Krishna Kumar Agarwal vs State of U.P. and Another

Vinod Prasad, J.—The applicant, Krishna Kumar Agarwal, is a socio criminus of offences under Sections 197, 198, 420, 423, 464, 467, 471 and 120B, I.P.C. in ComplaintCase No. 261 of 1996, Brij Kishore v. Mangali Singh and others. He has approached this Court in its inherent jurisdiction u/s 482, Cr. P.C. with the prayer that his summoning order dated 7.12.2004 passed by Judicial Magistrate, Hasanpur in the aforesaid criminal complaint, for the aforesaid offences, be set aside and quashed. He has further prayed that the order passed by Additional District Judge (Fast Tract) court No. 4 Jyotiba Phule Nagar in Criminal Revision No. 7 of 2005, Krishna Kumar Agarwal v. State of U.P., be also quashed. By the aforesaid revision lower revisional court had dismissed the revision filed by the present applicant challenging his summoning order dated 7.12.2004 passed by Judicial Magistrate, as has been mentioned above.

Before coming to the arguments advanced by the learned Counsel for the applicant, a resume of facts in thumbnail description are sketched below:

Brij Kishore Sharma, a teacher in Sukhdevi Inter College, Hasanpur district Moradabad laid a complaint before Judicial Magistrate, Hasanpur as Complaint Case No. 261 of 1996, with the allegations that he is a teacher in the aforesaid College of which Mangali Singh, accused No. 1, is the Principal. Mangali Singh, aforesaid, by exercising his authority issues false certificates. Shaurabh Kumar Agarwal, accused No. 3, son of the present applicant, who is accused No. 4, was a student of the aforesaid School, who had passed his High School examination in the year 1993 and had taken admission in Class 11B in the Session 1993-94, with Roll Number 14663. However, Shaurabh Kumar Agarwal failed in class 11th in the aforesaid session and, therefore, he remained in the said class for the next session 1994-95 with the allotted roll number as 1 and in that year he cleared the said class. Thereafter in July, 1995 Shaurabh Kumar Agarwal took admission in class 12th-B with Roll Number 31 but because of his absence in the said class Ashwapati Saxena, C.W. 3, scored out his name from the Student Register. On 4.8.1996 complainant, Brij Kishore Sharma came to know from aforesaid Saurabh Kumar Agarwal that at the relevant time he was studying in B. Sc. 1st year in Meerut College, Meerut, which fact dismayed the complainant, as Shaurabh Kumar Agarwal had never clear his intermediate examination. On inquiry being conducted by the complainant it transpired that Shaurabh Kumar Agarwal, who is the son of the applicant, in connivance with the applicant, fabricated documents of K.V. Inter College, Machhra district Meerut. Further inquiry by the complainant revealed that Mangali Singh, accused No. 1, had issued a character certificate to accused No. 3, Shaurabh Kumar Agrawal, in connivance with Vivek Kumar, Clerk, accused No. 2 in the complaint, on the basis of which accused No. 3, in connivance with his father, Krishna Kumar Agrawal, accused No. 4, the present applicant, got forged mark sheet prepared on the basis of which he had taken admission in B. Sc. as a regular student, with Roll Number 558004, but in B. Sc. Part I also he failed. On these facts, since the complainant was of the opinion that the accused has committed fraud and had falsified the documents and forged the mark sheet that he filed the complaint before the Judicial Magistrate, Hasanpur, as his endeavrs to lodge a first information report in respect of the aforesaid offences were in vein.

The complaint filed by the complainant being Complaint Case No. 261 of 1996 was taken up for inquiry by the Magistrate, who recorded the statement of the complainant u/s 200, Cr. P.C. on 26.8.1996, which is Annexure-2 to this application, wherein the complainant reiterated his allegations. In support of his case the complainant prayed to the Court to examine his witnesses and resultantly 7 court witnesses were examined as C. Ws. u/s 202, Cr. P.C. They were Brijesh Kumar Agarwal, Head Clerk of Sukhdevi Inter College, Hasanpur, C.W. 1. Dharam Prakash, Physics Lecturer C.W. 2, Kailash Kishan Gupta, Lecturer, Mathematics, C.W. 3, Ashwapati Saxena, Lecturer English, C.W. 4 all of Shukh Devi Inter College, Hasanpur, A.K. Srivastava of Science Faculty, Meerut College, Meerut, C.W. 5, Sanjeev Kumar Tyagi, Clerk K.V. Inter . College, Machhra C.W. 6 and Vijay Pal Singh, Senior Head Clerk as C.W. 7.

The learned Magistrate by a detailed order and scanning all the material on record came to the conclusion that in support of the complaint all photo copies of the documents were filed and no original document was produced. From perusal of paper No. 14 Kha, filed by complainant himself, it transpired that Shaurabh Kumar Agarwal had cleared Intermediate examination as a private candidate from K.V. Inter College, Machhara in second division. The learned Magistrate was of the opinion that for believing the case of the complainant, requirement of original documents were necessary. He also came to the conclusion that issuing a character certificate by the Principal does not make out any offence and cannot be believed when the original character certificate was not produced. Magistrate was also of the opinion that so far as present applicant, who was accused No. 4, in the aforesaid complaint is concerned, nothing has been stated as to how and in what manner he had committed forgery and cheating. By a detailed discussion the Magistrate opined that the complaint filed by the complainant was wholly false and, therefore, he dismissed the complaint u/s 203, Cr. P.C on 18.9.2000.

Aggrieved by dismissal of his complaint, complainant, Respondent No. 2 Brij Kisore Sharma, preferred Criminal Revision No. 24 of 2001 before the Sessions Judge, Jyotiba Phule Nagar, which was heard and allowed by Additional Sessions Judge, Jyotiba Phule Nagar on 24.2.2004. Revisional court observed that the witnesses examined u/s 202, Cr. P.C. duly proved original documents and since the complainant had applied for summoning of the original documents, by his application No. 69 Gha, which remained undisposed of, the trial court committed a manifest error of law in dismissing the complaint of Respondent No. 3. Lower revisional court was also of the opinion that since complainant had filed application 69 Gha, therefore, direction of the trial Magistrate dated 28.6.1997 directing the complainant to file original documents and the relevant papers was of no consequence. On the aforesaid reasoning lower revisional court set aside the order of dismissal of the complaint passed by the Magistrate and allowed the revision of Respondent No. 2 complainant and remanded the matter back to the Magistrate on 24.2.2004.

After receipt of the record from the lower revisional court the trial Magistrate without making any further inquiry summoned the applicant, alongwith other accused persons for offences under Sections 197, 198, 420, 423, 464, 467, 471 and 120B, I.P.C. vide his summoning order dated 7.12.2004, which is one of the impugned orders in this petition.

Aggrieved by his summoning order, the present applicant, preferred Criminal Revision No. 7 of 2005 before the Sessions Judge, Jyotiba Phule Nagar, which was heard and dismissed by Additional Sessions Judge (Fast Tract) Court No. 4 vide his impugned order dated 12.2.2007. Not satisfied with the dismissal of his revision and feeling aggrieved by the summoning order, applicant has, approached this Court u/s 482, Cr. P.C. through the present application.

I have heard Sri Sunil Kumar, learned Counsel for the applicant at a great length in support of this application and the learned A.G.A. in opposition and have perused both the impugned orders and other material appended alongwith this Criminal Misc. Application, including the complaint and the statements.

Shri Sunil Kumar contended that the whole complaint is mala fide and complainant had no right to file the complaint. There are no specific allegations against the applicants and therefore, the complaint should be quashed. Learned Counsel further contended that none of the witnesses examined in the case had revealed any specific allegation against the applicant, nor they have disclosed how the applicant participated in the incident and in what manner. He further submitted that summoning order had been passed on the basis of conjectures and surmises 8 years after the filing of the complaint. Learned Counsel submitted that the informant, Respondent No. 2, got his Section 200, Cr. P.C. statement recorded on 26.8.1996, 7 years after filing of the complaint, which fact also indicates that the complaint is mala fide and purposive. Learned Counsel has submitted that the lower revisional court while passing the impugned order in the criminal revision of the complainant against the dismissal of his complaint committed a manifest error of law in not hearing the present applicant as he was a necessary party and his rights were jeopardized. Learned Counsel further submitted that if any body would have been aggrieved by admission on the basis of false documents, it was the authorities of Meerut College, Meerut, who had not made any complaint against the applicant and, therefore, the complaint filed by the Respondent-complainant, who had nothing to do with Meerut College, Meerut, was wholly mala fide. He further submitted that none of the offences for which the applicant has been summoned is made out and the learned Magistrate after dismissal of the complaint u/s 203, Cr. P.C. without making any further inquiry, passed the summoning order which is illegal. He further submitted that court at Jyotiba Phule Nagar had no jurisdiction to entertain the complaint as the forged documents were used in Meerut. He further submitted that the most important evidence in the case was that of Principal of Meerut College, Secretary, Board of High School and Intermediate Education, U.P. who were not examined in the trial and none of the original documents were filed before the Court. Concludingly learned Counsel harangued that the whole proceedings are tainted with mala fide and, therefore deserve to be quashed in conjunction with the summoning order dated 7.12.2004 and the lower revisional court''s order dated 12.2.2007.

Learned A.G.A. on the other hand, submitted that whatever has been argued by the learned Counsel for the applicant are all disputed questions of fact, which cannot be adjudicated upon by this Court in exercise of its power u/s 482, Cr. P.C. and, therefore, the application lacks merit and deserves to be dismissed.

I have cogitated over all the contentions raised by the rival sides. In this case the complainant is a teacher of Sukhdevi Inter College, Hasanpur in which Shaurabh Kumar Agarwal, son of the applicant was a student. The order dated 8.9.2000 passed by the Magistrate clearly indicates that the aforesaid Shaurabh Kumar Agarwal passed Intermediate examination as a private candidate from K.V. Inter College, Machhra with which the complainant-Respondent No. 2, had no connection. This fact was established by paper No. 14 Kha filed by the complainant himself. Further there was no complaint from K.V. Inter College Mayara district Meerut (hereinafter to be referred to as ''Meerut College") in respect of Shaurabh Kumar Agarwal, the present applicant, for taking admission on false mark sheets and documents. Thus it does not stand to reason as to why the complainant-Respondent No. 2 lodged a complaint against the son of the applicant and why he made the applicant a party. In the whole statement recorded under Sections 200 and 202, Cr. P.C. but for a bald ipse dixit, nothing has been said against the applicant. The complainant had not been able to bring on record any thing worth reliable in respect of the applicant that he was a privy to the crime or that he got any document forged or committed any offence of cheating. A perusal of the complaint indicates that the applicant had been arrayed as an accused only because he is the father of Shaurabh Kumar Agarwal, who got admission in B. Sc. in Meerut College after clearing his Intermediate examination, as a private candidate. But for this fact that the applicant was the father of Shaurabh Kumar Agarwal, nothing tangible is alleged against the applicant in the complaint or in all the statements, prima facie disclosing any conspiracy for committing any offence.

The applicant has been summoned for offences under Sections 197, 198, 420, 433, 464, 467, 471 and 120B, I.P.C. So far as Sections 197 and 198 are concerned, they relate to issuing or signing a false certificate. On the own showing of the complainant, no such allegation was levelled against the applicant and he could not have been summoned for the said offences. So far as offences under Sections 420 and 423 are concerned, there is total lack of evidence on record as to who was the person who was deceived and was induced. There is also absence of evidence as to what was the property involved in cheating and what was the cheating done by the applicant. There is no evidence as to who was the person who was restrained from doing anything or was authorized to do any thing by deceiving him by the applicant. Thus there is nothing on record to make out the ingredients of cheating mentioned u/s 415, I.P.C. which is sine qua non for making out offences under Sections 420 and 423, I.P.C. Leveling an allegation that cheating has been committed is of no use unless the ingredients for the said offences are present in the allegations levelled. In the absence of ingredients for making out offence of cheating the applicant could not have been summoned under Sections 420 and 423, I.P.C. as well.

Coming to offences under Sections 464, 467 and 471, I.P.C. there is nothing in the complaint or evidence to indicate which document was forged, by whom it was forged and who had utilized the said forged document for his benefit and to the detriment of the other person. Since the son of applicant had cleared intermediate examination as a private candidate from K.V. Inter College Machhra it cannot be said that his mark sheet of Intermediate examination was a forged document. On the earlier occasion the learned Magistrate had recorded a correct finding that in the absence of the examination officers of Board of High School and Intermediate Education it cannot be said that the offences of cheating and forgery has been committed. After going through the record it does not transpire at all as to on what basis and on what material it is alleged that offences of forgery and falsification of documents has been committed. Thus the applicant could not have been summoned for the aforesaid offences also.

There is yet another disturbing aspect of the case. The order of dismissal of complaint dated 8.9.2000 clearly indicates that the applicant had cleared Intermediate examination as a private candidate from K.V. Inter College, Machhra vide paper No. 14Kha. If this fact was correct, what was the occasion for the complainant to lay a complaint against the candidate (accused No. 3 Shaurabh Kumar Agarwal) after his passing out Intermediate examination as a private candidate and taking admission in Meerut College, Meerut. It seems that the complainant is trying to take revenge for his ulterior motives from accused No. 3, Shaurabh Kumar Agarwal, who is the son of the applicant. Further while summoning the applicant to stand the trial why the Magistrate did not take into consideration the said document, paper No. 14Kha, is something, which is understandable. Merely because lower revisional court remanded the matter back to the Magistrate, it was not expected of him that he would act de hors the law and ignore the provisions thereof. Even after remand the Magistrate should have looked into the evidence to be satisfied whether any offence is made out or not and only then he should have passed the summoning order. By passing the impugned summoning order the Magistrate has only reiterated the complainant''s allegations without being satisfied as to whether there was any reason for summoning the accused or not. The power of the Court should not be allowed to be utilized by an unscrupulous litigant. Levelling of allegations in a complaint is one thing which lies with the complainant, but so far as summoning is concerned, it is the duty of the Court to look into the allegations levelled in the complaint and then after being satisfied that the offences disclosed are prima facie made out that the Magistrate should summon the accused. In this case none of the ingredients for making out the offences, for which the applicant has been summoned, were present and hence his summoning order is bad in law.

As discussed above, in my view, the summoning order of the applicant dated 7.12.2004 passed by Judicial Magistrate, Hasanpur in Complaint Case No. 261 of 1996, Brij Kishore Sharma v. Mangali Singh and others, as has been affirmed by the lower revisional court on 12.2.2007 in Criminal Revision No. 7 of 2005 is wholly illegal and, therefore, is quashed. This Criminal Miscellaneous application is resultantly allowed.