Crl. Misc. No.M-11071 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No.M-11071 of 2011 Date of Decision: 18.04.2011 Surender Kumar Sarwan ....Petitioner Versus State of Haryana & another ...Respondents CORAM : Hon'ble Ms. Justice Nirmaljit Kaur Present:- Mr. Gurinder Pal Singh, Advocate for the petitioner. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ** NIRMALJIT KAUR, J. (ORAL) This is a petition under Section 482 Cr.P.C for quashing of FIR No.187 dated 09.12.2009 under Section 409 IPC registered at Police Station Alewa, District Jind and all consequential proceedings arising therefrom. It is contended that a bare perusal of Annexures P-1 and P-2 make it amply clear that the petitioner has not intentionally done anything wrong. It is further contended that immediately after the auction, the petitioner reported the facts to the Additional Chief Judicial Magistrate (Senior Division) specifying that he has received an amount of ` 1,40,000/- out of the total bid amount of ` 5,60,000/- and by deducting ` 56,000/- as recovery charges, he has deposited the remaining amount in the bank. It is also contended that the said deduction, if at all, can be termed as negligence and under no circumstances, it can be called a case of embezzlement of money. Moreover, he had not only deposited an Crl. Misc. No.M-11071 of 2011 2 amount of ` 84,000/- in the treasury but also further deposited an amount of ` 1,40,000/- in the Court on that very day when he was asked to appear in spite of the fact that he had already deposited an amount of ` 84,000/- in the treasury. Heard. The specific allegations in the FIR are that the petitioner had imposed a recovery of 1/4th of the bid amount illegally, whereas, Ratti Ram was exempted from depositing 1/4th of the bid amount. Further, the said 1/4th bid amount was calculated at the rate of ` 1,40,000/-. Out of this ` 1,40,000/-, the petitioner had deposited ` 84,000/- in the treasury. However, he retained ` 56,000/- in his pocket. The fact that ` 56,000/- were retained by the petitioner are not disputed. Thus, the argument that the said amount of ` 56,000/- were subsequently deposited on the asking of the Court and, therefore, it is not a case of embezzlement, cannot be sustained in the facts of the present case. The said amount was knowingly retained by the petitioner on 25.10.2008, whereas he knew that the same do not relate to him. The said amount was deposited by him only when the Court directed him to do so i.e on 26.11.2009. Hon'ble the Apex Court in the case of Central Bureau of Investigation vs. A. Ravishankar Prasad & others reported as 2009(3) RCR (Criminal) 466, while dealing with Section 420 of the IPC and Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, held that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceedings. In the said case, the accused had defrauded the bank to the tune of crores of rupees in connivance with senior officers and after fabricating documents. Criminal case under Prevention of Corruption Act and under Section 420, 467 and 471 IPC was registered against the accused. Charge sheet was submitted by the police. A settlement was arrived at between the accused and the Bank. Accused Crl. Misc. No.M-11071 of 2011 3 paid all the dues. Proceedings were quashed by the High Court in view of the settlement. However, the order of the High Court was set aside by the Hon'ble Supreme Court by holding as under :- “43. In our considered view it was extremely unfortunate that the High Court in the impugned judgment has erroneously invoked inherent power of the court under section 482 of the Code of Criminal Procedure. The High Court ought to have considered the entire material available to establish a case against the respondents under section 120-B read with section 420 IPC. It is significant that the respondents and the other bank officials share the charges under section 120-B read with section 420 IPC. Quashing the charges against the respondents would also have very serious repercussions on the pending cases against the other bank officials. 44 & 45. xxx xxx xxx 46. Before parting with the case we would like to observe that mere re-payment of loan under a settlement cannot exempt the accused from the criminal proceeding in the facts of this case.” Hon'ble the Supreme Court, in the case of State of Madhya Pradesh (supra) set aside the order of the High Court, vide which, the FIR was quashed on the ground that the Bank had not suffered any loss as the borrowers had returned the money with interest. Para 38 of the same reads as under :- “38. Mr. Tankha's submissions, which were echoed by Mr. Jain, that the M.P. Co-operative Societies Act, 1960 was a complete Code in itself and the remedy of the prosecuting agency lay not under the criminal process but within the ambit of Sections 74 to 76 thereof, cannot also be accepted, in view of the fact that there is no bar under the M.P. Co-operative Societies Act, 1960, to take resort to the provisions of the general criminal law, Crl. Misc. No.M-11071 of 2011 4 particularly when charges under the Prevention of Corruption Act, 1988, are involved.” The said money was knowingly kept by the petitioner for all these months knowing well that the said money did not belong to him. He returned the same only after he was directed to do so. Thus, it cannot be said that no offence under Section 409 IPC is made out. Hon’ble the Supreme Court in the case of State of M.P. vs. Awadh Kishore Gupta and others reported as (2004)1 SCC 691 while relying on the judgment of R.P. Kapur vs. State of Punjab reported as AIR 1960 SC 866, observed the category of cases, in which, the inherent power should be exercised to quash the proceedings. Para 9 of the same reads as under :- “ 9. In R.P. Kapur v. State of Punjab this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. Thus, needless to say, that none of the three grounds are available in the facts of the present case. Even as per the judgment rendered in the case of State of Haryana vs. Bhajan Lal reported as 1992 Supp(1) SCC 335, a note of caution was added that the power should be exercised sparingly and that Crl. Misc. No.M-11071 of 2011 5 too in the rarest of rare cases and inherent powers should not be exercised to stifle a legitimate prosecution. Applying the test and the legal position as laid down in the cases of State of M.P. (supra), as well as, State of Haryana (supra), the case, in hand, does not fall in any of the exceptions, as well as the expression “rarest of rare cases” wherein the FIR can be quashed while exercising power under Section 482 Cr.P.C. Thus, depositing the amount after the Court directed him to do so, will not absolve the petitioner of the offence. The other argument of the learned counsel that the petitioner had informed the Court immediately that he had retained the amount is also not borne out from the facts of the present case, in as much as, a perusal of Annexure P-2 shows that all that was submitted in the said communication was as under :- “ 1/4th amount of ` 1,40,000/- was received at the spot and after imposing 10% recovery charges, the remaining amount of ` 84,000/- has been deposited in the bank.” A perusal of the same, in no way, expresses that the said amount of ` 56,000/- was being retained by the petitioner in his own pocket. In fact, it shows that the petitioner had rather concealed the fact that he had kept ` 56,000/- with himself. The fact that as to whether the same was intentionally retained by the petitioner or it was on account of negligence can be determined only on the basis of evidence to be produced during trial. Dismissed accordingly. (NIRMALJIT KAUR) 18.04.2011 JUDGE gurpreet