Punjab-Haryana High Court
Dinesh Kumar And Ors vs State Of Haryana on 16 July, 2024
Neutral Citation No:=2024:PHHC:088702
CRR-1342-2021 (O&M)
-1-
112 + 201
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-1342-2021 (O&M)
Date of Decision:- 16.07.2024
Dinesh Kumar and others
....Petitioners
Vs.
State of Haryana and others
...Respondents
CORAM:- HON'BLE MRS. JUSTICE AMARJOT BHATTI
Present:- Mr. H.P.S. Ishar, Advocate
for the petitioners.
Mr. Kanwar Sanjiv Kumar, AAG, Haryana.
Mr. Bhrigu Dutt Sharma, Advocate
for respondents No. 2 and 3.
****
AMARJOT BHATTI, J.
CRM-18547-2024 This is an application filed under Section 482 Cr.P.C. for placing on record copy of FIR No. 115 dated 07.02.2012, challan report under Section 173 Cr.P.C. and reply to application for amendment of charge as Annexures P-4 to P-6.
For the reasons enumerated in the application, the same is allowed. Accompanied documents i.e. Annexures P-4 to P-6 are taken on record, subject to just exceptions.
Main case
1. Dinesh Kumar, Ashok Kumar, Amba Ben, Vinod Kumar and Ramila Ben have filed revision petition against impugned judgment dated 1 of 8 ::: Downloaded on - 23-07-2024 08:47:00 ::: Neutral Citation No:=2024:PHHC:088702 CRR-1342-2021 (O&M) -2- 02.04.2021 passed by learned Sessions Judge, Hisar accepting the revision petition whereby well reasoned order dated 12.12.2019 passed by learned Judicial Magistrate 1st Class, Hisar on application filed by respondent for alteration of charge was dismissed and learned Revisional Court has committed grave error by passing impugned judgment on the revision petition causing serious prejudice to petitioners.
2. Facts of the case are that Ashwani Kumar being Director of Super Seeds Private Limited filed written complaint against Vishwas Bio- Genatic Private Limited and its Directors Dinesh Kumar, Ashok Kumar Chaudhari, Amba Ben and Vinod Kumar Chaudhari with the allegations that complainant company was dealing in development and marketing of good quality hybrid seeds of various crops and they were doing this business in technical collaboration with certain multinational companies. In order to fulfill the requirement of production of seeds, company provided foundation seed, technical knowledge and other support, with understanding that entire production of seed will be monitored by their representative in collaboration with MNCs. Final produce i.e. seeds would be given back to company by said grower/producer at agreed rates. Aforesaid persons claimed that their registered office was situated at Hisar. Dinesh Bhai and Ashok Bhai represented themselves as Directors of company and agreed that they be provided with foundation seed and in return they will hand over the entire produce as per agreed terms, conditions and rate as detailed in FIR. It was further alleged that in January 2010, company paid a sum of Rs. 7 lakhs by cheque as a part of expenses and advance payment to farmers as the end product was to be supplied to 2 of 8 ::: Downloaded on - 23-07-2024 08:47:01 ::: Neutral Citation No:=2024:PHHC:088702 CRR-1342-2021 (O&M) -3- their company. Cheque was duly encashed by accused. Later on, accused persons did not supply even a single pack of seed produced by them from the foundation seed. A surprise visit was made by Director of their company at business place of accused persons on 04.04.2011 and it was discovered that there was no stock of produced seeds in their godown. Rather they were found selling the same in market. Said persons neither returned the produce nor paid back the cash amount received by them through cheque. With these allegations, matter was investigated and ultimately challan was presented in Court.
3. All accused were charge-sheeted under Section 406 of the Indian Penal Code, 1860 (for short 'IPC') Prosecution evidence was concluded. Statements of accused were recorded under Section 313 Cr.P.C. and defence evidence was being recorded when prosecution filed application under Section 216 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.') for amendment of charge with prayer that accused be also charge-sheeted under Section 420 of IPC. Learned Judicial Magistrate 1st Class, Hisar by passing order dated 12.12.2019, Annexure P-2, dismissed the application. Feeling aggrieved of this order, State of Haryana filed revision which was accepted by learned Sessions Judge, Hisar vide impugned judgment dated 02.04.2021. As per this judgment, impugned order dated 12.12.2019 passed by learned trial Court was set aside with direction to decide the application for amendment of charge moved by prosecution while passing fresh order as per law in view of observation made in impugned judgment dated 02.04.2021. Feeling aggrieved of this judgment, present revision has been preferred.
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4. Learned counsel for petitioners argued that filing of application under Section 216 of Cr.P.C. is abuse of process of law and in order to cause harassment to petitioners. Challan was presented long time back and petitioners were charge-sheeted for the offence punishable under Section 406 of IPC. After conclusion of entire prosecution evidence and recording of statements of accused under Section 313 Cr.P.C. when the case was fixed for defence evidence, prosecution filed application for alteration of charge for adding offence under Section 420 of IPC. Facts of case and matter in controversy was rightly considered and appreciated by learned trial Court, as a result, application for amendment of charge was declined vide order dated 12.12.2019, which is Annexure P-2. It is pointed out that apart from self serving statement of complainant, there is no material on record to prove the allegations levelled against petitioners. No document was proved on record to establish the transaction. Even otherwise, no offence under Section 420 of IPC is made out nor there is any such document on record to establish element of cheating. Said reconsideration of amendment of charge as ordered by learned Sessions Judge, Hisar by passing impugned order, would amount to de novo trial. In the absence of any documentary record and merely only on the assertion of complainant, charge-sheet cannot be amended or altered. It is argued that revision preferred by petitioners may be accepted and impugned judgment dated 02.04.2021 passed by learned Sessions Judge, Hisar may kindly be set aside by upholding well reasoned order dated 12.12.2019 passed by learned trial Court.
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5. On the other hand, learned counsel representing State of Haryana and learned counsel representing respondents No. 2 and 3 pointed out that there is no specific order passed by learned Sessions Judge, Hisar for the amendment of charge-sheet. In-fact there is a direction to consider the facts and circumstances of case and to pass fresh order as per law on application for amendment/alteration of charge-sheet. It is argued that all the petitioners wrongly represented themselves to be Directors of Vishwas Bio-Genatic Private Limited. In-fact only Dinesh Kumar, Amba Ben and Urmila Ben were the Directors. All the petitioners wrongly represented themselves before the complainant to be Directors of company and entered into an agreement for supply of produce generated from foundation seeds supplied by complainant company. Petitioners/accused had fraudulent and dishonest intention right from the beginning and all of them cheated complainant company by misappropriating entire produce and huge cash amount of Rs. 7 lakhs. On this account, charge-sheet framed against petitioners/accused requires reconsideration by trial Court as directed in judgment dated 02.04.2021 passed by learned Sessions Judge, Hisar. It is argued that as per provisions of Section 216 of Cr.P.C., Court may alter or add charge at any time before the judgment is pronounced. Therefore, judgment passed by learned Sessions Judge, Hisar dated 02.04.2021 does not suffer from any illegality or irregularity and criminal revision preferred by petitioners/accused may be dismissed.
6. I have considered the arguments advanced by learned counsel for petitioners, learned counsel for State as well as learned counsel for respondents No. 2 and 3. In the case in hand, prosecution along with 5 of 8 ::: Downloaded on - 23-07-2024 08:47:01 ::: Neutral Citation No:=2024:PHHC:088702 CRR-1342-2021 (O&M) -6- complainant filed application under Section 216 of Cr.P.C. for amendment of charge when trial was fixed for defence evidence. There is no doubt about it that charge-sheet can be amended/altered at any stage before pronouncement of judgment. Either prosecution or accused can file application for amendment of charge and in case Court comes to conclusion that charge required to be amended then Court can suo moto amend charge-sheet at any stage before judgment is pronounced.
7. FIR in this case was registered on the written complaint of Ashwani Kumar one of the Director of Super Seeds Private Limited against Vishwas Bio-Genatic Priviate Limited and its Directors i.e. petitioners, who have preferred present revision. All the petitioners were charge- sheeted under Section 406 of IPC and trial in this case proceeded. Thereafter, when the case was fixed for defence evidence, prosecution filed application to amend the charge-sheet by adding offence under Section 420 of IPC. Said application was declined by learned Judicial Magistrate 1st Class, Hisar by passing order dated 12.12.2019 and revision preferred against this order by State of Haryana was accepted by passing impugned judgment dated 02.04.2021, as a result, petitioners/accused have preferred present revision.
In order to frame charge-sheet, facts of case are to be considered. Copy of FIR No. 115 dated 07.02.2012 is Annexure P-4. Facts narrated in FIR clearly indicates that complainant party entered into an agreement with accused and their company to supply foundation seeds of two varieties i.e. Megha and Avtar at the rate of Rs. 20 per kg and farmers rate for procurement was agreed at the rate of Rs. 340 per kg for Megha 6 of 8 ::: Downloaded on - 23-07-2024 08:47:01 ::: Neutral Citation No:=2024:PHHC:088702 CRR-1342-2021 (O&M) -7- and at the rate of Rs. 260 per kg for Avtar and thereafter, final product after processing the same was to be sold in market by complainant company at the rate of Rs. 1000/- per packet of 450 gm. As per complaint, in pursuance of this agreement, technical knowledge was provided for sowing foundation seeds and amount of Rs. 7 lakhs as advance payment to farmers was given by cheque which was duly encashed. It is alleged in FIR that accused persons did not supply even a single packet of seed and on surprise visit, it was found that accused were selling seed in open market.
Offence of cheating is defined in Section 415 of IPC, which runs as under :-
"415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation. - A dishonest concealment of facts is a deception within the meaning of this section."
In order to constitute offence of cheating, fraudulent and dishonest intention is required from the very beginning. In the case in hand, complainant/respondent No. 2 has alleged agreement which was arrived at between the parties but the same was dishonoured by present petitioners. Even otherwise, regarding aforesaid transaction, charge-sheet under Section 420 of IPC cannot be framed simultaneously along with offence 7 of 8 ::: Downloaded on - 23-07-2024 08:47:01 ::: Neutral Citation No:=2024:PHHC:088702 CRR-1342-2021 (O&M) -8- under Section 406 of IPC. Gainful reference can be made to the judgment of Hon'ble Supreme Court of India cited in 2024(2) R.C.R.(Criminal) 73, case titled "Lalit Chaturvedi & Others Versus State of Uttar Pradesh & Another", where in para No. 10, it was observed as under :-
"10. ..... There are decisions which hold that the same act or transaction cannot result in an offence of cheating and criminal breach of trust simultaneously. For the offence of cheating, dishonest intention must exist at the inception of the transaction, whereas, in case of criminal breach of trust there must exist a relationship between the parties whereby one party entrusts another with the property as per law, albeit dishonest intention comes later. In this case entrustment is missing, in fact it is not even alleged...."
8. Thus, considering the facts and circumstances of present case, in my opinion, impugned judgment dated 02.04.2021 passed by learned Sessions Judge, Hisar is not on sound footing and same is accordingly set aside by accepting present revision and upholding order dated 12.12.2019 passed by learned Judicial Magistrate 1st Class, Hisar.
9. Criminal Revision filed by petitioners Dinesh Kumar, Ashok Kumar, Amba Ben, Vinod Kumar and Ramila Ben is accordingly allowed.
10. Pending miscellaneous application(s), if any, stand disposed of accordingly as well.
16.07.2024 (AMARJOT BHATTI)
lalit JUDGE
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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