Delhi District Court
Through: Shri Aditya S. Pujari vs B. Ramaswamy on 30 May, 2017
IN THE COURT OF SHRI RAJ KUMAR TRIPATHI
ADDL. SESSIONS JUDGE02 : SOUTH EAST
SAKET COURT : NEW DELHI
IN RE: Criminal Revision No.204447/16
ID No. DLSE010015282016
Dr. N. Ramachandran
R/o No. 404, HIG Type,
New Housing Unit,
Thanjavur - 613 005
. . . . Revisionist
Through: Shri Aditya S. Pujari,
Advocate.
Versus
1. B. Ramaswamy
118/C, Pocket F,
Mayur Vihar Phase II
New Delhi - 110016
Through: Shri Bhavuk Chauhan,
Advocate.
2. State ( Govt. of NCT of Delhi)
Through the Investigating Officer
PS Crime Branch . . . . Respondent
Through: Sh. M. Zafar Khan,
Addl. Public Prosecutor
CR No.204447/16 & 204681/16 1 of 16
__________________________________________________________
Date of Institution : 08.06.2016
Date of transfer of the case
to this court : 08.08.2016
Date when arguments were heard : 30.03.2017 & 03.05.2017
Date of Judgment : 30.05.2017
AND
IN RE: Criminal Revision No.204681/16
ID No. DLSE010044162016
State (Govt. NCT of Delhi)
Through Public Prosecutor Delhi . . . . Revisionist
Through: Sh. M. Zafar Khan,
Addl. Public Prosecutor
Versus
B. Ramaswamy
118/C, Pocket F,
Mayur Vihar Phase II
New Delhi - 110016 . . . . Respondent
Through: Shri Bhavuk Chauhan,
Advocate.
__________________________________________________________ Date of Institution : 18.07.2016 Date when arguments were heard : 30.03.2017 & 03.05.2017 Date of Judgment : 30.05.2017 CR No.204447/16 & 204681/16 2 of 16 JUDGMENT :
1. Challenge in the above revision petitions is to the order dated 04.05.2016 passed by learned Chief Metropolitan Magistrate (in short "CMM"), SouthEast District, Saket Courts, New Delhi in case FIR No.116/11 Police Station Sarita Vihar (Crime Branch) titled as State Vs. Dr. B. Ramaswami.
2. Dr. N. Ramachandran (complainant), Vice Chancellor of Periyar Maniammaia University lodged complaint against respondent / accused Dr. B. Ramaswami on 28.05.2011 by stating that he was appointed on temporary basis as Regional Director, Center for Open and Distance Education of Periyar Maniammaia University for its Regional Center at Jasola, New Delhi on 11.07.2008 at a salary of Rs.25,000/ per month. He further stated that accused had submitted his letter / resume dated 13.08.2009 duly signed by him in which he claimed that he had completed his Ph. D. Degree in Sociology on "The Moral Education of Primary School Children in 21st Century; A Sociological Perspective" from Singhania University and annexed the photocopy of said Ph. D. Degree with the letter. On the basis of said Ph. D. Degree, the Periyar Maniammaia University revised the salary of accused from Rs.25,000/ to Rs.50,000/ per month. He stated that during the service of accused B. Ramaswamy as a Regional Director, the University had given signed blank cheque bearing no. 319766 drawn CR No.204447/16 & 204681/16 3 of 16 on Corporation Bank, duly signed by Mr. G. Swamidurai, Vice President and Ramachandran, Member Finance Committee related to Periyar Self Respect Propaganda Institution to him for the use of urgency at the time of inaugural function which was to be held on 02.05.2010 at Jasola, New Delhi.
3. The complainant wrote a letter to the Registrar of Singhania University, Rajasthan on 27.07.2010 to verify the genuineness of the said Ph.D. degree which was furnished by accused Dr. B. Ramaswamy. In the month of September 2010, the complainant received the reply / verification letter dated 20.09.2010 from Singhania University in which it was reported that accused B. Ramaswamy's name does not appear in the record of said University as a Ph.D. degree holder. They further reported that accused was not the student of the said University. Thereafter, accused was terminated from his service on 20.04.2011 by the University vide order dated 18.04.2013. Accused was asked to hand over the cheque book including cheque no. 319766, cash balance and other records etc. to the university. The complainant alleged that accused B. Ramaswamy did not return the said record including the aforesaid cheque to the University. However, the aforesaid cheque was misappropriated by him after filling up an abnormal amount of Rs.66 Lacs. The accused presented the said cheque in the bank on 28.04.2011 after termination of his service, which was dishonoured CR No.204447/16 & 204681/16 4 of 16 on 28.04.2011 due to stop payment by the University.
4. On the aforesaid allegations of complainant, FIR No. 116/11 for offences under section 420/468/471/409 of The Indian Penal Code, 1860 (in short "IPC") was registered at Police Station Sarita Vihar.
5. Matter was investigated as per law. The Investigating Officer (in short "IO") SI Nitin Kumar, on conclusion of investigation, filed cancellation report in the court. Being dissatisfied with the report of IO, complainant filed protest petition against the cancellation report. On the said protest petition, learned trial court directed for further investigation in the matter on 15.05.2011. Thereafter, the matter was marked to SI Dharmender Kumar, DIU, SouthEast District. Further investigation was carried out by second IO SI Dharmender Kumar, who after conclusion of investigation, also submitted cancellation report in the court.
6. Dr. N. Ramachandran, the complainant, made complaint dated 11.01.2013 to Commissioner of Police, Delhi against the investigation. Thereafter, further investigation of the case was entrusted to SI Virender Singh of Crime Branch, who carried out further investigation in the matter, collected relevant evidence and thereafter, on conclusion of investigation, he filed challan against accused. Accused Dr. B. Ramaswamy was chargesheeted to face trial for ofrence under section 420/468/471 IPC.
CR No.204447/16 & 204681/16 5 of 16
7. On perusal of chargesheet and documents submitted alongwith it, learned trial court took cognizance of the offences. Accused was summoned to face trial in the case.
8. Vide order dated 04.05.2016, learned trial court found that there was no sufficient grounds for proceeding against accused for any of the offences, therefore, accused was discharged.
9. Revisionists i.e. complainant Dr. N. Ramachandran and the State, feeling aggrieved by impugned order dated 04.05.16, have preferred separate revision petitions.
10. On notice of the petitions, respondent Dr. B. Ramaswamy appeared through his counsel. He filed written synopsis in the form of reply to the petition of revisionist.
11. I have heard the submissions advanced by Shri Aditya S. Pujari, learned counsel for revisionist Dr. N. Ramachandran, Shri M. Zafar Khan, learned Additional Public Prosecutor for State and Shri Bhavuk Chauhan, learned counsel for respondent Dr. B. Ramaswamy.
12. It was submitted by learned counsel for revisionists that the offence of cheating under section 420 IPC arises out of fraudulent misrepresentation made by respondent in his letter dated 13.08.2009. They further argued that the respondent in the said letter mentioned that he had completed the doctor of sociology on The Moral Education of Primary School Children in 21 st Century; A CR No.204447/16 & 204681/16 6 of 16 Sociological Perspective. They further argued that respondent no. 1 admitted to have submitted certificates in the enclosure portion of the admitted letter dated 13.08.2009. Thus, he committed forgery in respect of Ph.D. certificate. They further argued that cheque bearing no.319766 drawn on Corporation Bank was handed over to respondent for emergency use at the time of inauguration of the Periyar Center on or around 02.05.2010 which was misappropriated by respondent and thereby he committed the offence of criminal breach of trust. They further argued that learned CMM while discharging the respondent, ignored the settled principle of law that at the stage of charge roving enquiry is impermissible and the trial court cannot sift and weigh the evidence at this stage. They further argued that learned trial court ought not to have discharged the respondent without considering the true import of the chargesheet and supplementary chargesheet filed in the case. They further argued that the defence of respondent that Rs.66 Lacs was due to him on the basis of an unsigned MOU, which came into effect upon signing of the MOU on the basis of a clause contained therein is wholly mischievous. They submitted that respondent has made a deliberate false statement to the effect that the said MOU was signed. It was prayed to set aside the impugned order passed by learned CMM being not sustainable in the eyes of law.
13. Per contra, learned counsel for respondent argued that the two CR No.204447/16 & 204681/16 7 of 16 cancellation reports filed prior to the filing of chargesheet disclose the falsity of the allegations, which have been ignored in the subsequent chargesheet. He submitted that in the case of Vinay Tyagi Vs. Irshad Ali (2013) 5 SCC 762, Hon'ble Supreme Court held that the court of competent jurisdiction is duty bound to consider all reports, entire records and documents submitted therewith by the Investigating Agency as its report in terms of section 173(2) Cr.P.C. He drew the attention of the court to the findings given by the Investigating Officers in the cancellation report submitted in the court and thereafter submitted that the impugned order passed by learned MM is based on correct reasoning and correct appreciation of facts and law. He submitted that the complainant / revisionist failed to prove any documentary evidence to show that the cheque in question was given to respondent for the purpose of inaugural function in Jasola on 02.05.2010. He further argued that the respondent has already lodged complaint against complainant for dishonour of cheque in question and complainant in order to escape from the said liability got lodged the present false case against him. He further submitted that the cheque in question was sent to FSL, Rohini, New Delhi and FSL report shows that respondent has not filled any particulars of the cheque in question. He submitted that the impugned order of learned MM does not suffer from any illegality or infirmity and the CR No.204447/16 & 204681/16 8 of 16 same does not call for any interference by this court. He further submitted that the instant petition filed by revisionist is without any merit and the same be dismissed with exemplary cost.
14. I have considered the rival submissions of both the parties and carefully perused the entire material on record.
15. A Court of Session under section 397 Cr.P.C. may call for and examine the record of proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and may exercise any of the powers conferred on a court of appeal by sections 386, 389, 390 and 391 of Cr.P.C.
16. The relevant portion of impugned order is reproduced hereunder for ready reference :
16. A bare perusal of the charge sheet as filed by the Crime Branch reveals that it is nothing but an eyewash and is prompted and persuaded by some other considerations best known to the IO of the case. It is pertinent to note that in the earlier investigations carried out by IO/SI Nitin Kumar of PS Sarita Vihar and by IO/SI Dharmender of DIU South East District, there was never a dispute that the letter dated 13.08.2009 was not written by the accused Dr. B. Ramaswamy. What was disputed and was a matter of consideration under investigation CR No.204447/16 & 204681/16 9 of 16 was the accused having submitted with his said letter, copies of his educational qualification documents including the alleged forged PhD Degree certificate as issued by Singhania University. The investigation which has resulted into filing of the charge sheet against the accused, it appears, overlooked the investigation carried out in the earlier two cancellation reports. Both the IOs of the two cancellation reports called from the complainant as to how it had received the accompanying documents including the alleged forged PhD certificate. Admittedly, complainant failed to gave any plausible explanation about the same. It becomes all the more important as the documents furnished by accused qua his enrollment with the Singhania University as a Phd Student and consequent award of Phd degree to him, were found to be genuine upon verification from the concerned university. Also, nothing was produced by the complainant with either of the IOs that what were the educational qualification requirements for a given candidate to have been selected and appointed as a Regional Director of the Delhi Centre of the PMU. Also, nothing was provided as to what was the minimum or the prescribed salary as per the UGC norms for the post of Regional Director to which the accused was appointed. Again, the investigation overlooked the earlier investigation carried out by IO/ SI Dharmender of his having noted serious irregularities in the appointment CR No.204447/16 & 204681/16 10 of 16 letter of the accused as issued by the complainant University. It was specifically noted that in the appointment letter dated 11.07.2008 of the accused for the post of Regional Director, Delhi Centre, except the salary having being written in hand and that too in numerals, the other contents of the appointment letter were all typed. This was in contradiction to appointment letters issued to other employees and one amongst them being of Mr. M. Ravi Kumar. The appointment letter of the said employee was completely typed and therein the pay/salary was specifically given in terms of the UGC norms. Also, the investigation by the Crime Branch also overlooked the investigation carried out by the previous IO /SI Dharmender regarding sending of an email by the complainant Dr. N. Ramachandran to the accused with copy of an MOU. The previous IO verified the IP address of the said email and it was found having been assigned to Periyar Maniammai College of Technology for Women, Vallam and its Administrative Incharge being the complainant Dr. N. Ramachandran. Even the complainant during his examination on 23.08.2012 accepted that he had sent this email to the accused. Further, while seizing the attendance registers and the bank account statement of the accused to substantiate that the salary of accused was enhanced from Rs. 25,000/ to Rs. 50,000/ per month by the complainant university, the IO of the Crime Branch CR No.204447/16 & 204681/16 11 of 16 failed to take into account that whereas the letter of the accused is dated 13.08.2009, the salary for the first time has been enhanced from Rs. 25,000/ to Rs. 50,000/ only w.e.f. 01.08.2010 vide office letter of the university dated 25.08.2010. This is in contradiction to the claim of the complainant as in the complaint dated 28.05.2011, complainant has himself stated that when he had suspected about the veracity of the Phd degree certificate of the accused, he had made a written communication to Singhania University in July 2010, more specifically dated 27.07.2010. It appears strange as to why the IO did not do any investigation before filing the charge sheet as to when the complainant university was doubtful of the PhD claim of accused and had called for verification report of the PhD degree certificate on 27.07.2010, then what prompted it pending the reply from the Singhania University to have raised the salary from Rs. 25,000/ to Rs. 30,000/ w.e.f 01.08.2010 vide letter dated 25.08.2010. Going further, no investigation has been carried out by the IO of the Crime Branch as to when the verification report from the Singhania University was received in September 2010, (vide letter dated 20.09.2010), then why the salary of the accused was not reduced back to Rs. 25,000/ from Rs. 50,000/. Instead, the complainant kept on paying the enhanced salary @ Rs. 50,000/ per month till 06.04.2011 which was contemporaneous to the termination of the service of accused by order CR No.204447/16 & 204681/16 12 of 16 dated 18.04.2011. It is also strange that no investigation was carried out as to when the complainant in September 2010 had itself obtained the report from the concerned University that the alleged PhD degree certificate of the accused is not genuine, then why the termination letter did not at all make a reference thereof. Instead, the termination of service of accused has been shown on account of lack of sufficient work load at the Delhi Regional Center of the University. The IO of the Crime Branch for reasons best known to him also overlooked the investigation carried out by the previous IO/SI Dharmender that even subsequent to the verification report of September 2010 of Singhania University, accused was given additional responsibilities of Chief Superintendent for conducting the examination of the PMU vide letter dated 23.11.2010. These all facts lead to the only conclusion that the letter dated 13.08.2009 of the accused was never an inducement to the complainant University to raise his salary from Rs. 25,000/ to Rs. 50,000/ per month. As such, there is no question of the accused having caused any wrongful loss to the complainant university or wrongful gains to himself. The IO of the Crime Branch, it appears, also tried to cover up the earlier statement of the Administrative Officer Mr. Hiruthaya Nath by weirdly claiming that it was due to sprain in his forearm, that he had issued the salary statement of the month of August 2010 on CR No.204447/16 & 204681/16 13 of 16 the direction of accused therein showing the monthly salary as Rs. 1 Lac instead of Rs. 50,000/. As already noted, the investigation is also devoid of any material so as to connect the accused with either forging of PhD certificate or of its use for the purposes of cheating the complainant. So far as the offence u/s 409 IPC is concerned, again there are no merits in the submissions of Ld Counsel for the complainant. As can be seen from the investigation carried out by previous IO SI Dharmender, complainant in contradiction to his own claim that accused was handed over a blank cheque leaf at the time of inaugural ceremony of PSRPI, had written a letter dated 17.05.2011 to the Manager, Corporation Bank, Sarita Vihar, New Delhi therein informing him about missing of two cheques bearing no. 319764 and 319766 (the cheque in question). Not only that, the cheque no. 319764 was found to have been encashed in the account of PSRPI on 08.04.2010. Also, the previous IO examined the complainant in this respect wherein the complainant admitted both his assertions.
17. In view of the forgoing discussion, there are no sufficient grounds for proceeding against the accused for any of the offences punishable u/s 409/420/468/471 IPC. Accused stands discharged of the offence accordingly.
17. The aforesaid reasoning given by learned trial court is sound and correct and based on correct appreciation of facts and material on record. All the pleas as raised in the present petition have already CR No.204447/16 & 204681/16 14 of 16 been dealt by learned trial court while passing the order dated 04.05.2016. The cheque in question was presented by respondent in his bank for encashment on 28.04.2011. The same was dishonoured due to insufficiency of funds. The respondent issued legal notice to petitioner on 13.05.2011 and filed the complaint case under section 138 NI Act against him on 08.06.2011. The petitioner got the present case lodged against respondent on 28.05.2011 i.e. after receiving legal notice. The FSL authorities have already opined that the particulars of the cheque in question were not filled by respondent. The complainant earlier had written a letter to the Manager of Corporation Bank on 17.05.2011 stating that the two cheques including the cheque in question were missing. Later on, it was found that cheque no. 319764 which was reported as missing by complainant was used by him for transferring an amount of Rs.10,00,056/ in the account of PSRPI in UCO Bank, Jasola.
18. I have gone through the order impugned in the present petitions. There is no illegality, infirmity or perversity in the impugned order passed by learned CMM, SouthEast District, Saket Court, New Delhi. The impugned order has been passed on correct appreciation of the material available on record. The same does not call for any interference by this court. The petition filed by revisionists are devoid of any merit. They are dismissed accordingly.
19. Reader is directed to place attested copy of the common CR No.204447/16 & 204681/16 15 of 16 judgment passed in the file of CR No.204447/16 titled as Dr. N. Ramachandran Vs. B. Ramaswamy & Anr. in CR No. 204681/16 titled as State Vs. B. Ramaswamy.
20. A true copy of common judgment along with TCR be sent back to learned trial court concerned. Revision files be consigned to record room.
Announced in the open (RAJ KUMAR TRIPATHI)
court today i.e. 30.05.2017 Addl. Sessions Judge02
SouthEast, Saket Courts, New Delhi
CR No.204447/16 & 204681/16 16 of 16