Gauhati High Court
Bhawani Sankar Begaria And Anr. vs Ratul Dutta on 15 June, 1988
Equivalent citations: 1989CRILJ1069
ORDER Manisana, J.
1. This petition under Section 482, Cr. P.C. arises from an order dt. 28-2-77 of the Judicial Magistrate at Dibrugarh passed in Case No. 1958C of 1974 framing charges under Sections 403 and 409, I.P.C.
2. Facts, - On a complaint made by PW 1 Ranjan Ghose against the present petitioners Bhawani Sankar Bagaria and Nanda Kishore Bagaria, the learned Magistrate issued process for the offences under Sections 120B, 406 and 420, I.P.C. Thereafter, the learned Magistrate, as provided under Section 244, Cr. P.C., proceeded to hear the prosecution and took all evidence produced in support of the prosecution, i.e., the prosecution examined three witnesses. Thereafter, on consideration of the evidence the Magistrate "framed charges against the petitioners under Sections 403 and 409, I.P.C. Hence this petition for quashing the order of framing charges,
3. Mr. J. P. Bhattacharjee, the learned Counsel for the petitioners, has submitted that the learned Magistrate ought to have discharged the accused persons under Section 245, Cr. P.C.; and that the dispute is of a civil nature. Mr. D. N. Bania, the learned Counsel for the opposite party, has submitted that the complaint and evidence as they are on record show that there is reasonable ground for presuming that the petitioners have committed the offences charged against them.
4. Under Section 244(1), Cr. P.C. when, in any warrant case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and make all such evidence as may be produced in support of the prosecution. Under Section 245(1), Cr. P.C., if, upon taking all the evidence referred to in Section 244, the Magistrate considers for the reasons, to be recorded, that no case against the accused has been made out which, if un-rebutted, would warrant his conviction, the Magistrate shall discharge him. Section 246(1), Cr. P.C. provides that, if, when such evidence has been taken, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence he shall frame a charge against the accused.
5. In view of the above provisions, in the present case, it is to be examined whether the evidence of three PWs. if unrebutted, would warrant conviction of the petitioners, or whether there is ground for presuming that the accused has committed an offence.
6. The facts which have been emerged from the reading of evidence of the PWs are that there was an arrangement between the firm and the company that the company would draw cheques on Calcutta Bank in favour of the manager of the Nahartali Tea Estate and the manager would endorse the cheques in favour of the firm; and that the firm would keep the money after encashment; and that whenever the manager made requisition on the firm, the firm would pay the required money. For such an arrangement the firm was given commission of 56 paise per hundred rupees. It took about three (3) weeks to encash the cheques drawn on Calcutta Bank. The company sent three cheques for Rs. 1,10,000/- drawn on Calcutta Bank through the petitioner 1 Bhawani Sankar Bagaria and the manager endorsed the cheques and transferred them to the firm. The United Bank of India, Dibrugarh (which I shall refer to as the "UBI") purchased the cheques under the cheque purchase arrangement made with the UBI and the firm was paid the value of the cheques less commission, interest and collection charges. The firm failed to pay the required money on demand made by the manager. Therefore, the cheques were stopped by the company on the instruction of the manager. The petitioners managed the affairs of the firm. The petitioners have misappropriated the money. At the time of the receipt of the cheques, the petitioners did not have the intention to misappropriate the money and the complainant had no doubt about the conduct of the petitioners.
7. The next question which arises for consideration is whether the above facts constitute offences punishable under Sections 403 and 409, I.P.C. In the present case, under an arrangement the three cheques were endorsed by the complainant in favour of the firm. The UBI purchased the cheques under the cheque purchase arrangement from the petitioners for the value mentioned in the cheques less commission, interest and collection charges. But the Bank at Calcutta did not pay the cheques on the direction of the company to stop the cheques. The petitioners, however, had used the cheques for obtaining or procuring money from the UBI under the cheque purchase arrangement before the cheques were paid by, the Bank at Calcutta apart from the fact that the cheques were stopped. The firm did not pay money although the firm received money by using the cheques. During the argument before this Court, there was much discussion about the liability to the UBI basing on the Indian Negotiable Instruments Act. However, I am not dealing with the question of liability as I am of the view that the question of liability cannot be decided in this petition and that is to be decided in the civil suit which had already been instituted.
8. The order of framing charge has many evil consequences. It substantially affects personal liberty. If the accused is an employee of the Government, he may be placed under suspension. These are some of the examples of evil consequences. For this reason, in my judgment, it is the duty of the Court to consider judicially whether the evidence on record warrant the framing of the charge.
9. Turning to the present case, dishonesty is one of the essential ingredients of offences under Sections 403 and 409, I.P.C. Therefore, there must be evidence of dishonesty. Mere failure i to pay the money or mere non-payment of the money would not amount to dishonesty : Dishonesty is the mental act of fraudulent misappropriation that distinguishes from the civil wrong. In the absence of the mens rea every breach of trust is not criminal breach of trust. A close reading of the evidence of PWs shows that the evidence of dishonesty is lacking in the present case.
10. Mr. D. N. Bania, the learned Counsel for the opposite party, has submitted that the complaint and the evidence on record show that there is ground for presuming that the petitioners have committed the offences charged against them. Mr. Barua has further submitted that the complaint is to be read along with the evidence produced by the prosecution under Section 244 (1), Cr. P.C. to support the prosecution.
11. A perusal of the complaint shows that at least an offence under Section 403, IPC has been made out. But the question which arises for consideration is whether the complaint can be considered at the time of consideration of the charge. At the initial stage, the Magistrate for the issue of process after taking cognizance, the allegations made in the complaint may be considered. But at the time of consideration under Section 245 or 246 whether the accused is to be discharged or the charge is to be framed against him, the Magistrate is to consider the evidence produced by the prosecution in support of the prosecution. The next question which, therefore, arises for consideration is whether the complaint is evidence. Section 273, Cr. P.C. provides that the evidence is to be taken in the presence of the accused or in the presence of his pleader when his personal attendance is dispensed with. The statements made in the complaint were not taken in the presence of the accused or his lawyer. Therefore, the complaint is not evidence. However, the complaint, which was made before the Magistrate, may be used for the purpose of contradiction under Sections 145 and 155(3) of the Evidence Act against the maker of it or for the purpose of corroborating evidence of the maker of it under Section 157 of the Evidence Act. Let me now examine whether the averments made in the complaint corroborate the evidence of PW 1 who made the complaint. A reading of the complaint and evidence show that there is no evidence of PW 1 as regards dishonesty and, therefore, the question of corroboration does not arise.
12. For the foregoing reasons, the impugned order of framing the charge passed by the learned Magistrate cannot be allowed to be sustained. Accordingly, the order of the learned Judicial Magistrate Dibrugarh dt. 28-2-77 passed in case No. 1958C of 1974 is quashed and the accused persons are discharged.
With the said observation and direction, the petition is allowed.