D V Kundar vs State By Cbi on 3 November, 2010

[Cites 15, Cited by 0]

Karnataka High Court

D V Kundar vs State By Cbi on 3 November, 2010

Bench: C.R.Kumaraswamy

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3"' DAY OF NOVEMBER 2010
BEFORE C

THE HON'BLE MR. JUSTICE C.R. KUMARA'_SWﬁ2_i$l:${_V".  .

CRIMINAL PETITION N,9«.S59'1t'i2r0'0'i'2§'vi"*:: ~ it
BETWEEN: C it it  C

D.V. Kundar,

Aged 68 years,

S/0 V.M. Saiian,

Resident of Devikrupa, ,

Karnad Bypass, Muiki;ff _ 

Mangalore Taluk,   :   
Karnataka--574i_54.  _ '   Petitioner

(By s ri . G  h}}i<  ma*t  ,j' A d.yojca'te:) 
ANO:'.__

State byacdoi S I 

BS & FC, Bangalyojre  '

Represented "b.y_Vi'ts
S'1',a'riTdl_ntgg Cou nsel  "

 'Publicimosectitor.  Respondent

S .g(I5yysrr;t;I"'ci,;CuHﬁoadhav, Advocate) Tl1.isv"'Criminai Petition is filed under Section 482 of V' Code" oficriminal Procedure praying to set aside the order dated 10.7.2009 passed by the XXI Additional City Civil Sessions Judge & Special Judge for CB1 cases, it " "Bangalore city on the application filed under section--319 of Code of Criminal Procedure and to add CW3, Prakash '§../ Narasingadas Punjabi, his father Tej Narasingadas Navalrai, CW41 -- Suresh Purswaney and his wife Karan Purswaney, CVV4 Gopai Gopai Tiiarmuai Meiwan4iVV.aii14cii.CW5 Arjundas Tharmual Melwani as accused:.~~~.in;Vw':'__§§ije:ci.al C.C.No.24S/02. ' This Criminal Petition is cc;n1ing'on"fpr-I madamsisoimis it day the Court made the fo!Iowing':'.«V__ o R This Criminal PietiAtion"V'i's_'VCfi:!'e'd,T'u.n.der Section 482 of Code of Criminal Procedure aside the order dated 10.7.;20'D9:I"passed iiy 'thé'.i_)<~Xi..:V.§i\dditional City Civil and 'Judge for CBI cases, Bang:'aAlor.e' city'/Clear»...:t'ne"a.op*l-ication filed under section--319 of Code of"cCrimin'ai"iiérocedure and to add CW3, Prakash Narijasirigadas'"~-Punjabi, his father Tej Narasingadas C trial/al_ra'Ai,% -CW41 -- Suresh Purswaney and his wife Karan ,;?'l.~rswVanVe'-3:, Gopa! Gopal Tharmual Melwani and CW5 Arj'una'~as""Tharmua| Melwani as accused in Special V "C*.C_.No".'245/O2.

2. Accused No.1 has filed an application under Section--319 of Code of Criminal Procedure in the Court E? /'4 'xx' below. The averments made in the said application are as unden 2.1 The CBI, BS & FC, Bangalore filed__;'Ch'arjgej:

against 9 accused persons under Sections_:'j1,2t3.::B., 420, 467, 468, 471, 474 and l§l77:.,141\'Afj7£F5'C 'and,"1.:sQj..,;/w T 13(1), (c) 8L (d) of Preventi.on,__of cdrtdptiona,A-tt.,.,i,198t§:. 2.2 The Deputy Ge,ne--ralL_:--.Manaoeiri"B..\,l;Ei3ai, Legal Section, Circle Office,kCa_:'1'a'ra.,§Van4l%'«"Vh,a's:'lodged a complaint dated 11.1:;,2ooo Pt-ditash Narasingdas Punjabi, Suresh Puruswaney and itareniAP'd.t=tis_viia,net(';"'-it .is_' aiieged that the said persons committed , fraauidff was inferred after verifying indepecndentf-it'by its officers, legal department and GEQD report, in the matter of FCNR deposit prcttbvv-V'j'ttd.9'9,z3o for usp-3,7o,ooo/» dated 8.5.1999, l:iearin.__gj'pr«i*nAted serial No.2039884, Exhibit P-46 and FCNR ..D§2poS%t; No.FCKD No.99/26 for usp 5,oo,ooo/~ dated it '~-,_V5".--5.i1999 bearing printed Sl.No.2039866, Exhibit P~«6. The 'V -Vicompiaint of B.V. Pal Deputy General Manager, Canara Bank was addressed and presented to the then DIG of CBI one Santosh Macheria. That on receipt of the said complaint, the DIG Santosh Macheria made an endorsement on the complaint itself callingﬂi"fog:rVg:"'tghe comments from PW--29, P.iVi. Satish, on the covering letter of B.V.Pai another.endors_e'm*e'ntV'is..ma'dAe 0 to the effect that the copy of the.l"':Vorrip'|aintof' made over to PW-29, P.iVi.

2.3 The DIG San_t'o.sh .i7lachVeriV_a.gge.nerated Va suo motu FIR (Ex.P--2SS) at 1700 22..ei:':27;2ooo. The written complaint crf'llT3iiV: 7i#eii_ diat-édii '&'1i.~12.2ooo which was suppr.c-'ssedib-3/0 there-CE3~i'&'ivas ipiooidiiced before the Court by the CBI the Accused No.4, on whose behalf aVni'---applica_tiori was filed for its production. It is r€~i.o'%§'i/aingit to stat'e'vt.bat CBI, opposed the production of the ' complaint but it was compelled to produce 'the"t'samev'ti'j_es' per the orders of Court, just before the cominencement of examination of PW--29, P.M. Satish, the if Investigation Officer of this case and the said written 'complaint dated 11.12.2000 of Canara Bank was marked it through him as Exhibit D--7. A reading of the complaint of 2* .

z } /;' aux' B.\!. Pai dated 11.12.2000 (Ex.D~7) discloses cognizable offences and also discioses that CW--3 Prakash Narasingdas Punjabi, his father Te} Narasingdas Punjabi, CW--4V1'.:Su.resh Puruswaney and his wife Karen Puruswaney are'-i-n.\{o_i_V-§éd"i~~n the fraud pertaining to the aforesaid Receipts.

2.4 A reading of the .jt61(«3}_FCr.P.C.7-staitementi CW--3 Prakash Punjabi CW--4iViv~..:SureshV"Puruszwainey, CW--4 Gopal Tharoomal Me'i'.r\ia%ni ~«£$(1eiwani, C'iiV;5 Arjundas Tharoomal Meiwani that the real beneficiarEe.s"j;Vofgitfhe icornrnvitted in respect of FCNR depos'i.t5 'th:i's'1:.'g';'a:se..4areﬂi!'ongkong based I\£RIs including CW--4 GVop.ai'vMie-!._wAa.n'i'r..--'a'nd CW--5 Arjun Melwani. The cit'e'd"vv-b.\,.r«'the CB1 to the charge sheet in this ' a.|4so:V'd.i:sc-foses that CW--3 Prakash Punjabi, his father .'Tej"i«Nara's'iijortias Navalrai, CW--4I Suresh Puruswaney his wife ..i~':a«.ren Puruswaney, CW--4 Gopai Melwani and CW--5 A iAirju.n Melwani are ali Hongkong based NRIS are involved in fraud in this case.

4 a1.../' 2.5 The :61(3) statements of CW--~3 Prakash Punjabi and CW--~4 Gopai Melwani disciose that the account opening forms, Photos, Passpost copies of the .4d'e.pjos'ItVors were handed over to CW---4 Gopai Meiwani, who' them to Canara Bank. The depo_si.t _r_ecei_p.tsV"4v\}0.é;&r:e'.'i"eceiv-ed by CW~4 Gopai Melwani from the;":Can_ar*a B'a~n_k iiaiitejrivoin handed over the deposit recevipts, 2.6 The scrutiny.é_of CV92';-EHi:tra9Ct.of current account bearing No.01-0O210EV§W'9oAf._V Company M/s. EMVEE Conif'o;.rts and: maintained at Corporation Baenk;CAa'n»ton:é*nentﬁr-anch;~E3a:ngaiore marked as Ex.D--15 loan amounts transferred from 'CC-anarat -.Bani<'«...-iiiere received by CW--4 GOP"si. i'/ieiv~.if'§';*«ai Win'-Self as"det.aiied below:

' _ 1 "489_5.06I._<"

C2 4"4$9528' " V3' .. 495422 '~ch'equerviVi§;'o;. Date Amount 13.5.1999 07.6.1999 02.5.2000 RS.62,00,000/- RS.25,20,000/- RS.3,00,000/- Frauduient ioan amounts pertaining to FCNR credited to Current Account No.OOO0O3823, §"

/ 1 Va»?

Exhibit P-82 of accused No.9 namely M/s. Dhanapriya Housing and Finance Ltd. have been transferred to Current Account No.O1-OO2133 of M/s. Sona Exim maintained at Corporation Bank, Canton-rnentmﬁranhchjr4_ Bangalore and later withdrawn byr*'C'./\l'-45_Co.oa'itlrylelllwani'asf shown below:

S|.No. Cheque No. A -..JE9.ate ' 1 0495422 ziooo 'aim-,;23,53,ooo/--

I 2.8 Thge.:sc.r_utir;ﬁ/H current account bearing .\_/eejay Dairy Products Private *2 to Accused No.2 of the Corporationi. Bank,"'VCa:n'togn'in.ent Branch, Bangalore which is cited" as Cwhargetshle-et document i\lo.D--27O shows that wia's.._withdrawn by CW-4 Gopal Meiwani as shown Cheque No. Date Amount "l 0499685 28.4.2000 RS.2,00,000/-

2 0499684 28.4.2000 RS.3,00,000/-

2.9 Exhibit D--~14(a), a document produced by the prosecution at the instance of A-3 also discloses that CW--4 {,3/, t4.,cg"'i4.89529 7.6.1999 RS.23,3S,OOO/-- Gopal Melwani received a sum of USD 20,000/--. That the 161(3) Cr.P.C. statement of CW--4 Gopal Melwani further discloses that he sometimes received cash in LJ$'i'..§oiV_Iars and some cash through Bank in his account__i;'n"'t§--«S_j-i§o!ia_rsM_ at Hongkong.

2.10 Extract of currentZgéacc-ountAibheari-no"if-!Xl_o':iQ_i-- 002106 of accused No.8 Com_panvr-Mi/'s.V and Traveis Ltd. maintainedi' -at Coriporation Bank, Cantonment 8ranch,«_..V:."B'a'nga_i'o:re=ji-nnarked as E><.D15 discloses that._the frauduiieriiteé a"rno'unts transferred fromVvi"'C'anar;a' «§5:i<f'1:r'1i<"'~.Vi:§'ie'reé"'wi'ti'icirawn by CW--S Arjun Meiwaini. as 'shown. bielownzét' _ iSix.""«.F CheVque~~._i§lo~.."it Date Amount 1 N0- 048'9--s-9* 8.5.1999 Rs.1,98,00,000/-- V2.~1if.»*TChe scrutiny of the Extract of current account Abearinghi' No.01--0O2133 of M/s. Sona Exim Pvt. Ltd. uh'-.,V'he|.onging to A-2 maintained at Corporation Bank, _.:%Cantonment Branch, Bangaiore which is cited as Charge sheet document No.D--267 shows that fraudulent loan % 10 belonging to accused No.2, maintained at Corporation Bank, Cantonment Branch, Bangalore, which is cited as charge sheet document No.D--266 reveais that an'1jo'u}fit,,:w,as withdrawn by Gopal Melwani as shown below:-,7 Sl.No. Cheque No. Date V l 1 484826 5.1.2601 C 3.3 The evidence adlduicedg du'ringi'the:'gtrial, the documents which are;i_,_'r'Ti.arl<.'ed§.bVoth'.as«.,ExhibitV- P--series and Exhibit -- I3: seriesthe"'co'u'rVse'V'of the trial, the documents s_ei4:'Lf;,d:.'Vdur«ing:_the.'_'cou"rs'e~~--oi° the investigation, the docume,ri,t.s.;fi¥i:.e'd "a'nd.'c'ite'd~~V--ir"i support of the charge sheethv-.an'd sta'te'rnerit,s:'=._rec_orded u/s 161(3) based on charge sxheetvvcitedA'doci.iments during the course of the invéstiigliatign by"'P\rii_a.2'9 P.M. Satish, the Chief Investigation ' .€)f'fi--~cei*'..,ofi case, dearly establishes beyond doubt that theilonl<oV'njgV..ei3ased NRIs are involved in fraud in this case. That investigation was conducted by the CBI in a A ma'i~afide manner.

4. The counter is filed by the CBI in the Court beiow wherein it is stated as under:

4.1 Prosecution filed charge sheet against Shri DA/.

Kamder and Qthers under sections 1208 rfw 420, 467, 468, 471 and 477(A) IPC and Section 13(2) r/w_i3(c:_)(d) of PC Act, 1988. The ailegation against that they were parties to a criminal conspi~i"'ar_.yj,., Bangaiore, during the period Canara Bank, Maileswara-r.n Branch, :B'ang,a_|ore§, dishonestly and fraudu|entiyki'n'§si'epreiseniting the facts to the bank, diverted bank ;fe.nds'».py~.forging documents and valuable ..securiti.e-so jsutp' deposit receipt, Power 'd'ocu'nﬂ1e'r".vtVS--,"'§using them as genuine, induced' Canavraf'SanV£c;c's._i§ia{'¥eswaram Branch, to part with the proceeds of ~l__oa_n 'axvaiied against the security of FCNR d:ge3'poEs_gi'tS_,__ w'ith'ou.t._..the knowledge and consent of the ' wdepovsjqtorsi.:§'n--._favour of Accused No.2 and the account of " his' grouVp'j_co'mpanies.

~ vV'4;_2VThe averments made in the petition that CBE has made any verification on the complaint given by B.\/.Pai, DGM, Canara Bank to Sh. Santosh Macherta, DIG of CB1, and not registered a case, is not correct. It is 12 stated that after thorough verification, the CBI has registered a case on source information in Crime No.RC 5/E/2000/BSFC/BLR. It is stated that the vVC,'$:'1T»,.has received written compiaint dt.11.12.2OO{),....:.O'd'g'¢;j'.1'Jby Sii.V.V. Pai, DGM, Canara Bank, which is..m:_af#,<ned.::'as It is stated that much before from the bank, the CB1, had"._TConduc V A verification regarding the in'ft;.:ftFﬂ",'A'ationV"r'eceived'1':on source and decided to regi_s"ter conducted after the aiso could not establish tije'i';;~r:o'ie'V::.Qf =:;a.ny':'~gf'~:."t'i\.a..jfAdepositors in the conspirfagcfv is stated that the above mentioned depositors, whose hard earneci mofneyfwas canvassed as Fixed Deposits to Canara Branch, by Accused No.2 and 3. Sh.

if with dishonest and frauduient intention re«p|ac'eG'~,t:he original Account Opening Forms sent by the _ lV\iRI.depositors and placed bogus Account Opening Forms A"iA,_V'co-n'itaining the forged signatures and forged passport

-Tfcopies of the depositors in the bank records. Sh. D.V. Kunder (Ami) sanctioned or caused to be sanctioned imugii l "

sundry loans under valuable security loan (VSL) in favour of the NRI depositors without their knowled.9iie,,'_:'ia_nd request, based on false power of attorney§'_:"d"ocii.i;m_er-its' purported to be executed by the NR1 deposiiti:}jjr's:'w amount siphoned off by the acL:,use_d_g.3 i:4'v.en,' bank had mentioned the n.a'm.es ofVl\_lF§I de~,:o%s.i;torsVVVin complaint dt. 11.12.2000 verification revealed that theYfare of the fraud committed by ,,otherVA,.a.cc_useclVV,' The evidence adduced be,r:§ré}i,5,¢ officials, clearly repaid the amount due to WThe depositors had filed complaiiiwt,agains.tth'e»:b'a:ni<' irvith the Banking Ombudsman, whoi'-diggrectediwthe to pay the amount to the ".fi:_e..i1'averments that NRI depositors are the real beneficliaries of the fraud committed in the case, is not if colriect. The documents mentioned in the petition through 'which the petitioner/accused alleges that Sh. Gopal W'Melwani and Sh. Arjundas Melwani had withdrawn amount éiy"

14

are not connected with this case. Those documents are pertaining to CC. i\io.190/2002 (RC 4/E/2000--BSFC;'«.BLR), which has been disposed by the Court below Accused No.1 and 3. The modus operandi adlolptedi accused in c.c. No.190/2002 is""sirr.ilai; to that :o'f7=th'i's case. The accused in connivance'._wlth' Sh."l_<_,. 'Va'rand:.ar~aj'a~.,, Pai (A4) in c.c. No.190/2oof2,,,who was.furi't:r,i"c$riing as' Senior Manager of Co:'rpV.orat,io'n *i§a:n'lu<:';ii.Qanton'rnein:t branch, Bangalore, with intention replaced theyc---ri:g'inal sent by the NR1 depossiltorss Account Opening Form conta.inin_g_AlAlti5ie1sforgedll's_igna'tures and forged passport copiesﬂofi' the bank records. He sanctioned 'V s-und'ry loans under valuable security loan :,fii'i j"f~a_your the NR1 depositors without their aA'n.r.l--:"request, based on false power of attorney dAo'c_um_eritsf~"purported to be executed by the NR1 cdepositors and loan amount siphoned off by the accused. the cheques mentioned in the petition, the 2 ...accused transferred the amount to NRO SB account opened without the knowledge of the NR1 depositors and 2} ' V 15 used the amount to close VSL loans fraudulently availed by the accused. Cheque No.O49968S and O499684[:b'oth dated 28.4.2000 for Rs.2 lacs and Rs.3 lacs, ra:aipaca0ua_u,c which are marked in c.c. N0.190/2002 are.V_cas.h through which the amount was wi;thdra4w'«n"'b:y'ithe by forging the signature of Gopalhlﬂelwani-';.l_ .'f'i:"i'ierefore'V"swaV it is stated that the docunaerits mehti'oh-ed."c;:b§r the petitioner in the aboveD'p.etit_i'on'V_ at all connected with this case.

4.4 for dismissing the applicatilolny Sui xhax/_e i:e_arcJ~tbh'e.Eiearned counsel for the petitioner as wellas the !.earn7ed counsel for the respondent. h A4'6f"-it isthe countientéon of the learned counsel for the statement can be relied while arraying the"-acctgvsedik it The documents reveal that there is a prima u"""~..V:"'facsiLe against the accused. The document which he _ ' re'ii»ess''is Ex.D7. The evidence discloses prima facie case ...a--g';iainst CW»~3, CW--41, CWs.4 and S. 6:? .

Kw' 'w.\ 16

7. Learned counsei for the petitioner relies on the following decisions:

1. AIR 2001 SC 2521 (RAKESH vs STATE osgtggaiéniminia) wherein the Hon'b|e Supreme Court has "It cannot be said that the.__ter_m j'1ie'{rid.ence""as-..__ used in 5.319 wouldgmgean éeyid-encegg,wh'ic|'i" isj tested by cross--examin-ati'ogn. i"n.eVqvuestfionuwofs testing the e\4.idencegi.------b§;I'v-_cross-e§<'am.inAation would arise oniy*«--_za'ft_er'«._adj_diVti'o~--n:~of~itghe accused.

There is no question f(:ro'ss'%'eT>_<:a_rfnining the piéi;or "--.fg--._V'a'dd'*ing"% such person as :'aaccuseVd'§7.'f-_Ser;t'i'o_n"V---doe's not contempiate an addi4tionai._st'age:_4'b{:fi'."st summoning the person A._Vandia""giving.'- opportunity of cross- Ee§<amining«..._t.he witness who has deposed him and thereafter deciding whether 'per-son is to be added as accused or not. \(\.'orit:J:-_.";'evidence" occurring in sub-section is f .. in comprehensive and broad sense which Vvwouid aiso inciude the material coliected by the investigating officer and the material or evidence which comes before the Court and from which the Court can prima facie conciude 17 that person not arraigned before it is involved in the commission of the crime."

10. Hence, once the Sessions Court records statement of the witness it wouid be the evidence. It is true that finaily at H of triai the accused is_,t.o.__be opportunity to cross--exami,ne,-the uwitn.ess4"to».,___ test its truthfulness. But thatstage w,'0'.u.|'d" not'; arise while exercising'-v...,:C'ourt's vpow_eii. Vttnd'e'r"

Section 319, cr..P.c. the de'pos_itio,n is recorded, no {there no cross-

exarnination, it wo_u'fid_V material which :.wo.,ul*_cl e:hah'zel,,.:theftsgtgyssmhs Court to decide"'~whfet'ner._: powers ftsnder Section 319 ?shoutd"b.e not. Sub--section(1) of éection 319:»ltseif_:p"l=o\.*ides that in the course of any"--..i_nqvuiVry__ iAnt'o',«...'~7or triai of, an offence, it appears' from the evidence that any person not accused has committed any offence ,f" such person could be tried together A Wltl;i'..':_'t.h€ accused, the Court may proceed . agyainst such person for the offence for which he appears to have committed. Further in case of inquiry there may not be any question of cross-examining the witness.

£8

13. Hence, it is difficult to accept the contention of the learned counsel for the---.,_ apneilants that the term 'evidence' as used"~in*««.._i'~~. Section 319, Criminal Procedure Code__;'vv'o'ui'd--.!:25 mean evidence which is tested examination. The question' "of t.est:i.ng-VXthe-[3 evidence by cross--examin'atio'ni*~"wofu.ld"_.arise'ii"--~_V"1"

only after addition ofthe_._accused. VTh.e'r'e._:

question of cross--exam'i'n.f:ng theV'w_it'neVss 'prior to adding such' ~p_erso.ii""as[iaccusedif "Section does not contemp'|cate~i__a§n«ivadditiolnal stage of first surnmoning.-theiipelrson him an opportu niiltv-h cross--e">"<a:nrri'rri n.g..7 the witness who" d"époseciic'j'--a§--a__in'Vst"vﬁhinri and thereafter person is to be added as ":.accused""o'r~-_anotfml)\ivo_rd -"evidence" occurring in s'u.b?sectio_n' in comprehensive and ._broa"d Visencs-eA'whi'ch would also include the Ernaterialh"co!.l.e(:ted by the Investigating Officer _an_d--.:t'h,e material or evidence which comes 1 Court and from which the Court can priirngafacie conclude that person not arraigned .. 'before it is involved in the commission of the crime."

.§ /' *1-we' 19

2. 1993 SCC (cr|.) 470 (KISHUN SINGH AND OTHERS Vs STATE OF BIHAR) wherein the Hon'b|e Supreme Court has held as under:

"13. This Court in Raghubans Duﬁey' State of Bihar stated _ cognizance of an offence becomes the Court's duty the offenders rea|iy--_._are'V'a.n'd if finds 'that apart fro'm:_V'the peVrs.ori's-rseniti up by the po:"iC!_e some'tdvt.o4th"e-.5' persoristare involved, itH'i's'ia.its"duV§tY. to'-Vﬁroiceed against those. personsjj them be'caif§;js.eV't.hie siur1'1;m'on::é'rig =of...the additional

-------- vvés 'piartf oaf't'ne« voroceeding initiated V --. "i't.sf.utaki'n'g::cognizance of an offence'. 4'E_ve'n=._after:_4t*he"ioresent Code came into fﬂf'or_:Ce~,.,'.'- thvefiiegal position has not ' V__unde'rg~o_n_e'a change; on the contrary the :«_--.riat,io of Dubery case was affirmed in Satpathy v. Tikaram Agarwala.

far there is no difficuity.

"14. We have now reached the crucial point in our journey. After cognizance is taken under Section 190(1) of the Code, in warrant--cases the Court is required to frame a charge containing particulars as to 2% the time and place of the alieged offence and the person (if any) against whom, or the thing (if any) in respect of which, it was"--._ committed. But before framing the Section 227 of the Code provides -1- upon a consideration of the reco.r.d,_'4_fo.f't.he,_ case and the doc1J'm'e'nts,_1,subm'itted"-:7'I therewith, the Sessions, Juidgie that there is notV'««S_'LIi*fic'ie.n't gro'u'aciv,._,foVr..3 proceeding against t'h.e_"accused,"he sigali, for reasons be .~r'écorded',--.,_disch§fge.~yhe accused. It "i's'ﬁonI'y+__when"stirredBudge is of opinion. that Vt.he~re:-is' *--gérVo_unt.'_ " presuming that_"the.c.accuised, i"ias"'co'rn"mvitted an offence 1111 "that"j;heA:':ii:;i~ii pr¢c.¢éd"i:ioVsrEame a charge and recordrthiei'n,,iea,,of..ti1e accused (vide Section '' .2_28).' immediately clear that fof.i.imit'edVA'purpose of deciding whether not'*to....«frame a charge against the :.accu«sed, the iudge wouid be required to it "-T4:"ie§_<afnivi.r'ie the record of the case and the v..d:o:cuVments submitted therewith, which tg_wVou|d comprise the police report, the statements of witnesses recorded under Section 161 of the Code, the seizure-

memoranda, etc., etc. If, on application of mind for this iimited purpose, the Judge finds that besides the accused arraigned if}.

x:»// 21 before him the complicity or involvement of others in the commission of the crime prima facie surfaces from the material before him, what course of action sh.o'uidv adopt ?

16. We have already indicated ratio of this Court's dec-iisionsffii-n the c:a'ses-..Qf Raghubans Dubey and l-l'a..re'i'am that:"on'ce the Court takes cogniizanceyof offencef(n'0t'*"t4he offender) it becomes..theffC;;)u'i*t'f's..jdutwy to find out the real offendeirs.and:_if'i't, to the conciusi:oh'«th}3t besides' put up for trial §.by5._tfi3e-.';'-_Vp'oi:i:cg;' others are also involyeri'iiniﬂtihgff the crime, it is the CouA'rt'<l.sVd_u:'ty to:su_rrim.on them to stand trial along ~ with'*3':_ijthbo's~efA"~.a'lready named, since sumrrioyningywft-heinif 'wtiuld only be a part of the jffroicess of.._.takinc co nizance. We have also ';.p .3 4'po'Ai"nteVd~.y_out difference in the language of if '*S:e'cti"o-n" of the two Codes; under the old '.Court of Session was precluded from takingi "cognizance of any offence as a Court of o"r'i.gé1'nal jurisdiction unless the accused was if Vfi"'--.committed to it whereas under the present V'"Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of I/..» {"""CTé Section 193, as it presently stands once the case is committed to the Court of Session bya-._» Magistrate tinder the Code, the restrir:7't'i"o.h_'--«.V""._ placed on the power of the Court of Se_s<§i'o'n"l~t'§t,.,.: :_. take cognizance of an offence as originai jurisdiction getsj'|ifted.A_ in Magistrate committing the :'tiasié.'iu'hdei* 209 to the Court of Sess.i_on the bar of';'S'ecti.oVnV-- 193 is lifted thereby 'iht/Teisting "t~h.e"*C-outﬁt of session completeand i.i'nfettei5ed__jurisdicitioh of the Court of to take cognizance of the-offence' include the su'm'i'ij;o'i1in(j-. of or persons whose Ctorhp?i.it_tity.ij;;.i;fi'*~-- V"vcom'mission of the t.rime_ic-an 'p;ri-m"a_ facie "iae "gathered from the :r_nat.eriaVl'aQailai;ii'e.to'h.. record. The Fuil Bench of the_HighC.ou'rt' rightly appreciated the ._shifta"inV_:'Section V193 of the Code from that a_nde_r the"o!..d....Code in the case of Sk. Lutfur P~a~hmié'i"-a 1T7t':FYC}f;:.the reasons stated above while we are '..ing_ agreement with the submission of the learned counsel for the appellants that the stage for the exercise of power under Section 319 of the Code had not reached, inasmuch as the trial had not commenced and evidence was hot ied, since the Court of Session had the (/1, 23 power under Section 193 of the Code to summon the appellants as their involvement in the commission of the crime orima facie appeared from the record of the case, no reason to interfere with the impugne_c§"o--rdVe'r__J:115 as it is well settled that once it is the power exists the exercisewofIpowe'r'V"'u'ir'i--&i'era4.:j_ wrong provision will not ren»derfth..e ord_e'r or invalid. We, therefore, dism_is's thissVa"ppeai" 1'

3. 1994 Crl.LJ 305 (SW. ._vs RADHAKANTA PATRA AND.OTHEl?;S)».'w'herei'n_ tiaeeclaiciuua High Court has observed-fas u,r2'dei%.r_ :";_"'(A)' (1974), S5319, 161 -

S'um4rnlonin.;1jnot charge sheeted ~ A._.Stateroents'.'~of°.witrzess recorded under S.161 iEmplui%_cating'persons sought to be summoned, asA«.Va<;:ti~ve participants in crime ---- Court may loo-§<V»C'_ii1.Eo.-'i't and summon them under 3319. 'Evidence' -- Term used under 8.319 ---- Import of -- Includes statement made by witness under S.161, Cr.P.C.

In the different provisions of Criminal Procedure Code the word 'evidence' has been "3 av, 24 used in different senses so as to connote proposed or possible evidence or evidence adduced Oi' in bath senses depending upon th_e_ context. It can be seen that the 'evidence' used in Section 319, Cr.P.C. inci--u.'des_i' or refers to both proposed or possible eviderce as welt as the evidence adduced, course the proposed or possibl;-=1ievid'ence"mi3sft..__ have a sustainable basis and it mustinoit bet'; u merely speculative. ;i_S"~._gOr exa.mp.iye',: the statement recorded und-ery""S_e'ctiAon 161i,..,.Cr..'i7>.C. clearly shows ti~.--.e:"pai'iticiiipati'o_n.i of__a person in the commission otfian offe:nce~..but_';Vsi:ch person has notn._b'_e.enE,incluIdedA"'*a'_s.uyacicuised in the iic'ha'rge'+;she'e;ti'-- m'i'stai2e or for any li.unexpla§'ne'd__"1_reason,' ' the Court in an appropriate' take notice of such .,statement..r'ecordéd under 5.161, Cr.P.C., and a_lso.__take"a*ct.i.o.ni on the basis of the same under .F:3ecti.on._.319, Cr.P.C. However, while looking statement Court has to be cautious and "careful. Further it is aiso to be noted that 1 ~. the word 'may' used in Section 319(1) makes rather optional and discretionary for the trial 1 Court to take any action under the said section.

5'?

if '25 In order to be 'evidence' within the meaning of Section 319, Cr.P.C. the concerned statement or document wiii not oniy have to answer..t'h.e'«..._i'~~. description as given in the definition of t_h_é"sa.i_d--.:_':

term in Section 3 of the Evidence ActV':'b~.u.t't_heS.4 S same must also be admiss'i'bie,ar[d _re:liev_antr~.i'.V under the provisions of:'A:4iav§'iA.as applicable to a case in<;lu_ding"t_he pros_s;-»i'stigrW.SVgof the Evidence Act.

(B) Criminal VP';-CI'J.(1.974),""'Sf;...'»"1--.51, 162 --

Statement ~.witness ''.'''recorded under Ev=i_degnt:i~'ary.v'a-iise_QfQ. Statement 'by? hwi--t;_nes.:gj--...__ V' 'd_uri'ng._: investigation -- ssss .§$irati¢icia:gvv.ors.5---i\io£'barréd by S.162 of the V ' Thestatement"r:e'cogrded under S.161, Cr.P.C. 'and fo=rvv'arded to the Magistrate under Section 135(5), along with the charge-sheet avre..%-ovbviously documents produced for the V'i'insfpe:ctiS'on:*'of the Court in connection with the con.sid.eration of framing of charge and for it other' purposes and therefore these recorded 'A statements answer the description of .:documentary evidence as contained in Section 3 of the Evidence Act. Such statements recorded under Sec.161, Cr.P.C. can aiso be viewed as proposed or possibie orai evidence is/' 26 coming within the definition of evidence as contained in the said Section 8 of the Evidence-._ Act because the makers of such recor«d'e-rif"--«.V"'--._ statements are expected to make.lV_:'"su"c.h'----..__f1- statements while examined in proposed or possibie evidence 'ho.we.ver«ca'n._be"~7 adduced in evidence in Codrt ifiiithe' is admissible and reriievant ﬂu-nderg doubt 5.162, Cr.P.C,°*..:_b'ars Vti"..e:u"'Lise':':, of statements recorded ,.«'Ur;'dVi_,e:r V°S_._161','"Cr;"i5.C. except for the pijrpose--s__ in the said section, h,owevevr....E»n:._spite of 5.162 the said""?,§ctioi*1. "'F1:':3,Vt':-V"be....taJ<en to be restr;a'i'n'i',n..g:i'th'?e_ notice of the sv'tatre--n;I,:én'ts:'::?er:o"i*i1,ed 'un'de'r'":S.161, Cr.P.C. in 'i for some limited puirposes'. fo'r._"examp|e, for the limited _.purpose_:'of..considering the question whether a,n_'accuse'd'vs.houid be refeased on baii under 439 or on anticipatory bail under the concerned Court including Court very often has to, and does .Iouoi< into the statements recorded under S.161, Cr.P.C. Then again, in considering the

-Vquestion whether in a sessions tria! case, based on poiice report, itharge in required to be framed under 8.228 read with Ss.226 and 227, C.r.,P.C. and if so, under what heads, the 2-:2 1.3%,» '27 Court of Session has to consider, amongst other materiais, if any, the statements of witnesses recorded under S. 161, Cr.P,C__._ Simiiarly, in a warrant procedure case started_:Z_ on the basis of a police report, under and 240, Cr.P.C., the Magistrate consider the statements recorded Lj-ndér:::S.'i61'_' and forwarded under S.17.:3, :Cr:i>.'4Cu.p,.:4.f'o'r4'thet._'_r~:.e--uAé purpose of deciding. _whe4ther-.. thepy'.iacc'used'1~.A"

should be discharged'--v..t:o'~:yp charge' framed against him Aa.n2df..i_f'~~..so, .ui1-d.eArVA)rirhat sections. Sect;-on'-- 16:2,;;_C.r.'P.._Ci..'cannot be so interpreted as to V_ba_r ti.o'oStin.g..finto__'statements recorded-iyyiwundejr in such 'rnen'ti~on§ed above. It is :7,therefor'e'eypide'n'it:ti:.at 5.162, Cr.P.C. does not batlooking'tinto"«--..'sta'tements recorded under _,S.l641,._:Cr*.P';Ct°for"'having a preiiminary idea as whatAAWav3...purp0rting|y stated by the witness V _ ..duriniginvestigation."

counsei for the respondent supports the im.pu9._hed:§?'order passed by the triai Court. Learned tcounsei; for the respondent reiies on the decision of the it '-rV_V'H--o--rri'bie Supreme Court in the case of KAILASH .\/S. STATE ﬁx 28 OF RALEASTHAN reported in AIR 2008 SC 1564 wherein the Hon'ble Supreme Court has heid as under:

"(A) Criminal P.C. (2 of 1974), Summoning of additional accused --_pgo'w{erfof Court ~ Court has to be:-'ci'rcui7'?Sii?€Qqt"wiiifie-'[3 exercising power. 1 i _ .

Provisions of .78-.319 3 suggest that during th'ei'i»t:r'ial it has 'trod-apipceair from the evidence that'"a notfbe-in~gVEan accused has committe«d_ for which such person couldihbie tried t.og'e'tVhcge;¥' with the accuse_d"'.igh'o are aiso The key words aie appears from the _e\rigd_e'n.ce';'1--1 committed any I_offenice';_..___I3t, is..:_no__t,. therefore, that merely because' so'nj'e>i'v\ii_:thes'ses have mentioned the _ narne ofVsuch~.,_'p'e.i°'son or that there is some uvrf*.ateriai"=.a:g_a_i_nst that person, the discretion :'u:hd:e'i*u.S.319 would be used by the Court. This is the fact that such person against _ whoifniiiilsuch discretion is used, shouid be a a 'person who could be tried together with the "accused against whom the triai is already going on. The discretion under 3319 has to be exercised very sparingiy and with caution and only when the concerned Court is satisfied that some offence has been committed by 3/ 29 such person. This power has to be essentialiy exercised only on the basis of the evidence. It couid, therefore, be used oniy after the iegai--._ evidence comes on record and from evidence it appears that the concerned pje'rsot_:

has committed an offence. The % appears' are not to be read'-I-i'g"rit--2y."

9. Learned counsel for the respo"ndent»"a!'Vso4_relies Von'.

the decision in the case ofVHii*«'Vi_'CV:)'i4.[). Si':-1".~.xF:'"iI MOHD. RAFIQ reported in S(2.Ai8.9f'9iAdwherein the Hon'b|e Supreme Courthas heA|Ad..a's'~.urideir: i "(A) Hc,jQrir'i';~;;;»i-1,_~_g»: A.tori""1r-$74), s.319-- .a'dd'itionaiwaccused -- Exercise of ° :discreti'o'ndV must arrive at sat'i"s.faictVio'n_thatttzere exists possibility that ' "accused»;Mmmoned in ail iikelihood wouid i be "c:onvicte'd""iV-- Such satisfaction can be vat upon completion of cross-

' eVxéanj.inaVt'i.on of witness -- No exception thereto c.oui-dibe taken far less at instance of witness A T "and when State was not aggrieved by same -- order passed at instance of witness at stage of A examination under S.161, improper." 30

10. In this case State is not aggrieved party and it is accused who wants to implicate the charge sheetVwei.t4ne_ss. Under Section--319 of Code of Criminal Proced_o'rei'«tii_1'.ej: ti1i.:al~.% Court has got power to proceed against the--.ot:l1e'r'i~f.pe.rso»ns~., who appear to be guilty of the olffencejzifine:'.di'scr'etvi.cona:ry power of the Magistrate?-unclercthe se'ction extraordinary power which he :e_xerc:i'sed very sparingly only if the exvilstif Before taking cognisance of the Court must :::vi\ii.e're""evidence let in the chief--e§<an1i.n.a:t'iVd;[lgV lofdoes not constitute the evidence,_ that taking cognizance after examin'at_igon--in4'chief' allowing the defence to cross- exVa;rn'in.e wou'-ldynolt be proper. In this background, I have «carefuilliy perused the averments made in the application. pet'i'tion filed under Section--482 of Code of Cr'i'min.fal -Procedure. Section---482 of Code of Criminal nProced'u¢re deals with inherent powers of this Court. This '.C'ou"rt can exercise inherent power to make such orders as "may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or 3i otherwise to secure the ends of justice. It is also weli settled that inherent jurisdiction under Section-482 of Code of Criminai Procedure has to be exercised svparinigly, carefuily and with caution and only when such"'e->€e'rc_iJ's'e:__is. justified by the tests specificaliy iaid down"in:"vth'eA.i.:se_ctiio'i'i itseif. In this case, the accusedyjhjave deposition sheet nor the V.de4_posit'i'o_n"*of CWs.é'Ini'; tiiei', application filed by the accuseidabvefoyre th-ejtriyal it is mentioned withdrawai the C81 in his objection statement it ail reiates to C.C. .tiii:s":-cavseiV;iAThe respondent - Investigati stated in their objections statemerityjthat "§Pai, Deputy Generai Manager, Cangara i.Bank"g.,av'e' a complaint, but source of information TiNo._.VRC 5/E/2000/BSFC/BLR were verified and f_o'iJ.nci 'tiAh'e""NRI depositors were not involved in the crirne. learned counsel for the petitioner is unabie to pOi_nt out any evidence connected in this case to point out "thaL':NRIs were invoived in this crime except indicating '"-'about the withdrawai of the amount by the CW5 connected with C.C. i\|o.190/2002, which is not the point involved in "

W3 32 this case. It is weil settied Saw that the discretionary power of the Magistrate under this section has to be exercised very sparingly and that too with great careitand caution and even in the application, it is not"*-rnge.n't'ion_ed what are the acts and omissions commit1tedV_"_:'ey':tihe4_CWs,._p*.,_ The finding recorded by the tria31g'CoLi_rAt'ijs1"W§'ii_'fo:u'n.d.e:d;.a_nd does not call for interfere*n._ce at';_th'--is stsage.. 'Le:;ar'nied'g counsel for the petitioner has"i'faihied toVrn.aA_i'<eV':ou't:§a case to interfere with the impu_'gned.'_VAord'eii Petition is devoid of merits and iia'bi.e'itfo._'be dismissed.

7.__11._ InVV't'he~«.r_esugi't«,i.»_E-p_ass.' the foliowing:

ipﬁbepee A 'Criminal Petition is dismissed. sf' 33;"

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