Smt. Lata Mehrotra vs State of U.P. and Another

Amar Saran, J.—This application u/s 482, Cr. P.C. has been filed for quashing of the proceedings in Criminal Case No. 1356 of 2002, Dharamveer Singh v. Kapil Arun and Ors. Criminal Case No. 1356 of 2002, under Sections 420, 409, 467, 468 and 471, I.P.C., P.S. Kotwali Shahr, district Bijnore, pending in the Court of C.J.M., Bijnore.

The first information report in this case was lodged against the applicant on 7.9.2002 by Dharamveer Singh, who showed himself as the manager of Arya Vedi Kanya Inter College, Bijnore. The applicant was the lady acting Principal of the said college. The co-accused were Kapil Arun, the administrator of the college and Mangla Prasad Sonia, the District Inspector of Schools, Bijnore (for short the D.I.O.S.). The allegations in the F.I.R. were that the said college was run by the Arya Pratinidhi Sabha, Lucknow, which is a registered body. The complainant, Dharamveer Singh, claimed himself to be the legally elected manager of the institution. The applicant was suspended on 21.6.1999 by the managing committee. Information about the suspension of the applicant was given to the D.I.O.S., Mangla Prasad Sonia and the other authorities. It was alleged that in spite of that information, the co-accused Mangla Prasad Sonia, in collusion with another co-accused, Kapil Arun, the administrator, passed a fake bill of salary of the applicant on 23.8.1999. This was done with the object of embezzling Government funds.

I have heard Sri Ramesh Kumar Shukla, learned Counsel for the applicant, Sri K. M. Garg, learned Counsel for the complainant-Respondent No. 2.

The contention of the applicant is that no case of cheating or breach of trust or forgery under any of the Sections 420, 409, 467, 468 or 471, I.P.C. is disclosed against the applicant or the co-accused. It was further submitted that the F.I.R. does not mention as to what amount was entrusted to the applicant and what was embezzled. It is clear that the applicant has jointly signed the salary bill along with the Administrator and the D.I.O.S., Sri Mangla Prasad Sonia. Withdrawal of the salary has been effected by cheque from the treasury. The D.I.O.S. and the Administrator have been made co-accused in a mala fide manner only for rendering illegal their action of signing the applicant''s salary cheque. The suspension order dated 21.6.1999, stood revoked after 60 days and there was no fetter on the applicant in signing the salary cheque. Also there was an order dated 20.8.1999, passed by the administrator, holding that on the expiry of 60 days the suspension of the applicant had automatically come to an end. The Investigating Officer even submitted a final report on 8.11.1999 and cognizance has been taken in this case on the basis of a protest petition by order of the C.J.M., Bijnore, dated 30.4.2002. Significantly, the applicant continues to be the Principal of the institution, and Sri Kapil Arun is still the administrator, and this F.I.R. was basically lodged in a mala fide manner because there was a dispute for control of the management of the college.

Learned Counsel for complainant-Respondent No. 2 has submitted that the institution in which the applicant is alleged to have embezzled the funds was a grants-in-aid institution. There was no need for proving the mode of entrustment and the ingredients of the offence were made out as soon as there was wrongful appropriation of the funds by a person who was not entitled to the same. The applicant was not entitled to the withdrawal of her salary for the suspension period, and was entitled only for suspension allowance and, thus, dishonesty was writ large in the circumstances of the case. It was further submitted that there is a finding by the Investigating Officer that there was embezzlement. The applicant was not entitled to the salary as the matter was still pending before the D.I.O.S., who had not decided the same. The co-accused Kapil Arun was not entitled to function as the administrator and for signing the cheque, as by an order of the District Magistrate dated 20.8.1999, he was disentitled to function as the administrator on the material date, i.e., 23.8.1999.

On examination of the rival cases put forward by the applicant and the complainant, it does appear to me that this case has degenerated into a malicious and vindictive persecution. It appears that rival parties are vehemently fighting for the control of the institution. Litigation in this regard is pending even in the High Court and the complainant, Dharam Veer Singh, has filed a writ petition for quashing of the order of the D.I.O.S. dated 16.8.1999 and for restraining the Respondents, which included the D.I.O.S. and the administrator Kapil Arun, from interfering with his functioning as the manager and an order was passed by this Court on 7.9.1999, disposing of the writ petition. By this order, this Court held that the D.I.O.S. may pass a fresh order after affording an opportunity of hearing to all the necessary parties, as expeditiously as possible, preferably within 2 months from the date of production of that order before him. In the meanwhile, the order dated 16.8.1999 was kept in abeyance and was to be subject to the final orders to be passed by the D.I.O.S. after affording an opportunity of hearing to all the necessary parties. However, in the meanwhile it was open to the D.I.O.S. to manage the institution either by himself, or by any officer of the State Government appointed by him in that regard.

Thus, from the facts and circumstances stated above, the present F.I.R. appears to be an offshoot of a bitter dispute between the parties with a view to gaining control of the institution in question. In this connection, the Hon''ble Supreme Court has held, in the case of Madhavrao Jiwajirao Scindia and Others Vs. Sambhajirao Chandrojirao Angre and Others, , that if a prosecution degenerates into a vindictive persecution, and is instituted with an oblique motive, then such a prosecution should not be allowed to continue. The Hon''ble Supreme Court in this case has held in paragraph 7, as under:

The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilized for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.

On an analysis of the F.I.R., I find that nothing has been clarified as to what was entrusted to the applicant and what was embezzled by the applicant. Simply drawing of salary by the applicant, which had met the approval of the D.I.O.S. can never confer an element of mens rea for the offences alleged against the applicant so as to make her liable for an offence u/s 409, I.P.C. I find that the party of the applicant is still in control of the institution as the applicant continues to be the Principal of the institution and the co-accused Kapil Arun is still the administrator of the college. This certainly could have given grounds for annoyance to the complainant and the consequential lodging of the F.I.R. against the applicant. Significantly, the F.I.R. in this case was lodged after 15 days on 7.9.1999 after the alleged incident, which also shows its motivated and got-up nature. It also appears that even the D.I.O.S. has been made a co-accused in this case only in order to have the action of the applicant''s drawing salary to be declared illegal. The D.I.O.S. appears to have been implicated in a wholly mala fide manner. This appears to have been done on the same date, i.e., 7.9.1999, when this Court passed an order directing the D.I.O.S. to decide as to which party was entitled to manage the institution, after hearing both parties, and in the meanwhile pending his decision to manage the institution himself or by an officer of the State Government. It has also to be noted here that a final report was submitted in this case and simply because a line appears in the case-diary that there was some understanding between the applicant and the D.I.O.S. as well as Kapil Arun, it does not justify making the D.I.O.S. as a co-accused, moreso, when the circumstances in which that line has appeared have not been clarified anywhere in the counter-affidavit and whether the Investigating Officer recorded a finding of conspiracy between these persons or he was simply taking down the allegations made by the complainant or his witnesses against the accused persons. This fact cannot be lost sight of, that in spite of this observation the Investigating Officer recorded a finding that no offence was disclosed against the applicant or the co-accused and proceeded to submit a final report in this case. Whether as a matter of fact the applicant and the co-accused were entitled to withdraw the salary on the date concerned, i.e., on 23.8.1999, whether after 60 days the suspension stands automatically revoked in the absence of the D.I.O.S.''s approval in view of Section 16G (7) of the U. P. Intermediate Education Act and whether the administrator''s order dated 20.8.1999 clarifying this legal position was bona fide and authorized are essentially matters which can properly be considered in a civil litigation between the parties and it would be taking too hyper-technical a view of the matter if the withdrawal of the salary by the applicant, which has been approved by the D.I.O.S., can confer sufficient mens rea for constituting an offence of criminal breach of trust against the applicant. Before parting with this case, this Court feels impelled to observe that it is singularly unfortunate, that whilst little attention is paid to the rendering of education or its quality by rival Management Committees, Principals and teachers alike, but all energies are unleashed for control of the institution and virtually life and death battles appear to be fought, by engaging the rival parties in criminal cases or civil litigation without any scruples or remorse.

In view of the facts and circumstances enumerated above, continuation of criminal proceedings against the applicant appear to be gross misuse of the process of the Court and they are quashed.

With the aforesaid obser-vations, the application is allowed.