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Allahabad High Court says delay in filing FIR can’t absolve criminal proceedings in case

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The Allahabad High Court has observed that only on the ground that there was a delay in lodging of the first information report, entire criminal proceedings could not be set aside ignoring the contents of FIR and investigation thereof.

A single-judge bench of Justice Saurabh Shyam Shamshery passed the order rejecting the application by one Shiela Gupta filed under Section 482.

The dispute in the case is arising out of a Committee of Management of Sushila Jaswant Rai Maternity Hospital, Meerut under Jaswant Rai Churamani Trust Society.

Undisputedly, the applicant was appointed chairperson of the said hospital by a resolution dated 02.10.2001 and she remained in the post till 15.02.2019, thereafter, one Rajiv Kumar Gupta was appointed as chairman of the hospital.

It is the case of the complainant (one of the trustees/chairman of the Trust) that said new committee came to know in July 2020 that the applicant in connivance with other accused persons prepared a lease deed by misrepresenting herself to be a trustee of said hospital and executed it in favour of Shreya Medicare Private Ltd through its Director Mridul Sharma w/o Dr Malay Sharma and handed over major part of hospital to them and thereby caused unlawful loss to society and to hospital and unlawful gain in favour of accused persons.

In these circumstances, an FIR was lodged by complainant against the applicant and other accused persons on 07.10.2020 bearing Case under Sections 420, 467, 468, 471 at Police Station Civil Lines, District Meerut. The Investigating Officer conducted investigation and recorded statements of witnesses and came to a conclusion that there were sufficient evidence against applicant and other accused persons for committing offence under Section 420, 406 IPC by applicant and offence under Section 420, 406, 120-B IPC by other accused persons, viz, Mridul Sharma and Dr Malay Sharma, and a charge sheet was filed, whereof cognizance was taken and summons were issued to applicant and other accused persons.

The applicant is aggrieved by above referred criminal proceedings, charge sheet and its cognizance and therefore she is before the Court.

Dileep Kumar Pandey, the counsel for the applicant submitted that she is an old woman, who served as chairperson of hospital for a long period and acted only for benefit of hospital and trust. She became a trustee as per resolution dated 13.08.1995 and in furtherance of later resolution dated 01.10.2001, she was looking after the affairs of the hospital also.

Therefore, the applicant has not made any misrepresentation while executing the lease deed. The FIR was filed after six years and there was no explanation for such a huge delay. The purpose of the lease deed was to meet our day-to-day expenses of the hospital and therefore the purpose was for the benefit of the hospital and society. There was no wrongful gain to the applicant or other accused or wrongful loss to the hospital.

The counsel also pointed out that in the lease deed, it was specifically mentioned that applicant was Chairman of Management of Committee of hospital at the relevant time, therefore, the applicant has not misappropriated any property nor by cheating and dishonestly, induced any person to deliver any property.

The counsel also submitted that offence under Sections 406 and 420 IPC cannot go together being an antithesis.

The applicant has also lodged an FIR against one Rajiv Gupta and others of complainant side alleging they have manufactured fictitious documents and forged her signature and the criminal proceedings were counterblast to it. The applicant is presently 90 years old and is suffering from cancer and other ailments.

The above submissions were vehemently opposed by Srijan Pandey holding brief of Swetashwa Agarwal, counsel for opposite party No 2 that during the period of applicant, being Chairman of hospital, not only the lease was executed on throw away price but huge money was also siphoned and for that a separate FIR was lodged on 17.11.2021 against applicant and other accused persons under Section 409 IPC.

He further submitted that by way of lease, the applicant and other accused persons wanted to encroach upon the property of the hospital in order to provide monetary benefit to others and to cause loss to the hospital as well as to the society. The hospital is situated in a posh area of Meerut city and monthly rent of Rs 20,000 was on a very low side. Investigation has already been conducted and there is sufficient evidence that applicant along with other accused person has committed offences under Sections 420, 406 IPC and ingredients thereof are prima facie made out.

The Court observed that the first submission of the counsel for applicant was that there was a delay of six years in lodging an FIR, therefore, it was an afterthought only to harass the applicant. No doubt that there was a delay of six years in lodging of FIR, however, as stated by counsel for the respondents that new Management Committee took over in 2019 and after going through the documents, it was revealed that the lease deed was made by misrepresentation. Otherwise also only on the ground that there was a delay in lodging of first information report, entire criminal proceedings could not be set aside ignoring the contents of FIR and investigation thereof.

The Court further considered whether prima facie ingredients of Section 405 IPC are made out or not. As referred above, the ingredients of offence of criminal breach of trust are entrustment with property and thereafter dishonestly disposal of said property. Undisputedly, the applicant was a Chairman of the hospital, therefore, she along with other members of Management Committee, made an entrustment of the trust’s property. Therefore, disposal of said property with dishonest intention was in violation of conditions express or implead carrying out the trust, management of hospital, when she was not authorized to execute a lease, therefore, it was in violation of express term of carrying out the trust and definitely, therefore, it would fall under the offence of criminal breach of trust.

The Court further observed,

There are allegations against the applicant that she dishonestly executed a lease in favour of other accused only to usurp the property and to cause unlawful loss to the hospital and unlawful gain to other accused persons and the allegations were found to be true after investigation and now a charge sheet has been filed. Therefore, ingredients of Sections 405 IPC are prima facie made out.

Lastly, the Court has to see whether ingredients of Section 420 IPC (cheating and dishonestly inducing delivery of property) are made out or not. During investigation, it has come that the applicant was not authorized to execute a lease, however, she misrepresented herself to be a trustee of hospital whereas admittedly she was a Chairman of the hospital at the relevant point of time and the lease deed was executed at throw away price without any termination clause and as such it was wrongful loss to the society and therefore, prima facie ingredients of cheating and dishonesty are present and as such offence under Section 420 IPC is also prima facie made out.

As discussed above, when on the basis of evidence on record, prima facie a case is made out and ingredients thereof are present, the Court cannot exercise inherent powers which will cause sudden death of criminal proceedings. The facts and circumstances of the case, therefore, do not fall under category that ‘allegations are frivolous’ or ‘do not disclose any offence’ and therefore, it does not fall under ‘exceptionally rare cases’ wherein exercise of inherent powers is warranted, the Court held.

In view of above consideration and analysis, the Court does not find any ground to quash the criminal proceedings against the applicant and as such this application is rejected.

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