Dismissed

Lt.Col.Retd.Sher Singh v. State and Ors.

Rajasthan HC7 Feb 2012CRLMP/19/2010

Case brief

AI extract

What is this about?

The High Court of Rajasthan examined a petition seeking quashing of an FIR alleging defalcation and forgery. Relying on Section 482 Cr.P.C., the Court held that mere filing of a writ petition challenging recovery is insufficient to quash the FIR. Interference was denied as prima facie allegations of offence were supported by record. The petition and stay petition were dismissed.

What did the court decide?

Criminal Misc. Petition No.19/2010 and stay petition dismissed.

Lt.Col.Retd.Sher Singh Vs State and Ors. — Corruption | Rajasthan HC (2012)

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IN THE HIGH COURT OF JUDICATURE FOR

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RAJASTHAN AT JODHPUR.

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JUDGMENT

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S.B. Criminal Misc. Petition No.19/2010

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Lt. Col. (Retd.) Sher Singh.

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vs.

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State of Rajasthan & Ors.

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DATE OF JUDGMENT : 7.2.2012

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HON'BLE MR. JUSTICE SANDEEP MEHTA

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Mr.SP Sharma, for the petitioner.

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Mr.KK Rawal, PP, for the respondent State.

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Heard.

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The present misc. petition has been preferred by the petitioner seeking quashing of F.I.R. No.12/2009 registered against the petitioner and one Chena Ram at P.S. Kotwali, Barmer for the offences under Sections 409, 467, 468 and 471 IPC.

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The challenge which has been made to the FIR impugned is based on the following grounds :-

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1.That the incident relates to 1997-2000.

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2.That the initial inquiry which was made revealed that the defalcation was made by Laxman Ram and not the petitioner.

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3.That in separate enquiries, separate figures of amount

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have been found due against the petitioner.

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4.That Sainik Kalyan Board wrote a letter to the S.P. that the amount defalcated should be recovered but the S.P. has sent back the letter saying that it is not the duty of the police.

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5.That the demand raised against the petitioner behind his back has been challenged by way of filing writ petition before this Court and if the instant FIR is permitted to be investigated, then the very challenge to the petitioner to alleged illegal demand raised against him shall be rendered in effective.

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6.That mere allegation in the FIR is that the amount due against the petitioner was discovered on the basis of audit objection and such demand cannot be an amount misappropriation as defined in Section 409 IPC.

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7.That the petitioner made a complaint against Laxman Ram, the principal offender who committed suicide and as a counterblast, S.D.M. has filed FIR as malicious prosecution.

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Counsel for the petitioner has placed reliance on the decision of the Hon'ble Apex Court given in the case of Joseph Salvaraj A. Vs. State of Gujarat & Ors. reported in 2011 Cr.L.R. (SC) 739 and a judgment of this Court rendered in the case of Om Prakash vs. State of Rajasthan reported in 2004(2) Cr.L.R. (Raj.) 922 and submits that the FIR impugned deserves to be quashed in exercise of

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inherent powers under Section 482 Cr.P.C. He has also placed reliance on certain documents submitted along with the misc. petition and vehemently argued that the FIR in its entirety does not disclose any offence and thus, the same deserves to be quashed.

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Learned PP on the other hand submits that in this case, after thorough investigation, it has been found that the petitioner having been appointed as officer-in-charge of the District Soldier Welfare Board, was responsible for the proper management of the funds of the Board and during the period in which the petitioner was posted as officer-incharge of the Board, a huge defalcation was committed and after audit and enquiries conducted in this regard, the petitioner has been found responsible for defalcation and that a sanction to prosecute the petitioner has already been granted by the competent authority on 25.2.2010. Thus, ex-facie it cannot be said that the FIR impugned does not disclose the cognizable offences. Thus, it is argued that this Court should refrain from interfering in the impugned FIR in the exercise of its inherent powers under Section 482 Cr.P.C.

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I have given my thoughtful consideration to the arguments advanced at bar and perused the impugned FIR as well as the decisions cited by counsel for the petitioner.

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In the case of Joseph Salvaraj (supra), the Hon'ble Apex Court quashed the charge-sheet filed subsequent to

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the registration of the FIR holding that the matter related essentially to a civil dispute between the parties. In this case, as has been observed above, the allegation against the petitioner is that he being the person incharge of the Board defalcated certain amount which he was holding trust. Thus, essentially the present case cannot be said to be involving a dispute of a civil nature.

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Further, in the case of Om Prakash (supra), this Court while dealing with the provisions of Rajasthan Service Rules held that four years after retirement of the Government servant, no prosecution could be launched against such government servant in view of RSR. Apparently, the provisions of RSR are not applicable to the present case because the petitioner was not in the service of Government.

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From a perusal of the impugned FIR and the material collected by the police during the course of investigation, at this stage, this Court is of the firm opinion that the FIR impugned cannot be quashed simply because the petitioner has challenged the recovery of the amount by way of a writ petition. The documents sought to be relied upon by the petitioner have to be proved by the petitioner by way of leading defence evidence before the trial court so as to lead to the conclusion that the defence of the petitioner is such that it obliterates the prosecution case.

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In the opinion of this Court, the documents relied upon

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by the petitioner cannot be utilised at this stage for quashing the investigation. As is observed above, there are prima-facie allegations supported by record which reveal the existence of a charge of defalcation and forgery against the petitioner. Thus, no interference is called for in the impugned FIR.

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Resultantly, the present misc. petition, having no force, is hereby dismissed.

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Stay petition also stands dismissed.

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(SANDEEP MEHTA), J.

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S.Phophaliya

Lt.Col.Retd.Sher Singh v. State and Ors.

Case brief

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What did the court decide?

Lt.Col.Retd.Sher Singh v. State and Ors.

Case brief

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