Madhya Pradesh High Court
Smt. Rabia Ahmed Khan vs The State Of Madhya Pradesh Judgement ... on 4 April, 2014
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HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Revision No. 402/2014
Smt. Rabia Ahmed Khan and others
Vs.
State of Madhya Pradesh
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As Per : G.S.Solanki, J.
Shri Imtiyaz Hussain, Advocate for the applicants.
Shri Pankaj Dubey, Advocate for the respondent.
_________________________________________________________________________
ORDER
(4.4.2014)
1. This revision has been filed by the applicants under Section 397/401 of the Cr.P.C. being aggrieved by order dated 14.2.2014 passed by Special Judge (Lokayukta), Jabalpur in S.T. No. 94/2011 whereby the charges for the offence punishable under Sections 420/120B, 411 of the IPC have been framed against the applicants.
2. The facts, in short, giving rise to this revision are that the applicants along with other co-accused persons have been charge sheeted by way of filing supplementary charge sheet for the offence punishable under Sections 420, 201, 203, 204, 217, 218, 406, 409, 120-B, 467, 468, 471 and 474 of the IPC. It is not in dispute that previously other co- accused persons have already been tried in Special Case No. 94/2011 before the Special Judge, appointed for trial of the cases arising out of the cases investigated by the Economic Offence Wing.
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3. As per prosecution, it is alleged against the applicants that one Kshitij Dubey, Dy. Manager (Operation) of Axis Bank, Model Road Branch, Jabalpur entered into a conspiracy with Amil Shevre, Branch Head, Axis Bank, Jabalpur, Vikash Saxena, Manager, Axis Bank, Jabalpur, Ajay Pandey, Business Development Executive, Axis Bank, Chhindwara and Satish Babu Lodhi, Business Development Executive, Axis Bank, Damoh thereby they misappropriated a huge amount of Rs. 50 Crores, which is alleged to have been deposited by Apex Bank, Bhopal. It is further alleged that co-accused Wahid Siddiqui, Javed Ahmad Khan, Jyotsna Pare, Anil Kumar Gupta, B.D. Bairagi and Phool Miyan also entered into a conspiracy of misappropriation of the aforesaid huge amount of Rs. 50 Crores. In furtherance of aforesaid conspiracy, a fictitious account was opened in the name of Narmada Vikas Pariyojana Phase III and out of the aforesaid sum of Rs. 50 Crores, which were deposited in the saving accounts, FDRs of Rs. 4 Crores were prepared out of which O.D. Facility of Rs. 3,40,00,000/- was taken. It is further alleged that 13 Bank Drafts of Rs. 25 Lacs were prepared in the names of different persons on the instructions of Javed Khan, Jyotsna Pare and Wahid Siddiqui and Azhar Siraj. A sum of Rs. 10 Lacs was unauthorizedly transferred through pay order in the name of Sarika Naik Dubey, wife of Kshitij Dubey. It is further alleged that Rs. (3) 2,05,50,000/- and Rs. 3,57,50,000/- were withdrawn by using O.D. facility against the FDRs of Rs. 1,52,00,000/- and Rs. 4 Crores. The aforesaid amount was misappropriated in the names of different accused persons. It is further alleged that one of the accused has impersonated himself as S.S. Siddiqui and committed forgery and withdrew a huge amount of Rs. 4 Crores for preparation of FDRs and further took O.D. facility without any sanction. The allegations against the applicants are that all these applicants are also involved in the aforesaid conspiracy and they are the beneficiaries of a sum of Rs.1,82,000/-, which is alleged to have been deposited by co-accused Javed Ahmad and the applicants are related to Javed Ahmad.
4. The learned Special Judge (Lokayukta), on appraisal of evidence on record, framed the aforesaid charges against the applicants, hence this revision.
5. Learned counsel for the applicants has submitted that as per prosecution's case itself, applicant Kalam Ahmad was cited as witness in the previous special case No. 94/2011 and being a witness, he cannot be prosecuted for the answer which he gave in a criminal trial. Such privilege has been provided under Section 132 of the Indian Evidence Act. There is nothing on record to show that the applicants ever met Kshitij Dubey, Ajay Pandey or Firdaus Siddiqui and they entered into a conspiracy of misappropriation of (4) amount, which was deposited by the Axis Bank. It is further submitted that the applicants have no reason to believe that the amount deposited in their Bank accounts was the stolen property.
6. Learned counsel for the respondent has supported the order passed by trial Court and submitted that though applicant Kalam Ahmad was examined before trial Court in Special Case No. 94/2011 but he was not at all compelled to give any statement before the trial Court. In these circumstances, the proviso to Section 132 of the Evidence Act will not be attracted to this case. It is further submitted that since Kalam Ahmad gave his statement voluntarily in his cross-examination without any compulsion that he was present at the time of seizure of huge amount of Rs.7,92,000/-. He admitted that drafts of some amount were encashed by him. He further admitted that there were six drafts in the names of his family members. Thus, the involvement of applicant Kalam Ahmad in the conspiracy of misappropriation of the aforesaid amount is prima facie on record. The other applicants are also beneficiaries and draft of Rs. 1,82,000/- (each) was deposited in their accounts. Since there is sufficient evidence on record to the effect that the other co-accused persons misappropriated the aforesaid amount and committed criminal breach of trust, the same is designated as the stolen property and such (5) properties have been found in the accounts of the applicants, therefore, the trial Court has not committed any illegality in framing the aforesaid charges against the applicants.
7. I have heard the learned counsel for the parties at length and perused the case diary along with the statement of applicant Kalam Ahmad (Annexure P-7), which was recorded before the trial Court in Special Case No. 94/2011. Section 132 of the Indian Evidence Act, 1872 reads thus :-
132. - Witness not excused from answering on ground that answer will criminate.- A witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any suit or in any civil or criminal proceeding, upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate, such witness, or that it will expose, or tend directly or indirectly to expose, such witness to a penalty or forfeiture of any kind:
Proviso.- Provided that no such answer, which a witness shall be compelled to give, shall subject him to any arrest or prosecution, or be proved against him in any criminal proceeding, except a prosecution for giving false evidence by such answer.
It is clear that the proviso to Section 132 of the Indian Evidence Act would be applicable in the cases where the Court has compelled or forced the witness to answer inspite of his objection. If the witness has voluntarily answered the question, the protection of proviso to Section 132 cannot be (6) given to him and the said answer would be admissible against him on a criminal charge. On perusal of deposition of Kamal Ahmad, it reveals that he was cited as Panch witness of seizure memo, which was executed by Javed Khan. There is nothing in his deposition to the effect that he was compelled or forced by the Court to state anything before the Court. On the contrary, he voluntarily disclosed the facts before the Court. In these circumstances, the protection given under Proviso of Section 132 of the Indian Evidence Act is not applicable to his case.
8. So far as involvement of the applicants in the conspiracy of misappropriation of the aforesaid huge amount or committing offence of any cheating is concerned, considering the statements of the witnesses along with the statement of applicant Kamal Ahmad and other material on record, there is prima facie evidence on record that applicant Kamal Ahmad was involved in the conspiracy of cheating or misappropriation of the amount, which was found in his account. Thus, there is strong prima facie case against him under Section 420/120-B of the IPC.
9. So far as the applicant Nos. 1, 2, 3 and 4 are concerned, there is no iota of evidence on record that they ever met Kshitij Dubey, Ajay Pandey or Firdaus Siddiqui etc. in order to commit any cheating or misappropriation of amount, thus, there is no prima facie case against applicant (7) Nos. 1 to 4 under Section 420/120-B of the IPC. However, there is sufficient evidence on record that the amount found in the accounts of all the applicants was the amount transferred by co-accused persons by committing criminal breach of trust, therefore, the aforesaid amount comes under the definition of stolen property and same has been found in possession of the applicants, thus, there was a reason to believe that the amount found in the accounts of the applicants, which was not deposited by them, was the stolen property, thus there is strong prima facie case against all the applicants under Section 411 of the IPC.
10. In view of the aforesaid discussion, this revision is partly allowed. The charge framed against applicant Nos. 1 to 4 under Section 420/120-B of the IPC is hereby set aside. Applicant Nos. 1 to 4 are discharged from the charge under Section 420/120-B of the IPC, however, the charge framed against applicant Nos. 1 to 4 under Section 411 of the IPC is hereby affirmed. The charges framed against applicant No. 5 Kamal Ahmad under Sections 420/120-B, 411 of the IPC are hereby affirmed.
(G.S.Solanki) Judge PB