Pitambar Tyagi vs State of U.P. and Others

Amar Saran, J.—Heard Shri Mohammad Yusuf, learned Counsel for the applicant, Shri Gurfam Ali, who has filed his appearance slip on behalf of opposite party No. 3 and learned Additional Government Advocate.

This application has been filed with the prayer for quashing of the criminal proceedings in Case Crime No. 386 AU of 2006, u/s 420/406/409, I.P.C. police station Sadar Bazar, Saharanpur (although subsequently, learned Counsel for the applicant submits that Section 409, I.P.C. has wrongly been inserted) which was pending in the Court of Chief Judicial Magistrate, Saharanpur and also for withdrawing the proceedings in Case Crime No. 156 of 2007, u/s 2/3 of U.P. Gangsters Act.

It is argued by the learned Counsel for the applicants that the applicant is a retired B.D.O. and 72 years in age and hence the affidavit filed before the Chief Judicial Magistrate, Saharanpur regarding the compromise dated 12.12.2006 be accepted and the complainant may be permitted to compound the said offence.

The allegations in the F.I.R. were that the applicant was an authorised agent in the head post office, Saharanpur. He got two M.I.S. accounts for Rs. 54,000 opened of the complainant and after the period was completed on 29.4.2006, the complainant gave two pass-books to the applicant for return of the money as he wanted to deposit the said amount in another M.I.S. account, but in spite of repeated demands he was not given the new pass-book. After some time the complainant learnt that there has been a major scam at the post office and the accused persons have absconded. When he approached the bank authorities, he was told by Shri Manoj Kumar Gupta, Clerk and Shri Brij Bhushan Pal, the Assistant Post Master that amounts above Rs. 20,000 are returned only by cheque. However, the applicant collusively obtained cash with the help of the aforesaid two officials.

In the F.I.R. under the Gangsters Act, which has been annexed as Annexure-5 against ten accused persons, one of whom is the applicant at serial No. 5, the allegations were that the accused in the Gangsters Act formed an unlawful gang and by cheating and forgery, they embezzled large sums of money from unwary investors. So far as the other accused are concerned, they are involved in a large number of cases.

It is true that so far as the applicant is concerned, he is said to be involved in one case, but as it has been held by the Division Bench of this Court in the cases of Subhash v. State 1998 All JIC 394: 1998 (2) ACR 1267 and Kishan Pal alias K. P. v. State of U.P. (LIV)2006 ACC 1015: 2006 (2) ACR 1254, that even for a single incident if the totality of the circumstances suggest the commission of an offence under the Gangsters Act, the proceedings under the Gangsters Act can lie.

It may be noted that u/s 320 (2) of the Code of Criminal Procedure only where the value of the property is less than Rs. 2,000 that an offence u/s 406, I.P.C. can be compounded with the permission of the Court and even u/s 420, I.P.C. an offence can only be compounded by permission of the Court. If in the totality of the circumstances of the case the Court was not inclined to grant the said permission, I do not think that any interference with the said order can be called for by this Court.

Learned Counsel for the applicant has referred the decision of the Apex Court in the case of Smt. Reshma and Ors. v. Jai Narain and Ors. 2001 All JIC 103 .In that case during the pendency of the SLP before the Supreme Court in a case u/s 325, I.P.C. the offence had been permitted to be compounded. The Apex Court in the peculiar facts of that case granted the permission for compounding the offence u/s 320 (8) of the Code of Criminal Procedure.

On the basis of the said ruling, it cannot be said that in every case when the ramifications are even in the nature of a scam, as is the present case, such a permission should necessarily be granted.

It is rather unfortunate that in such a serious case the State has not cared to file a counter-affidavit because if this Court had been persuaded by the fact that the applicant seems to have scored up the matter with the complainant, he may have succeeded in getting the permission of this Court for compounding the offence or even for quashing of the proceedings and that could have stood as a precedent for the other accused to obtain similar orders, who are admittedly engaged in a major scam.

In view of what has been indicated hereinabove, there is no force in this application. It is accordingly rejected.

The trial court is directed to proceed with the trial expeditiously and, if possible, conclude it within six months.

Office is directed to communicate this order to the trial court within two weeks.