Matloob Khan v. Dr. S.B.A. Zaidi & Ors.

Mr. R S Sihota, Senior Advocate with Mr. Ashok Kumar Sharma, Advocate for the petitioner -.- Whether Reporters of local papers may be allowed to see the judgement? To be referred to the Reporter or not? Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This is a petition under Section 482 of the Code of Criminal Procedure for quashing of order dated 03.02.2010 (P-13) passed by the Additional Sessions Judge, Gurgaon and order dated 05.03.2007 (P-11) passed by the Judicial Magistrate Ist Class, Nuh, vide which, the respondents have been discharged of the offences under Sections 420, 409, 406, 418, 477 and 120-B of Indian Penal Code. The petitioner-complainant filed a complaint under Sections 406, 409, 418, 420, 467, 477-A, 120-B, 382 and 384 IPC against the respondents pleading misappropriation of huge funds by alleging that the respondents had taken unaccounted money from the students for the CRM No. M 13924 of 2010 2 academic session 2001-02 while admitting them to 10+1 and 10+2 classes @ `500/- each students without issuing any receipt and in this manner collected an amount of `1,67,500/-. The petitioner-complainant appeared as PW1 in the preliminary evidence and also examined as many as 9 other witnesses and tendered 5 document as PW1 to PW5. On the perusal of evidence, the learned Sub Divisional Judicial Magistrate, Nuh summoned the respondents-accused on 09.06.2003. After recording the pre-charge evidence, the respondents were discharged from the allegations levelled against them. Accordingly, the present petitioner preferred a revision petition against the orders dated

05.03.2007 passed by the JMIC, Nuh, dismissing the application under Section 311 of the Code of Criminal Procedure as well as ordering the discharge of the respondents before the Sessions Judge, Gurgaon. Hon'ble the Apex Court in the case of Krishnan and anothervs. Krishnaveni and another reported as 1997(4) Supreme Court Cases 241 held that second revision before the High Court after dismissal of first one by the Court of Sessions is barred under Section 397(2). Admittedly, the revision petition has been dismissed. The second revision being barred under Section 397(2) Cr.P.C., the petitioner cannot file the present petition under Section 482 Cr.P.C under the garb of second revision petition. No doubt, Hon'ble the Supreme Court did grant the liberty to exercise the power under Section 482 Cr.P.C even if the revision has been dismissed, however, the same is to be exercised sparingly and only to stop the perpetuating of injustice or in case of misuse of the process of law. No such ground has been pointed out in the present case. CRM No. M 13924 of 2010 3 Hence, the discretionary power under Section 482 Cr.P.C cannot be invoked in the facts of the present case when the revision petition already stands dismissed. Even on merits, it is held by the Judicial Magistrate Ist Class that there is no evidence on case file which could reveal that financial aid released in favour of accused college was ever misappropriated by accused and observed as under:- “.........The general allegations of complainant are that accused misappropriated money which was recovered by them from students and general public at large. Students, their parents and general public at large were material witnesses who could testify on oath that they paid any amount to the accused and accused misappropriated the same.....” Thereafter, the Additional Judge, Gurgaon took into consideration the entire evidence and came to the conclusion that no receipt vide which the payment was collected by the official of the Mewat Education Board and allegedly not deposited in the account has been led in evidence. No student or his parents have been examined to prove that any amount of Rs.500/- was charged from them without issuing any receipt. As per PW9 Shikha, the account has not been operated upon. PW2 Dr. M Salim, PW3 Dr. M S Khan have not supported the version put forward by the petitioner. In fact, the affidavits could not be looked into as no one came forward to depose the contents of the affidavit. It was specifically noticed that despite the witnesses resiling from their earlier version, the complainant did not dare to cross examine them. PW7 Sehbad Khan came forward but did not utter any word that the accused has charged any amount CRM No. M 13924 of 2010 4 from him without issuing any receipt. Thus, not a single witness came forward to depose that the accused have charged any amount from them without issuing any receipt. No evidence was led. After going through the entire evidence at pre charge stage and after hearing the arguments, the Additional Sessions Judge recorded in para 22 as under:- “22. In this manner, not a single witness has deposed that accused charged any amount from them without issuing any receipt on the pretext of attestation of testimonials or issuing college leaving candidates. On evidence has been led by complainant to prove that any receipt was issued against payment or that the same has not been reflected in the accounts of Mewat Education Board or Yasin Meo Degree College and that the same has been misappropriated. Oral testimony of complainant that funds have been misappropriated and students and public at large have been cheated carried no weight as he himself has not paid any such amount which may have been misappropriated. Ld. Trial court thus rightly came to the conclusion that no case against the accused is made out which, if rebutted would warrant their conviction and rightly discharged the accused. There is thus no illegality, infirmity or irregularity and order under challenge is perfectly legal and justified and same is thus not liable to counsel for revisionist is not at all applicable to the facts of the case in hand.” Section 245 of the Code of Criminal Procedure reads as under:- “245. When accused shall be discharged. (1) If, upon taking all evidence referred to in section 244 the Magistrate considers, for reasons to be CRM No. M 13924 of 2010 5 recorded that the case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. (2) Nothing, in this section shall be deemed to prevent a Magistrate from discharging he accused at any previous stage of the case if, for reasons to be recorded Magistrate, he considers the charge to be groundless. From the above Section, it is clear that the Magistrate has ample powers to discharge the accused, in case, no offence is made out against the accused in spite of the unrebutted evidence before him. Thus, there is no infirmity pointed out which may enable this Court to interfere under Section 482 of the Code of Criminal Procedure and exercise its discretionary power to set aside the well reasoned aforesaid order passed by the Judicial Magistrate Ist Class, Nuh as well as the order passed by the Additional Sessions Judge dismissing the revision filed by the petitioner. of merit. In view of above, the present petition is dismissed being devoid October 05, 2010 (Nirmaljit Kaur) Judge CRM No. M 13924 of 2010 6