H.D. Mundra and Another vs State of U.P.

S.I. Jafri, J.—This application has been filed by H.D. Mundra the then Chairman of the Board of Directors, British India Corporation Limited, Kanpur and B.D. Dage for quashing the chargesheet and the proceedings in S.T. Nos. 110 of 1959 and 110A of 1959 pending against them in the Court of 3rd Additional Sessions Judge, Kanpur in Crime No. 300 under Sections 419/420/467/468/471/114/120B IPC. The chargesheet was submitted in the Court after an investigation was conducted by the C.I.D. on the complaint dated 30-1-1958 presented before the District Magistrate, Kanpur by Sri R.L. Powell, agent to the receiver, Begg Sutherland and Co. Pvt. Ltd. The chargesheet was submitted by Sri Indrapal Singh Deputy S.P.C.I.D. on 17-8-1958.

The prosecution case is that H.D. Mundra, Applicant, being as Chairman of the Board of Directors, British India Corporation entered into a criminal conspiracy alongwith B.D. Daga the applicant No. 2 and one M.C. Mitt a (since deceased) with a view to cheat Kanpur Textiles and Elgin Mills Ltd. Corporation managed by B.I C. (British India Corporation) in order to obtain money from them i.e. one lac was taken on 20-11-1957 and 2 lacs on 25-11-1957. It was further alleged by the prosecution that H.D. Mundra with a view to obtain the aforesaid amount represented to Mr. H. Hill, the Cotton Director of B.I.C. that the money taken was meant for Associated Commercial Corporation of Calcutta who were in need of money and who would be setting if off against the Cotton to be supplied by them from their, Branch Office at Fazilka. It was further alleged by the prosecution that the aforesaid money was not taken from for the aforesaid purpose by the applicants as the Fazilka Unit of M/s. Associated Commercial Corporation kept on charging cash price for the cotton supplied by them.

It was further alleged that the applicants have obtained the aforesaid amount by playing deception. B.D. Dage applicant having cash the bearer cheques. In favour of M/s. Associated Commercial Corporation and he signed on the back of the cheque as R.K. Daga, Partner M/s. Associated Commercial Corporation in token of receipt of payment of the amount. The aforesaid cheque was said to be given to the applicant H.D. Mundra by Mr. H. Hill (now dead) Cotton Director of B.I.C. and in-charge of Cotton affairs of all units of B.I.C.

The applicants were committed to the Court of Sessions by learned Magistrate on 18-7-1959 to stand their trial. The accused pleaded not guilty to the charges and took the stand that the cheques in dispute were never handed over to H.D. Mundra applicant by Mr. H. Hill.

The trial of the accused-applicants commenced in the Court of Sri R.K. Circar, 3rd Additional Sessions Judge, Kanpur, in blginning of the year 1965. Thirty witnesses were examined at Kanpur, Azamgarh and Gorakhpur, during the posting of Sri R.K. Circar in those districts. The statement (only examination in chief) of Sri H. Hill was recorded in England on commission on 12-12-1963 behind the back of the applicants as there was no notice to the applicants of the date of examination of Mr. H. Hill despite the order of the Session Judge that the date of examination of Mr. Hill in England be communicated to the applicants in order to enable them to be present for cross-examination either in person or through Counsel. It appears that on account of the death of Mr. H. Hill in England the applicants could not cross examined him.

Sri R.K. Circar Sessions with whom the case remained tied up throughout, retired from service on 7-8-1967 whereupon the High Court order for the denovo trial and the Sessions Judge, Gorakhpur consequently sent back the file of the case to the Court of Session Judge, Kanpur on 5-1-1968 for denovo trial.

The case came up for further hearing before Sri J.P. Sharma, 3rd Additional Sessions Judge, Kanpur who amended the charges on 11-1-1980. The applicants filed the present application in this Court u/s 482 Code of Criminal Procedure for quashing the aforesaid proceeding pending in the Court of 3rd Additional Sessions Judge, Kanpur, whereupon the High Court stayed further proceedings in both the above mentioned trials on 8-6-198J and since then the trial is hanging for disposal in the Court of 3rd Additional Sessions Judge, Kanpur.

Sri P.P. Srivastava, learned Counsel for the applicants contended that the occurrence in this case is said to have taken place about 33 years before and since then the applicants remained under mental strain and torture on account of the pendency of the trial. He further submitted that the applicants were not responsible for the undue delay in the trial. It was further submitted by the learned Counsel that even the disputed entire amount was paid to the company. In paragraph 9 and 10 of the affidavit in support of the application it was given that Rs. 1 lac returned back on 13-1-1958 to the B.I.C. and likewise another 1 lac and 15,000/- was paid on 29-1-1962 to the Englin Mill Associated Commercial Corporation in full and final satisfaction, by virtue of a compromise decree annexure V to the present application. A perusal of Annexure V clearly indicates that the parties to the suit i.e. Englin Mills and Corporation v. H.D. Mundra in Suit No. 185/60 had compromised and the decree on the basis of compromise was passed by the Court of 1st Civil Judge, Kanpur on 14-2-1962 in full and final satisfaction of the Plaintiff dues, including the cost of the suit. The learned Counsel urged that under above circumstances no useful purpose will be served by prosecuting the applicants in this case as it appears that there was no reason for the applicants to have committed the offence with which the applicants were charged.

Reliance was placed on Machander Vs. State of Hyderabad, wherein the accused charged with murder was not questioned u/s 342 Code of Criminal Procedure about the confession made by him six days after the arrest by the trial court. It was contended before the Supreme Court by the prosecution to send back the case to the trial Court for further examination of the accused u/s 342 Code of Criminal Procedure. The Supreme Court rejected the contention of the State Counsel on the ground that the trial of the Appellant had continued for over 4 1/2 years. The Supreme Court observed as under:

"We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one sided, it has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape, it is even more necessary to see that persons accused of crime are not indefinitely harrassed." The Supreme Court allowed the appeal and the conviction and sentence of the Appellant was set aside.

The learned Counsel also placed reliance on Union of India (UOI) Vs. Lt.Col. G.K. Apte, , in this case a delay of 11 years in trial was held by the Supreme Court as fatal. The Supreme Court did not interfere under Article 136 for quashing the order of acquittal passed by the High Court on the ground that 11 years have elapsed since the charges were framed and thereafter the High Court had quashed the charges while exercising its inherent jurisdiction u/s 482 Code of Criminal Procedure the Supreme Court observed that "Even the material evidence sought to be produced relating to the year 1960 may not be readily available after a lapse of nearly 11 years. In these circumstances we fee that it will not promote the interest of justice to set aside the orders of the High Court even if it be assumed that the High Court was somewhat wrong in quashing the charges and the proceedings against the Respondents."

The learned Counsel also placed before me State of U.P. Vs. Kapil Deo Shukla, . In this case the Supreme Court did not interfere in proceeding of a trial u/s 408 and 477A IPC which were quashed by the High Court u/s 561 Code of Criminal Procedure on the ground of delay in the trial for more than 20 years."

Reliance was also placed on Hussainara Khatoon and Others Vs. Home Secretary, State of Bihar, Patna, , wherein speedy trial of the accused has been held to be part of fundamental right to life and liberty enshrined under Article 21 of the Constitution of India.

The learned Counsel also placed reliance on. T.B. Stephen v. Parle Bottling Co. (P.) Ltd. 1983 ACC 181 wherein a delay of 15 years was held to be fattal for the continuance of trial.

Lastly, the learned Counsel also placed before me Shahabuddin Qureshi Applicant v. State of U.P. 1988 ACC 303 wherein this Court quashed the proceedings pending against the accused u/s 3(2) of the Prevention of Corruption Act read 5(1)(d) of Prevention of Corruption Act, on the ground of delay in the trial for over 18 years.

It is pointed out that in this petition u/s 482 Code of Criminal Procedure notice was issued to the Respondent State of U.P. by this Court on 8-6-1982 but the prosecution did not care to the counter affidavit till today.

Having considered the facts and circumstances of the case, I feel that the applicants cannot be put on trial for indefinite period. I am fully satisfied that the continuance of the trial i.e. S.T. No. 110 of 1959 connected with S.T. No. 110A of 1959 against the applicants pending in the Court of 3rd Additional Sessions Judge, Kanpur can not be permitted to continue further after a gap of about 33 years. Most of the prosecution witnesses are likely to have been died and under the circumstances the denovo trial i.e. fresh trial of the applicants now after 33 years of the occurrence is not at all justified and proper in the interest of justice.

In the result, the application u/s 482 Code of Criminal Procedure preferred by the applicants is allowed and proceedings in S.T. No. 110/59 connected with the S.T. No. 110A of 1959 pending in the Court of 3rd Additional Sessions Judge, Kanpur are quashed.