Orissa High Court
Nitaipada Das vs Sudarsan Sarangi And Anr. on 17 June, 1991
Equivalent citations: 1991CRILJ3012
ORDER S.C. Mohapatra, J.
1. Informant the Managing Trustee of Haridas Thakur Trust, Swargadwar, Puri is the petitioner in this application for revision against order of the Trial Court discharging accused in exercise of power under Section 239 Cr. P.C.
2. On 24-8-1984, petitioner filed an application before officer-in-charge, Sea Beach Police Station Puri with copies to Superintendent of Police, Puri and Director General of Police, Orissa alleging that to facilitate availability of Prasad (food offered to deity) to visitors and Sadhus, the trust purchases rice and paddy in bulk quantities. Accused who was a regular visitor offered to arrange paddy being supplied from Berhampur. Accused is a Sanskrit Pandit in a College at Puri. He made petitioner to believe that his brother-in-law is a big rice dealer and he can supply fine rice at a cheaper cost. Since accused was a frequent visitor to the math and was a Sanskrit Pandit taking prasad very often, petitioner relied on his version and paid a sum of Rs. 4,500/- as advance during January, 1983. Accused did not bring paddy and stopped visiting the math. On 24-10-1983, petitioner called accused to Math and when petitioner threatened to start a police case against him, accused wrote a letter to one Kishore Padhi of Berhampur to supply paddy and requested petitioner to collect the paddy from Kishore. Being sure that petitioner would send his man to Berhampur, accused came back after a few hours to the Math and handed over a telegram requesting to defer the programme of sending a man to collect the rice. Not believing the accused, petitioner sent Kshetramohan Mohanty of the Math to Berhampur. On return from Berhampur, Sri Mohanty informed that Kishore Padhi is not brother-in-law of the accused but is known to him. Accused did not contact him for supply of rice. Sri Padhi denied to have received any amount from accused as well as knowledge of any telegram. As accused took advance of Rs. 4,500/- inducing to supply fine rice at cheap rate from Berhampur as his brother-in-law is a big rice dealer and to avoid the situation produced a telegram which was not sent by Kishore Padhi, petitioner prayed for an investigation into the matter. Application has several endorsements beginning from 2-9-1984. Last endorsement is on 23-1-1986. However, receiving an order from Superintendent of Police, Puri the application was treated as First Information Report and investigation was initiated on 23-1-1986. First Information Report was sent to court on 24-1-1986. Investigating Officer visited the Math on 23-1-1986 at 1 p.m. and found informant absent having gone to Calcutta. Other inmates were not able to speak anything about the incident. He closed the diary for the day till 15-2-1986 when he was transferred. New Investigating Officer opened the case diary on 17-4-1986. On 23-4-1986 he recorded statement of informant and others. At last on 18-9-1986 accused was arrested and was forwarded in custody to court. On 19-9-1986 charge sheet was submitted. On 1-10-1986 cognizance was taken. When the case was fixed for consideration to frame charge, accused submitted to discharge him. On 31-1-1987, learned counsel for accused submitted that there is no material to proceed against the accused. In the impugned order, learned Sub-divisional Judicial Magistrate has discharged the accused on the finding material portion of which reads as follows :--
"On perusal of the C.D. and other material it is seen that the date of occurrence is 14-1-83 and the FIR was lodged on 24-1-86 though it is written on 24-8-84. There is a long delay of three years which is not explained by the prosecution. There is no document on record to show that the complainant paid Rs. 4,500/-to the accused in Jan. 1983. The accused is a Lecturer in Sanskrit College and the Complainant is a Managing Trustee, and it cannot be believed that without any receipt he paid such a huge amount to the accused. Prima facie there is no material on record showing cheating by the accused to the complainant. In the light of above circumstances, I do not find any reason to frame charge against the accused Under Section 420, IPC. Hence the accused is discharged".
Thus, it is seen that on account of delay and absence of receipt for Rs. 4,500/, learned Magistrate did not accept prima facie case of cheating.
3. No right of appeal is provided against, an order in exercise of power Under Section 239, Cr.: P.C. Accordingly, in exercise of power of revision, reappreciation of fact is not possible unless appreciation of fact by the Trial Court is unreasonable or material facts have not been considered which would completely destroy the finding of fact. Keeping this in mind, it is to be examined whether impugned order can be sustained.
4. It is always to be remembered that at the stage of framing charges, evidence of prosecution has not yet commenced. Accordingly, a Magistrate is to consider only the sufficiency of ground for proceeding against the accused on a general consideration of materials placed before him by the Investigating Police Officer. Truth, veracity and effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. Same standard in appreciation of evidence as would be applied at trial to find whether accused is guilty is not exactly to be applied at the stage of consideration of framing a charge. At that stage even a very strong suspicion founded on materials before Magistrate which leads him to form a presumptive opinion as to existence of factual ingredients constituting the offence alleged, may justify the framing of charge against the accused in respect of the commission of that offence. See AIR 1980 SC 52 : (1979 Cri LJ 1390) (Supdt, and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja).
5. If this standard is applied, absence of explanation for delay of three years cannot be a valid ground. This is also factually incorrect. Informant alleges that in January, 1983 he advanced Rs. 4,500/-. On account of non-receipt of paddy and accused having stopped his visit to Math, suspicion arose. Informant called for the accused on 24-10-1983. On threat being given by informant, accused wrote a letter to Kishore Padhi that day. It is true that written report of informant was lodged on 24-8-1984. When informant would be examined he would be in a position to explain the delay. It is clear that such written report was not treated as FIR immediately. On receipt of direction of Superintendent of Police, written report was treated as FIR when Investigating Officer is examined or some person from office of Superintendent of Police is examined, the delay can be explained by the prosecution. Accordingly, learned Magistrate was not justified in giving importance to delay at that stage. A perusal of the FIR indicates that various dates beginning from 27-8-1984 are found on the margin. Learned Magistrate has not applied his mind at all.
6. On account of absence of a receipt taking into consideration status of informant and accused and amount involved, learned Magistrate disbelieved the transaction which is the basis for the offence. This is factually incorrect. Seizure list dated 23-4-1986 shows that there is a receipt dated 14-1-1983. Case diary also contains such a receipt. Whether the receipt is to be accepted is a question to be considered at trial. If the receipt is accepted to have been granted by accused, he can explain the circumstance of writing such a receipt. However, absence of a receipt being factually incorrect, order cannot be sustained since such a finding which is based on error of record weighed with learned Magistrate to discharge the accused.
7. Finding that prima facie there is no material showing cheating is also not correct. Story given in First Information Report, statement of informant and Kshetramohan Mohanty and others along with receipt, letter and other documents seized satisfy the ingredients of cheating. In absence of any material to disbelieve the statements as well as the documents at this stage, strong suspicion is created in mind that accused might have committed this offence.
8. I have grave doubt in my mind that delay in treating the written report as FIR absence of investigation in some points which I need not elaborate and the impugned order might have been on account of some extraneous considerations. So far as impugned order, I direct the Registrar to place the matter before Hon'ble Chief Justice for initiating administrative proceeding if satisfied against the presiding officer. I leave it to the police administration and State Government to deal with the conduct of various police officers.
9. In the result, application is allowed. Learned Magistrate is directed to frame a charge in accordance with law and complete the trial as early as possible. Accused may be permitted to be represented if applied for till his presence is required by court.