Crl. Misc. No. M-13690 of 2010 (O&M) [ 1 ] IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Misc. No. M-13690 of 2010 (O&M) Date of Decision: February 15,2011 Puran Chand .................................................................. Petitioner Versus State of Haryana ........................................................... Respondent Coram: Hon'ble Ms. Justice Ritu Bahri 1. To be referred to the Reporters or not? 2. Whether the judgment should be reported in the Digest? Present: Mr. R.A.Sheoran, Advocate for the petitioner. Mr. P.S.Virk, DAG, Haryana, for the respondent. ... RITU BAHRI, J. This petition under Section 482 of the Code of Criminal Procedure is for quashing the FIR No. 124 dated 23.7.2007 under Sections 420, 467, 468, 471 IPC registered at Police Station Tosham, District Bhiwani, (Annexure P-4) and charge sheet dated 11.7.2008 (Annexure P-5) and the order passed in revision by the Additional Sessions Judge-III, Bhiwani dated 27.10.2009 (Annexure P-6). Brief facts of the case are that in the year 1998, Irrigation Department Haryana invited tenders for the area of Siwani for construction of canal etc. The petitioner applied for three tenders and got prepared three Crl. Misc. No. M-13690 of 2010 (O&M) [ 2 ] Deposit At Calls (DACs) No. 54/1998, 61/1998 and 62/1998 from Syndicate Bank, Bhiwani, out of his current account No. 172 on 15.10.1998. DAC No. 61/98 was for the amount of `1,60,000/-, 62/98 was for the amount of `3,00,000/- and the DAC No. 54/1998 was for the amount of `1,10,000/-. At the time of making the application, the petitioner attached one DAC No. 54/98 amounting to `1,10,000/-. The other two tenders were without DAC and DACs No. 61/98 and 62/98 were deposited in the bank account of the petitioner. At the time of verification of the tenders, it transpired that two DACs No. 895 and 897 dated 15.10.1998 amounting to `3,00,000/- and `1,60,000/- issued by Bhiwani Central Co-operative Bank, Tosham, were found to be attached with the tenders of the petitioner. These DACs were found fake and the petitioner's tenders were not considered for allotment of work. The petitioner was not allotted work in relation to his third tender in which proper DAC was attached. An inquiry was conducted by the DSP, Bhiwani, and it was found that the S.D.O. Vigilance, Sub Division, Bhiwani, had sent the inquiry report vide letter dated 25.8.2003 to the Executive Engineer Vigilance Division, Hisar, stating that no case has been made out against the petitioner. When the inquiry was conducted by the DSP, Bhiwani, the petitioner joined the inquiry and his statement was recorded in which he specifically stated that three DACs No. 54/98, 61/98 and 62/98 were prepared from Syndicate Bank, Bhiwani, out of his current account No.172 on 15.10.1998. He attached only one DAC No. 54/98 with the tender. Somebody with mischievous intention attached forged DACs with the other two tenders submitted by the petitioner to cause damage to him. Once the petitioner had prepared genuine DACs No.61/98 and 62/98, there was no occasion to attach a fake DAC, that too from the Bhiwani Crl. Misc. No. M-13690 of 2010 (O&M) [ 3 ] Central Cooperative Bank, Tosham, in which he has no account. Finding no proof against the petitioner, a report was submitted by the DSP Bhiwani. From the inquiry report of the DSP it is proved that false DACs were not got prepared by Puran Chand, Contractor. Subsequently, the Inspector General of Police, Hisar Range, Hisar, wrote a letter dated 13.7.2007 to Superintendent of Police, Bhiwani, directing him to investigate the matter because false DACs were issued from Bhiwani Central Cooperative Bank , Tosham in the name of Puran Chand. The present FIR No.124 dated 23.7.2007 under Sections 420, 467, 468, 471 IPC was registered at Police Station Tosham, District Bhiwani. The trial Court framed the charges against the petitioner on 11.7.2008. The revision against this order has been dismissed vide order dated 27.10.2009 by the Additional Sessions Judge-III, Bhiwani. The contents of the FIR are detailed below:- “With reference to your office Diary No. 1411/Special dated 12.5.2007 and 2563 dated 21.5.2006 in connection with forged DAC under reference, it is submitted that it is allegation on Puran Chand Contractor that he has attached DAC No. 895 and 897 dated 15.10.1998 amounting to `3,00,000/- and `1,60,000/- respectively issued by Bhiwani Central Co- operative Bank Ltd. Tosham along with tenders for construction of canal in Siwani area, regarding which, on asking of the report by the Executive Engineer, Siwani Water Services Division, Bhiwani vide his letter No. 4722/2WS dated 17.11.1998, the concerned bank reported vide letter dated 826- BO Tosham dated 17.11.98 that the above said DAC is not concerned with their bank. Letter dated 4722/2WS dated Crl. Misc. No. M-13690 of 2010 (O&M) [ 4 ] 17.11.98 & 826 BO Tosham dated 17.11.98 is attached. The Executive Engineer vide his letter dated 290/2WS dated 21.1.99 has written to Puran Chand to clarify his position. In reply to which, Puran Chand has statd on 31.1.99 that he has not attached any DAC along with tenders. He has got prepared DAC No. 357923 and DAC No. 357926 dated 16.10.99 from Syndicate Bank amount to `1,60,000/- & `3,00,000/- respectively, both letters are attached. In this connection, during the course of correspondence, on 25.8.2003, the Executive Engineer has written to Executive Engineer, Vigilance Division, Hisar for not coming any complaint into notice against Puran Chand and written for sympathetic consideration, which is attached. In this connection, the S.D.O. Vigilance, Sub Division, Bhiwani, has also sent the enquiry report vide letter No. 190/1-W dated 29.8.03 to the Executive Engineer Vigilance Division, Hisar in which no fault has been found on the part of Puran Chand Contractor, the photocopy of letter is attached. In this connection, Puran Chand was joined in the enquiry and got recorded his statement, who has stated in his statement that for getting the tender, he has got prepared three separate DAC No. 54/98, 61/98 and 62/98 from Syndicate Bank, Bhiwani out of his Current Account No.172. He has attached DAC No. 54/98 amounting to `1,10,000/- with one tender and due to change in mind, he has not attached any DAC with two tender forms. He has got deposited both the DACs in his account and for not getting the third tender in his Crl. Misc. No. M-13690 of 2010 (O&M) [ 5 ] name, that DAC was also got deposited in the account. He has certainly put the forms in the box. He has got prepared three DACs amounting to `3,00,000/-, 1,60,000/- and `1,10,000/-. If he was interested to get the tender, then he would have attached the DAC which has got prepared and there was no necessity to attach the forged DAC. The DACs which are forged, have been prepared from the Central Cooperative Bank, Tosham. He has no account in this bank. These forged DACs have been put in the box in his name for harassing him without any reason. In this connection, SDO, Vigilance has already enquired the matter. During the enquiry, Shri Anil Prem, Assistant, Siwani Water Services Division has stated in his statement that in the year 1998, Shri Jitender Gupta, resident of Bhiwani was Accounts Clerk who has retired 6/7 years ago from the department and he has expired about 3 years ago. In the year 1998, tenders were invited. At the time of opening of tenders, two DACs in the name of Puran Chand were found forged. Dropping of such DAC, can also be a miscreant by someone. If at any time, the officer is not available, then any other person can drop the paper to implicate any person. In this connection, vide letter No. 243- R/DSP Hq. Bhiwani dated 9.6.2007, a correspondence was made to Executive Engineer, who vide letter dated 3317/DAC dated 6.6.2007 replied that at the time of filling in the tender forms, either the contractor gives the DAC to the concerned official or attaches the DAC along with the form. 2. DAC Crl. Misc. No. M-13690 of 2010 (O&M) [ 6 ] numbers are not generally written on the tender form by the contractor; 3. DAC is returned back when it is signed by the concerned officer. 4. If the tender does not open in favour of any person, then the DAC is also returned after the signature. 5. If the tender is opened in the name of any person, then the DAC is also returned according to the provisions of contract. During the enquiry, the DACs No. 61/98 amounting to `1,60,000/-, 62/98 amounting to `3,00,000/- and DAC No. 54/98 amounting to `1,10,000/- of Syndicate Bank, Bhiwani, were verified vide letter No. 254-R/DSP Hq.Bhiwani dated 7.6.07 which were found correct and after release, it was also verified about the depositing the same in the account of Puran Chand, the letter is attached. During the enquiry, it was found that Puran Chand Contractor has got prepared DAC No. 61/98 amounting to `1,60,000/-, 62/98 amounting to `3,00,000/- and DAC No. 54/98 amounting to `1,10,000/- in the name of Executive Engineer Water Services Bhiwani and in this connection, after correspondent with the Executive Engineer, it has been stated that when any DAC is released, then it is released after the signature of the concerned officer, if the tender is opened in the name of any person or not. It is clear that Puran Chand has no necessity to attach forged DAC because he has already got prepared original DAC and it is not possible that after release of the tender and not releasing the tender, the DAC can be deposited in the bank without the signature of the concerned officer. The aim for preparing the Crl. Misc. No. M-13690 of 2010 (O&M) [ 7 ] forged DAC was to escape from the investment of money. Puran Chand has got prepared original DAC. In this connection, SDO Vigilance, Sub Division Bhiwani has already conducted the enquiry and during the enquiry, no such solid proof was found, from which it can be proved that the forged DAC has been got prepared by Puran Chand Contractor so that the case can be succeeded. The report is submitted and after registration of the case, investigation has been conducted by Economic Crime Branch.” Mr. R.A.Sheoran, counsel for the petitioner, has argued that no offence under Section 420 IPC is made out as during the inquiry conducted by DSP Bhiwani the petitioner has been found innocent. It is undisputed fact that three DACs No. 54/98, 61/98 and 62/98 were prepared from Syndicate Bank out of his Current Account No. 172 on 15.10.98 for `1,60,000/-, 3,00,000/- and `1,10,000/-. Had the petitioner been serious to get the work, he would have attached the original DACs. The petitioner was not allotted the work on the tender in which the original DAC No. 54/98 had been attached. The other two tenders were rejected in which fake DACs had been attached. The Superintendent of Police had also communicated to the Inspector General of Police vide letter dated 10.7.2007 that after the inquiry no proof was found that the fake DACs have been got prepared by Puran Chand, Contractor. The Irrigation Department, Haryana, had invited tenders in the year 1998. The petitioner had applied against three tenders but was allotted no work, so no loss was caused to the State. After the inquiry the petitioner has been found innocent and registration of the present FIR in 2007 after a gap of 9 years is an abuse of process of court. Crl. Misc. No. M-13690 of 2010 (O&M) [ 8 ] While framing the charge on 11.7.2008, the Judicial Magistrate Ist Class has overlooked the inquiry report submitted by DSP, Bhiwani, in which the petitioner has been found innocent. The Superintendent of Police, Bhiwani, on 10.7.2007 has communicated the same view to the Inspector General, Hisar Range, Hisar. The revisional authority has dismissed the revision on the ground that at the time of framing charge only a prima facie case has to be made out. If there is a strong suspicion about the commission of offence and involvement of the accused, it is sufficient for the Court to frame a charge. Mr. Sheoran has vehemently argued that from the contents of FIR it is clear that the petitioner has no account in the Bhiwani Central Cooperative Bank, Bhiwani. During the inquiry, DACs No. 54/98, 61/98 and 62/98 amounting to `1,10,000/-, 1,60,000/- and `3,00,000/- respectively of Syndicate Bank, Bhiwani, were verified and that were found to be correct. It was also verified that the petitioner had deposited back these DACs. There was no necessity for Puran Chand, Contractor, to attach the fake DACs because he had already got prepared original DACs. In this connection, S.D.O. Vigilance, Sub Division, Bhiwani, has conducted inquiry and found that there was no proof that forged DACs have been got prepared by Puran Chand, Contractor. The aim of preparing the forged DACs can only be to save from the investment of money. Mr. P.S.Virk, learned counsel for the State , has argued that charges have been framed and at this stage the FIR cannot be quashed in view of State of Bihar & Another v. Shri P.P.Sharma and another AIR 1991 S.C. 1260. Learned counsel was not able to refer to any evidence to prove that the petitioner was guilty of the charge under Section 420 IPC. Learned counsel admitted that the petitioner had applied against the three Crl. Misc. No. M-13690 of 2010 (O&M) [ 9 ] tenders in the year 1998 and no work had been allotted to him against either of the tenders and hence the State has suffered no loss. I have heard the learned counsel for the parties and perused the record. From the contents of the FIR, one thing is clear that the incident relates back to the year 1998. Initially the inquiry was conducted by DSP, Bhiwani, in the year 2003 and it was found that there was no solid proof from which it can be proved that fake DACs have been prepared by Puran Chand, Contractor. In the statement of Puran Chand, Contractor, it has been stated that he had no account in the Bhiwani Central Cooperative Bank, Bhiwani. His original DACs No. 54/98, 61/98 and 62/98 of Syndicate Bank, Bhiwani, had been duly verified. However, on a direction by Inspector General of Police, Hisar Range, Hisar, the FIR was registered. The Superintendent of Police, Bhiwani, vide letter dated 10.7.2007 informed the Inspector General of Police, Hisar Range, Hisar, that there was no evidence found against the petitioner in relation to preparation of fake DACs. This case relates to the year 1998 and despite inquiries made out by various officials that petitioner has been found innocent, he has been dragged with criminal litigation vide FIR No. 124 dated 23.7.2007 under Sections 420, 467, 468, 471 IPC registered at Police Station Tosham, District Bhiwani. In the investigation conducted, there is no proof that the petitioner was responsible for the fake DACs No.895 and 897 dated 15.10.1998 amounting to `3,00,000/- and `1,60,000/- respectively. The Supreme Court has set out parameters for quashing the FIR in State of Haryana and others v. Ch. Bhajan Lal & Others AIR 1992 SC 604, Som Mittal v. Government of Karnataka (2008) 3 Supreme Court Cases 574 and S. Khushboo v. Crl. Misc. No. M-13690 of 2010 (O&M) [ 10 ] Kanniammal & Another, 2010 (2) R.C.R. (Criminal) 793. The law relating to quashing of criminal proceedings is summed up as follows:- “F. Criminal Procedure Code, Section 482 – Quashing of Criminal Proceedings – Law summoned up:- (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)In a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. (3)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. (4)Criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. (5)High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases. In fact it was observed.” In the present case, the FIR has been registered after a gap of 9 years. After inquiries exonerating the petitioner had been conducted and Crl. Misc. No. M-13690 of 2010 (O&M) [ 11 ] there was no evidence/proof that petitioner was guilty of preparing forged DACs. He was not allotted the work out of the three tenders which he had submitted in response to the invitation of tenders by the Irrigation Department in the year 1998. So no charge under Section 420 IPC is made out was no evidence has been collected by the Investigating Agency. On the other hand, it is observed in the FIR that the petitioner had got made the original DACs No. 54/98, 61/98 and 62/98 from Syndicate Bank, Bhiwani. It is not possible to believe that after getting original DACs made the petitioner would indulge in making fake DACs, that too from a bank in which he has no account. This fact has been inquired into by the DSP and by the SP. Raking up an old issue of 1998 and forcing the petitioner to face the trial when no offence under Section 420 IPC is made out as per the evidence collected is not genuine. From the above facts, the present case does not fall into the category of a case arising out of a genuine complaint. This Court has no hesitation to intervene and quash the FIR No. 124 dated 23.7.2007 under Sections 420, 467, 468, 471 IPC registered at Police Station Tosham, District Bhiwani, (Annexure P-4) and charge sheet dated 11.7.2008 (Annexure P-5) and the order dated 27.10.2009 passed by the Additional Sessions Judge-III, Bhiwani (Annexure P-6). Criminal miscellaneous is allowed. 15.2.2011 ( RITU BAHRI ) Rupi JUDGE