Civil Appeal No. 6098 of 1997 · Patna High Court · 2009
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.4189 of 2011 ====================================================== 1. Dr. Hirakant Mandal S/O Sri Ramakant Mandal Resident Of Mohalla- Vidhyapuri, Ward No.-18, State Bank Road, Madhepura, At Present Principle (In Charge), Bhupendra Narayan Mandal Commerce College, Sahugadh, Madhepura .Versus .... .... Petitioner/s 1. The State Of Bihar 2. Ashok Kumar son of Sri Vishnu Kumkar, resident of Ward No.26, P.S. & District Madhepura. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Ashok Choudhary, Adv. For the O.P. No. 2 : Mr. Pramod Kr. Jha, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY CAV 12 01-05-2013 This application has been filed for quashing the order dated 16th July 2009 passed by the Chief Judicial Magistrate, Madhepura in Complaint Case No. 126 of 2009 whereby and whereunder he has taken cognizance under Sections 166 and 409 of the Indian Penal Code against the petitioner who, at the relevant time, was discharging the duty of Principal of B.N.M.C. College, Sahugarh, Madhepura and the same has been affirmed by the Additional Sessions Judge, F.T.C., Madhepura vide order dated 26th November 2010 passed in Cr. Revn. No. 80 of 2009. 2. From the record it appears that the complainant, an employee of the said College, has claimed to have been absorbed as a Laboratory In-charge, Zoology Department in view of the directions issued by the Hon’ble Supreme Court in Civil Appeal 2 Patna High Court Cr.Misc. No.4189 of 2011. 2 / 25 No. 6098 of 1997 against the sanctioned post. After absorption for certain period he was paid salary but later on the said College did not pay the salary which was received by the said College in his name, instead the payment was made to other employee, thereby deprived the complainant of the salary and has relied on the orders passed by this Court in contempt proceeding and also on the letter dated 14th November 2009 issued by the Vice Chancellor, B.N. Mandal University, Madhepura. During 8th May 2006 to 5th March 2009, he was In-charge Principal but at present is posted as Proctor in the University. 3. In the complaint case, altogether four persons were made accused but the court took cognizance against the petitioner and one Raj Kishore Prasad Singh, who was then holding the post of Finance Controller of B.N.Mandal University, Madhepura. In brief allegation has been made that the complainant was posted as Lab In-charge in the Zoology Department and after the judgment passed in Civil Appeal No. 6098 of 1997, an enquiry was conducted which found that the complainant was on the post as aforesaid since 18th November 2005 and, accordingly, as per the provisions of Section 4 (14) of the University Act, 1976, he was absorbed in the said post, vide letter No. 478 dated 28th February 2006. In the complaint petition claim has been made that he was 3 Patna High Court Cr.Misc. No.4189 of 2011. 3 / 25 getting salary upto 15th October 2006 which is apparent from Letter No. AC 152 of 2006 dated 26th May 2006. He further alleged that for getting payment of arrear of salary, he filed MJC No. 2532 of 2000, in pursuance of the aforesaid civil appeal and he was paid an amount of Rs.1,84,447/- vide Cheque No. 045096 dated 3rd August 2006. 4. In the complaint petition, it has been claimed that the University has wrongly absorbed a person against the sanctioned post which was already occupied by him. He has further claimed that four persons have been absorbed illegally been paid in social science. It has been claimed that on 8th September 2007 he was paid 15-days’ salary for the month of October 2006 whereas other staff were paid full salary and later on payment of his salary was stopped without assigning any reason. It has been alleged that petitioner and accused persons wrongly disseminated information putting him in the category of receiving salary on ad hoc basis. He was moving around the Office of the Principal, always received positive assurance but it did not fetch any fruitful result. Ultimately the complainant filed an application on 28th July 2008 but on one pretext or the other he was given evasive reply without any fruitful result. Thereafter he sought information under the Right to Information Act for the 4
Facts
Patna High Court Cr.Misc. No.4189 of 2011. 4 / 25 cause of non-payment of salary, vide littler dated 15th August 2008. In the said letter, complainant sought information about the letter of State Government as well as of the University by which payment of his salary has been stopped. It has been claimed that proper information was not furnished to him but he was provided the information for the Financial year 2006-07, vide letter No. AC 167 of 2006. Non-payment of salary to the complainant has pushed him to the state of penury. Ultimately he could know that all the accused persons named in the complaint petition in furtherance committed dishonesty by making payment of his salary to other person and claimed that they were not absorbed in pursuance of order of the Hon’ble Supreme Court and thereby violated the order. It has been alleged under conspiracy, wrong payment has been made to other employee and claimed that they have committed an offence u/s 166, 167, 409 and 120B IPC. 5. Counsel for the petitioner has submitted that the facts mentioned in the complaint petition, even if are taken to be true for the sake of argument, no offence is made out against the petitioner as he had acted as per the order and direction of the University issued from time to time as the College did not receive the money transmitted in his name, rather the money was received against the name of other person, the petitioner could not pay the 5 Patna High Court Cr.Misc. No.4189 of 2011. 5 / 25 amount to the complainant. He has further submitted that earlier the payment was made under threat of contempt proceeding and the letter dated 14th September 2006 issued by the Vice Chancellor was reviewed by the Syndicate in its meeting dated 19th April 2011. The claim of the complainant was considered and it was resolved to reopen the case of the complainant on the ground of maintaining uniformity as per law. He has further claimed that the complainant has not been absorbed in service and from March 2011 till date, no salary has been paid to the complainant. 6. Counsel for the opposite party submitted, from the averments in the complaint petition, it appears statement has been made that the accused persons wrongly paid his amount of money to the other staff which resulted in deprivation of salary to the complainant which itself shows the petitioner had acted dehors to the order of Hon’ble Supreme Court the O.P. No. 2 claimed to have been regularized in service as per the direction of the Hon’ble Supreme Court and wrongly has been deprived of his salary illegally, though he was paid the salary when a contempt was initiated and the letter of the Vice Chancellor itself is a proof of his absorption in service, as per the direction of the Hon’ble Supreme Court. 7. Before examining the merits of the case, the court 6 Patna High Court Cr.Misc. No.4189 of 2011. 6 / 25 would like to examine scope and parameter for exercise of power of inherent jurisdiction of High Court under section 482 of the Code. 8. The Section 482 of the Code of Criminal Procedure explicitly grafted in its provision, the inherent jurisdiction of High Court is to prevent the abuse of the process of the Court and to secure the ends of justice. The Hon’ble Supreme Court in different cases has considered the contour and scope of Section 482 of the Code and the Court has taken a view, the High Court would be justified to exercise inherent power, in circumstances when statements made in the complaint petition and FIR disclose primarily a dispute of civil nature and has wrongly given the colour of criminal offence but has given a caution that the court should refuse to exercise the power in a legitimate case. The Court is of the view that if a fact shown primarily as dispute of civil nature docket of court should not be allowed to burden by such litigation and in end result it would be a clog in criminal justice delivery system and parties cannot be allowed to opt a short-cut method to settle civil dispute when other remedies are available in law. Settling criminal case in motion is a serious matter but genuine prosecution should not be stifled. The court has taken notice of growing tendency in business circle to convert 7 Patna High Court Cr.Misc. No.4189 of 2011. 7 / 25 purely civil dispute into criminal proceeding opting for criminal proceeding as the impression carried by the person, the civil law remedy consumes a lot of time and do not adequately protects the interest of lenders/creditors. The court has also given an example that in several family disputes leading to irretrievable break down of marriages/families, criminal cases are being filed. The Court has also taken note that there is an impression in the society in case of entanglement in a criminal prosecution there is likelihood of eminent settlement. Any efforts to settle the civil disputes/service disputes and claims which do not involve any criminal offence by applying pressure through criminal prosecution has been deprecated and discouraged. “The Hon’ble Supreme Court in the case of Indian Oil Corporation v. NEPC India Ltd. [(2006)6 SCC 736 ]. It is apt to quote Para 12 of the judgment which is as follows: Para-12 “The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few—Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, State of Haryana v. Bhajan Lal, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, Central Bureau of Investigation v. Duncans Agro Industries Ltd., State of Bihar v. Rajendra Agrawalla, Rajesh Bajaj v. State NCT of Delhi, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd.,Hridaya Ranjan Prasad Verma v. State of Bihar, M. 8 Patna High Court Cr.Misc. No.4189 of 2011. 8 / 25 v. Vijay Krishnan Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque. The principles, relevant to our purpose are: Singh and (i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for 9 Patna High Court Cr.Misc. No.4189 of 2011. 9 / 25 seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.” 9. But the Court while dealing with this situation has held that defence put forth would be considered during the trial. At this stage the court has to confine with the averments made in the complaint, whether facts mentioned do constitute ingredients of criminal offence or not. 10. Similar view has been reiterated by the Hon’ble Supreme Court in (2012)9 SCC 460 (Amit Kapoor v. Ramesh Chander). The relevant portion of the judgment is as follows: “Para:27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon 10 Patna High Court Cr.Misc. No.4189 of 2011. 10 / 25 objective analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be: 27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may 11 Patna High Court Cr.Misc. No.4189 of 2011. 11 / 25 interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 12 Patna High Court Cr.Misc. No.4189 of 2011. 12 / 25 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or 13 Patna High Court Cr.Misc. No.4189 of 2011. 13 / 25 to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the 14 Patna High Court Cr.Misc. No.4189 of 2011. 14 / 25 documents or records but is an opinion formed
Legal Reasoning
prima facie. 27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist. [Ref. State of W.B. v. Swapan Kumar Guha; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre; Janata Dal v. H.S. Chowdhary; Rupan Deol Bajaj v. Kanwar Pal Singh Gill; G. Sagar Suri v. State of U.P.; Ajay Mitra v. State of M.P.; Pepsi Foods Ltd. v. Special Judicial Magistrate; State of U.P. v. O.P. Sharma; Ganesh Narayan Hegde v. S. Bangarappa; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque; Medchl Chemicals & Pharma (P) Ltd. v. 15 Patna High Court Cr.Misc. No.4189 of 2011. 15 / 25 Biological E. Ltd.; Shakson Belthissor v. State of Kerala; V.V.S. Rama Sharma v. State of U.P.; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu; Sheonandan Paswan v. State of Bihar; State of Bihar v. P.P. Sharma; Lalmuni Devi v. State of Bihar; M. Krishnan v. Vijay Singh; Savita v. State of Rajasthan and S.M. Datta v. State of Gujarat] 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.” 11. Recently the Hon’ble Supreme Court in the case of Arun Bhandari vs. State of U.P. 2013)2 SCC 801 was considering the issue of civil wrong, vis-à-vis criminal offence. 16 Patna High Court Cr.Misc. No.4189 of 2011. 16 / 25 The Court has approved the view t hat mere violation to keep up promise cannot be presumed to be an act leading to cheating. It will be apt to quote Para-31 & 32 of the judgment which is as follows: Para-31: In R.Kalyani v. Janak C.Mehta, after referring to the decisions in eventually culled out the following propositions: 15. Propositions of law which emerge from the said decisions are: (1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence. (2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence. (3) Such a power should be exercised very sparingly. If the allegations made in the 17 Patna High Court Cr.Misc. No.4189 of 2011. 17 / 25 FIR disclose commission of an offence the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue” It is worth nothing that it was observed therein that one of the paramount duties of the superior court is to see that a person who is absolutely innocent is not subjected to prosecution and humiliation on the basis of a false and wholly untenable complaint. 12. Para-32: Recently in Gian Singh v. State of Punjab, a three-Judge Bench has observed that (SCC pp 339- 40, para 55) “55. In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of just ice or to prevent continuation of unnecessary judicial process. This is founded on the legal maxim quando lex 18 Patna High Court Cr.Misc. No.4189 of 2011. 18 / 25 aliquid alicui concedit conceditur, et id sine qua res ipsa esse non protest. The full import of which is whenever anything is authorized, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorized in express terms be also done, may also be done, then that something else will be supplied by necessary intendment. Ex debito justitiae is inbuilt in such exercise, the whole idea is to do real, complete and substantial justice for which it exists. The power possessed by the High Court under Section 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.” 13. In view of the aforesaid judgments as mentioned hereinabove, this Court has to examine as to whether the allegations made in the complaint petition do constitute any offence against the petitioner who was at the relevant time holding the post of Acting Principal of the said College. The Court has given liberty in an exceptional circumstances can look to the undisputed documents for the purpose of ex debito justitiae relevant to rely on judgment of the Hon’ble Supreme Court in 19 Patna High Court Cr.Misc. No.4189 of 2011. 19 / 25 (2011)3 SCC 352 (Harshendra Kumar Vs. Rebatilata Koley in Para-26 observed as follows: “Para-26: Criminal prosecution is a serious matter; it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In our opinion, the High Court fell into grave error in not taking into consideration the uncontroverted documents relating to the appellant’s designation from the post of Director of the Company. Had these documents been considered by the High Court, it would have been apparent that the appellant has resigned much before the cheques were issued by the Company.” 14. From the complaint petition, allegations primarily has been made with the complaint was absorbed as per the direction of the Hon’ble Supreme Court, was paid arrears of salary when he filed a contempt proceeding, led to issuance of letter by the Vice Chancellor, but has claimed that accused persons under the criminal conspiracy, connived to make payment of salary to other persons, wrongly deprived the complainant of his salary. The O.P.No.2 has not disputed certain documents which 20 Patna High Court Cr.Misc. No.4189 of 2011. 20 / 25 appear to be official documents annexed to this petition, especially the letter dated 14th June 2006 issued on the direction of the Vice Chancellor annexing the list of teaching and non-teaching staff who were absorbed in service does not show the name of complainant. In pursuance of the said letter, petitioner vide letter dated 17th March 2009 sought clarification from the Registrar cum-Finance Controller about the payment to the teaching and non-teaching staff. Reply was given by the University, vide letter dated 17th March 2009 annexing the letter of teaching and non- teaching staff and asked for strict compliance, other wise liability would go to the head of the petitioner. The said list does not find the name of complainant under the category of non-teaching staff. The letter dated 8th August 2009 shows that the ad hoc and occasional payments were made to nine teachers and twenty-one non-teaching employees who are non-payees subsequent to the order passed by the Hon’ble Supreme Court and the name of complainant finds mentioned in the category of non-teaching staff. Accordingly, the letters were addressed to the Branch Manager, Central Bank of India, Madhepura on 30th October 2008 and 19th June 2009 showing remittance of that amount to the staff, including the complainant. The complainant does not controvert the facts as aforesaid, rather relies on the order dated 27th June 21 Patna High Court Cr.Misc. No.4189 of 2011. 21 / 25 2006 which was passed by the Director, Higher Education for payment of amount during the pendency of contempt application, vide MJC No. 2532 of 2000 and the letter includes a list of persons in whose favour the money was to be distributed. Among four persons, 3rd name is of the present complainant and the money was transferred for his payment to the tune of Rs.1,90,220/-. The letter dated 18th August 2010 issued by the Registrar of the University about the remittance of money with respect to three persons, one of the persons was the complainant. 15. Another letter is dated 4th April 2010. This also shows the remittance of money to the College with strict compliance of the guidelines to pay the said amount, as mentioned in the letter. Notification dated 3rd October 2010 shows that the employees were on strike and direction w as given for the adjustment during which they were on strike against Earned Leave and directed for recording the same in the Service Book. Another letter dated 13th December 2010 shows the remittance of money and direction to pay the said amount and the said list includes the name of complainant along with other persons. Last but not the least is the letter dated 14th November 2009 issued by the Vice Chancellor of B.N.Mandal University where it has been shown that in pursuance of the report of Agrawal 22 Patna High Court Cr.Misc. No.4189 of 2011. 22 / 25 Commission which contains the name of the complainant and they were regularly paid their salary by the University after taking over the same. The University has absorbed them as regular employees in place of Kumar Kishore Kanhaiya, Santosh Kumar Singh and Vinay Kumar Yadav. 16. In reply to the said affidavit, petitioner filed a rejoinder whereby he has brought to the notice of this Court the decision of the Syndicate which shows that the matter with regard to the complainant was placed before the Syndicate, has taken decision to reopen the matter again after due deliberation and decision. Another document (Annexure-8) issued by the Principal showing the names of the persons under the category of unclassified where the complainant has been shown at Sl. No. 2. A letter of the University has been brought with the assertion that no amount has been released by the State Government till date in respect of the complainant from March 2011 onwards but admitted the fact that he was paid salary for the month of May 2010 to 2011 from the internal resources of the University. 17. On the facts aforesaid, this complaint case is arising after the report of the Agrawal Commission submitted before the Hon’ble Supreme Court where as has been claimed by the complainant he was found to be working and, accordingly, he 23 Patna High Court Cr.Misc. No.4189 of 2011. 23 / 25 was absorbed in service, whereas as per the undisputed documents it shows that the University some time paid the amount, Vice Chancellor reported as a regular employee but later on he was treated to be not an employee absorbed and money was paid from the internal resources. As per the allegation in the complaint petition, allegation has been made that the money which was remitted by the State was paid to the other employees illegally in stead of this complainant. The petitioner being the Principal was directed to act as per the directions and strict compliance in terms of distribution of money to the employees of the said College and in the said letter, name of complainant was not under the category of absorbed employee. 18. From the facts of the judgment mentioned hereinabove, it is clear from the FIR that allegation has been made that the complainant was earlier paid but later on his payment was stopped. In the complaint petition, it has been stated that he was absorbed in service of the College in view of the report of Agrawal Commission and the order passed by the Hon’ble Supreme Court but in the complaint petition at the later stage he has stated that he has wrongly been shown as an employee who was paid on ad hoc basis and has also stated that in his place another person has been regularized against the post he was 24 Patna High Court Cr.Misc. No.4189 of 2011. 24 / 25 absorbed in service. The facts mentioned in the FIR as well as the documents annexed to this writ shows that there is serious dispute about the absorption of the complainant and he himself claims that another person has wrongly been absorbed on the post which was meant for him and wrongly been paid. 19. The question will arise, the principal would pay the salary only when he receives salary in the name of a particular employee. The Principal cannot deviate the payment otherwise than the instructions received from the University or the State Government. The documents show that the University sent a list of teaching and non-teaching and non-teaching employees who were to be paid in regular service and the name of complainant was not there in the list of non-teaching staff. Whereas the documents show that his name was in the list of employees who were paid on ad hoc basis and the petitioner being the Principal could not have diverted the amount meant for other employees to the complainant. It is also relevant to notice that the court below has not taken any cognizance against the Vice Chancellor, rather confined the order of cognizance against the Finance Controller as well as the petitioner who was the then Principal of the College. The petitioner has rightly refused to make payment as the letter which was addressed to the Principal directing him for strict 25 Patna High Court Cr.Misc. No.4189 of 2011. 25 / 25 compliance and any deviation would be taken very seriously. The facts as emerged, it cannot be said that the petitioner has disobeyed any direction of law or authority which caused any injury to the opposite party nor the petitioner can be said to have committed any breach of trust. In these circumstances, this Court finds that it is primarily a dispute relating to service matter and the court below has wrongly treated it to be a case of criminal nature and has wrongly taken cognizance in this case. This Court feels that the order of cognizance is bad in law and not sustainable and, accordingly, the same is quashed.
Decision
20. Accordingly, the petition is allowed. Jay/- (Shivaji Pandey, J)