# Smt. Kumud Dhall v. State of U.P. & Anr

- **Citation:** (2020) 1 ILRA 666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-22
- **Case number:** Application U/S 482 Cr.P.C. No. 41674 of 2019
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kumud-dhall-v-state-of-u-p-anr-45257
- **Pages:** 3

## Headnote

A. Code of Criminal Procedure - Section
482 - Complaint-Offence of conspiracy for
commission of fraud by returning money
in account of accused persons by the
Applicant
(Branch
Manager)-Nothing
more than that in complaint regarding
conspiracy.
Applicant
had
returned
money in compliance of request made by
concerned Bank, from which that amount
were transacted, and after knowledge of
alleged fraud, the same money was got
returned back and is kept under freezed
account-No conspiracy or malice on the
part of accused applicant except her
routine performance of duty-Summoning
of
accused
applicant
is
apparently
without
any
evidence
on
record
amounting to misuse of process of law.
(Para 5)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

## Text

666 INDIAN LAW REPORTS ALLAHABAD SERIES
authority to make or transfer any valuable
security, or to receive any money etc. was
made punishable under PMLA, 2002.

(11) In view of the above, it is
apparent that the offence under Section
467 was punishable under PMLA of 2002
with effect since 1st July, 2005 while the
allegations against the present accused
relate to the period 2004-05 and 2005-06,
hence the argument of the learned counsel
for the applicant that the cognizance taken
against the accused applicant could not
have been taken for his having committed
offence under Section 467 I.P.C. does not
hold water as the same was already made
punishable under the PMLA of 2002 way
back in 2005. It is settled law that if even
one of the offences under which the charge
is found to have been made out, then it
cannot be denied that cognizance could
have been taken by the Court concerned
for having committed an offence under
PMLA of 2002. If offence under certain
other sections of I.P.C. or P.C. Act are
found not made out in respect of the
present accused during the period in
question due to penal provision not being
available then the said fact may be taken
into consideration by the Trial Court at the
time of trial and take appropriate decision
in that regard.

(12) Thereafter an amendment was
brought in PMLA, 2002 by the Prevention
of Money Laundering (Amendment Act;
2009) (in short no. 21 of 2009, 6th March,
2009) whereby, in Part B Section 120B
(criminal conspiracy) was added and the
same was made punishable under the
PMLA, 2002 under Section 3/4 of PMLA.
Apart from that Section 471 - using as
genuine or forged record, was also placed
in Paragraph 1 under Part B of the said Act
hence this offence also became punishable
under the PMLA, 2002 with effect from
06.03.2009. Further in Paragraph 5 under
Part B the Section 13 of P.C. Act -
criminal misconduct by public servant was
added, and was made punishable under the
PMLA, 2002. Thereafter, by Prevention of
Money Laundering Act, 2012 (in short 2
of 2013) which came into effect from 3rd
July, 2013 the above offences of I.P.C.
included in Part - B, were made part of
Part - A in Paragraph 1.

(13) As regards other objections that the
appeal against the attachment of the properties
of the applicant/accused was pending before a
Appellate Authority and that the order passed
by the learned Judge of C.B.I. Court had been
stayed by the High Court, Lucknow Bench
hence the cognizance under PMLA ought to
have postponed by the learned Trial Court till
final decision in that case, does not hold good
as there is no legal bar to initiating proceedings
under PMLA under such a situation.

(14) In view of the above, we are of
the view that impugned order does not
suffer
from
any
infirmity
and
the
application is liable to be dismissed and it
is, accordingly, dismissed.
----------
(2020)1ILR666

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.11.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 41674 of 2019

Smt. Kumud Dhall ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri
Krshna
Kant
Tiwari
1 All. Smt. Kumud Dhall Vs. State of U.P. & Anr.
667
Counsel for the Opposite Parties:
A.G.A., Sri Randhir Singh

A. Code of Criminal Procedure - Section
482 - Complaint-Offence of conspiracy for
commission of fraud by returning money
in account of accused persons by the
Applicant
(Branch
Manager)-Nothing
more than that in complaint regarding
conspiracy.
Applicant
had
returned
money in compliance of request made by
concerned Bank, from which that amount
were transacted, and after knowledge of
alleged fraud, the same money was got
returned back and is kept under freezed
account-No conspiracy or malice on the
part of accused applicant except her
routine performance of duty-Summoning
of
accused
applicant
is
apparently
without
any
evidence
on
record
amounting to misuse of process of law.
(Para 5)

Criminal Misc. Application u/s 482 Cr.P.C
allowed. (E-3)

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This application under Section 482
Cr.P.C. has been filed with a prayer for
quashing the order dated 04.09.2019,
passed by Chief Judicial Magistrate,
Ghaziabad including entire proceeding of
Complaint Case No. 32560 of 2018, under
Sections 420, 467, 468, 471, 120-B I.P.C.
Police
Station
Indrapuram,
District
Ghaziabad.

2. Learned counsel for applicant
argued that applicant was Branch Manager
in Punjab and Sind Bank, Branch
Kaushambi,
District
Ghaziabad.
An
amount was transferred from account of
Rohit Sharma, Rahul Sharma and Smt.
Urmila in account of Kamleshwaranand,
being
maintained
in
above
Bank.
Subsequently,
a
request
from
those
persons, through whom this amount was
transacted, was received that it was an
erroneous transfer and that amount be
returned back. This Branch Manager
complied above request and returned
above amount, for which there was no
guilty mind. Subsequently, this came into
her notice that there had been some
criminal litigation regarding alleged fraud
committed by Rohit Sharma, Rahul
Sharma
and
Smt.
Urmila
with
Kamleshwaranand.
The
amount
was
further remitted to this branch of Punjab
and Sind Bank, of which applicant is
Manager. Still that amount is lying in a
freezed account and there is no malice nor
any mens rea on the part of Branch
Manager in a transaction in between
Kamleshwaranand, Rohit Sharma, Rahul
Sharma and Smt. Urmila, but vide
impugned summoning order, this applicant
too has been summoned for offences
punishable under Sections 420, 467, 468,
471, 120-B I.P.C., which is apparently
erroneous and misuse of process of Court.
Hence, this application with above prayer.

3. Learned counsel for complainant
Kamleshwaranand argued that account of
Kamleshwaranand was with above branch
of Bank concerned, in which applicant was
Branch
Manager.
Kamleshwaranand
entered into agreement to sell of his own
flat and in lieu of consideration that money
was
transacted
in
account
of
Kamleshwaranand through RTGS and
once it was there the same may not be
returned back to those accused persons
against whom summoning is there, but it
was conspiracy of Branch Manager, who
returned above money and it was against
the guidelines of Reserve Bank of India
enumerated in Paras 3, 4 and 5 of Central
Government Act Section 23 in the
Payment of Settlement System Act, 2007
wherein Reserve Bank of India has given
668 INDIAN LAW REPORTS ALLAHABAD SERIES
direction. Hence, trial court has rightly
passed impugned summoning order and
this application is to be rejected.

4. Learned A.G.A. also vehemently
opposed the aforesaid prayer.

5. From the perusal of material
placed on record, it is apparent that
complaint was filed by Kamleshwaranand
against Rohit Sharma, Rahul Sharma, Smt.
Urmila Sharma, Smt. Kumud Dhall
(present applicant) and two others at
Police
Station
Indrapuram,
District
Ghaziabad. The contention was that
complainant being a senior citizen of 66
years was owner of flat No.III-A/50, First
Floor, Rachna Vaishali, Ghaziabad and he
entered in an agreement to sell with Smt.
Urmila for Rs.50,00,000/-, out of which on
28.03.2018 Rs.5,00,000/-, on 09.04.2018
Rs.2,00,000/-,
on
25.06.2018
Rs.10,00,000/-
and
on
26.06.2018
Rs.23,65,000/-, in all Rs.33,65,000/- were
paid. Rest Rs.9,35,000/- were said to be
paid subsequently before getting sale deed
executed, but the amount which was
transacted on 25.06.2018 and 26.06.2018
was got returned back by way of an
application with incorrect fact by those
accused persons and this came into notice
of complainant through SMS. Thereafter,
complainant enquired into the matter and
took above steps. Meaning thereby,
regarding applicant accusation is that she
being Branch Manager of Punjab and Sind
Bank, Branch Kaushambi returned back
money to those accused persons in view of
their request for getting same returned
back and this has been said to be under
conspiracy. Hence, complaint itself is for
offence of conspiracy for commission of
fraud by returning money transacted on
25.06.2018 and 26.06.2018 in account of
accused
persons
by
above
Branch
Manager. Nothing more than that is there
in complaint regarding this conspiracy.
Applicant herself has admitted that she had
returned above money in compliance of
request made by concerned Bank, from
which that amount were transacted, and
after knowledge of alleged fraud, the same
money was got returned back and is kept
under freezed account. Hence, apparently,
there is no conspiracy or malice on the part
of accused applicant except her routine
performance of duty. The summoning of
accused applicant for above offences is
apparently without any evidence on
record. Hence, it is misuse of process of
law.

6. Accordingly, this application is
allowed. The impugned summoning order
dated 04.09.2019, passed by Chief Judicial
Magistrate,
Ghaziabad
including
entire
proceeding of Complaint Case No. 32560 of
2018, under Sections 420, 467, 468, 471, 120B I.P.C. Police Station Indrapuram, District
Ghaziabad is hereby quashed, but it will not
effect the summoning regarding other accused
persons.
----------
(2020)1ILR 668

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.12.2019

BEFORE
THE HON'BLE RAMESH SINHA, J.

Application U/S 482 Cr.P.C. No. 43297 of 2019

Ramayan Yadav ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Imran Ullah, Sri Mohammad Khalid

Counsel for the Opposite Parties: