# P.C. to quash the proceedings of Criminal Case No.293 of 1999, State v. Gobardhan under Section 409 I.P.C. pending in the court of Ivth Additional Civil Judge

- **Citation:** High Court of Judicature at Allahabad #39541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/p-c-to-quash-the-proceedings-of-criminal-case-no-293-of-1999-state-v-gobardhan-39541
- **Pages:** 3

## Text

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By the Court

1. This is a petition under Section 482 Cr.
P.C. to quash the proceedings of Criminal
Case
No.293
of
1999,
State
Versus
Gobardhan under Section 409 I.P.C. pending
in the court of Ivth Additional Civil Judge
(Junior Division), Mirzapur.

2. The quashing of the proceedings have
been requested on two grounds. The first
ground is purely legal for which learned
counsel has relied on the decision of the case
of Raj Deo Sharma Versus State of Bihar,
1998 (37) ACC 834.

3. It is contended that the Hon'ble
Supreme Court in this case has directed that in
cases punishable with imprisonment for a
period exceeding seven years the court shall
close the prosecution evidence on completion
of three years from the date of recording the
plea of accused on the charges framed,
whether the prosecution has examined all the
witnesses or not within the said period, and
the court can proceed to the next step
provided by law for the trial of the case. It is
further contended that in the present case the
charges were framed on 12.07.1994 and the
plea of the accused was recorded on that date
and large number of dates have fixed for
evidence
but
the
prosecution
has
not
examined any witness as yet, and therefore,
the evidence of the prosecution should be
closed.

4. I have considered the argument and has
bonafide doubt in my mind as to whether the
evidence could be closed in this case which is
for offence under Section 409 I.P.C. which is
punishable with imprisonment for life in view
of the directions given in the above case. The
perusal of the judgement of the Hon'ble
Supreme
Court
shows
that
the
above
directions
are in addition and without
prejudice to the directions issued by the Apex
court in the case of "Common cause" Versus
Union of India as modified later on.

5. The perusal of the direction given in the
case of "Common Cause" by the Hon'ble
Supreme Court shows that these directions
2ALL] Gobardhan V The State of U.P. & others 59
 does
not
apply
to
the
cases
of
misappropriation of public fund. Therefore,
the decision of Raj Deo Sharma (Supra) will
also not apply to the offence under Section
409 I.P.C. as the direction given in this case is
without prejudice to the directions given in
the case of "Common Cause". If otherwise the
view is taken it will prejudice the directions
given in the case of "Common Cause".

6. There is another reason for finding that
the case of Raj Deo Sharma (Supra) does not
apply to offence punishable for death or
imprisonment for life. Section 53 of Indian
Penal Code provides of punishments which
reads as follows:

Punishments: The punishments to which
offenders are liable under the provisions of
this Code are: -

First -Death;

Secondly-Imprisonment
for
life;

Thirdly- (Deleted)

Fourthly-Imprisonment, which is of two
descriptions, namely-

(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly- Forfeiture of property;
Sixthly-Fine."

7. The perusal of the above Section shows
that punishments have been categorised in six
categories. The first and second are death and
imprisonment for life. The fourth is regarding
punishment
of
imprisonment.
Therefore,
where the Hon'ble Supreme Court has
mentioned regarding the punishment with
imprisonment of seven years or more it has
mentioned regarding the punishment provided
in the fourth category and no regarding
punishments of first and second category.
Therefore, in case of an offender liable to
punishment with death or imprisonment for
life under first and second category of Section
53 I.P.C. the decision of Raj Deo Sharma
(Supra) will have no application. Therefore,
the proceedings can not be quashed on the
basis of the decision of Hon'ble Supreme
Court in the case of Raj Deo Sharma (Supra).

8. Now coming to the second ground
which is factual. It is alleged that there was
dispute with managing committee and the
petitioner was appointed as adhoc Head
Master of the institution by the Basic Shiksha
Adhikari. That the management committee
did not accepted the petitioner as Head Master
and therefore informed the bank not to accept
the deposit made by the petitioner. That
therefore,
the
amount
realised
by
the
petitioner as fee etc. were not accepted by the
bank and therefore, the petitioner deposited
the same in the post office by opening a
separate
account.
That
the
Managing
Committee thereafter lodged an F.I.R. that the
amount was misappropriated. That in fact
there is absolutely no misappropriation and
the entire amount was deposited by the
petitioner. For this reason, nobody is coming
forward to support the case of the prosecution.

9. The narration of the facts as alleged by
the applicant, if are correct no prima facie
offence under Section 409 I.P.C. is made out
and the petitioner is facing trial since last
about more than five years.

10. In the circumstances I direct the trial
court to decide the case very expeditiously on
priority basis within six months from the date
of prosecution of the certified copy of this
order before it. The trial court may issue
directions to the prosecution to produce the
entire evidence on the date fixed with warning
that no adjournment shall be granted.

The petition is accordingly disposed
of.
-----------
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By the Court

1. This is petition under Section 482
Cr.P.C. to quash the proceedings of complaint
case no. 1920 of 1999. Durgesh Versus Ajay
Mehra and another under Section 406 I.P.C.,
police station Bilsi, Badaun pending in the
court of A.C.J.M., Badaun.

2. I have heard Sri Vineet Saran, learned
counsel for the petitioners and Sri Y.S.
Saxena, Learned counsel for the respondent
no. 1.

3. The brief facts of the complaint are that
the petitioners are the employees of I.B.P.
Company Limited Petitioner no. 1 is the
Senior Manager, Agra Division and petitioner
no.2 is Assistant Manger (Sales). Aligarh. It is
alleged in the complaint by the respondent
no.1 that the petitioners assured him to
appoint a dealer of mobile oil of I.B.P.
Company. That the petitioners approached the
complement and asked him to be ready with a
bank draft of Rs. 5 lacs. That accordingly on
17.02.1995 in the afternoon the respondent
no.1 handed over two bank drafts of Punjab
National Bank, Bilsi each for Rs. 2.50 lacs
bearing nos. 1-95-802830 and 5-95-802831
dated 15.02.1995. That in-spite of the said
drafts the respondent no. 1 was not appointed
as dealer. That therefore, the respondent no.1
on 16.02.1998 gave a registered notice to
I.B.P. Company. In spite of the same the
respondent no.1 was neither appointed a
dealer
nor
his
amount
was
returned.
Thereafter the respondent no.1 filed a
complaint against the petitioners for offences
under Section 420 and 406 I.P.C. The learned
Magistrate after recording the evidenced
under Section 200 and 202 Cr.P.C. has
summoned the petitioners.

4. The contention of the petitioners are
manifold. It is contended that the bank drafts
mentioned in the complaint were given in the
name of I.B.P. Company by Satish Chandra
Agarwal, who was the dealer of I.B.P.
Company for purchase of mobile oil and other
articles which were supplied to him. That no
draft was given by the complainant. That it is
not alleged that the drafts were given in the
name of petitioners and therefore, there is no
question of misappropriation of amount by the
petitioners. That the petitioners moved an
application for discharge before the learned
Magistrate, which has been registered.

5. It is further alleged that the allegation
of the complainant that drafts were given on
17.02.1995n in the afternoon is false, as the