Ghulam Rasool Sheikh vs State of J & k

This is a petition under section 561A Cr.P.C. for quashing of the proceeding and order dated 2nd of November, 1996 passed by Judicial

Magistrate, 1st Class, City Judge, Srinagar. By virtue of this order, the learned trial court, after hearing the parties, has held that prima facie case

against the petitioner under sections 418,419 and 420RPC is made out and has framed charge against the petitioner for the commission of

aforementioned offences. Petitioner has sought quashment of the said charge in exercise of the jurisdiction vested in this court under section 561A

Cr.P.C. on the grounds that the complaint does not disclose that the petitioner is involved in the commission of the said offences and the

preliminary enquiry conducted by the Bank authorities have not held the petitioner liable for such offences. Issuing the process and charging the

petitioner under the aforementioned offence is abuse of process of court and further has caused miscarriage of justice to the petitioner. Secondly, it

has been contended that the court has not applied its mind towards the complaint and the statements recorded by the investigating officer under

section 162 Cr.P.C. which, according to the petitioner, show that no prima facie case is made out against him. None of the prosecution witnesses

have deposed against the petitioner, not have leveled any material allegations to connect him with the offences. No wrongful loss or gain has been

alleged in the commission of offences which is a vital ingredient for framing the charge under section 420 RFC. Pending of the criminal proceedings

against the petitioner, who is serving in the J&K Bank, adversely affects the service career of the petitioner.

Heard LC for the petitioner and Mr. G. Mustafa, GA in detail and have perused the record.

The facts giving rise to this criminal case are that on 5.5.1996 a written complaint was lodged in P/S concerned by Branch Manager, Ganpathyar

of J&K Bank alleging therein that Cash Certificate for an amount of Rs. 40,000 had been purchased from the Bank jointly by one Mst. Raja and

her father, Ghulam Muhammad Sheikh which was payable to either of the two and was due for payment on 3.3.1998. On 14th December, 1993

one of the depositor, namely, Mst. Raja allegedly appeared in the Bank through application dated 13.12.1993 requesting for premature payment

of the said cash certificate as was reported to the Bank by the present petitioner who was working in the Bank as Special Assistant. Proceeds of

the said cash certificate for premature values of Rs. 53,795 were paid to her by creditting the same in her Saving Account No. 5018/SB on 15th

December, 1993 and the said lady, allegedly, withdrew the amount of Rs. 20000 from her said Saving Bank account dated 21.12.1993. On the

24th December, 1993 it was brought to the notice of the Bank branch Ganpathyar, Srinagar by the second depositor of the cash certificate in

question, namely Ghulam Muhammad Sheikh, father of Mst. Raja, that the said cash certificate was actually handed over to the Bank at its branch

office Nowhatta for collection/transfer of their account from Ganpathyar branch. There was no question of claiming premature payment. He was

told by the Bank authorities that Mst. Raja had signed an application in English which was confronted by her father that she is an illetrate lady and

she makes only thumb impression. The bank people got alert and made preliminary probe and it was brought to light that this whole event was

done at the behest of the petitioner who was Special Assistant. Rs. 20,000 were recovered by the Bank Manager from some other person. Police

concerned registered the case and made a thorough investigation. Statements of both the depositors namely, Ghulam Muhammad Sheikh and his

daughter, Mst. Raja were recorded by the Police. Statements of other witnesses, Abdul Rehman, Din Muhammad Malik and the Bank clerks,

who had processed the case of premature payment and withdrawal of Rs. 20,000 namely, Zahoor Ahmad Sheikh, Riyaz Ahmad, Abdul Qayoom,

Fayaz Ahmad Wani and Ghulam Nabi Yawerwere recorded by the Police. I have gone through the detailed order passed by the trial court

regarding the satisfaction about the case having been made out under aforementioned offences. LC for the petitioner has vehemently argued that no

case is made out even from the complaint and the statements of witnesses against the petitioner. According to him, in such circumstances, when

there is an abuse of process of law, this court has to interfere by exercising the inherent powers under section 561A Cr.P.C. He has argued that

jno wrongful gain or loss has been alleged by the prosecution, so it is incumbent on the court to quash the proceedings, including the charge

framed.

LC for the petitioner has cited Smt. Ved Khullar Vs States (SLJ1987 page 276) and SLJ 1989 SC I.(State of UP Vs R.K. Shrivastava). I have

gone through both these authorities. The first case is entirely distinguishable on facts from the present case. I have also considered the second

authority quoted, but there is a latest judicial pronouncement by the Apex Court in Roop Devi Bajaj and another Vs K.P.S. Gill and others and

B.R. Bajaj appellant versus State of Punjab and others, reported in AIR 1996 SC page 309. The Apex Court has dealt with the powers to be

exercised under inherent jurisdiction under section 482 of Cr.P.C. which is parametria to Section 561A Cr.P.C. of the State in detail. The Apex

Court has dealt with in detail as to how and in which circumstances the powers under this provision of law should be exercised by the High Courts

under inherent jurisdiction and have laid certain guidelines in this behalf which read as under:

(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.

(2) 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 section 156 (1 ) of the code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegation made in the FIR or complaint and the evidence collected is support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is

permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(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.

(6) Where, there is an express legal bar engrafted in any of the provisions Constitution of India 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.

(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.

Not only this, the Apex Court has gone to the extent of saying;

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 allegation 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 own whim or caprice."" (Emphasis supplied)

From the above guidelines and the dictum held by the Apex Court, it holds firstly that this court has to exercise the inherent power under section

561A Cr.P.C. for quashing the criminal proceedings very sparingly and that too in rarest of rare cases. This Court is not justified in embarking

upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It has been held that

extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its own whims or caprice. Applying the

above guidelines in the present case, I am constrained to say that there is sufficient material against the petitioner prima facie involving him under the

aforementioned offences. I am very much hesitant to comment upon squarely on the evidence because the case is pending disposal before the trial

court and my views may not prejudice the trial in any manner. However, there is no alternative but to say that the Complaint itself has been made

by the Bank Manager to the Police concerned disclosing the suspicion of fraud to have been committed in withdrawing Rs. 20,000 and

prematurely withdrawing the Cash Certificate and depositing the money in the name of Mst. Raja. The Police has entered upon the enquiry and

investigation and have recorded the statements of not only the two depositors, but also of the Bank employee as well. The Bank employee have

stated that it is the petitioner at whose behest the certificate was prematurely withdrawn and the amount of Rs. 20.000 was withdrawn by Mst.

Raja. It is clear and obvious from the statements of such Bank clerk recorded under section 161 Cr. PC. that they have never seen Mst. Raja. It is

the petitioner who submitted the application on her behalf, followed it himself and directed the Bank clerks to do needful and trust him. As I have

already stated, I do not want to comment much on the evidence, but the fact is that there is sufficient material on which the trial court can rely while

framing charge. I wonder as to how this application has been moved for quashing the proceedings. So according to the guidelines laid down by the

Apex Court in the case (supra) the FIR which is the complaint made by the Bank Manager in unequivocal terms has alleged fraud, though

involvement of the petitioner is not there, but the FIR discloses the offences. Secondly, the material collected during investigation prima facie

involves the petitioner and so there is no ground to exercise inherent power by this court under this provision of law.

Under these circumstances in the context of the reasons given above, this court is unable to agree with the learned counsel for petitioner to exercise

the inherent powers under section 561 A Cr.P.C. for quashing the proceedings. I see no flaw in the impugned order of the trial judge.

For these reasons, the application is, therefore, dismissed. Before parting with the file, I may say that the trial Judge should not get prejudiced by

the observations made by this court in this order.

The trial court record received be sent back to the court concerned with direction to proceed ahead with the trial of the case.