Madhya Pradesh High Court
Rajesh Sharma vs The State Of Madhya Pradesh on 5 September, 2019
Equivalent citations: AIRONLINE 2019 MP 974, 2019 CRI LJ 4852
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 3925/2018
Rajesh Sharma
Vs
State of M.P.
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Shri Bhupendra Kumar Shukla, learned counsel for the
petitioner.
Shri Samarth Awashty, learned G.A. for the respondent/State.
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ORDER
(05.09.2019) Petitioner has filed this revision petition under Section 397/401 of Cr.P.C. to set aside the order dated 11.05.2018 passed by 2 nd Additional Sessions Judge, Umariya in S.T. No. 7/2017, whereby learned 2nd Additional Sessions Judge, Umaria framed the charges under Sections 420 and 409 read with Section 511 of IPC against the petitioner.
2. Case of prosecution in brief is that CEO Janpad Panchayat Maanpur has filed a written complaint to Incharge Police Station Maanpur District Umariya stating that under the scheme of MANREGA, present petitioner- Secretary along with co-accused persons who were functioning as Sarpanch, Sub Engineer, Assistant Engineer have sanctioned the work of Med Bandhan in the field of Bhurelal Gond and Raja Gond, but in physical, the work was not done. The completion certificate of said work has been issued and bill has also been submitted for withdrawing of payment, therefore, it is alleged 2 Cr.R. No. 3925/2018 against the petitioner/accused and co-accused persons that they have cheated the State and tried to misuse of appropriate fund of Government. The allegation against the present petitioner is that being a Secretary he was made false spot verification with Sub Engineer and played a role to issue false completion certificate. On the basis of same, case was registered against the petitioner/accused and other co- accused. During the investigation, statements of witnesses have been recorded. After the completion of investigation, charge sheet has also been filed before the trial Court. Thereafter, learned trial judge also framed the charge against the petitioner/accused under Sections 420 and 409/511 of IPC.
3. Learned counsel for the petitioner submits that the learned Trial Court wrongly framed the charges and not considered the proper aspects of the case. It is alleged that petitioner/accused, during the period of 23.12.2011 to 13.01.2012 without doing the work of the Made Bandhan in the scheme of the MANREGA in the field of the Bhurelal Gond, the MIS has been done and the work completion certificate has been issued, but the petitioner/accused has no any role in this work. The present petitioner/accused was working as a Panchayat Secretary, but as per the work of Gram Panchayat Evam Gram Swaraj Adhiniyam now the Gram Rojgar Sahayak is the in- charge of the work of the MANREGA and the power of withdrawal the amount under the scheme of the MANREGA is holding by the Sarpanch and Gram Rozgar Sahayak. Said amount is directly deposited in the account of the labour, in that year the work completion certificate 3 Cr.R. No. 3925/2018 has been issued by the competent authority. There are no any role of the present petitioner/accused in the said work. Therefore, the learned trial Court has not considered this important aspects and mainly on the basis is that the present petitioner/accused was working as a Panchayat Secretary, he is involved in the said crime and charges has been framed. So the charges are liable to be set aside. He further submits that the learned Trial Court has failed to consider this important aspects that the police has seized the entire documents of work of the Made Bandhan which is related to Bhurelal Gond and as per the charge sheet, the Gram Panchayat has passed the resolution, but in the said resolution there are no any signature of the present petitioner and other documents is issued by the Sub Engineer of the Janpad Panchayat, Manpur, thereafter the work completing certificate has been issued. There is nothing on record to show that the present petitioner/accused has prepared any false documents or signed any papers which is said to be forged and fabricated under the MANREGA scheme. Further, muster roll has been prepared and the numbering has been done by the Gram Rozgar Sahayak of the Gram Panchayat and there after the said muster roll has been filled in the data of the MANREGA in the concerned Janpad Panchayat as per the work completing certificate issued by the Sarpanch, Assistant Engineer and Sub Engineer of the Janpad Panchayat, Manpur. So present petitioner/accused has not involved in the said crime, but the learned trial Court framed the charges against the present petitioner. Learned trial Court has not considered this important aspects that the inquiry report has been prepared by the CEO 4 Cr.R. No. 3925/2018 Janpad Panchayat, Manpur District Umariya and on the basis of the statements and the documents which are collected there is nothing on the record to show that the present petitioner/accused is involved in the said work. Learned trial Court has not considered this important aspects that the framing the charge under Section 409 read with Section 511 of the IPC that petitioner/accused did not issue any work of completing certificate, he did not prepare any plan for Made Bandhan, no signature is found in any document and nothing gain from the alleged act. Therefore, legal position of the case as per the charge sheet of the prosecution agency prima facie no case is made out against the present petitioner under Sections 420, 409 read with Section 511 of the IPC. Present petitioner/accused has not cheated and not madee dishonesty as there are no any evidence against present petitioner/accused. So present petitioner/accused is falsely implicated in this case. Therefore, he prays for setting aside the impugned order dated 11.05.2018 and discharged the present petitioner/accused under Sections 420, 409 read with Section 511 of IPC.
4. Learned counsel for the respondent/State submits that there is prima facie material available on the record and charges can be framed on the grave suspicion, therefore he prays for dismissal of this revision petition.
5. Heard both the parties and perused the case diary.
6. It is evident from the record that work of Made Bandhan in the field of Bhurelal Gond and Raja Gond was sanctioned. This work has to be completed by Gram Panchayat Raksa under the MANREGA 5 Cr.R. No. 3925/2018 Scheme, but same was not done even then completion of work was shown in the field of Bhurelal Gond and Raja Gond. Work competion certificate was prepared and also the final bill of payment was passed by co-accused. It is evident that at the time of this incident, present petitioner/accused was posted as a Panchayat Secretary of Gram Panchayat Raksa. Villagers of Gram Panchayat submitted a complaint before Higher Authorities in this regard. Then matter was inquired and inquiry report was submitted by Chief Executive Officer, District Panchayat, Umariya and he found that present petitioner/accused and co-accused committed the offence. Thereafter FIR was lodged.
7. Before proceeding further it is necessary to consider first that the duty of Panchayat Secretary in Gram Panchayat. The power and duties of Panchayat Secretary prescribed in The MP Gram Panchayat (power and functions of the Secretary ( rule 1999), framed under MP Panchayat Rajyay Avem Gram Swarj Adhiniyam, 1993. Same are quoted as under:-
"3. Powers of the Secretary. - Save as otherwise expressly provided by or under the Act, the executive powers for the purposes of carrying out the provisions of the Act or any law for the time being in force, shall be vested in the Secretary under general supervision and control of the Gram Panchayat, who-
(a) shall exercise all the powers specially conferred, upon him by or under the Act or under any other law for the time being in force;
(b) shall lay down the duties and supervise and control the servant of the Gram Panchayat subject to the general superintendence of the Gram Panchayat and in accordance with rules, made by the State Government for this purpose;
(c) shall held the meeting of Gram Sabha on the instruction of the Sarpanch, subject to the provisions 6 Cr.R. No. 3925/2018 of Section 6 and Section 129-B of the Act and rules made there under;
(d) shall convene Gram Sabha meeting in accordance with the provisions of the rules, on requisition of Gram Sabha members or Zila Panchayat, Janpad Panchayat or Collector, in accordance with the provisions of proviso of sub-section (1) of Section 6 of the Act;
(e) shall issue notice, to organize meeting of general body of Gram Panchayat or Standing Committee, at the place and time fixed by Sarpanch or Chairperson, as the case may be;
(f) shall issue notice, as and when required for convening the meeting of Gram Panchayat, in accordance with the provisions of sub-section (6) of Section 44 of the Act;
(g) shall convene meeting of the Gram Panchayat as and when required, in accordance with the provisions of Clause (b) of sub-section (1) of Section 38, sub-
section (3) of Section 39 and sub-section (4) of the Section 44 of the Act;
(h) shall record minutes, proceedings and decisions of every meeting of Gram Sabha, Gram Panchayat, and its Standing Committees, and the details of members present thereat, in the minutes book;
(i) shall compulsorily attend the meeting of Gram Sabha, Gram Panchayat and its Standing Committee, unless prevented by a reasonable and sufficient cause;
(j) may tender information or clarification regarding any matter under discussion in the meeting of Gram Sabha, Gram Panchayat;
(k) shall take action to implement the resolutions of Gram Sabha. Gram Panchayat and its Standing Committee:
(l) shall furnish the returns, statements/ reports, estimates, statistics or any other information relating to administration of Panchayat;
(m) shall report within three days from the date of the meeting of Gram Panchayat or Standing Committee all such cases, to the prescribed authority, where in his opinion, any act or execution of any order, or resolution of the Gram Panchayat or its Sarpanch or Chairperson of the Standing Committee, is not in accordance with the provisions of the Act or the rules framed there under or directions and instructions issued by the State Government;
(n) shall place the cases of transfer or lease of immovable property under the provisions of Section 65 7 Cr.R. No. 3925/2018 of the Act, before the Gram Panchayat for its decision, after completing the formalities;
(o) shall, after making the bye-laws of Gram Panchayat, in pursuant to model bye-laws issued by the State Government, place it before the Gram Panchayat to adopt it;
(p) shall, under the provisions of Section 116, after completing formalities in the cases of write off un-
recoverable amounts or material of the Gram Panchayat, place them before the Gram Panchayat for its decision or forward them, with the recommendation of the Gram Panchayat to the prescribed authority for decision, as the case may be: and
(q) shall dispose of the applications received for the inspection of record and supply of copies under the provisions of Madhya Pradesh Gram Panchayat (Inspection of Record and Copies) Rules, 1995
4. Official duties of the Secretary. - Official duties of the Secretary shall be as follows :-
The Secretary shall,-
(a) study carelully the Act, and rules, bye-laws made there under, departmental orders and instructions and to keep the Gram Panchayat acquainted with;
(b) maintain subject-wise files in the Gram Panchayat office, keep Gram Panchayat office in arranged order and, keep old record of the Gram Panchayat secured after registering them;
(c) fix working hours of Panchayat office with the consultation of Gram Panchayat, and to the remain present during that period in the office hours;
(d) keep in order and secure the Gram Panchayat office and its property;
(e) prepare all registers and records prescribed under the Act, and rules and bye-laws made there under;
(f) prepare the agenda of the meeting of Gram Sabha and Gram Panchayat or its Standing Committees with the approval of Sarpanch or Chairperson, as the case may be;
(g) give information of such Panchas who remained absent in three consecutive meetings, to Chief Executive Officer of Janpad Panchayat and Panchayat and Social Education Organizer;
(h) give information of vacant seats/post, with reasons, to Chief Executive Officer of Janpad Panchayat and Panchayat and Social Education Organizer;8 Cr.R. No. 3925/2018
(i) take action to facilitate meeting convened to consider no confidence motion, on the direction of Presiding Officer;
(j) send true copy of resolution passed by the Gram Panchayat within three days from date of its resolving in the meeting, under the signature of Sarpanch, to the Sub-Divisional Officer (Revenue), Chief Executive Officer of Janpad Panchayat and Deputy Director of Panchayat;
(k) inform absence of Sarpanch immediately to the Chief Executive Officer of Janpad Panchayat and Panchayat and Social Education Organizer;
(l) give correct advice, to Sarpanch, members of the Gram Panchayat and members of Gram Sabha on the basis of the Act and the rules made there under and to draw their attention in case of any work, resolution, which is against the provisions of Act or rules made there under;
(m) advise Sarpanch to constitute Standing Committee in accordance with the provisions of the Act or rules made there under;
(n) place, letters, orders, received, from different level before the Sarpanch or with the knowledge of Sarpanch, before the Gram Panchayat;
(o) place, the resolution passed by the Standing Committee in the Gram Panchayat meeting;
(p) send information, in time as and when asked by, head of office of district, sub-division, block level and Zila Panchayat, Janpad Panchayat or prescribed authority, as the case may be;
(q) place, administration report after preparing it, in the Gram Panchayat meeting every year and shall send it to the prescribed authority, within specified time;
(r) keep account of movable and immovable property of the Gram Panchayat, to get with physically verified immovable properties by the Gram Panchayat every year;
(s) pay attention on the security and maintenance of immovable property, buildings, ponds/tanks, gardens, markets, mela land, play fields etc. and inform Gram Panchayat from time to time for its repairs;
(t) keep account of revenue from movable and immovable property, such as taxes, grant-in-aid, rent of building anti land, ponds and pisiculture, singhara production, orchards and gardens etc. 9 Cr.R. No. 3925/2018 (u) remain vigilant to avoid encroachment on immovable property of Gram Panchayat and public places and ensure action as per instructions of Gram Panchayat to check encroachment;
(v) proceed further in the direction of execution of the functions of Gram Panchayat as provided in Sections 49 and 49-A of the Act;
(w) keep basic information of Gram Panchayat area such as-
(i) institutions under subordination of Gram Panchayat such as Balbadi, Cattle pond, Reading Room, etc.;
(ii) other institutions situated in Grain Panchayat area such as cooperative institutions, hospitals, school, literacy classes, anganbadi, registered voluntary institutions, etc.;
(iii) state of literacy in Gram Panchayat area;
(iv) information regarding beneficiaries of welfare schemes of Central and State Government, Zila Panchayat, Janpad Panchayat and Gram Panchayat;
(v) names, expenditure, and other particulars relating to work sanctioned under employment generating schemes relief works, M.P./M.L.A, area development funds etc.;
(aa) deposit income of Gram Panchayat in Gram Panchayat fund and maintain its account and take necessary action for expenditure;
(bb) supervise the arrangements of drinking water, conservancy and street lighting in the Gram Panchayat area;
(cc) organize national ceremony, festivals, such as Republic day, Independence day, Gandhi Jayanti etc. under the direction of Gram Panchayat;
(dd) manage markets, fairs under the Gram Panchayat;
(ee) perform functions as assigned by Gram Panchayat in relation with the institutions run by Gram Panchayat or under its subordination.
(ff) shall take action and remove difficulties as per directions of Gram Panchayat in execution of schemes transferred to or run under the supervision of Gram Panchayat in the Gram Panchayatarea;
(gg) maintain records of marriage, birth and death, in the Gram Panchayat area;
(hh) prepare annual plan for economic development and social justice of the Gram Panchayat area and place it before the Gram Panchayat and forward it to 10 Cr.R. No. 3925/2018 the Janpad Panchayat after approval of the Gram Panchayat and the Gram Sabha.
(ii) prepare plan of basic public amenities as per recommendation of the Gram Panchayat and manage or cause to manage it;
(jj) send the list of beneficiaries of different programmes selected with the approval of Gram Sabha to Janpad Panchayat or Zila Panchayat or other organization, as the case may be;
(kk) comply with the instruction of Gram Panchayat for implementation and execution of development schemes and construction work in the Gram Panchayat area;
(ll) co-operate in the survey conducted by Central Government or State Government or any other connected therewith;
(mm) keep information of persons migrating from Gram Panchayat area, in search of employment; (nn) actively co-operate with Gram Panchayat and administration in relief works and the necessary action for relief to affected persons during the natural calamities like hail storm, floor, fire, drought, locust attack, thunder strokes etc.;
(oo) maintain daily dairy and obtain signature of Sarpanch on it and submit it to Panchayat and Social Education Organizer in the monthly meeting; (pp) control over employees working under the general superintendence of Gram Panchayat;
(qq) co-operate with Sarpanch in discharging his duties, functions assigned under the Act or rules or special orders of the State Government;\ (rr) perform such other functions as assigned under the Act or rules or general or special orders of the State Government; and (ss) perform such other functions as assigned by general or special orders of Gram Panchayat or Chief Executive Officer of Janpad Panchayat
8. The learned trial Court framed the charges under Section 420 and 409 read with Section 511 of IPC which is mentioned below:-
eS jkts'k frokjh] f}rh; vij l= U;k;k/kh'k] mefj;k e-iz- vki vkjksih jkts'k ''kekZ] iq= ;ksxs'k ''kekZ] mez 48 o"kZ ij ;g vkjksi yxkrk gw` fd%& 1- vkius fnukad 23-12-2011 ls 13-01-2012 ds e/; xzke iapk;r jDlk Fkkuk ekuiqj es eujsxk ;kstuk ds rgr Hkwjsyky firk yksdjkt flag xksaM ,oa jktk firk yksdjkt flag xksaM ds esM+ ca/kku dk dk;Z] dk;Z LFky ij djk;s fcuk gh dk;Z dk ,e-vkbZ-,l- djkus ds 11 Cr.R. No. 3925/2018 mijkUr dk;Z dk ewY;kadu dj dk;Z iw.kZrk izek.k i= tkjh dj 'kklu ds lkFk Ny fd;kA blds }kjk vkius ,slk dk;Z fd;k tks Hkk0n0fo0 dh /kkjk 420 ds v/khu n.Muh; vijk/k gS] ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA 2- vkius mDr fnukad le; rFkk LFkku esa xzke iapk;r jD'kk esa lfpo ds in ij inLFk jgrs gq,] yksd lsod ds ukrs mDr Hkwjsyky ,oa jktk ds esaM+ ca/kku dk dk;Z djk;s fcuk iw.kZrk izek.k i= tkjh dj mDr dk;Z ds laca/k esa 'kkldh; jkf'k tks fd mDr dk;Z ds lac/a k esa 'kklu }kjk vki ij U;Lr dh xbZ Fkh dk nqfoZfu;ksx dj U;kl Hkax dkfjr djus dk iz;kl fd;k x;k gSA blds }kjk vkius ,slk dk;Z fd;k tks Hkkjrh; n.M lafgrk dh /kkjk 409 lgifBr /kkjk 511 ds v/khu n.Muh; gS] ftldk laKku ysus dh vf/kdkfjrk bl U;k;ky; dks izkIr gSA vr,o eSa blds }kjk ;g funsZ'k nsrk gwa fd vkids fo:O) bl U;k;ky; }kjk mDr vkjksfir vkjksiksa dk fopkj.k fd;k tkosA D;k vki nks"kh gksus dk vfHkokd djrs gSa ;k fopkj.k fd;s tkus dk nkok djrs gSA
9. It is evident from the record that learned trial judge framed the charges against the petitioner-accused under Section under Sections 420 and 409 read with Section 511 of IPC, so it must be seen that what is the evidence against the petitioner-accused. By filing this instant revision petition, petitioner prays for discharging him from the aforesaid offences. Section 227 of Code Of Criminal Procedure, 1973 deals with discharge and same reads as under:
"227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
10. Section 228 of Code Of Criminal Procedure, 1973 reads as under:-
"228. Framing of charge.(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the 12 Cr.R. No. 3925/2018 procedure for the trial of warrant- cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frames any charge under clause
(b) of sub- section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
11. The Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others AIR 1990 SC 1962 has held as under:-
"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
12. Hon'ble Supreme Court again in the case of Union of India Vs. Prafulla Kumar Samal and another AIR 1979 SC 366 has held as under:-
"Thus, on a consideration of the authorities mentioned above, the following principles emerge:13 Cr.R. No. 3925/2018
(1) That the Judge while considering the question of framing the 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:
(2) Where 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.
(3) 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. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents 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 enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
13. Hon'ble Apex Court in the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another 2008(2) SCC 561 has held as under:-
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that state, even strong suspicion founded on material which leads that court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge 14 Cr.R. No. 3925/2018 against the accused in respect of the commission of that offence."
14. Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
15. The Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has held as under:-
"4...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed 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 defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 15 Cr.R. No. 3925/2018 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:
"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (emphasis supplied)
16. The Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & others reported in 2010(1) M.P.J.R. (SC) 36 has held as under:-
"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied.
11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
17. Before embarking on the facts of the case, it would be necessary to read first the relevant provisions of IPC, charges under Section 420, 409/511 of IPC has been framed against the petitioner, same are quoted as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to 16 Cr.R. No. 3925/2018 any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
18. Further, under IPC, the definition of cheating provides in Section 415, which is also reproduced as under:-
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
19. In order to apply the Section 415 of IPC in this case, following ingredients has to prove:-
17Cr.R. No. 3925/2018
i. Fraudulent or dishonest inducement.
ii. Dishonest inducement pursuance to delivery of any
property.
20. On reading of Section 420 of IPC, it appears that it deals with offence of cheating and dishonestly inducing delivery of property, its essential ingredients are:-
"(i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens rea of the accused at the time of making the inducement."
21. Before applying the Section 409 of IPC, consideration of Section 405 of IPC is necessary. Bare reading of Section 405 IPC shows that the accused is either entrusted with a property or acquires dominion over the property and misappropriates the same dishonestly or converts the same for its own use or dishonestly uses or disposes of that property. In criminal breach of trust, the person comes into possession of a property honestly but he develops dishonest intention subsequent to his acquiring dominion over the property by way of entrustment or otherwise. To constitute the offence of criminal breach of trust following ingredients must be fulfilled:-
(i) There has to be some property.
(ii) The said property must be entrusted to someone with or without any contract.
(iii) The dominion of the property was shifted from complainant to the accused.
(iv) The accused person refuses to return/restore the said property to the rightful owner when demanded.18 Cr.R. No. 3925/2018
(v) The accused having misappropriated/converted to its own use/disposed the property refuses to restore the property to the complainant/lawful owner.
22. When offence of criminal breach of trust committed by any public servant or by banker merchant or agent then they shall be punished under Section 409 of IPC.
23. Section 511 of IPC provides the punishment for attempting to commit offence punishable by the IPC for which express provision for its attempt is not made by this Code.
24. Now this Court shall examined the facts of the present case in view of the provisions as mentioned above:-
25. In the present case the allegation against the present petitioner is that being a Secretary of concerned Gram Panchayat he played a role in mis-appropriation of fund under MANREGA Scheme. As above discussed it is power of secretary to hold meeting of gram sabha on the instruction of the Sarpanch and he shall supervise and control the servant of the Gram Panchayat accordance with rule made by State Government in this regard. It is part of his duties to record minutes, proceedings and decision of every meeting of Gram Sabha and Gram Panchayat and its standing committees and the details of member present thereat, in the minutes book. It is compulsory from him to attend the meeting of Gram Sabha, Gram Panchayat and its standing committee unless prevented by a reasonable and sufficient cause. Further he shall, after meeting by-laws of Gram Panchayat, in pursuant to model issued by State Government, place it before the Gram Panchayat to adopted. So far as his officeals duties are 19 Cr.R. No. 3925/2018 concerned, in respect of this case he shall prepare all register and record prescribed under the law and also prepare the agenda of the meeting of Gram Sabha and Gram Panchayat or its standing committees with the approval of Sarpanch. He shall sent to copy of resolution passed by Gram Panchayat to SDO (Revenue), CEO (Janpad Panchayat) and Deputy Director ( Panchayat) within a three days of its passing. There are much responsibilities prescribe under the rules for Secretary.
26. It is evident from the charges framed by the learned Trial Court that while framing charges under Section 420 and 409/511 of IPC the learned trial Judge mentioned the allegation that petitioner has issued disputed work completion certificate and misappropriated government fund whereas, as above discussed it is prima facie shows that present petitioner/accused has not issued completion of work certificate. But, in the case diary as well as petition, there is no document found too which shows that on the relevant time petitioner were not functioning his duty and any other person would have taken his charge, thus, merely on these basis specifically when he is responsible person for functioning system of Gram Panchayat and Gram Sabha, it can not be said that he would not have participated in the alleged offence.
27. So far as charges framed under section 420 and 409/511 Cr.P.C are concerned, looking to the circumstances of the case, possibility of his involvement in alleged crime as conspirator can not be ruled out. At this juncture, it is necessary to mention that it is well 20 Cr.R. No. 3925/2018 settled of principle of law while framing charges, Court should not entered into deep merits of the case and only to be seen prima facie case of the prosecution as to whether offence is made out or not.
28. Therefore, charges framed by the trial Court vide order dated 11.05.2018 is hereby set aside and this case is remitted back to the trial Court with the direction to reconsider the case and frame proper charges against the petitioner, if any makes out. Needless to say learned trial Court shall give ample opportunity to all the parties to argue on charge.
29. Accordingly, this Criminal Revision is disposed of.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.07 12:56:24 +05'30'