Dr. B.S. Bisht & Others vs State Of Uttarakhand & Another

Lok Pal Singh, J

1). By means of present application under Section 482 Cr.P.C., the applicants seek to quash the criminal complaint dated 11.09.2017, as well as summoning order dated 20.11.2017, passed in Criminal Complaint Case no. 2355 of 2017, Gopal Dutt Paladiya Vs Dr. B.S. Bisht and others, under Sections 120B, 420, 468, 471, 506 IPC, passed by II Addl. Judicial Magistrate, Nainital; and judgment and order dated 05.04.2018, passed by II Addl. Sessions Judge, Nainital in Criminal Revision no.130 of 2017, Dr. B.S. Bisht & others Vs State and another in respect of selfsame offences.

2) Facts leading to filing of present case is that the Birla Institute of Applied Sciences, Bhimtal (hereinafter referred to as 'BIAS') is a registered society duly registered under the Societies Registration Act. The said Institute is engaged in imparting higher technical education to the youth and is ranked high in academic circles and industry. Applicant no. 1 is the present Director of BIAS; applicant no. 2 is the Deputy Registrar of BIAS and applicant no. 3 is the former Director of BIAS (since 2005 to June 2013). Being Directors, applicants were also the member Secretary of the Society.

3) A complaint was lodged by the complainant / respondent no. 2 against the applicants, stating therein, that he worked with BISR, Bhimtal (a holding trust of BIAS) till May 2012 on the post of Administrative Officer. In the year 2010-12, the accused persons, except applicant no. 1, committed forgery by misrepresentation in the documents of the Society and also misbehaved with the complainant and complainant was ousted from the Society, though he was not posted as subordinate employee of the accused persons. Complainant made a complaint against the accused persons. Accused persons again threatened him to withdraw the complaint. It is alleged that BIAS, Bhimtal is a Society registered under the Societies Registration Act and at present running B.Tech. and MCA courses. It is alleged that recently some officers of the BIAS, including the applicants, by cheating, fraud and misrepresentation have obtained the renewal certificate of the Society from the office of the Deputy Registrar, Firm, Societies and Chits. It is alleged that the accused persons procured the forged signatures of Dr. H.C. Pandey and one Shri K.P. Singhi, who passed away in 1999. Fake meetings have been shown by the false signatures of Dr. H.C. Pandey. It is stated that the renewal certificate has been obtained on 02.08.2017 by playing fraud and misrepresentation. It is also alleged that in said act applicant no. 1 (Director of BIAS); D.S. Mehra (Private Secretary); applicant no. 2 (Deputy Registrar) and applicant no. 3 (former Director of BIAS) were involved in procuring the renewal certificate. It is stated that accused persons also procured the forged signatures of Sri C.K. Birla and also got fabricated a forged affidavit of Dr. H.C. Pandey. A prayer has been made in the complaint that complaint be lodged against accused persons and they may be summoned for the offences punishable under Sections 120B, 420, 468, 471 and 506 IPC.

4) Complainant got examined himself under Section 200 of Cr.P.C. All the averments made in the complaint have not been deposed in his statement.Dr. H.C. Pande, whose alleged signatures have been procured, was examined under Section 202 of Cr.P.C.

5) Learned Magistrate having gone through the complaint and statements of complainant as well as the witness, summoned the applicants to face the trial for the offences punishable under Sections 120B, 420, 468, 471 and 506 IPC. Feeling aggrieved, the applicants preferred a criminal revision no. 130 of 2017, Dr. B.S. Bisht and others Vs State and another. Learned Addl. Sessions Judge II, Nainital vide judgment and order dated 05.04.2018 dismissed the revision and affirmed the summoning order dated 20.11.2017. Hence, present criminal misc. application under Section 482 of Cr.P.C.

6) Heard learned counsel for the parties and perused the material brought on record.

7) Learned Senior Counsel appearing on behalf of the applicants vehemently argued that the complainant has not averred anywhere in the complaint that any forged signature of Dr. Pandey has been obtained or used anywhere. Thus, the complainant has no locus standi to file the criminal complaint. It is further argued that no element of inducement is made out in the complaint. None of the ingredients of Sections 120B, 420, 468, 471 and 506 of IPC is made out against the applicants. It is also argued that the complainant himself has averred in paragraph no. 3 of the complaint that recently some officers / accused persons of the Institute have committed cheating, fraud and misrepresentation in order to obtain the renewal certificate of the BIAS, Bhimtal.

8) Learned Senior Counsel drew attention of this Court towards the provisions contained in Section 12 of the Societies Registration Act, 1860. The same is excerpted below:

"12. Societies enabled to alter, extend or abridge their purposes.-Whenever it shall appear to the governing body of any society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or a bridge such purpose to or for other purposes within the meaning of this Act, or to amalgamate such society either wholly or partially with any other society, such governing body may submit the proposition to the members of the society in a written or printed report, and may convene a special meeting for the consideration thereof according to the regulations of the society;

but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting convened by the governing body for the consideration thereof, nor unless such proposition shall have been agreed to by the votes of three-fifths of the members delivered in person or by proxy, and confirmed by the votes of three-fifths of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting."

9) In support of his contention, learned Senior Counsel appearing for the applicants placed reliance on the following judgments:

i) (1963) 2 Cri LJ 543, Lalloo Prasad Vs Kedarnath Shukla & another

ii) (2016) 1 SCC (Cri) 124, Mehmood Ul Rehman v. Khazir Mohammad Tunda

10) Their Lordships of Hon'ble Apex Court in Lalloo Prasad's Vs Kedarnath Shukla & another (1963) 2 Cri LJ 543 case have held as under:

"7. A crime, in the strict legal sense of the word, is an act forbidden by law under pain of punishment. A crime in any civilized state of society is an event recognized as one which is to be prevented and at all events punished upon public grounds. The victim of a crime may be a private individual, but in the legal concept a crime is not to be regarded as a private wrong. Proceedings in respect of a crime consists of two steps - accusation and trial. Accusation may be brought before the court by submission of a charge-sheet by police, which is an agency appointed by the State to bring criminals to book, or an accusation may be brought in the form of a complaint by an individual. Complaint, as defined in the Code of Criminal Procedure, means allegations made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person whether known or unknown, has committed an offence, but it does not include the report of a police officer. A person who files a complaint is called the complainant. Section 190 of the Code of Criminal Procedure lays down generally how a Magistrate is to take cognizance of offences. One of the manners for taking cognizance of offences enumerated therein is 'upon receiving a complaint of facts which constitute an offence.' There is nothing in Section 190 to limit the power of filing a complaint only to the person aggrieved by the offence. It is, therefore, clear that generally any person, whether aggrieved or not by a particular offence, can give information thereof to a Magistrate with a view that action may be taken against the offender."

11) Hon'ble Apex Court in Mehmood Ul Rehman's v. Khazir Mohammad Tunda (2016) 1 SCC (Cri) 124 case has held as under:

"20. The extensive reference to the case law would clearly show that cognizance of an offence on complaint is taken for the purpose of issuing process to the accused. Since it is a process of taking judicial notice of certain facts which constitute an offence, there has to be application of mind as to whether the allegations in the complaint, when considered along with the statements recorded or the inquiry conducted thereon, would constitute violation of law so as to call a person to appear before the criminal court. It is not a mechanical process or matter of course. As held by this Court in Pepsi Foods Ltd. [Pepsi Foods Ltd. v. Judicial Magistrate, 1997(4) R.C.R.(Criminal) 761 : (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] to set in motion the process of criminal law against a person is a serious matter.

Under Section 190(1)(b) CrPC, the Magistrate has the advantage of a police report and under Section 190(1)(c) CrPC, he has the information or knowledge of commission of an offence. But under Section 190(1)(a) CrPC, he has only a complaint before him. The Code hence specified that "a complaint of facts which disclose the commission of any offence, the Magistrate shall not take cognizance under Section 190(1)(a) CrPC. The complaint is simply to be rejected.

The steps taken by the Magistrate under Section 190(1)(a) Cr.P.C. followed by Section 204 Cr.P.C. should reflect that the Magistrate has applied his mind to the facts and the statements and he is satisfied that there is ground for proceeding further in the matter by asking the person against whom the violation of law is alleged, to appear before the court. The satisfaction on the ground for proceeding would mean that the facts alleged in the complaint would constitute an offence, and when considered along with the statements recorded, would, prima facie, make the accused answerable before the court. No doubt, no formal order or a speaking order is required to be passed at that stage. The Code of Criminal Procedure requires speaking order to be passed under Section 203 Cr.P.C. when the complaint is dismissed and that too the reasons need to be stated only briefly. In other words, the Magistrate is not to act as a post office in taking cognizance of each and every complaint filed before him and issue process as a matter of course. There must be sufficient indication in the order passed by the Magistrate that he is satisfied that the allegations in the complaint constitute an offence and when considered along with the statements recorded and the result of inquiry or report of investigation under Section 202 Cr.P.C., if any, the accused is answerable before the criminal court, there is ground for proceeding against the accused under Section 204 Cr.P.C., by issuing process for appearance. The application of mind is best demonstrated by disclosure of mind on the satisfaction. If there is no such indication in a case where the Magistrate proceeds under Sections 190/204 CrPC, the High Court under Section 482 Cr.P.C. is bound to invoke its inherent power in order to prevent abuse of the power of the criminal court. To be called to appear before the criminal court as an accused is serious matter affecting one's dignity, self-respect and image in society. Hence, the process of criminal court shall not be made a weapon of harassment."

12) Learned Senior Counsel would argue that by concealing the fact of his retirement in the courts below, the complainant has tried to mislead the courts that he was forcefully retired from BIAS. In the counter affidavit it has been mentioned that complainant was the employee of BISR, Bhimtal (a holding trust of BIAS). It is urged that, in fact, the complainant willingly joined BIAS in the year 2000 and it can very well be proved from the documents that he was an employee of BIAS and his salary was also drawn from BIAS. It is contended that prior to filing present complaint, the complainant has challenged the notice of the Deputy Registrar by filing a Writ Petition no. 1034 of 2012, which clearly shows that the said writ petition is directly connected with the present complaint because applicant nos. 2 and 3 have been accused in the said complaint. This act of the complainant shows his ulterior motive and mala fide intention. It is also contended that criminal complaint has been filed by the complainant with mala fide intention as his grievances are with applicant nos. 2 and 3 (Deputy Registrar and Former Director of BIAS, respectively).

13) Per contra, learned counsel for the complainant / respondent no. 2 would submit that Dr. H.C. Pandey is an old aged person, thus he was unable to file the complaint. He submits that in so far locus standi of the complainant is concerned, a complaint can be filed by any person and the same cannot be dismissed on the ground of locus standi. It is argued that to bring the criminal law into motion locus standi has no relevance. In support of his contention, learned counsel for the complainant placed reliance on the following judgment:

i) AIR 2017 SUPREME COURT 5006, Ratanlal Vs Prahlad Jat and others

ii) AIR 1984 SUPREME COURT 718, A.R. Antulay Vs Ramdas Sriniwas Nayak & another

14) In Ratanlal's (AIR 2017 SUPREME COURT 5006, Ratanlal Vs Prahlad Jat and others) case, Hon'ble Apex Court has discussed the term 'locus standi'. Paragraph 8 of the judgment is extracted hereunder:

"8. In Black's Law Dictionary, the meaning assigned to the term 'locus standi' is 'the right to bring an action or to be heard in a given forum'. One of the meanings assigned to the term 'locus standi' in Law Lexicon of Sri P. Ramanatha Aiyar, is 'a right of appearance in a Court of justice'. The traditional view of locus standi has been that the person who is aggrieved or affected has the standing before the court, that is to say, he only has a right to move the court for seeking justice. The orthodox rule of interpretation regarding the locus standi of a person to reach the Court has undergone a sea change with the development of constitutional law in India and the Constitutional Courts have been adopting a liberal approach in dealing with the cases or dislodging the claim of a litigant merely on hyper-technical grounds...."

15) In A.R. Antulay's Vs Ramdas Sriniwas Nayak & another AIR 1984 SUPREME COURT 718 case, a Constitutional Bench of the Hon'ble Apex Court has considered this aspect as under:

"In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act of omission made punishable by any law for the time being in force is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences in undertaken in the name of State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statue indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a strait jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception".

16) The judgments relied upon by learned counsel for the complainant have no application in the present case as the ratio of a judgment has to be applied keeping in mind the peculiar facts and circumstances of each case. Where it is found that the offences complained of against the accused persons are such that they are affecting the society at large, criminal law can be set into motion by anyone and in such cases it does not require any locus standi, but, in a case, where a complainant approaches the court to lodge a criminal proceeding, he must have to establish the locus standi to maintain the criminal complaint.

17) A perusal of the complaint and statements recorded under Section 200 and 202 of Cr.P.C. would depict that the complainant has not levelled any allegations against the applicants suggesting that they have cheated and committed fraud with the complainant in any manner. What has been alleged is that the applicants procured the forged signatures of Dr. H.C. Pandey, who have been examined as witness. A further perusal of the complaint would depict that Mr. H.C Pandey could have been a person aggrieved, but he did not choose to institute the complaint. In so far as launching of criminal proceedings in respect of a cognizable offence, which is mainly an offence against the society, is concerned, the same can be launched by any person by lodging FIR. The same principle cannot be attached in filing a criminal complaint. It is settled position in law that to maintain a criminal complaint, the complainant has to prove his / her locus. Locus standi has an important role to play. A person cannot be permitted to lodge a criminal complaint, who has no locus to institute the same, just to bargain and to compel the opposite side to act on the dictum of the complainant, otherwise it will be a never ending exercise, which would ultimately lead to unnecessary harassment of a person at the hands of the complainant for oblique motive or for extraneous consideration. In the present case, there certainly appears an element of private vendetta or vengeance on the part of the complainant as against the applicants, as is abundantly clear from a bare reading of criminal complaint as well as statements recorded under Section 200 and 202 of Cr.P.C.

18) Hon'ble Apex Court in Amit Kapoor's case (Amit Kapoor vs Ramesh Chander (2013) 1 Supreme Court Cases (Cri) 986) case, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.

19) It is an admitted case of the complainant that against action taken by the department against him, he preferred civil writ petition no. 1034 of 2012 for redressal of his grievances attached to his services. When the complainant failed to get desired result, he filed present complaint for oblique motive and to harass the applicants. If such a criminal proceeding is permitted to continue unabated it will be an abuse of process of the court [Ref: Ahmad Ali Quraishi & another Vs State of Uttar Pradesh & another, AIR 2020 SUPREME COURT 788].

20) To sum up it can safely be held that the allegations made in the complaint, even if taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the applicants. The uncontroverted allegations made against the applicants in the complaint and the evidence collected in support of the same does not disclose the commission of any offence. It is a perfect case where the criminal proceedings are maliciously instituted with an ulterior motive for wreaking vengeance on the applicants and with a view to implicate them due to private and personal grudge.

21) In view of the foregoing discussions, in the opinion of this Court permitting the criminal proceedings against the applicants shall amount to permitting a criminal proceeding which has been maliciously instituted with ulterior motives and permitting such criminal proceeding continue is nothing but the abuse of the process of the court which needs to be interfered by this Court.

22) Application under Section 482 of Cr.P.C. is, therefore, allowed. As a consequence thereof, summoning order dated 20.11.2017, as well as entire proceedings of criminal complaint case no. 2355 of 2017, Gopal Dutt Paladiya Vs Dr. B.S. Bisht & others, under Sections 120B, 420, 468, 471, 506 IPC, pending in the court of II Addl. Judicial Magistrate, Nainital, as also the judgment; as also the judgment and order dated 05.04.2018, passed by II Addl. Sessions Judge, Nainital, in Criminal Revision no. 130 of 2017, Dr. B.S. Bisht & others Vs State and another, in respect of selfsame offences, are hereby quashed.