Chattisgarh High Court
Shailendra Agrawal @ Bunty vs Shivshankar Agrawal on 5 March, 2024
Author: Parth Prateem Sahu
Bench: Parth Prateem Sahu
Neutral Citation
2024:CGHC:7820
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved for Order on : 26.02.2024
Order Passed on : 05/03/2024
CRR No. 551 of 2020
1- Shailendra Agrawal @ Bunty S/o Late Anandram Agrawal
Aged About 29 Years, R/o Bhatapara, Police Station Bhatapara
Town, District Baloda Bazar, Chhattisgarh
---- Applicant
Versus
1- Shivshankar Agrawal S/o Late Shri Madhusudan Agrawal,
Aged About 38 Years, R/o Old Civil Line, Beside Old Rest House,
Rajnandgaon, Police Station Kotwali, District Rajnandgaon,
Chhattisgarh
2- State Of Chhattisgarh, Through District Magistrate, Raipur,
District Raipur, Chhattisgarh
---- Respondents
For Applicant : Mr. Rajeev Shrivastava, Sr. Advocate Assisted by Ms. Annu Mishra, Advocate For Respondent No.1 : Ms. Fouzia Mirza, Sr. Advocate Assisted by Mr. Navin Shukla, Advocate For Respondent No.2 : Mr. Pramod Shrivastava, Dy. Govt. Advocate Hon'ble Shri Justice Parth Prateem Sahu C A V ORDER
1. Petitioner has filed this criminal revision invoking jurisdiction of this Court under Section 397 read with Section 401 of the Code of Criminal Procedure questioning the legality and sustainability of the order dated 28.01.2020, passed in Criminal Revision No.99/2019, whereby the learned Sessions Neutral Citation 2024:CGHC:7820 2 Court have set-aside the order dated 12.10.2018 framing charge against applicant and further remitted back the case to the learned trial Court for passing order afresh on framing charge after providing proper opportunity of hearing to both the sides.
2. Facts of the case in nutshell are that respondent No.1 lodged a written report to the concerned police station alleging that applicant was engaged by him for the purpose of showing samples to the customers of the goods kept in cold storage, tell them rate, take orders for sale and further to send the sold goods, out of the cold storage. When complainant asked the owner of cold storage with respect to status of goods kept in the cold storage, it was informed that applicant has sold part of the goods kept in the cold storage. The good sold is without his knowledge and thereby he has committed breach of trust and caused loss of Rs.50.00 lakhs. The sale consideration was used by applicant and absconded. Based on the report, FIR was registered against applicant initially for the offence under Section 420, 406 of I.P.C.. After completion of investigation, police submitted charge-sheet for offence under Section 420, 406, 409, 411 and 201 of I.P.C. against three accused persons including applicant. Further it is mentioned that investigation is going on against two of accused persons Ajay Bhattar and Sanjay Bhattar.
3. Learned Magistrate upon consideration of material available in Neutral Citation 2024:CGHC:7820 3 the charge-sheet while framing charge has discharged the applicant from the offence under Section 420, 406, 409, 411 and 201 of I.P.C. and framed charge under Section 381 of I.P.C.. The order dated 12.10.2018 framing charge against applicant was put to challenge by respondent No.1 by way of filing revision under Section 399 read with Section 397 of Cr.P.C., which came to be allowed in part by the impugned order.
4. Learned Senior Counsel appearing on behalf of applicant would submit that learned Sessions Court erred in passing the impugned order observing that learned Magistrate has not considered the entire material and the documents available in the charge-sheet in appropriate manner and by overlooking the fact learned Magistrate has assigned reasons for passing the order dated 12.10.2018 and further discharged the applicant from the offence under Section 420, 409, 406, 411 and 201 of I.P.C.. The goods were not entrusted to applicant but from the complaint it is apparent that goods was entrusted to owner of the cold storage as it was kept in the Siddhi Vinay Cold Storage, Giraudh. Applicant was an employee and he was paid monthly salary, which is also evident from the ledger account of applicant (Page No.83), part of the charge-sheet. As there is no entrustment of any goods to applicant, the offence under Section 406, 409 will not be attracted. He also contended that Section 420 will also not be attracted as there is no inducement for delivery of property and cheating. To Neutral Citation 2024:CGHC:7820 4 attract the offence as defined under Section 420 as also 406, 409, dishonest inducement for delivery of property and entrustment of the property is sine-qua-non, which is absent in this case. Learned Magistrate while passing the order dated 12.10.2018 of framing of charge has clearly observed that the aforementioned ingredients of offence under Section 420, 406, 409, 411, 201 are not present in the charge-sheet. He further contended that the order, subject matter of revision before the Sessions Court is an interlocutory order, hence, the criminal revision ought not to have been entertained and if during the trial learned trial Court comes to conclusion that based on the evidence available on record that further any other charge is to be framed, learned trial Court in exercise of powers under Section 216 of Cr.P.C. is having jurisdiction to alter the charges framed against applicant. In support of his contention, he placed reliance upon the judgment of Hon'ble Supreme Court in case of Amit Kapoor Vs. Ramesh Chander & Anr., reported in (2012) 9 SCC 460, and in case of Vijay Kumar Ghai & Ors. Vs. State of West Bengal & Ors., reported in (2022) 7 SCC 124 and the judgment passed by the High Court of Himachal Pradesh, Shimla in case of Mukesh Sharma Vs. State of Himanchal Pradesh, in Cr.MPM No.2296 of 2023, decided on 2nd January, 2024.
5. Learned Senior Counsel appearing on behalf of respondent No.1 opposing the submission of learned Senior Counsel of applicant would submit that the order passed by learned Neutral Citation 2024:CGHC:7820 5 Magistrate is an interlocutory order is not correct. The learned Magistrate while passing the order on 12.10.2018 of framing charge has discharged the applicant from the charges under Section 420, 409, 406, 411, 201 of I.P.C. which is a final order with regard to discharge of applicant from aforementioned charges. It is next contended that from the documents referred by learned counsel for applicant it is appearing that complainant is an employer of the applicant. Complainant has kept the goods purchased by him from different places in cold storage. Applicant was entrusted with the goods and further to show the samples of the goods kept in storage to the interested purchaser, disclosed the rate fixed and further after sale of the goods to take order for sale and after sale of the goods, to send the goods out of the cold storage. From the nature of job of which applicant deputed clearly shows that applicant was entrusted with the goods kept in the cold storage. She next contended that revision challenging the order of discharge from the offence under Section 420, 409, 406, 411 and 201 of I.P.C. was filed in exercise of powers under Section 399 read with Section 397 of Cr.P.C.. Referring to the provision under Section 398 of Cr.P.C., she submitted that while exercising power of revision under Section 397, the High Court or the Sessions Court are having jurisdiction to order for enquiry. By the impugned order, learned Sessions Court upon coming to the conclusion that from the documents available in the charge-sheet it is prima-facie appearing that Neutral Citation 2024:CGHC:7820 6 applicant was employed and deputed with the work of showing the samples of goods, disclosing rates and taking order for sale and upon sale to get the sold goods out of the cold storage. The said facts were not properly appreciated by the learned trial court. In support of her contention, she placed reliance upon the decision of Hon'ble Supreme Court in case of Captain Manjit Singh Virdi (Retd.) Vs. Hussain Mohammed Shattar & Ors, reported in (2023) 7 SCC 633 and would submit that Hon'ble Supreme Court has observed that selective reference of material available in the charge- sheet to be non-application of mind. She also contended that at the stage of framing charge, entire evidence produced by the prosecution is to be believed. Truthfulness, sufficiency and acceptability of the material produced can be done only at the stage of trial. There is no error in the order impugned passed by the learned Sessions Court.
6. Learned State counsel opposes the submission of learned counsel for applicant and submits that the order dated 28.01.2020, passed by the learned revisional Court is in accordance with law and it does not call for any interference.
7. I have heard learned counsel for parties and perused the documents placed on record as also the case diary placed before this Court.
8. The provisions U/s. 397 and 398 of Cr.P.C. relevant for decision of the case are extracted below for ready reference :
Neutral Citation 2024:CGHC:7820 7 "397. Calling for records to exercise powers of revision. - (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation. - All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- section and of Section 398.
(2) The powers of revision conferred by Sub- Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."
"398. Power to order inquiry.- On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordinate to him to make, and the Neutral Citation 2024:CGHC:7820 8 Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 of Sub-Section (4) of section 204 or into the case of any person accused of an offence who has been discharged:
Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an opportunity of showing cause why such direction should not be made."
9. So far as the argument raised by learned counsel for applicant that order passed by the Magistrate on 12.10.2018 framing charge to be an interlocutory order is concerned, perusal of the order passed by the Magistrate would show that learned Magistrate had discharged the applicant from the charges as mentioned in the charge-sheet submitted by police against applicant and framed charges under Section 381 of I.P.C.. With respect to discharge of applicant from the charges under Section 420, 406, 409, 411 and 201 of I.P.C. is final in nature. The order of discharge based on charge-sheet submitted by police is not an interlocutory order. Hon'ble Supreme Court in case of Haryana Land Reclamation and Development Corporation Ltd. Vs. State of Haryana & Anr. reported in (1990) 3 SCC 588 has held thus :-
"4. There are several decisions of this Court explaining the term "interlocutory order" occurring in Section 397 (2) of the Code. In Amar Nath v. State of Haryana, (1977) 4 SCC 137, the said term Neutral Citation 2024:CGHC:7820 9 is define thus :-
The term "interlocutory order" is a term of well- know legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, letters patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision.
Decided cases have laid down that interlocutory orders to be appealable must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order"
in Section 397(2) of the 1973 Code has been used in restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code.
Untiwalia, J speaking for the Bench in Madhu Limaye v. State of Maharashtra 1977(4) SCC 551 after referring to Amar Nath's case and to some more decisions and after explaining what the term "interlocutory order" means finally observed as follows:
Neutral Citation 2024:CGHC:7820 10 "If a complaint is dismissed under Section 203 or under Section 204(4), or the Court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose."
When the question that has arisen in the present case is examined in the light of the above observations made in Amar Nath's case and Madhu Limaye's case, it is clear that the order of the High Court is not sustainable and as such is liable to be set aside as the order of discharge passed by the Chief Judicial Magistrate does not fall within the definition of the term "interlocutory order" and the inherent power of the High Court is not limited."
10. In the facts of the case and decision of Hon'ble Supreme Court submission of learned counsel for applicant that revision before learned Sessions Court was not maintainable is not sustainable and it is hereby repelled.
11. Second submission of learned counsel for applicant that learned Sessions Court in exercise of power under Section 397 and 399 of Cr.P.C. erred in setting aside the well reasoned order passed by the Magistrate framing charge dated 12.10.2018 in exercise of revisional jurisdiction is concerned, the order passed by the learned Magistrate would show that learned Magistrate while passing the order of discharge of applicant from the offence under Section 420, Neutral Citation 2024:CGHC:7820 11 409, 406, 411 and 201 of I.P.C. has observed that there is no, dishonest inducement to deliver any property to any person or there is no entrustment of the goods to applicant. Perusal of the complaint submitted by respondent No.1 before the concerned police station which is the basis of registration of crime would show that though the goods were kept/stored in the Siddhi Vinayak Cold Storage, Giraudh, however, it was within the control of the applicant as applicant, who is employee of the complainant was deputed with the work to show the samples of goods to customers after taking out goods stored in the cold storage, to disclose the rate of sale, take order from the buyer intending to purchase the goods and further responsibility to see that the goods sold are sent out from the cold storage. It is further allegation that owner of the cold storage during the conversation informed that applicant from 05.04.2018 till 25.05.2018 has sold 2400 bags (24000 KG) of Raisins worth Rs.46,50,000/-. 80 bags (2000 KG.) Cumin worth Rs.3,50,000/-, which was not brought to the knowledge of the complainant and thereby the applicant has committed criminal breach of trust and also caused loss of Rs.50,00,000/- and further it is mentioned that upon asking the applicant he admitted his mistake stated that without informing complainant he had sold the goods to the other businessmen. Same allegation of complaint is part of FIR and also it is mentioned in the final report submitted by the police.
In the statement of witnesses recorded under Section 161 of Neutral Citation 2024:CGHC:7820 12 Cr.P.C. they have stated that applicant sold Cumin and Raisin to Sanjay Bhattar and Ajay Bhattar on lower rate without any bill and knowledge of complainant. Dukhuram Budek in his statement recorded under Section 161 of Cr.P.C. stated that he is driver of vehicle bearing C.G. 04 JB-8015 and on the instructions of applicant, he transported the goods from Siddhi Vinayak Cold Storage Giraudh to place he was, informed by applicant.
12. From the aforementioned facts available in the charge-sheet, submission of learned counsel for applicant that there is no entrustment of the goods to applicant to attract the offence of criminal breach of trust is not sustainable and I do not find any infirmity or illegality in the order passed by the learned revisional Court, observing that learned Magistrate has not considered the entire material available in the charge-sheet. It is trite law that at the stage of framing of charge, the trial Court has to accept all the material available in the charge-sheet and the evidence available in the charge-sheet to be believed. At the stage of framing of charge Court has to satisfy that prima-facie case is made out against accused persons.
13. Hon'ble Supreme Court in case of State of Rajasthan Vs. Ashok Kumar, reported in (2021) 11 SCC 191 has observed in para -11.1 and 11.2 thus :-
"11.1. In P. Vijayan v. State of Kerala, (2010) 2 SCC 398, this Court had an occasion to consider Section 227 Cr.PC What is required to be Neutral Citation 2024:CGHC:7820 13 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 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."
"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 Neutral Citation 2024:CGHC:7820 14 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, (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."
14. In case of Captain Manjit Singh Virdi (supra), Hon'ble Neutral Citation 2024:CGHC:7820 15 Supreme Court held that :-
"19. Though Psychological Evaluation test report only may not be sufficient to convict an accused but certainly a material piece of evidence. Despite this material on record, the High Court could not have opined that the case was not made out even for framing of charge, for which only prima facie case is to be seen.
20. If the facts of the case are examined in the light of law laid down by this Court on the subject, it is evident that the High Court has not even referred to the evidence collected by Investigating Agency produced along with chargesheet in its entirety. Rather there is selective reference to the statements of some of the persons recorded during investigation. It shows that there was total non- application of mind. The High Court had exercised the jurisdiction in a manner which is not vested in it to scuttle the trial of a heinous crime."
15. Decision relied upon by learned counsel for applicant in case of Vijay Kumar Ghai (supra) is distinguishable of facts. Decision relied upon by learned counsel for applicant in case of Amit Kapoor (supra) is of no help to applicant at this stage where the learned trial Court is still to apply its mind based on the material available in the charge-sheet and to frame charges against applicant in exercise of powers under Section 228 of the Cr.P.C.
16. Learned Sessions Court while exercising the powers in the revision have recorded that learned Magistrate has not taken Neutral Citation 2024:CGHC:7820 16 into consideration entire material available in charge-sheet in accordance with law and therefore, had set-aside the order dated 12.10.2018 framing charge against applicant which in the opinion of this Court does not call for any interference.
17. For the aforementioned discussions I do not find any merits in this revision and accordingly it is dismissed.
18. However, it is made clear that the learned Magistrate shall take decision afresh on its own merits applying its mind to the material available in police report/charge-sheet, without being influenced by any observation made by this Court in this order.
Sd/-
(Parth Prateem Sahu) Judge Balram