Madhya Pradesh High Court
Vikas Kumar Jha vs The State Of Madhya Pradesh on 28 October, 2015
Cr.R.No.2381/2013
(1)
HIGH COURT OF MADHYA PRADESH : JABALPUR
(Single Bench : Rajendra Mahajan, J.)
Criminal Revision No.2381/2013
Vikas Kumar Jha, S/o Late Tej
Narayan Jha, aged about 59
years, Occupation-Working in
Punjab National Bank, Sehore
(M.P.), R/o Pangi Estate,
H.No. 111, Sehore (M.P.)
Applicant
VERSUS
1. State of Madhya Pradesh
through: P.S. Seoni, District
Seoni(M.P.)
2. Vijay Kumar Dhurvey, S/o
Sukhlal Dhurvey, aged about,
56 years, Occupation-Clerk,
SWO, P.N.B. Seoni, Teh. &
Dist. Seoni (M.P.)
Respondents
..................................................................................
For applicant : Shri Arpan Shrivastava, learned counsel.
For respondent : Shri Devesh Jain, learned Govt. Advocate.
No.1/State
For respondent : Shri Satish Kumar Shrivastava, learned
No.2. counsel.
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O R D E R
(Passed on 28 t h day of October, 2015 ) By invoking the criminal jurisdiction of this Court, the applicant has impugned the order dated 02.08.2013 passed by the Special Judge under the Scheduled Castes Cr.R.No.2381/2013 (2) and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and ASJ, Seoni in Sessions Trial No.50/2013 State of M.P. Vs. Vikash and another, whereby the learned trial Judge has framed charges against him for the offences punishable under Sections 409, 471, 420, 468, 472, 474 and 120B of the I.P.C.
2. It is pertinent to mention here that respondent No.2 Vijay Kumar Dhurvey had also filed Criminal Revision No.609/2014 for the quashment of charges levelled against him by the learned trial Judge vide the impugned order under Sections 409, 471, 420, 474 and 120B of the I.P.C. However, his criminal revision was dismissed on account of peremptory order dated 11.04.2014 passed by this Court.
3. The essential and relevant facts for the disposal of this revision are given below in nutshell :-
(3.1) On 11.04.2008, D.K. Jain, the Senior Branch Manager of Punjab National Bank, Branch Seoni (for short 'the branch') has lodged the written complaint at the Police Station, Kotwali Seoni, stating therein that on 04.11.2008 the cashier of the branch made payment of Rs.4,90,000/-(four lacs ninety thousands) to Cr.R.No.2381/2013 (3) one Umesh Sharma against the bearer cheque No.138550 dated 03.11.2008 (for short 'the cheque'). After the closing of business hours for the day, the accounts were tallied. At that time, the cheque was found suspicious. The cheque was issued to Umesh Sharma by the Proprietor of Ashok Construction Company. However, the said Company does not maintain account with the branch. As per the records of the branch, the cheque is a part of the cheque- book issued to M/s Samrat Agency, Seoni (for short 'the agency'). Umesh Sharma is a stranger to the branch as he does not maintain account with the branch. Thus, Umesh Sharma has cheated the branch by forgery of cheque of Rs.4,90,000/-.
(3.2) Upon the complaint, a preliminary inquiry was done by the police. On the basis of outcome of the inquiry, on 30.01.2009 an F.I.R. is registered against unknown Umesh Sharma under Sections 420, 467 and 468 of the I.P.C. at Crime No.9/2008.Cr.R.No.2381/2013
(4) (3.3) In the course of investigation, it is found that at the relevant time applicant Vikash Kumar Jha was posted as Special Assistant in the branch. It is his part of duties to issue cheque- book to the customers on demand and to post the corresponding entries in the computer of the branch. The agency asked for the issuance of cheque-book to the applicant. Thereupon, a cheque-book containing cheques bearing numbers from 138501 to 138550 was to be issued to the agency. The applicant posted the entry into the computer to the effect that the cheque-book of aforesaid cheque numbers has been issued to the agency. But, he never delivered the cheque-book to the agency. The cheques of the cheque-book are being used loosely by the employees of the branch in addition to the applicant himself. It is also found that at the relevant time respondent- Vijay Kumar Dhurvey was posted as cashier in the branch. He used to hand over tokens every day to clerk Smt. Pushpa Trehan. She used to Cr.R.No.2381/2013 (5) issue tokens to the customers of the branch against the cheques and withdrawal forms. Before the working hours of the day were over, she would return unused tokens to respondent- Vijay Kumar Dhurve. Some 8 days prior to the date of incident, she reported to respondent- Vijay Kumar Dhurve that token No.24 is missing. It is also found that the token No.24 was issued against the cheque to Umesh Sharma. Respondent-Vijay Kumar Dhurvey made payment of the cheque to Umesh Sharma by taking from him the token No.24, whereas it was in his knowledge at the time of payment that token No.24 is missing. Since, respondent- Vijay Kumar Dhurvey was to make the payment of Rs.4,90,000/- in cash against the bearer cheque to Umesh Sharma, it was his duty to get it verified from the concerned officer of the branch whether he has duly passed the cheque for payment, but he had not done so. This proves his involvement in the crime. (3.4) During the investigation, it is also found that Cr.R.No.2381/2013 (6) since the applicant had not delivered the cheque-book to the agency, it was one of his duties to keep the cheque-book in safe custody. But, he allowed connively the employees of the branch for using loose cheques of it and he himself used one cheque thereof.
(3.5) When the case was under investigation, on 25.05.2009, Sharad Kumare, the then Senior Branch Manager of the branch also informed in writing to the S.H.O. Police Station Kotwali, Seoni that the cheques bearing numbers 138533 to 138549 (the total number of cheques are 17) of the cheque-book are also found missing. Further the Senior Branch Manager of the branch informed the Superintendent of Police, Seoni vide letter dated 03.01.2009 that the circle office of the Punjab National Bank, Jabalpur received a letter purportedly written by Umesh Sharma, the payee of the cheque. With this letter, he forwarded the original letter of Umesh Sharma. Cr.R.No.2381/2013 (7)
In the letter, Umesh Sharma has written inter alia that applicant Vikas Kumar Jha got the cheque filled up by him on 03.11.2008 and asked him to submit the cheque with token No.24 to the cashier of the branch. He would make him payment of Rs.4,90,000/- against the cheque without any queries. On 04.11.2008, he presented the cheque to the cashier who had made him the payment of Rs.4,90,000/-. No sooner did he come out of the branch, the applicant's nephew met him and he took him in a Maruti-car. He dropped him at Katangi Naka after taking Rs.4,70,000/- out of the total amount of Rs.4,90,000/-, thereby leaving Rs.20,000/- (twenty thousands) with him.
(3.6) On the basis of the aforesaid evidence, the Investigating Officer has arrived at the conclusion that the applicant, respondent-Vijay Kumar Dhurvey and Umesh Sharma had entered into a criminal conspiracy for the withdrawal of the money by the forgery of Cr.R.No.2381/2013 (8) cheque. Thereupon, respondent-Vijay Kumar Dhurvey paid Umesh Sharma Rs.4,90,000/- against the cheque which is apparently suspicious.
(3.7) Upon the completion of investigation, the Investigating Officer filed the charge-sheet against the applicant and respondent-Vijay Kumar Dhurvey, declaring Umesh Sharma absconding under Sections 420, 467 and 468 of the I.P.C.
(3.8) After the committal proceedings, the case is numbered as Sessions Case No.50/2013 and is made over to the aforesaid court for trial. (3.9) Having heard learned counsel for the applicant and the additional public prosecutor the learned trial Judge has held vide the impugned order that there is prima facie evidence that the applicant has committed the offences punishable under Sections 409, 471, 420, 467, 468, 472, 474 and 120B of the I.P.C. and framed the aforesaid charges against him. (3.10) Feeling aggrieved thereby, the applicant has Cr.R.No.2381/2013 (9) filed this criminal revision.
4. The learned counsel for the applicant submits that the cheques of the cheque-book had been used loosely by the employees of the branch. This fact shows that the cheque-book was not in the applicant's exclusive possession. It is also submitted by him that D.K. Jain, the Senior Branch Manager has admitted in his case-diary statement that the applicant has been authorized to pass the cheques upto Rs.35,000/- (thirty five thousand). This means that he had not passed the cheque for payment. Thus, there is no evidence against him for his complicity in the alleged crime. Therefore, the learned trial Judge has erred in framing the aforesaid charges against him. Hence, this court should quash the charges and discharge him in terms of Section 227 of the Cr.P.C.
5. Per contra, learned Government Advocate has submitted that the applicant posted the entry into the computer as to the issuance of the cheque-book to M/s Samrat Agency, Seoni. The delivery register of the cheque- books shows that he never delivered the cheque-book to the agency. Moreover, he has not offered any explanation in the course of investigation for non-delivery of the cheque- Cr.R.No.2381/2013 (10) book to the agency. It is also submitted by him that since he had not delivered the cheque-book to the agency, it was his part of duties to keep the cheque-book in safe custody so that it may not be misused. However, he had allowed the employees of the branch for using the loose cheques without demur and he himself used one of the cheques of the cheque-book. It is also submitted by him that the then Senior Branch Manager, Sharad Kumare, vide letter dated 25.05.2009 informed the S.H.O. Police Station Kotwali, Seoni the missing of 17 cheques bearing numbers from 138533 to 138549 of the cheque-book. Since it has come to the knowledge of the applicant on 4.11.2008, the date of incident, that one of the cheque of the cheque-book was used for getting payment of Rs.4,90,000/- by fraud. The applicant ought to have kept the remaining cheques of the cheque-book in safe custody. But, missing of the aforesaid cheques shows that he has not taken precautionary measures which in turn proves that in order to save himself from being booked in the crime he caused the disappearance of the remaining 17 cheques of the cheque- book. It is also submitted by him that the bank instituted a departmental enquiry against the applicant and the enquiry Cr.R.No.2381/2013 (11) officer has found the complicity of the applicant in the alleged fraud committed upon the branch. Upon these submissions, learned Government Advocate submits that the learned trial Judge has not committed any error of facts or law by framing the aforesaid charges against the applicant. Hence, the revision is liable to be dismissed being meritless.
6. I have carefully and anxiously considered the rival submissions and also perused the entire material on record.
7. The seminal point for consideration before me is whether the learned trial Judge is justified in framing the charges against the applicant vide the impugned order.
8. Before entering into the merits of the case, it would be apposite to refer to some illuminating case-law on the provisions of Section 227 and 228 of the Cr.P.C., which provide for discharge of the accused or framing of charge against him respectively.
9. In State of Bihar Vs. Ramesh Singh (AIR 1977 SC 2018), the Supreme Court on the point of framing of charge against the accused or his discharge has observed thus;
"At the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground Cr.R.No.2381/2013 (12) for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial."
10. In State of Maharashtra and others Vs. Som Nath Thapa (AIR 1996 SCC 1744), the Supreme Court has stated thus;
"It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
11. In Niranjan Singh Karam Singh Punjabi Vs. State of Maharashtra and another (AIR 1990 SC 1962), the Supreme Court in para 7 of the decision has held thus;
"At stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."Cr.R.No.2381/2013
(13)
12. In Radhe Shyam Vs. Kunj Bihari (AIR 1990 SC 121), the Supreme Court has held thus;
"At the time of framing of charge meticulous consideration of evidence and materials by the Court is not required."
13. In Satish Mehra Vs. Delhi Administration (1996(9) SCC 766 = 1996 (3) Crimes 85), the Supreme Court has observed thus;
"The trial Judge is not expected to hold a roving inquiry into the pros and cons of the case at the stage of framing charges by weighing the evidence as if he was conducting the trial."
14. In Umar Abdul Sakoor Sorathia Vs. Inteligence Officer, Narcotics Control Bureau [(2000) 1 SCC 138], the Supreme Court has observed thus;
"At the stage of framing charge the court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record the court could come to the conclusion that the accused would have committed the offence the court is obliged to frame the charge and proceed to the trial."
15. In State of M.P. Vs. Sheetla Sahni and others (AIR 2009 SC (Supp) 1744], the Supreme Court has observed thus in para 59 of the judgment;
"If upon perusal of the entire materials on record, the Court arrives at an opinion that two views are possible, charges can be framed, but if Cr.R.No.2381/2013 (14) only one and one view is possible to be taken, Court shall not put accused to harassment by asking him to face trial.
16. In P. Vijayan Vs. State of Kerala and another (AIR 2010 SC 663], the Supreme Court in para 10 of the decision has observed thus;
"If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the Trial Judge will be empowered to discharge the accused and at this stage he is not to see whether the trial will end in conviction or acquittal. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere Post Office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. "
17. In Sajjan Kumar Vs. C.B.I. [2010 (9) SCC 368], the apex Court has culled out the following principles after Cr.R.No.2381/2013 (15) considering its earlier authorities including the principles enunciated in Union of India Vs. Prafulla Kumar Samal (AIR 1979 SC 366) with regard to the scope of Sections 227 and 228 of the Cr.P.C.:-
(i) While considering the question of framing the charges under Section 228 of the Cr.P.C. the Judge has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. Cr.R.No.2381/2013 (16) However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228 of the Cr.P.C.
the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited Cr.R.No.2381/2013 (17) purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal.
18. In the case of Amit Kumar Vs. Ramesh Chandra (2012 (9) SCC), the Supreme Court has held thus in para 17 and 19 of the decision with regard to the framing of charge or discharge:-
Para. 17:
"Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 Cr.P.C., unless the accused is discharged under Section 227 Cr.P.C. under both Sections 227 and 228 Cr.P.C., the court is required to consider the "record of the case"
and the documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the Cr.R.No.2381/2013 (18) facts and ingredients of the section concerned exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case ."
(Underlined by me ) Para 19:
"At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."
19. Now, I shall apply the principles enunciated above to the present case in order to find out whether the trial Court is justified in framing the charges against the applicant vide the impugned order?
20. I have already stated in paras 3.3 to 3.6 of this order the evidence collected against the applicant by the Investigating Officer of the case. On the basis of aforesaid evidence, I have found that it cannot be concluded that the framing of charges against the applicant by the trial court is either bad in law or abuse of process of law or without Cr.R.No.2381/2013 (19) any material. Hence, I hold that the learned trial Judge has not committed any error of law or facts while framing the aforesaid charges against the applicant. Hence, this revision being meritless is dismissed affirming the impugned order of framing of charges against the applicant.
21. Accordingly, this revision is finally disposed of.
(Rajendra Mahajan) Judge ac/-