Gujarat High Court
Hitesh Dayabhai Kansagra vs State Of Gujarat on 22 March, 2024
NEUTRAL CITATION
R/CR.RA/455/2024 ORDER DATED: 22/03/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED
BY SUBORDINATE COURT) NO. 455 of 2024
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HITESH DAYABHAI KANSAGRA & ANR.
Versus
STATE OF GUJARAT
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Appearance:
MR PRATIK B BAROT(3711) for the Applicant(s) No. 1,2
MR CH DAVE, ADDL.PUBLIC PROSECUTOR for Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/03/2024
ORAL ORDER
1. The instant revision under Section 397 read with Section 401 of Cr.P.C. challenges rejection of application below Exhibit- 37 in Special ACB Case No.1 of 2019 vide order dated 01.01.2024 passed by the learned 3rd Additional Sessions Judge, Gondal.
2. The facts leading to the filing of the present revision are as under.
2.1 The first informant in the capacity of Taluka Development Officer, Rajkot filed FIR alleging that the In-charge Sarpanch of village Biladi and other persons have created forged vouchers under Gauchar Sudharna Scheme and thereby Government is cheated by getting away with personal monetary gain of Rs.15 Lakhs. Thereafter, the police agency conducted investigation, recorded statements and filed charge-sheet against nine accused persons before the Special Court. The petitioners Page 1 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined being accused Nos.7 and 8 filed discharge application before the Special Court and the Special Court vide order dated 01.01.2024 passed below Exhibit-37 in ACB Case No.1 of 2019 dismissed the discharge application. Hence, the present revision.
3. Heard learned advocate Mr.Pratik Barot appearing for the petitioners and learned APP appearing for the State.
4. Learned advocate Mr.Pratik Barot appearing for the petitioners would submit that the learned Trial Court has committed serious error in rejecting the application below Exhibit-37 filed for discharge of the petitioners under Section 227 of the Cr.P.C. He would further submit that principally allegations levelled against the present petitioners in the offence are to the tune that they are accused Nos.7 and 8. They have no nexus whatsoever with the other accused. The name of the accused are not reflecting in the statement of any witness and there is no sufficient material with the prosecution to frame charge against the petitioners. He would further submit that according to the charge-sheet papers, accused No.1 issued completion certificate after visiting the site in a capacity of Nayab Pashupalan Niyamak, District Panchayat, Rajkot. He would further submit that the completion certificate are called to be issued after the concerned Village Panchyat considered completed the work and the certificate of Engineer was produced before the accused No.7. As far as role of accused No.8 is concerned, it is submitted that he was working as Veterinary Officer and he accompanied accused No.7 for site visit only and accordingly made his signature in the certificate at page 141. It Page 2 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined is further submitted that the accused have not been assigned any such duty and there is no material indicating previous meeting of mind, but despite of that accused No.7 and 8 have been wrongly roped the offence. Learned advocate Mr.Pratik Barot submits that mainly accusation is made to the effect of making forged document and presenting them as a genuine one. Therefore, he submitted that principally the charge of offence under Sections 467, 468 and 471 are alleged against the present petitioners. Learned advocate Mr.Pratik Barot submits that however there is nothing on record to show that document has been prepared by the present petitioners who are accused Nos.7 and 8. Learned advocate Mr.Pratik Barot submits that either of the petitioners are not maker of the certificate, they are only signatories to the document along with some other persons. They are mere executors. Barring that, no role is attributed to the present petitioners for the commission of the offence. Therefore, he submitted that the accused are wrongly arraigned and there is no material against them to frame the charge.
5. Learned advocate Mr.Pratik Barot submits that in order to constitute the offence under Sections 465, 467 and 468, the forgery as defined in Section 463 has to be prima facie established. He would further submit that according to Section 463 of the IPC, the person who is maker of the false document including the false electronic document or part of the document or electric record with intent to cause damage or injury to the public or any other person or to support any claim or title or to cause any person to part with any property or enter into expressed or implied contract with intent to commit fraud, said Page 3 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined to have committed forgery. To establish the charge of forgery under Sections 467, 468, it is sine-qua-non to establish charge under Section 463 of the Indian Penal Code which in the present case is missing. He would further submit that the present petitioners along with some other person was just a signatory to the document at page-141. Apart from that they have not played any role in commission of the offence. He would further submit that in order to attract the offence under Section 471 of IPC, it is to be proved that accused has forged the document as per Section 470 of IPC. In the present case, ingredients of either of the sections i.e. Section 463 and/or Section 470 IPC are missing which indicates that no offence under Sections 467, 468 or 471 which is alleged against the present petitioners is established. Therefore, he would submit that the petitioners may not be compelled to face the trial since the petitioners are wrongly engaged in the charge-sheet, having played no role to commit cheat or forgery or to create forged document. Thus, he submitted that the petitioners who are accused Nos.7 and 8 may be discharged from the accusation. He would further submit that the learned Special Court has committed serious error in understanding the law as well as role attributed to the present petitioners. He would submit that role in the charge-sheet attributed to each accused was required to be examined by the learned Special Court but the learned Special Court failed and as such erred in denying discharge application. Therefore, he submits to allow this revision.
6. In support of the above arguments, learned advocate Mr.Pratik Barot has relied upon the judgment of Hon'ble Page 4 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined Supreme Court in the case of Sanjay Kumar Rai vs. State of U.P. - 2022 (15) SCC 720 to submit that discharge is a valuable right of the accused. It is neither interlocutory nor final order and therefore not affected by the bar of Section 397(2) of Cr.P.C. Another judgment relied upon by the learned advocate for the petitioners is in the case of Vishnu Kumar Shukla vs. State of U.P. - AIR 2024 SC 90 to submit that the protection against vexatious and unwanted prosecution and from being unnecessarily dragged through a trial by melting a criminal proceeding into oblivion, either through quashing a FIR/Complaint or by allowing an appeal against an order rejecting discharge or by any other legally permissible route, as the circumstances may be, in the deserving case, is a duty cast on the High Courts.
7. Another judgment relied upon by the learned advocate Mr.Pratik Barot is that in case of Sheila Sebastian Vs. R. Jawaharaj - 2018 (7) SCC 581 to submit that to attract the offence of forgery as defined under Section 463 IPC is depend upon the creation of document as defined under Section 464 of IPC. Mere execution of the deed by claiming that property being sold was executant's property did not amount to commission of offence punishable under Section 467 and 471 of IPC. The following paragraphs from the above judgment is referred to and relied upon by the learned advocate for the petitioners :
"19. A close scrutiny of the aforesaid provisions makes it clear that, Section 463 defines the offence of forgery, while Section 464 substantiates the same by providing an answer as to when a false document could be said to have been made for the purpose of committing an offence Page 5 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined of forgery under Section 463, IPC. Therefore, we can safely deduce that Section 464 defines one of the ingredients of forgery i.e., making of a false document. Further, Section 465 provides punishment for the commission of the offence of forgery. In order to sustain a conviction under Section 465, first it has to be proved that forgery was committed under Section 463, implying that ingredients under Section 464 should also be satisfied. Therefore unless and untill ingredients under Section 463 are satisfied a person cannot be convicted under Section 465 by solely relying on the ingredients of Section 464, as the offence of forgery would remain incomplete
20. The key to unfold the present dispute lies in understanding Explanation 2 as given in Section 464 of IPC. As Collin J., puts it precisely in Dickins v. Gill, (1896) 2 QB 310, a case dealing with the possession and making of fictitious stamp wherein he stated that "to make", in itself involves conscious act on the part of the maker. Therefore, an offence of forgery cannot lie against a person who has not created it or signed it.
21. It is observed in the case Md. Ibrahim and Ors. vs. State of Bihar and Anr., (2009) 8 SCC 751 that-
"a person is said to have made a `false document', if
(i) he made or executed a document claiming to be someone else or authorised by someone else; or
(ii) he altered or tampered a document; or
(iii) he obtained a document by practicing deception, or from a person not in control of his senses."
22. In Md. Ibrahim (supra), this Court had the occasion to examine forgery of a document purporting to be a valuable security (Section 467, IPC) and using of forged document as genuine (Section 471, IPC). While considering the basic ingredients of both the offences,this Court observed that to attract the offence of forgery as defined under Section 463, IPC depends upon creation of a document as defined under Section 464, IPC. It is further observed that mere execution of a sale deed by claiming that property being sold was Page 6 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined executant's property, did not amount to commission of offences punishable under Sections 467 and 471, IPC even if title of property did not vest in the executant.
23. The Court in Md. Ibrahim (supra) observed that:
"There is a fundamental difference between a person executing a sale deed claiming that the property conveyed is his property, and a person executing a sale deed by impersonating the owner or falsely claiming to be authorised or empowered by the owner, to execute the deed on owner's behalf. When a person executes a document conveying a property describing it as his, there are two possibilities. The first is that he bona fide believes that the property actually belongs to him. The second is that he may be dishonestly or fraudulently claiming it to be his even though he knows that it is not his property. But to fall under first category of `false documents', it is not sufficient that a document has been made or executed dishonestly or fraudulently. There is a further requirement that it should have been made with the intention of causing it to be believed that such document was made or executed by, or by the authority of a person, by whom or by whose authority he knows that it was not made or executed.
When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted."
8. Yet another judgment is also referred to in case of Deepak Gaba and others Vs. State of U.P. - 2023 (3) SCC 423. Paragraph 18 and 19 thereof reads as under :-
"18. Section 471 of the IPC [13] is also not attracted. This Section is applicable when a person fraudulently or Page 7 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined dishonestly uses as genuine any document or electronic record, which he knows or has reasons to believe to be a forged document or electronic record. This Court in Mohd. Ibrahim and Another (Supra), has elucidated that the condition precedent of an offence under Section 471 of the IPC is forgery by making a false document or false electronic record or part thereof. Further, to constitute the offence under Section 471 of the IPC, it has to be proven that the document was "forged" in terms of Section 470[14], and "false" in terms of Section 464 of the IPC[15]. Section 470 lays down that a document is 'forged' if there is: (i) fraudulent or dishonest use of a document as genuine; and (ii) knowledge or reasonable belief on the part of the person using the document that it is a forged one. Section 470 defines a forged document as a false document made by forgery. As per Section 464 of the IPC, a person is said to have made a 'false document': (i) if he has made or executed a document claiming to be someone else or authorised by someone else; (ii) if he has altered or tampered a document; or (iii) if he has obtained a document by practising deception, or from a person not in control of his senses. Unless, the document is false and forged in terms of Sections 464 and 470 of the IPC respectively, the requirement of Section 471 of the IPC would not be met.
[13] 471. Using as genuine a forged document or electronic record.--Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record.
[14] 470. Forged document.--A false document or electronic record] made wholly or in part by forgery is designated "a forged document or electronic record".
[15] 464 - Making a false document .-- A person is said to make a false document or false electronic record-- First.--Who dishonestly or fraudulently--
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of Page 8 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined any electronic record;
(c) affixes any electronic signature on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature,with the intention of causing it to be believed that such document or part of document, electronic record or 2 [electronic signature] was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, singed, sealed, executed or affixed; or Secondly.--Who without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly.--Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his electronic signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
19. In the counter affidavit filed by respondent no. 2 - complainant, it is submitted that a few bills were faked/forged, as the goods were not ordered. Reference is made to balance of Rs. 79,752/- shown on 30th March 2013, which was objected to and thereupon as per the complaint itself the demand/bill was withdrawn. This would not make the bill a forged document or false document, in terms of Sections 470 and 464 of the IPC. The complaint was made in the year 2017, four years after the bill/claim had been withdrawn, reflecting no criminal intent. The bill was not fake or forged, and at best it could be stated that it was wrongly raised. Moreover, the pre- summoning evidence is silent with regard to this bill and mens rea on the part of the Page 9 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined accused is not shown and established. Same would be the position with regard to the bill/invoice of Rs. 53,215/- which was as per the complaint, sent directly to Manav Rachna International at Faridabad. The bill/invoice is not doubted as 'forged' or 'false' within the meaning of Sections 470 and 464 of the IPC. No doubt, Adhunik Colour Solutions is mentioned as the buyer, and Manav Rachna International as the consignee, albeit the invoice was issued by JIPL. Pre-summoning evidence does not help and make out a case predicated on this bill/invoice. In the counter affidavit filed before us, it is alleged that since this bill was sent to Faridabad, JIPL had added the GST in the invoice. It is argued that had respondent no. 2 - complainant supplied the goods, instead of GST, VAT as applicable in Delhi would have been levied, as respondent no. 2 - complainant was based in Delhi. This argument is rather fanciful and does not impress us to justify summoning for the offence under Section 471 of the IPC. Besides, the assertion is not to be found in the complaint, and cannot be predicated on the pre-summoning evidence. For completeness, we must record that the appellants have placed on record the dealership agreement dated 11th April 2012, which, inter alia states that JIPL has a discretion to establish direct contractual relationship with specific customers, if JIPL feels they can be served better. Further, in such a situation, the dealer, if JIPL agrees, can act as an intermediary. Assuming the bill/invoice had wrongly recorded respondent no. 2 - complainant as the buyer, it is not doubted that Manav Rachna International was the consignee. At best, respondent no. 2 - complainant would not be liable, had Manav Rachna International failed to pay. Non-payment is also not alleged in the complaint or the pre-summoning evidence. Reliance on objections vide e-mails dated 4th July 2014 and 21st July 2014 are of no avail, as they are for the period prior to 31st July 2014, when the bill/invoice was raised."
9. Lastly, the judgment of this Court in the case of Manishaben Gajjugiri Goswami vs. State of Gujarat - 2022 (1) GLR 133 was pressed into service to submit that the Court is required to evaluate the material and documents on record with Page 10 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined a view to find out facts emerging therefrom taken at the face value to disclose existence of all ingredients constituting alleged offence.
9.1 Upon above submissions, learned advocate Mr.Pratik Barot submits to allow this revision and to quash and set aside the impugned order.
10. On the other hand, learned APP referring to the judgment of Hon'ble Supreme Court in State of Rajasthan vs. Ashok Kumar Kashyap - 2021 (11) SCC 191 would submit that scope of discharge application is limited. He would further submit that at the time of deciding the application for discharge, the Court is required to see that whether sufficient evidence is available to go further in the trial by framing the charge. The Court is required to see the prima facie value of evidence on record. It is further submitted that at this juncture of framing the charge, the Court is required to presume that the charges levelled are true and correct and having presumed so if no role of the accused is found from the charge-sheet papers, the Court can discharge the accused. He would further submit that primary consideration at the stage of the framing of the charge is test of existence of prima facie case and at this stage the probative value of material on record need not to be gone into. He would also submit that the nature of evaluation to be made by the Court at the stage of framing of the charge is to press the existence of the prima facie case and the Court is required to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged. It is not expected to go deep into probative value of the Page 11 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined material on record and to check whether material on record would lead to conviction.
11. As far as facts of the case is concerned, learned APP has stated that both the petitioners have admitted their signatures on the disputed documents. The document is executed by the accused, the completion certificate given by the accused even in absence of any work carried out specified therein and it is also certified that the work in tune of Rs.22,49,934/- has been carried out by all concerned which is pith and substance upon which the entire structure of the offence has been erected. Therefore, he has submitted that the accused Nos.7 and 8 along with other accused have played a pivotal role in commission of the offence. There are sufficient evidence on record to frame the charge against the accused. Learned Trial Court has given cogent and exhaustive reasons to decline the discharge application as no interference is called for and therefore, learned APP submits to dismiss this revision.
12. Learned Sessions Judge has supplied following reasons to deny the discharge :-
"5. The certificate in respect of completion of developmental work issued on 16/09/2015 does bear the signatures of accused No.7 & 8 alongwith other office bearers. The accused No.7 was serving as Nayab Pashu Palan Niyamak and accused No.8 was serving as Pashu Chikitsa Officer. Certificate dated 16/09/2015 bears mention of signatories having verified the work done by Bildi Gram Panchayat under Antar Stariya Vikas Yojna to Gaushala of village Bildi and that the work has been completed as per the plan and estimate. The statement of accused No.7 & 8 before the officer conducting the Page 12 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined preliminary inquiry reveal that they did not dispute their signatures on the work completion certificate. Therefore, taking into account the nature of accusation against the accused No.7 & 8; coupled with the fact that their signatures with designation appear on work completion certificate which is alleged to have been issued despite non-completion of work is prima-facie indicative of accused No.7 & 8 having nexus with the alleged offenses and it cannot be said that there is no prima facie case against the accused No.7 & 8 to frame charge.
6. It is settled legal position that Court is not expected to conduct roving inquiry or hold mini trial at the time of adding the discharge plea and Court is also not required to ensure whether the trial would result in conviction of the accused, at the time of adjudicating discharge plea. Based on the role attributed to the accused No.7 & 8 and the material indicating their complicity prima facie, the same is sufficient to frame charge against them and therefore, this Court is of the view that the present application is devoid of merits.
7. Considering the nature of arguments advanced by the learned advocate for the defence and the issue involved in this application it would be apt to quote observations of Hon'ble Apex Court in Criminal Appeal No. 1399 of 2023 in case titled Captain Manjit Singh Virdi (Retd.) Versus Hussain Mohammed Shattaf & Ors.; decided on May 18, 2023.
11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of chargesheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to Page 13 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined hold that in case the trial is allowed to proceed, the same would amount to abuse of process of the Court.
12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v. Ashok Kumar Kashyap (2021) 11 SCC 191. Relevant paras are extracted below: -
"11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/ or considering the discharge application has been considered elaborately in the said decision. It is observed and held that 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. It is observed that in other words, the sufficiency of grounds 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. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, 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.
11.2. In the recent decision of this Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under: "25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court.Page 14 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024
NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: '29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
8. In view of above submission and considering the material adduced by the prosecution as well as ratio emerging from decisions referred to herein above, this Court is of the view that it cannot be said with certainty that there is no sufficient ground to proceed with the accused no.7 and 8; therefore, without entering into deeper scrutiny or roving inquiry with regards to material proposed to be produced by the prosecution, this Court is of the view that it is not a fit case to discharge the accused. Accordingly, this application is required to be dismissed and the matter is taken up for framing of charge against the accused. Hence, the following order is passed."
12. It is to be noted that apart from the offence under Section 406, 420, 467, 468, 471 and 477(A) of the IPC, allegations of the Page 15 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined offence under Section 13(1)(c) of the Prevention of Corruption Act are also alleged against accused since beginning which prima facie established through filing of the charge-sheet. The FIR is filed by the Taluka Development Officer serving in Rajkot District for malfunction in Government scheme, resulted into defraud and dupe of huge amount. In nutshell, the Gauchar Sudhara Scheme was launched. Accused Nos.1 and 2 sought grant of Rs.24,11,800/- to get approval of 75% of the said amount totaling to Rs.18,00,000/-, remaining amount of the scheme was to be taken from the public fund of Bildi Gram Panchayat. The condition precedent was that the work of the scheme is to be done according to the standard. What found on inspection that the work of Gauchar Sudhara was not carried as per the prescribed standard and even not completed. Fencing was done over 17 poles and 37 poles were just erected where 19 poles were lying on the ground. Talati-cum-Mantri who was expected to oversee the work of the scheme abated it. The false vouchers indicating the exaggerated amount of expenses have been raised. All from accused Nos.1 to 6 are involved at the every stage in making off base and fraudulent document and the bills etc. The present petitioners have played role of issuing fictitious and counterfactual certificate certifying that the work is completed. It is not a case of the petitioners that they have not signed the certificate at page 141. It is the case of the petitioners that they are just signatories to this certificate along with Sarpanch and Talati-cum-Mantri. According to petitioners, at the most it can be said that they have executed the certificate and they have not forged it and the act of signing the certificate produced at page 141 could not be termed as an offence of forgery etc. fall within Page 16 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined Sections 463, 464 and 470 of the IPC. This submission is fallacious. Certifying the work which is not done itself prima facie establish offence as alleged including offence under Prevention of Corruption Act.
13. Summary of the offence stated hereinabove prima facie establish the case against the accused. Signatory of the certificate (page 141) is undeniable where it is certified that the work has been completed and the amount of Rs.22,49,934/- is paid is also undeniable. This aspect at this juncture is sufficient to presume correctness of charge against the accused. The issue has been considered by Hon'ble Supreme Court in the case of Captain Manjit Singh Virdi (Retd.) vs. Hussain Mohammed Shattaf - 2023 (7) SCC 633. The paragraphs 11 and 12 thereof reads as under :-
"11. The law on issue as to what is to be considered at the time of discharge of an accused is well settled. It is a case in which the Trial Court had not yet framed the charges. Immediately after filing of chargesheet, application for discharge was filed. The settled proposition of law is that at the stage of hearing on the charges entire evidence produced by the prosecution is to be believed. In case no offence is made out then only an accused can be discharged. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. At the stage of charge, the Court has to satisfy that a prima facie case is made out against the accused persons. Interference of the Court at that stage is required only if there is strong reasons to hold that in case the Criminal Appeal No. 1399 of 2023 trial is allowed to proceed, the same would amount to abuse of process of the Court.
12. The law on the point has been summarised in a recent judgment of this Court in State of Rajasthan v.Page 17 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024
NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined Ashok Kumar Kashyap2. Relevant paras are extracted below: -
"11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that 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. It is observed that in other words, the sufficiency of grounds 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. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to 2 (2021) 11 SCC 191 Criminal Appeal No. 1399 of 2023 determine whether a case for trial has been made out by the prosecution, 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.
11.2. In the recent decision of this Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under:
"25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true Page 18 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, Criminal Appeal No. 1399 of 2023 adverting to the earlier decisions on the subject, this Court held:
'29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
14. Assistance can also be availed from the judgment of Hon'ble Apex Court in the case of State of Rajasthan vs. Ashok Kumar Kashyap (supra) in which the Supreme Court after referring the judgment of P. Vijayan vs. State of Kerala - 2010 (2) SCC 398, held in paragraphs 9 to 12 as under:-
"9. While considering the legality of the impugned judgment and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to.
9.1 In the case of P.Vijayan (supra), this Court had an occasion to consider Section 227 of the Cr.P.C. What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that 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 Page 19 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined against the accused. It is observed that in other words, the sufficiency of grounds 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. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 Cr.P.C., if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, 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.
9.2 In the recent decision of this Court in the case of M.R. Hiremath (supra), one of us (Justice D.Y. Chandrachud) speaking for the Bench has observed and held in paragraph 25 as under:
25. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier decisions on the subject, this Court held: (SCC pp. 721-22, para 29) "29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether Page 20 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
10. We shall now apply the principles enunciated above to the present case in order to find out whether in the facts and circumstances of the case, the High Court was justified in discharging the accused for the offence under Section 7 of the PC Act.
11. Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227/239 Cr.P.C. While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not. For the aforesaid, the High Court has considered in detail the transcript of the conversation between the complainant and the accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all. As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the accused is not to be considered. After considering the material on record including the transcript of the conversation between the complainant and the accused, the learned Special Judge having found that there is a prima facie case of the alleged offence under Section 7 of the PC Act, framed the charge against the accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the accused is likely to be convicted for the offence under Section 7 of the PC Act or not. As observed hereinabove, the High Court was required to consider whether a prima Page 21 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.
12. We are not further entering into the merits of the case and/or merits of the transcript as the same is required to be considered at the time of trial. Defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application."
15. Whether the charge-sheet papers are genuine or otherwise and whether upon the charge-sheet papers, successful conviction can be secured etc. are irrelevant considerations. The truthfulness, genuity, sufficiency, acceptability etc. of the document or material on record or evidence thereon can be ascertained, examined and evaluated at the stage of trial. What requires at the stage of framing of the charge is satisfying on existence of the prima facie case to go further in trial. There is sufficient material before the Court below to proceed further in the trial against the accused. The undisputed facts as stated hereinabove prima facie establish case against the accused to frame the charge. This Court finds no patent illegality or defect in the impugned order or error of jurisdiction or illegality or perversity crept in the impugned order. It is well settled that the revisional Court cannot have jurisdiction like trial Court and evaluate the evidence on record to find out the inconsistency in the statement of facts since it is legally not permissible.
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16. Recently, the Hon'ble Supreme Court in State of Gujarat vs. Dilipsinh Kishorsinh Rao - 2023 (4) Crimes 146 discussed the jurisdiction of the revisional Court in context of denial of the discharge application. The relevant paragraphs are extracted hereinbelow :-
"7. It is trite law that application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial judge has to merely examine the evidence placed by the prosecution in order to determine whether or not the grounds are sufficient to proceed against the accused on basis of charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge would suffice and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that accused has committed the offence which is triable, then necessarily charge has to be framed.
8. *** *** ***
9. If the accused is able to demonstrate from the charge- sheet material at the stage of framing the charge which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr.P.C. is to assist the court to determine whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing, to oral hearing and oral arguments only and therefore, the trial court Page 23 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined can consider the material produced by the accused before the I.O.
10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu Vs. N. Suresh Rajan And Others (2014) 11 SCC 709 adverting to the earlier propositions of law laid down on this subject has held:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."Page 24 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024
NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined
11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression "the record of the case" used in Section 227 Cr.P.C. is to be understood as the documents and articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency.
12. The primary consideration at the stage of framing of charge is the test of existence of a prima-facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra Vs. Som Nath Thapa (1996) 4 SCC 659 and the State of MP Vs. Mohan Lal Soni (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of prima- facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.
13. The power and jurisdiction of Higher Court under Section 397 Cr.P.C. which vests the court with the power to call for and examine records of an inferior court is for the purposes of satisfying itself as to the legality and regularities of any proceeding or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law or the perversity which has crept in such proceedings. It would be apposite to refer to the judgment of this court in Amit Kapoor Vs. Ramesh Chandra (2012) 9 SCC 460 where scope of Section 397 has been considered and succinctly explained as under:
"12. Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order Page 25 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the court to scrutinise the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie. Where the Court is dealing with the question as to whether the charge has been framed properly and in accordance with law in a given case, it may be reluctant to interfere in exercise of its revisional jurisdiction unless the case substantially falls within the categories aforestated. Even framing of charge is a much advanced stage in the proceedings under the CrPC."
14. This Court in the aforesaid judgement has also laid down principles to be considered for exercise of jurisdiction under Section 397 particularly in the context of prayer for quashing of charge framed under Section 228 Cr.P.C. is sought for as under:
"27. Having discussed the scope of jurisdiction under these two provisions i.e. Section 397 and Section 482 of the Code and the fine line of jurisdictional distinction, now it will be appropriate for us to enlist the principles with reference to which the courts should exercise such jurisdiction. However, it is not only difficult but is inherently impossible to state with precision such principles. At best and upon objective Page 26 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined analysis of various judgments of this Court, we are able to cull out some of the principles to be considered for proper exercise of jurisdiction, particularly, with regard to quashing of charge either in exercise of jurisdiction under Section 397 or Section 482 of the Code or together, as the case may be:
27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.13. Quashing of a charge is an exception to the rule Page 27 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024 NEUTRAL CITATION R/CR.RA/455/2024 ORDER DATED: 22/03/2024 undefined of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie."
15. The revisional court cannot sit as an appellate court and start appreciating the evidence by finding out inconsistency in the statement of witnesses and it is not legally permissible. The High Courts ought to be cognizant of the fact that trial court was dealing with an application for discharge."
17. For the reasons stated hereinabove, I find no merits in the revision. Insofar as judgments relied upon by the learned advocate appearing for the petitioners, they would not lend any assistance to him. In view of the above, the revision stands dismissed.
(J. C. DOSHI, J) GAURAV J THAKER Page 28 of 28 Downloaded on : Thu Mar 28 20:33:05 IST 2024