Allahabad High Court
Satish Chandra Sharma vs 9Th A.C.J.M. And Others on 11 November, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- APPLICATION U/S 482 No. - 5277 of 2002 Applicant :- Satish Chandra Sharma Opposite Party :- Additional Chief Judicial Magistrate and others Counsel for Applicant :- Shyamal Narain Counsel for Opposite Party :- Govt. Advocate Hon'ble Sudhir Agarwal,J.
1. Heard Sri Shyamal Narain, Advocate for applicant and learned A.G.A. for State.
2. This is an application under Section 482 Cr.P.C. filed by one, Satish Chandra Sharma, arising from charge sheet No. 28/99 dated 06.05.1999 in Case Crime No. 47 of 1998, under Section 408 IPC, registered at Police Station M.M. Gate, District Agra and proceedings initiated pursuant whereto, i.e., Criminal Case No. 719 of 1999, pending in the Court of IXth Additional Chief Judicial Magistrate, Agra.
3. Applicant was posted at Shop Manager at Shop No. 2, Singer Centre, Rajendra Market, Agra. A First Information Report (hereinafter referred to as "FIR") was lodged by one, R.K. Singh, Area Manager, Shop No. 2, Singer Centre, Rajendra Market, Agra, being Case Crime No. 47 of 1998, under Section 408 IPC alleging that applicant, Satish Chandra Sharma, was working as Shop Manager but he committed several irregularities on account whereof he was transferred by Company from Agra to Delhi vide order dated 09.04.1998 but he avoid to accept the same and also did not handover charge to Sri R.K. Singh. Subsequently, he disappeared alonwtith family on 22.04.1998 and thereafter report was lodged in respect of shop that there was a deficiency of cash of Rs. 31343/- and goods missing worth Rs. 80,814/- total Rs. 1,12,157/-, as mentioned in FIR. FIR further says that applicant disbursed certain goods on installments to various consumers and has collected installments but committed defalcation in that regard also. Magistrate having taken cognizance thereon issued summons, whereupon applicant was arrested and granted bail vide order dated. 07.05.1998 passed by Sessions Judge, Agra.
4. Learned counsel for applicant contended that entire proceedings initiated against applicant are malicious and gross abuse of process of law. He submitted that Sri R.K. Singh was Area Manager and he was having some vengeance against applicant, whereupon a report was lodged by applicant on 11.04.1998 to Station Officer, Madan Mohan Gate, Agra and copy of said complaint is Annexure-1 to affidavit. It is stated therein that on 10.04.1998 in the evening at around 5.00 pm when applicant alongwith one Staff had gone for medical check up and when he returned back at 7.20 pm he found that one R.K. Singh, Area Manager had locked the shop and gone at 7.10 pm, after taking out the key of shop and godown from his bag, though applicant is the incharge of shop. Rs. 80,000/- cash was kept in shop and around Rs. 10,000/- cash was lying in applicant's bag, therefore, responsibility of cash and goods lying in godown and shop was on applicant, hence he also put his lock on shop at 8.20 pm and informed Head Office of Company by telegram. On 11.04.1998 in the afternoon, applicant came to know from his neighbours that Sri R.K. Singh has opened the shop after breaking lock, therefore, if any loss of goods or cash caused, responsibility will lie on R.K. Singh. Therefore, a case be registered and action be taken against R.K. Singh for breaking the lock of shop and entering into it forcibly in absence of applicant. He further submitted that charge was handed over to Sri R.K. Singh on 19.04.1998, photocopy whereof is Annexure-2 to affidavit and stated that since charge was already handed over the allegation that charge was not handed over is false. Learned counsel for applicant argued the case placing all the facts in detail and I informed him that if I consider the arguments he has advanced in detail on merits, the same may prejudice trial pending before Court below but he said that he is arguing the case in the interest of his client, therefore, Court may deal with the same. He also argued with regard to jurisdiction of Court under Section 482 Cr.P.C. and placed reliance on Supreme Court's decisions in Vineet Kumar and others vs. State of U.P. and another (Criminal Appeal No. 577 of 2017), decided on 31.03.2017; Anand Kumar Mohatta and another vs. State (Govt. of NCT of Delhi) Department of Home and another, 2018(3) GLH 643; and, Sri Suresh Kumar Goyal and others vs. State of Uttar Pradesh and another (Special Leave to Appeal (Crl.) No. 8143 of 2018), decided on 11.01.2019.
5. Now coming to the case that prima facie Magistrate has misused its power, I find that firstly so called document of handing over charge dated 19.04.1998 itself is a document, veracity whereof is yet to be examined. It is not a case where the person said to have signed as R.K. Singh has admitted his signature on document. Be that as it may, I have examined the document in detail. Aforesaid document contained three position. First is, cash position; second, stock of receipts, cash memo; and third, over and short remittance. In the first column, i.e., cash position, I find that there is an endorsement of cash short of Rs. 31343.79. Then in second column, there is no details of stock receipts and cash memo but only explanation appears to have been given with regard to aforesaid shortage of cash and thereafter in third column there is no reference of over and short record but it only shows that charge of cash was taken over by R.K. Singh and handed over by applicant on 19.04.1998. Therefore, the averment that entire charge of godown items and apparatus etc. was handed over is not borne out from aforesaid document. Aforesaid document also shows that there was a shortage of cash which is part of FIR. With regard to goods and items nothing has been shown in aforesaid document. Therefore, it cannot be said that entire charge is handed over. Moreover, aforesaid documents could have been seen when placed by applicant in defence and accepted in accordance with law and then could have been assessed by Court below. Thus it cannot be said that FIR lodged against applicant is mala fide and based on malicious and false prosecution. In para 10 of affidavit applicant has stated that full charge of shop including cash was handed over and in this regard he referred to Annexure-2 of affidavit mentioned in para 9 but as I have already discussed, it does not show that charge of entire shop was handed over.
6. It is no doubt true that this Court has ample power under Section 482 Cr.P.C. so as to prevent miscarriage of justice but that cannot be exercised when defence is yet to be placed before Court below, unless from the material placed before this Court in the proceedings under Section 482 Cr.P.C. a case of false prosecution or malicious prosecution is made out, which could not be shown in the case in hand and thus it cannot be said that proceeding in question is without any basis.
7. Learned counsel for applicant placed reliance on a bail order granted by Court below by contending that charge certificate has been relied while granting bail but I find that Sessions Judge has not examined it in detail and simply for the purpose of granting bail the said document has been referred, which is a totally different case and on that basis proceedings cannot be quashed.
8. Application is thoroughly misconceived. Dismissed.
Order Date :- 11.11.2019 AK