs in question. The petitioner also filed a letter dated 09.10.2001 (Annexure-7 to this petition) of Rohit Gupta addressed to Sub-Post Master (HSG-II), Carlton Hotel P.O. at Jawahar Bhawan, Lucknow in which Rohit Gupta admitted that the aforesaid disputed KVPs are in his possession. This letter was given by Rohit Gupta disputing the correctness to the information sent by his father with regard to loss of the aforesaid KVPs.
During the course of argument, learned counsel for the petitioner invited the attention of this Court to Rule 29 of Post Office Savings Bank Manual (Volum-II), it has been submitted that Rule 29 of the Manual clearly provides the method of enchashment of certificates held in joint names. Rule 29 of the Manual is reproduced hereinunder for ready reference:
"29(1) A certificate of joint A type can be encashed only under the signature of both the holders or by one of the joint holders if he produces a letter of consent from the other joint holder in the form given below:-
"I, the under mentioned joint holder of certificate No...... dated .... for Rs...... registered at ..... Post Office do hereby give my consent to the payment of the value thereof to .... who is the other joint holder."
Signature of the joint holder The letter of consent should be attached to the discharged certificate for transmission to the Postal Accounts Office.
(2) A certificate of joint B type can be discharged under the signature of either of the joint holders presenting the certificate.
(3) When one of the joint holders dies, the payment on a joint type certificate, both joint 'A' and joint 'B', will be made to the survivor, he being the sole owner of the certificate. If the survivor desires to avail of facility of nomination, he will have to get the certificate transferred in his name. A single type certificate will be issued in the name of the survivor. The cancelled certificate will be sent to the postal Accounts Office along with the Isuse Journal. [For such transfer of certificates governed by POSC Rules, NSCs (I Issue) Rule, 1956. NSCs (IV Issue) 1970-NSCs (V Issue) Rules, 1973 and ND Bonds Rules, 1977, no fee is due.] D.G. Posts Instructions It is clarified that in case of Joint-B type investments, no dispute over payment should be entertained and payment should be made in normal course to the "either or survivor" whichever present the savings instrument i.e. passbook or certificate unless there is stay from any competent court.
(D.G. Posts Letter No.116-27/2008-SB dated 18.3.2009, SB order No.6/2009)"
It has been further submitted by learned counsel for the petitioner that once the opposite party no.3 acknowledges and admits that payment has been received by his son Rohit Gupta and its misappropriation by his son Rohit in paragraph 14 of the Original Suit No.24 0f 2003 instituted prior to lodging the complaint/FIR, the same is sufficient to prove that the prosecution launched is nothing but an abuse of the process of the court and a person, who is fairly dealing and performing his job in the postal department, has wrongly been dragged in this prosecution with a mala fide intention.
He further urged that the alleged dispute is a purely of civil nature, for which a civil suit is already pending and that too was filed before lodging the first information report.
It is further contended that no sanction for prosecution under section 197 Cr.P.C has been taken against the petitioner as the act complained have a direct nexus with discharge of official duty of the petitioner, being public servant.
On the basis of aforesaid facts and circumstances, it has been submitted by learned counsel for the petitioner that the petitioner has been dragged unnecessary in this litigation, which is malafide, vexatious and is an abuse of the process of the court.
The opposite party no.3 by filing counter affidavit contended that he is the investor of the KVPs and as such, he is the owner of the aforesaid KVPs. The application form (Annexure-CA-5 to the counter affidavit) on the basis of which these KVPs were issued, has also been brought on record. In the counter affidavit, photostat copies of the aforesaid KVPs has also been filed.
The application for issuing the aforesaid KVPs reveals that a request has been made to issue these KVPs jointly indicating the first name as Rohit Gupta and second name as RS Gupta. Both Rohit Gupta and RS Gupta signed this application and the payment of which has been made by RS Gupta.
It has been further submitted by the opposite party no.3 that Rule 48 will apply in this case and not Rule 29 as stated by learned counsel for the petitioner. Rule 48 provides correction of clerical or arithmetical mistakes in the issue of certificates, is reproduced herein below for ready reference:
"48. Any clerical or arithmetical mistake with respect to a certificate can either suo moto or upon an application by any person interested in that certificate be rectified by the Head of Postal Circles and Divisions in the manner indicated in the following tables provided no financial loss is caused to Government or to any such person by such ratification.
Table 'A' Irregularities to be regularized by the Postmaster General Sl.
No. Nature of irregularity Procedure to be followed after the irregularity is regularized by the Competent Authority 1 Irregular issue of a certificate in the names of a minor and an adult or two minors jointly or in the name of two adults on behalf of a minor or in the name of an adult purchasing a certificate on behalf of a minor or a single type certificate issued instead of a join 'A' type or 'B' type or a certificate of joint 'A' type issued instead of 'B' type or the vice versa.
Fresh certificate may be issued to the proper person treating the original certificate as 'spoiled'. The procedure laid down in Rule 41 will be followed. Fresh application may be obtained from the party concerned and kept along with the original application if it was incorrectly filled up in the first instance.2
Irregular issue of a certificate in the name of others instead of in the name of individuals in contravention of Rules.
No further action is to be taken except that a copy of the sanction regularizing the irregularity may be kept with the purchase application.3
Wrong filling up of the name in the application for purchase by the investor in cases where certificate stands undischarged.
Fresh application for purchase may be obtained from the investor and pasted to the original application.4
Irregular issue of a certificate due to wrong filling up to the name of the investor in the application for purchase.
Fresh certificate may be issued in the name of proper person treating the old certificate as 'spoiled'. The procedure laid down in respect of item (1) of table 'B' below will be followed.
Fresh application for purchase may also be obtained from the party and pasted to the original application.
Table 'B' Irregularities to be regularized by the Heads of Postal Divisions Sl.
No. Nature of irregularity Procedure to be followed after the irregularity is regularized by the Competent Authority 1 Irregular issue of a NSC in the name of a person other than the holder, application for purchase having been signed by the Agent or person other than the holder.
Fresh certificate may be issued in the name of proper holder treating the old certificate as 'spoiled'. Procedure laid down in item (1) above will be followed. Written consent may also be obtained from the person who signed the application for purchase and from his heirs if the former is dead.2
Irregular making of a certificate where the application for purchase has been correctly filled in.
Fresh certificate may be issued treating the old certificate as 'spoiled'. Procedure laid down in item (1) above will be followed.3
Issue of a certificate in the name of the pledgee instead of the pledger in contravention of Rule 19 of the Rules.
Fresh certificate may be issued in the name of the pledger and the endorsement 'transferred as security to ......' as required under the Rules may be given on the certificate by the Postmaster. The old certificate may be treated as 'spoiled' adopting the procedure laid down in respect of item (1) above.4
Issue of a Certificate without the date-stamp or signature of the Postmaster of the Office of issue.
The date stamp will be affixed by the Postmaster incharge of the office of issue and the date will be altered by him in manuscript under proper attestation. The certificate if no already signed will also be signed by the Postmaster with fresh date.
All other cases of irregularities including those referred to as in Table 'A' and 'B' above in respect of all certificates issued in Pakistan and finally transferred to India including the certificates the liability of which falls on the Government of Pakistan and certificates which are discharged without prior verification from Pakistan will be referred to the D.G. Posts for orders.
Note 1:- The irregularities as per Table 'A' and 'B' above can also be rectified by the competent authorities even though the irregularities come to notice after the discharge of the certificate.
Note 2:- A question has been raised as to which circle will regularise the irregular issue of certificates after they are transferred from the jurisdiction of one circle to another and the irregularity comes to light after transfer in the transferee office.
In case of transfer of certificates from one Post Office to another, the application for transfer is treated in the new office in every respect like an application for purchase. Responsibility for regularization of any kind of irregularity which could not be detected before effecting its transfer to the new Post Office in another circle devolves on the transferee office. In view of this, the Divisional Superintendent or the Postmaster General of the transferee office will regularize the irregularity. If considered necessary, an attested copy of the original application for purchase may be obtained from the transferring Post Office by the transferee Post Office."
The opposite party no.3 emphasized that the KVPs were wrongly issued in the joint name though he is the investor and payment ought to have been made to him. He moved an application for correction and during the pendency of the aforesaid correction application, the postal department should not have made any payment. In this regard, he invited the attention of this Court towards the letter dated 30.09.2001 given by opposite party no.3 to Sri R. Ganeshan, Chief Postmaster General, U.P., Lucknow, in which he asked correction in the name of investor in the aforesaid disputed KVPs. He also invited the attention towards irregularities 3 and 4 of Table 'A' of Rule 48 and on the strength of this, the procedure prescribed in Rule 48 ought to have been followed. It has been urged that in such situation, the procedure ought to have been followed by the competent authority has not been followed. Hence the petitioner cannot get the protection under section 197 of Cr.P.C. The prosecution cannot be quashed in this case on the basis of defence of the petitioner. The petition has no merit and is liable to be dismissed.
In Maqsood Alam State of Gujrat (2008 (5) SCC 668, the Apex Court held that summoning of accused in a criminal case being a serious matter. The Magistrate should apply his mind while doing so and should not act mechanically and in routine manner.
In Anjani Kumar Vs. State of Bihar (2008 (5) SCC 258, it has been held that while discharging official duties the appellant raided the medical shop of complainant and recommended for cancellation of his licence. The Apex Court on fact found that the complainant never alleged about the demand of bribe either in his bail application moved before the Court nor at any earlier stage before criminal court in which he was facing criminal trial of charges on the basis of FIR lodged by the appellant and consequently quashed the proceedings for want of prosecution sanction under section 197 Cr.P.C. The Apex Court also recorded the finding that sanction accorded by the District Magistrate under Section 197 Cr.P.C. was without any authority.
In Indra Mohan Vs State of Uttarakhand and Ors., 2000 (8) SC 251, the Apex Court held that criminal prosecution could not be permitted to use as an instrument of harassment or for seeking private vendetta or with ulterior motive to pressurised the accused. In such situation refusal to quash criminal proceedings would be improper.
In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 the Supreme Court also summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(a) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction.
(b) where the allegations in the first information report or complaint do not constitute any offence.
(c) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
The scope of exercise of power under Section 482 CrPC and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice were set out in some detail by the Apex Court in State of Haryana v. Bhajan Lal; [1992 Supp (1) 335]. The illustrative categories indicated by this Court are as follows:
"(1) 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.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
In G. Sagar Suri and Anr. v. State of U.P. and Ors. [(2000) 2 SCC 636, the Apex Court opined in para 8:-
"8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."
In Indian Oil Corporation, M/s. v. M/s. NEPC India Ltd., AIR 2006 SC, 2780 the Apex Court while discussing the scope of section 482 to quash the criminal proceedings has held in paragraphs 9 and 10 as followes:-
"9. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few - Madhavrao Jiwaji Rao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692], State of Haryana v. Bhajanlal [1992 Supp (1) SCC 335], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194], Central Bureau of Investigation v. Duncans Agro Industries Ltd., [(1996) 5 SCC 591], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164], Rajesh Bajaj v. State NCT of Delhi, [(1999) 3 SCC 259], Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168], M. Krishnan v. Vijay Kumar [(2001) 8 SCC 645], and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122]. The principles, relevant to our purpose are:
"(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused.For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out : (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
(10) While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable break down of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged."
The Supreme Court in a recent judgment of Rajiv Thapar V. Madan Lal Kapoor; (2013) 3 SCC 330 have discussed the scope of powers of High Court and delineate the the steps to determine the veracity of prayer for quashment raised by accused by invoking the powers vested in High Court under Section 482 Cr.P.C. The relevant paragraphs 28, 29 and 30 are extracted below:-
"28. The High Court, in exercise of its jurisdiction under Section 482 CrPC, must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.
29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate the prosecution's/complainant's case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:
30.1.Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality?
30.2.Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3.Step three: whether the material relied upon by the accused has not been refuted by the prosecution/ complainant; and /or the material is such that it cannot be justifiably refuted by the prosecution/complainant?
30.4.step four; whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5.If the answer of all the steps in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CRPC. Such exercise of power, besides doing justice to the accused, save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused."
Every case has to be decided on its own peculiar facts. The document relied upon by the petitioner is this case are those whose correctness has not been disputed by opposite party no.3 and is sound, reasonable, and indubitable.
So far as the factual matrix is concerned no offence under section 420 IPC is prima facie made out. There is no deception on the part of petitioner to induce the opposite party no.3 to deliver any property. The KVC were purchased after filing the form by opposite party no.3 himself for issue of KVC in joint name. Admittedly the amount under these KVC was received by first holder Rohit son of opposite party no.3. The misappropriation is also attributed to him as contained in paragraph14 of the plaint admittedly filed by opposite party no.3 before lodging of FIR and the complaint. The Petitioner simply discharge his official duties and that to in accordance with above mentioned rule 29. Rule 48 is not attract in this case. The same would be applicable in case of correction of any clerical or arithmetical mistake. Hence prima facie case is not made out against the petitioner for want of necessary ingredient of offence under section 420 or 406 IPC. The material relied upon by the accused petitioner would rule out the assertions contained in the complaint levelled against the petitioner. This material is sufficient to reject and overrule the factual assertions contained in the complaint and is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
Admittedly for the acts done by the petitioner which have direct nexus with his official duty, no prosecution sanction has been taken in this case to prosecute the petitioner from the competent authority as required under section 197 Cr.P.C.
The present prosecution is the outcome of ill will of opposite party no.3 to put pressure upon the petitioner to settle the score by illegal means. This prosecution is clearly an abuse of process of court. This criminal proceeding is manifestly attended with mala fide and is maliciously instituted with an ulterior motive for wreaking vengeance on the accused petitioner and with a view to spite him due to private and personal grudge. The proceeding in the trial court would result in an abuse of process of the court, and would not serve the ends of justice.
In view of the above this court is of the firm view that the proceedings pending in pursuance of cognizance taken vide order dated 01.02.2012 upon the complaint filed in Case No.8202 of 2005 (Radhey Shyam Gupta Vs. Lalit Mohan Pant), summoning the petitioner to face the trial under Section 420 IPC against the petitioner by the court of Chief Judicial Magistrate, Lucknow deserves to be quashed and this petition is liable to be allowed.
Consequently this petition is allowed. The proceedings pending in pursuance of cognizance taken vide order dated 01.02.2012 upon complaint filed in case no. .8202 of 2005 (Radhey Shyam Gupta Vs. Lalit Mohan Pant), summoning the petitioner to face the trial under Section 420 IPC against the petitioner by the court of Chief Judicial Magistrate, Lucknow are quashed with all consequential orders passed therein.
Dated: 27.11.2014 akverma