Madhya Pradesh High Court
Kamalkant Tiwari vs The State Of Madhya Pradesh on 20 January, 2016
M.Cr.C. No. 2821/2014.
(1)
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
M.Cr.C. No. 2821/ 2014.
Kamalkant Tiwari.
Versus
State of Madhya Pradesh.
For the petitioner: Shri Mahendra Pateria, Advocate.
For the respondent/State: Shri R.S. Shukla, Panel Lawyer.
ORDER
(20/01/2016) Per S.K. Gangele J The petitioner has filed this petition under Section 482 of the Cr.P.C. for quashment of FIR registered against the petitioner at Police Station STF, Bhopal and further proceedings pending against the petitioner vide Sessions Trial No. 877/2013 for the offence punishable under Section 420, 465, 467, 468, 471, 120-B of the IPC and under Section 3(Gha), 1, 2/4 of the Madhya Pradesh Manyata Prapta Pariksha Adhiniyam. The case was listed for admission. Learned counsel for the petitioner contended that the petitioner is suffering from cancer, hence with the consent of counsel the case is heard finally.
2. Petitioner is a Chairman of Shri Sai Gramothan Samiti registered under the provisions of Societies Registrikaran Act, 1973. The society has been imparting professional education to the students. It is running dental college named as Mansarovar Dental College at Bhopal. The College is affiliated with Barkatullah University, Bhopal and is being governed in M.Cr.C. No. 2821/2014.
(2)accordance with Rules and Regulations framed by the University.
3. Some students of the University made a complaint to the Dy. Superintendent of Police STF Bhopal M.P. Mr. D.S. Baghel that there were irregularities in the BDS examination conducted by Barkatullah University with the connivance of staff of the education department of the University, the students used to get passed in the examination by paying an amount of Rs. 20,000/-. Students do not write answer sheets, some other persons sitting outside the examination Centre write answers in the answer-sheets and thereafter those answer-sheets were deposited with the examiners. Mr. Sajjan Singh Parmar, Devarat Nayak and Touhid were involved in the aforesaid activities and Sajjan Singh Parmar was the main person. On the basis of the aforesaid letter the police conducted the investigation and after investigation the police filed charge-sheet before the Judicial Magistrate, Bhopal against 44 persons including students, teachers and Assistant Professors.
4. It is mentioned in the charge-sheet that Mr. Upendra Singh who was on the duty of Examination Centre used to supply blank answer-sheets and papers to other persons who were sitting at another place at the distance of 500-600 meters and thereafter, after filling of the answer-sheets those were returned to Mr. Upendra Singh. For the aforesaid act he gets Rs.
M.Cr.C. No. 2821/2014.
(3)5000/- per copy. Mrs. Mamta Jharvade also used to help Mr. Upendra Singh. Mr. Devbrat Nayak, Shivendra Ambulkar, Tohil Ali and Abhijeet Pandey used to write answer-sheets on behalf of the students. Other persons namely, Lalit, Amrit Patle and Upendra Singh were also involved, who were the employees and their duties were assigned at the examination centre. Some students were also arrested who informed the police that they had paid an amount for the purpose of clearing the examination. There was no practical examination. It is mentioned in the charge-sheet that during investigation statement of Mr. Seetal Kumar Ruddrappa Senior Professor Oral Surgery, Mansarovar Dental College, Bhopal was recorded. He stated that the present petitioner who was suffering from an ailment of throat cancer was also informed by him about the irregularity but the present petitioner had not taken any action. This is the only evidence against the present petitioner. On the basis of the aforesaid statement the present petitioner has been made accused. The statement of Mr. Seetal Kumar Ruddrappa is on record. He stated that he was appointed as Senior Lecturer in Oral Surgery, Department of Medicine in December, 2009 and was promoted as Reader in July, 2012. The Dental College is being run by the society namely Mansarovar Group of Institution and the present petitioner is CMD of the Group. Mr. Vinay Kumar Hiramath is Principal of the College, Mr. Sachin M.Cr.C. No. 2821/2014.
(4)Jain is Administrative Officer, Mr. Basant Verma is Accountant and Mr. Rahul Pandey PRO . The examination of BDS was conducted in May-June 2013. Mr. Basant Verma had given me loose answer-sheets supplied by the University for valuation. The answer-sheets were of the subject of Oral Surgery. Mr. Basant Verma instructed me to check the answer-sheets and further instructed me that I had to write the numbers inside the answer-sheets and did not write the total numbers on the front page neither put signature on the front page. He further stated that he had given the numbers after checking and did not mention the numbers on the first page and returned back the copies to Mr. Basant Verma, thereafter, I had informed the aforesaid fact to the Principal Mr. Vinay Kumar Hiramath. He further deposed that the present petitioner had undergone surgery of mouth cancer and he had under went Radiotherapy and chemotherapy, hence, he used to call me for checking during this period. I had told the petitioner about the act but he kept mum and did not take any action. The exact statement of Mr. Seetal Kumar Ruddappa which is in regard to the petitioner reads as under in Hindi:
" D;ksafd gekjs lh0,e0Mh0 ds0 ds0 frokjh dk eqg ds dSalj dk vkijs'ku] jsfM;ks FkSjsih vkSj dheksFkSjsih gqbZ Fkh] blh fy, dHkh&dHkh oks eq>s pSd djus ds fy, cqykrs Fks A blh nkSjku eSus dkWyst es py jgh xMcMh ds ckjs esa lh0,e0Mh0 dks crk;k rks lh0,e0Mh0 us esjh ckr lqudj pqi gks x, vkSj uk gh dksbZ dk;Zokgh dh A ;gh esjk dFku gSA "
There is no evidence against the petitioner except this to M.Cr.C. No. 2821/2014.
(5)substantiate the charges for which he has been charged. It is an admitted fact that the petitioner had under went an operation for mouth cancer at the relevant time and he was taking Radiotherapy and chemotherapy. The petitioner was CMD of a group named as Mansarovar Group of Institution which has been running number of institutions including the dental college. As per the petitioner he had under went surgery for mouth cancer in the year 2010 at Breach Candy Hospital, Munbai. The cancer was again surfaced in the year 2013 and he had under went another surgery in 2013. He was also undergoing Radiotherapy and chemotherapy. Copy of prescriptions of Breach Candy Hospital have been filed. As per those documents the petitioner had Carcinoma left gingivo- buccal sulcus and he was also admitted in the hospital in the year 2013. The petitioner was also treated at Jaslok Hospital and Saifee Hospital Mumbai.
5. Learned counsel appearing on behalf of the petitioner has contended that there is no evidence to connect the petitioner with the offence as alleged. He has further submitted that continuation of the prosecution of the petitioner amounts to abuse of process of law. Hence, proceedings against the petitioner be quashed.
6. Learned P.L. appearing on behalf of the State has admitted the fact that except the evidence of Mr. Seetal Kumar M.Cr.C. No. 2821/2014.
(6)Ruddrappa, there is no evidence on record against the petitioner, copy of the charge-sheet has been filed is on record.
7. The question for consideration before the court is that whether the petitioner can be prosecuted for commission of offence punishable under Sections 420, 465, 467, 468, 471, 120-B of the IPC and under Section 3(Gha), 1, 2/4 of the Madhya Pradesh Manyata Prapta Pariksha Adhiniyam on the basis of the evidence of Mr. Seetal Kumar Ruddrappa. There is no dispute that the petitioner had under went surgery of mouth cancer, he was also admitted in 2013 at Breach Candy Hospital and he has been taking treatment since 2010. Witness Mr. Seetal Kumar Ruddrappa himself stated that the petitioner was taking treatment of Radiotherapy and chemotherapy, hence, he used to call him for checking during this period. I told him about the illegalities in the college but he kept mum and did not take any action. There is no mention of the fact by the witness that what illegality he had told the petitioner, it has been stated by him that " blh nkSjku eSus dkWyst es py jgh xMcMh ds ckjs esa lh0,e0Mh0 dks crk;k rks lh0,e0Mh0 us esjh ckr lqudj pqi gks x, vkSj uk gh dksbZ dk;Zokgh dh ". The witness did not tell that what information he had given to the petitioner whether it was the information about the conduct of examination. He only said that he had told the petitioner about gadbadi (xMcMh) in the college. There is no evidence that the petitioner had given any instruction to any other employee, M.Cr.C. No. 2821/2014.
(7)lecturer or teacher in regard to the act which is alleged to have been done by other persons or students. There is also no evidence to the effect that the petitioner had received any gratification or he was actively participated or involved in the activities. The petitioner has been charged for commission of offence punishable under Sections 420, 465, 467, 468, 471, 120-B of the IPC and under Section 3(Gha), 1, 2/4 of the Madhya Pradesh Manyata Prapta Pariksha Adhiniyam.
8. Section 420 of the IPC is about cheating. The section reads as under:-
"420. Cheating and dishonestly inducing deli every of property. - Whoever cheats and thereby dishonesty induces the person deceived to deliver any property to any person , or to make, alter or destroy the whole or any part o a valuable security , or anything which is signed or sealed, and which is capable of being converted into a valuable security , shall be punished with imprisonment for either description for a tem which may extend to seven years, and shall also be liable to fine. "
9. Cheating has been defined under Section 415 of the IPC which reads as under:-
"415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induce the person so deceived to deliver any property to any person, or to consent that any person shall retrain any property, or intentionally induces the person so deceived to do which act or omission cause or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.- A dishonest concealment of facts is a deception within the meaning of this section. Illustration
(a) A ,by falsely pretending to be in the M.Cr.C. No. 2821/2014.
(8)Civil Service , intentionally deceives Z ,and thus dishonestly includes Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A. by exhibiting to Z a false sample of an article, intentionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps on money , and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may led to him and thereby dishonestly induces Z to lend him money. A not intending to repay it .A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver. and thereby dishonesty induces Z to advance money upon the faith of such delivery, A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belier that A has performed A's part of a contract M.Cr.C. No. 2821/2014.
(9)made with Z, which he has outperformed, and thereby dishonestly induces Z to pay money . A cheats.
(i ) A sells and conveys an estate to B.A, knowing that in consequence of such sale he has no right to the property , sells or ,mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or ,mortgage money for Z.A cheats."
10. The section requires deception of any person and fraudulently or dishonestly inducing that person to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person to do act or omission or is likely to cause damage or harm to that person in body, mind, reputation or property. In the present case there is no evidence at all that the petitioner had deceived any person.
11. Section 465 is in regard to forgery which reads as under:-
"465. Punishment for forgery.--Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. "
12. Similarly, Section 467 is in regard to forged document which is as under:-
"467. Forgery of valuable security, will, etc.-- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery M.Cr.C. No. 2821/2014.(10)
of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. "
13. Section 468 is in regard to commit forgery of electronic record which reads as under:-
"468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. "
14. Section 471 is in regard to fraudulently or dishonestly using the forged documents as genuine. The aforesaid section reads as under:-
"471. Using as genuine a forged [document or electronic record]. Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be forged [document or electronic record], shall be punished in the same manner as if he had forged such document. "
There is no evidence also that the petitioner forged any document or used any forged document as genuine.
15. Now the question is that whether the petitioner can be charged for the offence punishable under Section 120-B of the IPC. The Section 120-B reads as under:
"120B. Punishment of criminal conspiracy.- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall , where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he M.Cr.C. No. 2821/2014.(11)
had abetted such offence. "
16. The Supreme Court in Union Of India Vs. Prafulla Kumar Samal and another (1979) 3 SCC 4 has held in regard to criminal conspiracy, that the fact of meeting of minds of accused persons is necessary. The Supreme Court further in Mir Nagvi Askari Vs. Central Bureau of Investigation (2010)2 SCC (Cri) 718 has held as under in regard to criminal conspiracy:-
"60. Criminal conspiracy, it must be noted in this regard, is an independent offence. It is punishable separately. A criminal conspiracy must be put to action; for so long as a crime is generated in the mind of the accused, the same does not become punishable. Thoughts even criminal in character, often involuntary, are not crimes but when they take a concrete shape of an agreement to do or caused to be done an illegal act or an act which is not illegal, by illegal means then even if nothing further is done, the agreement would give rise to a criminal conspiracy.
61. The ingredients of the offence of criminal conspiracy are:
(i) an agreement between two or more persons;
(ii) an agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means.
Condition precedent for holding the accused persons to be guilty of a charge of criminal conspiracy must, therefore, be considered on the anvil of the fact which must be established by the prosecution, viz., meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means.
62. The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it M.Cr.C. No. 2821/2014.
(12)is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/ or by necessary implication. [See Mohammad Usman Mohammad Hussain Maniyar & Ors. v. State of Maharashtra (1981) 2 SCC 443]
63. The following passage from Russell on Crimes (12th Edn. Vol 1) cited by Jagannatha Shetty, J in Kehar Singh and Ors. v. State (Delhi Administration), [1988 (3) SCC 609 at 731] brings out the legal position succinctly:
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough"
(emphasis supplied) Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy `[i]t is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished.'
64. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself.
65. This Court in State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659] opined that it is necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use, stating:
"24. The aforesaid decisions, weighty as they M.Cr.C. No. 2821/2014.(13)
are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."
[See also K.R. Purushothaman v. State of Kerala (2005) 12 SCC 631]
66. Since we have dealt with the law with respect to criminal conspiracy in detail in R. Venkatkrishnan v. Central Bureau of Investigation (Criminal Appeal 76 of 2004 decided today) we need not deal with it hereat once again. We may however notice that this court most recently in Mohmed Amin @ Amin Choteli Rahim Miyan Shaikh and Anr. v. C.B.I. through its Director, 2008 (14) SCALE 240 after taking recourse to law governing the field noted thus:
"74. The principles which can be deduced from the above noted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every details of the conspiracy so long as they are co- participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."
17. In the aforesaid judgment the Supreme Court has specifically held that the condition precedent for holding the accused person guilt of a charge of criminal conspiracy, the M.Cr.C. No. 2821/2014.
(14)prosecution must establish meeting of minds of two or more persons for doing illegal act by illegal means. In the present case there is no evidence that there was a meeting of minds between the present petitioner and other accused persons for the acts which have been mentioned by the prosecution. There is only evidence that one witness had told the illegalities gadbadi (xMcMh) in the college and the petitioner kept mum. It is also a fact that the petitioner had undergone treatment of cancer.
18. The Supreme Court specifically held that in establishing conspiracy there must be forming of the scheme or agreement between the parties. Mere knowledge, or even discussion of the plan is not, per se enough.
19. From the principle of law pronounced by the Supreme Court it is clear that mere knowledge or even discussion of the plan is not sufficient to prove the fact of conspiracy. In the present case even if all the prosecution evidence is accepted then the evidence of the witness is that he had told the petitioner about illegality (gadbadi) but this would not sufficient to establish the fact of conspiracy.
20. It is also a fact that the petitioner was the Chairman of the Mansarovar Group of Institutions, the institution was managing a Dental College, the conduct of examination was under the principal and other authorities of the University. There M.Cr.C. No. 2821/2014.
(15)is no evidence that there was a meeting of petitioner and other co-accused persons in order to finalization of the plan.
21. The Supreme Court has held as under in regard to power of High Court to quash the proceedings in exercise of power under Section 482 of the Cr.P.C. in State of Karnataka Vs. L. Muniswamy and others 1977 SCC (Cri) 404:-
"Also it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. The order framing a charge affects a person's liberty substantially and therefore, it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial."
22. The Supreme Court in Perminder Kaur Vs. State of Uttar Pradesh and another (2010) 1 SCC 322 has held as under:-
"41.We do not go into the merits as we are completely convinced that this is a case for a malicious and vengeanceful prosecution which has no base. It is, therefore, well covered under the Guidelines 1 and 7 laid down by this Court in the matter of State of Haryana vs. Bhajan Lal [(1992) Supp. 1 SCC 335] which read as under:
"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.
2-6 xxx xxx xxx
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an M.Cr.C. No. 2821/2014.(16)
ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
23. The Principle of law is that even taking entire evidence on record produced by the prosecution, no case is made out against the persons in that circumstances the High Court can quash the criminal proceedings. In the present case if the evidence be taken on record as discussed above in the judgment, no case is made out against the present petitioner. Apart from this, the petitioner is a patient of mouth cancer, he had under went two surgeries, continuation of prosecution on the basis of evidence collected by the prosecution would amount to misuse of process of law.
24. Hence, the petition is allowed, FIR registered against the petitioner and the proceedings initiated against the petitioner in pursuant to the charge sheet filed before the Special Judge in sessions trial no. 877/2013 at Bhopal are hereby quashed.
Certified copy as per rules.
(S.K. GANGELE) JUDGE MISHRA M.Cr.C. No. 2821/2014.
(17)HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR M.Cr.C. No. 2821/ 2014.
Kamalkant Tiwari.
Versus State of Madhya Pradesh.
For the petitioner: Shri Mahendra Pateria, Advocate. For the respondent/State: Shri R.S. Shukla, Panel Lawyer.
ORDER Post for : . .2016 (S.K. GANGELE) JUDGE.
.2016