# Dr.(Smt.) Shashi Bala Srivastava v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 591
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-08-04
- **Case number:** Civil Misc. Writ Petition No.11804 of 1991
- **Bench:** A.K. Yog, Umeshwar Pandey
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-smt-shashi-bala-srivastava-v-state-of-u-p-and-others-40134
- **Pages:** 8

## Headnote

Constitution of India Article 226-ServiceAppointment-as
Lecturer-on
single
permanent
post-petitioners
name
at
serial no. 1 in Select List- endorsed by
Committee
of
Management-and
approved by the Vice Chancellor-only
petitioner could be allowed to joinjoining of any other person illegal and
void.

Held-Para 18

It is well settled that once Selection
Committee recommendation, endorsed
by the Committee of Management, was
approved by the Vice Chancellor, nothing
remained
in
substantive
law
to
accomplish
factum
of
Appointment,
except formality of issuing appointment
letter-a ministerial act on the part of the
Committee
of
Management.
The
Committee
of
Management
had
no
authority whatsoever to decline or to
refuse
to
appoint
the
petitioner.
Petitioner being at serial no.1 and one
permanent
post
of
lecturer
being
available, petitioner ought to have been
allowed to join the post and paid her
salary against the same. No objection in
law could be taken to it. No one, except
the petitioner, could be allowed to join
the said permanent post. Anybody, if
manipulated to have joined said post,
the same is illegal & void.

Constitution of India Article 226-Servicepetitioner a Lecturer claiming senior
scale and consequential benefits and
privileges-on
basis
of-notionalfunctioning-such period, held, to be
counted
for purposes of computing
seniority,
higher
scale,
annual
increments, post retrial benefits etc.-but
not for any monetary-benefits.
Held- Para 28

We also issue a writ, in the nature of
mandamus directing the respondents,
officers, authorities etc. to treat the
petitioner as deemed appointed with
effect from 11.12.1981 till defac to
joining the institution on the basis of her
appointment
letter
dated
16.1.1990
(Annexure-12
to
the
Writ
Petition
No.16275 of
1999)
and
accord
all
consequential benefits and privileges,
except monetary payments, for the
period she is notionally treated to be
working with effect from 11.2.1981 and
continue to pay salary along with all
allowances, increments etc. as may be
available time to time for the period
petitioner has defacto worked on the
basis of joining in pursuance to the
appointment letter dated 16.1.1990. It is
made clear that the petitioner will not be
entitled to any monetary benefits for the
period she is notionally working. Her
notional functioning in the institution
with effect from 11.12.1981 is for the
purposes of computing seniority, higher
scale, annual increments, post retiral
benefits etc.

## Text

3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others
591
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE UMESHWAR PANDEY, J.

Civil Misc. Writ Petition No.11804 of 1991

Dr. (Smt.) Shashi Bala Srivastava

 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri U.S.M. Tripathi
Sri P.C. Srivastava
Sri Shailendra
Sri S.L. Yadav

Counsel for the Respondents:
Sri A.K. Mishra
S.C.

Constitution of India Article 226-ServiceAppointment-as
Lecturer-on
single
permanent
post-petitioners
name
at
serial no. 1 in Select List- endorsed by
Committee
of
Management-and
approved by the Vice Chancellor-only
petitioner could be allowed to joinjoining of any other person illegal and
void.

Held-Para 18

It is well settled that once Selection
Committee recommendation, endorsed
by the Committee of Management, was
approved by the Vice Chancellor, nothing
remained
in
substantive
law
to
accomplish
factum
of
Appointment,
except formality of issuing appointment
letter-a ministerial act on the part of the
Committee
of
Management.
The
Committee
of
Management
had
no
authority whatsoever to decline or to
refuse
to
appoint
the
petitioner.
Petitioner being at serial no.1 and one
permanent
post
of
lecturer
being
available, petitioner ought to have been
allowed to join the post and paid her
salary against the same. No objection in
law could be taken to it. No one, except
the petitioner, could be allowed to join
the said permanent post. Anybody, if
manipulated to have joined said post,
the same is illegal & void.

Constitution of India Article 226-Servicepetitioner a Lecturer claiming senior
scale and consequential benefits and
privileges-on
basis
of-notionalfunctioning-such period, held, to be
counted
for purposes of computing
seniority,
higher
scale,
annual
increments, post retrial benefits etc.-but
not for any monetary-benefits.
Held- Para 28

We also issue a writ, in the nature of
mandamus directing the respondents,
officers, authorities etc. to treat the
petitioner as deemed appointed with
effect from 11.12.1981 till defac to
joining the institution on the basis of her
appointment
letter
dated
16.1.1990
(Annexure-12
to
the
Writ
Petition
No.16275 of
1999)
and
accord
all
consequential benefits and privileges,
except monetary payments, for the
period she is notionally treated to be
working with effect from 11.2.1981 and
continue to pay salary along with all
allowances, increments etc. as may be
available time to time for the period
petitioner has defacto worked on the
basis of joining in pursuance to the
appointment letter dated 16.1.1990. It is
made clear that the petitioner will not be
entitled to any monetary benefits for the
period she is notionally working. Her
notional functioning in the institution
with effect from 11.12.1981 is for the
purposes of computing seniority, higher
scale, annual increments, post retiral
benefits etc.

(Delivered by Hon'ble A.K. Yog, J.)

1. Dr. (Smt.) Shashi Bala/petitioner
represented by Sri Shailendra, Advocate;
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592 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
State of U.P., Director of Education
(H.E.) and District Inspector of Schools,
Deoria, Respondents no.1, 2 & 3
represented
by
Standing
Counsel;
Committee
of
Management
Madan
Mohan Malviya Post Graduate Degree
College, Respondent no.4, represented by
Sri A.K. Mishra, Advocate.

2. Both the writ petitions, noted
above, are being heard together since they
emerge from common facts and a dispute
between the same parties.

Madan
Mohan
Malviya
Post
Graduate Degree College, Bhatpar Rani,
District Deoria, is an affiliated College of
Gorakhpur University, governed by the
provisions of U.P. State Universities Act,
1973, called- 'Act 1973', First Statute,
Ordinances
and
Regulations
of the
University framed under Act, 1973 and
U.P.
Higher
Education
Service
Commission Act and Rules framed
thereunder. Subject of Ancient History
was
initially
granted,
provisional
affiliation in the College for running
postgraduate classes in the said subject.
Consequently, in June 1981 three posts of
lecturers were advertised and several
candidates applied against it. Eligible
candidates, including the petitioner were
called for interview. Selection Committee
on the basis of interview recommended
names of five candidates in the panel for
appointment on aforesaid three posts of
lecturers.

3. It is not disputed, that in the said
panel name of the petitioner, Dr. (Smt.)
Shashi Bala Srivastava was at serial No.1.

Para-3 & 4 of writ petition, not
controverted by any of the respondents,
read:-
"3. That a Selection Committee was duly
constituted
which
made
unanimous
recommendation on 8.9.1981 for the
appointment of three Lecturers in the
order of priority as under :-

(i) Dr. (Smt.) Shashi Bala Srivastava,
(ii) Mr. Alok Mani Tripathi,
(iii) Mr. Surendra Nath Singh,
(iv) Dr. Amar Nath Tripathi,
(v) Mr. Prem Kumar Mishra."

"4. That it is clear that the petitioner Dr.
(Smt.) Shashi Bala Srivastava was placed
at Serial No.1 in the priority list
recommended
by
the
Selection
Committee."

Committee of Management of the College
forwarded
relevant
papers
to
the
University for seeking approval of the
Vice Chancellor.

4. Vice Chancellor of the University,
accorded approval, modifying the order of
preference provided by the Selection
Committee, vide order dated December 7,
1981 (Annexure-1 to the writ petition).

5. Vice Chancellor, while agreed
with
recommendation
of
Selection
Committee in favour of petitioner's name
at Serial No.1; placed Sri Amar Nath
Tripathi at Serial No.2 (instead of Serial
No.4). Sri Alok Mani Tripathi (who was
at Serial No.2) was brought down to
Serial No.3; Sri Surendra Nath Singh,
candidate at Serial No.3 came down to
Serial No.4 last chance being offered
appointment against available three posts.

6. The petitioner pleads that in spite
of all statutory essential ingredients being
fulfilled for making appointment, the
Management of the College illegally and
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3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others
593
arbitrarily withheld appointment letter;
she ran pillar to post and approached all
concerned authorities but to no avail. The
petitioner complains that Management
allowed- Alok Mani Tripathi and Dr.
Amar Nath Tripathi (placed at Serial Nos.
2 & 3 by the Vice Chancellor), to join the
college. Surendra Nath Singh, (brought
down from Serial No.3 to Serial No.4, by
the Vice Chancellor) and the petitioner
were prevented and not allowed to join
the College.

7. Surendra Nath Singh and the
present petitioner filed representations
before Chancellor under Section 68 of Act
1973. The Chancellor, by means of order
dated May 18, 1983, allowed petitioner's
representation, Annexure-2 to the writ
petition. In pursuance to the said order of
the Chancellor, petitioner again filed
representations before the Management
and the University authorities vide letters
dated 27.6.1983, 17.8.1983, 13.2.1984,
15.6.1985,
3.9.1985
12.9.1989
and
2.9.1990 (Annexures 3 to 9 to the writ
petition).

8. The petitioner finally succeeded
in her long struggle when Management
issued appointment letter dated January
16, 1990, Annexure-11 to the writ
petition.

9. The petitioner, thereafter, filed
representation dated 18.8.1990/Annexure12 to the petition before the District
Inspector of Schools for payment of
salary with effect from January 16, 1990
to July 1990, Annexure-12 to the writ
petition.

10.

Again
a
protracted
correspondence took place. Petitioner
approached higher authorities, including
Directorate of Higher Education and
requested for payment of salary in
accordance with law. Reference may be
made to the letters dated 5.9.1990 and
4.10.1990, Annexures 13 & 14 to the
petition.

11. The District Inspector of Schools
vide letter dated 3.12.1990 asked the
Management
to
submit
papers
and
relevant record (Annexure-15 to the
petition).
The
District
Inspector
of
Schools vide letter dated 28.1.1991,
addressed to the Manager of the College,
(Annexure-17
to
the
writ
petition)
directed the Management to take steps for
ensuring payment of salary. The District
Inspector of Schools, however, vide
impugned order dated March 11, 1991
(Annexure-19 to the writ petition) held
that petitioner Dr. (Smt.) Shashi Bala
Srivastava could not be paid salary in
absence of a post.

The petitioner being aggrieved, filed
Writ Petition No.11804 of 1991 before
this Court and this Court passed an
interim order dated 18.4.1991, relevant
extract of it reads-

".....The
District
Inspector
of
Schools, Deoria is directed to make
payment of salary and other dues
permissible under law to the petitioner
within three months from the date of
receipt of a certified copy of this order for
the period commencing from the date
when she joined the service."

13. The relevant extract of para 3 of
the counter affidavit has been filed on
behalf of respondents 1,2 and 3 reads-

"3. That Madan Mohan Malviya
Post Graduate Degree College, Bhatpar
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594 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
Rani, District Deoria is aided institution
affiliated to Gorakhpur University the
post of lecturer of ancient history was
advertised by the College, the selection
proceedings were conducted by the
institution. The name of Dr. (Smt.) Shashi
Bala Srivastava was recommended by the
Selection Committee at Serial No.1 in the
order of priority and the name of Sri
Amar Nath Tripathi was placed at serial
no.2. This order of priority was also by
the
Vice
Chancellor,
Gorakhpur
University but the Management of the
institution ignoring the priority offered
appointment to Sri Amar Nath Tripathi
whose name was recommended at serial
no.2. Feeling aggrieved that Dr. (Smt.)
Shashi Bala Srivastava, the petitioner
approached
the
Chancellor
of
the
University. The reference was called by
his
Excellency
Chancellor
and
accordingly a direction was given to offer
appointment of Dr. (Smt.) Shashi Bala
Srivastava. It is reported that Dr. (Smt.)
Shashi Bala Srivastava has resumed work
with effect from 16.1.1990 since there is
only one post of lecturer of ancient
history sanctioned in the institution on
which one Sri Amar Nath Tripathi was
offered appointment and is continued to
be paid his salary. There is no additional
post of lecturer of ancient history is in the
institution. In the circumstances the
payment of salary of Dr. (Smt.) Shashi
Bala Srivastava is not being made. Since
one payment against one post is already
being made to Sri Amar Nath Tripathi
and absence of any additional sanctioned
post does not lie in the power of the
District Inspector of Schools to make
payment of salary under delegated power
given to him by Regional Deputy Director
for payment of salary to the teacher of
degree College. Rest of the allegation do
not relate to District Inspector of
Schools."

14. In reply thereto the petitioner
vide para 3 of her rejoinder affidavit
asserted-"in any circumstances, Amar
Nath Tripathi could not be allowed to be
absorbed against first sanctioned post.
Absorption of Mr. Tripathi against the
single sanctioned post was illegal and
being
aggrieved
against
the
said
petitioner field the present writ petition."

15. The Committee of Management
in para 3 of the counter affidavit, sworn
by Sri Bhartendu Misra admits that- "as a
matter of fact, the petitioner who was
placed at serial no.1 was issued letter of
appointment vide order No.4710 dated
9.12.1981 which was duly sent through
registered post to the petitioner after
expiry of more than 25 days time from the
date of issuance of the letter of
appointment, when the petitioner did not
join,
another
order
No.4732
dated
3.1.1982 was sent to the petitioner
intimating her that in case she failed to
join within a period of one week then it
will be treated that she is not interested in
accepting the appointment and she herself
will be solely responsible for it. Despite,
the reminder issued to the petitioner,
since she did not turn up in the institution
the Committee of Management treated
that she is not interested in joining the
post. The letter of appointment dated
9.12.1981 and reminder letter dated
3.1.1982 are enclosed as Annexures 1 & 2
respectively to this counter affidavit."

16. Para-4 of her rejoinder affidavit,
in reply to aforequoted para-3 of the
counter affidavit, reads-

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3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others
595

"4. That the contents of paragraph
no. 3 is denied while paras no.7 to 15 of
writ petition is reiterated while fact
placed by respondent no.4, it is clear that
authorities are playing fraud, as they are
making statement that they issued letter of
appointment in favour of petitioner on
9.12.1981
and
on
3.1.1982
issued
reminder to the petitioner providing 1
week more time for joining of the
petitioner but on the same time they are
also claiming appointment of Amar Nath
Tripathi on 11.12.1981. Therefore, either
the claim of opposite party for issuing of
letters for appointment on 9.12.1981 and
8.1.1982 are incorrect or claim of joining
of Amar Nath Tripathi on 11.12.1981 is
incorrect, statement is contrary to the
respondent Management may ask to put
an explanation that how both the
statements
are
correct,
otherwise
averment
in
para
under
reply
is
misconceived
and
deserved
to
be
rejected......"

17. The admitted position on
record... down to the petitioner clearly
that the Committee of Management had
accepted
decision
of
the
Selection
Committee, and the Vice Chancellor had
approved name of the petitioner at Serial
No.1 in the Panel. There is no doubt that
the Committee of Management is guilty
of acting arbitrarily playing fraud in
withholding appointment letter of Dr.
(Smt.) Shashi Bala Srivastava with
ulterior motive to give undue advantage to
the candidates lower in rank. Otherwise
also we find that after the matter was
finally
decided
by
the
Chancellor,
question of validity of appointment of the
petitioner cannot be reopened. It is also to
be noted that the petitioner's name was
recommended at serial no.1 which is not
disputed and or at any point of time from
any quarter.

18. It is well settled that once
Selection Committee recommendation,
endorsed
by
the
Committee
of
Management, was approved by the Vice
Chancellor,
nothing
remained
in
substantive law to accomplish factum of
Appointment, except formality of issuing
appointment letter-a ministerial act on the
part of the Committee of Management.
The Committee of Management had no
authority whatsoever to decline or to
refuse to appoint the petitioner. Petitioner
being at serial no.1 and one permanent
post of lecturer being available, petitioner
ought to have been allowed to join the
post and paid her salary against the same.
No objection in law could be taken to it.
No one, except the petitioner, could be
allowed to join the said permanent post.
Anybody, if manipulated to have joined
said post, the same is illegal & void.

19. Objection raised by the District
Inspector of Schools for non-payment of
salary to the petitioner on the ground of
non-availability of a sanctioned post is
perverse,
misconceived
and
against
record.

20. It is to be further noted that the
District Inspector of Schools passed
aforesaid
order
without
affording
opportunity of hearing to the petitioner
and thus, being in violation of principle of
natural justice is void and non est.

21.

Impugned
order
dated
11.3.1991, passed by District Inspector of
Schools
(Annexure-19
to
the
writ
petition) is unsustainable, and therefore,
liable to be quashed. Writ Petition
deserves to be allowed.
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596 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
22. In the result, a writ in the nature
of certiorari, calling for the record of the
case and the impugned orders dated
11.3.1991, Annexures 19 & 20 to the writ
petition, and all other consequential
orders are hereby quashed. We further
issue a writ in the nature of mandamus
commanding Respondents Nos. 1,2 and 3,
their officers, employees, etc. to ensure
payment of salary month by month to the
petitioner giving credit of notional annual
increments, revised pay scales (as may
have been enforced from time to time)
and also pay all arrears etc. in accordance
with law along with 12% p.m. simple
interest due with effect from January'
1990 and Rs.10,000/- as costs within three
months of receipt of certified copy of this
Judgment and Order.

Facts of Civil Misc. Writ Petition
No.16275 of 1999:

23. The petitioner was constrained
to file above petition claiming benefit of
senior scale on the ground of her
completing five years services in 1995,
which was rejected by the Principal. The
petitioner again represented the matter
before
Committee
of
Management,
claiming senior scale and submitted
reminder
again
on
27.4.1998.
The
Management of the institution, vide
impugned
order
dated
9.9.1998
(Annexure-1
to
the
Supplementary
Affidavit, accepted today) rejected the
claim of the petitioner. The petitioner also
seeks quashing of the impugned order
dated 24.2.1998 passed by the Principal of
the College refusing selection grade on
the ground that petitioner's Writ Petition
No.16275 of 1999 was pending in the
Court. The petitioner has again in
paragraphs 13 and 14 of the present
petition, complained of illegal act of not
allowing her to join and work in the
institution with effect from December
1981. In Para 13 of the writ petition, it is
pleaded that-"while on the same time they
assisted another candidate who was at
serial no.2 for joining working and
payment of salary since 11.12.1981. The
petitioner was entitled to allow joining
either with effect from 11.12.1981 or
prior to that. As in order of merit, she was
above to Dr. Amar Nath Tripathi."

Again, Para 45, 46 & 47-A of the
writ petition read:-

"45. That in view of these facts and
circumstances this Hon'ble Court may
take serious cognizance asking the
management to provide all benefit to the
petitioner given to preferential treatment
against the respondent no.5 and she must
be treated working against the post got
sanctioned one after approval of her
appointment by the Vice Chancellor, she
is entitled of the benefit in view of the
decision
of
the
Chancellor
dated
18.5.1983 and even prior to that, since the
approval given by the Vice Chancellor
dated 7.12.1981 as she was not only
recommended at serial no.1 but also
approved at the same position by the Vice
Chancellor.

46.
That
the
Committee
of
Management
is
guilty
of
showing
disrespect of high degree to decision of
His
Excellency
the
Chancellor,
Gorakhpur University, Gorakhpur dated
18.5.1983. They also guilty of violating
the order of Vice Chancellor dated
7.12.1981. They also guilty of introducing
unfair practice in the matter of selection
while providing appointment immediately
to respondent no.5, only because of he is
being relative to the then Manager as well
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3 All] Dr.(Smt.) Shashi Bala Srivastava V. State of U.P. and others
597
as to the present Manager, i.e. for
extraneous
consideration
adversely
effecting the career in all respect of the
petitioner.

47-A.
That it is expedient in the
interest of justice and equity that this
Hon'ble Court may pass an ad-interim
order,
objection
the
counter
and
Management to allow selection grade and
promotion on the post of Reader to
petitioner treated his appoint since 1981
as per order of Vice Chancellor dated
7.12.1981 and order of Chancellor dated
18.5.1983 or may pass such further order
this Hon'ble Court may deem fit in the
circumstances of the case otherwise it will
come
irreparable
injury
to
the
petitioner."

24. The petitioner, therefore, prayed
for writ of certiorari and also for issuing a
writ
of
mandamus
directing
the
respondents to provide all benefits,
including senior scale as announced by
the Government Order dated 7.1.1989 as
also the benefit as per Government Order
dated 16.2.1999.

25. Learned counsel for the
petitioner Sri Shailendra, has made a
categorical statement before us that the
petitioner (though entitled to all benefits,
privileges etc. treating her notionally
working on the post at least from the date
with effect from 11.12.1991, i.e., prior to
joining by candidates at Serial No.2 & 3)
claim arrears and or monetary gain for the
period for which she has not defacto
discharged her duties but this Court may
accord all other benefits and privileges
treating her notionally in continuous
service with effect from 11.12.1991

26. We are of the view that the
petitioner should not be made to suffer for
no fault of her and only because of illegal
and arbitrary acts of the Manager.

27. In the result, we issue a writ, in
the nature of certiorari, calling for the
record of the case, and quash the
impugned order dated 24.2.1998 written
by the Manager to the College Principal
(Annexure 20 to the Writ Petition
No.11804 of 1991) and letter dated
9.9.1998 written by the Manager of the
College to the petitioner (Annexure-1 to
the Supplementary Affidavit) are hereby
quashed.

28. We also issue a writ, in the
nature
of
mandamus
directing
the
respondents, officers, authorities etc. to
treat the petitioner as deemed appointed
with effect from 11.12.1981 till defacto
joining the institution on the basis of her
appointment
letter
dated
16.1.1990
(Annexure-12
to
the
Writ
Petition
No.16275 of 1999) and accord all
consequential benefits and privileges,
except monetary payments, for the period
she is notionally treated to be working
with effect from 11.2.1981 and continue
to pay salary along with all allowances,
increments etc. as may be available time
to time for the period petitioner has
defacto worked on the basis of joining in
pursuance to the appointment letter dated
16.1.1990. It is made clear that the
petitioner will not be entitled to any
monetary benefits for the period she is
notionally
working.
Her
notional
functioning in the institution with effect
from 11.12.1981 is for the purposes of
computing seniority, higher scale, annual
increments, post retiral benefits etc.
Petitioner whose name is at Serial No.1 in
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598 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
select list, shall be treated Senior to others
in the said select list.

Both the Writ Petitions, details given
above, stands allowed.

No order as to costs.
---------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 9.5.2003

BEFORE
THE HON'BLE R.K. DASH, J.

Criminal Misc. Application No. 1191 of 1998

Ms. Nina Nagpal ...Applicant/Petitioner
Versus
Judicial Magistrate-I Meerut and another

...Opposite parties/Respondent

Counsel for the Petitioner:
Sri Kushal Kant
Sri G.S. Chaturvedi

Counsel for the Respondents:
Sri Ravi Kiran Jain
Sri Ajay Rajendra
A.G.A.

Code of Criminal Procedure- section482- Circumstances under which the
power can be exercised- Quashing of
criminal proceeding under article 226 or
under section 482 Cr. P.C. awaited well
settled by various decisions of the
Supreme
Court
that

where
the
allegation made in the F.I.R. or the
complaint, even if they are taken on its
face value and accepted in their entirety
do not prima-facie constitute any offence
or make out a case against the accused;
also where the allegation made in the
F.I.R. or complaint are so absurd and
inherently improvable on the basis of
which no prudent person can reach a
just conclusion that there is sufficient
ground
for
proceeding
against
the
accuse. Impugned order quashed.

Held- pare 12 & 15

In the case on hand, in view of the
allegations made in the complaint none
of the ingredients are satisfied, in as
much as, it is not alleged by the
complainant, respondent no. 2 that he
had entrusted the amount in question
with the petitioner or the petitioner
having dominion over the said amount
dishonestly
misappropriated
it.
The
learned Magistrate without looking to
the
accusation
and
the
statutory
provision mechanically took cognizance
of the offence of criminal breach of trust
which in my considered opinion is not
legally sustainable.

Added to what has been stated above,
the case may be viewed from another
angle. For realisation of the amount
deposited with the OTCEI, respondent
no. 2 filed a writ petition in the Delhi
High Court arraying petitioner as one of
the respondent and admittedly, the said
writ petition is pending for decision. He
concealed this fact while filing the
present case. True it is, law is well
settled that even if the facts give rise to
a civil claim, yet a criminal proceeding is
maintainable and both the proceedings
can simultaneously continue. But so far
the present case is concerned, as stated
earlier, the allegations taken in entirety
do not make out any offence, more so,
offence under Sections 406 and 420
I.P.C. If on a reading of the complaint
ingredients of those two offences would
have been spelt out, this Court would
have been slow to interfere with the
impugned
orders
of
the
learned
Magistrate taking cognizance of the
offence in exercise of inherent power.
Rather what appears is that since the
writ petition is pending in the Delhi High
Court and no early decision could be
obtained, respondent no. 2 adopted this
devise
in
initiating
the
criminal
proceeding
in
order
to
force
the
petitioner to refund back the amount.
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