Orissa High Court
Narendra Chand Mehta vs State Of Orissa on 31 January, 2000
Equivalent citations: 2000(1)ALT(CRI)23, 2000CRILJ2513
Author: P.K. Tripathy
Bench: P.K. Tripathy
ORDER P.K. Tripathy, J.
1. Petitioner is one of the accused persons in G.R. Case No. 315 of 1987 pending in the file of Chief Judicial Magistrate, Cuttack. He has filed this application under Section 482 Code of Criminal Procedure, 1973 (in short 'the Code') challenging the order dated 8-12-1997 of learned Chief Judicial Magistrate who passed that order framing charge against the petitioner for the offences punishable under Section 420, 468, 471 and 409/109, I.P.C.
2. The background facts may be noted in gist. One Ramakant Modi filed a complaint registered as I.C.C. Case No. 15/87 in the Court of Subdivisional Judicial Magistrate (Sadar) Cuttack. He alleged that he booked for a Matador delivery Van worth Rs. 1,02,779.33 paise with M/s. Bajaj Tempo Limited through M/s. Jagannath Motors Pvt. Ltd.. Cantonment Road, Cuttack by producing a Bank draft for the said amount vide the Draft No. 0077776 dated 27-9-1986. Accused No. 1 T.V.S. Mani and accused No. 2 Jackson Das of M/s. Jagannath Motors Pvt. Ltd., assured for delivery of the vehicle within a period of two weeks provided the complainant deposited Rs. 2,500/- towards the transportation charges. According to the complainant, on deposit of Bank Draft with M/s. Jagannath Motors Pvt. Ltd., it was handing over the draft to Bajaj Tempo Limited and was collecting the vehicle from the later who was the supplier of such vehicles. In course of such transaction booked vehicle was being handed over to the person authorised/named in the forwarding letter from M/s. Jagannath Motors though it should have been the practice to authorise the person who deposited the bank draft to receive the vehicle from Bajaj Tempo Limited. He further alleged that when he did not receive the vehicle, made verification about the affair and found that on the recommendation of the above named two accused persons, who had forwarded that draft to M/s. Bajaj Tempo Limited, accused No. 3 Sudhansu Sekhar Das was delivered with a Micro Bus whose price at that time was Rs. 1,38,037.21 paise and therefore, the accused Nos. 1 and 2 not only committed criminal breach of trust with respect to the money deposited by the complainant but also they along with the above accused No. 3 cheated him with respect to the said amount by forging and fabricating documents and in that respect the concerned officer of the Bajaj Tempo Limited (i.e. the petitioner as the Senior Sales Manager) having knowledge about such criminal act of the other accused persons, added and abetted to the commission of the said offences. In that respect, complainant further alleged that during the course of verification he also found similar conspiracy made and similar offences committed relating to delivery of vehicle in another case and therefore, the concerned officers from M/s. Bajaj Tempo Limited are also party to the conspiracy. In that connection, he relied upon the documents which were in his (the complainant's) possession.
3. On receiving the complaint petition and considering seriousness of the allegations made therein learned S.D.J.M. ordered for an investigation in accordance with Sub-section (3) of Section 156 of the Code. After completion of the investigation, a charge-sheet has been filed against the above named accused persons including the petitioner as accused No. 4. So far as the accusation against the petitioner as the Senior Sales Manager of M/s. Bajaj Tempo Limited is concerned, it is stated in the chargesheet that he had knowledge and informations about the tricks applied by the other accused persons in committing the crime. Therefore, the investigating agency treated the petitioner as the abettor of the offences.
4. Shri Ashok Mukherjee, learned senior counsel arguing for the petitioner, has urged that so far as the petitioner is concerned, there is no evidence whatsoever to connect him with the aforesaid crime either as a principal offender or as an abettor. He further argued that from all the materials available in the case diary and the complaint petition, no offence is made out against the petitioner because his connection has not been established in the conspiracy of the accused Nos. 1 to 3. He, thus, argued that keeping in view the settled position of law that charge can be framed only on the availability of a prima facie case petitioner is entitled for a discharge in accordance with the provision under Section 239 of the Code. In that respect, he further submitted that learned Chief Judicial Magistrate without proper assessment of the evidence on record and referring to the two letters which ipso facto do not connect the petitioner with the alleged crime, has wrongly and illegally framed charge against the petitioner. Accordingly, he prayed to quash the impugned order so far as it relates to the petitioner.
5. Learned counsel appearing for the State on the other hand argued that when repetitions of the same type of tricks constituting the alleged offences was practised between M/s. Jagannath Motors Pvt. Ltd. and M/s. Bajaj Tempo Limited in which petitioner was the senior Sales Manager, even if, it is difficult to bring direct evidence to prove connivance of the petitioner but the facts and circumstances circumstantially indicate sufficient reason that petitioner is a party to the said unholy combination. She further argued that keeping in view the language used in Section 240 of the Code a charge can be framed if there is a valid presumption from the materials available in the case record that the offender has committed the offence as alleged and the order of the trial Court in framing charge should not be interfered in exercise of inherent power of this Court. Accordingly, she prayed to reject the application under Section 482 of the Code.
6. Before dealing with the rival contentions, as aforesaid, it is but proper to quote the charge against the petitioner. The trial Court has framed the charge in the following manner :-
I, Sri H.C. Mohapatra, LL.B., Chief Judicial Magistrate, Cuttack hereby charge you (1) Sri Narendra Ch. Mehta as follows:-
Firstly :- That Sri Jackon Das and Sri Trichur Viswanath Subramaniam in furtherance of their common intention on 27th September, 1986 at M/s. Jagannath Motors (P) Ltd., Cantonment Road, Cuttack cheated Sri Ramakanta Modi by dishonestly inducing him to pay Rs. 1,02,772.33 paise towards the cost of one F-305 Matador Delivery Van and Rs. 2,500/- towards the cost of transaction and incidental charges of the said vehicle and they failed to deliver the same to Sri Ramakanta Modi and you at M/s. Bajaj Auto Ltd. Akurdi, Pune abetted them to commit the said offence and that your thereby committed an offence punishable under Section 420/109, I.P.C. and within my cognizance; Secondly:-That Sri Jackson Das and Sri Trichur Viswanath Subramaniam in furtherance of their common intention on 27th September, 1986 at M/s. Jagannath Motors (P) Ltd., Cantonment Road, Cuttack, forged the order form, letter for authorising inspection, collection and transportation and application for registration of vehicle, intending that those shall be used for the purpose and cheating and you at M/s. Bajaj Auto Ltd., Akurdi, Pune abetted them to commit the said offence and that you thereby committed an offence punishable under Section 468/109, I.P.C. and within my cognizance; Thirdly :- That Sri Jackson Das and Sri Trichur Viswanath Subramaniam in furtherance of their common intention on 27th September, 1986 at M/s. Jagannath Motors (P) Ltd., Cantonment Road, Cuttack fraudulently used the order form, letter for Authorising Inspection, Collection and Transportation and application for registration of vehicle which they knew or had reason to believe at the time of their use those to be forged documents and you at M/s. Bajaj Auto Ltd. Akurdi, Pune abetted them to commit the said offence and that you thereby committed an offence punishable under Section 471/34, I.P.C. and within my cognizance; Fourthly : That Sri Jackson Das and Sri Trichur Viswanath Subramaniam in furtherance of their common intention on 27th day of September, 1986 at M/s. Jagannath Motors (P) Ltd. Cantonment Road, Cuttack being the servants of the said establishment and in such capacity entrusted with Rs. 1,02,772.33 paise towards the cost of one F-305 Matador Delivery Van and Rs. 2,500/- towards the cost of transaction and incidental charges for the delivery of the said vehicle, which they converted to their own use and you at M/s. Bajaj Auto Ltd., Akurdi, Pune abetted them to commit the said offence and that you thereby committed an offence punishable under Section 409/109, I.P.C. and within my cognizance; And I hereby direct that you be tried by the said Court on the said charges.
Dated this 8th December, 1997.
Sd/- H.C. Mohapatra Chief Judicial Magistrate, Cuttack.
7. The law relating to discharge or framing of charge respectively under Sections 239 and 240 of the Code is well settled. The trial Court upon hearing the parties and consideration of the materials available in the case diary i.e., the statements and documents available therein, if is of the opinion that such materials are sufficient to presume that the accused has committed the complained offence or any other offence triable under Chapter XIX of the Code and that such Court is competent to try such offences, then the trial Court shall frame charge accordingly.
8. Presumption regarding commission of an offence in the above context means existence of a prima facie case. The term 'prima facie case' in the context means whatever evidence is available and accepted at the stage of consideration of charge if will be accepted on its face value then such evidence is sufficient to constitute the ingredients of the offence for which the charge is framed and if unrebutted such evidence may be sufficient to warrant a conviction. At the stage of consideration of charge, therefore, a trial Court is required to apply his judicial mind to the facts and evidence available in the case record to eliminate the possibility of improbability and absence of availability of a prima facie case and thereafter to act accordingly either in framing charge or discharging the alleged offender. At the stage of framing of charge, trial Court is not required to weigh and shift the evidence to find the contradictions and to act upon that. At that stage, it is not the duty of the trial Court to think of possible defence of the accused and to grant the necessary benefit out of the same to the accused. In otherwords, at that stage the trial Court is to find out if there exists a prima facie case, in the aforesaid manner, and if so he is to frame charge. A valid presumption to probabilise implication of the offender with the alleged offence is sufficient to frame charge. In such a case an unfounded presumption should not be regarded as a valid presumption. Therefore, at that stage, it is not a routine formality which the Magistrate is to fullfil by making a superficial analysis of the materials in the case record but to properly apply his judicial mind and to take a decision according to the judicial conscience and thereafter to pass appropriate order.
9. It appears from the lower Court record and the impugned order that learned C.J.M. while framing charge only put stress on two documents i.e., the two letters thinking that the contents of those letters are sufficient to constitute ingredients of the offences under which that charge was framed against the petitioner in the above quoted manner. The relevant portions of the finding of the learned Chief Judicial Magistrate is quoted tor the sake of reference :-
Gone through the record. While going through the record I have my opportunity to peruse the statement of witnesses recorded by the I.O. in course of investigation and the contents of documents though it has been revealed this petitioner having no direct participation in the offence as alleged by the informant, material on the record clearly goes to show that the petitioner N. C. Meheta who was then an employee of M/s. Bajaj Tempo Limited from 1985 to 22-2-88 has some active participation in the transaction in view of the two letters as stated above issued by him and signed by him.
(Underlined is by this Court to put emphasis).
9A. At the stage of hearing, this Court could not trace out which were those two relevant letters referred to by the learned C.J.M. for taking the aforesaid view. Accordingly, as per the order No. 9 dated 30-1 -1999 of this Court, learned C.J.M. was asked to furnish xerox copy of those two letters and to send the same along with the L.C.R. In compliance to that order, on 11-2-1999, learned C.J.M. sent the xerox copy of those two letters. The first letter is dated 5-10-96 and reads as hereunder :-
Bajaj Tempo Ltd.
BT/MKTG/CTCK/109280 5-10-86 Mr. Sudhansu Sekhar Dash, C/o Rajkishore Dash, Qr. No. M. III/69-Madhuban At PO Paradip Port, Dist. Cuttack-754 142 (Orissa) Dear Sir,
We are in receipt of your letter dt. 25th Sept. 1986 and the Banks letter No. MS. LHV OR 84/86, 1996 dt. 24-9-86. We are looking into the matter and a further reply will follow in due course.
Thanking you, Yours faithfully, for BAJAJ TEMPO LIMITED Sd. N. C. Mehta Sr. Manager-Marketing.
ccto :-
Manager, Canara Bank, Paradip-754 142 Orissa.
The second letter dated 2-1-1987 reads as hereunder :-
BAJAJ TEMPO LTD.
BT/KTG/CTCK/ Regd. A/D 2-1-1987 110704 Advocate Sitanu Kumar Dey, Bakhrabad, Cuttack-2 (Orissa) Dear Sir, We are in receipt of your letter dt. 17-12-86 addressed to our office at 2nd Floor, Joshi Building, FL Gomes Road,-Vasco-da-Gama, Goa duly redirected by them to us. DD No. A 0077776 dt. 27-9-86 for Rs. 1,02,779.33 was forwarded by M/s. Jagannath Motors P. Ltd., Cantonments Road, Cuttack to our Office at Vasco-da-Gama, Goa vide their letter No. A: 85-86/ 1477 dt. 27th Sept. 86 towards the cost of one F-305 Matador Micro Bus 2400mm WB to be supplied to Mr. Sudhansu Sekhar Dash, Qr. No. 111/69 At Madhuban, PO Paradeep, Cuttack. The order form for the supply of F-305 Micro Bus 2400 WB duly completed and received at our Vasco-da-Gama, Office is signed by the said Sudhansu Sekhar Dash in which the above said DD has been mentioned. You may kindly appreciate that when Mr. Sudhansu Sekhar Dash has made a statement in the order form that he was enclosing the said Bank Draft towards the cost of F-305 Micro Bus, we had no reason to doubt that statement. We acted upon it and supplied the vehicle in the normal course of business to the said customer. We are enclosing a xerox copy of Cuttack Dealer covering letter No. A: 85-86/1477 dt. 27th Sept. 86 under which the said order form was received by us and also a copy of our bill No. R-37490 dt. 6-10-86. You will appreciate that we are absolutely innocent and we acted upon the request of the customer in the normal course of the business. The bank draft on the face of it does not say anything regarding the party who purchased it. You may like to advise the client to take up the matter with M/s. Jagannath Motors and Mr. Sudhansu Sekhar Dash, who appear to have misrepresented the facts to us. Yours faithfully, for BAJAJ TEMPO LIMITED, Sd. N. C. Mehta Dy. Divl. Manager-Marketing.
encl : aa.
cc to :
Mr. Sudhansu Sekhar Dash, Qr. No. 111/69 At Madhuban PC Paradeep, Cuttack, Orissa.
10. After making a synopsis of the facts, contentions advanced by both the parties and the position of law relating to the guidelines for framing of charge, this Court has already referred to relevant portion of the impugned order which was the basis for the learned Magistrate to frame charge against the petitioner and in that context, as above, the concerned two letters have been quoted. A bare perusal of the aforesaid materials goes to show that the aforesaid two letters neither speak of any conspiracy or abatement as alleged against the petitioner. Learned Additional Government Advocate\ during the course of hearing strenuously argues that there are several other materials which are existing in the case diary and that he has gone through the same but she was unable to place a chart of the same. Learned C.J.M. has also ominibously made observations that on perusal of the case record there are sufficient other materials to connect the petitioner with the alleged crime in the aforesaid manner for which a charge has been framed. It is true that at the stage of framing of charge, the trial Court is not called upon to make a detailed documentation of the materials which are available against the accused but what he is required to do is to peruse the same and to pass a reasoned order by indicating the materials in gist and substance. In this case, the trial Court, as mentioned above, referred to the above quoted two letters but did not indicate what other materials are there to presume in the manner for which charge has been framed against him. Under such circumstances, this Court finds that it is a fit case where the impugned order of charge should be quashed, of course, by granting the prosecution another opportunity to place their further argument before the trial court to substantiate the allegations in support of framing of charge.
11. In the result, the impugned order in framing charge against the petitioner is set aside and the Criminal Misc. case is allowed and the matter is remitted back to the Court below to hear both the parties in accordance with provisions under Section 239 and 240, Cr.P.C., and to pass appropriate order in accordance with law relating to framing of charge or discharge so far as it relates to the petitioner. Since the matter is pretty old, it is expected that learned C.J.M. who is a senior and experienced officer will do justice by taking up the matter as expeditiously as possible and preferably within a period of one month from the date of receipt of the L.C.R. and the copy of this order. Registry is directed to send back the L.C.R. with a copy of this order within a week hence.
The Criminal Misc. case is accordingly allowed. Petition allowed.