Rishipal vs State Of U.P. & Anr

3. The facts relevant for the disposal of this appeal, in a nutshell, are that on 21st March, 2005, respondent No.2 herein filed a private complaint (Annexure P/2) in the Court of Judicial Magistrate, Ghaziabad, Uttar Pradesh under Section 156(3) Cr.P.C. against the appellant herein and three other accused who are not parties before us, invoking Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 IPC. According to the said complaint, the complainant was holding a Bank Account in the Ghaziabad District Co-operative Bank, Maliwada, Ghaziabad where the appellant was the Branch Manager. It was alleged in the complaint that taking advantage of the innocence of the complainant and his brother, the accused, mischievously obtained their signatures on blank cheques and committed theft of their hand bag in which the signed cheque book was kept. When they came to know that their bag containing signed cheques and other papers was missing, not knowing the misdeed of the accused, a search has been undertaken for the lost bag containing signed cheques and also lodged a written report on 17th May, 2004 at Sihani Gate Police Station to that effect. The Bank was also informed in writing on 17th May, 2004 itself that duly signed cheque book of Account No. 1132 has been lost, hence no payment on the lost cheques be made to any person and all those cheques may be cancelled (Annexure P/1). It was further stated by the complainant that when he received a notice dated 6th October, 2004 under Section 138 of the Negotiable Instruments Act from Neelam Rani (co-accused, not party before us) stating that Cheque No.083697 (one of the lose cheques) for Rs.5,00,067/- as if issued by him towards the purchase of Kachi bricks and coal from “Neelam Brick Field”, then he realized that there was some planned conspiracy and the cheque book was not actually lost but was stolen and being misused by the accused for drawing various amounts from his bank account. In the said complaint, the complainant – respondent No.2, has totally denied any such transaction with “Neelam Brick Field” and alleged that the accused cooked up that transaction, hatched a conspiracy with the bank employees for cheating him, and accordingly all the amounts of the complainant and his family have been “looted”.

5. After registering the Complaint Case, the learned Magistrate recorded statements under Sections 200 and 202 Cr.P.C. and issued summons against the accused under Section 204 Cr.P.C. Two other co-accused challenged the summoning order before the High Court in a Criminal Miscellaneous Application No. 6334 of 2006 and the Allahabad High Court has stayed further proceedings in the Complaint Case. Subsequently, the High Court dismissed the Criminal Miscellaneous Application, and hence, non-bailable warrant has been issued against the appellant on 3rd October, 2012.

7. Before us, the main contention of the learned senior counsel for the appellant is that the appellant has nothing to do with the alleged offence and his name was unnecessarily dragged into the criminal complaint. When Cheque No. 083697 was presented in the Bank on 2nd August, 2004, it was not cleared by the Bank in view of the written instruction given by the complainant and no loss was caused to the complainant at the hands of the appellant. Afterwards, the appellant was transferred from Maliwara Branch to Dhaulana Branch on 21st August, 2004 and he was again transferred to Maliwara Branch in January 2007 where he remained till August 2011. He further contended that the complainant in his letter dated 17th May, 2004 (Annexure P/1) addressed to the appellant has nowhere asked him to inform to the police or to give communication to him when the cheque is presented. The entire reading of the said letter does not disclose any case against the appellant and his name was included into the criminal complaint only to malign and defame him because the complainant has received some notices under Section 138 of the Negotiable Instruments Act from the other accused. Only to create a defence against those cases under the Negotiable Instruments Act, the complaint has been filed by the complainant with mala fide intention. Hence, the complaint filed by respondent No.2 is misconceived and it does not attract any of the offences alleged against the appellant as it was filed only with vexatious and oblique motive. But the High Court, without going into the merits and facts of the case, merely relying on the provisions of Section 245 Cr.P.C. directed the appellant to file application for his discharge before the trial Court. This approach of the High Court is erroneous and contrary to the law laid down by this Court. The High Court ought to have allowed the application of the appellant under Section 482 Cr.P.C. as the complaint does not attract the ingredients of Sections 34, 379, 411, 417, 418, 467, 468, 471 and 477 IPC. He, therefore, prayed to set aside the impugned order passed by the High Court and quash the proceedings in the Complaint Case qua the appellant.

13. In the backdrop of the legal position, well settled by this Court through catena of judgements, we would like to deal with the facts of the present case which lead to filing of the present complaint against the appellant under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. on the file of the Additional Chief Judicial Magistrate, Ghaziabad.

Therefore, it is requested that you may treat the above cheques as cancelled and on that may not kindly make payment to any person.

It will be very kind of you”.

15. If we look at the complaint and letter addressed by the complainant to the Branch Manager, the entire grievance of the complaint appears to be that basing on the written information which had been given to the appellant on 17th May, 2004, when the stolen cheque was presented, he should have given a complaint to the police. As the appellant has not chosen to give the complaint to the police, according to the complainant the other accused hatched a conspiracy with the appellant – Branch Manager and accordingly cheated him.

17. In view of our above discussion, we have come to an irresistible conclusion that continuation of the criminal proceedings against the appellant for commission of the alleged offence under Sections 34, 379, 411, 417, 418, 420, 467, 458 and 477 I.P.C. is a pure abuse of process of law and the complaint case deserves to be quashed in the interest of justice.

18. We accordingly allow this appeal setting aside the impugned judgment of the High Court by quashing the criminal proceedings pending against the appellant in C.C. No. 2397 of 2012 under Sections 34, 379, 411, 418, 420, 467, 458 and 477 I.P.C. on the file of Additional Chief Judicial Magistrate, Ghaziabad, Uttar Pradesh.