Raghvendra Garg, Advocate vs State

Dev Kant Trivedi, J.—By means of the present petition u/s 482 of the Code of Criminal Procedure, the Petitioner has prayed for the quashing of the charge-sheet No. 8 of 1998 dated 23.11.1998 filed by C.B.I. and also the order dated 2.1.1999 taking cognizance passed by the Special Judge, Anti-Corruption (West) Lucknow whereby the Petitioner has been summoned.

Detailed arguments have been advanced by Sri Nandit Srivastava, learned Counsel appearing for the Petitioner and Sri H. B. Singh, learned Counsel appearing for the opposite party.

According to the Petitioner, he is a practicing advocate of 17 years'' standing and has been General Secretary of Kanpur Income Tax Bar Association from 1983 to 1994. A charge-sheet has been filed against him alleging that two cheques were issued by him from the account of M/s. S. K. Enterprises, Kanpur to accommodate co-accused Sanjai Somani to cover up the short-fall being committed since 16.2.1994 knowing full well that the balance in Bank account of M/s. S. K. Enterprises was insufficient. As per the charge-sheet, the Petitioner has been accused of committing the offence of criminal conspiracy and cheating punishable u/s 120B read with Section 420, I.P.C. The Petitioner has also been accused of forging the signature of ''R. Gupta'' on the said two cheques. The aforesaid two cheques bearing purported signatures of ''R. Gupta'' of M/s. S. K. Enterprises bearing No. 103320 for a sum of Rs. 54 lakhs and other cheque bearing No. 103321 for Rs. 66 lakhs were issued from the account of M/s. S. K. Enterprises standing with Allahabad Bank, Raipurva Branch, Kanpur. These cheques bore the signatures of ''R. Gupta'' for M/s. S. K. Enterprises which words were allegedly written by the Petitioner.

According to the prosecution, co-accused Sanjai Somani opened a current account No. 1015 in the name of M/s. Special Investment as its proprietor on 1.12.1993 in Punjab National Bank, U.P. Stock Exchange Branch, Kanpur. He had another account in the name of M/s. Somani Investment in the same Branch. Sanjai Somani also was a partner of M/s. Gopi Kishan Vijai Kumar and had an account in Allahabad Bank, Pheel Khana Branch, Kanpur. Two cheques were signed by Sanjai Somani, one for a sum of Rs. 83.55 lakhs and another cheque for Rs. 81.45 lakhs drawn on Allahabad Bank, Pheel Khana Branch, Kanpur and issued from the account of M/s. Gopi Kishan Vijai Kumar. These cheques were deposited in Punjab National Bank, U.P. Stock Exchange Branch, Kanpur for credit in Account No. 1015 of M/s. Special Investment, by Sri Ritesh Kumar Shukla, Chartered Accountant of the co-accused Sanjai Somani. These cheques were sent for clearing from Allahabad Bank, Pheel Khana Branch, Kanpur Nagar on 15.2.1994 and credit of Rs. 1.65 crores was entered in the Punjab National Bank, U.P. Stock Exchange Branch, Kanpur in Account No. 1015 of M/s. Special Investment on 15.2.1994 itself. Sanjai Somani issued two cheques for Rs. 1.60 crores from his account M/s. Special Investment in favour of one of his own concerns M/s. Sukesh Investment Pvt. Ltd. and one cheque of Rs. 20,000 in favour of M/s. Sumitra Prakashan. These cheques were debited to the M/s. Special Investment without waiting for the fate of the two cheques which were issued by Sanjai Somani as partner of M/s. Gopi Kishan Vijai Kumar and payment thereof, was made on 16.2.1994. The two cheques of M/s. Gopi Kishan Vijai Kumar were dishonoured by Allahabad Bank, Pheel Khana Branch, Kanpur, due to insufficient balance in the account of M/s. Gopi Kishan Vijai Kumar. These dishonoured cheques continued to remain with the Bank Manager, Prakash Narain till 18.2.1994. Sanjai Somani then gave three cheques on 18.2.1994 to Punjab National Bank, U.P. Stock Exchange Branch, Kanpur. Out of these three cheques, two cheques relate to M/s. S. K. Enterprises bearing the signature of ''R. Gupta'' issued from its account in Allahabad Bank, Raipurva Branch, Kanpur. The case against the Petitioner allegedly is concerned with only these two cheques of M/s. S. K. Enterprises bearing ''R. Gupta'' as signatures on behalf of account holder which words according to the charge-sheet were allegedly written by the Petitioner. These two cheques were deposited by Sanjai Somani in the account of M/s. Special Investment on 18.2.1994 and when the cheques were sent to clearing, the same were dishonoured and the same reached back to the U.P. Stock Exchange Branch of Punjab National Bank on 21.2.1994.

The case of the Petitioner is that ''R. Gupta'' alias Raiendra Gupta alias Raju had given four blank cheques duly signed by Rajendra Gupta from the account of M/s. S. K. Enterprises to Sanjai Somani in the month of January, 1994 for purchasing the shares of Binaca Synthetics and Sanjai Somani misutilised two out of these four cheques of M/s. S. K. Enterprises by filling in a sum of Rs. 54 lacs in one cheque and another sum of Rs. 66 lakhs in the other cheque favouring his own firm M/s. Special Investment. All the entries in the cheques were in the handwriting of the co-accused Sanjai Somani who delivered the said cheques to Prakash Narain, Manager of U.P. Stock Exchange Branch on 18.2.1994 which were dishonoured on 21.2.1994.

Sri Ishwar Singh, the Senior Manager of Punjab National Bank, Regional Office, Birhana Road, Kanpur lodged first information report on 4.3.1994 against Sanjai Somani, Jyoti Somani, R. Gupta and Dilip Jasrapuria. The allegation in the said F.I.R. broadly are as follows:

Account No. 1015 was opened in the name of M/s. Special Investment, 315, Kalpana Plaza, Birhana Road, Kanpur on 1.12.1993 in Punjab National Bank, U.P. Stock Exchange Branch, Kanpur. The introduction was made by Sanjai Somani at the time of opening the Account No. 1015. Sanjai Somani had another Current Account No. 959 in the said branch in the name of M/s. Somani Investment whose proprietor is his wife Jyoti Somani and Sanjai Somani was the person authorized to operate the said Current Account No. 959. Sanjai Somani in his capacity of Proprietor of M/s. Special Investment deposited two cheques drawn on Allahabad Bank, Pheel Khana Branch, Kanpur from the account of M/s. Gopi Kishna Vijai Kumar. One cheque was in the amount of Rs. 81.45 lakhs and the second cheque was in the sum of Rs. 83.55 lakhs. Before the clearance of these two cheques, which were deposited in the account of M/s. Special Investment, U.P. Stock Exchange Branch of Punjab National Bank, two cheques were issued by Sanjai Somani in his capacity of Proprietor of M/s. Special Investment. One cheque was issued in favour of M/s. Sukesh Investment Pvt. Ltd. for Rs. 1.60 crores while the other cheque was issued in favour of M/s. Sumitra Prakashan in the sum of Rs. 20,000. These two cheques were deposited in Allahabad Bank, Pheel Khana Branch, Kanpur and the amount thereof, was paid by Punjab National Bank, U.P. Stock Exchange Branch, Kanpur. The two cheques of Rs. 1.65 crores were dishonoured and were received back in U.P. Stock Exchange Branch of Punjab National Bank, on 18.2.1994. Prakash Narain, Manager of Punjab National Bank, U.P. Stock Exchange Branch, Kanpur then contacted Jyoti Somani and Sanjai Somani both of whom in their turn called Dilip Jasrapuria who issued a cheque in the sum of Rs. 40 lakhs. Next day, Jyoti Somani and Sanjai Somani delivered two cheques of M/s. S. K. Enterprises bearing ''R. Gupta'' as the signatures of the drawer of the cheques which were sent for encashment but were received back unpaid on 22.2.1994. Prakash Narain, Branch Manager of U.P. Stock Exchange Branch of Punjab National Bank then contacted Sanjai Somani, Jyoti Somani, R. Gupta and Dilip Jasrapuria who did not make the payment. This F.I.R. dated 4.3.1994 was initially registered at P.S., Gwal Toli, Kanpur where Crime No. 42 of 1994 was registered. On the basis of the said F.I.R. subsequently a regular case was registered by the C.B.I. on 9.5.1994.

The investigation was conducted by the C.B.I. who submitted a charge-sheet against M/s. Special Investment, Sanjai Somani, Prakash Narain Branch Manager, Dilip Jasrapuria and the present Petitioner u/s 120B read with Section 420, I.P.C. and Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act. The accusation in the charge-sheet, as against the Petitioner, is that two cheques of M/s. S. K. Enterprises bearing No. 103320 for Rs. 54 lakhs and No. 103321 for Rs. 66 lakhs were issued from the account of M/s. S. K. Enterprises with Allahabad Bank, Raipurva Branch, Kanpur and the Petitioner has signed as ''R. Gupta'' on the two cheques of M/s. S. K. Enterprises. These cheques were issued knowing that there was no sufficient balance in the account of M/s. S. K. Enterprises. "All these cheques were deposited in Account No. 1015 of M/s. Special Investment on 18.2.1994 and a false and irregular credit was afforded into the account of M/s. Special Investment on 18.2.1994 itself against which the unpaid cheques received on 17.2.1994 were debited." The cheques issued by M/s. S. K. Enterprises were returned unpaid on 21.2.1994. The allegations against the Petitioner is that two cheques issued by him from the account of M/s. S. K. Enterprises "were only to accommodate Sanjai Somani to cover up the shortfall being committed since 16.2.1994 as they were knowing that there was insufficient balance in their account." The charge-sheet also discloses that Sri R. Gupta was not sent up for trial as investigation did not disclose any incriminating role as "signature of ''R. Gupta'' were in fact forged by the Petitioner."

The case of the Petitioner is that he has nothing to do with the matter as M/s. S. K. Enterprises is a firm owned and run by Rajendra Gupta alias R. Gupta alias Raju and that the said two cheques were never signed by the Petitioner nor the words ''R. Gupta'' were written by him rather, the same are signed by the account holder R. Gupta alias Rajendra Gupta alias Raju who is the owner and Proprietor of M/s. S. K. Enterprises.

The case of the Petitioner is that since Rajendra Gupta alias R. Gupta was being repeatedly summoned by the C.B.I. and since the Petitioner in his capacity as the counsel of R. Gupta, had been accompanying R. Gupta, he was threatened by the C.B.I. to desist from doing the pairvi of the aforesaid R. Gupta and was finally roped in falsely by the C.B.I. who did not charge R. Gupta and instead charged the Petitioner.

It is further the case of the Petitioner that neither he had any nexus with co-accused Sanjai Somani nor with M/s. S. K. Enterprises and that he was only discharging his professional obligation towards his client R. Gupta.

The case of the Petitioner also is that neither he is named in the F.I.R. nor any allegation was made by Punjab National Bank against him.

The case of the Petitioner also is that no evidence could be collected against him during the investigation except the statement of one Anand Srivastava, Branch Manager of Raipurva Branch of Allahabad Bank and the said Anand Srivastava has also said nothing against the Petitioner except that the Petitioner had impersonated as ''R. Gupta'' and opened an account in the name of M/s. S. K. Enterprises at Raipurva Branch of Allahabad Bank which statement according to the Petitioner could not be deemed to be the evidence against the Petitioner making out any offence of criminal conspiracy with Sanjai Somani or the offence of cheating the Punjab National Bank, U.P. Stock Exchange Branch, Kanpur in the fraudulent payment of a sum of Rs. 1.60 crores by the said Bank to Sanjai Somani on 16.2.1994 without waiting for clearance of the two cheques issued from the account of M/s. Gopi Krishna Vijai Kumar.

Lastly, the case of the Petitioner is that even though R. Gupta admits to have issued two cheques from the account of M/s. S. K. Enterprises which were dishonoured and that Sanjai Somani admits to have filled in the blank spaces in the aforesaid two cheques, the Petitioner who has no concern either with M/s. S. K. Enterprises or with the aforesaid two cheques has been falsely implicated and charge-sheet has been filed against him on account of mala fide intent of the Investigating Officer of C.B.I. who was not obliged by the Petitioner though he was repeatedly required to desist from doing pairvi of Rajendra Gupta alias R. Gupta of M/s. S. K. Enterprises.

The Petitioner has invoked the jurisdiction of this Court u/s 482, Cr. P.C. on the basis of the above grounds.

By means of his supplementary affidavit, the Petitioner filed a copy of the report of the Government Examiner of questioned documents, Government of India which was supplied to him by the C.B.I. u/s 173, Cr. P.C. showing that the Petitioner had not forged signature of ''R. Gupta'' alias Rajendra Gupta on the two dishonoured cheques of M/s. S. K. Enterprises as the Examiner indicated his inability to express any opinion in this regard and specifically opined that the other writings in two cheques were that of Sanjai Somani 16. Counter-affidavit on behalf of C.B.I. was filed by the Investigating Officer who is a Deputy Superintendent of Police in C.B.I.

According to the averments made in counter-affidavit as a result of criminal conspiracy between the accused persons Punjab National Bank was defrauded to the tune of Rs. 1.60 crores inasmuch as two cheques respectively of Rs. 81.25, lakhs and Rs. 83.55 lakhs issued from the account of M/s. Gopi Kishan Vijai Kumar, standing at Allahabad Bank, Pheel Khana Branch, Kanpur, deposited by Sanjai Somani in the account of M/s. Special Investment at Punjab National Bank, U.P. Stock Exchange Branch, Kanpur were dishonoured. Two cheques were dishonoured and were received in the said branch of Punjab National Bank on 17.2.1994.

Accused Prakash Narain, the then Manager of Punjab National Bank obtained two cheques of M/s. S. K. Enterprises from Sanjai Somani respectively in the sum of Rs. 54 lakhs and Rs. 66 lakhs which bore the words ''R. Gupta'' as drawer. These cheques were issued from the account of M/s. S. K. Enterprises in Allahabad Bank, Raipurva Branch, Kanpur. These cheques were signed allegedly by the Petitioner as ''R. Gupta'' as such the Petitioner forged the cheques of M/s. S. K. Enterprises. These cheques were allegedly issued to accommodate Sanjai Somani to cover up the short-fall being committed since 16.2.1994. According to the counter-affidavit filed by the Investigating Officer, the Petitioner is a co-conspirator in defrauding Punjab National Bank, U.P. Stock Exchange Branch, Kanpur. According to the counter-affidavit, the Petitioner had issued these two cheques for Rs. 54 lakhs and Rs. 66 lakhs drawn on M/s. S. K. Enterprises in favour of M/s. Special Investment by forging signatures as ''R. Gupta''. The said cheque Nos. 103320 and 103321, were issued by M/s. S. K. Enterprises in favour of M/s. Special Investment without any business transaction. R. Gupta was examined and interrogated during investigation. The cheques in question were signed by the Petitioner as R. Gupta and this allegation is supported by the statement of Anand Srivastava, Manager of Pheel Khana Branch, Allahabad Bank, Kanpur. It is admitted by the Investigating Officer that there is no case against the Petitioner for offence of cheating by impersonating rather the Petitioner is a party to the criminal conspiracy, the object of which was to defraud the Bank.

In his rejoinder-affidavit, the Petitioner stated that regarding the forgery of signature of ''R. Gupta'', there is no evidence whatsoever and that he gave specimen writing ''R. Gupta'' and there is no report that these were written and thus, forged by the Petitioner. The Petitioner claimed that even as per the evidence collected by the Petitioner, he had nothing to do with these cheques and that he was not a party to any criminal conspiracy. According to the averments made in the rejoinder-affidavit, Anand Srivastava is an accomplice who actually committed the offence of cheating.

Learned Counsel appearing for the Petitioner and the Respondent submitted their arguments in detail.

It has been urged on behalf of the Petitioner that there is no case made out against him from the F.I.R.

From a perusal of the F.I.R., a copy of which is Annexure-2, it is evident that the Petitioner is not named therein as an accused and that there is no accusation made against him. The F.I.R. does not disclose the commission of any offence by the Petitioner. Rather the F.I.R. discloses that R. Gupta was named as co-accused with Sanjai Somani, Jyoti Somani and Dilip Jasrapuria. The allegations made in the F.I.R. were specifically against Sanjai Somani, Jyoti Somani, Dilip Jasrapuria and R. Gupta. The allegation were mainly made in the F.I.R. against Prakash Narain, the then Branch Manager of Punjab National Bank, U.P. Stock Exchange Branch Kanpur but he was not arrayed as accused. It was specifically alleged in the F.I.R. that R. Gupta partner of M/s. S. K. Enterprises had delivered cheque No. 103320 for Rs. 54 lakhs and cheque No. 103321 of Rs. 66 lakhs from the account of M/s. S. K. Enterprises, Allahabad Bank, Raipurva Branch, Kanpur. In the face of the specific allegations against R. Gupta, Sanjai Somani and Jyoti Somani, it cannot be said that the cheques in question were delivered by the Petitioner to Prakash Narain, Manager of Punjab National Bank, U.P. Stock Exchange Branch. From the F.I.R., no offence is made out as against the Petitioner. The F.I.R. even if it is accepted as true in its entirety discloses not even reasonable suspicion of commission of any offence by the Petitioner. No case, much less prima facie case, was made out in the F.I.R. as against the Petitioner. In fact the F.I.R. does not disclose any offence having been committed by the Petitioner in relation to either the Punjab National Bank, U.P. Stock Exchange Branch, Kanpur or in relation to Allahabad Bank, Raipurva Branch, Kanpur. So far as the F.I.R. is concerned, there is not even any allegation against the Petitioner to justify his prosecution as has rightly been urged on behalf of the Petitioner.

It has further been urged on behalf of the Petitioner that no evidence has been collected against the Petitioner during the investigation. It has, on other hand, been urged on behalf of the C.B.I. that Anand Srivastava, Branch Manager of Raipurva Branch of Allahabad Bank, has specifically shown the involvement of the Petitioner in the crime of cheating the Punjab National Bank.

From the statement of Anand Srivastava recorded u/s 164, Cr. P.C. on 17.10.1997, it appears that he was the Manager Incharge of Raipurva Branch of Allahabad Bank from May, 1990 to July, 1994, when he was transferred from the said Branch. According to him, the Current Account No. 459 was opened in the name of M/s. S. K. Enterprises on 11.2.1992 in the partnership of S. K. Agnihotri and S. K. Jain. On 10.3.1993, allegedly the Petitioner impersonated himself as Rajendra Gupta along with partners of M/s. S. K. Enterprises and was permitted to operate the said account on behalf of M/s. S. K. Enterprises. This account was closed in May, 1993. Another Current Account No. 528 of M/s. S. K. Enterprises as partnership firm of Rajendra Gupta and Rakesh Kumar was opened on 25.5.1993. It was some time in September, 1993 that Anand Srivastava came to know that the Petitioner was impersonating as Rajendra Gupta. The said Account No. 528 of M/s. S. K. Enterprises was still permitted to be operated by the Petitioner impersonating as Rajendra Gupta even after Anand Srivastava became certain about the impersonation of Rajendra Gupta by the Petitioner till July, 1994. He left the Raipurva Branch in July, 1994 and was transferred to Lakhanpurwa Branch. He did not take any action even though he came to know about the impersonation allegedly by the Petitioner as Rajendra Gupta and permitted the operation of Current Account No. 528 in his Branch and maintained status quo.

It was candidly admitted by the learned Counsel of the C.B.I. that there is no evidence collected against the Petitioner during the entire investigation except the solitary statement of Anand Srivastava recorded firstly u/s 161 of the Code of Criminal Procedure and subsequently, u/s 164 of the said Code.

These statements, at the most go to suggest the impersonation by the Petitioner as Rajendra Gupta in the operation of Current Account No. 459 from 10.3.1993 to May, 1993 and opening and operating of Current Account No. 528 from 25.5.1993 to July, 1994. The charge-sheet, however, is not with regard to the impersonation by the Petitioner as Rajendra Gupta because it has been specifically stated in para 18 of the counter-affidavit of the Investigating Officer that there is no case against the Petitioner for offence of cheating by impersonation. The charge-sheet filed against the Petitioner by the C.B.I. relates to a charge u/s 120B read with Section 420, I.P.C. for cheating the Punjab National Bank, U.P. Stock Exchange branch, Kanpur to the tune of Rs. 1.60 crores.

There is nothing in the two statements of Anand Srivastava, even if it is taken to be true and in its face value, indicating that anybody was cheated by the Petitioner while impersonating as Rajendra Gupta in operation of Current Account No. 459 and Current Account No. 528 of M/s. S. K. Enterprises which were standing in Raipurva Branch of Allahabad Bank. The statements of Anand Srivastava if taken to be true, without adding anything thereto or subtracting anything therefrom, would go to show that the Petitioner had operated account No. 459, by impersonating as Rajendra Gupta and opened account No. 528 of M/s. S. K. Enterprises and operated the said account. There is no assertion or averments of commission of any offence of cheating by the Petitioner in operating the said two accounts.

There is nothing in the statement of Anand Srivastava to show that the two cheques of M/s. S. K. Enterprises which were given to Prakash Narain, Manager of Punjab National bank by Sanjai Somani which were subsequently dishonoured, were in fact signed by the Petitioner as ''R. Gupta''. There is nothing in the statement of Anand Srivastava to show that any offence was committed by the Petitioner as has been complained of in the F.I.R. of the case or in the charge-sheet filed by the Investigating Officer of the C.B.I.

The charge-sheet relates to the accusation of criminal conspiracy for cheating the Punjab National Bank by Sanjai Somani and defrauding the Bank by taking payment of sum of Rs. 1.60 crores on the basis of the two cheques issued by Sanjai Somani from his another firm M/s. Gopi Kishan Vijai Kumar and on the basis thereof, withdrawal of the same amount from Punjab National Bank, U.P. Stock Exchange Branch, Kanpur which has nothing to do with the Petitioner''s opening or operating the two accounts allegedly by impersonating as ''R. Gupta''.

It has been urged on behalf of the Petitioner that the evidence as collected by C.B.I. does not show that prior to 18.2.1993, there was any meeting of the mind between the Petitioner and Sanjai Somani for cheating and defrauding the Punjab National Bank to the tune of a sum of Rs. 1.60 crores and that the evidence collected by the C.B.I. against the Petitioner does not even remotely suggest that the Petitioner had entered into a criminal conspiracy with Sanjai Somani. The learned Counsel appearing for the C.B.I. could not show that the assertion of the learned Counsel for the Petitioner in this regard, is incorrect.

It is urged on behalf of the Petitioner that merely because two cheques of M/s. S. K. Enterprises owned by R. Gupta were delivered on 18.2.1994, even if taken as true cannot be deemed to be a circumstance indicating criminal conspiracy. There seems to be considerable justification in the assertion of the Petitioner that neither any oral nor documentary evidence or even circumstantial evidence could be collected by the C.B.I. suggesting criminal conspiracy between the Petitioner and other accused.

It is further urged on behalf of the Petitioner that the money was withdrawn by Sanjai Somani even according to the counter-affidavit of the I.O., on 16.2.1994 itself. The cheques issued from the current account of M/s. S. K. Enterprises were admittedly not available at that time. The offence of cheating had been completed when payment was made on 16.2.1994 itself. As per the version contained in the F.I.R., it was only on 18.2.1994 that the two cheques bearing the signatures ''R. Gupta'' were delivered to Manager of Punjab National Bank, U.P. Stock Exchange Branch. It may be that the said two cheques were issued from the account of M/s. S. K. Enterprises to make good the short fall in the account of Sanjai Somani but the same were also dishonoured on 21.2.1994. Thus, the issuance of the two cheques of M/s. S. K. Enterprises cannot be said to be a transaction of cheating, the offence of cheating having been completed on 16.2.1994 when Sanjai Somani had derived the benefit of getting payment of the two cheques deposited by him on 15.2.1994. The issuance of cheque of M/s. S. K. Enterprises thus, could not have been said to be a part of the criminal conspiracy. Thus, there seems to be no evidence collected by the C.B.I. during the investigation against the Petitioner so far as his role in any criminal conspiracy is concerned.

The Petitioner was assigned the role of signing the two cheques of M/s. S. K. Enterprises as ''R. Gupta'' and it is urged on behalf of the Petitioner that there is no evidence that these cheques were signed by the Petitioner as ''R. Gupta''. The evidence collected by the I.O. of the C.B.I. has rather shown that the cheques were blank and the entries in the cheques were made by filling in the blank spaces by Sanjai Somani. No evidence could be collected by the I.O. of the C.B.I. showing that ''R. Gupta'' were written on these two cheques of M/s. S. K. Enterprises by the Petitioner. The report of Government Examiner of Questioned Documents of Government of India, is to the effect that it has not been possible to express any definite opinion on this point as is admitted to the I.O. in para 20 of counter-affidavit. There is thus, substance in the argument that there is no evidence against the Petitioner that the words ''R. Gupta'' appended to the two cheques were written by the Petitioner and statement of Anand Srivastava is silent on this point.

Rajendra Gupta alias R. Gupta alias Raju is a partner of M/s. S. K. Enterprises having Current Account No. 528 in Raipurva Branch, Allahabad Bank. There was little occasion for the Petitioner to have written ''R. Gupta'' on the cheques of M/s. S. K. Enterprises when there is in existence a firm in the name of M/s. S. K. Enterprises and is also in existence Rajendra Gupta having the account in Raipurva Branch of Allahabad Bank. In the wake of these facts, the Petitioner seems to have a valid ground in arguing that there was little occasion for the Petitioner to have written ''R. Gupta'' which Rajendra Gupta could have easily done. It does not seem feasible to enter into the defence wherein it has been urged that Sanjai Somani subsequently stated that he filled in the blank cheques of M/s. S. K. Enterprises and the statement of Rajendra Gupta that he had signed the cheques which were given to Sanjai Somani for purchasing the shares of Binaca Synthetics, these questions being foreign to the present proceedings in which this Court cannot travel beyond the evidence collected against the Petitioner and not on the basis of the defence taken up by Sanjai Somani or Rajendra Gupta. However, the fact remains that in his counter-affidavit, the I.O. did not show that he could collect any evidence showing that the Petitioner had written the words ''R. Gupta'' on the two cheques or delivered the said two cheques to Prakash Narain, Manager of Punjab National Bank or to Sanjai Somani.

The Petitioner has averred in his petition in this Court that Anand Srivastava, the Manager of Raipurva Branch of Allahabad Bank knew him quite well for a long time as in the year 1993-94, he had a running account in the said branch in his own name, another running account in the name of his wife which was being operated by him as her attorney, two other accounts in the name of his minor children which were being operated by him as their guardian from October, 1992 and also had an account being operated by the Petitioner as a Director of M/s. Aishwarya Enterprises Ltd. In the years, 1992, 1993 and 1994 which facts are virtually admitted to Anand Srivastava who specifically stated that he knew the Petitioner from first quarter of March, 1993 as Director of the said Company. Thus, the assertion of the Petitioner that the statement of Sri Anand Srivastava that he came to know about the true identity of the Petitioner may not be true, seems to be correct. The conduct of Anand Srivastava, Manager of Allahabad Bank even after his alleged coming to know about the alleged impersonation in September, 1993 and still not taking any steps to stop the illegal acts and in permitting the operation of the account of M/s. S. K. Enterprises according to his own version and maintaining status quo may suggest that his statement regarding impersonation may not be true and may be actuated by oblique motives.

Learned Counsel of the Petitioner indicated material contradiction in the two statements of Anand Srivastava which if considered will amount to appraisal of the evidence which may not be justified in these proceedings.

It is urged on behalf of the Petitioner that the statement of Anand Srivastava was recorded for the first time on 20.6.1996 much after the alleged incident and it was made with a view to save himself from the clutches of law. The arguments seems to have some legitimacy and cannot be lightly brushed aside.

According to the Petitioner, the charge-sheet as against him, is the result of malice. It has not been categorically and specifically denied by the I.O. in his counter-affidavit that the Petitioner represented Rajendra Gupta alias R. Gupta of M/s. S. K. Enterprises during the investigation. It is urged by the learned Counsel of the Petitioner that his persistence and insistence to represent and to do pairvi for his client Rajendra Gupta alias Raju Gupta a partner of M/s. S. K. Enterprises resulted in his prosecution. It has been categorically stated by the I.O. in the charge-sheet that no offence has been committed by R. Gupta and, therefore, he was not being sent to trial. The question of charge-sheet having been filed on account of malice is defence of the Petitioner and it may not be looked into and decided in the present proceedings.

It has been urged on behalf of the Petitioner that prosecution of the Petitioner ought not be permitted as the process of law, in the present case, has been degenerated as a weapon of harassment or oppression, particularly when the evidence discloses no offence either of criminal conspiracy for cheating or of cheating as such by the Petitioner. May be the assertion as a proposition of law is justified, the fact remains that the evidence should not be appraised while exercising the jurisdiction u/s 482 of the Code of Criminal Procedure.

It is urged that in the present case, the allegations in the F.I.R. and the material being relied on by the investigating agency and the charge-sheet taken on the face value, do not show the commission of any offence by the Petitioner and, therefore, the accusation made against the Petitioner is wholly unsustainable and neither the F.I.R. nor the sworn statement of Anand Srivastava discloses commission of any offence against the Petitioner.

There is no doubt that from the statement of Anand Srivastava if taken at its face value, accusation of impersonation in operating current account No. 459 and opening and operation of Current Account No. 528 at Raipurva Branch of Allahabad Bank might be made out but the same caused no loss to any one including the two Banks involved and Rajendra Gupta who is said to have been impersonated by the Petitioner. So far as the issuance of the two cheques by Rajendra Gupta from the account of M/s. S. K. Enterprises is concerned and the dishonouring of the two cheques may give rise to an offence u/s 138 of the Negotiable Instruments Act and the cognizance thereof can be taken only at the instance of Sanjai Somani who may claim to have suffered on account of non-payment of the amount of the cheques of M/s. S. K. Enterprises but no such accusation seems to have been levelled by the C.B.I. on behalf of Sanjai Somani. Similarly, Raipurva Branch of Allahabad Bank, even assuming to be acting on the alleged impersonation, has also not been put to any loss nor any cheating has been done in relation to the said Bank nor the charge-sheet makes any accusation in this regard.

It has lastly been urged that the vast powers u/s 482 of the Code of Criminal Procedure must be exercised under special circumstances established in this case which is rarest of rare cases. No doubt powers possessed by this Court u/s 482 of the Code of Criminal Procedure are very wide, but the very plentitude of power requires from the Court great caution and has to be exercised ultra cautiously and only under circumstances where no other course is available to the Petitioner.

In the present case, the order taking cognizance and issuing process against the Petitioner had already been passed. The said orders are seriously challenged on the ground of non-application of judicial mind to the facts of the cases, nature of allegations, the evidence in support thereof and sufficiency of evidence of prosecution to succeed in proving the charges against the Petitioner. However, the Petitioner in response to the said orders appeared in the trial court, was sent to jail and was subsequently granted bail. Thus, the Petitioner has succumbed to the process of the Court issued rightly or wrongly and there is now no justifiable need to quash the said order. Similarly, the order of issuance of the process against the Petitioner as such stands exhausted and no useful purpose is likely to be served by quashing the same.

The trial court has the power to discharge the Petitioner at any stage of trial in case the charges are found to be groundless. The Petitioner has an opportunity to show to the trial court that the charges are groundless and can seek discharge even before the hearing on charges takes place. There is nothing which could stop the Petitioner from showing to the trial court that charges are groundless nor is there any embargo on the power of the trial court to consider the question that the charges are groundless, at any stage.

Moreover, the Petitioner will have ample opportunity to advance arguments and make his submissions before the trial court that materials collected during evidence do not call for the framing of any charge against the Petitioner. It, therefore, does not seem necessary to exercise power u/s 482 of the Code of Criminal Procedure at this stage. The Petitioner should first ventilate his grievance before the trial court that the facts alleged by the prosecution and the evidence collected during the investigation do not constitute any offence against him either of criminal conspiracy to defraud or the offence of cheating and he may seek discharge u/s 239 of the Code of Criminal Procedure.

In view of the fact that the Petitioner has available to him an equally efficacious alternative remedy under the Code of Criminal Procedure itself which can be availed by the Petitioner and the trial court itself has a power to consider all the plea which can be raised by the Petitioner including the assertion that the charge is groundless and that there is no evidence against the Petitioner for proceeding further with the trial, this Court is not inclined to exercise its inherent jurisdiction at this stage.

Hence, the petition is dismissed with the directions that the trial court will consider the grievances of the Petitioner as are raised before it after affording the parties reasonable opportunity of hearing and will decide the matter in accordance with law before proceeding to frame the charges.