Pawan Kumar vs State of Punjab

Ujagar Singh, J.

F.I.R. No. 253 dated July 23, 1981 under Sections 420/467/468/471/120B, I.P.C. was registered in Police Station City Abohar, district Ferzepore, on the basis of a letter written by Sh. Sohan Lal Narang, Manager, Punjab National Bank against Sarvshri Khetu Ram, Pawan Kumar Rajinder Goel and Mainpal for having cheated the Bank in the amount of Rs. 1,47,000/ on the version given therein. The case was investigated. Ultimately, 17 reports under Section 173 of the Code of Criminal Procedure were presented in the trial Court and they were being tried separately. The petitioner being one of the accused has filed this petition for quashing the proceedings in Crl. Case No. 372 of 1984 only on account of delay in disposing of the case. The charge in the case was framed on February 22, 1986, and the case was adjourned to April 5, 1986, for recording the evidence of the witnesses of the prosecution. The petitioner has given in detail the proceedings which have taken place on various dates and chart thereof has been attached.

The counsel for the State has produced parawise reply to the petition on behalf of Shri Harbans Lal, Sub Inspector, S.H.O. Police Station, Abohar City. The arguments in this case were heard and the case was reserved for orders. In the meantime, Shri S.M.L. Arora, Advocate, along with Shri P.K. Dutt, Law Officer of the Bank, appeared before me and requested that the bank be made a party to the criminal miscallenous for bringing on record the complete facts of the case. Shri Arora Advocate, was asked to file a reply to the petition and the same has been filed by way of affidavit of Sohan Lal Narang, Manager of the Punjab National Bank, Abohar, now posted at Nihalpur Branch, tehsil Fazilka, district Ferozepore.

Notice was given to the counsel for the petitioner and he was again heard in detail Counsel for the complainant has also been heard in support of the complaint.

The First Information Report No. 253 and dated 23.7.1981 was registered at Police Station City, Abohar for offences under Sections 420/467/468/471/120B of the Indian Penal Code against Khetu Lal, Proprietor of M/s. Khetu Lal and Sons; Abohar; Pawan Kumar Golcha of M/s. Suraj Mal, Nathu Mal and Co., Abohar; Rajinder Goel of M/s. Okara Goods Transport Co.; and Main Pal, Proprietor of M/s. Ganganagar Cotton, Shri Ganganagar and others at the instance of Shri S.L. Narang, Manager of Punjab National Bank. The version given in the First Information Report is that on 19.5.1981 Khetu Lal by dishonest misrepresentation induced the Manager of the Bank to purchase one bill for a sum of Rs. 1,47,000/ and under the belief that the party was having dealings with the Bank, the Manger in good faith, purchased the bill, accompanying G.R. No. 6936 dated 10.5.1981 issued by M/s. Globe Transport Corporation, Chandi Ki Taksal, Jaipur through its agent at Abohar. The same was signed by the said Rajinder Goel. Insurance cover note No. 161375 issued by National Insurance Company Ltd. and signed by Shri Main Pal agent and a Hundi drawn by M/s. Suraj Mal Nathu Mal and Co., Abohar on M/s. Upper India Finance Co. 103A, Mittal Tower, Nariman Point, Bombay payable to M/s. Khetu Lal and Sons who endorsed the same in favour of Punjab National Bank, Abohar. This amount of Rs. 1,47,000/ being the value of the bills was credited to the account of the party who availed of the same on the day by transfer. The documents were received back unpaid with the endorsement "payment not forthcoming" vide Punjab National Bank House Branch, Bombay''s letter dated 24.6.1981. The bales are said to have been despatched from Kotkapura to Trichur under Railway Receipt No. 704333, M/s. Suraj Mal Nathu Mal and Co., had already got credited facility from the Bank qua the said goods on 13.12.1980 and documents thereof. The goods receipts in question, on the basis of which money was obtained, were signed by the said Rajinder Goel on behalf of M/s. Globe Transport Corporation. These documents were false, because no goods had actually been transported on the basis of the goods receipt of M/s. Globe Transport Corporation. It was subsequently learnt that M/s. Globe Transport Corporation did not have any office at Abohar. The insurance cover note was a false document as no goods had been insured by National Insurance Company Ltd., 21, Darya Ganj, Delhi. The said Pawan Kumar Golcha, partner of M/s. Suraj Mal Nathu Ram and Co., had, prior to 19.5.1981, i.e. on 13.12.1980 obtained Rs. 1,66,797/ from Punjab National Bank, Abohar Branch on the strength of bill dated 12.12.1980 and Railway Receipt No. 704833 by which he sold the said Rly. Receipt, mentioning the same goods to the Bank in the name of M/s. Suraj Mal Nathu Ram and Co., Abohar of which Khetu Lal is one of the partners, knowing that the Bank had already paid for the good covered by the said R.R., Khetu Lal submitted the said false documents, including the insurance cover note, fraudulently obtained this huge amount from the said Bank and the Manager and other members of the staff of the Bank had no means of knowing that the said Khetu Lal and his firm had already obtained the sum of Rs. 1,66,797/ in respect of the same goods. By this method all the aforementioned persons are said to have committed the above said offences.

After registration of the case, investigation was carried on and ultimately, reports were put in under Section 173 of the Code of Criminal Procedure before the trial Court which started separate trial in each case. Charge in this case was framed on 22.2.1986 and the case was adjourned to 5.4.1986 for recording the evidence of the witnesses of the prosecution. The challan in this case bears Criminal Case No. 27.2.1984. According to the petitioner, after framing of the charge, the case was adjourned to 5.4.1986 for prosecution evidence. On 5.4.1986 Shri S.L. Narang was partly examined as PW1 and his further examination was deferred on the request of the learned Assistant Public Prosecutor for want to original record. The case was adjourned to 16.7.1986, for recording further evidence of the prosecution. On the last mentioned date, examination of Shri S.L. Narang (PW1) was completed, but no further evidence of the prosecution could be recorded, as none of its remaining witnesses was present. The case was, therefore, adjourned to 16.9.1986, on which date, as also on some other adjournments no evidence was recorded although on 24.8.1987 PW Trilok Chand was present, but the learned Assistant Public Prosecutor sought a date in the case for examining him on the ground that a supplementary challan was to be presented. On the adjourned dates, no supplementary challan was put in Court and it directed the production of remaining prosecution evidence, holding that the prosecution did not seem to be interested in putting in the supplementary challan. On 27.11.1987 none of the prosecution witnesses was present, but, instead a supplementary challan dated 26.11.1987 was presented, along with a list of three more witnesses. The case was ordered to come up on the next date, i.e. 28.11.1987, for consideration of fresh charges. Ultimately, the same charges were repeated on 28.11.1987 against all the accused, including the petitioner and all of them pleaded not guilty and claimed trial. The witnesses were directed to be summoned for 23.12.1987. On the last mentioned date examinationinchief of Shri S.L. Narang was not recorded as complete copies of documents had not been supplied to the accused. Therefore the case was adjourned to 16.1.1988 on which date Shri S.L. Narang stated that he was unable to make a statement due to sudden illness and on that ground, the case was adjourned to 11.2.1988. On the last mentioned date, Shri S.L. Narang was crossexamined but the remaining evidence was not present for which purpose the case stood posted for 14.3.1988. On 29.2.1988 this Criminal Miscellaneous was filed, praying for quashing the whole proceedings, on the ground that it was absolutely essential that persons accused of offences should be speedily tried as delay in trial would run counter to the interests of the accused and they would be prejudiced. With the petition, a chart of the adjournments has been attached to show the progress made in the case on each date.

On notice being issued, a parawise reply to the criminal miscellaneous was submitted by Sub Inspector Harbans Lal, Station House Officer of City Police Station, Abohar, stating that the case was posted for hearing on 5.11.1986 on which date, an application for summoning Prabh Dial as an additional accused had been filed by the prosecution on 4.3.1985 which was ultimately dismissed as premature. Dates for hearing the application were given mainly on the ground the copies of the statements under Section 161, Code of Criminal Procedure were not available on the file. It has also been stated that the proceedings of the case were stayed by the learned Sessions Judge and subsequently, this case was transferred to the Court of the learned Chief Judicial Magistrate, Ferozepur. On that date, the accused had received the necessary copies before framing of the charges. The accused were allegedly delaying the trial on the ground that copies had not been furnished. It is further disclosed in the reply that the petitioner had not disclosed in the petition that this was not the only case which was being tried, but there were also 16 other challans, arising out of the same complaint, involving embezzlement of about Rs. 88,00,00/ and therefore, collection of evidence necessitated the visiting of the investigating party to different places of India, located at far off distances. Similarly, the witnesses had to be summoned from almost all over India which consumed considerable time, as in the process, witnesses were first to be located and he could be summoned only then. Ultimately, it is stated in the reply that now the case having become old, the process was sent through special process server and the case was now likely to be concluded at an early date. List of cases pending has been supplied to the petitioner, as an accused in almost every case, but the petitioner has chosen to file this criminal miscellaneous, seeking the quashing only of one case for which the reason may be best known to him. I am told that in the remaining cases, evidence has been recorded at a good speed. By now, the prosecution evidence must be over. In this case stay of proceedings had been granted and, therefore, no prosecution evidence could be recorded.

After hearing arguments in this case, but before dictation of the judgment, an application was made for the Bank being made a party. The learned Counsel for the Bank was asked to file reply thereto. In that reply, the averments made in the reply submitted by the Sub Inspector have been repeated. It is further averred that the copies had already been furnished to the accused and in each case, about 25 witnesses were to be examined. Apart from the statements of the witnesses, there were numerous documents and all those required lot of time to again prepare copies in all the 17 cases. It is further averred that the case was transferred from one Court to another a number of times for one reason or the other. The trial Court, therefore, could not proceed with the case for no fault of the prosecution. The case was transferred to the Court of the Chief Judicial Magistrate, Ferozepur by the learned Sessions Judge, Ferozepur on the application of the complainant with the implied view of expediting the trial. On account of this, no proceedings could take place and the case was fixed for evidence only on 13.1.1987. In the meantime, this Court directed the transfer of the case from the Chief Judicial Magistrate to the Court of the Judicial Magistrate I Class, Fazilka who fixed the case for evidence on 24.8.1987. On some of the dates, it is stated that adjournments were sought by the learned Counsel for the accused. A notice was issued to the learned Counsel for the petitioner and thereafter, both the learned Counsel have been given opportunity to address arguments.

I have heard the learned Counsel for the parties and have gone through the file thoroughly.

The learned Counsel for the petitioner urges that an utter limit for completion of investigation and trial has been laid down in various authorities and as this case has taken almost more than 6 years for completion of trial, the proceedings are liable to be quashed in the interest of justice. The learned Counsel had relied upon various authorities which are discussed as under :

In Hussainara Khatoon v. State of Bihar, AIR 1979 SC 1369, the petitioners were under trial prisoners. They had been in jail for a period longer than what they would have been sentenced if convicted and it was observed :

"...........It is indeed difficult for us to understand how the State Government could possibly remain oblivious to the continued incarceration of these under trial prisoners for years without even their trial having commenced. The judiciary in the State of Bihar also cannot escape its share of blame because it would have been unaware of the fact that thousands of undertrial prisoners are languishing in jails waiting trial which never seems to commerce. We fail to see how the continued detention of these under trial prisoners mentioned in the list of Mrs. Hingorani can be justified when we find that they have already been in jail for a period longer than what they would have been sentenced to suffer, if convicted. They have in fact some jail term to their credit, we therefore, direct that these undertrial prisoners whose names and particulars are given in the list filed by Mrs. Hingorani should be released forthwith as continuance of their detention is clearly illegal and in violation of their fundamental right under Article 21 of the Constitution."

In State of Bihar v. Uma Shankar, AIR 1981 SC 641, the High Court at Patna had quashed the proceeding, on the ground that the trial had not made much headway even though a period of 20 years had gone by and the High Court had quashed the proceedings. This quashing order of the High Court was not interfered with by the apex Court. The case of the prosecution was for an offence under Section 7 of the Essential Commodities Act, pending in the Court of a Magistrate at Bhagalpur. An observation was made that after the last witness was examined in April, 1989, no other witness had been examined and it was observed in the order that the prosecution was not in a position to know the addresses of the witnesses who were mostly Government officials. The Apex Court made a definite observation that luxury of protracted trial cannot be allowed to the prosecution.

In Gopi Ram v. State of Haryana, 1987(2) CLR 204, quashing of the proceedings was sought on the ground that there was no evidence to show that copy of the report of the public analyst had actually been sent to the accused by the Food Inspector. The accused had been served in the complaint after more than 4 months. Noncompliance thereof was held to be fatal.

In S. Guin v. Grindlays Bank Ltd., AIR 1986 SC 289, Operations Manager of the Bank filed a complaint against 12 appellantaccused for offences punishable under Section 341, IPC and Section 36AD of the Banking Regulation Act, said to have been committed on 31.10.1977. The allegation was that the accused had without reasonable cause, obstructed the officers of the Bank, particularly Shri G. Vaidya from lawfully entering the premises of the branch of the Bank, the normal transaction at the said branch. These acts had been committed by the accused pursuant to a call of strike given by the employees of the Bank. After trial, the Magistrate by his judgment acquitted all the accused vide his order dated 27.6.1978. Against this judgment of acquittal, appeal was filed which was disposed of by the High Court of Calcutta after nearly six years on 19.12.1984 holding that the trial Court had missed the essence of the offences with which the appellants had been charged. Therefore, there was failure of justice. The judgment of acquittal was set aside and the case was remanded for retrial for offences punishable under Sections 341/34 or 149 of the IPC. The Apex Court held as under :

"We are of the view that following the above principle the High Court should have dismissed the appeal before it even if it disagreed with the view taken by the trial Court with regard to the gist of the offence punishable under Section 341 of Indian Penal Code, having regard to the inordinate delay of nearly six years that had ensued after the judgment of acquittal, the nature and magnitude of the offences alleged to have been committed by the appellants and the difficulties that may have to be encountered in securing the presence of witnesses in a case of this nature nearly 7 years after the incident. The termination of the criminal proceedings in that way would secure the ends of justice as it should bring about reconciliation between the management and the employees and also put an end to a stale criminal proceedings in which the public had no longer sufficient interest. We accordingly set aside the judgment of the High Court and restore the order of acquittal passed in this case by the Metropolitan Magistrate without however expressing any opinion on the issues of fact and law involved in the case."

In Sheela Barse v. Union of India, AIR 1986 SC 1773, a social worker had filed a petition, seeking release of children below 16 years detained in jails. The apex Court had the occasion to deal with the necessity of speedy trial and it was observed as follows :

"The problem of arrest of criminal cases in the courts of Magistrates and Additional Sessions Judge has assumed rather disturbing proportions and it is a matter of grave urgency to which no State Governments can afford to be oblivious. But, here, we are not concerned with the question of speedy trial for an accused who is not a child below the age of 16 years. That is a question which may have to be considered in some other case where this Court may be called upon to examine as to what is reasonable length of time for a trial beyond which the Court would regard the right to speedy trial as violated. So far as a child accused of an offence punishable with imprisonment of not more than 7 years is concerned, we would regard a period of 3 months from the date of filing of the complaint or lodging of the First Information Report as the maximum time permissible for investigation and a period of 6 months from the filing of the chargesheet as a reasonable period within which the trial of the child must be completed. If that is not done, the prosecution against the child would be liable to be quashed. We would direct every State Government to give effect to this principle or norm laid down by us in so far as any future cases are concerned, but so far as it concerns pending cases relating to offences punishable with imprisonment of not more than 7 years, we would direct every State Government to complete the investigation within a period of 3 months from today if the investigation has not already resulted in filing of chargesheet and if a chargesheet has been filed, the trial shall be completed within a period of 6 months from today and if it is not, then prosecution shall be quashed."

In Madheshwardhari Singh v. State of Bihar, AIR 1986 Patna (FB) 324, the petitioner was a Class I Government servant and at that time Poultry Development Officer. More than 20 years ago, during 196465, he was posted as the Assistant Director, Central Poultry Farm, Patna and one Satya Narain Sharma, a Store Keeper, was his subordinate on the said farm. On the basis of a written complaint made by his successor, Syed Jalal Ahmad, Assistant Director, Central Poultry Farm, Patna filed a first information report dated the 20th November, 1966, in Cardanibagh Police Station Case No. 32(11) 1966, was lodged under Sections 467, 409 and 120B of the Indian Penal Code. In that case, only Satya Narayana Sharma was named as an accused, but a suspicion was raised against the petitioner as well. Police investigation in the case dragged on and, on the 29th September, the petitioner was also made an accused in the said case. He was produced before the Judicial Magistrate, Patna, but was granted bail on 29.9.1975. It was only on 23.7.1977 that a chargesheet was filed and ultimately, the case was sent to Judicial Magistrate for disposal. 18 dates and adjournments had to be gone through for over a year and a half from 2.3.1976 to 15.7.1977 for the supply of documents which was partly done. Charges against the accused persons were framed on 23.7.1977 and thereafter, the examination of nearly 40 witnesses commenced. The grievance of the petitioner was that all those witnesses were officials and easily available at the beck and call of the State. As many as 7 of them were investigating officers in the case and inspite of this, for a period extending from the framing of the charges till 19.2.1979, only 8 witnesses were examined and for the next 9 dates only one witness was examined and the Court gave a last opportunity to the prosecution to produce the rest of the witnesses by the next date. Thereafter also, after as many as 7 or more adjournments the Court again gave a direction to produce the rest of the witnesses by 11.12.1982. This order was again flouted and on that date no witness was present at all. A period of more than a year then elapsed, without any significant progress and the Court, on 24.1.1984, gave a fresh direction to produce the rest of the witnesses by 20.3.1984 when a last opportunity was given to the prosecution to produce the remaining witnesses by 19.4.1984. On the last mentioned date the trial Court was compelled to close the prosecution case. The prosecution preferred a revision against the aforesaid order which was allowed, directing the Judicial Magistrate to examine the witnesses to be produced by the prosecution, but the prosecution again did not complete the examination of its witnesses and the learned Magistrate again passed the order, compelling the prosecution to close the case. Against this order, the State again went in revision before the Sessions Judge, who again allowed the prayer and the prosecution to examine its witnesses on 2.1.1985 and in compliance therewith, the prosecution examined only one witness on 10.1.1985. Thereafter no witness was examined by the prosecution. Ultimately, the prosecution case was closed on 1.5.1985 and the accused were examined under Section 313 of the Code of Criminal Procedure. It was, under these circumstances, that the proceedings were quashed. In the judgment, the Full Bench has laid down certain principles for speedy trial of cases, fixing an outer limit. While answering to question No. 5, it was observed as under :

"That an outer limit to concretise the right to speedy public trial is envisioned both by principle and precedent. A callous and inordinately prolonged delay of seven years or more (which does not arise from the default of the accused or in otherwise not occasioned by any extraordinary or exceptional reason) in investigation and original trial for offences other than capital ones would plainly violate the constitutional guarantee of a speedy public trial under Article 21."

In Amar Nath v. State of Punjab, 1987(1) Recent C.R. 257 , a case was registered under the Essential Commodities Act and no action was taken by the prosecution for more than 7 years for launching the proceedings. It was argued before I.S. Tiwana, J. that since the date of registration of the above noted case, nothing whatsoever has been done by the authorities concerned to proceed against them in any Court of law and now after 71/2 years, the Police has chosen to put in the report under Section 173, Cr.P.C. in the Court of the Chief Judicial Magistrate, Bhatinda for trying them for the above noted offence along with other offences, i.e. under Sections 420/468, IPC. It was also brought to the notice of the learned Judge that some of the petitioners were still being summoned as accused in that case. Relying on Madheshwardhari Singh''s case (supra), the proceedings were quashed.

In Nand Lal v. State of Haryana, 1987(XIV) Cr. LT. (169), the accusedpetitioner was acquitted on the ground that trial of offence under Section 16(A), Prevention of Food Adulteration Act remained pending for a period of about 4 years.

The foregoing discussion shows that the circumstances of each case were entirely different and the principles enunciated therein cannot be applied to the facts of the case before this Court. I do not agree with the learned Counsel for the petitioner that mere delay in completing the trial in the instant case, should be sufficient to quash the proceedings, especially when this case involves an amount of Rs. 88,00,000/ that was obtained from the Bank by fraudulent means on the basis of forged documents and wherein Bank Officers are said to have acted in good faith and to have placed implicit reliance in the course of dealing with its customers, the Bank is stated to have been defrauded on the basis of some bills relating to the same goods which were represented to have been insured through a forged insurance cover, whereas, as a matter of fact, there was no transaction either of sale or of transporting the goods. Ultimately, the payment was not received and the Hindus came back with the endorsement "money not forthcoming". In the present case, so many parties belonging to different and far flung places are involved and the witnesses to prove the relevant documents also belong to various places. For the trial of such a case, ordinary process of serving them with summons would not serve any purpose and now the prosecution, after its failure to secure presence of the witnesses in Court, has undertaken to serve the witnesses by special process servers and I am told that for the remaining 16 cases which are being tried, most of the witnesses have already been served and examined in the trial Court. All such witnesses were to be examined in this case also, but they could not be examined because or stay of the proceedings obtained by the petitioner from this Court.

In this case the prosecution has produced the list of witnesses to be examined during trial. There are 25 witnesses and some of them belong to Abohar itself while some others belong to Jaipur, Kotkapura, Delhi, Bombay, Trichur, Ferozepur, Shimla and New Delhi. The chart of dates shows that the prosecution filed an application on March 4, 1985 for summoning one Prabh Dayal, who was inadvertently omitted to be cited as an accused, but it could be decided only on February 1, 1986, and the delay caused cannot be said to be unreasonable. The case was adjourned on February 1, 1986 to February 12, 1986 for framing of charge, but on the later date the present petitioner was not present in the Court and the case had to be adjourned to February 21, 1986, on which date the learned Counsel for the petitioner requested for an adjournment and the case was taken up on February 22, 1986, when the charge was framed. There is another factor for causing some delay and, that is on September 16, 1986 case was adjourned for summoning of PWs to December 6, 1986 but by that date Sessions Judge transferred the case of Chief Judicial Magistrate, Ferozepur and the file was sent here. On December 10, 1986, the Chief Judicial Magistrate directed that this case be registered and PWs. be summoned for January 31, 1987, when he received an order of transfer of the case to Judicial Magistrate Ist Class, Fazilka by this Court vide order dated January 28, 1987. The case was adjourned for appearance of the accused to February 16, 1987, and on that date PWs were directed to be summoned for April 9, 1987. On August 24, 1987 the Court was informed about the supplementary challan likely to be presented and on this ground case was adjourned to September 21, 1987. Ultimately, supplementary challan was presented and charges were framed afresh on December 7, 1967. PWs. were, therefore, directed to be summoned for December 23, 1987.

Keeping in view of the facts and circumstances involved in this case, I am of the view that it is not a case in which the proceedings can be quashed only on account of delay. The incriminating facts have occasioned extraordinary and exceptional grounds for the delay caused. In Madeshwardhari Singh, case (supra) it was held that the time limit for disposal of the case is not attracted to the cases of present nature. It is also worthwhile to mention that one of the offences i.e. offence under Section 467 of Indian Penal Code is punishable with imprisonment for life or imprisonment for 10 years and fine and the charge is with regard to defrauding the bank to the extent of Rs. 88 lacs. As mentioned in Sheela Barse''s case (supra), the Apex Court has held that the question of fixing a limit for disposal of cases within a reasonable time would be considered in some other case when that Court is called upon to examine that particular question. This case, as mentioned above, is of a peculiar nature and prosecution or the court cannot be said to be at fault in the disposal of this case. Whatever delay has been caused is because of an unusual nature of allegations requiring extraordinary efforts to investigate and bring forth the culprits and after putting up the challan, production of witnesses in the Court also requires extraordinary efforts and as noted above, the prosecution has been able by now to produce most of the prosecution witnesses.

In view of the discussion above, I do not think that the facts of this case attract an order for quashing the proceedings of the case. This petition is, therefore, dismissed and the parties are directed to appear in the trial Court on December 19, 1988.