Delhi District Court
Pushpendra Bhardwaj vs State on 21 September, 2023
IN THE COURT OF MS. SHIVALI SHARMA
LD. ASJ-03, TIS HAZARI COURT, DELHI
CNR No. DLWT01-001187-2019
CR. No. 59-2019
PS- Hari Nagar
U/s. 397 CrPC
CNR No. DLWT01-004017-2019
CR. No. 166-2019
PS- Hari Nagar
U/s. 397 CrPC
IN THE MATTER OF:
Pushpendra Bhardwaj
S/o Sh. Virendra Bhardwaj
R/o House no. C5A/106, First Floor,
Janak Puri, New Delhi.
.............Petitioner
VERSUS
State
Through NCT of Delhi.
............Respondent
Other Details :
Date of Institution : 14.02.2019
Date of Reserving Order : 06.09.2023
Date of Order : 21.09.2023
IN THE MATTER OF:
Ankur Mishra
S/o Sh. Arun Mishra,
R/o T-190, Jain Colony, Part-1,
Uttam Nagar, Delhi-110059.
.............Petitioner
VERSUS
State
CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar
CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.1 /12
Through NCT of Delhi.
............RESPONDENT
Other Details :
Date of Institution : 22.05.2019
Date of Reserving Order : 09.09.2023
Date of Order : 21.09.2023
REVISION PETITION U/s. 397 Cr. P.C. FOR SETTING
ASIDE THE IMPUGNED ORDERS DATED 14.11.2018 and
24.02.2018 OF LD. MM-02, WEST IN FIR No. 44-2018 PS
HARI NAGAR FRAMING CHARGE U/S
420/477A/468/120B IPC AND IN ALTERNATIVE U/S
409/418/477A/468/120B IPC AGAINST ACCUSED
PUSHPENDRA BHARDWAJ AND ANKUR MISHRA IN
ADDITION TO FIVE OTHER ACCUSED PERSONS.
ORDER:
1. Vide this judgment, I shall dispose off two revision petitions filed by two accused persons against the same order of charge dated 14.11.2018 and framing of charge vide order dated 24.12.2018. Charge u/s 420/477A/468/120B IPC or in the alternative under section 409/418/477A/468/120B IPC was framed against the Revisionists in case FIR no. 44/2018 PS Hari Nagar in addition to five other accused persons. The other accused persons did not challenge the order on charge and no other revision in this regard is pending before this court or stated to be pending in any other court by either the revisionists or the State or the complainant.
2. Revisionist Pushpendra Bhardwaj is accused no.1 while Revisionist Ankur Mishra is accused no. 4 before Ld. Trial Court. For the sake of convenience, parties shall be referred to by their nomenclature before Ld. Trial Court.
3. Though, Revisionist Pushpendra Bhardwaj has challenged CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.2 /12 only order framing charges dated 24.12.2018 but since it is preceeded by detailed order on charge dated 14.11.2018, both orders are being considered herein.
BRIEF FACTS:-
4. Brief facts of the case are that a criminal complaint dated 05.01.2018 was made on behalf of Gujarat Co-operative Milk Marketing Federation Ltd. (hereinafter referred to as GCMMF) to SHO PS- Hari Nagar. Accused no. 1 and accused no. 4 are specifically named as accused persons in the said complaint in addition to 14 other persons. The complaint alleged commission of offences under Sections 408/409/418/420/467/468/474/477A r/w Section 120 B IPC.
5. The allegations in the complaint are that the complainant society was engaged in marketing of Milk and Milk products under the brand name of Amul & Sagar. In the course of business GCMMF had appointed Area Delivery Agents (ADA) who were assigned the responsibility of delivery of Milk and Milk products to the retailers in their specific areas in Delhi and Delhi NCR. The scheme of business required ADAs to place written daily demand of milk upon the complainant society and pursuant thereto they lift milk products from the complainant's plant. The ownership of milk and milk products immediately transfer upon the ADAs upon lifting of the products from complainant's plant. For the system to work smoothly, ADAs maintain a security deposit/ bank guarantee equivalent to four days average sale with the complainant society. The payments are made by ADAs on subsequent day of lifting the milk from the complainant's plant.
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6. As per the system between the complainant and ADAs, they arrange their own transport for lifting the milk from dairy plants against which the complainant society provides them freight charges payable monthly on submission of freight bills/challans which are cleared after verification by the Branch Commercial Account Incharge (BCAI) appointed by the complainant society after checking the bills with the help of support staff appointed on temporary basis by the complainant society.
7. Accused no.1 Pushpender Bhardwaj is alleged to be the employee of the Complainant Society since 03.08.2011 and discharging the role of BCAI in Delhi Branch office since 29.09.2014. Accused no. 4 Ankur Mishra is alleged to be one of the ADAs.
8. Vide email dated 22.11.2017, accused no. 1 gave notice of his resignation w.e.f 02.12.2017. He was informed that he would be releived only after complete handover of accounts and he has to give at least one month notice. On 01.12.2017, complainant society appointed Sh. Nandlal Bhargav to take over the role of BCAI in place of accused no. 1. However, without handing over the accounts to him, accused no. 1 abruptly and without any reasonable excuse stopped coming to the office w.e.f 02.12.2017.
9. On 15.12.2017, one of the temporary support staff in the accounts department approached Sh. Nand Lal Bhargav asking him to reverse four entries in the sum of Rs. 447730.50 with regard to freight charges of one of the ADA as asked by accused no. 1. The said amount was received by the said ADA as reimbursement of freight charges in the month of November 2017 which was sanctioned and approved by accused no. 1.
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10. On receiving such directions from accused no. 1, the official of complainant society became suspicious and carefully checked the account of said ADA on which it was revealed that many fake and duplicate entries were made by accused no. 1 in the accounts against which complainant society had credited money to the tune of Rs. 16,42,293.45/- to the account of the said ADA. The matter was further investigated and it was revealed that accused no. 1 Pushpendra Bhardwaj used to make duplicate and fake entries for 10 other ADAs including accused no. 4 Ankur Mishra for which he was paid illegal gratification by them.
11. Further investigation revealed that such fake and duplicate entries to the tune of Rs. 68,33,228/- were made by accused no. 1 in the accounts of the said ADA during the period of 01.04.2015 to 02.12.2017. In this manner, the funds of the complainant's society were misappropriated by accused no. 1 in conspiracy with ADAs and his support staff for illegal gratification and fake bills of freight were reimbursed to these ADAs. In this manner, money of the Complainant's Society was siphoned of by falsification of accounts.
12. On confrontation with the ADAs, some of the siphoned amount was also refunded to the complainant society. Accused no. 1 Pushpendra Bhardwaj also admitted and acknowledged having committed various frauds and forgeries during his employment and on his own accord deposited a sum of Rs. 10 lacs in the account of complainant society and wrote an email to this effect without there being any settlement talks between them.
13. It is alleged that all the accused persons are guilty of offence of criminal conspiracy with an intention to cheat the CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.5 /12 complainant society and having cheated the complainant society by falsifying its accounts and making false and fake entries in the books of account of the complainant's society.
14. On the basis of this complaint, FIR No. 44/2018 PS Hari Nagar was registered on 16.01.2018 under Section 408/409/418/420/468/474/477A/120B IPC. After completion of investigation, charge sheet was filed on 21.03.2018 against five accused persons including both the revisionists herein that are accused no. 1 Pushpendra Bhardwaj and accused no. 4 Ankur Mishra. They were chargesheeted for offences under section 408/409/418/420/468/474/477A/120B IPC. Supplementary chargesheet was also filed against two other accused persons.
IMPUGNED ORDER:-
15. After hearing arguments on the point of charge, vide detailed impugned order dated 14.11.2018, Ld. Trial Court held that prima facie there was enough material available for framing of charges for offence under Section 420/477A/468/120B IPC and in the alternative under Section 409/418/477A/468/120B IPC. The charges were framed accordingly to which the accused persons plead not guilty and claimed trial on 24.12.2018. As on date, matter is at the stage of PE before Ld. Trial Court.
SUBMISSIONS ON BEHALF OF ACCUSED NO.
1/REVISIONIST/PUSHPENDRA BHARDWAJ :
16. On behalf of accused no.1 Pushpendra Bhardwaj, the impugned order is challenged on the ground that that it is a non CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.6 /12 speaking order without stating any reason for directing framing of charge against accused no. 1. Ld. Trial Court while framing charge did not take into consideration various facts in a right prospective manner and considering the essential ingredients of offences for which accused persons have been charged. The charge has been framed against accused no. 1 without any justified or reasonable basis. Ld. Trial Court failed to consider that a false case has been filed by the complainant and a false charge sheet has been filed by the IO without conducting a just and fair investigation and without relying upon any documents to support the allegations. The entries shown as illegal entries were nothing but reconciliation of accounts only. There was no evidence regarding criminal conspiracy between the accused persons filed by the IO. The documents placed on record along with the charge sheet prima facie did not support the allegations made by the complainant company. Hence, it is submitted that the charge has been framed without any prima facie case or evidence being on record and thus, impugned orders dated 14.11.2018 and 24.12.2018 are liable to be set aside.
17. It is also argued that there is no evidence on record to show that accused Pushpendra Bhardwaj was an employee of the complainant society and accordingly, framing of charges against him is bad in law.
SUBMISSIONS ON BEHALF OF ACCUSED NO.
4/REVISIONIST/ANKUR MISHRA:
18. On behalf of accused no. 4/ revisionist Ankur Mishra, it is submitted that the impugned order is based on surmises and CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.7 /12 conjectures and contrary to the facts on judicial file. Ld. Trial Court had failed to appreciate that there is nothing on record to show that accused no. 4 is an employee of the Complainant Society nor there is any evidence to invoke the provisions under section 409 IPC against him as he did not have any dominion over any property of the complainant society. The complainant society is a big society and not a small business entity and its account are audited every year. However, there is no clarity as to how manipulation of the accounts escaped the eyes of internal and external auditors. There are no allegations that accused no. 4 was duty bound to protect the interest of the complainant or had any access to the books of accounts of the Complainant Society. Accordingly, offences under Section 418/477A/468IPC are not attracted against him. In addition, there is no evidence of any conspiracy between the accused persons. Accordingly, the charges as framed against accused Ankur Mishra are liable to be set aside.
SUBMISSIONS ON BEHALF OF STATE AND COMPLAINANT SOCIETY/RESPONDENTS :
19. On behalf of the Complainant Society and State, it is submitted that impugned order on charge dated 14.11.2018 is a detailed order passed on the basis of material available on record, the allegations against the accused persons and the evidences collected during investigation. There is no infirmity or illegality in the impugned order. It is a settled law that an order framing charge need not be very detailed order and minute examination of the evidence is not required to be done at that stage. So far as it CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.8 /12 reflects due application of mind, it is a legal order. The impugned order dated 14.11.2018 clearly shows application of mind of Ld. Trial Court as straightaway charges have not been directed to be framed under all the sections for which accused persons have been chargesheeted. Rather, in alternative, charges for cheating, manipulation of accounts and forgery and criminal breach of trust with manipulation of accounts and forgery have been directed to be framed. The contentions of the complainant that charge u/s 467 IPC is also attracted in the matter have also been considered and rejected which clearly shows due application of mind. Moreover, the arguments put forth by the revisionists are their defences and can be appreciated only at the final stages. Hence, dismissal of the revision petitions is sought.
FINDINGS:
20. I have heard the submissions made and carefully perused the record.
21. The scope of enquiry, a judge is required to make while considering the question of framing of charges has been considered by the Apex Court in Union of India Vs. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4. After an exhaustive survey of the case law on the point, the Apex court has laid down the following principles:-
" (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 CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.9 /12 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 be 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."
22. Coming to the facts of the present case, I do not find any reason for interfering with the impugned order merely because it does not record detailed examination of the evidence for directing framing of charge against the accused persons. The manner in which the charge has been framed clearly reflects application of mind by Ld. Trial Court which is sufficient for directing framing of charges as per various decisions of Superior Courts. Ld. Trial Court has duly dealt with various submissions made by the accused persons as well as the complainant in impugned order dated 14.11.2018.
23. As regards accused Pushpendra Bhardwaj, although, it is correct that copy of his appointment letter has not been placed on record but there are other material on record to prove this fact including ocular testimony of the witnesses. This fact has even CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.10 /12 otherwise not been disputed by the accused Pushpendra Bhardwaj in the present revision petition.
24. As regards Accused no.4 Ankur Mishra, though, it is correct that he was not an employee of the complainant company, however, allegations against the accused persons are that, they, in conspiracy with each other had manipulated the books of accounts of the complainant company for monetary benefits. Admittedly, Accused no. 4 was doing business with Complainant Society as an ADA. It is also a settled law that there is hardly any direct evidence of criminal conspiracy and inference in this regard has to be drawn from the attending facts and circumstances of the case. In the present case, considering the allegations against the accused persons including Accused no.4, prima facie there appears to be a criminal conspiracy between them for manipulating the books of accounts of complainant company for monetary benefits.
25. At the stage of charge, it is not probable or expected to minutely weigh the evidence available on the court record and only a prima facie opinion has to be made regarding the commission of offences. In the present case, there are multiple accounts statements filed by the prosecution along with the chargesheet. However, these statements can be appreciated only at the stage of appreciation of evidence led by both the parties. Even otherwise, no such defects in these account statements, which are sufficient to hold that the accused persons have not prima facie committed any of the offences have been pointed out by either of the Revisionists.
26. In view of the reasons above, I find no infirmity or illegality in the impugned order dated 14.11.2018 directing CR No. 592019 Pushpendra Bhardwaj Vs State PS Hari Nagar CR No. 1662019 Ankur Mishra Vs State PS Hari Nagar Page No.11 /12 framing of charges against the accused persons including the Revisionists herein that are accused no. 1 Pushpendra Bhardwaj and accused no. 4 Ankur Mishra and impugned order dated 24.12.2018 vide which charges were framed against them. There is no ground to interfere with the impugned order.
27. Both the revision petitions are accordingly, dismissed and the impugned orders dated 14.11.2018 and 24.12.2018 are upheld.
28. No orders as to cost.
29. TCR be sent back along with a copy of this order.
30. Revision files be consigned to Record Room after completion of all legal formalities.
Digitally
signed by
SHIVALI
SHIVALI SHARMA
Announced in open Court SHARMA Date:
2023.09.21
Dated: 21.09.2023 15:28:31
+0530
Shivali Sharma
Additional Sessions Judge-03(West)
Tis Hazari Court/21.09.2023
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