Delhi District Court
Bharat Bhushan Mittal vs State on 4 August, 2012
IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS
JUDGE03: NW : ROHINI : DELHI
Criminal Revision No. 34/11
Bharat Bhushan Mittal
s/o Late sh. Nathu Ram,
nd
r/o G4117/118, 2 Floor,
Sector11, Rohini, Delhi .................. Revisionist
Versus
State ..................Respondent
ORDER
1. The revisionist has filed this revision petition u/s 397/399 Cr.P.C., 1973 for setting aside the impugned order on charge and charge dated 06042011 passed by Sh. Vidhya Prakash, Ld. ACMM1 (NW) Rohini Courts, Delhi.
2. TCR has already been summoned. I have heard Ld. counsel for the revisionist and the Ld. APP for the State and have perused the entire record.
Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 1 of 14
3. The brief facts, as set out in the revision petition, are that secret information was received that one person namely Pradeep Kumar Gupta was committing theft of Govt. medicines from BJRM hospital, Jahangirpuri in collusion with hospital staff and used to sell them in open market and on 28092006 he would come and commit theft of medicines at BJRM hospital in afternoon. Raiding party took position outside BJRM hospital at around 2 pm and at around 2:30 pm main accused Pardeep Kumar Gupta came in Zen car bearing no. DL2CK6474 from the emergency gate of hospital. The car was intervened on the road and Pardeep Kumar Gupta was held. Four boxes of medicines were recovered from the said car and "for supply to the Govt of NCT of Delhi" and "not for sale" were written on the boxes. Pardeep Kumar Gupta disclosed that he purchased those medicines in transition in collusion with hospital staff and sold them in open market. Stock of the medicine was checked in the hospital. On disclosure statement of Pardeep, revisionist was arrested and charge was framed against the revisionist u/s 409 IPC and section 4 of Prevention of Damage to Public Property. Aggrieved by the said order, the revisionist has filed the present revision.
Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 2 of 14
4. The revisionist has taken the grounds among others in the revision petition that the impugned order is arbitrary, unlawful, erroneous and bad in law and it is based on conjectures and surmises. Even going by the version of the prosecution, no case is made out against the petitioner/ revisionist. The petitioner/ revisionist was posted as pharmacist at the counter of BJRM hospital for distribution of medicines to the patients against the prescriptions of the doctors of the hospital and there were four pharmacists on duty at one time. The petitioner had no role in receiving and maintaining the stock of the medicines. His job was to distribute only those medicines at the counter which were supplied from the stock. The petitioner had no role during the transition of medicines to hospital but this fact has been totally ignored. The Ld. Trial Court erred in concluding that the petitioner / revisionist was entrusted with the medicines which were found in possession of main accused Pradeep Kumar Gupta. The hospital record also established that there was no shortage/deficiency of medicines in the hospital which were supplied to the hospital by the government. Further, there are statements of Dr. C.S. Bhogal, Dr. Tarun Ravi, Dr. Nalini Mittal and Dr. Javed Saleem to the fact that they Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 3 of 14 had checked and verified the medicines supplied by the companies to the hospital and found them correct and intact. When the medicines of hospital were found intact, it is beyond understanding how the revisionist was entrusted with the medicines which were recovered from main accused Pradeep Kumar Gupta.
5. The revisionist has taken further ground in his revision petition that the Ld. Trial Court has wrongly charged the petitioner/ revisionist with Section 4 of Prevention of Damage to Public Property Act. It was not the job of the revisionist to dispose of the extra or expired medicines. When the stock was intact then how and why the revisionist would throw the medicines for disposing off. Even otherwise, the alleged recovery of medicines was made at 2.30 pm on that day, but the prosecution witness Vinod Kumar said that he had put four boxes of medicine in Pradeep Gupta's Maruti Zen Car No. DL2CK6474 at the instance of the revisionist at around 4 pm in the evening. Meaning thereby, the revisionist has been forcibly introduced in the disclosure statement of the accused Pradeep Gupta. The specimen handwriting of the petitioner / revisionist did not match with Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 4 of 14 the impugned handwriting but the Ld. Trial Court did not take notice of such vital fact. Despite thorough investigation, the prosecution has failed to establish any link or connection between the petitioner / revisionist and main accused Pradeep Kumar Gupta.
6. The Ld. Counsel for the revisionist argued that there is no role of the accused/revisionist in the offence as alleged. Neither he was having any connection with the main accused Pradeep Kumar Gupta nor he was entrusted with the medicines. Moreover, no shortage of medicine was found and the stock of medicines was intact as per the records of the hospital. There was regular verification of stock register by the doctors. The revisionist is responsible for general pharmacy. The Ld. Counsel for the revisionist argued that there was no domain of the revisionist over the alleged property and referred section 405 IPC and also argued that oral evidence does not attract the provisions of section 405 IPC. Section 405 IPC reads as under:
405. Criminal breach of trust.Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 5 of 14 property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
7. The Ld. Counsel for the revisionist further argued that investigation agency has failed to bring on record the materials that the alleged property was the public property. It was not the work/job of the revisionist to dispose of the extra or expired medicines. No investigation as to who is the owner of the burnt medicines. In this regard, ld. counsel for the revisionist referred to Section 3 & 4 of the Prevention of Damage to Public Property Act, 1984. Therefore, the provisions u/s 409 IPC are not attracted qua the accused/revisionist.
Section 3 of the Prevention of Damage to Public Property Act reads as under:
3. Mischief causing damage to public property.(1) Whoever commits mischief by doing any act in respect of any public property, other than public property of the nature referred to in subsection (2), shall be punished with imprisonment for a term which may extend to five years and with fine.
(2) Whoever, commits mischief by doing any act in respect of any public property being
(a) any building, installation or other property used in Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 6 of 14 connection with the production, distribution or supply of water, light, power or energy;
(b) any oil installations;
(c) any sewage works;
(d) any mine or factory;
(e) any means of public transportation or of tele
communications, or any building installation or other property used in connection therewith, shall be punished with rigorous imprisonment for a term which shall not be less than six months, but which may extend to five years and with fine:
Provided that the court may, for reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than six months.
Section 4 of the Prevention of Damage to Public Property Act reads as under:
4. Mischief causing damage to public property by fire or explosive substance. Whoever commits an offence under subsection (1) or subsection (2) of section 3 by fire or explosive substance shall be punished with rigorous imprisonment for a term which shall not be less than one year, but which may extend to ten years and with fine:
Provided that the court may, for special reasons to be recorded in its judgment, award a sentence of imprisonment for a term of less than one year.
Section 409 of IPC provides as under:
409. Criminal breach of trust by public servant, or by banker, merchant or agent. Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 7 of 14 way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with {imprisonment for life}, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
The Ld. Counsel for the revisionist, in support of his arguments, has relied upon the judgements reported in the case of Rita Handa Vs. CBI, 2008 (3) JCC 2020; Pooran Lal & Ors. Vs. State 2008 (4) JCC 2353; Sanjeev Kumar Aggarwal & Ors. Vs. State & Anr. 2007 (4) JCC 3074; V. P. Shrivastava Vs. Indian Explosives Ltd. & Ors. 2010 (4) JCC 2975 and Velji Raghavji Patel Vs. State of Maharashtra, 1965 AIR 1433 (SC).
8. Whereas, the ld. APP for the State argued that there was information to the police regarding the medicines in question, raiding party was made by the police and the medicines were seized by them. There are sufficient materials on record against the accused/ revisionist which makes prima facie case against him which further reveals from the statements of Vinod Kumar, Harish Kumar and Manohar Singh recorded u/s 161 Cr.P.C. Therefore, grave suspicion is sufficient to frame the charge against the accused and on the basis of Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 8 of 14 the materials placed on record and judgments relied upon, the Ld. Trial Court framed charge against the accused/ revisionist. Ld. APP for the State also relied upon the judgments which have already been considered by the Ld. Trial Court at the time of passing the order on charge.
9. In view of the above facts and the arguments, let us discuss whether the accused/revisionist Bharat Bhushan Mittal had any role in receiving and maintaining the staff of the medicines, whether he was entrusted with the medicines which were found in possession of the accused Pradeep Kumar Gupta, whether there was any shortage or deficiency of medicines which were supplied to the hospital, whether the accused/revisionist has been charged on the basis of mere disclosure statement given against him by the other accused in the absence of any corroborating materials/evidence, whether there is a grave suspicion against the accused/revisionist for the offence as charged by the Ld. Trial Court.
10. The prosecution story is that on 28.09.2006 at about 2.30 Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 9 of 14 pm near emergency gate of BJRM Hospital, accused Pradeep Gupta was found in possession of several cartons of government medicines which were supposed to be given to the patients through pharmacists of BJRM Hospital as per prescriptions of the doctors of the aforesaid hospital. The accused/revisionist Bharat Bhushan Mittal was employed as Pharmacist at that time in the said hospital and was in the custody of the medicines as alleged which he delivered to the accused Pradeep Gupta for their sale in open market. Further, on 30.09.2006 at about 10 am, some of the medicines were found to have been destroyed by putting them on fire through Harish Kumar and Manohar Singh. Whereas, one of the prosecution witness namely Vinod Kumar stated in his statement u/s 161 Cr.P.C. that he had put the fore boxes of medicines in Pradeep Gupta's Maruti Zen car at the instance of the revisionist at about 4 pm in the evening on 28.09.2006 which is contradictory to the prosecution story. As per the stock register w.e.f. 14.11.2005, the SDF & Stock checked verified and found correct and SDF destroyed after checked upto 28.09.2006. Further, it reveals from the statement of Dr. Anirudh Pandey, Dr. C.S. Bhogal, Dr. Tarun Ravi, Dr. Nalini Mittal and Dr. Javed Saleem that after checking and Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 10 of 14 verifying, the medicines found correct and intact. Meaning thereby all the medicines entrusted to the revisionist were found correct and intact as per the record of the hospital as verified by the aforesaid doctors.
11. In Union of India Vs. Prafulla Kumar Samal & Anr., AIR 1979 Supreme Court 366, the Supreme Court has laid down principles to be followed by a Court of Sessions while considering the question of framing of charge U/s 227 Cr.P.C.: "(1) That the Judge while considering the question of framing of charges u/s 227 of the Code has the undoubted power to sift the weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(2) Where the material 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction u/s 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a PostOffice 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 appearing in the case and so on. This however does not Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 11 of 14 mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
12. In Sanjeev Kumar Aggarwal & Ors. Vs. State & Anr., 2007 [4] JCC 3074, it was observed by the Hon'ble High Court of Delhi that "The basic requirement to bring home the accusations u/s 405 is to prove conjointly (1) entrustment and (2) whether the accused was actuated by the dishonest intention or not misappropriated it or converted it to his own use to the detriment of the persons who entrusted it.
In the decision reported as Raj Kumar Khanna Vs. State 95 (2002) DLT 147, the complainant had filed a complaint against her husband and his family members u/s 498A/406 r/w section 34 of the IPC. Noting that there was no allegation of entrustment of any property against the fatherinlaw of the complainant, this Court quashed the FIR qua the fatherinlaw. In the said decision, it was observed as under: "Admittedly neither the complaint nor the supplementary statement show any entrustment of any property to the petitioner. In the absence of entrustment question of criminal breach does not arise. Since there was no entrustment of any articles to the petitioner, therefore chances of ultimate conviction on this count are bleak. No useful purpose is going to be served by allowing the proceedings u/s 406 IPC to continue against this petitioner."
13. In Rita Handa Vs. CBI, 2008 [3] JCC 2020 it was held by Hon'ble High Court of Delhi that "the court at the stage of framing of charges has undoubted power to sift and weigh and evidence for the limited purpose of finding out whether or not a prima facie case is made out against the accused. The test to determine a prima facie case naturally depends Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 12 of 14 upon the facts of each case. If two views are equally possible and Judge is satisfied that evidence produced before him give rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused." In Revision Petition no. 963/2002 titled Ashok Kumar Nayyar Vs. The State, the Hon'ble Mr. Justice S. Ravindra Bhat of Hon'ble High Court of Delhi observed that it is well settled in Prafulla Kumar Samal's case that the Court has to sift the evidence and determine whether a grave suspicion about commission of offence exists on the basis of the materials. Kurane's case is an authority for the proposition that if there are two versions or two inferences can be reasonably drawn, the version favourable to the accused has to be accepted by the Court so long as it is a reasonable one. It was held that the materials on record also do not point to a grave suspicion to warrant the charges, framed in the impugned order.
14. In view of the above facts & circumstances of the case, the aforesaid judgments, I am of the considered opinion that the revisionist neither had any domain with the medicines nor he was entrusted with the medicines which were found in possession of the accused Pradeep Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 13 of 14 Kumar Gupta. Moreover, after verification by the doctors, no shortage of medicines was found at that time in the hospital according to the hospital records. Therefore, the materials placed on record does not disclose grave suspicion against the accused/revisionist for the offence as charged. Thus, no prima facie case is made out against the accused/revisionist. Hence, the accused/revisionist is discharged from the offences U/s 409 IPC and U/s 4 of the Prevention of Damage to Public Property Act, 1984. Accordingly, this revision petition is allowed. TCR along with copy of this order be sent back and thereafter revision file be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT on 04082012 Crl. R. No. 34/11; Bharat Bhushan Mittal Vs. State Page 14 of 14