Madhya Pradesh High Court
Satya Narayan Verma vs The State Of Madhya Pradesh on 5 September, 2019
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 2416/2018
Satya Narayan Verma
Vs
State of M.P.
-----------------------------------------------------------------------------------
Shri Manish Datt, learned senior counsel with Shri T.P. Jaiswal
for the petitioner.
Shri Samarth Awashty, learned G.A. for the respondent/State.
----------------------------------------------------------------------------------
ORDER
(05.09.2019) Petitioner has filed this revision petition under Section 397/401 being aggrieved by the order dated 11.05.2018 passed by 2 nd Additional Sessions Judge in S.T. No. 7/2017, whereby learned 2 nd Additional Sessions Judge, Umaria framed the charges under Sections 420 and 409 read with Section 511 of IPC against the petitioner.
2. Case of prosecution in brief is that CEO Janpad Panchayat Maanpur has filed a written complaint to Incharge Police Station Maanpur District Umariya stating that under the scheme of MANREGA, present petitioner (Assistant Engineer) along with co- accused person who were functioning as Sarpanch, Secretary, Sub Engineer have sanctioned the work of Med Bandhan in the field of Bhurelal Gond and Raja Gond, but in physical the work was not done. The completion certificate of said work has been issued and bill has also been submitted for withdrawing of payment, therefore, it is alleged against the petitioner/accused and co-accused persons that they have cheated the State and tried to misuse of appropriate fund of 2 M.Cr.C. No.2416/2018 Government. On the basis of same, case was registered against the petitioner/accused and other co-accused. During the investigation, statements of witnesses have been recorded. After the completion of investigation, charge sheet has also been filed before the trial Court. Thereafter, learned trial judge framed the charges against the petitioner/accused under Sections 420 and 409/511 of IPC.
3. Learned counsel for the petitioner submits that the order of framing of charges passed by the learned trial Judge against the petitioner is illegal, incorrect and improper. The learned trial Judge has erroneously recorded the finding against the petitioner/accused. There is no document to show that the petitioner/accused has committed any cheating. Ingredients to constitute the offence are completely missing. The learned trial Judge has framed the charges without considering the material available on the record. The finding, recorded by the learned trial Court is contrary to the provision of law. At the time of framing of charges, it is the bounden duty of a Court to ascribe whether the necessary ingredients to constitute the alleged offence are satisfied or not? Framing of charge is very serious step in criminal trial and affects the personal liberty of the accused, this should not be lightly done. The charges should be framed only if there is sufficient material on record to bring home the guilty of the accused. At the stage of framing of charges, the Court has to consider the material with a view to find out if there is ground for prosecuting the accused and at the said stage, the prosecution states is not expected as gospel truth even if it is opposed to common sense or the broad probabilities. He fur the submits that in 3 M.Cr.C. No.2416/2018 the present case there is no role of present petitioner and in departmental inquiry he has been exonerated by the authority. Petitioner is an Assistant Engineer and his signature takes into the documents after verification conducted by Sub Engineer. Supervision of work belong to Sub Engineer, thus he is not involved in the alleged misappropriation in any manner. Moreover fund has not been released in favour of any person, so, no offence is made out against the petitioner. In support of his contention he has relied the judgment in the case of P.S. Rajya Vs. State of Bihar reported in (1996) 9 SCC 1.
4. Learned counsel for the respondent/State submits that there is prima facie material available on the record and this case is also based on the documentary evidence, therefore, no interference is warranted in the impugned order.
5. Heard both the parties and perused the record.
6. It is evident from the record that learned trial judge framed the charges against the petitioner-accused under Section under Sections 420 and 409 read with Section 511 of IPC, so it must be seen that what is the evidence against the petitioner-accused. By filing this instant revision petition, petitioner prays for discharging him from the aforesaid offences. Section 227 of Code Of Criminal Procedure, 1973 deals with discharge and same reads 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.4 M.Cr.C. No.2416/2018
7. If Court finds that there is sufficient material is showing that accused committed an offence then Section 228 of Code Of Criminal Procedure, 1973 comes into role, provision is also quoted as under:
"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, and thereupon the Chief Judicial 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 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."
8. Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others (AIR 1990 SC 1962) has held as under:-
"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well-settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging 5 M.Cr.C. No.2416/2018 therefrom taken at their face-value disclose the existence of all the ingredients constituting the alleged offence. The Court may 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."
9. Further, in the case of Union of India Vs. Prafulla Kumar Samal and another (AIR 1979 SC 366), the Hon'ble Supreme Court again has held as under:-
"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. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece 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."
10. Hon'ble Apex Court in the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another [(2008) 2 SCC 561] has held as under:-
6M.Cr.C. No.2416/2018
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that state, even strong suspicion founded on material which leads that court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
11. Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi, (2005) 1 SCC 568 has held as under:-
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
12. The Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has held as under:-
"4...........It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam 7 M.Cr.C. No.2416/2018 Singh Punjabi v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial. The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:
"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the 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. (emphasis supplied)
13. The Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & others reported in 2010(1) M.P.J.R. (SC) 36 has held as under:-
"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied.
11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being 8 M.Cr.C. No.2416/2018 so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
14. Before embarking on the facts of the case, it would be necessary to read first the relevant provisions of IPC, charges under Sections 420, 409/511 of IPC has been framed against the petitioner, same are quoted as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
15. Further, under IPC, the definition of cheating provides in Section 415, which is also reproduced as under:- 9 M.Cr.C. No.2416/2018
"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".
16. In order to apply the Section 415 of IPC in this case, following ingredients has to prove:-
i. Fraudulent or dishonest inducement.
ii. Dishonest inducement pursuance to delivery of any property.
17. On reading of Section 420 of IPC, it appears that it deals with offence of cheating and dishonestly inducing delivery of property, its essential ingredients are:-
"(i) cheating;
(ii) dishonestly inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens rea of the accused at the time of making the inducement."
18. Before applying the Section 409 of IPC, consideration of Section 405 of IPC is necessary. Bare reading of Section 405 IPC shows that the accused is either entrusted with a property or acquires dominion over the property and misappropriates the same dishonestly or converts the same for its own use or dishonestly uses or disposes of that property. In criminal breach of trust, the person comes into possession of a property honestly but he develops dishonest intention subsequent to his acquiring dominion over the property by way of 10 M.Cr.C. No.2416/2018 entrustment or otherwise. To constitute the offence of criminal breach of trust following ingredients must be fulfilled:-
(i) There has to be some property.
(ii) The said property must be entrusted to someone with or without any contract.
(iii) The dominion of the property was shifted from complainant to the accused.
(iv) The accused person refuses to return/restore the said property to the rightful owner when demanded.
(v) The accused having misappropriated/converted to its own use/disposed the property refuses to restore the property to the complainant/lawful owner.
19. When offence of criminal breach of trust committed by any public servant or by banker merchant or agent then they shall be punished under Section 409 of IPC.
20. Section 511 of IPC provides the punishment for attempting to commit offence punishable by the IPC for which express provision for its attempt is not made by this Code.
21. Now this Court shall examined the facts of the present case in view of the provisions as mentioned above:-
22. It is evident from the record that at the time of incident, petitioner/accused was posted as an Assistant Engineer and work of Medh Bandhan was sanctioned for the field of Bhurelal Gond and Raja Gond. According to prosecution, work of Medh Bandhan was not completed even then co-accused Sarpanch and Secretary filed the bill for final payment and Petitioner/accused and other co-accused gave a certificate of completion of work and sanctioned the bill for final payment. Thereafter, a complaint was made by villagers that in this regard. Inquiry was conducted and payment was withheld. Learned counsel for the petitioner submits that there is no material available 11 M.Cr.C. No.2416/2018 against the present petitioner/accused which infer the present petitioner involved in any conspiracy. The complainant and secretary of the panchayat have given assurance to the petitioner/accused that the work has been completed and only those site were shown to the petitioner/accused where the work was completed. In departmental inquiry, petitioner/accused was acquitted by the inquiry officer as inquiry officer found that there is no malafide intention or breach of duties with respect to present petitioner. But, it is evident that government sanctioned amount in the scheme of MANREGA for various work in the village. Petitioner/accused is an Assistant Engineer. Therefore, it is part of duty of him to make supervision of work and only after completion of the same, sanction final bill of payment. In the case, it is evident that the work of Medh Bandhan in the filed of Bhurelal Gond and Raja Gond has not been done even has not been commenced, but the petitioner/accused gave the certificate of completion of work and also sanctioned final bill. Although no amount is withdrawn in this regard. During the investigation the statement of Bhurelal Gond has been recorded and he clarified that he has no knowledge about the work of Medh Bandhan in the field of him and his brother Raja. Thereafter, it came to his knowledge that Gram Panchayat prepared a proposal for work of Medh Bandhan in the field of him but no work was done even then final payment was sanctioned then he made complaint of the same to th higher authorities. Therefore, it is evident that there is prima facie material seen to misuse of appropriate public money. As above discussed, the charge can only be 12 M.Cr.C. No.2416/2018 framed upon grave suspicion. At the time of framing of charge each and every fact can not be appreciated in the detail. In the present case Thus it appears that there is prima facie case is made out against the petitioner/accused as being a public servant he has sanctioned amount for that work which is neither started nor completed. Since the payment has not been made to anyone as same was stopped by the authority, prima facie no error found to frame the charges under Section 409/511 of IPC. So far as offence under Section 420 of IPC is concerned it appears that when the dishonestly inducement is done with regard to any person to deliver any property from him, offence under Section 420 of IPC would prima facie attract in the case. Though, in the case, payment has not been done but act of inducement is found. Therefore no interference is warranted in the impugned order. Pronouncement relied by the petitioner's counsels is different set of facts and does not applicable in this case as the circumstances of the case.
23. Another ground which is taken by the petitioner that in departmental inquiry he has been exonerated by the Higher Authority and his role was not found in the alleged act. In the case of Lalit Popli Vs. Canara Bank reported in (2003) 3 SCC 583,the Supreme Court has held as under:-
"16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and 13 M.Cr.C. No.2416/2018 the rules governing the enquiry and trial are conceptually different."
24. Therefore, in view of the forgoing discussion this Court found that there is prima facie sufficient material available on the record which shows that the petitioner/accused issued a completion certificate of said work and sanctioned of final amount which was not done ever, he made inducement with respect to State by his act to get the amount sanctioned for the work, even it had not begin. Thus, prima facie charges framed by the trial Court is found correct.
25. Accordingly this petition is dismissed.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.07 12:54:14 +05'30'