Orissa High Court
Dr. Muralilal Gupta vs Republic Of India on 4 May, 2005
Equivalent citations: 100(2005)CLT513, 2005CRILJ3784, 2005(II)OLR170, 2005 CRI. L. J. 3784, (2005) 36 ALLINDCAS 685 (ORI), 2006 (1) CURCRIR 235.2, 2005 (36) ALLINDCAS 685, (2005) 31 OCR 615, (2005) 100 CUT LT 513, (2005) 2 ORISSA LR 170, (2006) 1 CURCRIR 235(2)
Author: A.K. Parichha
Bench: A.K. Parichha
JUDGMENT A.K. Parichha, J.
1. This is an application under Section 482, Cr.P.C. for quashing the charge framed against the petitioner in S.P.E. No. 1 of 1998 of the Court of the learned Additional Chief Judicial Magistrate-cum-Special Judge (Vig.), Bhubaneswar.
2. The petitioner was charge-sheeted under Section 120-B/420, IPC in SPE No. 1 of 1998 in the Court of learned Additional Chief Judicial Magistrate-cum-Special Judge (Vig.), Bhubaneswar. After entering appearance in that case, the petitioner filed an application under Section 239, Cr.P.C. for his discharge. Learned Addl. Special Judge (CBI), Bhubaneswar, by order dated 2.5.2003 rejected the said prayer of the petitioner and framed charge under Section 120-B/420, I.P.C. Aggrieved, the petitioner has filed the present application to quash the said order dated 2.5.2003.
3. Mr. D. Panda, learned counsel appearing on behalf of the petitioner submits that the materials produced by the prosecution do not constitute any case under Sections 120-B/420, IPC and therefore, rejection of the prayer for discharge of the petitioner was unjust and illegal. It is submitted that the financial and administrative power of the concerned company was entirely vested with the General Manager and the petitioner was no way concerned with the administrative and financial aspect of the company and hence, there was no occasion for him to commit the offences in respect of the funds of the company. It is also submitted that the concerned company simply floated advertisement for recruitment of technical hands and there was no guarantee in the advertisement that all the candidates applying for the job would be appointed. Therefore, non-appointment of the informant and some other candidates can never amount to offences under Sections 120-B/420, IPC. Learned counsel for the petitioner further argued that the petitioner and the concerned company undertook all necessary steps for processing the applications of the candidates and even completed the medical examination etc. but the candidates could not be appointed and sent abroad because visa was not granted to them and since grant of visa is within the power of the petitioner or the company, they cannot be held liable for. the offences of cheating or criminal conspiracy. The sum and substance of the argument offered by Mr. Panda is that the facts, materials and circumstances available in the case diary in no way constitute offences under Sections 120-B/420, IPC and therefore, the impugned order is legally unsustainable. In support of the contentions, he placed reliance on the cases of State (Delhi Administration) v. V.C. Shukla and Anr. , Union of India v. Prafulla Kumar Samal and another ; Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra ; Dileswar Balu Kurane v. State of Maharashtra (2002) 22 OCR 295.
4. Mr S.K. Padhi, learned Sr. Standing Counsel (CBI), on the other hand contended that the materials available in the case diary reveal a strong prima facie case against the accused-petitioner and so, the impugned order rejecting the prayer for discharge of the petitioner is fully justified. In support of his contention. Mr. Padhi placed the statements of the witnesses, namely, Partha Sarathi Barik, Gouri Sankar Sahu and Sahabaz Khan and the documents available in the case diary and also relied on the case of Suresh v. State of Maharashtra, :
Section 239, Cr.P.C. contemplates the situation when accused shall be discharged and Section 240, Cr.P.C. speaks about the situation in which charge can be framed against an accused. The Sections read thus :
"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."
5. On a conjoint reading of both the Sections, one can clearly see that the Magistrate has to consider the police report, the documents sent with it and after making examination of the accused, if necessary and hearing the parties, if it feels that the materials are not sufficient to establish even prima facie case for the alleged offences, it shall discharge the accused and shall record the reasons for doing so. On the other hand, if the materials do reveal a prima facie case against the accused and the learned Magistrate feels that there is ground for presuming that the accused has committed the offence alleged, it shall frame charge against the accused and in doing so, it need not record the reasons. What are the material which the Magistrate should examine, why those materials are to be perused, and what should be standard of scrutiny, have been clarified by the apex Court in various judicial pronouncements including the cases, which have been cited by the parties in the present case. In Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra (supra), the apex Court held that at the stage of framing of charge, the Court is not debarred from applying its judicial mind for consideration whether or not there is ground for presuming commission of offence by the accused as the framing of charge substantially affects the person's liberty. In Union of India v. Prafulla Kumar Samal, (supra), it was said that while framing charge, the Court cannot merely act as a post office or a mouthpiece of prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence, documents produced before the Court, any basic infirmities appearing in the case and so on. Again in the case of Dileswar Balu Kurane v. State of Maharashtra (supra) the Court observed that while considering the question of framing of charges, a Judge has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case is made against the accused and if two views are equally possible and the materials give rise to some suspicion, but do not give rise to grave suspicion then the Judge can discharge the accused. In the case of Suresh alias Pappu Bhudharmal Kalani v. State of Maharashtra, (supra) after referring to a number of earlier decisions, their Lordships laid a guideline to be adopted by the Courts at the stage of consideration of charge. The observations of their Lordships read thus :
"At the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. The Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Each case depends upon its particular facts and circumstances and sometimes even a remote link between the activities of an accused and the facts of the case may justify a reasonable inference warranting a judicial finding that there is ground for presuming that an accused has committed the offence or at least to presume that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out."
Thus, according to the guidelines given by the apex Court, a Court considering the matter of charge is not required to appreciate evidences to conclude whether they are sufficient or not for convicting the accused. But it is required to simply find out whether any link between the accused and the activities alleged, has been established in a prima facie manner and if the materials raise a presumption or strong suspicion that the accused might have committed the offence. If there is ground for presuming that the accused has committed the offence for presuming that the question of his being directly or indirectly involved in the commission of such offence is not to be ruled out, then charge has to be framed against the accused.
6. In the present case, there are allegations by the informant that M/s. Davis India Construction (P) Ltd., in short, 'the Company floated an advertisement for employment of skilled/unskilled persons in Gulf country through the company and in response to the same, the informant and many others applied for their employment and deposited Rs. 19,150/- each as per direction of the Company; but no job was made available to any of the applicants and the amount deposited was also not refunded to them. There was thus allegation before the police against the petitioner and others, who were in charge of the management of that company. Subsequently, a writ application as filed before this Court, vide OJC No. 3809 of 1997 and this Court directed the CBI to investigate into the matter and the CBI after conducting investigation submitted charge-sheet under Sections 120-B/420, IPC against the petitioner and one Bhima Charan Behera, who were the Managing Directors of the company. Several witnesses including Parthasarathi Barik, Gourisankar Sahu, Sahabaj Khan gave statements in support of the allegations contained in the FIR. There was no denial by the defence about the company's floating advertisement, submission of application, bio-datas and depositing of the required amount by the applicants and the status of the petitioner as the Managing Director of the company. The only argument advanced from the side of the petitioner is that the petitioner was not in charge of the administration and financial aspects of the company and is thus, not liable for the offences under Sections 120-B/420, IPC. The prosecution says that as the Managing Director of the Company, the petitioner was at the helm of the affair of the company and is responsible for the affairs of the company. The defence plea is that although the petitioner was the Managing Director of the company, the General Manager was handling the administration and finance of the company. Which of these versions is true and acceptable will be decided at the trial of the case. At the stage of consideration of charge, there is no scope for the concerned Court to sift and weigh the evidence to find out the truth or falsity of the allegations. The only aspect, which the Court is required to do is to find out from the existing statements, documents and materials produced by the prosecution, if any link of the petitioner with the alleged activities has been established. As has been indicated above, the materials prima facie show that the petitioner was the Managing Director of the Company, the Company floated advertisement inviting applications and in response several candidates applied for the posts and deposited the money, but none of them was appointed and the amount deposited by the applicants were also not refunded. These are the materials, which prima facie establish a link between the petitioner and the activities alleged by the prosecution. Section 420, IPC relates to cheating and dishonest inducing of delivery of property. Section 120-A, IPC gives the definition of criminal conspiracy and 120-B contemplates for punishment of criminal conspiracy. The statements of the informant and the witnesses, the alleged advertisement, the position of the petitioner in the company and the surrounding circumstances, put together raise a presumption/ strong suspicion of involvement of the petitioner in the alleged cheating and criminal conspiracy. So, learned Addl. C.J.M. (Special), CBI, Bhubaneswar did not commit any legal error in rejecting the prayer of the petitioner for discharging him of the charges under Sections 120-B and 420, IPC against the petitioner.
7. For the aforesaid reasons, the CRLMC is found to be without any merit and is dismissed.