Madhya Pradesh High Court
Dr. Sunil Kapoor vs The State Of Madhya Pradesh on 19 January, 2017
Author: S.K. Gangele
Bench: S.K. Gangele
M.Cr.C. No.5218 of 2016/1
HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
M.Cr.C. No. 5218 of 2016
Dr. Sunil Kapoor petitioner
versus
State of Madhya Pradesh respondent
Coram :
Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
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Shri Adarsh Muni Trivedi, learned Senior Counsel
assisted by Shri Vishal Dhagat and Shri Mukesh Agrawal,
learned counsel for the petitioner.
Shri Brahmdatt Singh, learned Government Advocate
for the respondent/State.
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Reserved on :04.01.2017
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ORDER
(Pronounced on :19.01.2017) Per S.K. Gangele J Petitioner has filed this petition against registration of FIR against him vide Crime No.35/2015 for commission of offences punishable under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code and Section 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988.
2. At the relevant time, the petitioner was the Vice President of R.K.D.F. Education Society registered under the provisions of Societies Registration Act. The society runs M.Cr.C. No.5218 of 2016/2 various educational institutions. One of the institution is R.K.D.F Institute of Science and Technology, Mandideep, Bhopal. It was established in the year 1996. The allegation against the society is that it had illegally admitted 10 students in Engineering Course and two students in other courses. The institute had sent a list of 21 students to Rajiv Gandhi Proudyogiki Vishwavidyalaya (hereinafter referred as 'R.G.P.V.') in place of 11 students. The letter written by R.G.P.V. was forged because names of 10 students were added illegally. Government had taken a decision to impose a fine of Rs.24 lakhs i.e. Rs. 2 lakhs per student, but, the petitioner with the connivance of the then Chief Minister and other Minister got the fine reduced to Rs.5 lakhs. Hence, a substantial loss was caused to the Government.
3. One Mr. Radhavallabh Sharda filed a complaint before S.P. Police, E.O.W. on 19.03.2015, making allegations that with the connivance of the Minister, the institute received benefit and a monetary loss was caused to the Government of Rs.21,50,000/- (twenty one lakhs fifty thousands). He also filed a complaint before the Chief Judicial Magistrate, Bhopal on 19.03.2015. The Chief Judicial Magistrate forwarded the complaint to the police and thereafter, on 03.12.2015 a criminal case vide Crime No.35/2015 has been registered against the petitioner and other persons for M.Cr.C. No.5218 of 2016/3 commission of offences punishable under Sections 420, 467, 468, 471 and 120-B of the Indian Penal Code and Section 13(1)(d) and 13(2) of the Prevention of Corruption Act.
4. The contention of the petitioner in this petition is that the petitioner was not at all connected with the working and affairs of R.K.D.F. Institute of Science and Technology at the relevant time. He had not written any letter to any authority in regard to reduction of fine amount. The petitioner, at the relevant time, was working as Vice President of R.K.D.F. Education Society. The management of R.K.D.F. Institute of Science and Technology was different. There is no document on record in regard to involvement of the petitioner. The offence has been registered against the petitioner on the basis of presumptions. The FIR if be read in toto, no offence is made out against the petitioner.
5. The respondent-State of Madhya Pradesh in its reply pleaded that Economic Offence Wing, Bhopal registered a criminal case vide Crime No.35/2015 on 03.12.2015 against four persons including two Minsters, the petitioner and the Principal, R.K.D.F. Institute of Technology, Bhopal. The case is under investigation. The Director, Technical Education issued a letter to R.G.P.V. for regularization of 11 students who were given admission unauthorizedly. A forged M.Cr.C. No.5218 of 2016/4 letter having the same dispatch number and date was prepared and sent to R.G.P.V. for regularizing the admissions of 21 students of R.K.D.F. Institute. The then Director, Technical Education and the then Secretary, Technical Education proposed to impose a fine of Rs.24 lakhs upon the College, however, the then Minister, Technical Education Mr. Raja Pateriya made a recommendation to reduce the fine amount to Rs. 5 lakhs and warning for the future. The note sheet was put up before the then Chief Minister for approval.
It was sent to the Chief Secretary and he recommended imposition of fine amount of Rs. 24 lakhs. The then Chief Minister agreed with the recommendation of the then Chief Secretary. Thereafter, the then Minister for Technical Education called the file and made a noting of reconsideration of the case and again sent the file to the then Chief Minister. The present petitioner and Satya Sai Institute submitted letters to the Chief Minister and informed that a representative of Directorate, Technical Education was not turned up, hence, the institute admitted the students within the limits. Thereafter, the then Chief Minister imposed a fine of Rs. 5 lakhs, hence, a loss was caused to the Government.
It is further submitted by the State in the reply that the matter is under investigation.
6. The petitioner has produced documents, note sheets M.Cr.C. No.5218 of 2016/5 alongwith the petition filed under Section 482 of the Cr.P.C.
Dr. S.M. Bhatia, the then Director, Technical Education in the note sheet dated 06.07.2002 mentioned that R.K.D.F. Institute admitted 12 students unauthorizedly in the academic session 1998-99 and Rs. 12 lakhs fine was imposed against the institute as per compromise. In the year 2000-2001, the institute further admitted 10 students unauthorizedly and the institute submitted a letter signed by the then Additional Director, Technical Education to R.G.P.V., however, the letter was forged. The Institute was eligible to admit 11 students but it had sent a letter of Directorate to R.G.P.V. containing the list of 21 students. Ten students were added illegally. The University sought information from the Directorate, Technical Education. 10 students were given admission in 2000-01 illegally and R.G.P.V. declared the results of students and as per the agreement, an amount of Rs.20 lakhs as fine be imposed against the institute and an amount of Rs.18,45,720,/- was already with the Directorate, which was deposited by the institute for conducting B.E. Course for the academic session 2001-02. The institute also admitted 3 students illegally, one in M.C.A. course, another in B. Pharmacy course and the third in B. Pharmacy course in the academic sessions 2000-01 and 2001-02. Hence, total fine of Rs. 24 M.Cr.C. No.5218 of 2016/6 lakhs be imposed against the institute. The institute had deposited an amount of Rs.23,85,720/-. The Director, Technical Education recommended for taking a decision.
The Deputy Secretary forwarded the case to the Minister.
Thereafter, the Minister on 8th of August, 2002, mentioned a note that he had called the representatives of the Directors of R.K.D.F. They submitted the information. The Minister noted that the institute had given admission to the students in accordance with the sanctioned strength i.e. 45 students but there was some technical default, hence, the institute be not punished. Thereafter, the Director of Technical Education Mr. S.M. Bhatia in his noting dated 24.09.2002 mentioned that although the results of the examination of the students were declared and the admissions of the students were unauthorized admissions because at the time of admission, the representative of the Directorate was not present. Hence, it would be proper to deduct the amount of fine from the institute. The then Minister proposed imposition of fine of Rs. 5 lakhs on 11.11.2002. It was approved by the Chief Minister. The then Chief Secretary in his noting proposed that a fine amount of Rs.24 lakhs be imposed as proposed by the Director of Technical Education and thereafter, there is a noting of the Chief Minister dated 1.2.2003. It is mentioned in the noting that as per the letters written by Dr. Sunil M.Cr.C. No.5218 of 2016/7 Kapoor, President, R.K.D.F. Institute and Satya Sai Institute, they had recommended the Directorate, Technical Education to send its representatives for college level counseling, however, their representatives were not present and the date of admission was the last date, hence, the admissions were given as per the college counseling. Those were within the limits and because the Minister recommended imposition of fine of Rs. 5 lakhs, hence, a fine of Rs. 5 lakhs be imposed.
Consequently, the order was passed.
7. From the record available in the file, the name of the petitioner has been mentioned only once by the then Chief Minister in his noting dated 29.01.2003 to the effect that the petitioner had submitted a letter that the institute had admitted students at college level counseling, because the representative of Directorate was not present, within the limits. It is also a fact and it is clear from the noting of the then Director Mr. Bhatia that an amount of Rs.23,85,720/-
was already with the Directorate as deposited by the institute for conducting the courses.
8. The learned Senior Counsel has contented that after perusal of the FIR and the record of the case, no case is made out against the petitioner for commission of offences as alleged against him. He further submitted that the offences have been registered after a period of near about 13 M.Cr.C. No.5218 of 2016/8 years in order to harass the petitioner which is abuse of process of law. It is obligatory on the part of investigating agency to conduct investigation properly. There is no evidence to the effect that the petitioner had written any forged letter. The amount of Rs.23,85,720/- was already with the Directorate as deposited by the institute, hence, it cannot be said that any loss was caused to the Government. In support of his contentions, learned Senior Counsel relied on the judgments of the Apex Court passed in the matters of Vinod Raghuvanshi vs Ajay Arora and others reported in (2013) 10 SCC 581 and Mahesh Chaudhary vs State of Rajasthan and another, reported in (2009) 4 SCC 439.
9. Contrary to this, the Government Advocate has contended that a forged letter was sent to the University containing the list of 21 students. The admissions of 10 students were illegal and there is mention of the name of the petitioner in the noting of the Chief Minister. The fine amount was reduced arbitrarily. Hence, the police has registered the offence in accordance with law.
10. We would like to consider the principle of law laid down by the Apex Court in various judgments in regard to power of the High Court in quashment of criminal proceedings in exercise of powers under Section 482 of the Cr.P.C.
M.Cr.C. No.5218 of 2016/911. The Apex Court in the matter of R.P. Kapur vs State of Punjab reported in AIR 1960 SC 866 has held as under in regard to power of the High Court to quash the criminal proceedings:
"(i) Where it manifestly appears that there is a legal bar against the institution or continuation e.g. want of prosecution;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."
12. The Apex Court further in the matter of State of Haryana vs Bhajan Lal reported in 1992 Supp. (1) SCC 335 has further enumerated the circumstances under which High Court can quash the criminal proceedings:
"102. (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) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Cr.P.C. except under an order of a Magistrate within the purview of Section 155(2) of the Cr.P.C.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.M.Cr.C. No.5218 of 2016/10
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Cr.P.C.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Cr.P.C.
or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Cr.P.C. or Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
The same principles have been followed by the Apex Court in subsequent judgments i.e. Rupan Deol Bajaj vs. Kanwar Pal Singh Gill reported in (1995) 6 SCC 194; State of Kerala vs O.C. Kuttan reported in (1999) 2 SCC 651;
State of U.P. vs. O.P. Sharma reported in (1996)7 SCC 705;
Rashmi Kumar vs Mahesh Kumar Bhada reported in (1997) 2 SCC 397; Satvinder Kaur vs State (Govt. of NCT of Delhi) reported in (1999) 8 SCC 728; Rajesh Bajaj vs State NCL of Delhi reported in (1999) 3 SCC 259; State of Karnataka vs M. Devendrappa reported in (2002) 3 SCC M.Cr.C. No.5218 of 2016/11 89; State of M.P. Vs Awadh Kishore Gupta reported in (2004) 1 SCC 691.
13. The principle of law laid down by the Hon'ble Apex Court is that the High Court can quash the criminal proceedings where if the complaint be taken at its face value and be accepted in entirely do not constitute the offence as alleged and the criminal proceedings attended with mala fide or the proceeding is instituted with ulterior motive and initiation and continuation of proceedings would be abuse of process of law [see the judgment of Apex Court passed in the matter of Mahesh Chaudhary vs State of Rajasthan and another, (2009) 4 CC 439.
14. The Apex Court further in the matter of Louis Peter Surin vs State of Jharkhand reported in (2010) 12 SCC 497 relying on earlier two decisions of the Apex Court passed in the matters of Ramanand Chaudhary vs State of Bihar reported in (2002) 1 SCC 153 and Mahendra Lal Das vs State of Bihar reported in (2002) 1 SCC 149 has quashed the criminal proceedings initiated against a person after a period of 17 years.
15. The Apex Court further in the matter of Priyanka Shrivastava and another vs State of Uttar Pradesh and others reported in (2015) 6 SCC 287 has held as under in regard to procedure and power of the Magistrate under M.Cr.C. No.5218 of 2016/12 Section 156(3) of the Cr.P.C. to send a complaint to the police for investigation :
20. The learned Magistrate, as we find, while exercising the power under Section 156(3) CrPC has narrated the allegations and, thereafter, without any application of mind, has passed an order to register an FIR for the offences mentioned in the application. The duty cast on the learned Magistrate, while exercising power under Section 156(3) CrPC, cannot be marginalised. To understand the real purport of the same, we think it apt to reproduce the said provision:
"156.Police officer's power to investigate cognizable case.--(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned."
21. Dealing with the nature of power exercised by the Magistrate under Section 156(3) CrPC, a three-Judge Bench in DevarapalliLakshminarayana Reddy v. V. Narayana Reddy, had to express thus: (SCC p. 258, para 17) "17. ... It may be noted further that an order made under sub-section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire M.Cr.C. No.5218 of 2016/13 continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173."
22. In Anil Kumar v. M.K. Aiyappa, the two-Judge Bench had to say this: (SCC p. 711, para 11) "11. The scope of Section 156(3) CrPC came up for consideration before this Court in several cases. This Court in Maksud Saiyed examined the requirement of the application of mind by the Magistrate before exercising jurisdiction under Section 156(3) and held that where jurisdiction is exercised on a complaint filed in terms of Section 156(3) or Section 200 CrPC, the Magistrate is required to apply his mind, in such a case, the Special Judge/Magistrate cannot refer the matter under Section 156(3) against a public servant without a valid sanction order. The application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. After going through the complaint, documents and hearing the complainant, what weighed with the Magistrate to order investigation under Section 156(3) CrPC, should be reflected in the order, though a detailed expression of his views is neither required nor warranted. We have already extracted the order passed by the learned Special Judge which, in our view, has stated no reasons for ordering investigation."
23. In Dilawar Singh v. State of Delhi, this Court ruled thus: (SCC p. 647, para 18) "18. ...'11. The clear position therefore is that any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath M.Cr.C. No.5218 of 2016/14 because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complainant because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.'*"
24. In CREF Finance Ltd. v. Shree Shanthi Homes (P) Ltd., the Court while dealing with the power of the Magistrate taking cognizance of the offences, has opined that having considered the complaint, the Magistrate may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. And again: (Madhao v. State of Maharashtra, SCC pp. 620-21, para 18) "18. When a Magistrate receives a complaint he is not bound to take cognizance if the facts alleged in the complaint disclose the commission of an offence. The Magistrate has discretion in the matter. If on a reading of the complaint, he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a M.Cr.C. No.5218 of 2016/15 matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence itself. As said earlier, in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). However, if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to revert back to the pre- cognizance stage and avail of Section 156(3)."**
25. Recently, in Ramdev Food Products (P) Ltd. v. State of Gujarat, while dealing with the exercise of power under Section 156(3) CrPC by the learned Magistrate, a three-Judge Bench has held that: (SCC p. 456, para 22) "22.1. The direction under Section 156(3) is to be issued, only after application of mind by the Magistrate.
When the Magistrate does not take cognizance and does not find it necessary to postpone instance of process and finds a case made out to proceed forthwith, direction under the said provision is issued. In other words, where on account of credibility of information available, or weighing the interest of justice it is considered appropriate to straightaway direct investigation, such a direction is issued.
22.2. The cases where Magistrate takes cognizance and postpones issuance of process are cases where the Magistrate has yet to determine 'existence of sufficient ground to proceed'."
26. At this stage, we may usefully refer to what the Constitution Bench has to say in LalitaKumari v. State of U.P. sin this regard. The larger Bench had posed the following two questions: (SCC p. 28, para 30) "(i) Whether the immediate non-
M.Cr.C. No.5218 of 2016/16registration of FIR leads to scope for manipulation by the police which affects the right of the victim/complainant to have a complaint immediately investigated upon allegations being made; and
(ii) Whether in cases where the complaint/information does not clearly disclose the commission of a cognizable offence but the FIR is compulsorily registered then does it infringe the rights of an accused."
Answering the questions posed, the larger Bench opined thus: (LalitaKumari case LalitaKumari v. State of U.P., SCC pp. 35-36, 41 & 58-59, paras 49, 72, 111 & 115) "49. Consequently, the condition that is sine qua non for recording an FIR under Section 154 of the Code is that there must be information and that information must disclose a cognizable offence. If any information disclosing a cognizable offence is led before an officer in charge of the police station satisfying the requirement of Section 154(1), the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. The provision of Section 154 of the Code is mandatory and the officer concerned is duty-bound to register the case on the basis of information disclosing a cognizable offence. Thus, the plain words of Section 154(1) of the Code have to be given their literal meaning.
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72. It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent.
M.Cr.C. No.5218 of 2016/17* * *
111. ... the Code gives power to the police to close a matter both before and after investigation. A police officer can foreclose an FIR before an investigation under Section 157 of the Code, if it appears to him that there is no sufficient ground to investigate the same. The section itself states that a police officer can start investigation when he has 'reason to suspect the commission of an offence'. Therefore, the requirements of launching an investigation under Section 157 of the Code are higher than the requirement under Section 154 of the Code. The police officer can also, in a given case, investigate the matter and then file a final report under Section 173 of the Code seeking closure of the matter. Therefore, the police is not liable to launch an investigation in every FIR which is mandatorily registered on receiving information relating to commission of a cognizable offence.
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115. Although, we, in unequivocal terms, hold that Section 154 of the Code postulates the mandatory registration of FIRs on receipt of all cognizable offences, yet, there may be instances where preliminary inquiry may be required owing to the change in genesis and novelty of crimes with the passage of time. One such instance is in the case of allegations relating to medical negligence on the part of doctors. It will be unfair and inequitable to prosecute a medical professional only on the basis of the allegations in the complaint."
(emphasis in original) After so stating the Constitution Bench proceeded to state that where a preliminary enquiry is necessary, it is not for the purpose for verification or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
M.Cr.C. No.5218 of 2016/18After laying down so, the larger Bench proceeded to state: (Lalita Kumari case, SCC p. 61, para 120) "120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.
120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made time-bound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the general diary entry." We have referred to the aforesaid pronouncement for the purpose that in certain circumstances the police is also required to hold a preliminary enquiry whether any cognizable offence is made out or not.
27. Regard being had to the aforesaid enunciation of law, it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. The present is a case where the accused persons are serving in high M.Cr.C. No.5218 of 2016/19 positions in the Bank. We are absolutely conscious that the position does not matter, for nobody is above the law. But, the learned Magistrate should take note of the allegations in entirety, the date of incident and whether any cognizable case is remotely made out. It is also to be noted that when a borrower of the financial institution covered under the SARFAESI Act, invokes the jurisdiction under Section 156(3) CrPC and also there is a separate procedure under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, an attitude of more care, caution and circumspection has to be adhered to.
28. Issuing a direction stating "as per the application" to lodge an FIR creates a very unhealthy situation in society and also reflects the erroneous approach of the learned Magistrate. It also encourages unscrupulous and unprincipled litigants, like Respondent 3, namely, Prakash Kumar Bajaj, to take adventurous steps with courts to bring the financial institutions on their knees. As the factual exposition would reveal, Respondent 3 had prosecuted the earlier authorities and after the matter is dealt with by the High Court in a writ petition recording a settlement, he does not withdraw the criminal case and waits for some kind of situation where he can take vengeance as if he is the emperor of all he surveys. It is interesting to note that during the tenure of Appellant 1, who is presently occupying the position of Vice-President, neither was the loan taken, nor was the default made, nor was any action under the SARFAESI Act taken.
However, the action under the SARFAESI Act was taken on the second time at the instance of the present Appellant 1. We are only stating about the devilish design of Respondent 3 to harass the appellants with the sole intent to avoid the payment of loan. When a citizen avails a loan from a financial institution, it is his obligation to pay back and not play truant or for that matter play possum. As we have noticed, he has been able to do such adventurous acts as he has the embedded M.Cr.C. No.5218 of 2016/20 conviction that he will not be taken to task because an application under Section 156(3) CrPC is a simple application to the court for issue of a direction to the investigating agency. We have been apprised that a carbon copy of a document is filed to show the compliance with Section 154(3), indicating it has been sent to the Superintendent of Police concerned.
29. At this stage it is seemly to state that power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same.
30. In our considered opinion, a stage has come in this country where Section 156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores."
16. In the light of above principle of law laid down by the M.Cr.C. No.5218 of 2016/21 Hon'ble Apex Court we would like to consider the material available on record against the petitioner.
17. The petitioner specifically pleaded that he was not concerned with the management of R.K.D.F. Institute of Technology at the relevant time. The petitioner further pleaded that he was the Vice President of R.K.D.F. Education Society from 1996 to 20.01.2003. On 25.12.2005, the petitioner was made President of the society. These facts have not been controverted by the respondent-State. The then Chief Minister in his noting dated 29.01.2003 for the first time made a reference of the petitioner that he had submitted a letter to the effect that the college had given admissions to the students as per prescribed quota, because, the representative of Directorate, Technical Education was not present, hence, the admissions were given because the last date of the counseling was fixed. The admissions were given within the limits. There is also a noting of Director, Technical Education that R.K.D.F. Institute had already deposited an amount of Rs. 23,85,720/- and the fine amount which would be imposed is Rs. 24 lakhs. The relevant noting in the note sheet dated 06.07.2002 reads as under :
^^mijksDrkuqlkj dqy tek jkf'k :- 23]85]720 gS tcfd dVkSrh dh tkus okyh jkf'k :- 24]00]000 gSA dVkSrh dh tkus okyh bl jkf'k esa Ok"kZ 2001&2002 esa ch-bZ- ikB~;dze esa ,d vukf/kd`r izos'k ¼rhljh xYrh½ dh dVkSrh dh jkf'k lfEefyr ugha gSA^^ M.Cr.C. No.5218 of 2016/22
18. The respondent-investigation agency has not controverted the fact that whether the amount of Rs.23,85,720/- which was deposited by R.K.D.F Institute was withdrawn by the institute or it was paid to the institute.
Even presuming that the fine amount was reduced to Rs. 5 lakhs against the institute, if the remaining amount was not refunded to the institute out of Rs. 23,85,720/-, then it cannot be said that a loss was caused to the Government.
The investigating agency has not mentioned the aforesaid facts, neither the respondent mentioned in its reply that whether any amount was refunded to the institute or not.
19. Apart from this, it is alleged that a letter had been sent by the Directorate to R.G.P.V. containing the list of 21 students and the names of 10 students were added subsequently. The letter is not on record. There is no evidence that who had written the letter. It has further been mentioned in the note-sheet dated 06.07.2002 by the then Director, Technical Education Mr. Bhatia that the documents were in possession of the then Additional Director and he was retired and he did not return the documents. There is no reply filed by the State that whether investigating agency had recorded the statement of the then Director to substantiate the fact that a letter was sent by the Directorate M.Cr.C. No.5218 of 2016/23 containing the list of 21 students and who had written that letter, whether there was involvement of the petitioner in forwarding the aforesaid letter. As per the record, the name of the petitioner has been mentioned by the then Chief Minister in his noting dated 29.01.2003 to the effect that the petitioner had written a letter mentioning the fact that R.K.D.F. Institute admitted students within the quota, however, the admission was given in the college level counseling to the students in which representative of the Directorate, Technical Education was not present in spite of information because it was the last date of counseling. There is no denial to the aforesaid fact that whether the mistake was intentional or technical in nature. There is also no evidence on record that in what capacity the petitioner was involved in the management of R.K.D.F. Institute at the relevant time.
20. Section 420 of the Indian Penal Code reads as under:
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of 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 of either description for a term which may extend to seven years, and shall also be liable to fine."
21. The Apex Court in the matter of Union of India vs M.Cr.C. No.5218 of 2016/24 G.S. Khanna reported in 1972 Cr.L.J. 849 has held as under
in regard to ingredients of the facts which have to be proved for establishing the offence under Section 420 of the IPC:
"22. It is true that at the stage when the Special Judge drew up charges and decided to proceed with the case on the footing of a conspiracy to defraud the Government, he has only to see that there was a prima facie case against the two respondents. That could also be the basis upon which the High Court had to try upon two revision applications. Even so, there had to be some material before the Special Judge which could point towards a conspiracy in which the two respondents had joined. Such of the statements which the investigating officer could procure did not as the High Court observed point to such a conspiracy. What appears to have been lost sight of by the Special Judge was the fact that the period during which the orders in question were placed was an emergency period when procedure laid down for such orders could not perhaps be strictly adhered to. He also appears to have lost sight of the fact that out of the thirteen orders in question, four of the value of Rs.32,000/- and odd were placed by Brig. Mani and orders only for the balance of Rs.8,000/- and odd were placed by Res. Khanna. It may be that someone had played fraud in the matter of quotations in the name of Darrang Transport, United Motor Works, Auto Stores etc. But unless there was some material at least to link these two officers with the person who tendered those quotations, it is difficult to say that there were conspirators who had joined with the rest of the accused to defraud the Government. In these circumstances we find ourselves unable to agree with the contention of Mr. Mukherjee that the High Court was in error in coming to the conclusion that no prima faciew case had been made out against either of the two officers."
M.Cr.C. No.5218 of 2016/2522. The Apex Court further in the matter of Abdulla Mohammed Pagarkar etc. vs. State (Union Territory of Goa, Daman and Diu) reported in AIR 1980 SC 499 has held as under in regard to suspicion and onus of proof:
"....The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the State to bring out, beyond all reasonable doubt, that the number of laborers actually employed in carrying out the work was less than that stated in the summaries appended to the bills paid for by the Government. The accused could not be convicted relying on the mere impression of the prosecution witnesses regarding the number of laborers employed from the time to time. No doubt there were several irregularities giving rise to a strong suspicion in regard to the bona fides of the accused in the matter of the execution of the work but suspicion, however strong, could not be a substitute for proof. And it was not permissible to place the burden of proof of innocence on the person accused of a criminal charge."
23. The Apex Court has specifically held that due to some technical error it cannot be held that offence under Section 420 is made out. There is no material or evidence on record that the petitioner has committed the offences punishable under Section 420 of the IPC.
24. Similarly Sections 467 and 488 of the Indian Penal Code reads 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 M.Cr.C. No.5218 of 2016/26 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 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.
468. Forgery for purpose of cheating.-- Whoever commits forgery, intending that the 1[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."
25. Section 471 and 120-B of the Indian Penal Code 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 a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record]."
120-B. Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[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 had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid M.Cr.C. No.5218 of 2016/27 shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both."
26. For establishing the guilt under Section 120-B of the IPC, it is necessary to prove the fact of meeting of mind.
There is no iota of evidence on record in regard to meeting of mind. Prima facie, there is no iota of evidence that the present petitioner had paid or offered any bribe to the then Minister. The loss which is said to be caused to the Government is imaginary because the amount of Rs.23,85,720/- had been deposited by the R.K.D.F. Institute with the Directorate, Technical Education.
27. The next fact it that the incident is of the year 2002 and the FIR was registered on 03.12.2015 after a period of 13 years. Apart from this, the Magistrate while sending the complaint to the police for investigation had not followed the procedure as held by the Apex Court in the matter of Priyanka Shrivastava supra.
28. On the basis of above discussion, in our opinion, even if the contents of the FIR and the material which is available on record be taken into consideration in toto, no offence is made out against the petitioner as alleged for which the FIR has been registered. Apart from this, there is a delay of 13 years. Continuation of criminal proceedings would amount to abuse of process of law.
M.Cr.C. No.5218 of 2016/2829. Before parting with the case, we would like to observe that it is the duty of investigating agency to prima facie conduct an investigation if there is inordinate delay in sending the complaint in sensitive matters and collect the evidence properly so a person cannot be harassed unnecessarily. If there is incriminating material, then certainly the agency is at liberty to register a criminal offence. However, it is also a pious duty of the investigating agency that the persons cannot be harassed unnecessarily.
30. Looking to the material on record and the facts of the case, in our opinion, no offence, for which the FIR has been registered against the petitioner, is made out. Hence, registration of FIR vide Crime No. 35/2015 at Police Station-Economic Offices Wing, Bhopal under Section 420, 467, 468, 471 and 120-B of the Indian Penal Code and Section 13(1)(d) and 13(2) of the Prevention of Corruption Act is hereby quashed. The observations made by us in the order are confined in regard to role of the petitioner only.
These observations may not be read in regard to other accused persons or the observations may not effect the investigation and further investigation by the investigating agency.
(S.K. GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
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