Sultan Mahmood vs State Of Jammu & Kashmir

CRMC 543/2017, IA No. 01/2017

Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioner seeks quashment of FIR No. 167/2017 dated 10.09.2017 registered with Police Station, Mendhar against the petitioner for commission of offences under Section 409 and 109 RPC as also seeks quashment of proceedings/investigation being conducted against him.

The petitioner has challenged the impugned FIR No. 167/2017 on the grounds that petitioner being under-matric and being in dire need of employment, came to be appointed as Chowkidar on consolidated basis in the office of J&K State Board of School Education Branch Office, Mendhar vide order dated 30.07.2011 for 89 days. It is stated that petitioner in compliance of the aforesaid order started performing his duties with utmost dedication. The J&K Board of School Education, Jammu vide different orders issued from time to time extended the period of employment of the petitioner and since August, 2011 until 06.09.2017, the petitioner has served the respondents regularly and without any interruption and break. It is further stated that job assigned to the petitioner was that of Chowkidar only and he was responsible for watch and ward duty only and except this job of Chowkidar no other work was assigned to the petitioner.

Learned counsel for the petitioner states that a case of embezzlement/misappropriation of receipts/funds of J&K Board of School Education Branch office, Mendhar by the officials of the Board, Branch office, Mendhar was surfaced. It is stated that the permanent officials at the helm of affairs at J&K BOSE Branch Office, Mendhar in order to shield themselves got the petitioner involved in the case of embezzlement/misappropriation of funds/receipts of the Board notwithstanding the fact that he does not have any role of any sort in the entire transaction as he was merely a Chowkidar and performing his duties of Chowkidar only and not beyond that. It is further stated that Joint Secretary, Administration/legal (JD) of J&K Board of School Education, Jammu filed a written complaint with the Police Station, Mendhar alleging that embezzlement / misappropriation of money worth lacs of rupees has been done by the petitioner and further that petitioner is alleged to have deposited Rs.10,39,615/- in the A/C No. 17132 of the J&K BOSE maintained with J&K Bank Ltd. Branch Mendhar on 30.08.2017. Police registered FIR No.167/2017 for commission of offences under Section 409 and 109 RPC against the petitioner. It is stated that petitioner is nowhere connected with the offence and he has been illegally involved in the offence.

Status report has been filed by learned counsel for the respondent. In the said status report it is stated that on 10.09.2017, Sh. Ajay Singh Jasrotia, Assistant Legal, Board of School Education, Rehari Colony, Jammu appeared at Police Station, Mendhar and submitted a complaint stating therein that in the Board Branch Office, Mendhar embezzlement/misappropriation worth Lakhs of rupees has been done by Mr. Sultan Mohammad, Ex-Chowkidar and he has also deposited an amount of Rs.10,39,615/- in the A/C 0017132 operated on 30.08.2017 on account of various tab of the Board. It is further averred in the status report that BOSE, authority has also constituted a separate committee to unearth the other culprits involved for embezzlement/ misappropriation of Board revenue. Further, that during the course of investigation statement of complainant was recorded under Section 161 Cr.P.C and all the records pertaining to the case has already been seized by the inquiry team constituted by J&K Board of School Education, Rehari Colony, Jammu, which is urgently required for investigation purpose.

Investigating Officer of the case was called along with CD File. He has produced the CD File in FIR No.167/2017 dated 10.09.2017.

From the perusal of the CD File, it reveals that Mr.Ajay Singh Jasrotia, Assistant Legal, Board of School Education, Jammu lodged a written complaint against the petitioner regarding embezzlement/ misappropriation of money worth lacs of rupees, alleging that petitioner deposited Rs.10,39,615/- in account No.0017132 on 30.08.2017; that the remaining amount which has been ascertained yet has been used by the petitioner with the result of great loss of exchequer of J&K Board; that the said amount in the shape of fake vouchers of deposition of fees of various kinds were issued by the same stands not credited into concerned account of the Chairman, Board. Accordingly, police registered an FIR against the petitioner.

Investigating Officer, who was present in the Court, has stated at Bar that petitioner is not cooperating with the investigation and his presence is required for further investigation as huge amount has been embezzled/misappropriated by him.

On 11.08.2017, petitioner wrote a letter to Secretary, J&K Board of School Education, Jammu seeking permission to deposit examination fee for an amount of Rs.10,00,000/- in the concerned bank and in the said application he has stated that he could not deposit Rs.10,00,000/- on due date due to some domestic problem as his wife had been shifted and referred to Apolo Hospital for surgery. In the said letter it has also been stated by the petitioner that there was disturbance due to shelling from POK side and he also remained busy with the treatment of his wife.

A perusal of the aforesaid letter dated 11.08.2017, clearly shows that petitioner was entrusted with the money out of which he has deposited only 10,00,000/- and as per the statement of the Investigating Officer more than rupees 20 lacs has been embezzled by the petitioner.

I have considered the rival contentions. Admittedly, petitioner is involved in embezzlement of huge amount; as he himself has deposited more than Rs.10 lakh; rest of amount which he has collected has been misappropriated for his personal use. Had he been innocent he would have not deposited Rs.10 Lakh. The argument of counsel for petitioner that he has deposited the money on the instruction of Higher officer, is not tenable, because in letter of deposit he has not mentioned so; but has taken stand that his wife was ill; so petitioner has not come before this court with clean hand; he is concealing material facts, which can only be revealed during custodial interrogation.

In terms of section 561-A Cr.P.C., Complaint/ FIR can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expressions 'ends of justice' and 'to prevent abuse of process of any court' are intended to work out either when an innocent person is unjustifiably subjected to an undeserving prosecution or if an ex facie all merited prosecution is throttled at the threshold without allowing the material in support of it. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice.

FIR in question clearly shows cognizable and serious case of embezzlement of huge amount for which detail investigation is required. It is not case of petitioners that there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act for lodging of the FIR.

In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated.

BA No. 170/2017

Through the instant application filed under Section 497-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioner seeks bail in anticipation of arrest in FIR No.167 dated 10.09.2017 registered with Police Station, Mendhar for commission of offence under Section 409 and 109 RPC.

It is stated that petitioner has been made scapegoat in the entire episode inasmuch, as he was serving as Chowkidar only and was not at all concerned or connected with receipt of money by the Branch office in J&K BOSE at Mendhar. It is further stated that the only role of the petitioner in the entire transaction is that on 30.08.2017, the officials of the J&K BOSE Branch Office, Mendhar handed over him Rs.10,39.615/- for deposit in the J&K Bank Ltd. branch office, Mendhar, and the said amount was deposited by the petitioner with the concerned J&K Bank Ltd. Branch Mendhar. Further that impugned FIR No.167 of 2017 registered against the petitioner is illegal, as the petitioner was serving as Chowkidar and was in no way connected with the affairs and working of the Branch office, Mendhar.

It is stated that petitioner on the direction of his superiors had gone to the J&K Bank to deposit the amount of money handed over to him by the officials and that in the entire transaction, the officials of the Board posted in Branch Mendhar were involved, but they in order to save their skin and shield themselves made the petitioner as a scapegoat. It is further stated that petitioner does not have any authority or power to deal with the office affairs of the Board much less the case transaction and the impugned FIR No.167 of 2017 is being used as a tool to harass and victimize the petitioner notwithstanding the fact that he is not at all involved in the commission of crime as alleged in the FIR.

I have considered the rival contentions of the learned counsel for the parties.

Facts, relevant for disposal of the present bail application, briefly stated are that Joint Secretary, Administration/legal (JD) of J&K Board of School Education, Jammu filed a written complaint with the Police Station, Mendhar alleging that embezzlement / misappropriation of money worth lacs of rupees has been done by the petitioner and further that petitioner is alleged to have deposited Rs.10,39,615/- in the A/C No. 17132 of the J&K BOSE maintained with J&K Bank Ltd. Branch Mendhar on 30.08.2017. Police registered FIR No. 167/2017 for commission of offences under Section 409 and 109 RPC against the petitioner. It is stated that petitioner is nowhere connected with the offence and he has been illegally involved in the offence.

The petitioner has been found involved in the embezzlement/misappropriation of huge amount of the J&K Board of School Education. As per the Investigation Officer, who was present in the Court at the time of hearing, has stated at the bar that petitioner has never attended the investigation as per the direction passed by this Court on 03.11.2017 and investigation has still not been completed due to non-cooperation of the petitioner. Custodial interrogation of the petitioner is required, because he has been found involved in the case of embezzlement/misappropriation of funds/receipts of the J&K Board of School Education Branch office, Mendhar.

Therefore, I do not find any ground for granting bail. Accordingly, bail application is also dismissed.