Dismissed

Raj Mumar v. Prem Kumar and Anr.

Punjab & Haryana HC2 May 2012CRM-M/29578/2008

Case brief

AI extract

What is this about?

The High Court dismissed second revision petitions in criminal matters challenging orders framing charges and upholding them in a conspiracy to defraud case involving National Saving Certificate impersonation, holding no merit without extending to trial merits.

What did the court decide?

Impugned orders dated 02.11.2007 and 12.09.2008 maintaining charges are upheld; petitions dismissed.

Raj Mumar Vs Prem Kumar and Anr. — Criminal Trial and Appeal | Punjab & Haryana HC (2012)

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Criminal Misc.No.M-29578 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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(1) Criminal Misc.No.M-29578 of 2008 Raj Kumar .....Petitioner

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Versus

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Prem Kumar and another .....Respondents (2) Criminal Misc.No.M-30688 of 2008 Harbans Lal Garg .....Petitioner

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Versus

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Prem Kumar ....Respondent

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Date of Decision:02.05.2012

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CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.

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Present: Mr.Rajnish K.Jindal, Advocate, for the petitioner in CRM No.M-29578 of 2008.

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Mr.Vipul Jindal, Advocate, for the petitioner in CRM No.M-30688 of 2008.

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Mr.Sunny Singla, Advocate, for respondent No.1.

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Nemo for respondent No.2.

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MEHINDER SINGH SULLAR, J.(oral)

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As, identical questions of law and facts are involved, therefore, I propose to decide the above indicated petitions, arising out of the same complaint case and impugned orders, by means of this common judgment, in order to avoid the repetition.

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Concisely, the facts and material, which need a necessary mention for the limited purpose of deciding the core controversy, involved in the instant petitions and emanating from the record are that, Satya Devi wife of Bhan Chand, mother of the complainant Prem Kumar, respondent No.1(for brevity “the complainant”) had purchased a National Saving Certificate(for short “the NSC”)

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Criminal Misc.No.M-29578 of 2008 2

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from the Post Office, of an amount of Rs.5,000/-. On maturity, she would have received the double of its amount. Petitioner-accused Raj Kumar, was a partner of the complainant, whereas petitioner-accused Harbans Lal Garg, was the agent of the Post Office, at the relevant time. According to the complainant that, both the accused hatched a criminal conspiracy, impersonated Satya Devi, got thumb impression of some other lady and illegally got encashed the amount of indicated NSC on 20.04.1998. The matter was stated to have been reported to the postal authorities and police, but no action was taken by them against the accused.

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Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the accused-Raj Kumar with the connivance of Harbans Lal Garg, agent of the Post Office, cheated his mother and illegally withdrawn the amount, by impersonating some other lady as Satya Devi. In the background of aforesaid allegations, the complainant filed a criminal complaint(Annexure P-1) against the petitioners-accused, for the commission of offence punishable under Sections 419, 420 and 120-B IPC. They were accordingly charge-sheeted by the Chief Judicial Magistrate(for short “the CJM”), by virtue of impugned order dated 02.11.2007(Annexure P-6). The revision petitions filed by them, were dismissed as well by the Revisional Court, through the medium of impugned order dated 12.09.2008(Annexure P-7).

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The petitioners still did not feel satisfied and preferred the present second revision petitions, in the garb of petitions under Section 482 Cr.P.C., to challenge the impugned orders(Annexures P-6 and P-7).

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After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the instant petitions in this context.

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At the very outset, it is not a matter of dispute that the Hon'ble Supreme Court has authoritatively held, in a celebrated judgment in case State of

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Criminal Misc.No.M-29578 of 2008

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Haryana and others v. Ch.Bhajan Lal and others , AIR 1992 Supreme Court

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604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008(2) R.C.R.(Criminal) 92, that the criminal prosecution can only be quashed

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in rarest of rare case at the initial stage as per the following conditions:-

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“ (i) 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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(ii) 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 S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2) of the Code.

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(iii) 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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(iv) Where, the allegations in the F.I.R. 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 S.155(2) of the Code.

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(v) 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. (vi) 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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(vii) 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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Not only that, again the Hon'ble Apex Court in case Jeffery J.Diermeier & Anr. v. State of West Bengal & Anr. 2010(3) R.C.R.(Criminal)

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183, having interpreted the scope of section 482 Cr.PC, has ruled (para 16) as

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under:-

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“16. Before addressing the contentions advanced on behalf of the parties, it will

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Criminal Misc.No.M-29578 of 2008

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be useful to notice the scope and ambit of inherent powers of the High Court under Section 482 of the Code. The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.”

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Ex facie, the arguments of the learned counsel that, the petitioners have been falsely implicated by the complainant and since, there was no material, so, the Courts below have committed a legal mistake, in framing the charges against them, are neither tenable, nor the observations of this Court in case Rakesh

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Kumar and others Versus State of Punjab and other, 2009(2) R.C.R.

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(Criminal) 565, are at all applicable to the facts of the present case, wherein, the wife lodged the criminal prosecution against her husband, his four brothers, unmarried sister and mother-in-law, for the commission of offence punishable under Sections 406 and 498-A IPC. While deciding the petition for quashing the criminal prosecution with regard to other relatives, except husband and mother-inlaw, on the peculiar facts and in the special circumstances of that case, it was observed that a tendency has developed for roping all the relatives in dowry cases and although second revision was barred, but the High Court can entertain a petition under Section 482 of Cr.P.C., when there is serious miscarriage of justice and abuse of process of the Court. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the petitioners in the present controversy.

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As is evident from the record that, direct and serious allegations are

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Criminal Misc.No.M-29578 of 2008 5

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assigned to the petitioner-accused Raj Kumar, that he has hatched a criminal conspiracy with Harbans Lal Garg, Post Office agent, impersonated Satya Devi and fraudulently withdrawn the amount of her NSC.

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Not only that, having completed all the codal formalities, taking cognizance of the complaint and preliminary oral evidence of CW1-Satya Devi (Annexure P-2), CW-2-Post Master, Mansa(Annexure P-3), CW4-complainant Prem Kumar(Annexure P-4), CW5-Sumit Kumar Arora, document expert and other documentary evidence, ultimately, the CJM framed the charges against the petitioners-accused, by way of impugned order dated 02.11.2007(Annexure P-6). Sequelly, the matter was re-examined by the Revisional Court, in the light of the law laid down by this Court in case Wealth Tax Officer Versus Om Parkasah, 2003(1) R.C.R.(Criminal) 798 and upheld the order of framing of charge of the CJM, by means of impugned order dated 12.09.2008(Annexure P-7), which in substance is as under:-

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“So from the law laid down in the above cited authority by our Hon'ble High Court, it is evident that in revision, the Court is not to re-appraise the evidence. In my opinion from the evidence on record, a prima facie case for framing charges under above said sections was made out. So no ground to interfere in the impugned order in the present revision is made out. There is no patent illegality or irregularity in the impugned order.”

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Meaning thereby, both the Courts below have analyzed the matter in the right perspective, negate the claim of the petitioners and recorded the cogent grounds in this relevant behalf. Such impugned orders, containing the valid reasons, cannot possibly be interfered with by this Court, in the present second revision petitions, in the garb of petitions under Section 482 Cr.P.C.(which are otherwise barred under Section 397(3) Cr.P.C.), unless and until, the same are illegal, perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioners, so, the

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Criminal Misc.No.M-29578 of 2008

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impugned orders(Annexures P-6 and P-7) deserve to be and are hereby maintained in the obtaining circumstances of the cases.

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In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of the main complaint, as there is no merit, therefore, the instant petitions are hereby dismissed as such.

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Needless to mention that, nothing recorded hereinabove, would reflect, in any manner, on merit during the course of trial of the main complaint, as the same has been so observed for a limited purpose of deciding the present petitions only.

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May 02, 2012 ( M EHINDER S INGH S ULLAR) seema JUDGE

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Whether to be referred to reporter? Yes/No

Raj Mumar v. Prem Kumar and Anr.

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Raj Mumar v. Prem Kumar and Anr.

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