Crl. Misc. No. M-9231 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M- 9231 of 2009 Date of decision. 22.04.2010 Sandeep Sharma s/o Tirlok Sharma, Cashier OBC, Bank Munana now posted at OBC Bank Rani Talab, Jind. ....... Petitioner Versus 1.State of Haryana 2.Dharamvir s/o Banwari Lal r/o village Shamlo Kalan, Manager, OBC Bank Muana 3.Subash s/o Gyani r/o village Muwana, Tehsil Safidon, District Jind 4.Ranjit s/o Jagdish r/o village Muwana, Tehsil Safidon District Jind 5. Amar Singh r/o village Muwana, Tehsil Safidon, District Jind 6. Nasrudin s/o Maman @ Mam Raj r/o village Muwana, Tehsil Safidon, District Jind. 7. Bhagta s/o Gyani Ram r/o village Muwana, Tehsil Safidon, District Jind. 8. Leela Ram s/o Ram Diya r/o village Singhana, Tehsil Safidon, District Jind. 9. Mam Raj s/o Bani Singh r/o village Muwana, Tehsil Safidon, District Jind. 10.Oma s/o Puran r/o village Muwana, Tehsil Safidon, District Jind. ........ Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Vikram Singh, Advocate for the petitioner. Mr. Sandeep Mann, Sr. DAG, Haryana for respondent no.1 -State. Mr. R.L. Lohan, Advocate for respondent no.2. Mr. John Kumar, Advocate for respondent nos. 3 to 10. Crl. Misc. No. M-9231 of 2009 2 -- Sham Sunder, J. This petition under Section 482 of the Code of Criminal Procedure, for quashing the First Information Report No.400 dated 27.11.2008, under Sections 409, 420, 467, 468, and 471 of the Indian Penal Code, Police Station Safidon, District Jind,(Annexure P-1), and all the subsequent proceedings, arising therefrom, on the basis of compromise (Annexure P-2), has been filed by the petitioner . 2. Sandeep Sharma, petitioner, was posted as Clerk in Oriental Bank of Commerce, Ram Talab, Jind Branch. During his posting Nasarudeen son of Sh. Maman, a customer of the Bank had deposited a sum of Rs.5,000/- in SB A/c No. 2286/033320/0002700 on 3.3.2008, which was entered in his pass-book. The accused had not accounted for the said amount in the books of the Bank on 3.3.2008 and mis-appropriated the same. Lateron he deposited a sum of Rs.5100/- in SB Account of Nasarudeen on 14.08.2008 from Safidon Branch of the Bank. Sunil Kumar son of Amar Singh deposited a sum of Rs.1000/- in SB A/c No. 3332151002396 prior to 4.8.2008 and entry in the pass-book was made by the petitioner. Crl. Misc. No. M-9231 of 2009 3 However, lateon, it was credited in the account and in the books of the Bank on 4.8.2008 by over writing/cutting of the date in the pass book. Oma son of Puran deposited a sum of Rs.15,500/- in his SB A/c No. 3332010006020 on 3.1.2008 and entry thereof was made in the pass book by the petitioner. This amount was not accounted for by him, in the books of account of the Bank and he mis- appropriated the said amount. Lateron on 6.1.2008, the account holder came to withdraw a sum of Rs.15,000/- from his bank account. The accused paid him the amount, aforesaid, from his own pocket. Lila Ram son of Ram Diya deposited a sum of Rs.22500/- in his SB A/c No.033320100088 on 5.5.2008 as was evident from the pass-book . However, the accused had not deposited the amount, aforesaid, in his account on 5.5.2008 and mis- appropriated the same. Bhagta son of Giani deposited a sum of Rs.15,000/- in his SB A/c No.033320100076610 on 6.5.2008 as was evident from the entry made, by the accused , in the pass-book. The accused had not credited the said amount, on the same day, in the books of the bank and mis-appropriated the same. The accused lateron deposited a sum of Rs.15000/- on 1.7.2008 in SB account of Bhagta. Similarly Mam Raj son of Bank Singh Crl. Misc. No. M-9231 of 2009 4 deposited a sum of Rs.76000/- in his SB A/c No.03332151000293 on 23.4.2008 but the petitioner did not account for the same in the books of account. The depositor came lateron to withdraw a sum of Rs.20,000/- from the said account on 16.5.2008 and Rs.56,000/- on 7.7.2008. The accused made the payment, to him, from his own pocket, making an entry to this effect in the passbook. Ranjit Singh son of Jagdish deposited a sum of Rs.2,00,000/- in SB A/c No. 0333201008210 of Barkha Rani and Ranjit Singh, on 22.1.2008, as was evident from the entry made by the accused, in the passbook. The accused had not accounted for the said amount in the books of the Bank and had mis-appropriated the same. Similarly the amounts, deposited by the other depositors, were not credited by the accused-petitioner in their accounts. In this manner, the accused-petitioner cheated the Bank and customers as also forged the record and committed mis- appropriation of the amount, aforesaid. 3. I have heard the Counsel for the parties, and have gone through the documents on record, carefully. 4. The Counsel for the petitioner has submitted that a compromise has been arrived at with all the depositors, who allegedly deposited the amount. He has further Crl. Misc. No. M-9231 of 2009 5 submitted that now there is no dispute between the petitioners and the depositors. He has further submitted that if the compromise, (Annexure P-2) is accepted, it would prevent the abuse of process of Court; and create better relations, between the petitioner and the depositors. 5. On the other hand, the Counsel for respondent no.1, State of Haryana and respondent no.2, complainant, have submitted that no compromise has been arrived at between the petitioner and the complainant. They have further submitted that it was the Bank, respondent no.2, who was the complainant, and since no compromise has been arrived, at with it, the proceedings cannot be quashed. They have further submitted that if, in such like cases, the FIR and the subsequent proceedings, are quashed, then there will be complete lawlessness in the society. 6. After giving my thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in my considered opinion, it is not a fit case, in which the FIR and the subsequent proceedings, should be quashed. It is trite that jurisdiction, under Section 482 Cr.P.C., which saves the inherent power of the High Court, to make such orders, as may be necessary to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice, has Crl. Misc. No. M-9231 of 2009 6 to be exercised sparingly, and with circumspection. In exercising that jurisdiction, the High Court would not embark upon an enquiry, whether the allegations, in the complaint, are likely to be established by the evidence or not. That is the function of the trial Magistrate, when the evidence comes before him. Though, it is neither possible, nor advisable to lay down any inflexible rules, to regulate such jurisdiction, one thing, however, appears clear that it is that when the High Court is called upon to exercise this jurisdiction, to quash a proceeding, at the stage of the Magistrate, taking cognizance of an offence, it is guided by the allegations, whether those allegations, set out in the complaint, or charge-sheet, do not, in law constitute, or spell out any offence, and that resort to criminal proceedings, would, in the circumstances, amount to an abuse of the process of the Court, or not. Even in State of Haryana and others Vs. Ch. Bhajan Lal and others AIR 1992 Supreme Court 604(1), it was held that in following categories of cases, the High Court, in exercise of its powers, under Article 226 or under Section 482 of the Code of Criminal Procedure, may interfere in the proceedings, relating to cognizable offences, to prevent the abuse of the process of any Court, or otherwise, to secure the ends of Crl. Misc. No. M-9231 of 2009 7 justice. However, this power should be exercised sparingly, and that too, in the rarest of rare cases: 1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence, or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code. 3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. 4) Where the allegations in the FIR do not constitute a cognizable offence, but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Crl. Misc. No. M-9231 of 2009 8 Magistrate as contemplated under Section 155(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, and with a view to spite him due to private and personal grudge. Where allegations in the complaint did constitute a cognizable offence justifying registration of a Crl. Misc. No. M-9231 of 2009 9 case and investigation thereon and did not fall in any of the categories of cases, enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified. 7. The inherent powers with which the Criminal Courts are clothed are to make such orders, as may be necessary for the ends of justice. Though the power is unrestricted and undefined, it should not be used capriciously or arbitrarily, but should be exercised, in appropriate cases, to do real and substantial justice, for which alone the Courts exist. Now adverting to the facts of the instant case, let us see, as to whether, the petitioner deserves the indulgence of the Court or not. There are serious allegations, against the accused-petitioner, that when he was working as a Clerk in the Bank, a number of depositors deposited the amount, in their accounts, but instead of showing the same in the books of account, he mis- appropriated the same and lateron allegedly paid the same to the depositors, when they came to withdraw the same from his own pocket and forged the record. The mere fact that he allegedly paid the amount lateron to the depositors, did not absolve him of the criminal liability. He shattered the faith Crl. Misc. No. M-9231 of 2009 10 of the Bank, being an employee thereof. He not only cheated the Bank, but also mis-appropriated the amount, deposited by the depositors from time to time, for a sufficient period. He also forged and fabricated the records thereof. The provisions of Section 482 of the Cr.P.C. cannot be invoked for quashing the FIR relating to such serious offences. If, in such like cases, the FIR and the subsequent proceedings, are quashed, then there will be complete lawlessness in the society. Even otherwise, the offences under Sections 409, 467, 468 and 471 of the Indian Penal Code ,allegedly committed by the accused-petitioner, is against the public policy and society. In the present case, the offences, punishable under Sections 409, 467, 468 and 471,are non- compoundable, as per the provisions of Section 320 Cr.P.C. In Surendra Nath Mohanty and another Vs. State of Maharashtra 1999(2) RCR (Criminal) 683 (S.C.), a three Judge Bench of the Apex Court, held that the High Court cannot order the composition of offences, which are non- compoundable, as per Section 320 Cr.P.C., in exercise of its inherent powers, under Section 482 Cr.P.C. In the case of Inspector of Police Vs. B. Raja Gopal and Others (2002)9 SCC, 533, the Apex Court, while setting aside the High Court order of quashing the criminal proceedings, held that Crl. Misc. No. M-9231 of 2009 11 merely because the parties had compromised the case, and the payment was made, in proceedings, charged under Sections 420, 468 and 471 of the Indian Penal Code, the premature quashing, made by the High Court, was not in accordance with law. While defining the powers of the High Court, under Section 482 Cr.P.C., the Apex Court summed up, its conclusions, in case, State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and others 2003(2) RCR (Criminal) 860 (SC), in para Nos.28 and 29, which read as follows : "28. Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate Tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a Crl. Misc. No. M-9231 of 2009 12 discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms propose to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate Courts and Tribunals within the bounds of their authority and not to correct mere errors. Further where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal is disguise." 29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Crl. Misc. No. M-9231 of 2009 13 Procedure Code. However, as is set out in Satya Narayanan Sharma's case (supra) this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the Court or where interference is absolutely necessary for securing the ends of the justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out herein above fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised Crl. Misc. No. M-9231 of 2009 14 against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment." 8. In view of the enunciation of the principle of law, made, in the aforesaid cases, the power under Section 482 Cr.P.C., cannot be exercised, in this case, as there is a specific bar, created by Section 320 Cr.P.C. for composition of the offences punishable under Section 409, 467, 468 and 471 IPC. If the power, under Section 482 Cr.P.C., is exercised, in such like cases, then the crime will increase manifold, and the criminals will feel encouraged. Under these circumstances, no ground, whatsoever, is made out, for exercising the power, under Section 482 Cr.P.C., for quashing the FIR, and the subsequent proceedings. 9. For the reasons recorded above, Criminal Miscellaneous No.M- 9231 of 2009, for quashing the First Information Report No.400 dated 27.11.2008, under Sections 409, 420, 467, 468, and 471 of the Indian Penal Code, Police Station Safidon, District Jind, and the subsequent proceedings, arising therefrom, is dismissed. Any observation, made in this order, shall not be taken, as an expression of mind on merits of the case. Crl. Misc. No. M-9231 of 2009 15 10. The Registry is directed to comply with the order immediately. April 22, 2010 ( Sham Sunder ) dinesh Judge