In a petition to quash an FIR for embezzlement, the High Court held that repaying retained funds after court direction does not absolve the accused of criminal liability. The court found offences made out and dismissed the petition.
No relief granted; petition for quashing of FIR and consequential proceedings dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Crl. Misc. No.M-11071 of 2011
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Crl. Misc. No.M-11071 of 2011
Date of Decision: 18.04.2011
Surender Kumar Sarwan
....Petitioner
Versus
State of Haryana & another
...Respondents
CORAM : Hon'ble Ms. Justice Nirmaljit Kaur
Present:Mr. Gurinder Pal Singh, Advocate for the petitioner.
**
NIRMALJIT KAUR, J. (ORAL)
This is a petition under Section 482 Cr.P.C for quashing of FIR No.187 dated 09.12.2009 under Section 409 IPC registered at Police Station Alewa, District Jind and all consequential proceedings arising therefrom.
It is contended that a bare perusal of Annexures P-1 and P-2 make it amply clear that the petitioner has not intentionally done anything wrong. It is further contended that immediately after the auction, the petitioner reported the facts to the Additional Chief Judicial Magistrate (Senior Division) specifying that he has received an amount of 1,40,000/- out of the total bid amount of 5,60,000/- and by deducting ` 56,000/- as recovery charges, he has deposited the remaining amount in the bank. It is also contended that the said deduction, if at all, can be termed as negligence and under no circumstances, it can be called a case of embezzlement of money. Moreover, he had not only deposited an
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Crl. Misc. No.M-11071 of 2011
amount of 84,000/- in the treasury but also further deposited an amount of 1,40,000/- in the Court on that very day when he was asked to appear in spite of the fact that he had already deposited an amount of ` 84,000/in the treasury.
Heard.
The specific allegations in the FIR are that the petitioner had imposed a recovery of 1/4th of the bid amount illegally, whereas, Ratti Ram was exempted from depositing 1/4th of the bid amount. Further, the said 1/4th bid amount was calculated at the rate of 1,40,000/-. Out of this 1,40,000/-, the petitioner had deposited 84,000/- in the treasury. However, he retained 56,000/- in his pocket. The fact that 56,000/were retained by the petitioner are not disputed. Thus, the argument that the said amount of 56,000/- were subsequently deposited on the asking of the Court and, therefore, it is not a case of embezzlement, cannot be sustained in the facts of the present case. The said amount was knowingly retained by the petitioner on 25.10.2008, whereas he knew that the same do not relate to him. The said amount was deposited by him only when the Court directed him to do so i.e on 26.11.2009.
Hon'ble the Apex Court in the case of Central Bureau of Investigation vs. A. Ravishankar Prasad & others reported as 2009(3) RCR (Criminal) 466, while dealing with Section 420 of the IPC and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, held that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceedings. In the said case, the accused had defrauded the bank to the tune of crores of rupees in connivance with senior officers and after fabricating documents. Criminal case under Prevention of Corruption Act and under Section 420, 467 and 471 IPC was registered against the accused. Charge sheet was submitted by the police. A settlement was arrived at between the accused and the Bank. Accused
Crl. Misc. No.M-11071 of 2011
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paid all the dues. Proceedings were quashed by the High Court in view of the settlement. However, the order of the High Court was set aside by the Hon'ble Supreme Court by holding as under :-
“43. In our considered view it was extremely unfortunate that the High Court in the impugned judgment has erroneously invoked inherent power of the court under section 482 of the Code of Criminal Procedure. The High Court ought to have considered the entire material available to establish a case against the respondents under section 120-B read with section 420 IPC. It is significant that the respondents and the other bank officials share the charges under section 120-B read with section 420 IPC. Quashing the charges against the respondents would also have very serious repercussions on the pending cases against the other bank officials.
44 & 45. xxx xxx xxx
Hon'ble the Supreme Court, in the case of State of Madhya Pradesh (supra) set aside the order of the High Court, vide which, the FIR was quashed on the ground that the Bank had not suffered any loss as the borrowers had returned the money with interest. Para 38 of the same reads as under :-
“38. Mr. Tankha's submissions, which were echoed by Mr. Jain, that the M.P. Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P. Co-operative Societies Act, 1960, to take resort to the provisions of the general criminal law,
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particularly when charges under the Prevention of Corruption Act, 1988, are involved.”
The said money was knowingly kept by the petitioner for all these months knowing well that the said money did not belong to him. He returned the same only after he was directed to do so. Thus, it cannot be said that no offence under Section 409 IPC is made out.
Hon’ble the Supreme Court in the case of State of M.P. vs. Awadh Kishore Gupta and others reported as (2004)1 SCC 691 while relying on the judgment of R.P. Kapur vs. State of Punjab reported as AIR 1960 SC 866, observed the category of cases, in which, the inherent power should be exercised to quash the proceedings. Para 9 of the same reads as under :-
“ 9. In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
Thus, needless to say, that none of the three grounds are available in the facts of the present case.
Even as per the judgment rendered in the case of State of Haryana vs. Bhajan Lal reported as 1992 Supp(1) SCC 335, a note of caution was added that the power should be exercised sparingly and that
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Crl. Misc. No.M-11071 of 2011
too in the rarest of rare cases and inherent powers should not be exercised to stifle a legitimate prosecution.
Applying the test and the legal position as laid down in the cases of State of M.P. (supra), as well as, State of Haryana (supra), the case, in hand, does not fall in any of the exceptions, as well as the expression “rarest of rare cases” wherein the FIR can be quashed while exercising power under Section 482 Cr.P.C.
Thus, depositing the amount after the Court directed him to do so, will not absolve the petitioner of the offence.
The other argument of the learned counsel that the petitioner had informed the Court immediately that he had retained the amount is also not borne out from the facts of the present case, in as much as, a perusal of Annexure P-2 shows that all that was submitted in the said communication was as under :-
“ 1/4th amount of 1,40,000/- was received at the spot and after imposing 10% recovery charges, the remaining amount of 84,000/- has been deposited in the bank.”
A perusal of the same, in no way, expresses that the said amount of 56,000/- was being retained by the petitioner in his own pocket. In fact, it shows that the petitioner had rather concealed the fact that he had kept 56,000/- with himself. The fact that as to whether the same was intentionally retained by the petitioner or it was on account of negligence can be determined only on the basis of evidence to be produced during trial.
Dismissed accordingly.
(NIRMALJIT KAUR) JUDGE
18.04.2011 gurpreet
2 issues framed by the court
Whether depositing retained funds after court direction absolves the petitioner from charges under Section 409 IPC.
Whether the case falls within the exceptions allowing quashing of proceedings under Section 482 Cr.P.C.
Colour shows how this judgement treated each authority
Central Bureau of Investigation vs. A. Ravishankar Prasad & othersExplained¶26
2009(3) RCR (Criminal) 466
State of M.P. vs. Awadh Kishore Gupta and othersApplied¶39
(2004)1 SCC 691 · Who else cites this
R.P. Kapur vs. State of PunjabExplained¶40
AIR 1960 SC 866 · Who else cites this
State of Haryana vs. Bhajan LalApplied¶45
1992 Supp(1) SCC 335 · Who else cites this
2 provisions across 2 enactments
Surender Kumar Sarwan
State of Haryana
Nirmaljit Kaur
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
