Jitendra Kumar vs High Of Judicature At Allahabad And Others

Court No. - 32

Case :- WRIT - C No. - 33567 of 2012 Petitioner :- Jitendra Kumar Respondent :- High Court Of Judicature At Allahabad And Others Counsel for Petitioner :- Vijay Kumar,Ajit Kumar Srivastava Counsel for Respondent :- Yashwant Varma,Ashish Mishra,M. Goyal,S.C.

Hon'ble Arvind Kumar Tripathi,J. Hon'ble Salil Kumar Rai,J.

Heard learned counsel for the petitioner, learned Standing Counsel for the State, learned counsel appearing on behalf of High Court and perused the record.

The instant writ petition has been preferred with a prayer to issue writ order or direction in the nature of certiorari calling for the records from respondent No. 1-High Court of Judicature at Allahabad through its Registrar General and quashing the order dated 16.8.2011 passed by then Administrative Judge, Bareilly as communicated vide letter dated 30.1.2012 by respondent No. 1 (Annexure No. 10 to the writ petition) and with a further prayer to issue writ of mandamus directing the respondent No. 1 to re-examine the petitioner's complaint dated 20.8.2010 on administrative side.

Learned counsel for the petitioner has submitted that in District-Bareilly there exists Ruhilkhand Educational Charitable Trust to which Keshav Kumar, Ashok Agrawal, Lata Agrawal, Kiran Agrawal, Suresh Kumar are the office bearers of the said trust and Shri Ravindra Agrawal is the Chartered Accountant, in which the petitioner paid a sum of Rs. 28.50 lacs as loan without interest to the aforesaid office bearers of the trust, but only a sum of Rs. 8.50 lacs was shown in the balance-sheet of the trust and a sum of Rs. 20.50 lacs was misappropriated by them collusively and fraudulently.

The petitioner filed complaint dated 10.7.2007 under Section 156(3) of Criminal Procedure Code, registered as Case No. 484 of 2007 before the Chief Judicial Magistrate, Bareilly, which was rejected on 7.8.2007 by the then Chief Judicial Magistrate, Bareilly.

Being aggrieved, the petitioner preferred Criminal Revision No. 2790 of 2007 before this High Court, in which on 9.10.2007 the order rejecting the complaint vide order dated 7.8.2007 passed by then Chief Judicial Magistrate was set aside and the matter was remanded back to pass a fresh order. Thereafter application was placed before the Chief Judicial Magistrate. After hearing, the then Chief Judicial Magistrate vide order dated 27.11.2007 directed the Incharge, Police Station-Kotwali, District-Bareilly to register the case and re-investigate the matter.

In view of the compliance, the case was registered, however final report was submitted on 3.4.2008. Learned counsel for the petitioner submits that the version of the petitioner was accepted, but further observation was that member of the trust had refunded the amount against which protest petition was filed by the petitioner before Chief Judicial Magistrate, Bareilly-respondent No. 3, who heard the matter finally on 27.5.2010 and kept the matter for orders.

The trust moved application through then District Judge before the then Administrative Judge for early disposal of the case pending before the court of Additional Chief Judicial Magistrate. However, this fact appears to be incorrect because the application was pending before the Chief Judicial Magistrate.

The then Administrative Judge vide order dated 2.6.2010 passed the following order :-

"Delay denies justice" ensure and expedient hearing of the case and then disposal accordance with law within time bound framed".

Thereafter in compliance of the order dated 2.6.2010 the then District Judge, Bareilly vide order dated 3.6.2010 passed the following order :-

"Call for reports from the court concerned by 20.6.2010".

However, without giving any opportunity and without hearing, the then Chief Judicial Magistrate vide order dated 8.6.2010 rejected the protest petition and accepted the final report dated 3.4.2008. After the direction of the then Administrative Judge, neither any further date was fixed nor there was any further hearing, and the case was decided.

It is submitted by learned counsel for the petitioner that infact one of the office bearer was close to the then District Judge, who has treated and operated the wife of the then District Judge, hence under the pressure of the then District Judge, the then Chief Judicial Magistrate dismissed the protest petition filed by the petitioner without considering the contention of the petitioner. Thereafter, a complaint was made before the then Administrative Judge, however, the then Administrative Judge without considering the complaint passed the following order :

"......No further proceeding is required. Let the papers be consigned to record."

Hence, in the interest of justice the impugned order of the then Administrative Judge is required to be set aside and a direction may be given to pass fresh order for taking action against the guilty persons i.e. the then officers posted at Bulandshahr.

Learned counsel for the High Court has submitted that infact it is clear from the order-sheet that after hearing the matter on 27.5.2010 already date 8.6.2010 was fixed for orders, hence on that date no further hearing was required and rightly the order was passed by the then Chief Judicial Magistrate. Apart from that, the impugned order was challenged and the same was set aside, and the matter was remanded back. He further submits that the present petition has been filed with ulterior motive, hence the same may be dismissed as such.

According to para 5 of the writ petition, the protest petition filed by the petitioner before the then Chief Judicial Magistrate, who heard the arguments finally on 27.5.2010 and kept the matter for orders. From perusal of the order sheet, it is clear that 8.6.2010 was the date fixed, though on the application of the other side, direction was issued by the then Administrative Judge for expeditious disposal of the matter on 2.6.2010. It appears that since the date was already fixed, order was passed by the then Chief Judicial Magistrate. Hence, this contention that without giving any opportunity, without hearing and without giving any notices, the order was passed, is incorrect. '

Learned counsel for the High Court pointed out in the order sheet, that 23.5.2010 was noted in which 8.6.2010 was already fixed for orders, apart from that complaint was filed. Subsequently, criminal revision was preferred before this High Court challenging the impugned order dated 7.8.2007 passed by the then Chief Judicial Magistrate, Bareilly, whereby the impugned order dated 7.8.2007 was set aside and the matter was remanded in judicial side.

The then District Judge was elevated as Judge of this Court and subsequently he also retired. As far as the then Chief Judicial Magistrate is concerned during regular transfer he has also been transferred to other District.

In view of the facts and circumstances of the case, no such order is required as prayed by the petitioner. The present petition is devoid of merits, and is, accordingly dismissed.

Order Date :- 8.11.2017 Anurag/-