Allahabad High Court
Dhanesh Chandra Saxena vs State Of U.P. And Another on 3 February, 2020
HIGH COURT OF JUDICATURE AT ALLAHABAD Judgement Reserved on 17.12.2019 Judgement Delivered on 03.02.2020 Court No. - 69 Case :- APPLICATION U/S 482 No. - 27504 of 2018 Applicant :- Dhanesh Chandra Saxena Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ambrish Chandra Pandey Counsel for Opposite Party :- G.A. With Judgement Reserved on 18.12.2019 Judgement Delivered on 03.02.2020 Case :- APPLICATION U/S 482 No. - 17889 of 2018 Applicant :- Smt. Sharda Bhargawa Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sheshadri Trivedi,Ajay Kumar Pandey,Shri Satish Trivedi (Sr. Advocate) Counsel for Opposite Party :- G.A. Hon'ble Dinesh Kumar Singh-I,J.
1. Heard the arguments of Sri Ambrish Chandra Pandey and Sri Sheshadri Trivedi, learned counsel for the applicants and Sri G.P. Singh and Sri B.A. Khan, learned A.G.A. for the State.
2. These Applications under Section 482 Cr.P.C. have been filed with prayers to quash the impugned charge-sheet dated 25.06.2018 filed under Sections 420, 467, 468, 471, 511, 209, 120-B of I.P.C. and Sections 13 (1) D and 13 (2) of Prevention of Corruption Act and charge-sheet dated 1.02.2018 filed under Sections 420, 467, 468, 471, 511, 204 of I.P.C. arising out of Case Crime No. 1753 of 2007, P.S. Kotwali, District Bareilly upon which learned Special Judge, Anti Corruption-I, Bareilly has been pleased to take cognizance of the offences by the orders dated 10.07.2018 and 12.03.2018 respectively as well as entire proceedings of Criminal Case No. 05 of 2018 (State Vs. Dharmesh Chandra Saxena) and Criminal Case No. 03 of 2018 (State Vs. Sharda Bhargawa) respectively.
3. As per F.I.R., the prosecution version is that an open enquiry was held in the matter of causing huge loss to Nagar Nigam by the officers'/officials' collusion by entering into compromise in Lok Adalat at a small amount of tax and in the said enquiry, it was found that between period 24.03.1996 to 16.05.1998 as many as 48 compromises were done in Lok Adalat, Bareilly, District Court and apart from those cases, in one case, being Case No. 92 of 1996 pending in the court of A.D.J.-VI, Bareilly, Kashinath Sharma and Smt. Sharda Bharghava, Kavisha Motors Private Limited, Rampur Road Vs. Nagar Nigam, Bareilly, during inquiry, it was revealed that the appeal was compromised for House Tax amount of Rs. 72,000/- in place of actual House Tax amount of Rs. 8,87,721/- and the said order reducing the House Tax amount dated 16.03.1997 was found to be forged.
4. On 16.10.1996, Vinay Saxena, Additional Engineer gave a notice to Kavisha Motors Private Limited, Rampur Road, Bareilly in respect of annual House Tax on 17.04.1997 in respect of which it was apprised to him that an appeal had been preferred by Kavisha Motors Private Limited against the fixation of House Tax on higher side in the Court of A.D.J.-VI and the said court vide order dated 16.03.1997 had reduced the annual House Tax to Rs. 72,000/- and a photocopy of the same was annexed with the said submission, upon consideration of which, Up Nagar Adhikari, D.C. Saxena, Bareilly had passed an order on 17.04.1997 directing Sri S.C. Johri, Revenue Inspector and Sri Shyam Mohan, Requisition Clerk that the demanded amount of tax be reduced.
5. Further it is mentioned that in enquiry, it also emerged that Raj Pal S/o Rameshwar Dayal R/o K.C. Nagla, P.S. Gathiya, District, Shahjahanpur, the then Kar-Sahkarta, Nagar Nigam, Bareilly had given in his own writing and under a signature, a letter to Sri D.C. Saxena (accused-applicant) in which he had admitted that copy of that judgement of court was given by him on 10.07.1997 to Kavisha Motors. In the court, there was no such file available in which such an order was passed, thus the accused applicant along with other co-accused, Smt. Sharda Bhargawa who is named in F.I.R. had colluded with each-other and had forged court's order showing the reduction of the House Tax to the tune of Rs. 72,000/- although the same was actually assessed to be Rs. 8,87,721/-, thus they had committed offences under Sections 420, 467, 468, 120-B I.P.C., sections 13(2) read with section 13 (1) P.C. Act, 1988.
6. The submission made by learned counsel for the applicants in Application U/s 482 No. 27504 of 2018 is that as per allegation made in F.I.R., the Nagar Nigam, Bareilly had imposed House Tax of Rs. 8,87,721/- upon Kavisha Motors Private Limited through its Director who is one of the co-accused i.e. Sharda Bhargawa, against which an appeal was filed in which compromise/settlement was reached vide order dated 16.03.1997 to an amount of Rs. 72,000/- which was passed by Additional District Judge-VI, Bareilly which was found to be a forged one. In the enquiry conducted, it was found that Raj Pal, Tax Collector, Nagar Nigam, Bareilly had admitted that the said order was given by him. The applicant has retired as District Commissioner, Nagar Nigam, Bareilly. Further it was alleged that one Sharda Bhargawa had presented a letter before Nagar Nigam, Bareilly on 17.07.1997 mentioning therein about order of court dated 16.03.1997 and relying upon the said judgement, the applicant, who was posted as Up Nagar Adhikari, Bareilly, Nagar Nigam had directed to make necessary correction. Accordingly, necessary corrections were made in notes but on enquiry, it was found that no such judgement was ever delivered by the said court and that the applicant had conspired with other officials of the Nagar Nigam who have been nominated in F.I.R. as co-accused to cause wrongful loss to Nagar Nigam and to earn wrongful gains for himself. On 22.10.1996, the House Tax Department, Nagar Nigam had issued a proposal showing that house in dispute had been proposed assessment of annual rental value of Rs. 8,87,721/-, copy of the notice is annexed as Annexure-4. In response to the said assessment, an application was submitted by the assessee dated 9.12.1996 stating that the annual rental value of the house/premises in question had been wrongfully assessed as Rs. 8,87,721/- rather it ought to have been Rs. 2,87,000/-. Upon the said application, orders were passed by the concerned official of Bareilly Nagar Nigam to make necessary correction in the bill, copy of which is annexed as Annexure-5. On 17.04.1997, one Smt. Sharda Bhargawa who is owner of the disputed property, obtained copy of judgement of the court of A.D.J.-VI, Bareilly passed in Misc. Case No. 92 of 1996, Kashi Nath Sharma and Smt. Sharda Bhargawa Motors Pvt. Limited Vs. Nagar Nigam, Bareilly, in which rental value of the premises was shown to be Rs. 72,000/-, thereafter photo-copy of the said judgement was filed before Nagar Nigam, Bareilly with a covering letter by co-accused, Smt. Sharda Bhargawa showing that the concerned court had reduced the rental value of the said premises. On the said letter, applicant passed the order, "please get it corrected" and directed the other officials for correction of the assessment. Copy of the said judgement with covering letter is annexed as Annexure-6. On 18.7.1997, the applicant directed the Demand Clerk, Shyam Mohan to verify as to whether judgement passed by the A.D.J.-VI was genuine but till July, 1997, no report of verification was given to the Nagar Nigam and on 2.07.1997, Shyam Mohan Bansal wrote a letter to the applicant with regard to the verification of said judgement, true copy of which is annexed as Annexure-7. On 2.07.1997 after receiving letter from Shyam Mohan Bansal, the applicant sent a letter to pairokar, Nagar Nigam i.e. Chandra Bhan and again directed him to get the said judgement verified and to appear before him to apprise about actual position, copy of the letter is Annexure-8 of the application. On 4.07.1997, the pairokar, Chandra Bhan gave a written information to the clerk, Shyam Mohan Bansal that the judgement which was submitted before Nagar Nigam was forged one as no such case was filed before A.D.J. Court, the said information is annexed at Annexure No. 9. Thereafter on 5.09.1997, Demand Clerk, Shyam Mohan Bansal gave a written information to the applicant that the judgement of Court filed before Nagar Nigam was a forged one and after receiving of this information, the applicant on the same day wrote for taking action against the party. Thereafter, several letters were sent to Sharda Bhargawa through the applicant and Additional Mukhya Nagar Adhikari for showing original copy of the judgement. On 5.07.1997, the applicant sent a letter to Mukhya Nagar Adhikari, Nagar Nigam, Bareilly informing that the assessment was already made earlier as Rs. 8,87,721/- and there was no loss caused to Nagar Nigam and also sought direction from him to initiate legal proceedings against Smt. Sharda Bhargawa. On 10.07.1997, Smt. Sharda Bhargawa wrote a letter to Additional Mukhya Nagar Adhikari stating that judgement was made available to her by one Raj Pal Singh and she also presented the statement given by Raj Pal in which he had accepted that the judgement was given by him. On 11.07.1997, the applicant again sent reminder about the whole incident to higher authorities making recommendation for action against the persons who were found guilty. Mukhya Nagar Adhikari, Nagar Nigam, Bareilly after being satisfied, recommended for lodging of F.I.R. against co-accused, Sharda Bhargawa and was satisfied with the steps taken by the applicant regarding lodging of F.I.R. and initiating disciplinary proceedings against other officials. On 17.07.1997, applicant wrote a letter to D.G.C. for his opinion in respect of lodging of F.I.R. against co-accused, Sharda Bhargawa. On 19.07.1997, Additional Mukhya Nagar Ahikari, Nagar Nigam, Bareilly wrote a letter to the applicant stating that the concerned file of Kavisha Motors should be made available to him whereafter on the same day, applicant sent the said file to him through Clerk, Shyam Mohan Bansal. On 04.08.1997, applicant again wrote a letter to Mukhya Nagar Adhikari stating that due to non availability of file which is pending before Additional Mukhya Nagar Adhikari, no action could be taken in the tax matter. Upon this letter, Additional Mukhya Nagar Adhikari passed an order stating that the forged assessment has already been rejected by the applicant, therefore tax should be recovered as per old assessment. The applicant had filed a Writ Petition before this Court challenging the F.I.R. dated 26.07.2007 by filing Crl. Misc. Writ Petition No. 6104 of 2008 in which his arrest was stayed vide order dated 16.04.2008 but the said petition was finally disposed of on 10.09.2009 giving protection to him against arrest till the submission of charge-sheet.
7. Charge-sheet which was submitted against co-accused, Smt. Sharda Bharwawa, Director of M/s Kavisha Motors was challenged in Crl. Misc. Application No. 17889 of 2018 and vide order dated 23.05.2018, order was passed to the effect that no coercive measure shall be adopted against the applicant. Sanction under Section 19 of P.C. Act and Section 197 Cr.P.C. was granted by the State Government on 2.05.2018 which is invalid as it has been given in mechanical manner without application of mind. The applicant is senior citizen of 72 years and has retired from service who has been harassed and victimized. No evidence has been collected against him indicating his involvement, therefore, charge-sheet needs to be quashed.
8. The facts given in Application U/s 482 No. 27504 of 2018 are similar with the facts given in Application U/s 482 No. 17889 of 2018 except that Smt. Sharda Bhargawa, co-accused had moved a Crl. Misc. Writ Petition No. 11119 of 2007 in which order was passed to the effect that no coercive measure shall be adopted against her. Rest of the facts are common.
9. From the side of co-accused, Sharda Bhargawa, it was argued that the said order was not forged by her as the same has been forged somewhere else of which she has no knowledge. She has nothing to do with the said order.
10 It is apparent that as per F.I.R., the original assessment of House Tax against the premises of Kavisha Motors Private Limited, Rampur Road was assessed to be Rs. 8,87,721/- but an application was given from the side of its Director, Smt. Sharda Bhargawa that the said amount had been reduced to Rs. 72,000/- by the Court's order dated 16.03.1997 which was purported to have been passed by A.D.J.-VI, Bareilly but subsequently when an enquiry was made into this matter, it turned out that the said order was forged one, on the basis of which, an effort was being made by Smt. Sharda Bhargawa to get her house tax reduced.
11. Reliance is being placed upon Dashrath Singh Chauhan Vs. Central Bureau of Investigation 2018 Supreme Court Law Suit (SC) 1019 in which it was held that in order to attract the rigours of Sections 7, 13(2) read with Section 13(1)d of P.C. Act, the prosecution is under legal obligation to prove the twin requirements of demand and acceptance of bribe by the accused. Proving of one alone but not the other, would not be sufficient.
12. First of all there is no quarrel with the said principle of law as far as this matter is concerned but it has to be kept in mind that not only the offences under Section 13(1)d and 13(2) of P.C. Act are stated from the side of prosecution to have been committed by the applicants but there are other sections also which pertain to I.P.C. i.e. Sections 420, 467, 468, 471, 511, 209 and 120-B I.P.C. Section 120 (B) I.P.C. is of wide connotation which relates to conspiracy of committing the offence and in the case in hand, co-accused, Sharda Bhargawa appears to be the beneficiary of the alleged forged order of the court below by whom it was tried to be placed before the authorities of Nagar Nigam that the house tax assessment was reduced by court by the said order to the tune of Rs. 72,000/- from the earlier assessment of Rs. 8,87,721/- which turned out to be a forged one. The presenting of the said order before the Nagar Nigam Authorities would certainly constitute an offence under Section 420 I.P.C., if not other sections and rest of the sections whether under those sections, offence is made out, could be seen only after full evidence is led in this matter. As regards the accused Dhanesh Chandra Saxena, he is the person who had passed order of reduction of the assessment of House Tax based on the alleged forged order of the Court, hence whether he was involved in conspiracy by which he would have caused loss to the Nagar Nigam is also a matter which can be decided only after evidence is led from the side of prosecution. In this case, charge-sheet has been submitted from the side of prosecution after having examined as many as 17 witnesses, veracity of the statements of those witnesses cannot be scrutinized in proceedings under Section 482 Cr.P.C. as the same would require full trial.
13. Reliance is also being placed upon Sheila Sebastian Vs. R. JawaharRaj & Another Etc 2018 Law Suit (SC) 489 in which it is held that unless and until ingredients under Section 463 I.P.C. are satisfied, a person cannot be convicted under Section 465 I.P.C. by solely relying upon ingredients of Section 464 I.P.C. Offence of forgery cannot lie against a person who has not created it or signed it.
14. As regards this principle of law, there is no quarrel with the principle but again reply to this ruling is that no benefit could be given of this ruling to the applicants because in the present case, there is offence alleged to have been committed under Section 120-B IPC as well which means that applicants could be involved in conspiracy to give effect to the occurrence.
15. The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
16. 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 applicants. 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, 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.
17. The prayer for quashing the proceedings is refused.
18. The applicants shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicants in the aforesaid case. But if the accused do not appear before the court below within the said time period, the court below shall take coercive steps to procure their attendance.
19. With this direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date:-03.02.2020 A. Mandhani