Delhi District Court
Mrs. Asha Rani & Ors. vs . Mrs. Seema Bhardwaj & Anr. - Cr No. ... on 24 November, 2016
IN THE COURT OF SH. VIRENDER KUMAR BANSAL, ADDITIONAL
SESSIONS JUDGEIII: NORTH DISTRICT, ROHINI COURTS: DELHI
Crl. Revision Nos.: 57432/16 & 57433/16
In the matter of :
1. Mrs. Asha Rani
W/o. Sh. Suresh Kumar
R/o. H.No. A5/144, Sector17,
Rohini, Delhi.
2. Mrs. Renu Raina
W/o. Sh. A.K. Raina
R/o. 81D, Ayodhya Apartment,
Sector13, Rohini, Delhi110085.
3. Mrs. Neha Gupta
W/o. Sh. V.K. Gupta
R/o. C11/117, Sector3,
Rohini, Delhi110085.
4. Mrs. Saraswathy
W/o. Sh. R.G. Subramanyan
F6/152, Sector16, Rohini,
Delhi110089.
5. Mrs. Mamta
W/o. Sh. Anil Kumar
R/o. BH39, 3rd Floor,
East Shalimar Bagh,
Delhi110088.
6. Mrs. Meenakshi Arora
Sh. Vipin Arora
R/o. G9/54, Sector15, Rohini,
Delhi110089.
7. Mrs. Bidya Jha
W/o. Sh. P.K. Jha
R/o. A274, Harit Vihar,
Sant Nagar, Burari, Delhi.
Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16
& Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 1 ::
8. Mrs. Avneet Kaur
W/o. Sh. Mandeep Singh
R/o. C5D/41B, Janakpuri,
New Delhi.
9. Mrs. Rinku Bhat
W/o. Sh. Kuldip Kumar Bhat
R/o. H.No. 1793, Jain Nagar,
Rohini, Delhi.
10. Mrs. Poonam Kumar
W/o. Sh. Ravi Kumar
R/o. A5/21, Sector16,
Rohini, Delhi110089.
11. Mrs. Deepu Walia
W/o. Sh. Manish Walia
R/o. F69, 2nd Floor, Kamla Nagar,
Delhi110007.
12. Mrs. Analjeet Kaur
W/o. Sh. Pradeep Singh
R/o. I5/19, 1st Floor, Sector16,
Rohini, Delhi110089.
13. Mrs. Krishna Kumari
W/o. Sh. Pappu Rajak
R/o. G/12/80, Sector15,
Rohini, Delhi110089. .........Revisionists
Vs.
1. Mrs. Seema Bharadwaj
W/o. Sh. Ashutosh Bharadwaj
R/o. 59, Suvidha Kunj, Saraswati Vihar,
Delhi110034.
(Respondent No. 1 in Crl. Revision No. 57432/16)
& Mr. Ashutosh Bhardwaj S/o. Sh. L.C. Bhardwaj R/o. 59, Suvidha Kunj, Saraswati Vihar, Delhi110034.
(Respondent No. 1 in Crl. Revision No. 57433/16) Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 2 ::
2. State Through Government of Delhi Delhi. ..........Respondents Date of institution : 17.08.2016 Date of reserving the order : 11.11.2016 Date of order : 24.11.2016 ORDER
1. Both the revision petitions are taken together as same are arising out the same order dated 30.10.2015.
2. These two revision petitions have been preferred by Mrs. Asha Rani and others (hereinafter referred to as complainants/petitioners) against the order dated 30.10.2015 vide which ld. Trial Court has discharged Mrs. Seema Bharadwaj and discharged Mr. Ashutosh Bharadwaj for the offence punishable u/s. 384/120 B/406 IPC and to emphasise that sections 470/471 and 409 IPC are also attracted.
3. The brief facts giving rise to the present revision petitions are that complainants/petitioners are employed in St. Angel Senior Secondary School, A Block, Sector 15, Rohini, Delhi. They filed a complaint against Seema Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 3 ::
Bharadwaj, the Principal and Ashutosh Bharadwaj, Manager of the school alleging that accounts of the complainants/petitioners and other teachers are opened at Oriental Bank of Commerce, Nangloi after putting them under threat of dismissal. The Manager i.e. Sh. Ashutosh Bharadwaj also obtained presigned cheques from the teachers including petitioners herein. In the Pay Roll Register payment of complete salary was reflected. It was credited in the respective bank accounts of the teachers opened at Oriental Bank of Commerce, Nangloi. But thereafter salary was withdrawn from those accounts using the presigned cheques and transferred to the accounts of Bal Shaikshink Avam Baudhik Vikas Samiti and St. Angel Senior Secondary School. Mrs. Seema Bharadwaj was the Treasurer of Bal Shaishnik avam Baudhik Vikas Samiti and was also authorised signatory of the account of the Samiti as well as school. The complainants/petitioners objected to it before Seema Bharadwaj and she told the complainants/petitioners that if she does not want to be Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 4 ::
dismissed from the job she they has to follow the rules. On the day of salary, all the teachers used to be called by the accused persons in the room of the Manager and salary of lesser amount in separate envelopes used to be handed over to them which used to be 20% to 50% of the actual amount. The salary from the account of teachers was also transferred to the account of Hem Chander Jain Memorial Educational and Social Welfare Society of which Ashutosh Bharadwaj was the office bearer. It is alleged that the accused persons misappropriated the hard earned wages of the complainant and other staff of the school by forging documents and signatures. On this complaint, ld. M.M. got the FIR registered u/s. 156 (3) Cr.P.C. Investigation was carried out. The charge sheet was filed. Ld. M.M. after hearing the arguments passed the order discharging Seema Bharadwaj and Ashutosh Bharadwaj and directed to frame charge u/s. 420 and 506 IPC against accused Ashutosh Bharadwaj. Aggrieved by the said order, present revision petitions have been Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 5 ::
preferred. Notices of both the revisions were given to the respondents and to the State. Trial court record was requisitioned.
4. It is also pertinent to mention here that State preferred criminal revision petition no. 57475/16 against the same order of discharge of Seema Bharadwaj and Ashutosh Bharadwaj under various sections and that revision was disposed of vide order dated 30.07.16 whereby the order discharging Seema Bharadwaj was upheld. The charge framed against Ashutosh Bharadwaj for offence punishable u/s. 420 and 506 IPC was also set aside. The trial court was directed to re frame the charge against Ashutosh Bharadwaj u/s. 384 and 506 IPC.
5. I have heard ld. Counsel for the revisionists, ld. Counsel for the respondents and perused the record.
6. Ld. Counsel for petitioners submitted that so far as respondent Seema Bharadwaj is concerned, she was the Chairperson of School Managing Committee from the date of its inception. However, later on she got Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 6 ::
herself appointed as Principal of the School w.e.f. March, 2000 and continued in that capacity till date. Complainants/petitioners were appointed on different dates in this School. Seema Bharadwaj is also Treasurer of Bal Shaikshnik Avam Baudhik Vikas Samiti. She was earlier President at the time of inception. She is also authorised signatory in the bank account no. 1629 opened in Oriental Bank of Commerce , Nangloi. It is that Society which supported the school namely St. Angel Senior Secondary School. The School is recognized unaided private school and the provisions of the Delhi School Education Act, 1973 and rules thereunder are applicable. When the complainants/revisionists got appointment they were under the belief that they will get the salary as per norms. But respondents herein in connivance with Ashutosh Bharadwaj applied this modus operandi and siphoned of hard earned money of petitioners herein. In this case, the statements have been recorded which clearly shows that the crime of cheating, extortion, Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 7 ::
forgery and criminal breach of trust continued for a long period till the revisionists herein approached the law enforcing authority. The trail of money from the account of complainants/revisionists to account no. 1629 and 1631 clearly link the accused/respondents with the crime. It is important to note that Ashutosh Bharadwaj is the Manager of the School since inception and they are also authorised persons to operate. Account No. 1629, Oriental Bank of Commerce and account no. 1631, Oriental Bank of Commerce, Nangloi Branch of Bal Shaikshnik Avam Baudhik Vikas Samiti and St. Angel Senior Secondary School. In fact, Ashutosh Bharadwaj has also opened a bank account in the name of society namely Hem Chander Jain Memorial Educational & Social Welfare Society. The said society has no relation with St. Angel Senior Secondary School. The said Society was started by Smt. Sheela Devi Jain. Later on, accused Ashutosh Bharadwaj entered this society by illegal means and also opened account in illegal manner in connivance with bank officials and in violation of bye Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 8 ::
laws of the society. The bank account is opened only making him the authorised person whereas according to byelaws of the society there has to be two authorised persons even the persons who had allegedly signed the authority letter to open the account refused having made such application or authority. Ld. Counsel submitted that the trail of money from the account of complainants/revisionists had also gone to the account of Hem Chander Jain Memorial Educational & Social Welfare Society which clearly shows the involvement of Ashutosh Bharadwaj, who had dishonestly got the money transferred in his account. Ld. Counsel submitted that at the stage of framing of charge, the court has to primafacie consider whether there is sufficient ground for proceeding against accused. The court is not required to appreciate the evidence to conclude whether the material produced is sufficient or not for convicting the accused. If on the basis of material on record, the court could come to the conclusion that commission of the offence is probable consequence; case for framing Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 9 ::
of charge exist. To put it differently, if the court were to think that the accused might have committed the offence, it can frame the charge, though for conviction, the conclusion is required to be that the accused has committed the offence. It is apparent that at the time of stage of framing of charge, probative value of the material on record cannot be gone into. The material brought on record by the prosecution is to be accepted as true at this stage. Ld. Counsel submitted that in this case, it is clear that both the accused persons have misappropriated hard earned amount of complainants/petitioners, extended threats and Ashutosh Bharadwaj also siphoned of the money of the petitioners herein to Hem Chander Jain Memorial Educational & Social Welfare Society. It is prayed that all these aspects escaped the consideration of ld. Trial court resulting into discharge. Ld. Counsel submits that order of ld. Trial court be set aside and both the accused persons be charged for the offence punishable 420, 409 and 506 IPC. Accused Ashutosh Bharadwaj be also Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 10 ::
charged for the offences punishable u/s. 384, 470, 471 IPC.
7. Ld. Counsel for the respondents submitted that the trial court has rightly discharged Seema Bharadwaj of all the charges as there is no evidence that she in any manner with dishonest intention made any misrepresentation to any of the petitioners or induced any of the petitioners to part with their salary which they would not have done if not so deceived by the dishonest misrepresentation of Seema Bharadwaj.
8. Ld. Counsel further submitted that for making out an offence u/s. 420 IPC, this is an important ingredient which is missing, hence no offence u/s. 420 IPC is made out against her. Ld. Counsel further submitted that admittedly she is Principal of the School and being Principal she ensured that the entire salary is being paid to all the teachers and the staff employed. The account statements clearly show that entire salary was credited to the account of the petitioners. Ld. Counsel further submitted that in this case there is statement of Ram Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 11 ::
Vinay on record who has not uttered a word against Seema Bharadwaj in the letter written by him in his own hand writing whereas the prosecution's case only stands on the testimony of Ram Vinay. None of the petitioners either in the complaint or in their statements uttered a single word that Seema Bharadwaj in any manner made any dishonest representation. Hence, trial court rightly discharged her. Ld. Counsel further submitted that so far as the offence punishable u/s. 409 IPC is concerned, there is no evidence on record that any of the petitioners was ever entrusted with any amount or any cheque to the respondents herein. As per the evidence collected and as per the statement of Ram Vinay those cheques were only with Ashutosh Bharadwaj. Ld. Counsel submitted that even therein also there is no such averment that those cheques or any other property was entrusted by them to Ashutosh Bharadwaj. There is also no evidence that Ashtosh Bharadwaj was in any manner made any misrepresentation with dishonest intention to cheat the petitioners/complainants herein or Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 12 ::
induced the petitioners herein to part with their hard earned money. Ld. counsel submits that so far as Seema Bharadwaj is concerned only allegation against her is that she said to petitioner No.1 when she approached her that if she does not want to be dismissed from the job then she has to follow these rules. Ld. Counsel submitted that there is nothing wrong if the Head of Department herein in this case the Principal asked the teachers to follow the rules. It also does not amount to any threat. However, if it is taken as a threat still simple threat without any alarm has no meaning. In the complaint or in the statement no date or time is mentioned when such threat was given. It is also important to note that this was continuing according to the petitioners since 2008 but the complaint was lodged only on 02.11.2010 which clearly shows that there was no alarm raised due to any such threat. However, if there would have been alarm caused due to this threat, petitioners must have approached the authorities and that is why no offence u/s. 506 IPC is made out. It is Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 13 ::
prayed that there is no merit in the revision petition filed challenging the order of discharge of Seema Bhardwaj same be dismissed.
9. Ld. Counsel further submits that so far as Ashutosh Bharadwaj is concerned, the revisionist court has already passed the order directing the trial court to frame the charge punishable u/s. 384 and 506 IPC. Ld. Counsel further submitted that so far as the offence u/s. 470, 471 and 409 IPC are concerned, there is no evidence that he forged any document or used any forged document as genuine. On the strength of which the account was opened, is not found to be forged. No witness states that it does not bear his signature or the signatures were forged by Ashutosh Bharadwaj or Ashutosh Bharadwaj was in the knowledge that it was the forged document and knowingly used that forged document as genuine. Ld. Counsel submitted that further there is no evidence on record that petitioners herein entrusted any property or cheques to Ashtutosh Bharadwaj. Ld. Counsel submitted that for making out Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 14 ::
an offence of criminal breach of trust, there must be first creation of trust which fact is missing in this case and therefore, Trial Court rightly discharged Ashutosh Bharadwaj. It is prayed that there is no merit in the revision petitions. Same be dismissed.
10. After hearing the parties and going through the record, I agree with the contention of ld. Counsel that at the stage of framing of charge, evidence is not to be weighed in minute scale to find out if the trial will culminate in conviction or acquittal. It is to be seen whether the evidence collected raises strong presumption against the accused regarding commission of offence. In the present case, complainants/petitioners allege that they have been cheated by the accused persons. The ingredient of cheating is making dishonest representation or inducement to a person and due to that dishonest mispresentation or inducement, the person does some act or omit to do some act which he would not have done or omitted to do if he was not so deceived coupled with wrongful loss and wrongful gain. Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 15 ::
In the present case, there is no such statement of any of the witness that any of the accused made any such dishonest representation or made inducement due to which they parted with the property, in this case the cheques otherwise, it would not have done if not so deceived by the dishonest misrepresentation of Seema Bharadwaj and Ashutosh Bharadwaj. Though they alleged that they have suffered wrongful loss and there is wrongful gain to Ashutosh Bharadwaj as money is transferred in the name of Hem Chander Jain Memorial Educational & Social Society and Bal Shaikshnik Avam Baudhik Vikas Samiti of which Seema Bharadwaj as well as Ashutosh Bharadwaj are the authorised signatories. In the absence of such evidence, no offence of cheating is made out. The other contention is that the accused persons have misappropriated their money and thereby committed the offence of criminal breach of trust. For making out the offence of criminal breach of trust, there must be entrustment of property to some person and that person to whom the property is Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 16 ::
entrusted, commits breach and misappropriate the same. Herein the present case, there is no such averment or evidence by the complainants/petitioners that they had entrusted any money or the cheques either to Seema Bharadwaj or Ashutosh Bharadwaj which she or he had coverted to his/her own used or misappropriated property or money. As the first ingredient of offence is lacking, therefore, there is no question of criminal breach of trust. It is also contended that Ashutosh Bharadwaj opened the account in the name of Hem Chander Jain Memorial Educational and Social Welfare Society on the basis of forged authority letter and in violation of byelaws of the society. But there is authority letter on record on the basis of which, the account was opened. There is no evidence that the authority letter was forged. The evidence is not coming on record that he is the person who has signed that authority letter or he has such knowledge that the signatures on the authority letter are forged. For making out an offence u/s. 468 firstly, it has to be brought on Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 17 ::
record that it is the accused who has forged the document but there is no such evidence. For making out an offence u/s. 471, it is required that the accused was having knowledge that the document is forged and with that knowledge, he used that document as genuine. Again there is no evidence brought on record or collected during investigation that Ashutosh Bharadwaj was knowing that the authority letter is forged. Hence, no offence u/s. 471 IPC is disclosed from the charge sheet and evidence collected.
11. Keeping in view the above discussion, I found that so far as the order of ld. Trial Court regarding the discharge of Seema Bharadwaj and Ashutosh Bharadwaj is concerned, there is no illegality. It is important to note here that in the other revision petition no. 57475/16 decided on 30.07.2016, ld. Trial Court has already been directed to frame the charge against Ashutosh Bharadwaj u/s. 384 and 506 IPC. Therefore, ld. Trial Court is directed to frame the charge as per that order against Ashutosh Bharadwaj. Revision petitions Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 18 ::
are disposed of accordingly. Copy of order along with trial court record be sent back. Revision files be consigned to Record Room.
Announced in the Open Court (V. K. Bansal)
on 24.11.2016 Addl. Sessions Judge(03)
North District, Rohini Courts.
Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 19 ::
Crl. Revision No. 57432/16 & 57433/16 24.11.2016 Present: None Vide separate order announced in open court, both the revision petitions stands disposed of. Copy of order along with TCR be sent back.
Revision files be consigned to Record Room.
(Virender Kumar Bansal) ASJ3/North, Rohini Courts 24.11.2016 Mrs. Asha Rani & Ors. vs. Mrs. Seema Bhardwaj & Anr. - CR No. 57432-33 /16 & Mrs. Asha Rani & Ors. vs. Mr. Ashutosh Bharadwaj & Anr. :: 20 ::