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SURESH CHANDRA JAISWAL versus SRI R.S. JAISWAL, SR. SUPDT OF POST OFFICE

High Court of Judicature at Allahabad

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Suresh Chandra Jaiswal v. Sri R.S. Jaiswal, Sr. Supdt Of Post Office - CONTEMPT APPLICATION (CIVIL) No. 2481 of 2004 [2007] RD-AH 14330 (21 August 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                         RESERVED

Civil Misc. Contempt Petition No.2481  of  2004

Suresh Chandra Jaiswal..........................................................Petitioner

Versus

Sri R.S.Jaiswal....................................................................Respondents

******

Hon.Tarun Agarwala, J.

The applicant purchased Kisan Vikas Patra in various denominations amounting to Rs.64,000/- on 17.1.1997, from the Sub Post Office  situate at  Kasturba  Gandhi Marg, Allahabad. These Kisan Vikas  Patra matured after 5 ½ years valuing at Rs.1,28, 000/-. The applicant presented the certificates before the Sub Post Office for encashment. The opposite party did not encash the certificates. Consequently, the applicant approached the High Court by filing a writ petition, being  Writ Petition No.20322 of 2004, which was disposed of by a Division Bench of this Court by an order dated 24.5.2004 which is quoted herein below:

"Heard learned counsel for the  petitioners and Sri M.P. Shukla, learned counsel for the respondents.

After  hearing  learned  counsel for the parties, we are satisfied with the arguments that this writ petition   be disposed of in  terms of  the judgment and order passed by this Court in Writ Petition No.20695 of 2001 H.K. Goel &  Others vs. Chief Post Master General, U.P.Circle Lucknow and ors.  Decided on 25.2.2003.

Thus, in view of above, we dispose of the writ petition directing the respondents to encash the Kishan Vikas Patra which has become matured after holding proper scrutiny regarding its genuineness within a period of 4 weeks from the date of filing a certified copy of the order before the authority concerned."

The Court directed  the respondents to  encash the  Kisan  Vikas Patra after holding a proper scrutiny regarding its  genuineness.

It is alleged that  inspite of the direction from the Writ  Court, the opposite party did not encash the certificates. Consequently, the present contempt application was filed. The opposite party appeared and filed a counter affidavit alleging that there had been an irregularity in the issuance of the certificates and in the  purchase application made by the  applicant as a result of which the genuineness of the certificates (Kisan Vikas Patra with the applicant) seemed to be doubtful.  Consequently, the encashment of the certificates could not be done. The opposite party contended that the Kisan  Vikas Patra in question was sent from Allahabad Kutchery Post Office to Kasturba Gandhi Marg Sub Post Office on 28.1.1997 which was duly received on 31.1.1997 but the certificates is shown to have been issued on 17.1.1997 which could not have been done and therefore, it caused a doubt on the genuineness of the certificates. Further, the certificates  showed  the  purchase  application  registration Nos. as 4605 and  4606. A perusal of these applications indicated that Kisan Vikas Patra valuing Rs.1,000/- each was issued in the name of Smt. Meera Jaiswal and Smt. Vibha Jaiswal  which matured and was encashed on 10.6.2002. Therefore, a case of forgery was apparent. Further, the signatures in the certificate showed that it was issued by K.C. Kanaujia whereas, the  real name of  the then Sub Post Master  of Kasturba Gandhi Marg Sub Post Office was Sri H.C.Kanaujia.  Consequently, some fraud had been played and that an investigation was under  process. In view of the aforesaid, the Contempt  Court passed the following order on 6.4.2006:

"The petitioner contends that Kisan Vikas Patra for a sum of Rs.54,000/- were issued by Sub Post Office, Kasturba Gandhi Marg, Allahabad  on 17.1.1997. These  certificates matured on 17.1.2002 and when it was presented for encashment, the Sub Post Office refused to encash the Kisan Vikas Patra. A writ petition was filed before this court, which was disposed of with a direction to the Sub Post Office, Kasturba Gandhi Marg, Allahabad to consider the genuineness of the documents and release the amount, if they are found to be genuine. Since the same was not done, the present contempt application was filed.

The record has been produced  before me and it transpires that the Kisan Vikas Patra bearing No.KVP-25CC-661336 to 661341 of Rs.10,000/- each was issued by the Kutchery Post Office, Allahabad and was received in the Sub Post Office, Kasturba Gandhi Marg, Allahabad on 31.1.1997. Similarly, Kisan Vikas Patra of Rs.1000/- each bearing No.45AA 385738 to 385741 was also sent by Sub Post Office, Kasturba Gandhi Marg, Allahabad on 28.1.1997 which was received by the Kutchery Post Office on 31.1.1997.

The applicant alleges that the certificates were issued  by the Sub Post Office, Kasturba Gandhi Marg, Allahabad on 17.1.1997.

On the other hand, Sri K.C.Sinha, the learned counsel appearing for the Post Office submits that the question of issuance of the certificates on 17.1.1997 by the Sub Post Office, Kasturba Gandhi Marg, Allahabad does not arise inasmuch as, the said certificates were sent by Kutchery Post Office to Sub Post Office, Kasturba Gandhi Marg, Allahabad on 28.1.1997 and was received by the Kutchery Post Office on 31.1.1997. Therefore, the question of issuance of these certificates on 17.1.1997 by the Sub Post Office, Kasturba Gandhi Marg, Allahabad does not arise. In support of his submission Sri K.C.Sinha has produced the Accounts Register of Sub Post Office, Kasturba Gandhi Marg, Allahabad, which shows that only one Kishan Vikas Patra of Rs.1000/- of a different Kishan Vikas Patra number was issued by that office and therefore, submitted that no such certificate was issued by Sub Post Office, Kasturba Gandhi Marg, Allahabad on 31.1.1997.

The fact remains that there could be an error in the date of the issuance of the certificates. The respondents have not denied that the certificate issued allegedly in favour of the applicant are forged. They have also not indicated that these certificates were never issued by the Sub Post Office, Kasturba Gandhi Marg, Allahabad.  They have also not stated that these certificates are still with the Sub Post Office, Kasturba Gandhi Marg, Allahabad. All these facts must be categorically stated by the Sub Post Office, Kasturba Gandhi Marg, Allahabad on an affidavit. The respondent/opposite party is therefore, directed to file an affidavit and also produce the Accounts Register of Sub Post Office, Kasturba Gandhi Marg, Allahabad for the period 1.2.1997 to 31.3.1997 showing the transactions of the issuance of the Kisan Vikas Patra.

List this matter on 20.4.2006 for hearing."

Based on the aforesaid order, a supplementary counter affidavit was filed and the records was also produced, which the Court perused and  passed a detailed order on 10.11.2006-

"Pursuant to the order dated 1st November, 2006 Sri Shyam Bihari Shukla, Post Master Kutchehry Post Office and Sri S.P.Tiwari, Sub Post Mater Kasturba Gandhi Marg are present in the Court. The Court asked certain information from Sri Shyam Bihari Shukla, who submitted that the accounts of the Sub Post Master are checked from time to time by the Kutchehry Post Office and that an audit team from Lucknow also carries out the audit. It is not known as to what happened in the audit at that time.

From the record, it transpires that the certifies in question were issued by the Kutchery Post Office to Sub Post Office of Kastubra Gandhi Marg. The record also suggests that the said certificates were duly received and entered in the register maintained by the Sub Post Office of Kasturba Gandhi Marg. The record of the Sub Post Office, Kasturba Gandhi Marg also reveals that the certificates were also issued on a particular dated i.e. 19th February, 1997. These certificates, so produced by the learned counsel for the applicant, suggest that  the certificates were issued on 17 January, 1997. Sri K.C.Sinha learned counsel for the Post Office, states that the record of Sub Post Office Kasturba Gandhi Marg reveals that though the certificates were issued on 19th February, 1977, the value of the amount was not entered in the register maintained by the Sub Post Office. The certificates indicate the registration nos.4605 and 4606 dated 17th January, 1997; whereas the application form showing the serial No.4605 indicates that it was issued in the name of Ishu c/o Sri Meena Jaisawal  for a sum of Rs.3000/-. This application form is dated 19th December, 1996 and the certificate numbers which have been entered, are 4588379919/920/921 for a sum of Rs.1000/- each. Similarly, the application form No.4606 reveals that it was issued in the name of Sunny C/o Vibha Jaiswal for a sum of Rs.2000/- each on 9th December, 1996. The certificate numbers recorded are 4588379922/923 for Rs.1000/- each.

The original certificates produced by the learned counsel for the applicant reveal that different certificates were issued on the same registration nos.4605 and 4606 and it is dated 17th January, 1997. The certificates reveal that against form no.4605 certificates were issued in the name of Suresh Chandra Jaiswal and Rajkumari Jaiswal.

Learned counsel for the Post Office  Sri K.C.Sinha does not deny the genuineness of the certificates in possession of the applicant but submits  that it is a case of theft for which no consideration was paid on the certificates at the time of the purchase made from the Sub Post Office, Kasturba Gandhi Marg and that against the said theft, a first information report has been lodged in the police station Colonelganj, Allahabad.

List for hearing in the next cause list.

The presence of Sri Shyam Bihari Shukla and Sri S.P.Tiwari is dispensed with till further orders of the Court."

Heard  Sri S.K.Garg, the learned counsel for the applicant along with Syed Ali  Murtaza for the  applicant and Sri K.C.Sinha for the opposite party.

The learned counsel   contended   that once the opposite party admitted that the documents, namely, the  Kisan Vikas Patra possessed   by the applicant was  genuine, consequently, the opposite party was duty bound to encash the said certificate since the Writ Court had clearly directed the opposite party to encash the Kisan Vikas Patra after holding a proper scrutiny regarding its genuineness. The learned counsel submitted that once the genuineness of the documents had  been proved, then nothing  else remained but for the respondent to  encash the certificates and hand over  the money to the applicant.

Upon considering the matter at some length,  this Court is of the opinion that the opposite party was justified in not encashing the certificates. It has come on record that the purchase application recorded on these  certificates related to the issuance of some other certificates of a lesser amount in the name of another person which certificates had earlier been discharged. Consequently, someone has played a fraud and has defrauded the Sub Post Office. Further, the record, which the Court has perused, suggests that the original amount was not deposited in the Sub Post Office. The Sub Post Office has also lodged an F.I.R. and an investigation is pending. Consequently, in the opinion  of the Court, the contempt proceedings cannot be used as a tool to enforce the order of the Writ Court when  there is a serious allegation about the theft of the certificates and forgery in the purchase application forms.

In R.N.Dey and others vs. Bhagyabati Pramanik and others, 2002(2)UPLBEC 1754, the Supreme Court held that the weapon of contempt should not be used in abundance or misuse and should also not be used for the execution of the decree or implementation of an order for which an alternate remedy in law is provided for. The Court should exercise the powers of contempt for the maintenance of the Court 's dignity and the majesty of law . Further, an aggrieved party has no right to insist that the Court should exercise its contempt jurisdiction. In my opinion, the Court cannot exercise the powers under the Contempt of Courts Act to perpetuate another illegal act. If the Court comes to the conclusion that the conduct of a contemnor amounts to a public injury or would cause a loss it can very well refuse to exercise its contempt powers.

In the light of the aforesaid, there is a serious dispute about the forgery and theft being committed in the Sub Post Office for which the opposite parties have lodged an F.I.R. Consequently, in the opinion of the Court, the applicant has an alternate remedy in law for the recovery of the amount by filing a suit or such other petition before an appropriate forum. The contempt jurisdiction cannot be invoked for the recovery of the money. In the opinion of the Court, no wilful contempt is made out against the opposite party.

In view of the aforesaid contempt proceedings are dropped, notices are discharged and the contempt application is dismissed.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                             

Dated: 20 .8.2007

AKJ


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