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Madhya Pradesh High Court

Shyam Bihari Bairagi vs Judgement Given By on 22 October, 2013

IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR

SINGLE BENCH : HON'BLE MR. JUSTICE N.K.GUPTA, J.

               Criminal Revision No.1444/2013

                        Shyam Bihari Bairagi

                                VERSUS

                   The State of Madhya Pradesh

                       M.Cr.C.No.2258/2013

                        Shyam Bihari Bairagi

                                VERSUS

                   The State of Madhya Pradesh

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Shri Manish Datt, Senior Advocate along with Shri Nishant
Datt, Advocate for the applicant.
Shri Prakash Gupta, Panel Lawyer for the State/respondent.
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                             O R D E R

(Passed on the 22nd day of October, 2013) Both the matters are related with the same crime, therefore, they are hereby decided by this common order.

2. The applicant has filed a petition under section 482 of the Cr.P.C. to quash the registration of crime No.158/2011, whereby an offence under sections 409, 467, 471 and 420 read with section 34 of IPC was registered against the applicant, whereas he has filed a revision application when the trial Court has framed the charges of

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aforesaid offences against the applicant vide order dated 5.7.2013 in S.T.No.65/2012.

3. The facts of the case, in short, are that, on 4.10.2011, the in-charge Chief Executive Officer, Janpad Panchayat Manpur had lodged an FIR against Anand Singh, Secretary, Gram Panchayat Dodka and Assistant Extension Development Officer, Janpad Panchayat, Manpur that one cheque was issued by Shri P.L.Netam in the name of Sachiv and Sarpanch, Gram Panchayat Dodka for payment of Rs.2 Lacs but, thereafter, a forgery was done on the cheque and cheque was encashed in the name of Dilip Khandelwal, resident of Manpur. An enquiry was done and it was found that no construction material was purchased from Dilip Khandelwal and no payment was due to be given to him, therefore, a sum of Rs.2 Lacs was misappropriated and therefore, the accused persons have committed an offence of breach of trust. Also, they forged the cheque and used that forged cheque. After lodging of the FIR, the investigation officer found that the applicant was also involved in the crime and therefore, a charge-sheet was filed against all the accused persons including the applicant, who was the branch manager in Satpuda Kshetriya Gramin Bank, Manpur.

4. I have heard the learned counsel for the parties.

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5. The learned senior Advocate for the applicant has submitted that if a cheque is submitted before the bank officer for encashment and if it is endorsed to a particular person then, it is the duty of the bank officer to make the arrangement for payment. In the present case, the officers, who issued the cheque had corrected the cheque. Initially, it was issued in the name of Secretary and Sarpanch of Gram Panchayat Dodka. Thereafter, it was modified and issued in the name of Dilip Khandelwal. Since, the officers, who issued the cheque had appended their signatures on the modification, therefore, the cheque was valid in the eye of bank officer and the applicant was liable to release the fund.

It is apparent from the record that the cheque was produced before the applicant after modification and therefore, it cannot be said that the applicant was involved in any forgery or in using the forged document. He had no knowledge that any forgery was done on the cheque. The learned senior Advocate has shown the copy of the cheque to show that Shri P.L.Netam, Secretary Anand Singh, and Sarpanch had appended their signatures on modification. Under such circumstances, no offence under sections 467 and 471 of IPC was made out against the applicant. It is further submitted that for a criminal breach of trust, it is necessary that the accused should get a wrongful gain in the transaction.

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M.Cr.C.No.2258 of 2013 When Shri P.L.Netam, who issued the cheque has modified the cheque and the entire payment was made to Shri Dilip Khandelwal then, certainly no unlawful gain was received by the applicant. Simply by passing the modified cheque, it cannot be said that the applicant had a common intention with the other co-accused persons or he participated in the criminal conspiracy. There is no evidence to show that the applicant was also involved in the crime alongwith other accused persons and therefore, it is prayed that no offence punishable under section 409 of IPC is made out against the applicant and therefore, the proceedings against the applicant may be dropped and he may be discharged.

6. On the other hand, the learned Panel Lawyer has submitted that it is a matter of evidence to ascertain as to whether the applicant was involved in the crime or not and therefore, at this stage, nothing can be done by this Court relating to the registration of the crime against the applicant or order by which the charges were framed against the applicant.

7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is apparent that after completion of the investigation, the police has already filed a charge-sheet and therefore, all the documents including the

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statements of witnesses under section 161 of the Cr.P.C. are available on record and therefore, framing of the charges done by the learned Additional Sessions Judge may be considered. For framing of the charges, it is a golden rule that if no rebuttal evidence is adduced and accused can be convicted for any particular offence on the basis of the evidence collected by the prosecution then, charge of that offence shall be framed. In the present case, if such rule is followed then, if the evidence collected by the prosecution is considered as it is then, it would be apparent that in FIR, it was expressed by the complainant that forgery on the cheque was done by Shri Anand Singh and Shri P.L.Netam. Since the cheque book was issued to the CEO, Janpad Panchayat and cheque was issued by Shri P.L.Netam, therefore, modification in the cheque was expected to be done by Shri P.L.Netam and therefore, forgery was done prior to the submission of cheque to the bank of the applicant and therefore, it cannot be said that the applicant was involved in the forgery. There is no allegation of any witness that forgery was done with the consent of the applicant. If the officer who issued the cheque had appended his signature on modification then, it would be clear that he knew about the rules of the bank that if he does not append his signature on the modification done on the cheque then, the officers of the

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bank shall refuse to encash the cheque. Therefore, it cannot be said that the applicant was the person who was involved in the forgery done on the cheque.

8. Similarly, it is no where established by the prosecution that the applicant had any knowledge that cheque was forged. There is no evidence given by any witness that before submission of cheque to the applicant, the other accused persons met the applicant and they got the permission of the applicant for encashment of the cheque. When a cheque is modified and issuing authority has appended his signature then, the bank officer could not imagine that the cheque was forged and therefore, it cannot be said prima facie that the applicant used a forged document with the knowledge that it was forged. Under such circumstances, no offence under section 471 of IPC is made out against the applicant.

9. Similarly, the amount was to be drawn by the Secretary and Sarpanch of the Panchayat but, they modified the cheque and amount was given to one Dilip Khandelwal. There is no evidence against the applicant that after encashment of the cheque, some amount was to be received to the applicant from the aforesaid amount of Rs.2 Lacs. After modification in the cheque, when Shri P.L.Netam has appended his signature on modification then, cheque was

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duly issued in the name of Dilip Khandelwal and the applicant could not stop its encashment. It was beyond his power to stop the payment and therefore, if he has passed the cheque for payment in routine then, it cannot be said that he was involved in the crime of criminal breach of trust and therefore, prima facie no offence punishable under section 409 of IPC is made out against the applicant.

10. The trial Court did not frame the charge under section 409 of IPC but, a charge for offence under section 420 of IPC is framed against the applicant with help of section 34 of IPC. It is apparent that the applicant did not receive any wrongful gain out of the transaction and also, he himself had not done any cheating with anyone. It was for the investigation officer to connect that after payment of Rs.2 Lacs to Dilip Khandelwal, the applicant was given some share. In that respect, no valid evidence is available. Statements given by the co-accused persons are not admissible and there is no possibility that they would appear as witnesses before the trial Court. Hence, prima facie, no offence punishable under section 420 of IPC is made out against the applicant either directly or with help of section 34 of IPC.

11. The investigation officer should have collected the appropriate evidence to show that the applicant was also

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involved in the criminal conspiracy done by the other co- accused persons. Instead of collecting the evidence, he simply added the applicant as an accused in the case because he had passed the alleged forged cheque. By such a statement and statements given by the co-accused persons, no evidence is collected against the applicant. Statement given by co-accused persons is not admissible under section 24 of the Evidence Act. Such accused shall not be examined as a witness and therefore, his statement cannot be treated as an evidence in the eye of law. Under such circumstances, there is no prima facie evidence on record, so that it can be said that the offence under section 409, 467, 471 of IPC is constituted against the applicant either directly or with help of section 34 or 120-B of IPC. The trial Court has committed an error in framing of such charges against the applicant.

Actually, the investigation officer was required to make the applicant as a witness, so that a strong case may be made out against the remaining accused persons but, by making the applicant as an accused, the investigation officer diluted the case against remaining accused persons also.

12. On the basis of the aforesaid discussion, it would be apparent that no such offence is made out against the applicant for which charges are framed by the trial Court. Under such circumstances, it would be proper to discharge

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the applicant from the aforesaid charges. If the applicant is discharged from all the charges then, there is no need to quash the proceedings under section 482 of the Cr.P.C. It could be said that the petition under section 482 of the Cr.P.C. is merged in the present criminal revision and a consolidated relief may be given to the applicant. Consequently, the petition under section 482 of the Cr.P.C. as well as the criminal revision filed by the applicant are hereby allowed. The order dated 5.7.2013 passed by the learned Additional Sessions Judge, Umariya against the applicant is hereby set aside. The applicant Shyam Bihari Bairagi is hereby discharged from the charge of offence punishable under sections 467/34, 471/34 and 420/34 of IPC. The trial Court is directed to drop the proceedings against the applicant.

13. A copy of the order be sent to the trial Court for information and compliance.

(N.K.GUPTA) JUDGE 22/10/2013 Pushpendra