ASHOK BHUSHAN,J. - (1.) This appeal has been filed against the judgment of Delhi High Court dated 06.08.2018 dismissing the application filed by the appellant under Section 482 Cr.P.C. praying for setting aside the order dated 03.12.2014 and 13.12.2014 passed by Chief Metropolitan Magistrate, Saket Court, New Delhi and further to quash the F.I.R. No. 432 of 2000 under Sections 201, 409, 419, 420, 467, 468, 471, 120-B I.P.C. and the charge sheet.
(2.) The brief facts of the case necessary to be noted are:- 2.1 The appellant has been working at the relevant time as Manager in Bank of Baroda, Faridabad Branch. Mr. Anant Chatterjee, Director, Housing gave written complaint dated 14.11.2000. On said basis a FIR No. 432 of 2000 dated 15.11.2000 was lodged at PS Kotla Mubarakpur for offence under Section 201, 409, 419, 420, 467, 468, 471, 120-B IPC. It was the case of the prosecution that Mehender Kumar (Accountant), H.R. Sharma (Senior Account Officer), S.C. Chugh (Asstt. Director Housing), V.D. Nanda (Ht. FA (H) in collusion with other DDA employees M.L. Ahuja and Asha Gupta and property dealer S.K. Khanna and S.K. Goel and SPA holder of original allottee Praveen Kumar illegally acted on fake request of original allottee Mr. Gautam Dhar for cost reduction of flat from 10.66 lakhs to 7.77 lakhs with approval of competent authority and found that the original FDR and refund application dated 07.07.1994 was removed/misplaced from the DDA file. The F.I.R., however, alleged that refund cheque of Rs. 2,22,263/- was withdrawn by opening a saving bank account No. 33604 in Bank of Baroda, Faridabad with forged signature of the allottee. 2.2 After investigation, a charge sheet was submitted against the DDA officials, property dealers and Special Power of Attorney Praveen Kumar. A supplementary charge sheet was also filed, in which the appellant's name was included. In the supplementary charge sheet, it is mentioned that the appellant opened a fictitious savings bank account No.33604 in the name of Gautam Dhar in connivance with Praveen Kumar, attorney of Shri Gautam Dhar and Shri Rajinder s/o ShriBraham Pal in order to encash the cheque dated 07.01.2000 for Rs. 2,22,263/-. The supplementary charge sheet further stated that prosecution sanction under Section 197 Cr.P.C. has been obtained against DDA officials. Investigation agency also obtained report dated 30.12.2002 from Forensic Science Laboratory regarding handwriting on various documents. Handwriting opinion was also obtained with regard to signatures on account opening form of Gautam Dhar with the signature of the appellant. 2.3 An application dated 09.05.2012 was filed by the appellant before the ACMM, Saket Court, New Delhi in FIR No. 432 of 2000 stating that appellant is a public servant employed with a nationalized bank as a Manager and it is mandatory to seek prosecution sanction against the appellant in terms of Section 197 Cr.P.C. It was stated that prosecution has not sought prosecution sanction against the appellant-accused, hence he may be discharged on account of non-compliance of Section 197 Cr.P.C. The Chief Metropolitan Magistrate (South), Saket Court passed an order on 03.12.2004 rejecting the application of the appellant seeking discharge for want of sanction. Case was fixed for framing of charge on 13.12.2014. On 13.12.2014, charge was framed against the appellant under Section 465/120-B I.P.C. following charge was framed against the appellant on 13.12.2014:- "CHARGE I, Vivek Kumar Gulia, Chief Metropolitan, Magistrate (South), Saket Courts Complex, New Delhi do hereby charge you accused S.K. Mighlani son of Sh. Lai Chand Mighlani as under : That you, in 1996 and afterwards, at DDA, INA, Vikas Sadan, New Delhi and other places, alongwith co-accused Mahender Kumar, H.R. Sharma, S.C. Chugh, V.D. Nanda, Praveen Kumar, S.K. Khanna, S.K. Goel. M.L. Ahuja and Asha Gupta, agreed to commit criminal breach of trust with DDA, pursuant to which forged letters for depositing challans, application for change of address, related affidavit, application for reduction of cost bearing forged signature of allottee Sh. Gautam Dhar and forged seal of Notary were entertained and further the cheque issued in the name of allottee was encashed through forged account opened by you and thereby committed an offence punishable U/s. 120-B IPC and within the cognizance of this Court; Secondly, that you, at Bank of Baroda, Faridabad Branch, Haryana, forged the account opening form in the name of allottee Sh. Gautam Dhar (account no. 33604) with intention to get the refund cheques encashed and thereby committed an offence punishable U/s. 465 IPC and within the cognizance of this Court. I hereby direct you to be tried by this court for the aforesaid charges. CMM(South) Saket Courts New Delhi/13.12.2014 The charge is read over and explained to the accused in vernacular language and he is questioned as under: Ques.: Do you plead guilty or claim trial ? Ans. I plead not guilty and claim trial." 2.4 An application under Section 482 Cr.P.C. was filed by the appellant before the High court of Delhi, where following prayers have been made:- i. Set aside the order dated 03.12.2014 passed by Sh. V.K. Gulia, Ld. CMM, Saket Courts, New Delhi dismissing the discharge application of the petitioner; ii. Set aside the order dated 13.12.2014 passed by Sh. V.K. Gulia, Ld. CMM, Saket Courts, New Delhi, thereby framing charges against the petitioner by taking cognizance without obtaining sanction for prosecution as required U/s. 197 Cr.P.C. in the interest of justice; iii. Quash the FIR No .432/2000, U/s. 406/2 01/419/420/4 67/468/471/ 120B IPC registered at PS: Kotla Mubarakpur, Delhi, Charge-sheet U/s. 406/201/419/ 420/467/468/471/120B IPC and further proceeding emanating therefrom qua the petitioner; iv. Pass any such or further order(s) as this Hon'ble Court may deem fit and proper in the interest of justice." 2.5 The High Court vide the impugned judgment dismissed the application filed under Section 482 Cr.P.C. upholding the order of CMM dated 13.12.2014. Aggrieved against the said judgment, this appeal has been filed.
(3.) Learned counsel for the appellant in support of this appeal submits that the appellant, who was working as a Branch Manager in Bank of Baroda had permitted opening of a savings account No. 33604 in discharge of his official duty. The appellant being a public servant, sanction ought to have been obtained under Section 197 Cr.P.C. for prosecuting the appellant. It is submitted that although sanction has been obtained with regard to DDA officials, but no sanction has been obtained for the appellant. He submits that CMM committed error in rejecting the application of the appellant for discharge due to want of sanction. It is further submitted that the appellant's name came only in the supplementary charge sheet and allegations are only with regard to opening of a savings bank account. Investigation Agency has obtained opinion of handwriting experts with respect to signatures of Gautam Dhar on the account opening form and the specimen signatures of the appellant. It is submitted that in the report dated 30.12.2002, which was received from Forensic Science Laboratory, Govt. of NCT of Delhi with regard to signatures of Gautam Dhar on the account opening form and with the specimen signatures of the appellant, it has been mentioned in the report that it has not been possible to express a definite opinion on rest of the items on the basis of materials at hand. It is submitted that although the said report was very much with the I.O., another report was called for from the Chief Forensic Scientist and Director (FS) to seek further opinion from GEQD, Shimla. It is submitted that the report has been submitted by letter dated 29.10.2003 opining that the signatures of Gautam Dhar in the account opening form tallies with the specimen signatures of the appellant. He submits that the subsequent report, which was sent by letter dated 29.10.2003 could not have been relied, since in the signature of Gautam Dhar in the account opening form and signatures of the appellant there is no similarity. It is further submitted that in any view of the matter, opinion of a handwriting expert is only an opinion evidence, which is a weak nature of evidence and could not have been relied in rejecting the claim of the appellant that he has opened the account in exercise of his official duty. It is further submitted that the CMM in his order dated 03.12.2014 has held that forgery has been committed by the appellant in sanctioning the account opening form. It is submitted that appellant has been held guilty before even trial has proceeded.;