Madhya Pradesh High Court
P.N. Sharma vs The State Of Madhya Pradesh on 28 November, 2017
1 Cr.R.No.1022/2016
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
Cr.R.No.1022/2016
P.N. Sharma aged 70 years, son of
Ram Narayan Sharma R/o House
No.B-11 Surendra Enclave,
Gulmohar, infront of Dana Pani
Restaurant, Arera Colony, District
Bhopal.
..........Petitioner.
Vs.
1. State of Madhya Pradesh through
Police Station Shahpura, District
Bhopal.
2. Smt. Nishu Agarwal W/o
Sanjeev Agarwal R/o D-12
Harishanker Colony, Gwalior.
..........Respondents.
.................................................................................................................
Present: Hon'ble Shri Justice C.V. Sirpurkar
..................................................................................................................
Shri S. Singh Thakur, counsel for the petitioner.
Shri R.S. Parihar, panel lawyer for the respondent No.1/State.
Shri Ashish Bargale, counsel for respondent No.2.
................................................................................................................
2 Cr.R.No.1022/2016
ORDER
(28-11-2017)
1. This criminal revision is directed against order dated 15.2.2016 passed by Additional Sessions Judge, District Bhopal in Session Trial No.1037/2015, whereby a charge under Sections 419, 420, 467, 468 and 471 of the I.P.C. was framed against petitioner P.N. Sharma.
2. The prosecution case as reflected in the first information report may briefly be stated thus: Victim Nishu Agarwal is proprietor of the firm Cricket Out Field and Pitches, which deals in contracts for preparation and maintenance of sports grounds. The head office of aforesaid firm is at Gwalior. Since the victim is also a house-wife with domestic responsibilities, she had employed co-accused Abhishek Sharma who is son of present petitioner P.N. Sharma, as an assistant for the purpose of preparing tenders, appearing in a government offices on behalf of victim and getting the work executed. Abhishek was fully conversant with the Bank accounts of the firm. He breached the trust of the victim and got a new account opened in the Gulmohar Branch of Axis Bank of Bhopal (account No.913020033232334) in the name of firm Cricket Outfields and Pitches using the name of victim's firm. He showed his brother Jay Sharma as proprietor of aforesaid firm. He also got it registered in the name of Jay Sharma under Shops and establishments Act. On the basis of forged documents of the firm, he also got another account No.3286487711 opened in the Shahpura Branch of Central Bank of India, Bhopal. For the 3 Cr.R.No.1022/2016 purpose of the account in Central Bank of India also, Jay Sharma was shown as the proprietor of the firm. Abhishek Sharma received the cheques issued by Madhya Pradesh State Seed and Farm Development Corporation, Bhopal in the name of victim's Firm Cricket Outfields and Pitches in the sum of Rs.39,33,257/- and got those cheques deposited in the aforesaid two accounts at Bhopal. Abhishek kept the victim under the impression that the payment has not been released by the Madhya Pradesh State Seeds and Farm Development Corporation. When the victim contacted her Charted Accountant, he told her that aforesaid payment of Rs.39,33,257/- has been released and the TDS in the sum of Rs.88,399/- has been shown in the income tax account of the victim. As such, Abhishek, his brother of Jay Sharma and his father petitioner P.N. Sharma conspired and opened fictitious accounts using the name of victim's Firm Cricket Outfields and Pitches in the name of Jay and misappropriated the amount of Rs.39,33,257/-. The office of aforesaid firm was shown at Plot No.60 Flat No.G-2 Säi Dhan Apartment E-8 Trilanga Bhopal which belongs to petitioner P.N. Sharma. Petitioner P.N. Sharma had also withdrawn Rs.40,000/- in cash from the account of Jay's Firm in Axis Bank, Gulmohar Colony, Bhopal. Thus, the complicity of petitioner P.N. Sharma in the matter is also prima facie established. When the victim contacted aforesaid three persons and demanded an explanation, they promised to get the registration of their firm under Shops and Establishment Act canceled by the Municipal Corporation, 4 Cr.R.No.1022/2016 Bhopal. They also latter got the registration canceled. However, the victim had never authorizd Abhishek to receive any amount on behalf of the victim. Taking advantage of the fact that he had all documents of the victim necessary for preparation of tenders, he got fictitious accounts opened and misappropriated the amount of Rs.39,33,257/-belonging to the victim.
3. Learned counsel for the petitioner has challenged the impugned order mainly on the ground that victim had no reasonable ground to suspect the complicity of petitioner P.N. Sharma in the matter. Simply on the basis of the fact that the victim is father of Abhishek and Jay and his residence was shown as the place from which the firm would conduct its business, is not sufficient to presume that he had conspired with his sons to open the fictitious accounts using the name of Cricket Outfield and Pitches. It has further been submitted that on the basis of solitary instance of withdrawal of a sum of Rs.40,000/- by the petitioner in cash from one of the accounts does not lead one to conclusion that he was hand-in-glove with his sons. The amount may have been withdrawn by the petitioner on the instructions of his son without realizing that the account had been opened by misusing the name of victim's firm. Learned counsel for the petitioner has also invited attention of the Court to an Agreement/Authorization Letter dated 8.5.2013 executed by victim Nishu Agarwal and co- accused Jay Sharma, wherein the tezrms and conditions an agreement arrived at between victim and co-accused Jay have 5 Cr.R.No.1022/2016 been evidenced and wherein she had authorized co-accused Jay to receive the amounts from Seed and Farm Development Corporation, Bhopal.
4. Learned government advocate for the respondent/State and learned counsel for the victim has supported the impugned order.
5. On going through the record and due consideration of the rival contentions, the Court is of the view that this criminal revision must succeed for the reasons hereinafter stated:
Aforesaid Bank Accounts in Central Bank of India and Axis Bank were opened in the name of Cricket Outfields and Pitches which is also the name of victim's firm. In those accounts, Jay Sharma has been shown as authorized signatory for the Firm Cricket Outfields and Pitches. In none of those accounts, petitioner P.N. Sharma has been shown as introducer. The registration certificate issued under Shops and Establishment Act, 1958 in favour of the Cricket Outfield and Pitches, is also in the name of Jay Sharma. Likewise, in the registration in Commercial-Tax Department, Contractor, Registration Certificate, etc. Jay has been shown as sole proprietor of the firm. In the certificate for opening accounts in the Bank, Charted Accountant Muneendra Vaidhya has certified Cricket Outfield and Pitches as proprietorship concern and co-accused Jay Sharma has been shown as sole proprietor. Thus, in none of aforesaid documents appended to the charge sheet, is there any mention of P.N. Sharma in any capacity other than father of Jay Sharma. However, in all of aforesaid documents the 6 Cr.R.No.1022/2016 place of work of aforesaid proprietor firm has been mentioned as E-8/60 G/2, Sai Dham, B Wing, Trilangna which belongs to petitioner P.N. Sharma. Likewise, in the balance sheet of account No.91320033232334 in Axis Bank, petitioner Pratap Narayan Sharma is shown to have withdrawn an amount of Rs.40,000/- by cash on 28 th April, 2013. However, simple withdrawal of an amount in cash, from the amount in question, in the opinion of this Court, would not be indicative of the fact that petitioner P.N. Sharma was also involved in the matter and had conspired with his sons to misappropriate the amount of the victim. Likewise, if the sons of the petitioner are indulging in illegal activities through a firm and the office or work place of that firm has been shown as residence of the petitioner who is after all their father, cannot, by itself, mean that the father was also involved in those illegal activities.
6. It is true that even a strong suspicion based on relevant admissible material suggesting involvement of an accused in an offence, is sufficient to frame a charge. However, innocuous circumstances which may prima facie have perfectly legitimate explanation, would not be sufficient to make a person face rigmarole of trial.
7. In aforesaid circumstances, in the opinion of this Court, there is no sufficient material available on record to presume that the petitioner had committed any of the offences mentioned in the charge; therefore, the charge framed against the petitioner by the impugned order is not sustainable in the eyes of law.
7 Cr.R.No.1022/20168. Consequently, the impugned order dated 15.2.2016 passed by the Additional Sessions Judge, District Bhopal in Session Trial No.1037/2015 against petitioner P.N. Sharma, is set aside and petitioner he is discharged. The trial shall proceed in accordance with law against remaining accused persons.
(C.V. Sirpurkar) Judge ahd Digitally signed by MOHD AHMAD Date: 2017.11.29 03:51:34 -08'00' IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Cr. R. No.1022/2016 P.N. Sharma Vs. State of M.P. and another ORDER Post for : 28.11.2017 (C.V.Sirpurkar) Judge