IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MMO No. 132 of 2011 Reserved on : 5.8.2011 Date of decision: 8.8.2011 Jaspal Singh Nagi …Petitioner. Versus State of H.P. ...Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? For the Petitioner : Mr. V.B. Verma, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. A.G. with Mr. J.S.Rana, Asstt. A.G. ___________________________________________________________ Kuldip Singh, Judge The petitioner has filed petition under Article 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure for quashing FIR No. 244 of 2010 registered on 26.10.2010 at Police Station, Manali, District Kullu, H.P. 2. The pleaded case of the petitioner is that one Nanak Chand had lodged a report that the officials of Punjab and Sindh Bank, Manali have committed cheating and forgery with respect to his account. On this police made investigation and during investigation, it was found that one Kashmir Singh Rana committed _____________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? 2 offence of forgery, cheating and criminal breach of trust with the Bank as well as with the customers of the Bank and a case under Sections 406, 409, 420, 467, 468 and 471 IPC was registered against Kashmir Singh Rana. The police also registered case against the petitioner under Section 120-B IPC on the ground that the petitioner at the time of commission of offence was holding the charge of Bank as Branch manager. 3. On completion of investigation, the police has filed challan in the Court of learned Judicial Magistrate, Manali. The petitioner at the stage of consideration of charge on 22.6.2011 submitted before the learned Magistrate that on the basis of material on record no case under Section 120-B IPC is made out against the petitioner and the petitioner prayed for his discharge. The learned Magistrate disallowed the prayer of the petitioner and fixed the case for evidence of the prosecution on 9.8.2011. The learned Magistrate erred in endorsing the allegations of the prosecution while rejecting the prayer of the petitioner that no case is made out against him. 4. It has been alleged that no case is made out against the petitioner on the basis of allegations made in FIR No. 244 of 2010 dated 26.10.2010 under Section 120-B IPC. The allegations in Section 173 Cr.P.C. report are against Kashmir Singh Rana. The petitioner was Branch Manager, Punjab and Sindh Bank, Manali in the year, 2007. The customers Kamla Bodh and Rita Bodh handed over the passbooks for updating the entries to the second man Bhawan Kumar Gupta then fraud committed by Kashmir Singh Rana came to the notice of Bhawan Kumar Gupta, who informed the 3 petitioner and petitioner vide letter dated 18.3.2010 informed the higher authorities about the fraud committed by Kashmir Singh Rana. 5. The Zonal Manager, Chandigarh vide letter dated 19.3.2010 deputed K.P.Singh, Senior Manager to investigate the details but all these facts have been willfully concealed in the final report by the prosecution. The petitioner has not committed offence punishable under Section 120-B IPC. Kashmir Singh Rana confessed in writing on 20.3.2010 that he committed the fraud and embezzlement. The involvement of the petitioner is not established anywhere. 6. The Zonal office Chandigarh deputed one Bhupender Pal to investigate into the matter who found that Kashmir Singh Rana had started parallel banking from 18.9.2001 and as per his finding only Kashmir Singh Rana is involved in the matter. 7. The petitioner in his capacity as Branch Manager many times ordered in writing that Kashmir Singh Rana would officiate in place of officers proceeded on leave. These authorizations demolish the case of the prosecution. 8. The Zonal Manager, Chandigarh vide letter dated 14.7.2010 addressed to A.D.G.P. State Vigilance and Anti- Corruption Bureau, Shimla reiterated that accused Kashmir Singh Rana had committed forgery and cheating with the bank and requested to register a case against him. In letter dated 14.7.2010 there is no allegation against the petitioner. Kashmir Singh Rana used to fill in pay-in-slips and receive payments, he updated 4 passbooks of customers in his own handwriting but without deposit, tendering cash received from customers in the bank. He used to keep the cash himself. The petitioner in this way was not at all involved. The prosecution has failed to establish prima facie conspiracy in between Kashmir Singh Rana and the petitioner. 9. The petitioner is at the fag end of his career and is going to retire in less than two years. It will be very harsh for the petitioner to face the trial for the offence which he has not committed. The petitioner has ultimately prayed for quashing of FIR No. 244 /2010 dated 26.10.2010. 10. I have heard the learned counsel for the parties. The learned counsel for the petitioner has relied Bhagwan Swarup Lal Bishan Lal vs. The State of Maharashtra AIR 1965 SC 682, State of U.P. vs. Sukhbasi and others AIR 1985 SC 1224, Vijayan alias Rajan vs. State of Kerala AIR 1999 SC 1086, Sukhjinder Singh vs. State (N.C.T.) of Delhi 2001 Cri.L.J. 4764 and Baldev Singh vs. State of Punjab (2009) 6 SCC 564 in support of his submissions. 11. The learned Additional Advocate General has submitted that the documents filed by the petitioner alongwith the petition which are not part of the report under Section 173 Cr.P.C. cannot be considered at this stage. On the basis of the material on record, prima facie case has been made out against the petitioner. The petitioner in the petition has stated that charge has been framed by the trial Court on 22.6.2011 after rejecting the request of the petitioner for discharging him in the case. It has been submitted that 5 the case does not fall in the category where the FIR can be quashed under Section 482 Cr.P.C. 12. In Bhagwan Swarup Lal Bishan Lal (supra), the Supreme Court has held that the essence of conspiracy is that there should be an agreement between persons to do one or other of the acts described in Section 120-A IPC. The said agreement may be proved by direct evidence or may be inferred from acts and conduct of the parties. It can be established by direct evidence or by circumstantial evidence. Section 10 of the Evidence Act introduces the doctrine of agency and if the conditions laid down therein are satisfied, the act done by one is admissible against the co- conspirators. 13. The Supreme Court in State of U.P. vs. Sukhbasi (supra) has held that to substantiate a charge under Section 120-B of the Code, there must be a criminal conspiracy at least between two or more persons. On the facts of that case, the Supreme Court has held that there is not an iota of evidence to establish that the three accused prior to the commission of the offence had conspired together with accused Ashok Kumar and got forged from him the ruqqa in the name of Kirpal Singh Munim to secure an entry into the house of the deceased. There is nothing to show that the accused Ashok Kumar had been associating with the other accused. The Supreme Court ultimately dismissed the appeal against acquittal of Ashok Kumar. 14. The Supreme Court in Vijayan alias Rajan (supra) has held that to bring home the charge of conspiracy within the ambit of 6 Section 120-B IPC, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is no doubt true that it is difficult to establish conspiracy by direct evidence and, therefore, from established facts inference could be drawn but there must be some material from which it would be reasonable to establish a connection between the alleged conspiracy and the act done pursuant to the said conspiracy. 15. In Sukhjinder Singh vs. State (N.C.T.) of Delhi (supra), FIR No. 231/99 under Sections 302, 201, 34 and 120-B IPC was registered. The Investigating Officer produced the appellant alongwith other two co-accused persons in the Court of ACJM, Karnal and requested for police remand, which was granted for five days on 8.5.1999. FIR No. 479/99 was registered in Police Station, New Friends Colony, New Delhi, but the charge sheet had not been filed in 90 days. A petition was filed under Section 167 (2) of the Cr.P.C. in the Court of ACJM, Karnal, for releasing on bail, which was allowed on 6.8.1999. On 7.8.1999, instead of releasing the appellant and other co-accused from Karnal Jail, they were handed over to Delhi Police. The appellant was produced before the learned Magistrate, New Delhi. He was remanded along with other two co- accused to judicial custody in Tihar Jail. A petition filed for grant of bail under Section 167 (2) Cr.P.C. by appellant which was rejected by the learned Magistrate, New Delhi on 1.9.1999. Further, the bail application filed by the appellant in the Court of Additional Sessions Judge, New Delhi, under Section 167(2) Cr.P.C. was also rejected. The High Court also dismissed the Criminal Misc.(Main) No. 3296/99 7 and ultimately the matter reached Supreme Court. On facts of that case, the Supreme Court held that criminal case instituted in the Court of ACJM, Karnal should not continue since the case relating to the same incident is pending at Sessions Court at Delhi and the same will continue in accordance with law. The Supreme Court directed the learned ACJM, Karnal to pass order dropping the criminal case arising from the FIR No. 231/99 under Sections 302, 201, 34 and 120-B IPC. 16. In Baldev Singh (supra) the Supreme Court has held that ingredients of criminal conspiracy are (i) an agreement between two or more persons (ii) the agreement must relate to doing or causing to be done either (a) an illegal act; (b) an act which is not illegal in itself but is done by illegal means. The conspiracy ordinarily is hatched in secrecy. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not may take into consideration the circumstantial evidence. It must be borne in mind that meeting of the mind is essential; mere knowledge or discussion would not be sufficient. 17. The aforesaid judgments relied by the learned counsel for the petitioner are not applicable in the facts of the present case inasmuch as all aforesaid judgments are on the merits of the case except Sukhjinder Singh vs. State (NCT) of Delhi in which case the Supreme Court directed the ACJM, Karnal to pass dropping of the case in view of pendency of the case at Delhi. In none of the cases question of quashing of FIR was involved. 8 18. The petitioner in the petition has stated that the charge has been framed by the learned Magistrate on 22.6.2011 after rejecting the request of the petitioner to discharge him. It has also been stated that the case has been fixed for prosecution evidence on 9.8.2011. The order of framing the charge has not been challenged by the petitioner in the petition, therefore, it cannot be said that prima facie there is no material on record against the petitioner for commission of offence under Section 120-B IPC. The petitioner in the petition has prayed for quashing of FIR No. 244 of 2010. No prayer has been made in the petition for quashing case No. 123-I/2011 titled as State vs. Kashmir Singh Rana and others pending before the learned Judicial Magistrate 1st Class, Manali which has arisen pursuant to FIR No. 244 of 2010. The charge has been framed against the petitioner in case No. 123-I/2011, therefore, FIR No. 244/2010 cannot be quashed. There is no merit in the petition. 19. In view of the above discussion, the petition deserves dismissal and is accordingly dismissed. All the pending applications are also disposed of. August 8, 2011 . ( Kuldip Singh ), (GR) Judge.