Delhi District Court
Moinujaffar Khan vs State Of Nct Of Delhi on 5 August, 2024
IN THE COURT OF SH. LOVLEEN, ADDITIONAL SESSIONS
JUDGE-03, SAKET COURTS, NEW DELHI
DLSE010010272024
Crl. Rev. No. 40/2024
MUEENUZZAFAR KHAN
S/o Mohd. Zafar Khan
R/o H.No. F-02, 1st Floor, Plot No. A-9,
Okhla Vihar, Jamia Nagar,
New Delhi.
.....Revisionist
Versus
1. STATE OF NCT OF DELHI
Through Station House Officer,
PS Jamia Nagar.
2. IMRAN AKMAL
S/o Irshad Ahmad
R/o 98, Okhla Jamia Nagar,
New Delhi - 110025
...Respondents
Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 1/14
Date of institution : 01.02.2024
Date of reserving the order : 05.08.2024
Date of pronouncement : 05.08.2024
JUDGMENT
1. This is a revision petition under section 397 Cr.PC preferred against the order dated 29.11.2023, passed by the Metropolitan Magistrate-08, South-East District, Delhi in Criminal case no. 8237/2022 titled State Vs. Nadeem & Anr. arising out of FIR No. 473/2021 PS Jamia Nagar. The said FIR was registered at the instance of the respondent No. 2 Imran Akmal. The revisionist is one of the persons chargesheeted in the said FIR.
GROUNDS
2. The grounds cited by the revisionists against the impugned orders are as under :
A). Because there is no prima facie case against the revisionist under Section 406 IPC.
i. that the revisionist was not trusted with the concerned property (scotty).
ii. that the allegedly misappropriated property i.e., the scotty has been recovered, thus there exists no case of criminal misappropriation.
iii. that there is no role of the accused revisionist, neither was the scotty entrusted to him nor was it recovered from him. iv. that the complainant did not contact the revisionist once from the date of the meet to the lodging of the FIR (6 days) Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 2/14 which clearly indicates that he had not trusted his property with the revisionist and did not believe the revisionist to have any role in the property not being returned in atimely manner. v. The revisionist neither requested for the scotty nor drove it. In fact, he is unaware as to for what purpose did Mr. Nadeem request it and what did he do thereafter.
vi. There exist no allegations against the revisionist in the complaint.
B). Because there does not exist a prima facie case even after invoking Section 34 of the IPC. In 'Dani Singh V. State of Bihar, (2004) 13 SCC 203", the Hon'ble Supreme Court had observed that:
"'Common intention' implies prearranged plan and acting in concert pursuant to the prearranged plan. Under this Section a preconcert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. Though common intention may develop on the spot, it must, however, be anterior in point of time to the commission of offence showing a prearranged plan and prior concert.".
In the present case, there is nothing on record to prove that there was any common intention of the revisionist and Mr. Nadeem to misappropriate the property. The revisionist neither requested for the scotty nor drove it. In fact, he is unaware as to for what purpose did Mr. Nadeem request it and what did he do thereafter.
C). Because Ld. Trial Court erroneously ignored that the Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 3/14 complaint or the final report does not allege any premediated plan between the revisionist and Mr. Nadeem. D). Because the Hon'ble Supreme Court of India in the case titled "Asoke Basak V. State of Maharashtra, (2010) 10 SCC 660"
"21. It is plain that for constituting an offence of criminal breach of trust, the following ingredients must be satisfied:
(a) a person should have been entrusted with property, or entrusted with dominion over property.
(b) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or wilfully suffer any other person to do so;
(c) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
xxx
23. Admittedly, in the present case, the said amount was deposited by the complainant company with MSEB and there is nothing in the complaint which may even remotely suggest that the complainant had entrusted any property to the appellant or that the appellant had dominion over the said money of the complainant which was dishonestly converted by him to his own use, so as to satisfy the ingredients of Section 405 IPC In the absence of any such specific averment demonstrating the role of the accused in the commission of the offence, we find it difficult to hold that the complaint, even ex facie, discloses the commission of an offence by the appellam under Section 409 1PC punishable under Section 406 IPC Applying the law laid down by the Hon'ble Apex Court to the Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 4/14 present case and in absence of any averment demonstrating the role of the Revisionist in the commission of the offence, the Revisionist is liable to be discharged.
E). Because the Hon'ble Supreme Court of India in the aforementioned case of "Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660" also adjudicated the matter under Section 34 IPC and held:
"24. We shall now examine whether the appellant is vicariously liable for the aforementioned offence with the aid of Section 34 IPC. The essence of liability under Section 34 IPC is the existence of a common intention. A common intention implies prearranged plan and acting in concert pursuant to the prearranged plan In Ramarwami Ayyangar v. State of T.N. [(1976) 3 SCC 779 1976 SCC (Cri) 518], this Court had observed that the essence of Section 34 IPC is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. It is true that to attract Section 34, no overt act is needed on the part of the accused if he shares the common intention with others in respect of the ultimate criminal act, which may be done by anyone of the accused sharing such intention. Nonetheless, Section 34 IPC clearly envisages preconcert or preplanning which may even develop on the spur of the moment but such plan must precede the act constituting the offence. It is equally true that it may not be possible in every case to have direct evidence of a common intention and it may have to be inferred from the facts and circumstances of each case. XXX
26. Thus, in order to attract Section 34 IPC, the complaint in question must, prima facie, reflect a common prior concert or planning amongst the appellant and other accused. Having carefully gone through the complaint, we are of the view that it does Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 5/14 not reveal any preconcert or preplanning whereby all the accused had decided to misappropriate the said amount. It is pertinent to note that MSEB, in whose coffers the said amount was credited, has not been arraigned as an accused in the complaint. Be that as it may, having come to the conclusion that the ingredients of Section 409 IPC are not satisfied against the appellant, the question of his acting in concert with others does not arise. We are therefore, convinced that Section 34 IPC is not attracted against the appellant."
In the present case as well, nothing in the chargesheet reveals any preconcert or preplanning or any involvement of the Revisionist and thus the Revisionist must not be made to suffer by representing/defending himself in a case wherein no prima facie case is made out against him.
F). BECAUSE in "Deepak Gaba v. State of Uttar Pradesh, 2023 SCC OnLine SC 3", the law with regard to criminal breach of trust was explained as under by the Hon'ble Apex Court:
"13. Section 406 of the IPC prescribes punishment for breach of trust which may extend to three years or with fine or with both, when ingredients of Section 405 of the IPC are satisfied For Section 496 of the IPC to get attracted, there must be criminal breach of trust in terms of Section 405 of the IPC 14. For Section 405 of the IPC to he attracted, the following have to be established:
(a) the accused was entrusted with property, or entrusted with dominion over property:
(b) the accused had dishonestly misappropriated or converted to their own use that property, or dishonestly used or disposed of that property or wilfully suffer any other person to do so, and (c) such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 6/14 mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust.
15. Thus, criminal breach of trust would, inter alia, mean using or disposing of the property by a person who is entrusted with or otherwise has dominion Such an act must not only be done dishonestly, but also in violation of any direction of law or any contract express or implied relating to carrying out the trust".
In the present case, the Revisionist has neither used nor disposed the concerned property and thus the charges have been erroneously framed against him. In the instant case, materials on record fail to satisfy the ingredients of Section 405 IPC. The Complaint does not directly refer to the ingredients of Section 405 IPC and does not state how and in what manner, on facts, the requirements are satisfied. G). Because in the present case, looking at the allegations in the Complaint on the face of it, it is clear that no allegations are made attracting the ingredients of Section 405 IPC. Even if all the allegations in the Complaint taken at the face value are true, the basic essential ingredients of dishonest misappropriation or criminal breach of trust are missing. H). Because the Hon'ble Supreme Court in the case titled "State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 :
1977 SCC (Cri)" has placed importance on the liberty of a person wrongly accused and the duly of the Ld. Court while framing charges:
"10. On the other hand, the decisions cited by learned counsel for the respondents in Vadilal Panchal v. D.D. Ghadigaonkar [AIR 1960 SC 1113: 1960 Cri LJ 1499:
Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 7/14 62 Bom LR 915] and Century Spinning & Manufacturing Co. v. State of Maharashra [AIR 1972 SC 545: 1972 Cri LJ 3291972 SCC (Cri) 495] show that it is wrong to say that at the stage of framing charges the court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming the commission of the offence by the accused. As observed in the latter case, the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the material warrants the framing of the charge. It cannot blindly accept the decision of the prosecution that the accused be asked to face a trial. In Vadilal Panchal case, Section 203 of the old Code was under consideration, which provided that the Magistrate could dismiss a complaint if after considering certain matters mentioned in the section there was in Ais judgment no sufficient ground for Proceeding with the case. To an extent Section 327 of the new Code contains an analogous power which is conferred on the Sesame Court. It was held by this Court, while considering the true scope of Section 203 of the old Code that the Magistrate was not bound to accept the result of an enquiry or investigation and that he met apply his judicial mind to the material on which he had to form his judgment. These decisions show that for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses a comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible."
In light of this, it is humbly submitted that not discharging the Accused Revisionist will lead to grave injustice and will constrain the liberty of the Revisionist even when there is no prima facie case in favour of the prosecution.
Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 8/14 I). Because the Revisionist has been implicated in the matter merely because he was present at the wrong place at the wrong time.
J). Because the main accused i.e., Mr. Nadeem is a proclaimed offender, and it appears that his alleged misdoings are being blamed on the Revisionist.
K). Because the Revisionist in an innocent law-abiding citizen of India.
3. A prayer has been made to set aside the impugned order dated 29.11.2023.
4. The prayer has been vehemently opposed by the respondents. It is argued on behalf of the respondents that the revisionist has been correctly charged u/s 406/34 IPC vide the impugned order.
DISCUSSION
5. This court has considered the records as well as the submissions made by the parties.
Law On Framing Of Charge And Discharge
6. Before delving into the merits of the case, it would be appropriate to refer to the settled law on framing of charge, since the essence of the arguments raised on behalf of revisionist is that the no charge could have been framed against him.
7. Recently, the Hon'ble Delhi High Court in the case of Varun Bhatia vs. State and Another 2023 SCC OnLine Del 5288, has discussed Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 9/14 the different facets of the law in this regard in the following fashion :-
".................................................................................. ................................................................................... "10.The law on charge is contained under Sections 227 and 228 of Cr. P.C. for offences triable in Courts of Session and in cases of Trial of Warrant Cases by Magistrates instituted upon a police report, Sections 239 and 240 of Cr.P.C. deals with the same. For reference, Section 239 and 240 of Cr. P.C. are extracted as under:
239. When accused shall be discharged.--
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
240. Framing of charge.--
(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried"
11. The Hon'ble Supreme Court in case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 has considered the powers of Courts in respect of the framing of charge and discharge and the fact that a prima facie case would depend on the facts and circumstances of each case. The relevant principles as enunciated in the said decision read as under:
"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(i) The Judge while considering the question of framing the charges under Section 227 Cr. P.C. 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. The test to determine prima facie cases would depend Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 10/14 upon the facts of each case.
(ii) 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.
(iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the 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.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but 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.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. 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.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal..."
(Emphasis supplied)
12.The Hon'ble Apex Court in the case of Ghulam Hassan Beigh v. Mohd. Maqbool Magrey, (2022) 12 SCC 657, after discussing several judicial precedents, has summed up the law regarding framing of Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 11/14 charge as under:
"27. Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice..."
(Emphasis supplied)
13. Thus, the fundamental basis for forming an opinion regarding the framing of charges revolves around determining whether there is adequate evidence on record to establish, prima facie, the commission of an offence. A 'prima facie' case would imply that there must be enough material or evidence that, when viewed at its face value, gives rise to a reasonable suspicion that the accused may have committed the alleged offence.
14. Another important factor to be considered is the sufficiency of material on record. The Courts have to see as to whether the material placed on record is sufficient enough to establish a prima facie case against an accused and justify initiation of trial against an accused.
................................................................................. ................................................................................."
DECISION
8. Coming to the facts of this case, it must be noted that the informant (de facto complainant) Imran Akmal states, at the time of registration of FIR, that at the relevant, date, time and place he was having Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 12/14 'Nashta'. At that time, his acquaintance namely accused Nadeem (already declared an absconder) arrived there along with his friend Moin (the present revisionist). Said Nadeem asked the informant for keys to his (informant's) scooty, stating that he shall return within 30 minutes. The informant waited till evening (for the return of his scooty) and then called said Nadeem on his mobile phone. Nadeem did not pick his call, but soon after he called back and told the informant that 'we' are going to Panipat and shall return in the night. Informant waited for 06 days but Nadeem did not return his scooty. Hence, the informant got the FIR registered u/s 406 /34 IPC.
09. During the course of investigation, police could not trace out the said Nadeem and as such he was declared an 'absconder'. The said scooty also remains untraced (as per charge sheet). The present revisionist was charge sheeted u/s 406/34 IPC.
10. As per FIR, the informant had handed over his scooty to said Nadeem (since absconding) for 30 minutes. The informant called (over telephone) the said Nadeem only when the scooty was not returned within 30 minutes. The informant complains (vide the FIR) that said Nadeem has not returned his scooty. The informant does not state that he handed over keys to his scooty to the present revisionist nor does he state that the present revisionist accompanied the said Nadeem when he (Nadeem) borrowed his scooty. This means that the scooty was entrusted by informant to Nadeem only. Had it been a joint entrustment, the informant would have 'called' the present revisionist as well for return of his scooty.
11. The only "incriminating material" against the present revisionist in the statement given by informant in the FIR is that when said Nadeem called him back over telephone, he (Nadeem) informed that 'we' Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 13/14 are going to Panipat. The informant does not clarify the identity of the other person constituting the said 'we' either in the FIR or in any supplementary statement recorded u/s 161 CrPC. Admittedly, prosecution does not have any other material which corroborates its claim that the present revisionist was the other person who went to Panipat with said Nadeem. In the absence of any clarity as to the identity of the other person, this Court does not find it appropriate to hold that the word 'we' used by the informant in the FIR pertains to the present revisionist.
12. No other material is available on the charge sheet to support the claim of the prosecution that the present revisionist was actually entrusted, the said scooty by the informant at the relevant time. In such circumstances, no charge could have been framed against the present revisionist u/s 406 IPC.
13. For the aforesaid reasons, the impugned order dated 29.11.2023 passed by the Ld. Trial Court is hereby set aside. Revisionist Mueenuzzafar Khan stands discharged from the charge sheet arising out of FIR 473/2021 PS Jamia Nagar.
14. TCR be sent back along with the copy of this judgment.
15. Revision file be consigned to Record Room as per rules.
Digitally signed by LOVLEEN Date: LOVLEEN 2024.08.05
Dictated and Announced
17:07:28
+0530
in open Court on 05.08.2024 (Lovleen)
ASJ-03 (South East),
Saket Courts, New Delhi
Crl. Revision. No. 40/2024 Monujaffar Khan Vs. State of NCT of Delhi 14/14