Allahabad High Court
Dev Narayan Mishra vs State Of U.P. And 2 Others on 7 August, 2014
Author: Ranjana Pandya
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD ?AFR Court No. - 14 Case :- CRIMINAL MISC. WRIT PETITION No. - 12705 of 2014 Petitioner :- Dev Narayan Mishra Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- N.K. Sharma Counsel for Respondent :- Govt. Advocate Hon'ble Mrs. Ranjana Pandya,J.
This writ petition has been preferred to quash the order dated 19.5.2014 passed by the A.C.M.M.-VII, Kanpur Nagar in Case No. 3915 of 2012.
Brief facts of the case are that the petitioner was summoned under Section 138 N.I. Act. Before the lower court, he moved an application that he may be discharged. It was submitted that the the complainant had filed the complaint on which an order dated 14.11.2013 was passed. The present complaint is based on incorrect facts. The petitioner has not committed any offence. Previously also, the complainant had got a case registered which is pending. No transaction took place for the sale of House No. 20 M Block Panki, Kanpur Nagar. The petitioner has been falsely implicated. The complaint under Section 138 N.I. Act is not maintainable and further there is no cause of action, hence, the complaint is liable to be quashed.
The learned lower court, after hearing the parties, dismissed the said application for discharge. Feeling aggrieved, the present petition has been filed.
It has been argued on behalf of the petitioner that previously also, the cases are pending between the parties and, in some cases, specific orders have been passed. I think that aspect of the matter is not to be looked into herein.
Counsel for the petitioner further argued that the petitioner needed money for business, hence, took loan of Rs.3 lakhs on interest from Rakesh Kaushal who was also partner of respondent no.3. Rakesh Kaushik had also taken gold ornament and post-dated cheques from the petitioner as guarantee. The petitioner returned the aforesaid amount to Rakesh Kaushik by cheques, which is clear from the bank statement, but, Rakesh Kaushik instead of returning gold ornaments and post dated cheques, which were deposited as guarantee, filed a case under Section 138 N.I. Act on false and frivolous grounds.
As far as the discharge of accused is concerned, the Hon'ble Apex Court in P Vijayan Vs. State of Kerala, 2010 Law Suit (SC) 35, has held that the scope and ambit of 227 Cr.P.C. was again considered in Niranjan Singh K.S. Punjabi Vs. Jitendra Bhimraj Bijjaya, 1990 4 SCC 76, wherein in para 6, this Court has held as under:-
"Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exists sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge and for this limited purpose he must weigh the material on record as well as the documents relied on by the prosecution. In the State of Bihar v. Ramesh Singh this Court observed that at the initial stage of the framing of a charge if there is a strong suspicion-evidence which leads the court to think that there is ground for presuming that the accusedhas committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal this Court after considering the scope of Section 227 observed that the words `no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by theprosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence."
Thus, it has been laid down that if on the basis of material on record the Court could forms an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge.
In the present petition, the counsel for the petitioner has argued that the cheque had not been issued by the applicant and the same does not bear the signatures of the applicant. The cheque itself is sufficient for recovery of the loan. The petitioner has been summoned on the complaint of Neelam Suri under Section 138 N.I. Act. The accused approached the High Court against the summoning order, which was decided by the order dated 28.11.2013.
In the present case, in the discharge application filed on behalf of the applicant, the word 'cheque' has been mentioned but the number and details of the cheque has not been mentioned. There is no effect of the other cases pending in the other court, on this matter. In the latest law laid down in 2014 (84) ACC 656, State of Tamil Nadu Vs. N. Suresh Rajan and others, the Hon'ble Court has held in para 20 as under:-
"20. 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. Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another, in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi)."
As law, as said, does not permit many trials at the stage of discharge, in 2011 (72) ACC 770, Santosh Kumar Yadav and others Vs. State of U.P. and another, it has been laid down that if there are ingredients of offence against the accused, charge be framed. If the material at the hands of the prosecution are sufficient for matter of trial, charge may be framed. Whether the trial will end in conviction or acquittal is absolutely immaterial.
On the basis of the above laws referred and discussed, I think there is sufficient evidence to frame charges against the petitioner. Thus, the writ petition has no force which is dismissed accordingly.
Order Date :- 7.8.2014 Ram Murti