Rekha Srivastava vs State Of Delhi on 10 May, 2022

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Delhi High Court - Orders

Rekha Srivastava vs State Of Delhi on 10 May, 2022

1. The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C.") has been filed on behalf of the petitioner seeking setting aside of order dated 7th October, 2016 passed by learned Additional Sessions Judge, Patiala House Courts, New Delhi (hereinafter "ASJ") in Criminal Revision No. 8515/16 titled "Rakesh Kumar Bhasin vs. State of NCT of Delhi".

2. By the impugned order dated 7th October, 2016 the learned ASJ set aside the order dated 30th November, 2013, of the learned Metropolitan Magistrate-03, New Delhi District, Delhi, (hereinafter "MM") whereby the petitioner was discharged under the FIR No. 89/05 under Section 420/120B of the Indian Penal Code, 1860 (hereinafter "IPC") and the petitioner is before this Court assailing the same.

3. Learned counsel for the petitioner submitted that the petitioner has Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 1 of 12 Signing Date:24.05.2022 18:00:51 been falsely implicated in the instant matter and that accused A.K. Dutta in conspiracy with the respondent no. 2 have played fraud upon the company of the petitioner. It is submitted that the respondent no. 2 filed a complaint to the Deputy Commissioner of Police alleging that company of the petitioner alongwith accused A.K. Dutta cheated it by placing a false purchase order in the name of a South African Buyer. The respondent no. 2 also made a complaint to SHO, Police Station Tuglak Road, upon which the investigating SHO gave a report that no case can be made out against the petitioner.

4. It is submitted that FIR no. 89/05 was also lodged by the respondent no. 2 and vide order dated 23rd November, 2005, learned ASJ granted an interim bail to the petitioner. It is submitted that the SHO in the concerned FIR had stated that the petitioner herself is the victim and there is no iota of evidence found against her. It is submitted that even in the chargesheet filed thereafter, it was found that no evidence was found against the petitioner, and she was exonerated.

5. It is submitted that a supplementary chargesheet was filed whereby the petitioner was falsely implicated without any evidence. Vide order dated 30th November, 2013, the learned MM discharged the petitioner of the charges under Section 420/120B of the IPC, which was a well-reasoned and proper order, however, the respondents approached the learned ASJ assailing the order and learned ASJ passed the impugned order setting aside the discharge of the petitioner.

6. Learned counsel appearing on behalf of the petitioner submitted that the impugned order is bad in law, illegal and is liable to be set aside. There was no material or evidence on record to make out a case against the Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 2 of 12 Signing Date:24.05.2022 18:00:51 petitioner. It is submitted that the revisional court has to exercise its powers sparingly and subjecting the petitioner to trial without evidence is a serious issue. The learned MM had passed a well-reasoned order after proper consideration of the arguments as well as the material on record. The impugned order suffers from errors apparent on record resulting in grave miscarriage of justice.

7. It is submitted that the prosecution relied upon report received through email from Executive Director, Interpol Pretoria to establish its case, however, no submission was made by the prosecution that the certificate under Section 65B of the Indian Evidence Act, 1872 will be filed at the latter stage of the proceeding and despite passing of three years, the certificate u/s 65B Indian Evidence Act,1872 was not even filed at the Appellate stage. Hence, the evidence remained inconclusive.

8. Learned counsel for the petitioner submitted that at the stage of framing of charge, the concerned Court has to only satisfy itself whether the prima facie case is made out or not and it may not proceed on the basis assumptions and presumptions. The learned MM had to limit himself to evidence and material on record.

9. It is submitted that matter is purely of civil nature and has been given criminal colour by the respondent no.2. The learned ASJ failed to appreciate that the transaction between the parties was purely of civil nature because the written contract has been breached by supplying inferior quality goods at higher prices. There is no criminality in the transaction inter se the parties and hence, the petitioner is deserved to be discharged.

10. Learned counsel for the petitioner relied upon the judgements of G. Sagar Suri vs. State of UP, 2000 (2) SCC 636, Hari Prasad Chamarai vs. Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 3 of 12 Signing Date:24.05.2022 18:00:51 Bisiiun Kumar Surekha and Ors., (1973) 2 SCC 823, Aneeta Hada vs. Godfather Travels & Tours Pvt Ltd. (2012) 5 SCC 661, in support of his arguments.

11. Per Contra, Mr. Raghuvinder Varma, learned APP for the State vehemently opposed the instant petition and submitted that there is no error in the impugned order dated 7th October, 2016. It is submitted that the learned ASJ has well appreciated the material on record as well as the evidence produced before it and then passed the order setting aside the order of the learned MM.

12. It is submitted that the documents relied upon by the prosecution before the Courts below were in fact admissible and duly appreciated by the learned ASJ, in light of the judgment of a Coordinate Bench of this Court in Kundan Singh vs. State, Crl A 71/14 decided on 24 th November, 2015. It is submitted that the certificate under Section 65B of the Indian Evidence Act, 1872, could have been filed at any stage and was not required to decide the fate of the case solely on the production of the certificate.

13. It is submitted that there is sufficient prima facie material on record to frame charges against the petitioner under Section 420/120B of the IPC, there is no illegality in the impugned order and the instant petition is liable to be dismissed for being devoid of any merit.

14. Heard learned counsel for the parties and perused the record.

15. The operative part of the impugned order is reproduced hereunder:-

"14 In this case, there are certain documents, which are relied by the prosecution but the trial court had stated that those are inadmissible documents as they were the extracts of computer generated records and devoid of certificate u/sec.65-B Indian Evidence Act. As far as this Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 4 of 12 Signing Date:24.05.2022 18:00:51 argument is concerned, after the law laid down by Hon. High Court of Delhi in Kundan Singh Vs. State, CrI. A. 71/14 dated 24.11.2015, the prosecution/party can file that certificate u/sec.65-B IEA at any stage. So, disregarding those documents as inadmissible, at the stage of charge was not correct.

15 Moreover, whether the intention to cheat, was at the inception, or not, is a matter of fact which is to be established during trial.

16 There is sufficient material on record for proceeding case u/sec.420 IPC read with Sec.l20B IPC."

16. The impugned order noted that there was evidence, by way of email generated documents that were placed before the learned MM but were not appreciated by it since, the supporting certificate, as per the requirement of the Indian Evidence Act, 1872 under Section 65B was not furnished by the prosecution. It is found that the observations of the learned ASJ were limited to the extent of admissibility of the documents and did not comment upon the fact whether these documents prima facie made out a case against the petitioner.

17. The SHO report dated 5th August, 2005, which is appended to the petition as Annexure P-15, indicates that upon the complaint filed by the respondent no. 2, the concerned SHO did not find any infringing material to show that the petitioner intended to cheat the respondent no. 2. It is a fact that to constitute an offence under Section 420 of the IPC, there is a pre- requisite of intention or prior knowledge for dishonestly inducing a person. This intention or prior knowledge is relevant from the very beginning of the alleged offence and has to be proved to have been existing since the very inception. The offence of cheating cannot not be made out against a person Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 5 of 12 Signing Date:24.05.2022 18:00:51 if the intention to deceive is not existing at the time of initiation of the alleged offence. The intention to deceive, dishonestly induce or cheat, hence, becomes irrelevant if not existing from the stage of inception and subsequently infringing acts are found to be done by the accused. In the instant case the petitioner placed the purchase order with the respondent no. 2, with the intention to trade with the foreign buyers from South Africa. At this very stage, there could not have been any intention to cheat as was also found, after preliminary investigation, by the concerned SHO.

18. The provisions under the Cr.P.C. with respect to charge are reproduced 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.

"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, [or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such 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 Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 6 of 12 Signing Date:24.05.2022 18:00:51 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."

19. The Hon'ble Supreme Court as well as various High Courts have interpreted the provisions in the understated judgements, that have effectuated the principles to be considered while a Judge is framing charge or discharging an accused: -

In Union of India vs Prafulla Kumar Samal, (1979) 3 SCC 4, the Hon'ble Supreme Court laid down the principles regarding the considerations before the concerned Court while framing of charges and discharging an accused: -

"10. 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.

Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 7 of 12 Signing Date:24.05.2022 18:00:51

(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 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."

Hon'ble Supreme Court in Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217, has laid down as under:

"13. ... At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.

"15. Considering the scope of Sections 227 and 228 CrPC, in Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 :

(2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986] , the Supreme Court held as under : (SCC pp. 477-79, paras 17 & 19) "17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 8 of 12 Signing Date:24.05.2022 18:00:51 offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly.

This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction.....

19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."

16. After referring to Amit Kapoor [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 :

(2013) 1 SCC (Cri) 986] , in Dinesh Tiwari v. State of U.P. [Dinesh Tiwari v. State of U.P., (2014) 13 SCC 137 : (2014) 5 SCC (Cri) 614] , the Supreme Court held that for framing charge under Section 228 CrPC, the Judge is not required to record detailed reasons as to why such charge is framed. On perusal of record and hearing of parties, if the Judge is of the opinion that there is sufficient ground for presuming that the accused has committed the offence triable by the Court of Session, he shall frame the charge against the accused for such offence."

Hon'ble Supreme Court in Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 12 has observed as under:-

"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 Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 9 of 12 Signing Date:24.05.2022 18:00:51 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 broad 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 (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609]).

In Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715, Hon'ble Supreme Court reiterated as hereinunder:-

"14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 10 of 12 Signing Date:24.05.2022 18:00:51 need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."

20. The above laid principles suggest that the concerned Court framing charges shall limit itself to the prima facie consideration of material and evidence on record. The Judge need not be satisfied on the question of whether the trial, when conducted, will lead to the conviction or acquittal of the accused, but the consideration needs to be whether the accused is to be sent for trial at the first instance or not, based on the material on record. An investigation into the offence and elaborate appreciation of evidence is not required, and is rather discouraged, at the stage of framing of charges and only the material prima facie establishing a case against or in favour of the accused is what is significant. Moreover, as per the requirement of Section 227 and 228 of the Cr.P.C., the learned Judge shall consider whether "sufficient grounds" exist or not and such consideration shall be supported by material on record. Hence, to adjudicate upon the question whether the impugned Order is liable to be set aside, it is pertinent to evaluate whether the learned MM was satisfied that even a prima facie case was not made out against the present petitioner.

21. Upon perusal of the order dated 30th November, 2013, it is found that the learned MM observed that the buyers in South African were genuine buyers, whereby, the petitioner was a member and in fact, it was the petitioner and the company, where she was a Director, that suffered losses while dealing with the respondent no. 2. This Court is of the view, that at the Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 11 of 12 Signing Date:24.05.2022 18:00:51 stage of framing of charge, the learned MM upon appreciation of the material on record passed a well-reasoned order observing that the offence of cheating was not made out against the petitioner herein. In the absence, of a certificate under Section 65B of the Indian Evidence Act, 1872, as well as any other material document, the prosecution was not able to prima facie make out a case against the petitioner under Section 420/120B of the IPC.

22. Keeping in view the facts and circumstances, arguments advanced on behalf of the parties, and upon perusal of the impugned order dated 7th October, 2016 as well as the order dated 30th November, 2013, this Court is inclined to set aside the impugned order dated 7 th October, 2016, since the order of the learned MM dated 30th November, 2013, was a well-reasoned order passed upon appreciation of the evidence of record.

23. Accordingly, the order dated 7th October, 2016 passed by learned Additional Sessions Judge, Patiala House Courts, New Delhi in Criminal Revision No. 8515/16 titled "Rakesh Kumar Bhasin vs. State of NCT of Delhi", is set aside and the petitioner is hereby, discharged of the offences under Section 420/120B of the IPC.

24. Pending applications, if any, also stand disposed of.

CHANDRA DHARI SINGH, J MAY 10, 2022 Aj/Ms Signature Not Verified Digitally Signed By:DAMINI YADAV CRL.M.C. 86/2017 Page 12 of 12 Signing Date:24.05.2022 18:00:51

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Delhi High Court - Orders