OM PRAKASH Vs. STATE OF U.P.

JUDGEMENT

(1.) I have heard Sri Vinod Kumar Agrawal, learned counsel for the applicant, learned AGA for O.P. Nos. 1 and 2 and perused the record. This application has been moved on behalf of applicant Om Prakash, S/o Sri Natthi Singh, Secretary, Atma Nirbhar Sadhan Sahkari Samiti Ltd., P.S. Baldev, District Mathura with prayer to quash the criminal proceedings of complaint case no. 198/IX/2005 (Sia Ram v. Khayali Ram @ Khillan Singh and another), under Sections 420, 467, 468, 471 IPC, P.S. Baldev, District Mathura and order dated 7.7.2007, passed in above case with this allegation that O.P. No. 3, Siya Ram Singh moved an application under Section 156(3) Cr.P.C. in the court of IInd Additional Chief Judicial Magistrate, Mathura on 22.8.2005 impleading Khayali Ram @ Khillan Singh and Om Prakash Singh as accused. The learned Additional Chief Judicial Magistrate, Court No. 2 Mathura, allowed the said application and directed O.P. No. 2 S.H.O. Baldev to register the case vide his judgment and order dated 7.9.2005, in compliance of which a case crime no. C/11/2005, under Sections 420, 467, 468, 471 IPC was registered against both the accused persons. The O.P. No. 2 investigated the case and submitted chargesheet on 13.2.2006 against Om Prakash Singh (Secretary), Sahkari Bank and Khayali Ram @ Khillan Singh, while the applicant was neither an accused in the said case nor any investigation was conducted against him. The Investigating Officer did not record his statement under Section 161 Cr.P.C.. The court below took cognizance on the chargesheet, directed the Office to prepare copies of the police documents, but no summons were issued against the applicant. O.P. No. 3 in collusion with the court officials got issued non-bailablewarrant against the accused persons and the police started to take coercive proceedings under Section 82 of Cr.P.C. without issuing summons against the accused. The present proceedings were time barred as the incident allegedly took place between the years 2000 and 2003 and the chargesheet was filed in February, 2006. The applicant being public servant moved a Criminal Misc. Application No. 1564 of 2007 in this Court and this Court finally disposed off the application and passed an order dated 18.4.2007.

(2.) THE learned counsel for the applicant contended that the action of the opposite parties in lodging FIR without ascertaining the identity of the applicant was illegal, arbitrary and mala fide and Siya Ram Singh, complainant himself admitted that he could not initiate proceedings for a long time because O.P. No. 4 was his real brother. Siya Ram Singh levelled false and incorrect allegations in his application because application was neither the Branch Manager of any bank nor there was any bank namely District Co-operative Bank Limited Branch Madora and the court below committed illegality in summoning the applicant in the said case. The learned court below without issuing summons or bailablewarrants, issued non-bailable-warrant, against the applicant and took coercive action against him. There was no independent or a single witness in support of the allegations made in the FIR. The applicant was a public servant holding responsible post of Secretary of Atma Nirbhar Sadhan Sahkari Samiti Ltd. and there was no mens rea of the applicant and thus he did not commit any offence. On behalf of O.P. Nos. 1 and 2, S.I. of P.S. Baldev filed his counter affidavit alleging that the FIR was lodged by one Siya Ram Singh stating therein that by making his forged signatures, the fraud was committed by the accused persons namely Khayal Ram @ Khillan (real brother of the complainant) and Om Prakash Singh, Secretary, District Co-operative Bank, Branch Madora, District Mathura. The matter was investigated and on completion of investigation chargesheet was submitted against both the accused persons. During investigation it was found that the applicant was involved in committing fraud and he committed the offences as mentioned in the chargesheet. The court below issued summons and thereafter bailable-warrant, and non-bailable-warrant against the applicant as he failed to appear in the court below and in compliance of non-bailable-warrants both the accused persons were arrested and sent to jail. Application moved under Section 156(3) Cr.P.C. was not barred by time. In view of legal provisions contemplated in Code of Criminal Procedure O.P. No. 3 moved the said application within a period of limitation. The investigation was completed in the year 2006 and the chargesheet was submitted in the court on 13.2.2006 and the cognizance was taken on 3.3.2006. The orders dated 9.2.2007 and 18.4.2007 were obtained by the applicant by concealing the material facts. The arrest of the applicant was stayed by this Court vide order dated 18.4.2007 during investigation, while the investigation was completed and chargesheet was submitted and thus material fact was concealed by the applicant at the time of obtaining order dated 18.4.2007.

(3.) A perusal of FIR goes to show that offences under Sections 420, 467, 468, 471 IPC are prima facie made out against the accused persons and probably the O.P. No. 3 being the member of Armed Forces could not know the distinction between Atma Nirbhar Sadhan Sahkari Samiti Ltd. and Co-operative Bank and due to this reason he mentioned the said address of the applicant in his application under Section 156(3) Cr.P.C. The counter affidavit filed by S.I. Of Police Station would go to show that the said case was registered against the applicant and Khayal Ram @ Khillan and after completion of investigation the chargesheet was submitted against them. The offences are alleged to have been committed in the years 1999-2000, 2001-2002 and FIR has been lodged on 22.8.2005 and the chargesheet has been submitted, on the basis of which cognizance has been taken on 3.3.2006 i.e. within a period of limitation. Thus the cognizance has been taken within period of limitation and the same cannot be said to be barred by time.