Dr. Monica Kumar & Anr vs State Of U. P. & Ors

4. Dr. Narendra Kumar, the father of the appellants, is presently working as Professor/Medical Director of Neonatal Intensive Care Unit [NICU] and also performing medical practice at 2917, Middleboro Place, Modesto, California. Both the appellants were born in California and completed their schooling in USA. They decided to get admission in MBBS course for the academic session 1996-97 in Santosh Medical College, Ghaziabad [for short College] against NRI quota after remitting US $50,000 and US $49,700 respectively towards capitation fees and additional hostel fees of RS. 75,000 and Rs. 45,000 and security deposits for one year. That apart, the College took a loan of Rs. 25 lakhs on interest @ 11.5% p.a. from the father of the appellants and its payment was assured by a handwritten slip. The disputes and differences arose after the father of the appellants demanded repayment of the loan from Dr. P. Mahalingam the second respondent herein, Chairman & Managing Director/Trustee of Maharaji Educational Trust and Santosh Medical College and Hospital, Pratap Vihar, Vijay Nagar, Ghaziabad. In April 2001, the matter was reported to the Additional District Magistrate, Ghaziabad, for taking appropriate steps to get the loan amount refunded. Dr. P. Mahalingam the second respondent in his letter dated 9.4.2001 acknowledged the liability and had also assured to refund the entire loan amount. It was alleged that the second respondent with vindictive attitude started harassing the appellants and in the result declared in July 2000, Dr. Monica Kumar the first appellant was got failed in both theory papers of Pharmacology and she was not allowed to appear in two subsequent supplementary examinations as well as in Final Professional MBBS Part-I Examination.

5. The first appellant filed a Writ Petition No. 9150 of 2001 in the High Court wherein vide order dated 14.3.2001, the second respondent was directed to permit the first appellant to appear in the final Professional MBBS Part-I Examination. In compliance of the High Courts order, the first appellant was permitted to appear in the examination, but her result was deliberately withheld for an oblique motive which compelled the first appellant to approach the High Court of Allahabad by way of Miscellaneous Application in the pending Writ Petition No. 9150/2001 for issuing necessary directions for declaration of her result. The High Court vide order dated 19.9.2001 directed the College authorities to declare the results of MBBS Final Professional Part-I Examination, 2001 and the result of the scrutiny of Pharmacology of Second Professional Examination, 2000 and further to permit the first appellant to appear in Final MBBS Part-II Examination and to declare the result of the said examination as well. By Orders dated 7.01.2002/16.01.2002, the High Court directed the college authorities to produce answer books of Pharmacology of the first appellant. On 4.03.2002, the High Court got the answer books of the first appellant re-examined by the Head of Department of Pharmacology of Motilal Nehru Medical College, Allahabad in the court itself. On re-examination of the papers, the first appellant secured good marks in both the papers and accordingly, the college authorities were directed to declare her results forthwith. It appears that the orders/directions of the High Court were not complied with which gave rise to the first appellant to file contempt of court proceedings against the college authorities. The High Court vide order dated 9.4.2002 directed the College authorities to be present personally in the Court but in the meantime on 22.04.2002 the result was declared and for no valid reasons, the first appellant was declared failed in Surgery Practical Examination. The first appellant left with no other remedy, but to approach the High Court by means of another writ petition. The High Court directed the second respondent to produce before it the tabulation chart of Surgery Practical Examination of all the students including the first appellant. The High Court on 12.11.2002 having noticed serious allegations of mala fide, restrained Dr. P. Mahalingam the second respondent from interfering in and conducting examination of the first appellant and further directed that the practical examination of the first appellant be got conducted through Agra Medical College in which the first appellant was declared pass with 70% marks.

6. The appellants alleged that having miserably failed in all attempts to ruin the career of the first appellant, Dr. Mahalingam the second respondent on 04.04.2003 got a false and frivolous report lodged under Sections 504 and 506 IPC through his yes-man and associate Dr. Anil Tomar against all the members of the appellants family whereupon Case Crime No. 286 of 2003 was registered against them. Both the appellants and their parents filed Writ Petition No. 1923 of 2003 seeking for quashing the said criminal case and the High Court vide order dated 17.4.2003, stayed the arrest of the appellants and their parents during the investigation of the above-said FIR. The Police rushed to file charge sheet without making any fair and effective investigation against which Criminal Miscellaneous Application No. 8542 of 2003 under Section 482 Cr.P.C. was filed by the parents of the appellants in the High Court for quashing the charge sheet and the High Court vide its order stayed further proceedings pending before the trial court.

7. On a complaint made by the father of the appellants and on intervention of the District Magistrate and S.S.P., Ghaziabad, Dr. P. Mahalingam the second respondent on 28.02.2003 allegedly, gave 5 cheques for Rs. 5 lakhs each against the loan amount and two demand drafts of Rs. 2.5 lacs each on account of payment of the accrued interest. It was stated that one cheque was dishonoured on 18.10.2003 and the father of appellants preferred a Criminal Case No. 7272 of 2003 against Dr. Mahalingam the second respondent under Section 138 of the Negotiable Instruments Act in the Court of Additional Chief Judicial Magistrate, Ghaziabad wherein by order dated 24.1.2004 the second respondent and others were summoned as accused persons. On filing of the above criminal case by the father of the appellants, the second respondent got infuriated and became more and more vindictive against the appellants and their family members.

8. The appellants then stated that the tape recorded conversation held between the father of the appellants and Dr. M.K. Shrivastava, Principal of the College, would clearly reveal that Dr. P. Mahalingam the second respondent is the main person instrumental in victimisation and harassing of the appellants. On 2.5.2004 and 2.6.2004 the appellants were allegedly assaulted mercilessly by the second respondent, Anil Somania, Station Officer, P.S. Vijay Nagar and their drivers. The first appellant was molested and she had been threatened to be kidnapped, raped and even murdered whereas the Dr. Manish Kumar- the second appellant, brother of the first appellant was assaulted with kicks, fists, shoes and sticks. They got themselves medically examined at the Government M.M.G. Hospital, Ghaziabad and on refusal to register their FIR by the Police of Police Station, Ghaziabad, the appellants proceeded to file an application under Section 156(3) Cr.P.C. before Chief Judicial Magistrate, Ghaziabad seeking direction to the police to register the FIR and hold proper investigation in the case. Though the said application was initially rejected by the Chief Judicial Magistrate, but in view of the order of the IIIrd Additional District and Sessions Judge, Ghaziabad, the Chief Judicial Magistrate by order dated 3.10.2005 directed the concerned Police Station Officer to register the case against the culprits.

9. Aggrieved thereby, Dr. P. Mahalingam the second respondent filed a Criminal Writ Petition before the High Court which was dismissed vide order dated 9.11.2005. In pursuance of the order of the Chief Judicial Magistrate dated 03.10.2005 and subsequent order of the High Court dated 9.11.2005, FIR at the instance of Dr. Monica bearing Crime No. 425 of 2005 was registered on 28.11.2005 under Sections 147/323/342/352/354/427/504 and 506 IPC at the Police Station against Dr. P. Mahalingam and other persons named in the complaint.

10. The appellants stated that as citizens of the United States of America, they sent a representation to the President of USA whereupon White House responded and sent a letter dated August 16th 2004 informing the appellants that White House had decided to send the petition to the Department of State to address the grievances of the appellants. Further, by letter dated August 30, 2004 the appellants were also informed about the steps having been taken by the USA.

11. The appellants also stated that even on issuance of satisfactory completion certificate of internship to the first appellant duly signed by all the Professors and Heads of Departments, Medical Officers and Dean of Faculty on 18/19.3.2004, the Principal of the College who was simply required to countersign internship completion certificate, deliberately for no valid reason entered the word unsatisfactory by antedating it as 16.01.2004 at the behest of Dr. P. Mahalingam the second respondent as a result thereof the first appellant could not get the MBBS Degree for getting herself enrolled with Medical Council of India nor she could appear in any Post Graduation Examination. Aggrieved by the action of the Principal of the College, the first appellant preferred Civil Writ Petition No. 19069 of 2004 in the High Court of Allahabad and the High Court vide its order dated 11.01.2005, recorded that the certificate issued by the competent authorities was deliberately antedated. The learned single Judge of the High Court by order dated 17.2.2005 disposed of the said writ petition as counsel for Dr. P. Mahalingam the second respondent produced a fresh certificate reporting therein that the first appellant had completed her internship satisfactorily and therefore was eligible for MBBS Degree. The first appellant being aggrieved against the order by which other reliefs prayed for in the writ petition were declined, filed a Special Appeal in the High Court which was allowed on 31.3.2005, directing the authorities concerned to issue other required certificates, i.e. character certificate, pass certificate and attempt certificate to the first appellant.

12. In compliance to the order of the High Court Dr. P. Mahalingam the second respondent issued character certificate, pass certificate and attempt certificate to the fist appellant but with wrong dates and incomplete particulars. The first appellant again was forced to file Contempt Petition No. 4057 of 2005 against the second respondent praying for taking legal proceedings against him for violation of the courts order. The High Court on 23.12.2005 recorded the following order:-

13. The appellants stated that Dr. P. Mahalingam the second respondent found a good ally in Anil Somania the then Station Officer of P.S. Vijay Nagar whose daughter was also studying in the same College and thus was able to intensify the harassment of the appellants and got initiated criminal proceedings against them under Sections 107/116 Cr.P.C. This time again on being approached by the appellants, the High Court by order dated 25.11.2005 stayed those proceedings.

14. Having failed in all earlier attempts to harm the careers of the appellants, the second respondent allegedly in collusion with Anil Somani, SHO, instigated Dr. I.M. Sharma, Warden of Girls Hostel of the College the third respondent herein and got a false and frivolous FIR No. 297/2005 (Case Crime No. 412/2005) dated 5.10.2005 registered against the appellants under Section 452/323/504 and 506 IPC at P.S. Vijay Nagar. The appellants filed Criminal Miscellaneous Petition No. 11192 of 2005 in the High Court and the High Court on 7.11.2005 passed the following order:-

15. Leaving no stone unturned to fulfill his vengeance and revengeful attitude against the appellants, the second respondent got one more frivolous FIR bearing Crime No. 21 of 2006 dated 14.1.2006 registered against them under Sections 452/323/336/504/506 and 427 IPC at P.S. Vijay Nagar at the behest of Rajendra Kuntal - Head Security Guard of Dr. P. Mahalingam. The complaint of Rajendra Kuntal was sent through Ram Murti Mani Kandan, Personal Manager of the second respondent, to the Police Station. The appellants were arrested on 15.01.2006 from their house and lodged in jail. They were released on bail by the learned Sessions Judge on 31.01.2006.

(v) that the High Court has failed to appreciate that Dr. P. Mahalingam who happens to be the Chairman and Sole Trustee of the Maharaj Ji Educational Trust which is running the Santosh Medical College for imparting medical education at the Under Graduate Level, which is one of the noblest professional qualification that one can impart on human beings, has been indulging in acts of omissions and commissions which are wholly unexpected of him. After having failed in all his repeated attempts to spoil the career of the appellants, the second respondent adopted a vindictive attitude towards the appellants and the facts of the present case clearly establish that the allegations made in the complaints are not only false but are the result of mala fides of Dr. P. Mahalingam.

Some of the household goods were also damaged by them. The victim (Dr. Indra Mohini Sharma) who is teacher in Santosh Medical College under Section 161 of the Code supported the F.I.R. version and mentioned that both the accused threatened and slapped her. She was rescued by the security men Rajveer and Prem Pal. Police also recorded statement of these two security men also of Gaurav Pandey, student of the College who reiterated about the incident. For the other incident dated 14.1.2006 report was lodged as Case Crime No.21 of 2006 under Sections 452, 323, 336, 504, 506, 420 IPC at Police Station Vijay Nagar, Ghaziabad, against Dr. Monica Kumar and Dr. Manish Kumar as they are said to have beaten the security man Rajendra Kuntal and also damaged the College properties. The investigating officer has recorded the statement of Rajendra Kuntal and other security personnel namely Prempal and Manoj Kumar. Both the witnesses have supported the FIR version.

33. Having given our careful consideration to the submissions made by the learned counsel for the parties and in the backdrop of the facts and in the light of principles of law highlighted above, we have examined the entire material placed on record by the parties in the case on hand. Indisputably, both the appellants took admission in the MBBS course in the session 1996-97 in Santosh Medical College and Hospital under the NRI quota against handsome payments of US $50,000 and US$49,700 each in addition to hostel charges and security deposit, i.e. Rs. 75,000/- and Rs. 45,000/- respectively for one year. In April 2000, Dr. P. Mahalingam the second respondent, Chairman/Managing Director of the Medical College took a loan of Rs. 25 lakhs on interest at the rate of 11.5 % from Dr. Narendra Kumar, father of the appellants. As noticed in the earlier part of this judgment, a series of civil writ petitions and criminal proceedings besides contempt proceedings were initiated by the appellants in which allegations of mala fides, acts of victimization and physical and mental harassment were alleged against the second respondent in his personal capacity and also as a Chairman/Managing Director of the College Trust. The appellants filed application under Section 156(3) Cr.P.C. before the Chief Judicial Magistrate on the basis of which case under Section 347/502/506/342/352/ 354 and 427 IPC has been registered against the defaulters. The second respondent is said to have challenged the order of the Magistrate but he could not succeed. The appellants are facing trial of Case Crime No. 412/2005 lodged against them by Dr. Indra Mohini Sharma, third respondent, under Sections 458/323/504/506 IPC and Case Crime No. 21/2006 registered on 14.01.2006 in Police Station Vijay Nagar at the behest of Rajender Kuntal- respondent, Security Guard of the institution, under Sections 452/323/336/504/506 and 427 IPC. The above-stated cases pertained to the period when the appellants were students and studying MBBS Course in the College. The trial of the said cases at present is at initial stage and further proceedings thereof are stayed by this Court. The record would reveal that during the investigation of Case Crime No. 412/2005 for offences punishable under Sections 453, 323, 504, 506 IPC, the appellants were arrested by the police on 15.01.2006 from their house and were lodged in jail. Their bail applications were adjourned four times by the learned Magistrate, who had called for case diary and medical reports, which the prosecution did not produce. It was only on the adjourned date, i.e. 18.01.2006 when written medical report of doctor from Batra Hospital, New Delhi, was filed before the learned Magistrate reporting some injuries have received by complainant Rajender Kuntal and on the basis of the said medical report, Section 308 IPC came to be added in the said Crime Case. The learned Magistrate rejected the bail application of the second appellant in that case. The second appellant filed a bail application before the learned Sessions Judge on 21.01.2006 which was adjourned to 31.01.2006 on that date the second appellant could be released on bail. The first respondent-State of U.P. has filed with their affidavit translated true copies of apology letters dated 13.04.2004 and 02.05.2004 respectively said to have been written by the appellants and addressed to the SHO, Vijay Nagar P.S., Ghaziabad, the contents whereof read as under:-

37. In this view of the matter, in order to do complete justice to the parties in the backdrop of the peculiar facts of this case and other circumstances noticed hereinbefore and also taking into consideration the future career of the appellants who by this time might have joined the noble medical profession and owing to the reasons and observations above stated, this appeal is allowed as a result thereof the order of the High Court impugned in this appeal is set aside subject to the directions contained herein.

38. Mr. K. K. Venugopal and Mr. P. P. Rao at one stage of the hearing very fairly suggested that keeping in view the relationship of a teacher and taught and having regard to the peculiar facts and circumstances of the case, the concerned respondents would be satisfied if an apology is tendered and some amount of compensation is awarded in favour of the third respondents-informants of Crime No.412 of 2005 and of Crime No.21 of 2006.

39. We, having regard to the peculiar facts and circumstances of this case, are of the opinion that it is a fit case where we should exercise our discretionary jurisdiction under Article 142 of the Constitution of India so as to bring the dispute between the parties to an end. We, however, are of the opinion that as the appellants, at the relevant time, were students, no amount of compensation be directed to be paid. They must, however, file a written apology in the courts where the proceedings are pending.

40. Consequently, criminal proceedings arising out of Case Crime No. 412/2005 registered at the behest of Dr. Indra Mohini Sharma under Sections 452, 323, 504, 506 and 427 IPC and proceedings of Case Crime No. 21/2006 under Sections 452, 323, 336, 504, 506 and 427 IPC filed by Rajender Kuntal at Police Station Vijay Nagar, Ghaziabad and charges said to have been framed by the trial court based upon the above-said criminal cases against the appellants shall also stand quashed.

41. Before parting with this judgment, we make it clear that any observations made by us in this judgment may not be construed as an expression of opinion on the genuineness, authenticity, validity and legality of the allegations and counter allegations levelled by the parties against each other in different proceedings and we have closed the proceedings of the above-mentioned FIRs initiated against the appellants mainly in exercise of our jurisdiction under Article 142 of the Constitution.