Ghulam Rasool Sheikh vs State

This is a petition under section 561A Cr.P.C. for quashing of the proceedings 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, nor have levelled 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 RPC. 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. Mustaffa, GA in detail and have perused the record.

The facts giving rise to this criminal case are that on 551994 a written complaint was lodged in P/S concerned by Branch Manager, Ganpathyar

of J&K Bank alleging therein that cash certificates 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 331998. On 14th December, 1993

one of the depositors, namely, Mst. Raja, allegedly appeared in the Bank through application dated 13121993 requesting for premature payment

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

said cash certificate for premature value of Rs. 53,795/ were paid to her by crediting 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 21121993. On 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 illiterate lady and she

makes only thumb impression. The bank people got alert and made a 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 Yawer were 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 vehmently argued

that no case is made out even from the complaint and the statements of witnessesagainst the petitioner. According to him, in such circumstances,

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

no 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. State (SLJ 1987 Page 276) and SLJ 1989 SC I. (State of UP versus 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 versus K.P.S. Gill and others and

B.R. Bajajappellant 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 parameteria to Section 561A Cr.F.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 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.

(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 improvable 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 of the Code or the 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.

(7) Where a criminal proceeding is manifestly attended with malafides 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 allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer and

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 veryvery 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 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 employees as well. The Bank employees 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 clerks recorded under section 161 Cr.P.C. 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 the 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 561A 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.