Dismissed

Anuradha Singh v. State of Hp and Others

Himachal Pradesh HC3 Sept 2024CRMMO/1222/2023

Case brief

AI extract

What is this about?

Petitioner sought quashing of criminal proceedings for alleged embezzlement via Section 482 Cr.P.C. contending civil disputes and lack of direct involvement. Court held allegations taken at face value disclosed an offence under IPC, dismissed petition, noted inquiry barred at this stage.

What did the court decide?

Petition dismissed; order confined to quashing disposal without bearing on merits of the case.

Anuradha Singh Vs State of Hp and… — Civil Procedure and Limitation | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:7803 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MMO No.1222 of 2023 Reserved on: 05.08.2024 Date of Decision: 03.09.2024.

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Anuradha Singh ...Petitioner

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Versus

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State of H.P. through Secretary (Home) and ors. ...Respondents

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner	:	Mr. R.L. Chaudhary, Advocate.
For Respondents No.1 to 3	:	Mr. Ajit Sharma, Deputy Advocate General.
For Respondent No.5	:	Mr. Rakesh Thakur, Advocate.
		Name of respondent No. 4 is deleted vide order dated 09.01.2024.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for quashing of FIR No. 0079 dated 05.09.2017 for the commission of offences punishable under Sections 420, 467, 468 and 120B of IPC registered at Police Station Kandaghat, District Solan, H.P. and the consequent proceedings arising out of the FIR. It was asserted that the informant assumed himself to be the President

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Neutral Citation No. ( 2024:HHC:7803 )

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of Arya Samaj Shiksha Samiti. The petitioner is one of the members of the Samiti (Society). The society is running a school under the name and style of Dayanand Adarsh Vidyalaya, Kandaghat. The petitioner was appointed as a teacher in the year 1996. She was promoted to the post of Principal in August 2009. The petitioner expanded the school and got it affiliated with the H.P. Board of School Education. The informant got Arya Samaj Shiksha Samiti, Kandaghat registered. He claimed himself to be the Pradhan of the Society. He got the land mutated in the name of the Society illegally. A dispute arose and the Divisional Commissioner, Shimla passed an order holding that the land belonged to Arya Pradeshik Pratinidhi Sabha Mandir Marg, New Delhi. The informant has filed a revision before the learned Financial Commissioner. The members of Arya Pradeshik Pratinidhi Sabha Mandir Marg, New Delhi also filed a case against the informant, which is pending before the Registrar of Societies. The informant prepared resolutions dated 28.02.2016 and 06.03.2016 on his own and submitted them to UCO Bank, Kandaghat. He filed a complaint before Police Station, Kandaghat on 05.03.2016 asserting that the petitioner and other persons had embezzled the money. They purchased the land and

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Neutral Citation No. ( 2024:HHC:7803 )

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flats in their name. The police registered the FIR no.79 of 2017 dated 05.09.2017. The informant had also filed an application under Section 156(3) of Cr.P.C. with the same averments. The petitioner had purchased the flat by raising a loan of ₹20,00,000/- from the Bank. Her services were terminated by the informant. Shecould not repay the amount and the Bank sold the flat. The police registered another FIR based on the application under Section 156(3) of Cr.P.C. for the commission of offences punishable under Sections 467, 468 and 120B of the IPC. The FIR lodged by the petitioner is an abuse of the process of the Court. Civil litigations are pending between the informant and Arya Pradeshik Pratinidhi Sabha Mandir Marg, New Delhi. The informant had taken the record from the school and forged it to falsely implicate the petitioner. The allegations in the FIR are false. It was asserted in the FIR that the petitioner had embezzled the fee deposited by the parents/students, however, the fee was being received by the cashier, who was managing the financial affairs of the Society. The petitioner has no role in the management of the affairs of the Society after 05.03.2016 and the informant is managing the same. The informant has also filed a civil suit for the recovery of the embezzled amount and

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the continuation of the criminal proceedings is not permissible; hence, it was prayed that the present petition be allowed and the FIR be ordered to be quashed.

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The petition is opposed by the State by filing a reply making preliminary submissions regarding lack of maintainability and the petitioner having not come to the Court with clean hands. The contents of the petition were denied on merits. It was asserted that the petitioner embezzled funds of the Samiti in connivance with another person and invested them in purchasing the land and flats in her name. Excessive school fee was demanded from the students as bus fare and for annual functions. The petitioner misused her position as a principal. The allegations in the FIR constitute the commission of the cognizable offences and they were found to be correct after the investigation. Therefore, it was prayed that the present petition be dismissed.

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A rejoinder denying the contents of the reply and affirming those of the petition was filed.

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I have heard Mr R.L. Chaudhary, learned counsel for the petitioner, Mr. Ajit Sharma, learned Deputy Advocate

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General for respondents No.1 to 3 and Mr. Rakesh Thakur, learned counsel for respondent No.5. Name of respondent No.4 was deleted vide order dated 09.01.2024.

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Mr. R.L. Chaudhary, learned counsel for the petitioner submitted that the allegations in the FIR even if accepted to be correct are not correct. The civil litigations are pending between the informant and the Society. A false complaint was filed against the petitioner. The petitioner was not responsible for depositing the money and the money was being deposited with the cashier of the school. The cashier is responsible for the embezzlement of the funds, if any, and the petitioner has no role to play in the same. Hence, he prayed that the present petition be allowed and the FIR be quashed.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondents No.1 to 3/State submitted that as per the allegations, the petitioner was accepting the money. She misappropriated the same. The truthfulness of otherwise of the allegations is to be seen after the trial and not at this stage. Hence, he prayed that the present petition be dismissed.

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Neutral Citation No. ( 2024:HHC:7803 )

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Mr. Rakesh Thakur, learned counsel for respondent No.4 adopted the submissions made by learned Deputy Advocate General and prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The law regarding the exercise of jurisdiction under Section 482 of Cr.P.C. was considered by the Hon’ble Supreme Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it was observed: -

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9. The law with regard to the exercise of jurisdiction under Section 482 of Cr. P.C. to quash complaints and criminal proceedings has been succinctly summarized by this Court in the case of Indian Oil Corporation v. NEPC India Limited (2006) 6 SCC 736: 2006 INSC 452¹ after considering the earlier precedents. It will be apposite to refer to the following observations of this Court in the said case, which read thus:

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“ 12. The principles relating to the 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 [(1988) 1 SCC 692: 1988 SCC (Cri) 234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri) 1059], Central Bureau of Investigation v. Duncans Agro Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri) 1045], State of Bihar v. Rajendra Agrawalla [(1996) 8 SCC 164: 1996 SCC

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Neutral Citation No. ( 2024:HHC:7803 )

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(Cri) 628], Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC (Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC 645: 2002 SCC (Cri) 19] and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122: 2005 SCC (Cri) 283]. The principles, relevant to our purpose are:

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( 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.

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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 a complaint.

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( 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.

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( 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.

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( 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

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8 Neutral Citation No. ( 2024:HHC:7803 )

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complaint is warranted only where the complaint is so bereft of even the basic facts which are necessary for making out the offence.

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( v. ) A given set of facts may make out : ( a ) purely a civil wrong; ( 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 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.

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Similar is the judgment Maneesha Yadav v. State of

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U.P., 2024 SCC OnLine SC 643 , wherein it was held: -

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12. We may gainfully refer to the following observations of this Court in the case of State of Haryana v. Bhajan Lal1992 Supp (1) SCC 335: 1990 INSC 363 :

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“ 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised 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

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Neutral Citation No. ( 2024:HHC:7803 )

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and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(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.

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(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a an cognizable offence, justifying 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.

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(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.

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(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 Code.

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(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.

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(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 a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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(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.

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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.”

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A copy of the final report (Annexure P3) shows that

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as per the investigation, the petitioner had received ₹23,90,980/- towards the monthly fee. ₹8,000/- from Nehru Yuva Kendra, ₹56,100/- towards the annual function and

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Neutral Citation No. ( 2024:HHC:7803 )

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₹2,54,050/- as a fare for the school bus. In this manner, the petitioner had received ₹27,09,130/-. The inquiries were made from the students and their parents who stated that they had deposited the money with the principal. The petitioner misappropriated ₹12,96,390/- out of this amount. As per the report of the analysis, the disputed signatures matched with her specimen signatures.

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These allegations show that the money was entrusted to the petitioner but she had failed to deposit the same with the Society. Hence, prima facie, the ingredients of Section 406 of IPC are duly satisfied.

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It was submitted that the allegations in the FIR are false. There is a force in the submission of Mr. Ajit Sharma, learned Deputy Advocate General that this Court is not to see the truthfulness or otherwise of the allegations made in the FIR. It is a matter of trial to be seen by the learned Trial Court. It was laid down by the Hon’ble Supreme Court in Priyanka Jaiswal vs. State of Jharkhand, 2024 SCC OnLine SC 685 that the Court exercises extra-ordinary jurisdiction under Section 482 of Cr.P.C. and

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Neutral Citation No. ( 2024:HHC:7803 )

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cannot conduct a mini-trial or enter into an appreciation of an evidence of a particular case. It was observed: -

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“13. We say so for reasons more than one. This Court in catena of Judgments has consistently held that at the time of examining the prayer for quashing of the criminal proceedings, the court exercising extra-ordinary jurisdiction can neither undertake to conduct a mini-trial nor enter into appreciation of evidence of a particular case. The correctness or otherwise of the allegations made in the complaint cannot be examined on the touchstone of the probable defence that the accused may raise to stave off the prosecution and any such misadventure by the Courts resulting in proceedings being quashed would be set aside. This Court in the case of Akhil Sharda 2022 SCC OnLine SC 820 held to the following effect:

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“28. Having gone through the impugned judgment and order passed by the High Court by which the High Court has set aside the criminal proceedings in the exercise of powers under Section 482 Cr. P.C., it appears that the High Court has virtually conducted a mini-trial, which as such is not permissible at this stage and while deciding the application under Section 482 Cr. P.C. As observed and held by this Court in a catena of decisions no mini-trial can be conducted by the High Court in the exercise of powers under Section 482 Cr. P.C. jurisdiction and at the stage of deciding the application under Section 482 Cr. P.C., the High Court cannot get into appreciation of evidence of the particular case being considered.”

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A similar view was taken in Maneesha Yadav v. State of

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U.P., 2024 SCC OnLine SC 643 wherein it was held that: -

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Neutral Citation No. ( 2024:HHC:7803 )

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“13. As has already been observed hereinabove, the Court would 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 at the stage of quashing of the proceedings under Section 482 Cr. P.C. However, the allegations made in the FIR/complaint, if taken at its face value, must disclose the commission of an offence and make out a case against the accused. At the cost of repetition, in the present case, the allegations made in the FIR/complaint even if taken at its face value, do not disclose the commission of an offence or make out a case against the accused. We are of the considered view that the present case would fall under Category-3 of the categories enumerated by this Court in the case of Bhajan Lal (supra) .

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14. We may gainfully refer to the observations of this Court in the case of Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home(2019) 11 SCC 706: 2018 INSC 1060 :

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“ 14. First, we would like to deal with the submission of the learned Senior Counsel for Respondent 2 that once the charge sheet is filed, the petition for quashing of FIR is untenable. We do not see any merit in this submission, keeping in mind the position of this Court in Joseph Salvaraj A. v. State of Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59: (2011) 3 SCC (Cri) 23] . In Joseph Salvaraj A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC 59: (2011) 3 SCC (Cri) 23], this Court while deciding the question of whether the High Court could entertain the Section 482 petition for quashing of FIR when the charge-sheet was filed by the police during the pendency of the Section 482 petition, observed : (SCC p. 63, para 16)

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“ 16. Thus, the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted

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would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge [ Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365 ] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.”

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Hence, it is not permissible for the Court to go into

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the truthfulness or otherwise of the allegations made in the complaint.

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It is undisputed that the chargesheet has been filed before the Court. Hence, the competent Court is seized of the matter. It is a matter of trial to be seen by the learned Trial Court. It was laid down by the Hon’ble Supreme Court in Priyanka Jaiswal vs. State of Jharkhand, 2024 SCC OnLine SC 685 that the Court exercises extra-ordinary jurisdiction under Section 482 of Cr.P.C. and cannot conduct a mini-trial or enter into an appreciation of an evidence of a particular case. It was observed: -

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nor enter into appreciation of evidence of a particular case. The correctness or otherwise of the allegations made in the complaint cannot be examined on the touchstone of the probable defence that the accused may raise to stave off the prosecution and any such misadventure by the Courts resulting in proceedings being quashed would be set aside. This Court in the case of Akhil Sharda 2022 SCC OnLine SC 820 held to the following effect:

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17. A similar view was taken in Maneesha Yadav v. State of

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U.P., 2024 SCC OnLine SC 643 wherein it was held that: -

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do not disclose the commission of an offence or make out a case against the accused. We are of the considered view that the present case would fall under Category-3 of the categories enumerated by this Court in the case of Bhajan Lal (supra) .

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14. We may gainfully refer to the observations of this Court in the case of Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home(2019) 11 SCC 706: 2018 INSC 1060 :

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“ 16. Thus, the general conspectus of the various sections under which the appellant is being charged and is to be prosecuted would show that the same are not made out even prima facie from the complainant's FIR. Even if the charge sheet had been filed, the learned Single Judge [ Joesph Saivaraj A. v. State of Gujarat, 2007 SCC OnLine Guj 365 ] could have still examined whether the offences alleged to have been committed by the appellant were prima facie made out from the complainant's FIR, charge-sheet, documents, etc. or not.”

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Hence, it is not permissible for the Court to go into

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the truthfulness or otherwise of the allegations made in the complaint.

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Consequently, the present petition fails and the same is dismissed.

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The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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3^rd September, 2024 (saurav pathania)

Anuradha Singh v. State of Hp and Others

Case brief

What is this about?

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Anuradha Singh v. State of Hp and Others

Case brief

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