Central Board Of Trustees v. State Of Chhattisgarh

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR WPCR No. 832 of 2021

1. Central Board of Trustees Employees Provident Funds Organization ThroughAssistant Provident Fund Commissioner (APFC) Block 'D' Scheme No. 32, Indira Gandhi Vyavsayik Parisar Pandri, District Raipur (Chhattisgarh) 492004.

2. Regional Provident Fund Commissioner-I, Employees Provident Fund Organization, Regional Office, Chhattisgarh, Block D Scheme No. 32, Indira Gandhi Vyavsayik Parisar, Pandri, District Raipur (Chhattisgarh) 492004. ---- Petitioners

Versus

1. State of Chhattisgarh Through The Principal Secretary, Department Of Home, Mahanadi Bhawan, Mantralaya, Naya Raipur, District Raipur (Chhattisgarh).

2. The Senior Superintendant of Police District Raipur Chhattisgarh.

3. The Station House Officer, Police Station Devendra Nagar, District Raipur (Chhattisgarh).

4. The Karur Vysya Bank Through Its Branch Manager, Branch Raipur, Epi Centre, Near Yashwant Hospital, Tatyapara, G.E. Road, Raipur, District Raipur (Chhattisgarh) 492001.

5. Nuvoco Vistas Corporation Ltd. Through Its Company Secretary Registered Office- Equinox Business Park, Tower-3, East Wing, 4th Floor, Opp- Bandra Kurla Complex LBS Marg Kurla (West) Mumbai 400070 (Maharasthra State).

6. Nuvoco Vistas Corporation Ltd. Sonadhi Cement Plant District Baloda Bazar, Bhatapara Chhattisgarh 493332.

---- Respondents For Petitioners :

Mr. Sunil Pillai, Adv.

For State :

Mr. Ayaz Naved, G.A.

Hon'ble Smt. Justice Rajani Dubey Order on Board 15/12/2021 1.

The facts projected by the petitioners are that an amount of Rs. 14,00,229/- has been fraudulently withdrawn by unknown persons by getting the PF amount of one member namely Shri B. Jagannath Rao transferred to a Bank account opened in the respondent No. 4 Karur Vysya Bank using fake documents like PAN Card etc. On receipt of an email complaint from the said member regarding fraudulent withdrawal of the amount from his PF account. Matter was investigated by the petitioner No. 2 and prima facie, it was found that fraudulent withdrawal of Rs. 14,00,229/- has taken place from the PF account of said member. Thereafter, information of said cognizable offence was given to respondent No. 3 vide letter dated 04.08.2021, neither cognizance has been taken nor any effort was made for investigation by the respondents. Hence, this petition is for registration of an FIR and to conduct investigation in the matter in accordance with law.

2.

On the basis of this factual matrix, the petitioners have filed this petition and prayed for following reliefs:- a.

The Hon'ble Court may kindly be pleased to direct the Respondent no. 3 to register the FIR on the basis of complaint/information (Annexure P/9) dated 04.08.2021. b.

The Hon'ble Court may kindly be pleased to direct the Respondent No. 2 to conduct investigation in the matter in accordance with sub-section (3) of Section 154 of Cr.P.C.

c.

The Hon'ble Court may kindly be pleased to direct the respondent No. 4 Bank to reimburse of Rs. 14,00,229/- to the petitioner.

d.

The Hon'ble Court may kindly be pleased to grant any other relief as it deems fit and proper in the facts and circumstances of the case.

3.

The Hon'ble Supreme Court in case of Sakiri Vasu Vs. State

of Uttar Pradesh & others 1, has examined the issue in paragraphs 27 and 28 and held as under:- "27. As we have already observed above, the Magistrate has very wide powers to direct registration of an FIR and to ensure a proper investigation, and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself). The High Court should discourage the practice of filing a writ petition or petition under Section 482 Cr.P.C. simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, proper investigation has not been done by the police. For this grievance, the remedy lies under Section 36 and 154 (3) before the concerned police officers, and if that is of no avail, under Section 156 (3) Cr.P.C. before the Magistrate or by filing a criminal complaint under Section 200 Cr.P.C. and not by filing a writ petition or a petition under Section Cr.P.C. "28.

It is true that alternative remedy is not an absolute bar to a writ petition, but it is equally well settled that if there is an alternative remedy the High Court should not ordinarily interfere."

4.

The judgment passed by Hon'ble the Supreme Court in Sakiri Vasu (Supra) has again come up for consideration before three judges (2008) 2 SCC 409 Bench in case of M. Subramaniam & another Vs. S. Janaki & another 2. The Supreme Court after considering the same judgment has held at para 7 & 9 which are as under:- "7. The said ratio has been followed in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhage, in which it is observed: (SCC p. 278, paras 2-4) "2. This Court has held in Sakiri Vasu V. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226 of the Constitution of India, but to approach the Magistrate concerned under Section 156 (3) CrPC. If such an application under Section 156 (3) CrPC is

made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasu case because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation." "9. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions.

Hence, we have held that the complainant must avail of his alternate remedy to approach the Magifstrate concerned under Section 156 (3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation."

5.

From analysis of the above legal provisions, it is crystal clear that the writ petition under Article 226 of the Constitution of India is not maintainable before the High Court. However, it is open to the petitioner to approach the court of Judicial Magistrate First Class having territorial jurisdiction over the place of offence if it deemed appropriate and necessary for filing of complaint under Section 156(3) of Cr.P.C or Section 200 of Cr.P.C. and in-turn the Magistrate will follow the procedure prescribed under the provisions of the Cr.P.C. It is made clear that this Court has not expressed any opinion on merits of the case whether the averments made in the petition discloses any criminal offence or not, it is for the concerning Magistrate to decide the case on merits of the case without being influenced by any of the observations made by this Court.

6.

Considering the facts and materials on record and in view of the law laid down by the Hon'ble Supreme Court, this Court is of the

view that this writ petition is not maintainable. 7.

With the aforesaid observations, the writ petition (criminal) is disposed of with the aforesaid liberty in favour of the petitioners. Sd/- (Rajani Dubey) Judge Ruchi