- (1.) HEARD Mr. Salil Kumar Srivastava for the petitioner, Mr. Rajendra Kumar Dwivedi, learned AGA for the respondent no. 1 and Mr. Anadi Banerji for the respondent no.2 and perused the record.
(2.) THIS is a petition under section 482 CrPC for quashing the proceedings of the criminal case no. 5133 of 2006 (State vs. Kripal Singh Abott and others), arising out of crime no. 208 of 2003, under sections 406, 504, 420, 201 and 120-B IPC, police station Hazratganj, district Lucknow, pending in the court of Additional Chief Judicial Magistrate, Court No. 27, Lucknow and also for quashing the order dated 20.3.2010 whereby the learned Magistrate rejected the petitioner's discharge application and the order dated 6.7.2010 whereby a non bailable warrant has been issued against him. The learned AGA raised the question of maintainability of the present petition on the ground that the first petition, which was also for quashing the charge sheet as well as the summoning order has already been dismissed by this Court, therefore, the present petition in regard to the same relief is not maintainable. Mr. Salil Kumar Srivastava, on the other hand, submitted that in view of the direction of this Court in the first petition, the petitioner moved an application for discharge which has been rejected by the learned Magistrate vide the impugned order dated 20.3.2010, therefore, the present petition, being based on a fresh cause of action is maintainable. The first petition under section 482 CrPC (Criminal Misc. Case No. 446/2007, Vijay Kumar Trivedi vs. State of U.P. and another) for quashing the charge sheet was finally disposed of by Hon'ble A. Mateen, J. on 13.4.2009 with the following observations: "It has first been submitted by learned counsel for the petitioner that the in the matter which erupts from the aforesaid crime number, twice the police had submitted final report, but the matter was further investigated by the police, which ultimately culminated in the shape of charge sheet. Grave stress has been laid by learned counsel for the petitioner that it will amount to 're-investigation' and not 'further investigation'.When asked for, he was not able to point out that there was any order with respect to reinvestigation of the case. It is the prerogative of the State Government under Section 173 (8) Cr.P.C. and the matter can be reinvestigated at any point of time for which there is no bar. The other limb of argument of learned counsel for the petitioner is that there is no sufficient evidence on record so as to allow the learned Magistrate concerned to take cognizance of the aforesaid case in the aforesaid sections. Without commenting any further with respect to the sufficiency or insufficiency of material on record to enable the Magistrate concerned to take cognizance of the case, I direct that the petitioner shall approach the court concerned and move application under Section 239 Cr.P.C. taking such points as have been raised in the petition before this Court within 25 days from today, and if such an application is moved, the Court concerned shall proceed with the case after deciding said application in accordance with law. If such an application is moved by the petitioner within the time granted above, the petitioner shall not be arrested in connection with above case crime number. It is made clear that if the petitioner fails to abide by the time schedule as provided above for moving application under Section 239 Cr.P.C., benefit of this order shall not be available to him and the court below shall proceed with the case in accordance with law. With the above observations/directions, the petition is finally disposed of."
(3.) IN view of the fact the petitioner could not get any relief regarding his prayer for quashing the charge sheet as well as the summoning order in the aforesaid first petition, the present petition for quashing the proceedings of the aforesaid criminal case and the summoning order can not be entertained and to this extent the present petition is not maintainable. But in compliance of the aforesaid order the petitioner moved an application for discharge under section 239 CrPC, which has been rejected by the Additional Chief Judicial Magistrate vide the impugned order dated 20.3.2010 holding that a prima facie case was made out against the petitioner and other accused, therefore, they were not entitled for the discharge. Against the order of the Additional Chief Judicial Magistrate the petitioner filed second petition under section 482 CrPC (Criminal Misc. Case No. 2222/2010 Vijay Kumar Trivedi vs. State of U.P. and others) but the learned counsel for the petitioner withdrew that petition with the liberty to file a fresh petition. Thereafter the present petition has been filed. Since the learned Additional Chief Judicial Magistrate disposed of the petitioner's application for discharge by the impugned order dated 20.3.2010, therefore, the present petition questioning legality of the order dated 20.3.2010 seems to be maintainable and to this extent the petition is liable to be considered on merit. The facts of the case are that the petitioner Vijay Kumar Trivedi was Cashier (Chest) in the Bank of Baroda, Main Branch, Hazratganj, Lucknow and was relieved on 8.5.2003 on account of his transfer. Co-accused K.S. Abott was the Assistant General Manager in the said branch. Mr. Abott without prior permission of the competent authority, attached the petitioner to the Main Branch again with effect from 9.5.2003 for proper handing over of the charge. The occurrence of this case took place on 14.5.2003, i.e. during the period the petitioner had been required to work again in the Main Branch Hazratganj, Lucknow. M/s Singhoo Travel and Tours Private Limited, Shahnazaf Road, Lucknow had a cash credit account in the aforesaid branch of the Bank of Baroda. The respondent no.2 is the proprietor of the said Singhoo Travel and Tours Pvt. Limited. The petitioner and the co-accused K.S. Abott requested the respondent no.2 to pay a sum of Rs. Forty two lakhs because inspection of the Bank was likely to take place and the money was required in connection therewith. When the respondent no.2 told that he had merely a cash credit limit of only Rs. Seven lakhs, the co-accused K.S. Abott replied that the cash credit limit would be enhanced. Accordingly the cash credit limit was enhanced by the co-accused. Moreover, the petitioner and the co-accused K.S. Abott assured the respondent no. 2 to refund the money very soon. On the assurance of the petitioner and the co-accused, the respondent no.2 handed over the cheque no. 603785 dated 14.5.2003 for Rs. Forty two lakhs to the petitioner, which was payable to self or bearer. The respondent no.2 had also put his signature on the back of the cheque by making the endorsement "for the purpose of international ticket". The prosecution case is that the cash amount of Rs. Forty two lakhs mentioned in the aforesaid cheque was not paid to the respondent no.2 nor any entry to that effect was made in the bank record. According to the Scroll Register of the cash chest, Rs. forty two lakhs was received by the petitioner but the whole amount was debited in the account of the respondent no.2. On investigation the investigating officer found that the respondent no.2 handed over the aforesaid cheque to the petitioner and the co-accused K.S. Abott on the aforesaid assurance given by them which he believed to be true but they, while acting under the criminal conspiracy, dishonestly misappropriated the entire amount mentioned in the cheque and did not repay as per the assurance. When the respondent no.2 demanded the money, the petitioner and the co-accused refused to repay. It is also alleged that the petitioner took additional amount of Rs. 42,137/- from the respondent no. 2 for air and train tickets but did not refund that amount also and criminally misappropriated the same. When the respondent no.2 demanded the money, the petitioner gave threatening to kill him. Scroll Register of the cash chest has also been misplaced by the petitioner and the co-accused, with the object of eliminating a material evidence of the case. The respondent no.2, while acting under the cloud of assurances given by the petitioner and co-accused, wrote various letters to the Bank seeking time to repay the amount taken by him through the process of enhancement of the cash credit limit.;