Madhya Pradesh High Court
Shivnarayan Verma vs The State Of Madhya Pradesh on 7 January, 2020
Equivalent citations: AIRONLINE 2020 MP 144
Author: Rohit Arya
Bench: Rohit Arya
1
Cr. Revision No.4752, 4753 & 5183 of 2019
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Criminal Revision No.4753 of 2019
Mehtab Singh
Vs.
State of M.P.
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Shri A.K.Sethi, Sr. Advocate assisted by Shri Harish Joshi,
Advocate for the applicant.
Shri Rahul Vijayvargiya, Public Prosecutor for the
respondent/State
Criminal Revision No.5183 of 2019
Shivnarayan verma
Vs.
State of M.P.
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Shri Vivek Singh, Advocate for the applicant.
Shri Rahul Vijayvargiya, Public Prosecutor for the
respondent/State
&
Criminal Revision No.4752 of 2019
Ramesh Kumar
Vs.
State of M.P.
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Shri A.K.Sethi, Sr. Advocate assisted by Shri Harish Joshi,
Advocate for the applicant.
Shri Rahul Vijayvargiya, Public Prosecutor for the
respondent/State
Reserved on: 09/12/2019
ORDER
(07/01/2020) Rohit Arya, J., This batch of three criminal revision petitions by the accused/petitioners arise out of the order passed by the trial Court framing charge against them.
Facts have been considered from Cr. Revision No.4753/2019.
2Cr. Revision No.4752, 4753 & 5183 of 2019 This criminal revision under sections 397 - 491 Cr.P.C., is directed against the order dated 27/08/2019 passed in sessions trial No.498/2017 by Additional Sessions Judge, Sarangpur District Rajgarh for the offence punishable under sections 420 & 420/34, 467, 468 & 468/34, 471 and 120B IPC.
2. The facts in brief are that an FIR dated 20/11/2017 at crime No.447/2016 under sections 409, 420, 468, 471 & 120B IPC has been registered in Police Station Sarangpur, District Rajgarh at the instance of complainants R.C.Shrivastava, Branch Manager District Central Cooperative Bank Limited, Khujner and Dilip Kumar Chouhan, Assistant Accountant, Legal Cell; Head Office of the District Central Cooperative Bank Limited, Rajgarh. The gist of FIR is to the following effect:
"The main accused, Devkinandan Sharma son of Shivnarayan Sharma resident of Khujner was in-charge society manager (Primary Agricultural Credit Society) at Dhamanda and working in the said capacity since 22/05/2006. During the period from 2012-13 to 2015-16 serious financial irregularities, misappropriation of government funds and financial loss to the society (primary agricultural credit society) has been caused by him for his personal gains as confirmed in the report dated 30/05/2016 submitted by the Bank Vigilance Cell and special audit report for the year 2012-13. The details in respect of each allegation with dates, figures and documents have been reiterated in the complaint. As per Vigilance Cell report during the period from 2013-14 to 2015-16 an amount of Rs.1,56,03,153/- and special audit report for the year 2012-13 an amount of Rs.44,41,515.58; total Rs.2,00,44,668.58 (two crores forty four thousand six hundred sixty eight and fifty eight paisa) has been siphoned in a systemic manner with maneuvering and manipulation in the books of account / cash book of the society as a result adjusted the amount towards purchase of manure. The amount has been misappropriated 3 Cr. Revision No.4752, 4753 & 5183 of 2019 by making false entries in the official documents including cash book, etc., During the aforesaid period, Mehtabsingh Rajput, Mangilal Carpenter, Smt. Mallika Sayyed and R.K.Pandey have been posted and worked as in-charge branch managers & Shivnarayna Verma and Mohanlal Dubey were posted and worked as supervisor/incharge circle supervisor at Branch Khujner. At the relevant time, the personnel posted and worked as manager/in-
charge branch manager and supervisor/incharge supervisor at Branch Khujner have not discharged duties as per job description due to lack of timely inspection, control, and effective supervision resulting into misappropriation of government funds whereas it is part of their duty to regularly conduct timely inspection, supervision and control. Hence, along with main accused Devkinanda Sharma, in-charge manager of the primary agricultural credit society, the aforesaid officials of the bank are jointly responsible for large scale misappropriation of government funds to the tune of crores of rupees. Their conduct tantamount to criminal conspiracy. Accordingly, the offence under the aforesaid sections be registered against all the accused persons."
3. The trial Court on 27/08/2019 by a detailed order has framed charges against each of the accused persons;
(a) Mehtab Singh (b) Ramesh Kumar - incharge branch managers and (c) Shivnarayan Verma, supervisor respectively of the District Central Cooperative Bank Limited, Rajgarh are before this Court in the aforesaid revision petitions.
4. Shri A.K.Sethi, learned senior counsel while assailing the impugned order submits that petitioner at the relevant time was incharge manager of the District Central Cooperative Bank Limited, Rajgarh. It is totally distinct entity from the Primary Agricultural Credit Society, Dhamanda. Therefore, he had no 4 Cr. Revision No.4752, 4753 & 5183 of 2019 connection with the affairs of the society and has been falsely implicated in the offence. There is no allegation of criminal conspiracy or prior meeting of mind between the petitioner and the main accused, Devkinandan Sharma for the alleged embezzlement of government funds. The branch manager/incharge branch manager has no role either for timely inspection or supervision or control of the primary agricultural credit society limited in question. Petitioner never held any post in the aforesaid primary agricultural credit society limited at Dhamanda. Hence, the charge framed against petitioner for the offence punishable under sections 420 & 420/34, 467, 468 & 468/34, 471 IPC with the help of section 120B IPC for the reason that there is no timely inspection, control and supervision by the petitioner are not sustainable and deserves to be quashed. Learned senior counsel placed reliance on the judgments of the Hon'ble Supreme Court in the cases of State of Karnataka Vs. L. Munisway and others, AIR 1977 SC 1489 and P. Vijayan Vs. State of Kerala and another (2010) 2 SCC 398 to bolster his submissions.
5. Per contra, learned Public Prosecutor has supported the impugned order inter alia contending that the primary agriculture credit societies are engaged in various welfare schemes / activities of the State including credit facilities to agriculturists as its members under the direct control, inspection and supervision of the District Cooperative Central Bank Ltd., Rajgarh and branches established by it. As per job description of the District Cooperative Central Bank Limited, Rajgarh, the aforesaid officials of the bank have the power to control, supervision and timely inspection over the primary agricultural credit society limited at issue. Relevant job descriptions are quoted below:
DISTRICT COOPERATIVE CENTRAL BANK MARYADIT, Rajgarh (Biyora) (A) Duties of Branch Manager:
(1) To control entire cash transaction of branch, get the property, pax withdrawal, payment order, payment of allowances (Bhatteon), salary. To maintain agents scroll, FDR and recurring loan approval, payment 5 Cr. Revision No.4752, 4753 & 5183 of 2019 and management of keeping relevant documents in safe custody.
(2) To receive loan applications from primary agriculture credit societies [committees (samitis)], fixing ceiling of loan limits and to be verified through supervisor and forward the same to the inspection committee for approval. To get loan related documents checked/verified and to keep them in safe custody.
(3) To call for monthly meetings of field staff, increase strength of recovery staff, to set targets for recovery of debts, etc., give progress report, get prepared their tour schedules and to provide proper guidance for development to the committees (samitis).
(8) To get compliance of inspection by head office / officers of department.
(9) Compliance of audit note and inspection of primary agriculture credit societies [committee (samiti)] etc., be got done through supervisor.
(11) To control daily activities of employees of the branch.
(12) To keep in safe custody of all account related documents, registers, stock furniture, stationery etc. of the (branch).
(B) Duties of Supervisor:
(1) Supervisor in his circle has to ensure accounts of all cooperative committees (Samitis) including entries of every day transaction done on time and on completion of annual accounting, all the entries have to be checked whether they have been made correctly in the books of account of committees (samitis). Supervisor should also ensure proper training, guidance and cooperation to the workers 6 Cr. Revision No.4752, 4753 & 5183 of 2019 & assistant workers of committee (society) and other staff who are entrusted with accounts work. (5) To inspect the objectives of loan applications and the status of repayment capacity of members of cooperative committee (society). (6) To ensure entries in the Bhoo-Adhikhar Book and rin pustika (loan book) of all borrowers for all kinds of loans advanced and compulsorily sending the same as per instructions in the FORM 'I' and 'J' within time to the Tehsil Office and also completion of land-holding register of members; date-wise.
(7) To carefully inspect / verify before advancement of loan, the purpose for which loan has been asked for and its proper use by the member. If it is found that the loan taken has not been utilized for the purpose for which it was obtained or misused, the information be given immediately to the concerned institution, so that necessary action shall be taken.
(8) Check; whether installment of loan advanced has been determined properly or not. If the installment has not been determined properly, then appropriate suggestion / direction will be given to the concerned committee (samiti) looking to the cost of loan repayment by member for proper fixation of installment and for re-determination of same.
(9) To pay attention towards recovery and to submit report providing suggestions regarding recovery of loan amount from the members/institutions who have not paid installments within the stipulated time. Supervisor has to meet the members who have not repaid loan (defaulters) and make them understand importance of repayment of loan and also obtain undertaking that within a specific period of time repayment shall be made by them. On inspection of every committee (Samiti), supervisor has to specially mention the name of two defaulters whom he has contacted in the Visit Diary.7
Cr. Revision No.4752, 4753 & 5183 of 2019 Supervisor, neither has to bring money himself in any case nor has to bring money with him for depositing in the bank.
(16) Supervisor is required to check/inspect audit report or decide objections to help facilitate in submitting compliance report in the bank and to ensure complete compliance of the directions given by the cooperative department and bank to the officers and workers of the committee (samiti) in his circle.
(17) To look after working of all the society workers and to write inspection report and to read the same in the meeting to as many members as possible and to provide a copy of inspection report to the society workers. Thereafter submit a copy of inspection report alongwith monthly copy, inspection diary to the bank.
(18) Supervisor has to make visits of twenty days and in each visit at least 15 night stays should be there compulsorily.
(20) Supervisor should have to immediately inform about cases of embezzlement and fake (benami) loans to the branch of bank and concerned institutions.
(23) Supervisor is also directed to conduct meeting in the cooperative society under his control / charge and submit the proceedings of meetings at the end of every month compulsorily in the branch concerned.
(24) Inspection of each committee (society) under charge of supervisor; twice in a year will be mandatory and the supervisor has to provide one copy of inspection report to committees (societies) and other branches.
(30) Supervisor in his circle is bound to maintain the register of aforesaid information of each committee (samiti) for perusal / overview at any time -
1. To provide names of overdue members and details of their annual over dues;
8Cr. Revision No.4752, 4753 & 5183 of 2019
2. To provide names of members who have over dues of loan for last two years of each committee (samiti) and the over due balance payable by them.
3. To provide information regarding recovery of over due loan and action taken for recovery.
4. To provide information related to 'well' and 'pump takabi' given to each committee (samiti) and annual information.
5. To provide information related to produce sold and recovery of loan under the linking scheme.
6. To provide information related to subsidy.
7. To maintain contact register.
In addition thereto, complete the work and objectives set by the bank from time to time, and to provide required information with month, date and schedules, statistic sheets etc., within prescribed time period will be mandatory.
Learned counsel submits that a careful perusal of the duties assigned to the branch manager/incharge branch manager and supervisor/incharge supervisor unambiguously and unequivocally suggest that occupants of both the aforesaid posts have to play effective role in the matter of timely inspection, control and supervision. As such, they are directly accountability over the working of the primary agricultural credit society in the matter of preparation of proposals, viz., credit facility, proper maintenance of accounts, cash book, recovery of loans and dealing with funds of the society, etc,. It is a case where main accused, Devkinandan Sharma during this period in apparent collusion with the co-accused persons has committed huge financial embezzlement by making forged entries in the books of accounts and other society records as well evident from the FIR. According to learned public prosecutor, the factual matrix of the case suggests apparent complacency of the accused 9 Cr. Revision No.4752, 4753 & 5183 of 2019 persons/petitioners with the main accused.
Learned counsel also submits that at the stage of 227 or 228 Cr.P.C., the trial Judge while framing charge has undoubtedly power to sift and weigh the material for the limited purpose of finding out whether prima facie case against the accused has been made out or not particularly, regard being had to the fact that the judge while forming an opinion to presume that the accused has committed the offence.
The trial Judge has carefully perused the FIR, statements of witnesses under section 161 Cr.P.C., and documentary evidence placed on record alongwith challan in the matter of embezzlement of huge public money while framing the charges against all accused persons. Hence, there is sufficient ground for proceeding against all the accused persons. Therefore, no interference is warranted in revisional jurisdiction.
6. Heard.
7. The Hon'ble Supreme Court in the case of Union of India Vs. Prafulla Kumar Samal (1979) 3 SCC 4 after adverting to the conditions enumerated in Section 227 of the Code and other decisions, enunciated the following principles:-
"(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 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 10 Cr. Revision No.4752, 4753 & 5183 of 2019 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."
The Hon'ble Supreme Court in the case of Soma Chakravarty Vs. State (2007) 5 SCC 403 has held that:
"The settled legal position is that 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. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. 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. Whether, in fact, the accused committed the offence, can only be decided in the trial.
... ... ...
Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the Court must come to a prima facie finding that there exist some materials therefor. Suspicion alone, without anything more, cannot form the basis therefor or held to be sufficient for framing charge."
8. The scope of sections 227 and 228 of the Code has also been reiterated in the case of R.S. Mishra Vs. State of Orissa (2011) 2 Supreme Court Cases 689. Paragraph 21 quoted below:
"21. As seen from Section 227 above, while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words "If after such consideration". Thus, these words in Section 228 refer to the `consideration' under Section 227 which has to be after taking into account the record of the case and the documents submitted therewith. These words provide an inter-connection between Section 227 and 228. That being so, while Section provides for recording the reasons for discharging an accused, although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the charge is to be framed `after such consideration' and 11 Cr. Revision No.4752, 4753 & 5183 of 2019 therefore, that consideration must be reflected in the order."
9. The Hon'ble Supreme Court in the case of State of Maharashtra and others Vs. Som Nath Thapa and others (1996) 4 SCC 659 has dealt with essential ingredients of criminal conspiracy as defined under section 120A IPC required to be looked into while framing charge under section 228 Cr.P.C., It has been ruled that to establish a charge of conspiracy "knowledge" about indulgence in either an illegal act or a legal act by illegal means is necessary.
However, it is not necessary that all the conspirators must know each and every detail of conspiracy. It is also not necessary that every one of the conspirators takes active part in the commission of each and every conspiratorial acts. The rationale is that criminal acts done in furtherance of a conspiracy may be sufficiently dependent upon the encouragement and support of the group as a whole to warrant treating each member as a casual agent of each act. Therefore, it is not much significance to ascertain the extent of conspiracy committed for determining the liability of criminal conspiracy [Firozuddin Basheeruddin and others Vs. State, 2001 (7) SCC 596 referred to].
It is also settled law that common intention and conspiracy are matters of inference as direct evidence in proof of a conspiracy is seldom available. Nevertheless, the evidence of conspiracy can be proved either by direct evidence or circumstantial evidence as it is not always possible to give affirmative evidence of criminal conspiracy, about the persons who took part in the conspiracy or about the object, and about the manner in which the object of conspiracy is to be carried out. All this is necessarily a matter of inference [Mohd. Arif Vs. State of NCT of Delhi, (2011) 13 SCC 621, referred to].
10. Now in the backdrop of the aforesaid annunciation of law, this Court proceeds to examine the factual matrix in hand. It cannot be overlooked that the complainants in this case are bank employees, viz., R.C.Shrivastava, Branch Manager District 12 Cr. Revision No.4752, 4753 & 5183 of 2019 Central Cooperative Bank Limited, Khujner and Dilip Kumar Chouhan, Assistant Accountant, Legal Cell; Head Office of the District Central Cooperative Bank Limited, Rajgarh. The complaint is primarily based on the vigilance cell report of the bank during the period from 2013-14 to 2015-16 and special audit report for the year 2012-13. As such, it is well evident that regard being had to the job description of the branch manager/incharge branch manager and supervisor / incharge supervisor, the aforesaid bank has direct control, supervision and timely inspection over the day to day working of the primary agricultural credit society constituted to help facilitate implementation of various socio-economic welfare schemes formulated by the State / Central Government including credit facilities, etc., to the agriculturists and its members. The society is required to maintain complete record of its various activities and day to day fiscal transactions. Besides, the entries in respect of borrowers / member-agriculturists to whom Bhoo-Adhikhar Book and rin pustika issued are required to be maintained in the context of credit facilities extended to them. That apart, maintenance of books of accounts is required for proper verification of fiscal transactions. Since the year 2013-14 uptil 2015-16, there has been systematic methodology adopted in making successive false entries in the books of accounts resulting into embezzlement of public funds in fictitious names and misappropriation thereof by the main accused- to the tune of rupees two crores. There is a pervasive control, supervision and regulation of the bank over the activities of the primary agricultural credit society. The bank is also required to conduct regular inspection of such societies.
The allegations in the FIR prima facie suggest that the main accused Devikinandan Sharma the then in-charge manager of primary agricultural credit society in question in a systematic manner has misappropriated public funds by manipulation and fabrication of official record. The involvement of the petitioners as incharge branch manager / incharge supervisor of the bank in the matter of control, supervision and timely inspection contributing tacitly or otherwise in the commission of substantive offence of conspiracy cannot be ruled out. Therefore, at the stage of 13 Cr. Revision No.4752, 4753 & 5183 of 2019 framing of charge, the presumption drawn by the trail judge cannot be overlooked while framing charge under section 228 Cr.P.C., I may hasten to observe that framing of charge by itself does not tantamount to proving the charge and the same is subject to trial and dependent upon quality of evidence placed before the Court to establish the charge of conspiracy on the basis of principles reiterated by the Hon'ble Supreme Court (supra). The judgments cited by learned senior counsel are of no assistance to the petitioners being distinguishable on facts . As a result, the revision petitions sans merit and are hereby dismissed.
Before parting with the case, it is considered apposite to observe that the discussion in the context of charge framed against the petitioners are only for the purpose of deciding the revision petitions and shall have no bearing in the trial.
(Rohit Arya) Judge 07-01-2020 b/-
Digitally signed by M V R BALAJI SARMA Date: 2020.01.08 11:39:20 +05'30'