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[Cites 17, Cited by 0]

Delhi District Court

Sh. Sumit Nanda vs State (Govt. Of Nct Of Delhi) on 24 September, 2019

                                        Crl. Revision No.83/2015

       IN THE COURT OF GORAKH NATH PANDEY,
            ADDITIONAL SESSIONS JUDGE,
      WEST DISTRICT, TIS HAZARI COURTS, DELHI.

Crl. Revision No.83/2015
CNR No.DLWT01­003031­2015

In re:

Sh. Sumit Nanda,
Director of M/s. Fahrenhent Financial Pvt. Ltd.,
At 197, 2nd Floor, Greater Kailash­I,
New Delhi.                                 .....Petitioner

                              Versus

1. State (Govt. of NCT of Delhi)

2. Mr. Ashish Abrol,
   S/o Mr. V. K. Abrol,
   R/o D­5, Ist Floor,
   Lajpat Nagar, Part­II, New Delhi.

3. Sh. Sanjay Kumar Sharma,
   S/o Mr. Surendra Kumar Sharma,
   R/o 37/10, 4th Floor,
   West Patel Nagar, New Delhi­110008.
                                      .......Respondents




Sumit Nanda v. State & Ors.                        Page No. 1/14
                                            Crl. Revision No.83/2015

       Date of filing of revision petition   :   11.12.2018
       Date of arguments of revision petition:   08.08.2019
       Date of pronouncement of judgment :       24.09.2019
       Decision                              :   Dismissed

JUDGMENT:

1. This revision petition under Section 397 Cr. P. C. is directed against the order dated 05.09.2013 passed by the Ld. M.M.­11 (West) in case FIR No.652/2006 registered at P.S. Patel Nagar whereby the charge for the commission of offence punishable under Section 409/34 IPC was framed against the petitioner.

2. The brief facts of the case is that the respondent no.3/complainant Sanjay Kumar Sharma, proprietor of Baseline Tennis Foundation approached the ICICI Bank for loan against his vehicle No.DL­4CR­7136 and for the said purpose, he signed some documents and concerned officer of ICICI Bank prepared 'Loan Agreement'. It is stated that as per instructions of bank official, the complainant submitted self signed five bank cheques in the name of "Baseline Tennis Foundation" to ICICI Bank for use of payment of EMIs pursuant to the loan agreement. It is stated that complainant gave up his plan to take the loan and requested to the competent authority of ICICI Bank to revoke the said agreement and not to pay any amount to Sumit Nanda v. State & Ors. Page No. 2/14 Crl. Revision No.83/2015 him against the said loan agreement and he also requested them to return back his cheques to him. It is stated that the officials of ICICI Bank assured the complainant that the said agreement might be deemed as revoked and his cheques should be returned to him. Thereafter, the complainant received letters and phone calls from ICICI Bank to pay the EMIs against the said loan. It is stated that on 28.08.2006 at about 09:00 am two persons came at the residence of complainant and started shouting in very daunting manner and when the complainant asked them about their identity they told him that they were recovery agents of ICICI Bank and they intimidated him to pay Rs.5,00,000/­ to ICICI Bank within 7 days or be ready to face the dire consequences. Hence, the complainant approached the court by way of application under Section 156 Cr.P.C. and thus, FIR in question was registered on the direction of the Ld. M.M. In the investigation, it was found that complainant had approached the ICICI Bank through Ashish Abrol. The loan was sanctioned but later on complainant requested the ICICI Bank to revoke the agreement and return back his cheques. However, the loan of Rs.5 lacs was granted to him and cheque amount was entered in the account of Fahresheet Financial Services Ltd. Even after the refusal of complainant to avail the loan he received demand for EMI. The petitioner herein alongwith accused Ashish Abrol received the amount Sumit Nanda v. State & Ors. Page No. 3/14 Crl. Revision No.83/2015 from ICICI Bank and instead of returning back the amount to ICICI or giving it to complainant, they misappropriated the entrusted amount.

After the completion of investigation, charge sheet under Sections 409/420/506/120B IPC was filed by the police in the court upon which the Ld. M. M. took cognizance against the petitioner and accused Ashish Abrol.

3. Vide impugned order dated 05.09.2013, the Ld. Trial Court ordered for framing charges against the petitioner and accused Ashish Abrol under Section 409/34 IPC on the basis of material on record. Aggrieved therefrom, this revision petition is filed by the petitioner herein.

4. The counsel for the revisionists assailed the impugned order contending that the same is based on conjectures and surmises; Ld. Trial Court has not considered the material on record which are not sufficient or prima facie show the alleged role of the petitioner in the commission of the alleged offences; Ld. M. M. failed to consider the fact that the petitioner never met with respondent no.2 and thus the question of making any such alleged representation to the respondent no.2 does not arise; Ld. M. M. erred in ordering for framing charge under Section 409/34 IPC despite the fact that no case was made out Sumit Nanda v. State & Ors. Page No. 4/14 Crl. Revision No.83/2015 against the petitioner; Ld. M. M. did not appreciate the fact that the petitioner has not received any loan amount from ICICI Bank nor he paid any EMI and therefore, the question of committing the offence under Section 409 IPC does not arise; Ld. M. M. failed to appreciate that the petitioner is only a DSA of the ICICI Bank and his only job is to forward the loan application received through his customer; Ld. M.M. did not consider the fact that petitioner has already taken action against the respondent no.2 and has already paid the loan of Rs.5 lacs to the bank and NOC in this regard has been issued to him by the bank; Ld. M. M. has passed the order in haste and without going through the actual matrix of the case; no case is made out against the petitioner and there are no specific allegations against the petitioner in the FIR. The counsel for the petitioner has argued that the impugned order for framing charge against the petitioner is bad in the eyes of law and the same is liable to the set aside

5. On the other hand, while supporting the impugned order, Ld. Addl. PP for State has submitted that there is no infirmity or illegality in the impugned order and therefore, no interference is called for.

6. I have heard the counsel for petitioners and Ld. APP for State. Trial court record has also been perused.

Sumit Nanda v. State & Ors. Page No. 5/14 Crl. Revision No.83/2015

7. Before adverting to the facts of the case, it would be appropriate to refer to the guidelines laid down by the Superior Courts to be kept in mind at the stage of framing of charge.

In Union of India v. Prafulla Kumar Samal AIR 1979 SC 366, the Hon'ble Apex Court laid down the following principles:

"(i) 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;
(ii) 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;
(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; and
(iv) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court can not 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 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."

In Dilawar Balu Kurane Vs. State of Maharashtra (2002) 2SCC 135, the principles enunciated above has been reiterated and it was Sumit Nanda v. State & Ors. Page No. 6/14 Crl. Revision No.83/2015 held as below:

"12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large 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 justified to discharge the accused and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the board probabilities of the case, the total effect of the evidence and the documents produced before the court but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant."

Further, Hon'ble Supreme Court in Sajjan Kumar Vs. CBI (2010) 9SCC 368 in para no.19 and pare no.21 held as below:­ "19. It is clear that at the initial stage, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the court to say that there is no sufficient ground for proceeding against the Sumit Nanda v. State & Ors. Page No. 7/14 Crl. Revision No.83/2015 accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross­ examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.

21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:

(i) The Judge while considering the question of framing the charges under Section 227 Cr. P. C. 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. The test to determine prima facie case would depend upon the facts of each other.
(ii) 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.
(iii) 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 documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For Sumit Nanda v. State & Ors. Page No. 8/14 Crl. Revision No.83/2015 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.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to sell whether the trial will end in conviction or acquittal."

8. Discussing the law on consideration of charge, Hon'ble Delhi High Court in the case of Prashant Bhasker v. State (Govt. of NCT of Delhi) in Crl. Revision Petition No.385/2009 decided on 22.09.2009 held:

"17. It needs no elaboration that at the stage of framing of charge, the court is required to evaluate the materials and documents which have been placed on record by the prosecution and taken at the face value, whether existence of the ingredients constituting the alleged offence or offences are disclosed. It is for this limited purpose alone that the court is permitted to sift the evidence. In para 7 of the judgment in (1990) 4 SCC 76 Niranjan Singh Karam Singh Punjabi v. Jitender Bhimraj Bijja the Apex Court defined the parameters of the scope and consideration thus:
"7. The next question is what is the scope and ambit of the 'consideration' by the trial court at that stage. Can he marshal the evidence found on the record of the case and in the documents placed before him as he would do on the conclusion of the evidence adduced by the prosecution after the charge is framed? It is obvious that since he is at the stage of deciding whether or not there exist sufficient grounds for framing the charge, his enquiry must necessarily be limited to deciding if the facts emerging from the record and documents constitute the offence with which the accused is charged. At that stage he may sift the evidence for that limited purpose but he is not required to marshal the evidence with a view to separating the grain from the chaff. All that he is called upon to consider is whether there is sufficient ground to frame the charge Sumit Nanda v. State & Ors. Page No. 9/14 Crl. Revision No.83/2015 and for this limited purpose he must weigh the material on record as well as the documents relied on b the prosecution. In the State of Bihar v. Ramesh Singh 1977 Cri LJ 1606 this court observed that at the initial stage of the framing of a charge, if there is a strong suspicion­evidence which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross­examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. In Union of India v. Prafulla Kumar Samal 1979 CriLJ 154, this court after considering the scope of Section 227observed that the words 'no sufficient ground for proceeding against the accused' clearly show that the Judge is not merely a post­office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face­value establish the ingredients constituting the said offence. After considering the case law on the subject, this Court deduced as under: (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 natrurally 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 adduced 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 Sumit Nanda v. State & Ors. Page No. 10/14 Crl. Revision No.83/2015 accused. (4) That in exercising his jurisdiction under Section 227 of the Code of judge which under the present Code is a senior and experienced judge cannot act merely as a post­office 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.
Xxxxxx From the above discussion it seems well settled that at the Sections 227­228 stage the court is required to evaluate the material and documents on record with a view to find 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 the initial stage to accept all that the prosecution stated as gospel truth even if it is opposed to common sense or the broad probabilities of the case." (Emphasis supplied)
18. The pronouncement of the Apex Court reported at Chitresh Kumar Chopra v. State (Govt. of NCT of Delhi) on this very issue can also be usefully adverted to and reads thus:­ "........ 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, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for "presuming" that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

19. In a subsequent judgment reported at (1996) 4 SCC 659 State of Maharashtra v. Som Nath Thapa a three­Judge Bench of the Supreme Court explained the meaning of the word "presume". Referring to dictionary meanings of the said word, the Court observed thus:

".... If on the basis of materials on record, a court could come to Sumit Nanda v. State & Ors. Page No. 11/14 Crl. Revision No.83/2015 the conclusion that commission of the offence is a probable consequence, a case for framing of exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though the conviction the conclusion is required to be that the accused has commuted the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into' the material brought on record by the prosecution has to be accepted as true at that stage."

XXXXXXXXXXX

24. It now becomes necessary to consider the material which was laid by the prosecution before the learned trial court. Two contradictory statements recorded by the investigating officer of the complainant as well as his son both of whom claim to be eye witnesses, which were separated by a period of three months, have been placed on record. The first statement recorded on the very next date after the incident, has named only two persons i.e. Shri Mahesh Sharma and his brother Manish Sharma @ Kallu and is categorical that no other person is involved in the incident. A second statement recorded several months after the incident on 10th July, 2006 has sought to rope in the present petitioner. A graphic description of the alleged incident containing improvements in all material particulars is laid out in which even a role has been attributed to the petitioner. Scrutiny of the record which has been placed before this court would also show that there is no other material on the record at all placed along with the charge sheet under Section 173 of the Cr. P. C. before the trial court to show the presence of the petitioner or to connect him with the crime.

25. These statements/supplementary statements of the witnesses recorded by the investigating officer make to mention about the earlier statement recorded on 6th April, 2006. Neither of these statements even attempts to explain the circumstances in which the second statement was being made or the reason thereof.

The very gap of three months between the incident and statements by itself renders the same suspect and unsafe for reliance.

26. In similar circumstances, this court in the judgment pronounced at 2007 (2) JCC 1415 Sunil Basal v. State of Delhi held that while undertaking the permissible and necessary exercise of Sumit Nanda v. State & Ors. Page No. 12/14 Crl. Revision No.83/2015 sifting of the materials and particularly keeping in mind the existence of two contradictory statements, a charge cannot be framed based thereon. The court observed that the subsequent statements were not only contradictory but unsafe as well and that the court cannot be expected to accept one version over another. It was held that the court would be justified in concluding that the version supporting the discharge of the petitioner is to be preferred. In the present case as well, the previous statement has completely ruled out any complicity of the accused person".

9. The charge sheet has been filed against the petitioner and vide impugned order dated 05.09.2013, the petitioner has been charged for the offence under Section 409/34 IPC.

10. Upon testing the First Information Report, statements recorded under Section 161 Cr.P.C. and other material on record on the touchstone of the principles laid down by the Superior Courts, there can be no doubt that there exist the grounds to presume that the petitioner has committed the offences under Section 409/34 of Indian Penal Code. At this stage, the case of the prosecution can not be thrown out by disbelieving the allegations and the material on record brought by way of charge sheet. Admittedly, the amount released by the bank by way of loan has been availed by the petitioner.

11. In view of the materials on record and evidence, the trial court rightly formed the opinion that prima facie case was made out Sumit Nanda v. State & Ors. Page No. 13/14 Crl. Revision No.83/2015 for framing charge for the commission of offence under Section 409/34 IPC against the petitioner.

12. In the light of above discussion, I find no infirmity in the impugned order passed by the Ld. M.M. The revision petition is without merits and is, accordingly, dismissed.

13. Trial court record be sent back alongwith the copy of the judgment. File of revision petition be consigned to record room.

Digitally signed by 
                                     Gorakh Nath        Gorakh Nath Pandey
                                     Pandey             Date: 2019.09.25
                                                        16:19:58 +0530
Announced in the open court             (Gorakh Nath Pandey)
on 24.09.2019                        Addl. Sessions Judge (West)
                                       Tis Hazari Courts, Delhi.




Sumit Nanda v. State & Ors.                               Page No. 14/14