Orissa High Court
Sankarananda Nayak vs State Of Orissa on 13 December, 2000
Equivalent citations: 2001(I)OLR107
Author: M. Papanna
Bench: M. Papanna
JUDGMENT M. Papanna, J.
1. The present Revision is carried to this Court seeking to quash the order dated 13.4.1994 passed in G.R. Case No. 363/88 by the learned S.D.J.M., Koraput framing charge Under Section 465, I.P.C. against the petitioner.
2. The facts of the case leading to the present revision may be delineated as below :
One Subrat Dash, Area Sales Officer of the Philips India Company, Calcutta lodged information in Sunabeda P.S. alleging that some employees of HAL, Sunabeda had given loan application forms through Hindustan Aeronautics Adivasi and Harijan Employees' Welfare Association Members Cooperative Society Ltd., Sunabeda (in short 'Society') in April, 1998 to buy Philips Audio equipments and P.H. Televisions on hire purchase under the C.T. Bank Consumer Financing Scheme. They were supposed to receive the above materials worth of Rs. 15 lakhs approximately after the loan was sanctioned in May, 1988 by the C.T. Bank. M/s Universal Radio and Electricals, Main Road, Jeypore being the dealer of the aforesaid Company was doing this business. It is further alleged that the materials were delivered to the Society vide delivery challan dated 21.6.1988 which Sri B.C. Pradhan, Secretary of the Society duly received with signature and stamp of the Society. The Philips India Company, Calcutta also received intimation from its dealer regarding receipt of the materials by the Society. But in letter dated 30.6.1988 the Society intimated to the Company that no materials were received from the accused dealer Sankarananda Nayak, the proprietor of M/s Universal Radio and Electricals, Jeypore. Basing on the above allegations Sunabeda P.S. Case No. 36/ 88 was registered. During investigation of the case the Investigating Officer found that the accused being the authorised dealer of the Philips India Company, Calcutta was duly entrusted with T.Vs., Grinders, Radios etc. for supply to the employees of the above Society. But he converted the above materials to his own use thereby cheating the Company and its customers in respect of the above materials worth Rs. 15,40,141.50 by falsifying several documents, seals etc. with intent to defraud the Company and its customers. Thus on completion of investigation, the Investigating Officer placed charge sheet Under Sections 407, 420, 468 and 477A, I.P.C.
3. A perusal of the record shows that the learned Magistrate issued process to the accused and after hearing the parties passed order dated 20.3.1991 framing charges Under Sections 468/477A, IPC against the accused- petitioner. However, he discharged him of the charges Under Sections 407/420, IPC as there were no materials to constitute the offence under the above Secs of law.
4. The impugned order framing charges as stated above was challenged before this Court in Criminal Revision No. 273/91 which was dismissed by Hon'ble Mr. Justice B.N. Dash (as he then was) who while upholding the impugned order framing charge Under Section 477A, I.P.C. remitted the case to the learned Magistrate to consider whether he should frame charge Under Sections 366 or 367, l.P.C. in place of Section 468, l.P.C.
5. In pursuance of the above direction the learned Magistrate, after hearing both the parties framed charge Under Section 465, IPC instead of Under Section 468, IPC. But being aggrieved by the above order of the Magistrate dated 27.11.1993 framing charge Under Section 465, IPC the petitioner filed Criminal Revision No. 19/94 on the ground that the learned Magistrate without indicating the materials come to hold that there was a prima facie case Under Section 465, IPC against the accused. He sought for a direction to the Magistrate to give reasons in support of framing of charge Under Section 465, IPC.
6. In the above circumstances, Hon'ble Mr. Justice B.N. Dash (as he then was) while disposing of the said revision observed as below :
" It is actually seen that the S.D.J.M. has not indicated the materials in support of his findings that the accused-petitioner has prima facie committed an offence punishable Under Section 465, IPC. But the accused-petitioner seriously contended that he should not be charged either for the offence Under Section 465, or Under Section 467, IPC. The learned S.DJ.M. should have done well to indicate the materials which, according to him, justified framing of charge for the offence punishable Under Section 465 IPC. Framing of charge Under Section 465, IPC without indicating the materials in support of the charge has seriously prejudiced the accused-petitioner and the same therefore cannot be sustained."
With the aforesaid observation, the revision was allowed. Accordingly, the impugned Order was set aside and the matter was remitted to the learned Magistrate to frame charge afresh after hearing both the parties. Therefore, after hearing the parties and perusing the previous statements of the Secretary, President and members of the society together with the statements of the Octroi Clerk and opinion of the handwriting expert, the learned Magistrate came to hold that there was sufficient ground of presuming that the accused had made false documents with intent to cause damage to Philips India Ltd. thereby attracting Section 465, IPC in addition to Section 477A, IPC and accordingly he framed the charges afresh Under Sections 465/477A, IPC.
7. Learned counsel appearing for the petitioner left no stone unturned in challenging the order of the learned Magistrate framing charge Under Section 465, IPC by filing the present application for revision of the impugned order.
8. During the course of hearing, learned Senior Counsel, Sri. Y.S. N.Murty for the petitioner addressed the following contentions :
(i) There are no materials whatsoever on record to show that the petitioner has made any false documents. As such, the learned Magistrate has gone wrong by presuming that the accused had made false document with intent to cause damage to the Philips India Ltd. attracting Section 465, IPC.
(ii) Thateven if signature of Sri B.C.Pradhan appearing in the delivery challan is accepted to be a forged one, the petitioner cannot be accused of offence Under Section 465, IPC particularly in the absence of materials on record to hold that the said signature has been forged by the accused-petitioner and that too when the learned Magistrate discharged him of the offence Under Sections 407 and 420, IPC having found no materials in respect of the said offence.
(iii) Because of grossly erroneous order passed by the learned Magistrate the accused-petitioner has been seriously prejudiced for which he persuaded the Court to set aside the impugned order to meet the ends of justice.
Mr. P.K.Mohanty, learned Addl. Government Advocate for the State, on the other hand, refuted the contentions raised by the learned counsel for the accused-petitioner relying on AIR 2000 Supreme Court 522 (Kantibhadra Saha and Anr. v. State of West Bengal) in support of his contention that the reasons for framing of charge need not to be recorded by the trial Court.
9. Therefore, in view of the contentions raised by the learned counsel for both the sides, I am called upon to see whether there are materials, if any, on record justifying framing of charge Under Section 465, IPC against the accused as the other charge Under Section 477A, IPC has been confirmed by this Court. The only duty for which Courts exist is to render justice but not to allow harassment to the public. View taken in AIR 1977 SC1489 (State of Karnataka v. L. Muniswamy and others) is that the High Court has inherent jurisdiction to exercise to quash the charge framed against an accused where the materials taken at their face value and accepted in their entirety do not constitute the offence alleged. The well established position of law is that for proceeding against the accused and for trial to proceed there must beprima facie materials on record. 1 think it proper to quote as below a few lines from the decision reported in AIR 1977 SC 1489 (supra) :
"In the exercise of the wholesome power, the High Court is entitled to quash- a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of Court or that the ends of justice require that the proceeding ought to be quashed. The savings of the High Court's inherent powers both in Civil and Criminal matters is designated to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution. In a criminal case, veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature."
10. In 57 (1984) CUT 488 (Dinesh Kumar Jajodia and Anr. v. M/s. State Cooperative Marketing Federation Ltd., Bhubanesvvar) this Court viewed that the order framing a charge is an important and sacrosanct act. It should be framed after due and proper materials placed before the Court against the person, the settled position being that the inherent jurisdiction of the High Court is available to be exercised to prevent an abuse of process of the Court or for the ends of justice. In the case of Sri Harekrishna Mahatab and Anr. v. Republic of India and Anr. reported in 52 (1981) CLT 473, it is held that the continuance of the prosecution would in the facts of that case be a harassment and would not achieve any solatary public purpose. This Court taking note of the Supreme Court decision quoted above quashed the proceeding initiated against Sri Harekrishna Mahatab. Therefore, the actual exercise of jurisdiction would depend upon the facts and circumstances of each individual case. Let us now see whether in the present case there are prima facie materials on record for proceeding Under Section 465, IPC for forgery.
11. Section 465, IPC which deals with punishment for forgery runs as follows :
" 465. Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years or with fine, or with both."
"Sec. 463, IPC says that whoever makes any false document or part of a docurpent with intent to cause damage or injury to the public or to any person, or to support any claim of title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
But a charge Under Section 465, IPC can be framed only when ingredients of Section 463, IPC are fulfilled failing which law does not permit a charge to be framed under the said Section of law.
12. A perusal of the impugned order indicates that as per direction of this Court the learned S.D.J.M., while framing the charge Under Section 465, IPC afresh, examined the statements of B.C. Pradhan, the Secretary of the Society, Parameswar Rath, the President of the Society, Dibyasingh Jena, Driver of the truck recorded Under Section 161, Cr.P.C. by the I.O. along with opinion of the handwriting expert. His finding is that the accused forged signature of the Secretary B.C.Pradhan along with the seals and signatures of the Octroi persons on the weigh bills, thereby falsifying the documents with intent to cause damage to Philips India Ltd. According to him, as there is prima facie case to reach the aforesaid conclusion provision of Section 465, IPC has been attracted.
13. Views taken in several other cases should be referred to for guidance to reach correct decision and thereby rendering real and sufficient justice to the parties. In the case of Monoharlal Arora and Ors. v. Atma Prakas Arora reported in 1980 CLR 141, it has been held that mere suspicion, however, strong cannot take the place of proof in a criminal prosecution. However, this proposition of law does not apply to the stage of charge in a criminal case because at, such a stage the Court is not expected to weigh the evidence and the materials placed before it, meticulously. In fact, the said test is required to be applied, while recording the finding of guilt or otherwise of the accused. This view has also been taken in the case of State of Bihar v. Ramesh Singh reported in AIR 1977 SC 2018. Following the aforesaid decision of the Supreme Court, this Court has taken a similar view in the case of Dinesh Kumar Jajodia and Anr. v. M/s. State Cooperative Marketing Federation Ltd. (supra). The irresistible and inevitable conclusion reached in all the reported cases is that if there is a strong suspicion leading the Court to think that there is a ground for presuming that the accused has committed an offence it cannot be controverted by saying that there is no sufficient ground for proceeding against the accused. Therefore, in the light of the said propositions of law I think it proper to examine the evidence in order to find out if there are materials justifying framing of charge Under Section 465, IPC. In this regard reliance can be placed on AIR 2000 SC 522 (supra). The view taken by their Lordships shows that the High Court can re-examine the records to consider whether the charges framed were sustainable or not. If the High Court decides to quash the charge it is open to the High Court to record reasons thereof.
14. In the instant case, the order of the learned Magistrate framing charge Under Section 465, IPC against the accused is under challenge. It is to be seen if the said charge can be set aside for not recording any reason. In this regard the provision of law Under Section 239, Cr.P.C. makes it clear that if upon considering the police report and the documents sent with it Under Section 173, Cr.P.C.'and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused and record his reasons for so doing. It appears, that the Magistrate is obliged to record his reasons if he decides to discharge the accused. Therefore, in the case at hand, the Magistrate is not obliged to record his reasons as per the contentions raised by the learned counsel for the State particularly when the Magistrate after perusing the materials on record came to hold that there is a ground for presuming that the accused forged the signature of the Secretary of the Society on the delivery chalan and also forged the seals and signatures of the Octroi person on the weigh bills.
15. But so far as the contentions raised by the learned counsel for the accused-petitioner are concerned, it is seen that there is absolutely no material whatsoever on record to indicate that the accused had forged the signature of the Secretary of the Society or for that reason of any other person. Moreover, all that has been found out by the handwriting expert was only to the effect that the purported signature on the document by Shri B.C.Pradhan was not his real signatrue. I have myself gone through the relevant portion of the evidence of B.C. Pradhan and Parameswar Rath and other witnesses and found that there is no whisper of any material in the entire record to show that the accused-petitioner had forged the signature of B.C. Pradhan. Moreover evidence of the hand- writing expert that the delivery chalan bears a forged signature of B.C. Pradhan is not sufficient to hold that the accused forged the signature of B.C. Pradhan. That being so, I do not see an eye with the learned Magistrate in respect of his finding that there is a prima facie case to hold that the accused forged the signature of the Secretary of the Society Shri B.C.Pradhan on the delivery chalan with seals and signatures of the Octroi person on the weigh bills with intent to cause damage to the consignor, Philips India Ltd.
16. Thus, while parting with this judgment it can be said that no doubt the finding of the Magistrate is correct when he holds that the document bearing the signature of the Secretary Shri, B.C.Pradhan is a forged one but for that it cannot be said that the signature of Shri B.C.Pradhan has been forged by the accused-petitioner in the absence of the materials to that effect and also when the impugned documents were seized from the Company itself but not from the accused-petitioner. During the course of hearing the learned counsel for the State urged that the petitioner had already come to this Court in three revisions and therefore there should be no interference at this stage and that no harm would result if the petitioner faces the trial and get acquittal after the trial of the case. Since the contention as above being contrary to law, the same is unsustainable.
17. Therefore, this Court while exercising its inherent jurisdiction feels competent to examine the correctness of the impugned order and after examining the materials available on record, I am of the considered view that the accused shall not be harassed by framing charge against him Under Section 465, IPC which is not tenable in the absence of supporting materials for such charges.
18. In the result, the revision is allowed and the impugned order framing charge Under Section 465, IPC is quashed. The matter is remitted to the learned Magistrate to proceed with trial for the charge Under Section 477A, I.P.C. only.