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MEENA RATHORE V/S CBI, ACB, BHOPAL, decided on Wednesday, April 28, 2010.
[ In the High Court of Madhya Pradesh, M. Cr. C. No. 2447 of 2010. ] 28/04/2010
Judge(s) : J.K. MAHESHWARI
Advocate(s) : Sudha Shrivastava, Vivek Sharan, Amit K. Upadhyaya, Reena Sharma.
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meena,rathore,cbi,acb,bhopal,

  "2011 CrLJ 891"  







judgment - (1.) This petition has been filed under Section 482 of Cr.P.C seeking quashment of the FIR bearing No. RC082009A0019 registered by CBI and to quash the charge sheet bearing No.4/2010 filed in the Court of Special Judge CBI Indore under Sections 420 177 and 181 of IPC against petitioner.(2.) As per prosecution the CBI has received the information by reliable source that the recognition granted by the AICTE through its officer in favour of Vikrant Educational and Social Welfare Society Gwalior to run an educational institute is on concealment of the facts however such an act is amounting to cheating. Initially the offence was registered under Sections 120-B 420 of IPC and under Section 13 (2) read with Section 13 (1) (d) of Prevention of Corruption Act 1988 against Mr. S. Singal Regional Officer AICTE Bhopal Yashveer Branch Manager Oriental Bank of Commerce Thadipur Branch Gwalior Mr. R.S. Rathore CEO Vikrant Educational and Social Welfare Society and Smt. Meena Rathore Chairperson of Vikrant Educational and Social Welfare Society.(3.) On registration of the case investigation was entrusted to Ms. Reena Sharma Inspector CBI Bhopal. On investigation it was found that the society holds 11.26 acre of land of S. No.77/2 59/1 59/2 at Village Ratwai Tehsil and District Gwalior in the name of Vikrant Institution of Technology and Management. The present applicant has submitted an affidavit that the land upon which the college building constructed is not mortgaged or shall not be mortgaged to any agency in future. In an another affidavithas also been mentioned that the land and building is not mortgaged or under any lienor charge or any other kind of encumbrances and shall not be subjected to such in future also. In investigation juxta-pose the contents of such affidavit it was found that the land upon which the college building is constructed is already mortgaged with the Oriental Bank of Commerce Thatipur Branch Gwalior w.e.f. 11.11.2008 to a loan amount of Rs.7.5 crores. It is said that on submitting application and the said affidavit the AICTE has issued a letter of approval dated 12.6.2009 in respect of Vikrant Educational and Social Welfare Society. The fact remains that towards primary security the land situated at village Ratwai Distt. Gwalior and held in the name of Society upon which the college is constructed was mortgaged with the bank. However investigating officer found that the offence punishable under Sections 177 181 and 420 of IPC against Smt. Meena Rathore Chairperson of Vikrant Educational and Social Welfare Society. Gwalior is made out. Accordingly the Challan has been filed against her before the CBI Court Indore. It is relevant to note here that Challan has not been filed against Mr. S. Singal Regional Officer AICTE Bhopal Yashveer Branch Manager Oriental Bank of Commerce Thadipur Branch Gwalior Mr. R.S.Rathore CEO Vikrant Educational and Social Welfare Society.(4.) Learned counsel appearing on behalf of the petitioner has drawn my attention to Annexure P-3 which is an approval process handbook. Clause 4 which specifies eligibility for application and requirements. Clause 4.2 sub-clause 2 relates to the present dispute whereby the land belongs to the Society or Trust should have been registered in their name on or before the date of submission of application. The said land as required for setting up a new Technical Institution shall have a clear title at the time of making application. It has been made clear that it may be mortgaged at a later date for the purpose of raising finances for development of the same Technical Institution. An Affidavit in the format prescribed on the web portal is required to be submitted along with an application form. The affidavit obtained by the AICTE contains the term I hereby confirm and undertake that the said land is not mortgaged or shall not be mortgaged with any agency in future. In another affidavit it was mentioned that the land and building is not mortgaged or under any lien or charge or any other kind of encumbrances and shall not be subjected to such in future also. In the affidavit in last it was mentioned that the undertaking if any as mentioned above are not fulfilled/complied or if found to be false it will disentitle the Institution from grant of approval for the conduct of the courses for the academic year 2009-10. Thus it can safely be presumed the affidavit obtained from the applicant and loaded if any on web portal by the AICTE is contrary to the procedure as prescribed by them.(5.) In view of the aforesaid facts it is submitted by Smt. Shrivastava that first of all the affidavit loaded on a web portal is contrary to the approval process Clause 4.2.2 of the AICTE (Annexure P-3). Bare reading of the aforesaid makes it clear that AICTE norms does not debar the owner having title over the land to mortgage at subsequent stage but there should be a clear title over the land upon which the college is being constructed. The affidavit which is taken by the AICTE is contrary to their norms. In any case the intention from the said condition No. 4.2.2 may be gathered that too parting with a land of owner applied for approval is not debarred. Thus to fulfill the necessary requirement of approval the said affidavit was submitted in routine without having any intention. In any case if the contents of the affidavit was found false then consequence has also been specified therein which led to cancellation to the approval of that year. However intention of the petitioner is not of cheating to the AICTE or of furnishing false information to them on an affidavit. Therefore the basic ingredients of constituting offence under Sections 420 177 and 181 of IPC is conspicuously missing from the facts therefore the cognizance as taken merely on an information of somebody against the petitioner and to register the FIR and filing of Challan are liable to be quashed. It is further contended that the offence under Section 420 of IPC provides punishment of cheating and dishonestly inducing delivery of property. On going through the contents it is apparent that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make alter or destroy the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security then such an act shall be punishable with the imprisonment specified in the said section. The cheating has been defined under Section 415 of the IPC whereby whoever by deceiving any person fraudulently or dishonestly induces person so deceive to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the persons so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body mind reputation or property is said to cheat. In view of the foregoing facts and looking to the contents of the FIR it is apparent that the AICTE who has issued letter of approval in favour of the Vikrant Educational and Social Welfare Society and the petitioner is Chairperson thereof have not cheated as no complaint has been made by them against the petitioner knowing well that if the undertaking is false the cancellation of the letter of approval is the recourse. The cheating if coupled with inducement of delivery of property then only it can be punishable under Section 420 of IPC. However merely receiving the information through someone by the pious agency like a CBI registration of the offence against the petitioner Regional Officer of AICTE and the Bank Manager is prima facie seems malicious. It is submitted finally after investigation the Regional Officer of the AICTE and the Bank Manager granted the loan who have been given clean chit and against petitioner Challan under Sections 420 177 and 181 of IPC has been filed.(6.) It is further contended that the offence under Sections 177 and 181 of the IPC can only be registered after following the procedure as prescribed under Section 195 (1) (a) of the Cr.P.C whereby it is apparent that the Court shall take cognizance of an offence punishable under Sections 172 to 188 (both inclusive) of Indian Penal Code on complaint in writing by public servant concerned or of some other public servant to whom he is administratively subordinate. Meaning thereby if the public servant of the AICTE is of the opinion that the information if any furnished on oath to a public servant is false then such public servant or some other public servant to whom he is administratively subordinate may file complaint thereupon the Court shall take a cognizance. The complaint has been defined under Section 2 (d) of the Cr.P.C. The complaint to the police or an information to the police by concerned public servant would not fall within the definition of complaint because the complaint would mean any allegation made orally or in writing to a Magistrate. As per Section 2 (d) the Challan filed by the police on information from the public servant would not partake the character of complaint. In view of the foregoing submissions and placing reliance on the judgment of Apex Court in the case of State of Haryana and others v. Bhajan Lal and others - 1992 Supp. (1)S CC 335 : (AIR 1992 SC 604 : 1992 Cri LJ 527) Ummed Singh and others v. State of M.P. 2009 (2) M.P.L.J. (Cri) 694 : (2010 Cri L.T 1257) Anil Ritolla @ A. K. Ritolia v. State of Bihar and another - (2007) 10 SCC 110: (AIR 2007 SC (Supp) 1002 : 2008 Cri LJ 353) and on the judgment delivered in the case of Smt. Lilabai v. State of Madhya Pradesh - M.Cr.C. No.4725/2007 decided on 15.9.2008 it is urged that it is a case in which the ingredients of Section 420 of IPC is not available and cognizance of an offence cannot be taken under Sections 177 and 181 of IPC without filing any complaint by the officers of AICTE. Therefore the FIR lodged by the CBI and the Challan filed in the Court is liable to be quashed treating it to be a rare of the rarest cases of abusing the process of the Court invoking the powers by this Court under Section 482 of Cr.P.C however prayer is made to allow the petition and to quash the charge sheet.(7.) On the other hand by filing reply and reiterating the averments of the FIR it is stated that because the petitioner has furnished the affidavit of false information that the land which belongs to the petitioner and upon which the college building has been constructed has not mortgaged or not have any lien of any institution while it was already mortgaged with the Oriental Bank of Commerce Thatipur Branch Gwalior and the loan to the tune of Rs.7.5 crore has been obtained by the Vikrant Educational and Social Welfare Society and the petitioner is the Chairperson thereof. In such circumstances to get a letter of approval from the AICTE by concealment of the fact false information has been furnished. However on receiving the complaint from reliable sources offence has rightly been registered against the petitioner during investigation when and Regional Officer of the AICTE Bank Officers were not found indulged therefore challan has rightly been filed only against the petitioner under Sections 420 177 and 181 of IPC. If the petitioner has not furnished such affidavit then AICTE approval may not be granted to him. In any case on the basis of such approval the students got admitted by the petitioner in the said year and if cancellation of approval is being directed by the AICTE it may affect the future of students therefore also the offence has rightly been registered against the petitioner. However it is not a case which falls within one of the rare of rarest conditions as specified in the judgment of State of Haryana v. Bhajan Lal (AIR 1992 SC 604 : 1992 Cri LJ 527) (supra). In view of the aforesaid prayer is made to dismiss the petition.(8.) After having heard the rival submissions the moot question arises for consideration wherein the facts of the case the ingredients to register an offence under Section 420 and Sections 177 and 181 of IPC of cheating and dishonestly induces delivery of property and to give false information on affidavit to which the punishment as specified is made out or not and whether it is one of the rare of the rarest case in which this Court may exercise inherent powers under Section 482 of Cr.P.C.ornot.(9.) Section 420 of IPC provides punishment of cheating and having dishonestly inducing delivery of property. In any case to find out the legal ingredients of commission of the offence of Section 420 of IPC the basic provision is required to be reproduced herein below :-Section 420 :- Cheating and dishonestly inducing delivery of property. -Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person or to make alter or destroy the whole or any part of a valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security shall be punished with imprisonment of either description! for a term which may extend to seven year s and shall also be liable to fine.(10.) Under the scheme of Indian Penal Code cheating has been defined in Section 415 of IPC and the punishment of cheating is under Section 417 of IPC and if cheating and dishonestly inducing delivery of property then offence may be punishable under Section 420 of IPC. Thus it is apparent that along with cheating dishonestly inducing the delivery of property is necessitated to make out an offence under Section 420 of IPC. However to find out the ingredients of cheating contents is required to be noted herein below. Cheating has been defined under Section 415 of IPC which reproduced herein below as under :Section 415 ;- Cheating.- Whoever by deceiving any person fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body mind reputation or property is said to cheat.(11.) Bare reading of the aforesaid it is apparent that whoever having an intention to deceive any person fraudulently or dishonestly with a person so deceive to deliver any property to any person or to consent that any person shall retain any property or intentionally induces to person so deceived to do or omit to do which he shall not do or omit if he not so deceived. The aforesaid act may likely to cause damage harm to the deceive person in body mind reputation or property. To make an offence under Section 420 of IPC additionally the ingredients of dishonestly inducing person deceive to deliver any property to any person or to make alter or destroy the whole or in part of the valuable security or anything which signed or sealed is further required.(12.) In the present' case on an information from a reliable source (not by AICTE or any public servant of AICTE) the complete material collected by the-prosecution is that the land was of the ownership of the Vikrant Educational and SocialWelfare Society. At the time of submission of application form for approval to AICTE an application to obtain the loan was submitted to the Bank which was sanctioned to the extent of 7.5 crores for construction of the college building. In the undertaking and two affidavits the petitioner has not disclosed the fact that the land upon which the college building is constructed and the approval thereto is granted by the AICTE is mortgaged with the Bank therefore it is alleged that not specifying the correct facts to the AICTE would amounting to concealment of the fact by furnishing the false information with an intent to obtain the letter of approval which is amount to cheating and dishonestly inducing the property which is punishable under Section 420 of IPC.(13.) On perusal of Annexure P-3 Clause 4.2.2 it is apparent that the land should be registered in the name of Society/ Trust on or before the submission of application form. It is further apparent that on the date of application there should be a clear title of the Society/Trust. It is also apparent that it can be mortgaged at a later date for the purpose of raising finance for development of the technical institution and an affidavit to that effect in the format is required to be submitted. The contents of the affidavit which has been allegedly treated as false information by the CBI is contrary to these instructions whereby the following wordings have been mentioned in the affidavit i.e. the land upon which the college building is constructed is not mortgaged or shall not mortgaged to any agency in future. In another affidavit it has also been mentioned that the land and building is not mortgaged or under any lien or charge or any other kind of encumbrances and shall not be subjected to such in future also.(14.) Thus prima facie the contents of affidavit obtained by AICTE is contrary to Clause 4.2.2. of approval process. More so bare reading of the said clause it is apparent that the intention of the AICTE is not that the land which is of the ownership of the Society or a Trust cannot be mortgaged but it may be mortgaged at later stage to generate the funds for development of the institution. In the present case if the loan has been taken from a Bank for construction of building as not disputed however in the context of Clause 4.2.2 the information supplied by the petitioner may be treated as false information which is the crux in the context of the present case. It is alleged the said affidavit is of false information furnished by the petitioner with a view to seek approval from the AICTE. In view of the foregoing it is clear that the contents of the affidavit which was obtained by AICTE was different from Clause 4.2.2 of norms. It is also undisputed that the loan was taken for development and construction of college building. However the only deviation is that on the date of application it was mortgaged. Whether such deviation would amounting to an offence as registered under Section 420 of IPC as alleged by the CBI. Section 420 of IPC not only deal the cheating with a view to cause harm to that person in body mind reputation or property but it deals the cheating with an intention of dishonestly delivering the property to any person or to make alter or destroy the whole or in part of the valuable security or any thing which is signed or sealed which is capable of being converted into a valuable security. The contents of the definition of cheating under Section 415 and the contents of Section 420 of IPC are somewhat different wherein the intention of dishonestly inducing the delivery of property must be there with a view to cause damage or harm to that person in body mind reputation or property. In the opinion of this Court merely submitting affidavits stating that the land is not mortgaged with the bank would not come within the purview of offence under Section 420 of IPC. Thus the ingredients of Section 420 of IPC under which the offence has been registered and the Challan has been filed by the CBI is conspicuously missing from the contents of the FIR and final report particularly when the intention does not reflect so in view of the condition No. 4.2.2 of the approval process as specified by the AICTE. Thus in the opinion of this Court to make out the cause of Section of 420 ingredients are not available in the FIR or in the Challan papers.(15.) The Apex Court in the judgment of Anil Ritolla @ A. K. Ritolia (AIR 2007 SC (Supp) 1002 : 2008 Cri LJ 353) (supra) has observed that the statute provide a thing to be done in particular manner for a particular remedy then appropriate action should be taken thereunder. In the present case if public servant of AICTE is of the opinion that the information supplied by the petitioner is false then the consequence as specified in the affidavits to take action for cancellation of the approval of the year 2009 - 10. It is relevant to note here that in the present case the AICTE has not made any complaint against the petitioner but the CBI has acted upon receiving some information and decided to proceed against petitioner under Sections 420 and 177 181 of the IPC. In the opinion of this Court such recourse is not warranted coupled with the fact that from the material collected by the prosecution the ingredients to register the offence under Section 420 of IPC is conspicuously missing.(16.) It is very surprising that the CBI has registered an offence under Section 177 and 181 of IPC also against the petitioner and the Court has taken cognizance thereupon. As per Section 195 of the Cr.P.C it is apparent the prosecution is for contempt of lawful authority of public servants for offences against public justice and and for offences relating to documents given in evidence to which procedure falls under Section 195 (1) (a) of Cr.P.C. Thereby no Court shall take cognizance of an offence punishable under Sections 172 to 188 (both inclusive) of IPC except on a complaint in writing by public servant concerned or by some other public servant to whom he is administratively subordinate. Complaint has been defined under Section 2 (d) of Cr.P.C which is reproduced herein below as under ;- 2 (d) -complaint means any allegation made orally or in writing to a Magistrate with a view to his taking action under this Code that some person whether known or unknown has committed an offence but does not include a police report.(17.) Undisputedly CBI has received an information in the present case through reliable source thereupon offence was registered by them under Sections 177 and 181 of IPC and Challan has been filed before the Court who has taken the cognizance. In the opinion of this Court the said action does not qualify the requirement of Section 195 of Cr.P.C. Once Section 195 uses the word complaint'' which is defined under Section 2 (d) then it may be understood the complaint must be oral or in writing to a Magistrate. The Challan filed by the CBI on some information of somebody in Court would not partake the character of a complaint as provided under Section 2 (d) because it does include a police report. My view fortifies and flow from the ratio of the judgment of Apex Court in the case of State of Punjab v. Brij Lal Palta AIR 1969 SC 355 : (1969 Cri LJ 645) and from the judgment of this Court in the case of Smt. Lilabai (supra). In view of the foregoing the CBI Court Indore cannot take cognizance of a complaint filed by CBI under Sections 177 and 181 of IPC against the petitioner until and unless oral or written complaint by the public servant of the AICTE or subordinate thereto has made.(18.) The Apex Court in the case of Bhajanlal (AIR 1992 SC 604 ;1992 Cri LJ 527) (supra) broadly specified the exigency wherein the powers under Section 482 of Cr.P.C. can be invoked which are quoted herein below : (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) Where the allegations in the first information report and other materials if any accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of section 155 (2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but con only a non-cognizable offence no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155 (2) of the Code. (5) Where the allegations made in the FIR or complaint are So absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceeding and or where there is a specific provisions in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) 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.(19.) The view expressed by the Apex Court in the case of Bhajanlal (AIR 1992 SC 604 : 1992 Cri LJ 527) (supra) has further been reiterated in the case of State of M.P v. Awadh Kisore Gupta and others 2004 (1) SCC 691 : (AIR 2004 SC 517 : 2004 Cri LJ 598) and recently in the case of Mahindra and Mahindra Financial Services Limited and another v. Rajiv Dubey 2009 (1) SCC 706 : (AIR 2008 SC (Supp) 821). Thus as per the aforesaid guidelines if the proceedings/prosecution clearly appears to be abuse of process of law then inherent powers of this Court under Section 482 of Cr.P.C. may be invoked. In the facts of the present case as discussed herein above it is apparent that the ingredients of the offence under Section 420 of IPC is conspicuously missing while the registration of an offence under Sections 177 and 181 of IPC by CBI is expressly barred if the procedure as specified under Section 195 (1) (a) of Cr.P.C. has not been followed. More so AICTE is having no grievance to receiving some deviated information and merely on the basis of some information received by the CBI the registration of FIR by CBI bearing No. RC082009A0019 as well as filing the Charge-Sheet bearing No.04/ 2010. before the CBI Court. Indore is clearly abuse of process of law and in the opinion of this Court it is one of the rare of rarest case in which inherent powers under Section 482 of Cr.P.C deserves to be invoked.(20.) Consequently this petition is allowed. The FIR as well as the Challan as filed against the petitioner for an offence under Sections 420 177 and 181 of IPC are hereby quashed. In the facts and circumstances of the case parties to bear their own costs. Petition allowed.