Criminal Misc. No.M-8800 of 2010 (O&M) v. State of Punjab

FIR No.40 dated 27.3.2004 under Sections 409, 420, 120-B of the Indian Penal Code (Annexure P-1) and order of framing of charge dated 21.7.2006 (Annexure P-2) passed by Sub Divisional Judicial Magistrate, Jagraon and order dated 27.1.2010 (Annexure P-3) passed by Additional Sessions Judge, Ludhiana and all the subsequent proceedings arising from the FIR. The contents of the FIR (Annexure P-1) reads as under:- Criminal Misc. No.M-8800 of 2010 (O&M) 2 “ Sir, the brief facts of the case are that on 27.3.2004 one application bearing No.2604/RC dated 25.3.04 from Sub Registrar, Malerkot. To Station House Officer, P.S. Raikot No.2604/RC dated 25.3.04. Subject: Regarding registration of case regarding embezzlement of Government Funds. That the audit of this office for the year 2002-03 was conducted by Audit Party of A.G. Punjab from 11.3.04 to 16.3.04. From which registration fee to the tune of Rs.2,0,5,390/- was found less, deposited in the Treasury. In this office registration namely Karnail Singh was deployed from 11.7.02 to

19.3.04 because the responsibility/duty to receive cash and depositing the same in the Government Treasury was of his. In this regard one Circular No.149 of Inspector of General Registration Punjab, Jalandhar and his office No.R-1/17-48/111/31610-31717 dated 6.12.1991, photocopy of which is appended herewith. This amount of Rs. 2,05,390/- had been admitted in the Govt. Treasury on 16.3.04 by Karnail Singh Clerk. A.G. Party Punjab from 19.3.04 to 25.3.04, and from 1.4.03 to till date had conducted the audit and had found that amount of Rs.17,18,169/- as registration fee, is lesser in the Government Treasury. Karnal Singh Registry Clerk was asked to deposit this amount, upon which he stated that Criminal Misc. No.M-8800 of 2010 (O&M) 3 as he is handicapped, he has been depositing the amount through Jasweinder Singh son of Kulwant Singh resident of Pakhowal in the Government Cash Bank. It is he who has tampered with the Government record and he has embezzled the cash. So a case under the relevant provisions of law be registered against Karnail Singh, Registry Clerk and Jaswinder Singh son of Kulwant Singh resident of Pakhowal. Sd/- Sub Registrar, Raikot.” After hearing learned counsel for the petitioners, I am of the opinion that the present petition deserves dismissal. In the case of State of Haryana vs. Bhajan Lal , , 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:- “The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information Criminal Misc. No.M-8800 of 2010 (O&M) 4 report or the complainant/respondent No.2, 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 Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused. (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 Magistrate as contemplated under Section 155(2) of the Code. (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. Criminal Misc. No.M-8800 of 2010 (O&M) 5 (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” The allegations against the petitioners are that they being public servants had embezzled Government funds. The amount in Criminal Misc. No.M-8800 of 2010 (O&M) 6 question was not deposited in the treasury but was misappropriated by the petitioners. At the stage of framing of the charge only a prima facie case is required to be seen to have been made out against the petitioners. At the relevant time petitioner No.1 Karnail Singh was working as Tehsildar, whereas, petitioner No. 2 Rajvir Singh was working as Naib Tehsildar along with main accused Karnail, who had prepared false accounts The revision petition filed by the petitioners against the order dated 21.7.2006, whereby charge was framed against them, has been dismissed and the learned Additional Sessions Judge has given the following reasons while dismissing the petition:- “5. I have heard the Ld. Counsel for the revisionists and Ld. Addl. PP and I am of the considered opinion that the revision petition deserves to be dismissed. The instant case pertains to the financial embezzlement of Rs.17,87,169/- which was to be deposited with the Government Treasury on account of registration fee. It is charges only prima facie case has to be seen. During the time when the offence was allegedly committed revisionist no.1 was working as Tehsildar and revisionist no.2 was working as Naib Tehsildar alongwith the main accused Karnail, who prepared false account relating to the receipt of registration fee of Rs.17,87,169/-, pertaining to the sale deeds. Prima facie it is proved that Criminal Misc. No.M-8800 of 2010 (O&M) 7 there has been dereliction of duty on the part of the revisionists because they did not check the account deposit of the clerical staff and their connivance with Karnail Singh in commitment of offence cannot be ruled out at this stage. The revisionists cannot shirk their responsibility on the ground that they were not directly involved with the offence. At this stage, in the absence of any evidence led by the prosecution, it cannot be held that the revisionists were innocent and were not involved in the commitment of offence. It is settled law by the Hon'ble Supreme Court in the case titled Kanti Bhadar Shah vs. State of Bengal AIR 2000 S.C. 522, that detailed reasons need not to be recorded by the trial court while framing the charges.” This Court in para 6 of its judgment in Manoj vs. Prem Lal, 2006(3) RCR(Criminal) 941, held as under:- “Power under Section 482 Cr.P.C. has to be exercised sparingly and such power was not to be utilised as a substitute for second revision. Ordinarily, when a revision has been barred under Section 397 (3) of the Code, the complainant or the accused cannot be allowed to take recourse to revision before the High Court under Section 397 (1) of the Code, as it is prohibited under Section 397 (3) Cr.P.C. However, the High Court can entertain a Criminal Misc. No.M-8800 of 2010 (O&M) 8 petition under Section 482 of the Code, when there is serious miscarriage of justice and abuse of the process of the Court or when mandatory provision of law are not complied with and when the High Court feels that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional Court.” In the present case, learned counsel for the petitioners has failed to point out any miscarriage of justice or abuse of process of Court which would warrant interference by this Court. The reasons given by the learned Additional Sessions Judge, while dismissing the revision petition filed by the petitioners, are sound reasons and call for no interference. Accordingly, the present petition is dismissed. March 29, 2010 (SABINA) JUDGE