Madhya Pradesh High Court
Bhuvan Lal Lilhare vs The State Of Madhya Pradesh on 9 July, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH PRINCIPAL
SEAT AT JABALPUR
Bench : Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 5041/2018
Bhuvan Lal Lilhare
Vs
State of M.P.
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Shri Sanjay Sharma, learned counsel for the petitioner.
Shri Gulab Singh, learned P.L. for the respondent/State.
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ORDER
(09 /07/2020) This revision petition under Section 397/401 Cr.P.C. has been preferred by the petitioner being aggrieved by the order dated 17.09.2018 in S.T. No. 08/2015 passed by 2 nd Additional Sessions Judge, Balaghat, whereby the learned ASJ has framed the charges for the offence punishable under Sections 120-B, 409, 420, 467, 468 and 471 of IPC against the petitioner.
2. According to the case, in compliance of direction given by learned JMFC, Balaghat on the complaint under Section 156(3) CrP.C filed by one Kamlesh Mahobiya, the police has registered the case against the petitioner and other co-accused persons. After completing investigation, the police has filed the charge-sheet before the concerning Court and vide judgment dated 25.07.2012 except the petitioner, other co-accused persons have been convicted by the trial Court. Now after taking sanction, supplementary charge-sheet has been filed by the police against the petitioner and the trial Court has 2 Cr.R. No. 5041/2018 framed the charges which are under challenged in this petition. Before the rival contentions of the parties are taken up for consideration, it would be necessary to give a brief resume of facts. It appears from the case that the petitioner was the then In-charge CEO of Municipal Council Lanji and it is alleged by the complainant that there is weekly market in control of Municipal Council Lanji and in auction proceeding in respect of animal market, cycle stand etc. for the year 2011-12, an advertisement was issued and according to it successful bidder has to pay 7.5% stamp fees for the agreement. It is said that on 07.03.2011, an auction proceeding took place in which co-accused Raja Mankar and Sitaram Bahe were the successful bidder for getting the contract of weekly animal market at rupees 19,45,000/- and contract of cycle stand at rupees 6,33,000/-, respectively. As per the terms and conditions of contract, the successful bidder has to pay stamp duty of 7.5% while executing the agreement but the co-accused did not deposit the said stamp duty and got the agreement executed in stamp paper of rupees 100/- by preparing forged papers and in this way the government incurred loss.
3. Learned counsel for the petitioner submits that the learned Court below erred in framing the charges against the petitioner whereas no case is made out against him even after accepting the whole prosecution case as it is. He further submits that the Court below failed to see that the petitioner has not committed any offence. On 09.03.2011, he issued notice to the successful bidder to comply the condition of the auction and tender by paying necessary stamp duty before 31.03.2011 but the bidder did not 3 Cr.R. No. 5041/2018 comply the condition then again on 17.03.2011 and 23.03.2011, reminders were issued by the petitioner for the same purpose. He further submits that on 25.03.2011, President, Vice President of Municipal Council Lanji, representative of MP's and MLA and counselor jointly were directed to execute the agreement on stamp paper of Rs. 100/- and also directed to call a meeting of counselors. In this regard, on 08.04.2011, a meeting of counselors of Municipal Counsil Lanji was called and it was decided to execute an agreement on 100/- rupees stamp, accordingly the resolution was passed. The petitioner has also informed the Collector Balaghat about the said resolution but no order was given by the authority, hence, the petitioner was under obligation to act according to the direction of the Municipal Council as per the spirit of Section 92 of M.P. Municipalities Act. He further argued that the petitioner has not committed any conspiracy with the co-accused because he raised objection during the resolution was passed. He never fabricated any documents because the alleged document are not forged. The petitioner neither gained any benefit nor cheated anyone, per-contra, he did all the work according to direction of Municipal Council. He also argued that the complainant has no locus standi to file complaint and without prior sanction from the competent authority, application under Section 156(3) of Cr.P.C is not maintainable. Thus, the procedure adopted by the learned Magistrate is contrary to law. With the aforesaid, he prays to allow this revision petition.
4. On the other hand, learned panel lawyer for the respondent/State opposes the petition submitting that there is 4 Cr.R. No. 5041/2018 sufficient material available on record for framing the charges of the aforesaid offences against the petitioner. He submits that defense of petitioner may not be considered at this stage and this revision petitions may not be allowed at this initial stage of trial, the petitioner may raise all the grounds before the trial Court at appropriate stage of trial. With the aforesaid, he prays for dismissal of this petition.
5. Heard both the parties and perused the case-diary.
6. Before embarking on the facts of the case, it would be necessary to consider the legal aspects first. Since, by way of filing this revision petition, the petitioner has challenged the charge framed by the learned trial Court, therefore, I would prefer to deal with the provision of Section 227 of Code Of Criminal Procedure, 1973, the 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."
7. If the Court finds that sufficient material is available to connect the accused with the offence, then Section 228 of Code Of Criminal Procedure, 1973, comes into role, provision is also quoted 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 5 Cr.R. No. 5041/2018 the Chief Judicial Magistrate shall try the offence in accordance with the 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."
8. 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."
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9. Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 366), the Hon'ble Supreme Court again has held as under:-
"Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(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."
10. Further, the 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 7 Cr.R. No. 5041/2018 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."
11. The Hon'ble 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 also 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 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:8 Cr.R. No. 5041/2018
"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)
12. In Asian Resurfacing of Road Agency Pvt.Ltd and Anr. v. Central Bureau of Investigation reported in (2018) 16 SCC 299, wherein the Hon'ble Supreme Court has held that petitions challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter.
13. Therefore, it is manifest that while framing the charges, the Court is required to evaluate the material and documents on record with a view to find out that if the facts emerging therefrom are taken at their face-value, disclose the existence of all the ingredients constituting the alleged offence. The accused has no right to produce any material and deep merits of the case cannot be considered at this stage. The Court should see only the documents annexed with the charge-sheet. The petition challenging the charge should be entertained in rare and rarest of case only to correct the pattern error of jurisdiction and not to re-appreciate the matter. 9 Cr.R. No. 5041/2018
14. Further, on careful reading of the charge, it appears that the Court has framed the charges of offences under Sections 409, 420, 467, 468, 471 and 120-B of IPC. On reading of provisions of IPC, of which charges are framed against the petitioners as well as principle laid down in this regard by the Hon'ble Apex Court in its various pronouncements, 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.
(v) The accused having misappropriated/converted to its own use/disposed the property refuses to restore the property to the complainant/lawful owner.
15. 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.
16. Further in order to apply section 420 IPC, the essential ingredients are:-
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(i) cheating;
(ii) dishonestly 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."
17. Further, under the IPC, the cheating is defined in Section 415 and on reading of the said provision in the light of legal verdicts passed in this regard, the following ingredients are necessary to constitute the offence of cheating :-
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person;
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) intentionally inducing that person 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.
18. Further, the Court below has also framed the charges of Sections 467, 468, and 471 of IPC which are related to the offence of forgery. The definition of forgery is provided under Section 463 IPC and according to it, whoever makes any false documents or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Section 467 of IPC prescribes punishment for making forgery of valuable security, bill, etc. whereas Section 468 of IPC speaks about 11 Cr.R. No. 5041/2018 the punishment for forgery for the purpose of cheating. So far as Section 471 of IPC is concerned, comes to effect when any person used the documents as genuine knowing the fact that the same is forged. Section 464 of IPC provides about the making a false documents. On reading of the provision of Section 120-A of I.P.C., it is manifest that a criminal conspiracy exists when two or more people agree to commit any unlawful act, then take some steps towards it's completion. The offence of criminal conspiracy constitutes by two ways, first, by an illegal act or secondly, by an act which may be legal but done through an illegal means, such agreement is designated as a criminal conspiracy.
19. After careful reading of aforesaid provision and principle, I revert back to the facts of the case. On perusal of documents annexed with the case-diary, it is found that the allegation against the petitioner is that he was the then Incharge CEO of Municipal Council Lanji and with an intent to give illegal monetary benefits to the co-accused Raja Mankar and Sitaram Bahe who were the successful bidder for contracts of animal market and cycle stand for the year 2011-12, respectively, he entered into conspiracy and did not get adequate stamp duty from them while executing the agreement which incurred loss to Government. Further, it is alleged that the petitioner also played important role in forgery of documents in furtherance of executing the agreement in stamp paper of Rs. 100/-. It is further alleged that the petitioner connivance with other co- accused persons and grabbed government money. On perusal of case diary, it also appears that as per the rules made by State Government, 12 Cr.R. No. 5041/2018 the successful bidder has to pay 7.5% stamp duty for executing the agreement but co-accused person were not willing to pay the same, hence, being an In-charge CEO, the petitioner has issued notice and reminders to them. Further, it appears that the counselors of Municipal Council, Lanji have given a joint letter to the petitioner for calling a meeting of counselors for consideration the agenda of executing an agreement in stamp paper of Rs. 100/-. On 8.04.2011 the agenda was discussed and the council have passed the said resolution. On careful reading of aforesaid resolution dated 08.04.2011, it appears that the council has clearly mentioned that if any audit objection comes in future in respect of executing the agreement in stamp paper of 100 rupees, the contractor will be bound to comply the order pass in this regard. Further, the petitioner has also forwarded the details of aforesaid resolution to the Collector District Balaghat for necessary action.
20. Under chapter IV and VII of the Indian Stamp Act, 1899, the Collector is empowered to recover deficit stamp or fees. Petitioner/accused performed his duty on the basis of resolution passed by Municipal Council Lanji. It appears from the case diary that it is mentioned that Nagar Parishad Seoni and Barghat have also executed such type agreement in the stamp paper of Rs. 100/- and on that basis, Municipal Council Lanji has also passed such resolution. So it is evident that when Collector is empowered to recover the deficit amount and the copy of resolution was forwarded to the Collector for further action, therefore, it cannot be said that there is any fraudulently and dishonestly intention of the petitioner. In the 13 Cr.R. No. 5041/2018 case of Hridaya Ranjan Prasad Verma and others Vs. State of Bihar and another reported in 2000 (4) SCC 168 has held as under:-
15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed.
21. Therefore, there is no material which shows that the petitioner gained any illegal benefit from the aforesaid act or deceived or induced any person to deliver any property. No mens-rea is found to the petitioner to commit such offence. In any eventuality, there was something wrong, same should comes under the irregularity for which departmental proceeding could be initiated against him. The language of resolution does not reflect any intention to commit such offence, moreover, the petitioner duly informed his higher authority i.e. Collector about the resolution and he requested for necessary action also. Therefore, the ingredients for the offence under Section 409 and 420 of IPC is not satisfied in the case against the petitioner. So far as offence of Sections 467, 468 and 471 of IPC are concerned, the documents prepared by the petitioner cannot be termed as forged, although, same may not be in accordance with the rules made in this regard. Therefore, no offence under Sections 467, 14 Cr.R. No. 5041/2018 468 and 471 of IPC are made out against the petitioner. There is also no material to constitute the offence of criminal conspiracy under Section 120-B of IPC .
22. Therefore, in such circumstances, it cannot be inferred that petitioner/accused is involved in this case. Hence the impugned order is not sustainable and deserves to be quashed. This petition is allowed and the petitioner is discharged for the offences under Sections 120-B, 409, 420, 467, 468 and 471 of IPC.
23. C.C. as per rules.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.07.09 16:56:38 +05'30'