Uttarakhand High Court
Naresh Kumar vs State Of Uttarakhand on 8 August, 2025
2025:UHC:7627
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Criminal Misc.Application No.321 of 2025
Naresh Kumar ......Applicant
Vs.
State of Uttarakhand .....Respondent
Presence:
Mr. Deepak Pethsali, learned counsel for the Applicant.
Mr. Rakesh Negi, learned Brief Holder, for the State.
Hon'ble Ashish Naithani, J.
1. The present Criminal Miscellaneous Application under Section
528 BNSS has been moved by the Applicant Naresh Kumar seeking
quashing of Charge Sheet No. 01 dated 22.10.2020, the cognizance and
summoning order dated 13.12.2021 passed in Criminal Case No. 2506
of 2021, and all subsequent proceedings in Criminal Case No. 1821 of
2022, pending before the Court of the learned Judicial Magistrate, Ist
Class, Haridwar.
2. The case arises out of FIR No. 93 of 2018, Police Station
Ranipur, District Haridwar, wherein allegations were made of large-
scale financial irregularities and embezzlement in a cooperative society,
involving amounts exceeding ₹2.88 crores. The Applicant, who was
serving as Secretary/Deputy Director in the Mini Bank Society, was
named along with other officials.
3. During the investigation, a charge-sheet was filed against the
Applicant under Sections 409, 420, 467, 468, and 471 of the IPC. The
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
Ashish Naithani J.
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learned Magistrate thereafter took cognizance and summoned the
Applicant. Non-bailable warrants and proclamation proceedings under
Section 82 CrPC were subsequently issued against him.
4. It is not in dispute that the Applicant had earlier filed Criminal
Misc. Application No. 1148 of 2023 under Section 528 BNSS, which
was dismissed as withdrawn, and thereafter Criminal Misc. Application
No. 150 of 2024, which was dismissed by this Court vide order dated
04.03.2025, holding that the earlier petition having been withdrawn
without liberty, a subsequent petition was not maintainable.
5. Learned Counsel for the Applicant submitted that the entire
criminal proceedings are unwarranted, as the Applicant had no
financial dealings in the cooperative society which could bring him
within the ambit of Sections 409 or 420 of the IPC.
6. It was urged that the Applicant, serving as Secretary/Deputy Director,
was entrusted only with administrative functions. He neither received
deposits from members nor disbursed payments. All transactional
duties were performed by the clerks-cum-cashiers who maintained day-
to-day records.
7. Applicant's learned counsel emphasised that the gravamen of the
allegations in the FIR is the non-deposit of amounts collected from
members by the local in charge, one Nitin Kumar, and others. The
Applicant was implicated only because of his supervisory designation.
It was argued that entrustment of funds is a sine qua non for the offence
of criminal breach of trust under Section 409 of the IPC, and in the
absence of any direct entrustment or handling of funds, the very
foundation of the charge collapses.
8. To support this submission, the learned Counsel placed reliance
on State of Punjab v. Kesari Chand (Punjab & Haryana High Court),
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
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2025:UHC:7627
where it was held that the President and Secretary of a cooperative
society are not "public servants" for the purpose of Section 409 of the
IPC, as such societies are not statutory corporations established by a
State Act. It was contended that by parity of reasoning, the Applicant
cannot be fastened with liability under Section 409 of the IPC.
9. As regards Section 420 of the IPC, Counsel argued that the
ingredients of cheating are absent. It was submitted that to constitute
cheating, there must be :
(i) deception of a person,
(ii) fraudulent or dishonest inducement to deliver property, and
(iii) existence of mens rea at the inception.
In the present case, there is no allegation that the Applicant made
any false representation to members or that he induced them to part
with money. At the highest, the matter may amount to breach of
trust by the clerks, but it cannot be said to involve dishonest
inducement by the Applicant.
10. It was further argued that there is no material collected during the
investigation to show that the Applicant prepared or forged any
documents so as to attract Sections 467, 468, or 471 of the IPC. Given
his supervisory role, there is no evidence of his direct involvement in
the preparation or use of forged instruments.
11. The learned Counsel contended that the FIR itself suffers from
procedural irregularity, as it was lodged prior to any departmental
inquiry under the service rules governing the Applicant. It was pointed
out that while a show-cause notice was issued to him in March 2019,
the FIR had already been registered in March 2018. According to
learned Counsel, this sequence vitiates the proceedings, as they were
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
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initiated without adherence to the mandatory disciplinary framework
applicable to employees of the cooperative society.
12. The learned Counsel also highlighted that the Applicant's service
career has otherwise been unblemished, spanning several decades, and
that the present allegations are a result of a conspiracy by certain
colleagues against whom the Applicant had taken action for
irregularities. It was submitted that such mala fides undermine the
credibility of the prosecution case.
13. Lastly, the issue of maintainability was addressed by the learned
Counsel for the Applicant. It was contended that although earlier
applications under Section 528 BNSS had been filed, the principle of
res judicata has no application in criminal law. Reliance was placed on
Muskan Enterprises v. State of Punjab, 2024 SCC Online SC 4107,
wherein the Supreme Court held that the rule of res judicata under
Section 11 CPC is inapplicable to criminal proceedings, and that there
is no provision akin to Order XXIII Rule 1(3) CPC barring a
subsequent petition. The learned Counsel, therefore, urged that the
present application, even if successive, merits consideration in order to
prevent miscarriage of justice.
14. The learned Brief Holder appearing for the State opposed the
application. It was submitted that the allegations are grave, involving
embezzlement of ₹2.88 crores from the funds of members of the
cooperative society. According to the learned Brief Holder, such
offences, by their very nature, undermine public trust and cannot be
quashed at the threshold.
15. The learned State Counsel argued that the Applicant, by virtue of
his post as Secretary/Deputy Director, was in a position of overall
responsibility and control in the society. Even if he was not the cashier
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
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directly handling funds, he was responsible for supervising and
preventing such embezzlement. His administrative role cannot absolve
him of accountability when such large-scale irregularities occurred
during his tenure.
16. It was further contended that the investigating officer, after due
inquiry, filed a charge sheet against the Applicant, and the Magistrate,
upon satisfaction, took cognizance and issued summons. These are
judicial acts which cannot be lightly interfered with in a petition under
Section 528 BNSS, particularly when disputed questions of fact are
involved.
17. With respect to the earlier applications, it was submitted that the
Applicant is attempting to invoke the extraordinary jurisdiction of this
Court repeatedly. The second application, having already been
dismissed on 04.03.2025, the present petition is barred by the principles
of judicial discipline and propriety. Though res judicata per se may not
apply, the High Court cannot permit endless re-litigation of the same
cause of action.
18. Heard learned counsel for the Parties and perused the records.
19. The jurisdiction under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita is extraordinary in nature. Its exercise is confined to
situations where intervention is necessary to prevent abuse of the
process of the Court or to secure the ends of justice. At this stage, the
Court is not required to undertake a meticulous appreciation of
evidence or to conduct a mini-trial. Interference is justified only when,
taking the allegations as they are and accepting the prosecution material
at face value, no offence is disclosed, or the proceedings are
demonstrably tainted by mala fides or legal infirmity.
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
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20. A preliminary issue arises with respect to maintainability. The
Applicant acknowledges that his first application under Section 528 of
the BNSS was withdrawn without liberty to file afresh, and that the
second application was dismissed on 04.03.2025 on the ground of non-
maintainability in view of the earlier withdrawal without liberty.
21. The present application is the third petition seeking substantially
the same relief. No change in circumstances or discovery of fresh
material subsequent to the earlier dismissal has been shown. Principles
of judicial discipline and finality preclude the Court from entertaining
successive petitions for identical relief in the absence of supervening
events or new grounds. The clarification that the doctrine of strict res
judicata does not apply to criminal proceedings cannot be construed as
a licence for endless re-litigation. On this ground alone, the application
is liable to dismissal.
22. Even on merits, no case for quashing is made out. The FIR, read
in conjunction with the accompanying materials, alleges large-scale
financial irregularities and embezzlement in a cooperative society to the
tune of approximately ₹2.88 crores, specifically naming the Applicant
along with others. The investigation culminated in Charge Sheet No. 01
dated 22.10.2020 under Sections 409, 420, 467, 468, and 471 of the
IPC, whereafter the learned Magistrate took cognizance and issued
process in Criminal Case No. 2506 of 2021.
23. These are not bald allegations; rather, they are allegations which
have crossed the investigative threshold and persuaded the learned
Magistrate to take cognizance and proceed. Whether such allegations
are ultimately proved is a matter for trial, and not for summary
interdiction under Section 528 of the BNSS.
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
Ashish Naithani J.
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24. The principal defence urged is that the Applicant, as Secretary or
Deputy Director, was entrusted only with administrative duties, that
day-to-day handling of cash and deposit of members' money fell to the
clerks-cum-cashiers, and that there was no entrustment to the Applicant
so as to attract Section 409 of the IPC. Entrustment, however, is a
matter of fact, often provable by circumstantial and documentary
material.
25. The question whether, in the context of the society's bye-laws
and actual practice, dominion or control over property can be attributed
to the Applicant cannot be conclusively determined at this stage. Such
issues are best left to be tested at trial.
26. The reliance placed on the proposition that an office-bearer of a
cooperative society is not a public servant for the purpose of Section
409 of the IPC does not, at this stage, advance the Applicant's case to
the extent of warranting quashing of the proceedings.
27. Two considerations arise in this context. First, the question
whether Section 409 of the IPC is attracted depends upon the nature of
the entity, the source of funds, the character of duties, and the nature of
entrustment, all of which are mixed questions of fact and law. Second,
even if there is some debate as to the appropriate penal provision, the
invocation of other offences, including Sections 420, 467, 468, and 471
of the IPC, is sufficient to sustain the proceedings so long as the
allegations, on a prima facie reading, disclose the essential ingredients.
28. As to Section 420 of the IPC, the learned Counsel for the
Applicant submitted that there was neither deception nor dishonest
inducement by the Applicant at the inception. The FIR narrative,
however, alleges non-deposit and irregularities in the handling of
members' funds within the society. Whether dishonest intention at
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7627
inception can be inferred in relation to the acts attributed to the accused
persons, including the Applicant, is a matter of evidence. At this stage,
while exercising inherent jurisdiction, the Court does not weigh
competing inferences. If the allegations, accepted at face value, are
capable of satisfying the essential ingredients of the offence, the matter
must proceed to trial.
29. The contention that the FIR is vitiated for want of a prior
departmental inquiry is untenable. A departmental inquiry is not a
condition precedent to the registration of a cognizable offence or to the
conduct of a criminal investigation. The fact that a show-cause notice
under service rules was issued in March 2019 after the FIR of March
2018 does not, by itself, render the criminal process illegal or abusive.
The criminal law operates independently of internal disciplinary
mechanisms.
30. The Applicant also stresses an unblemished service record and
alleges motive on the part of colleagues. These are defences that are
going to be credible and motive-based and may be urged before the
trial court. They do not, in themselves, demonstrate that the prosecution
is inherently improbable or legally unsustainable so as to warrant
quashing.
31. For these reasons, this Court declines to exercise jurisdiction
under Section 528 BNSS. It is clarified that these observations are
confined to the adjudication of this application and shall not prejudice
the trial on the merits.
ORDER
In view of the discussion made hereinabove, the present Criminal
Miscellaneous Application under Section 528 of the Bharatiya Nagarik
Suraksha Sanhita, 2023, is hereby dismissed.
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
Ashish Naithani J.
2025:UHC:7627
It is clarified that the observations made in this order are confined
to the adjudication of the present application and shall not prejudice the
proceedings pending before the learned trial court, which shall be
decided independently on its own merits and in accordance with law.
(Ashish Naithani J.)
Dated:08.08.2025
NR/
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Criminal Misc. Application No. 321 of 2025, Naresh KumarVs State of Uttarakhand
Ashish Naithani J.
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