Delhi District Court
Sh. Rajpal Sharma vs The State on 30 September, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDL. SESSIONS JUDGE02 (NORTH EAST)
KARKARDOOMA COURTS : DELHI
CR No.19/2013
Sh. Rajpal Sharma
S/o Late Sh. Heera Lal Sharma,
R/o R10/54, New Raj Nagar,
Ghaziabad, Uttar Pradesh. .....Revisionist.
Versus
The State. .....Respondent.
Date of filing of revision. : 29.06.2013.
Date of arguments. : 13.09.2013.
Date of judgment. : 28.09.2013.
:J U D G M E N T:
1. Aggrieved by the order dated 25.03.2013 passed by Ld. MM:KKD/Delhi in a case bearing FIR No.651/2004 PS Seelampur titled as State Vs. Ravinder Tripathi & Ors., whereby Ld. Trial Court had ordered to frame a charge U/s 420/467/471/ 120B IPC against the accused persons including revisionist herein and accordingly charges were framed on the same day i.e. on 25.03.2013, the revisionist has preferred the present revision petition on 29.06.2013 for setting aside the impugned order.
2. Factual matrix of the case (as recorded by Ld. Trial Court) Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 1 of pages 11 are that accused R.K. Tripathi had stolen the bank cheques of complainant and had thereafter forged the signatures of the complainant upon the stolen cheques and in collusion with the remaining accused persons, who happens to be bank officials, have duped the complainant to the tune of Rs.9,91,651/. On these facts, the present FIR was registered, accused persons were arrested and charge sheet was filed in the court for trial.
3. After hearing the submissions of both the sides on the point of framing of charge, Ld. Trial Court vide the impugned order dated 25.03.2013 had ordered to frame a charge U/s 420/467/ 471/120B IPC against the accused persons including the revisionist herein, which is being assailed by the revisionist on the following grounds:
(i). That impugned order dated 25.03.2013 and the charges framed against the revisionist, by Ld. Trial Court, are against the law and facts on record and the same is based upon surmises and conjectures.
(ii). Ld. Trial Court neither appreciated the written arguments dated 21.01.2006 supported by some judgments/authorities nor appreciated the contentions and submissions made by the revisionist in addition to the written arguments, submitted by the revisionist.
(iii). Ld. Trial Court has framed the charges against the revisionist in a routine and cyclostyle manner.
(iv). There are clear allegations (made by the complainant in para no.4 of his complaint dated 16.08.2004) that accused R.K. Tripathi Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 2 of pages 11 had stolen the blank cheques from different cheque books and forged the signatures of the complainant.
(v). Even otherwise Sec.420 IPC is not attracted against the aforesaid revisionist, who is a bank official. As a matter of common prudence, the forged signatures can not be detected with the naked eyes. This contention is also corroborated by the complaint (para 5) of the complainant. It is also pertinent to mention here that there remains immense work load in the bank at the time of clearance of the cheques and it is not feasible to use machine/ any tool to tally the signatures of customers.
(vi). Further this is the bank and revisionist who informed the complainant on 05.02.2004 about the fraud. Complainant Surajmal Garg never informed the bank at any point of time, for loss/ misuse of cheques from his custody during that period. Further the revisionist is also liable to discharge in the light of Sec.197 Cr.P.C.
(vii). It is pertinent to mention that the income tax returns or sale tax returns would have been filed by the complainant Surajmal Gard, for himself and on behalf of the firm namely M/s Suraj Trading Corporation, of which the complainant claimed himself to be the proprietor. Further the staff including peon and security guard, used to visit the bank weekly and take statement of the firm from the bank.
Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 3 of pages 11 It is quite surprising rather shocking that despite the fact that the complainant used to get almost weekly statement from the bank of his account then how the complainant remained too much negligent with regard to the fraud being committed by his employee namely R.K. Tripathi.
(viii). Further there is no agreement between accused R.K. Tripathi and other bank officials/ accused persons to do an illegal act or an act which is not illegal by illegal means which is an essential ingredient for framing charges for criminal conspiracy.
4. I have heard both the parties in details. I have also perused the entire material placed on record particularly, the impugned order, record summoned from the Trial Court, contents of the revision petition specially the grounds taken therein.
5. Law in respect of the question of framing of charge is well settled. At this preliminary stage of trial, the Court is not required to see and evaluate the evidence proposed to be led by the prosecution meticulously with an idea to find out the guilt or otherwise of the accused. At this stage, the Court is required to see only prima facie evidence and even the charge can be framed on the basis of grave suspicion. At the same time it is also well established that the Court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so on.
Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 4 of pages 11 In the celebrated judgment of the Hon'ble Supreme Court reported as AIR 1979 SC 366 titled as Union of India Vs. Prafulla Kumar Samal and Another it was held that, "the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out. In para 10 of the judgment, the Court further observed:
(i). That the Judge while considering the question of framing of charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out;
(ii). Whether the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(iii). The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 5 of pages 11
(iv). That in exercising his jurisdiction under Section 227 of the Code of Judge which under the present Code is a senior and experienced Court cannot act merely as a PostOffice or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the document produced before the Court, any basic infirmities appearing in the case and so on. This however, does not mean that the Judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
In 1994 (1) C.C. Cases 578 (HC) titled as Bhim Singh Vs. State, it was held that, "The stage of framing of charges is an important stage in the criminal trial and the Judge concerned has to carefully evaluate and consider the entire available material on record and he must judiciously apply his mind. Framing of charges erroneously would mean futile criminal prosecution for several year. The responsibility of the Judge concerned is particularly far greater in our country because of long delay in criminal trials and final disposal of criminal cases."
In 2001 (1) C.C. Cases (HC) 398 titled as Sh. Sukh Ram Vs. C.B.I. it was held that, "While sifting the material put up for the purposes of framing of charges, the Courts, should desist from approaching the subject with suspicion and with a negative attitude. A Court is required to examine the material without any preconceived notion, positively and objectively. The material placed before it must speak for itself giving rise to grave suspicion. No presumption can be drawn unless there is cause Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 6 of pages 11 to do so based on the material being examined......... A Court is bound by the material placed before it and not what is in the mind of the prosecution.
It has been stated on behalf of the revisionist that the impugned order can not be sustained anymore in the eyes of law as the same suffers from grave error i.e it has not been appreciated that there is no evidence on record which proves the meeting of minds of the revisionist with the other coaccused and where there is no meeting of minds, there can not be a conspiracy. Further Sec.467 IPC is applicable only when the forgery of valuable security as defined U/s 467 IPC is committed. There is no evidence on record that the forgery of the cheque has been committed by the revisionist. The punishment under this section is only to the person whoever forged a document. Further there is no evidence on record also to the effect that the revisionist fraudulently or dishonestly have used or were having knowledge that the document is forged, so no case U/s 471 IPC is made out against the revisionist. As such, impugned order is liable to be set aside.
Per contra, according to Ld. Addl. PP for the State the revision petition as filed is devoid of merits as it has been failed to point out any illegality or patent error in the impugned order passed by Ld. Trial Court and as such the instant revision is liable for dismissal. The plea as raised on behalf of the revisionist in the instant revision are the defence taken by the revisionist/accused and they can not be looked into at this preliminary stage of framing of charge as these are the matter of trial. Since there are sufficient material on record for framing of charge U/s 420/467/471/120B IPC, so Ld. Trial Court has rightly framed the charges.
Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 7 of pages 11
6. Having heard the aforesaid rival submissions of Ld. counsel for the revisionist as well as of Ld. Addl. PP for the State and perusing the entire material by calling the Trial Court record, particularly the impugned order, the contents of the revision petition and the grounds taken therein and considering the aforementioned settled law, I have come to the considered opinion that there is no infirmity in the observation recorded by Ld. Trial Court in the impugned order and the plea as raised by the revisionist that it was only the accused R.K. Tripathi against whom there are clear allegations that he had stolen the cheques (blank cheques) and forged the signatures and withdraw the amount from bank and even in his disclosure statement, he had admitted that whole of the amount he incurred either for intoxication or for clearing his dues/loan and nowhere he stated that he parted with the money to bank officials, and there is nothing on record to show any prior meeting of mind between the accused R.K. Tripathi and the revisionist to enter into a conspiracy to dupe the complainant or simply being the bank officials, at the most they can alleged to remain careless and negligence in performing their duties and no criminal intention or knowledge can be imputed upon them, can not be considered at this initial stage, as the existence of conspiracy to commit an offence is to be culled out from the attendant circumstances for which trial is necessary. Further there are clear and specific allegations against the revisionist as in his statement U/s 161 Cr.P.C., Senior Bank Manager Sh. Shashikant has specifically alleged that there was a considerable difference between the admitted signatures of the complainant and allegedly forged signatures and the accused persons including the revisionist was solely responsible for the embezzlement of the amount.
Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 8 of pages 11 As regards to the plea taken by the revisionist that the revisionist is bank employee and is the public servant as per Section 21 IPC and can not be prosecuted without obtaining the sanction U/s 197 Cr.P.C can not be sustained any more as he does not cover within the ambit of those public servants for whom the protection U/Sec.197 Cr.P.C is available and he can be prosecuted without obtaining the sanction U/s 197 Cr.P.C. In this regard, reliance can be placed upon the following judgments: In AIR 1987 SC 722 titled as K. Ch. Prasad Vs. J. Vanalatha Devi it has been held that "an employee of a Nationalized Bank does not hold a post where he could not be removed from service except by or with the sanction of Government. Therefore, though he is a public servant, Sec.197 Cr.P.C is not attracted at all".
In 2007 Cr.L.J 350 (Patna) titled as Rabindra Nath Shrivastava Vs. State of Bihar it was held that "in a prosecution against Branch Manager of a bank, there was nothing on record to show that he was a public servant not removable from office except by or with sanction of government, sanction for prosecution was not necessary."
Further it is well settled that at the initial stage of framing of charge, the court is not required to make roving inquiry as to find out the guilt of the accused or otherwise. At this preliminary stage of trial only the material proposed to be led by the prosecution is required to be looked into to find out the prima facie case for framing of charge and charge can be framed even on strong suspicion and the defence proposed to be set up by the accused persons can only be seen at the later stage of trial.
7. For the aforesaid reasons, I do not find any merits in the Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 9 of pages 11 revision petition and as such the same is hereby dismissed.
8. TCR alongwith the copy of this order be sent to Ld. Trial Court for information and further proceeding in the matter as per law.
9. Revisionist is directed to appear before the Ld. Trial Court on 11.10.2013, the date already fixed there.
10. Revision file be consigned to Record Room after completion of necessary formalities.
(Announced in open Court (RAKESH KUMAR)
on 30 th September, 2013) Additional Sessions Judge
North East District
Karkardooma Courts, Delhi
Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 10 of pages 11
CR No.19/2013
Sh. Rajpal Sharma Vs. State
30.09.2013
Present: As before.
Vide a separate judgment, revision petition of the revisionist stands disposed off.
TCR alongwith the copy of this order be sent to the Ld. Trial Court for information and further proceeding in the matter as per law.
Revisionist is directed to appear before the Ld. Trial Court on 11.10.2013, the date already fixed there. Revision file be consigned to Record Room after completion of necessary formalities.
(RAKESH KUMAR) ASJ02 (NE)/KKD/DELHI 30.09.2013 Sh. Rajpal Sharma Vs. State (CR No.19/2013) Page No. 11 of pages 11