Allahabad High Court - Lucknow Bench Judgement

Allahabad High Court - Lucknow Bench Judgement

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JUDGEMENT HEADLINE : At The Stage Of Charge, Neither Pros And Cons Of The Case Nor The Defence Evidence Can Be Considered. Charge Can Be Framed Even On Grave Suspicion.
JUDGEMENT TITLE : Vijay Kumar Trivedi Vs. State Of U.P. And Another On 11/19/2010 By Allahabad High Court - Lucknow Bench
CASE NO : U/S 482/378/407 NO. 2912 OF 2010
CORAM : Hon'ble Shri Kant Tripathi,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved
Case :- U/S 482/378/407 No. - 2912 Of 2010

Petitioner :- Vijay Kumar Trivedi
Respondent :- State Of U.P. And Another
Petitioner Counsel :- Salil Kumar Srivastava
Respondent Counsel :- Govt. Advocate

Hon'ble Shri Kant Tripathi,J.

1. Heard Mr. Salil Kumar Srivastava For The Petitioner, Mr. Rajendra Kumar Dwivedi, Learned AGA For The Respondent No. 1 And Mr. Anadi Banerji For The Respondent No.2 And Perused The Record.

2. This Is A Petition Under Section 482 CrPC For Quashing The Proceedings Of The Criminal Case No. 5133 Of 2006 (State Vs. Kripal Singh Abott & Others), Arising Out Of Crime No. 208 Of 2003, Under Sections 406, 504, 420, 201 And 120-B IPC, Police Station Hazratganj, District Lucknow, Pending In The Court Of Additional Chief Judicial Magistrate, Court No. 27, Lucknow And Also For Quashing The Order Dated 20.3.2010 Whereby The Learned Magistrate Rejected The Petitioner's Discharge Application And The Order Dated 6.7.2010 Whereby A Non Bailable Warrant Has Been Issued Against Him.

3. The Learned AGA Raised The Question Of Maintainability Of The Present Petition On The Ground That The First Petition, Which Was Also For Quashing The Charge Sheet As Well As The Summoning Order Has Already Been Dismissed By This Court, Therefore, The Present Petition In Regard To The Same Relief Is Not Maintainable. Mr. Salil Kumar Srivastava, On The Other Hand, Submitted That In View Of The Direction Of This Court In The First Petition, The Petitioner Moved An Application For Discharge Which Has Been Rejected By The Learned Magistrate Vide The Impugned Order Dated 20.3.2010, Therefore, The Present Petition, Being Based On A Fresh Cause Of Action Is Maintainable.

4. The First Petition Under Section 482 CrPC (Criminal Misc. Case No. 446/2007, Vijay Kumar Trivedi Vs. State Of U.P. & Another) For Quashing The Charge Sheet Was Finally Disposed Of By Hon'ble A. Mateen, J. On 13.4.2009 With The Following Observations:
"It Has First Been Submitted By Learned Counsel For The Petitioner That The In The Matter Which Erupts From The Aforesaid Crime Number, Twice The Police Had Submitted Final Report, But The Matter Was Further Investigated By The Police, Which Ultimately Culminated In The Shape Of Charge Sheet. Grave Stress Has Been Laid By Learned Counsel For The Petitioner That It Will Amount To 're-investigation' And Not 'further Investigation'.When Asked For, He Was Not Able To Point Out That There Was Any Order With Respect To Reinvestigation Of The Case.

It Is The Prerogative Of The State Government Under Section 173 (8) Cr.P.C. And The Matter Can Be Reinvestigated At Any Point Of Time For Which There Is No Bar.

The Other Limb Of Argument Of Learned Counsel For The Petitioner Is That There Is No Sufficient Evidence On Record So As To Allow The Learned Magistrate Concerned To Take Cognizance Of The Aforesaid Case In The Aforesaid Sections.

Without Commenting Any Further With Respect To The Sufficiency Or Insufficiency Of Material On Record To Enable The Magistrate Concerned To Take Cognizance Of The Case, I Direct That The Petitioner Shall Approach The Court Concerned And Move Application Under Section 239 Cr.P.C. Taking Such Points As Have Been Raised In The Petition Before This Court Within 25 Days From Today, And If Such An Application Is Moved, The Court Concerned Shall Proceed With The Case After Deciding Said Application In Accordance With Law.

If Such An Application Is Moved By The Petitioner Within The Time Granted Above, The Petitioner Shall Not Be Arrested In Connection With Above Case Crime Number.

It Is Made Clear That If The Petitioner Fails To Abide By The Time Schedule As Provided Above For Moving Application Under Section 239 Cr.P.C., Benefit Of This Order Shall Not Be Available To Him And The Court Below Shall Proceed With The Case In Accordance With Law.

With The Above Observations/directions, The Petition Is Finally Disposed Of. "
5. In View Of The Fact The Petitioner Could Not Get Any Relief Regarding His Prayer For Quashing The Charge Sheet As Well As The Summoning Order In The Aforesaid First Petition, The Present Petition For Quashing The Proceedings Of The Aforesaid Criminal Case And The Summoning Order Can Not Be Entertained And To This Extent The Present Petition Is Not Maintainable. But In Compliance Of The Aforesaid Order The Petitioner Moved An Application For Discharge Under Section 239 CrPC, Which Has Been Rejected By The Additional Chief Judicial Magistrate Vide The Impugned Order Dated 20.3.2010 Holding That A Prima Facie Case Was Made Out Against The Petitioner And Other Accused, Therefore, They Were Not Entitled For The Discharge. Against The Order Of The Additional Chief Judicial Magistrate The Petitioner Filed Second Petition Under Section 482 CrPC (Criminal Misc. Case No. 2222/2010 Vijay Kumar Trivedi Vs. State Of U.P. & Others) But The Learned Counsel For The Petitioner Withdrew That Petition With The Liberty To File A Fresh Petition. Thereafter The Present Petition Has Been Filed. Since The Learned Additional Chief Judicial Magistrate Disposed Of The Petitioner's Application For Discharge By The Impugned Order Dated 20.3.2010, Therefore, The Present Petition Questioning Legality Of The Order Dated 20.3.2010 Seems To Be Maintainable And To This Extent The Petition Is Liable To Be Considered On Merit.
6. The Facts Of The Case Are That The Petitioner Vijay Kumar Trivedi Was Cashier (Chest) In The Bank Of Baroda, Main Branch, Hazratganj, Lucknow And Was Relieved On 8.5.2003 On Account Of His Transfer. Co-accused K.S. Abott Was The Assistant General Manager In The Said Branch. Mr. Abott Without Prior Permission Of The Competent Authority, Attached The Petitioner To The Main Branch Again With Effect From 9.5.2003 For Proper Handing Over Of The Charge. The Occurrence Of This Case Took Place On 14.5.2003, I.e. During The Period The Petitioner Had Been Required To Work Again In The Main Branch Hazratganj, Lucknow. M/s Singhoo Travel & Tours Private Limited, Shahnazaf Road, Lucknow Had A Cash Credit Account In The Aforesaid Branch Of The Bank Of Baroda. The Respondent No.2 Is The Proprietor Of The Said Singhoo Travel & Tours Pvt. Limited. The Petitioner And The Co-accused K.S. Abott Requested The Respondent No.2 To Pay A Sum Of Rs. Forty Two Lakhs Because Inspection Of The Bank Was Likely To Take Place And The Money Was Required In Connection Therewith. When The Respondent No.2 Told That He Had Merely A Cash Credit Limit Of Only Rs. Seven Lakhs, The Co-accused K.S. Abott Replied That The Cash Credit Limit Would Be Enhanced. Accordingly The Cash Credit Limit Was Enhanced By The Co-accused. Moreover, The Petitioner And The Co-accused K.S. Abott Assured The Respondent No. 2 To Refund The Money Very Soon. On The Assurance Of The Petitioner And The Co-accused, The Respondent No.2 Handed Over The Cheque No. 603785 Dated 14.5.2003 For Rs. Forty Two Lakhs To The Petitioner, Which Was Payable To Self Or Bearer. The Respondent No.2 Had Also Put His Signature On The Back Of The Cheque By Making The Endorsement "for The Purpose Of International Ticket". The Prosecution Case Is That The Cash Amount Of Rs. Forty Two Lakhs Mentioned In The Aforesaid Cheque Was Not Paid To The Respondent No.2 Nor Any Entry To That Effect Was Made In The Bank Record. According To The Scroll Register Of The Cash Chest, Rs. Forty Two Lakhs Was Received By The Petitioner But The Whole Amount Was Debited In The Account Of The Respondent No.2. On Investigation The Investigating Officer Found That The Respondent No.2 Handed Over The Aforesaid Cheque To The Petitioner And The Co-accused K.S. Abott On The Aforesaid Assurance Given By Them Which He Believed To Be True But They, While Acting Under The Criminal Conspiracy, Dishonestly Misappropriated The Entire Amount Mentioned In The Cheque And Did Not Repay As Per The Assurance. When The Respondent No.2 Demanded The Money, The Petitioner And The Co-accused Refused To Repay. It Is Also Alleged That The Petitioner Took Additional Amount Of Rs. 42,137/- From The Respondent No. 2 For Air And Train Tickets But Did Not Refund That Amount Also And Criminally Misappropriated The Same. When The Respondent No.2 Demanded The Money, The Petitioner Gave Threatening To Kill Him. Scroll Register Of The Cash Chest Has Also Been Misplaced By The Petitioner And The Co-accused, With The Object Of Eliminating A Material Evidence Of The Case. The Respondent No.2, While Acting Under The Cloud Of Assurances Given By The Petitioner And Co-accused, Wrote Various Letters To The Bank Seeking Time To Repay The Amount Taken By Him Through The Process Of Enhancement Of The Cash Credit Limit.
7. During The Course Of Hearing It Was Conceded Before Me That No Payment Was Made To The Respondent No.2 At The Cash Payment Window And The Alleged Payment To Respondent No.2 Is Shown To Have Been Made Directly From The Cash Chest, Which, According To The Learned AGA, In Absence Of The Relevant Register, Is Not Acceptable.
8. Mr. Salil Kumar Srivastava Submitted That The Facts And Circumstances Of The Case Do Not Constitute Any Criminal Charge Against The Petitioner. It Is A Case Of Advancement Of Loan To The Petitioner And If The Petitioner Failed To Repay The Same, The Transaction, In All Probabilities, Was Of Civil Nature But The Respondent No.2, In Order To Pressurise The Petitioner, Has Given The Colour Of Criminal Case. Mr. Srivastava Relied On Inder Mohan Goswami And Another Vs. State Of Uttaranchal And Others, (2007) 12 SCC 1, In Support Of This Submission In Which The Apex Court Has Observed In Paras 42 And 46 As Follows :
"42. On A Reading Of The Aforesaid Section, It Is Manifest That In The Definition There Are Two Separate Classes Of Acts Which The Person Deceived May Be Induced To Do. In The First Class Of Acts He May Be Induced Fraudulently Or Dishonestly To Deliver Property To Any Person. The Second Class Of Acts Is The Doing Or Omitting To Do Anything Which The Person Deceived Would Not Do Or Omit To Do If He Were Not So Deceived. In The First Class Of Cases, The Inducing Must Be Fraudulent Or Dishonest. In The Second Class Of Acts, The Inducing Must Be Intentional But Need Not Be Fraudulent Or Dishonest. Therefore, It Is The Intention Which Is The Gist Of The Offence. To Hold A Person Guilty Of Cheating It Is Necessary To Show That He Had A Fraudulent Or Dishonest Intention At The Time Of Making The Promise. From His Mere Failure To Subsequently Keep A Promise, One Cannot Presume That He All Along Had A Culpable Intention To Break The Promise From The Beginning.
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46. The Court Must Ensure That Criminal Prosecution Is Not Used As An Instrument Of Harassment Or For Seeking Private Vendetta Or With An Ulterior Motive To Pressure The Accused. On Analysis Of The Aforementioned Cases, We Are Of The Opinion That It Is Neither Possible Nor Desirable To Lay Down An Inflexible Rule That Would Govern The Exercise Of Inherent Jurisdiction. Inherent Jurisdiction Of The High Courts Under Section 482 Cr.P.C. Though Wide Has To Be Exercised Sparingly, Carefully And With Caution And Only When It Is Justified By The Tests Specifically Laid Down In The Statute Itself And In The Aforementioned Cases. In View Of The Settled Legal Position, The Impugned Judgment Cannot Be Sustained."

9. Apart From The Aforesaid Case, Mr. Srivastava Further Placed Reliance On V.Y. Jose And Another Vs. State Of Gujarat And Another (2009) 3 SCC 78, In Which The Apex Court Has Held That For The Purpose Of Constituting An Offence Of Cheating The Complainant Is Required To Show That The Accused Had Fraudulent Or Dishonest Intention At The Time Of Making Promise Or Representation. Even In A Case Where Allegations Are Made In Regard To Failure On The Part Of The Accused To Keep His Promise, In The Absence Of A Culpable Intention At The Time Of Making Initial Promise, No Offence Under Section 420 IPC Can Be Said To Have Been Made Out. In Para 21 And 28 The Apex Court Further Observed:

"21. There Exists A Distinction Between Pure Contractual Dispute Of A Civil Nature And An Offence Of Cheating. Although Breach Of Contract Per Se Would Not Come In The Way Of Initiation Of A Criminal Proceeding, There Can Not Be Any Doubt Whatsoever That In The Absence Of The Averments Made In The Complaint Petition Wherefrom The Ingredients Of An Offence Can Be Found Out, The Court Should Not Hesitate To Exercise Its Jurisdiction Under Section 482 Of The Code Of Criminal Procedure.
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28. A Matter Which Essentially Involves Dispute Of A Civil Nature Should Not Be Allowed To Be The Subject- Matter Of A Criminal Offence, The Latter Being Not A Short Cut Of Executing A Decree Which Is Non-existent. The Superior Courts, With A View To Maintain Purity In The Administration Of Justice, Should Not Allow Abuse Of The Process Of Court. It Has A Duty In Terms Of Section 483 Of The Code Of Criminal Procedure To Supervise The Functionings Of The Trial Courts."

10. Mr. Salil Kumar Srivastava Placed Reliance Also On Devendra And Others Vs. State Of U.P. And Another, (2009) 7 SCC 495. In That Case The Apex Court Relying On V.Y. Jose Case (supra) And Few Other Cases Held That A Misrepresentation From The Very Beginning Is A Sine Qua Non For Constitution Of An Offence Of Cheating, Although In Some Cases, An Intention To Cheat May Develop At A Later Stage Of Formation Of The Contract And Further Observed In Para 28 As Follows:

"28. Furthermore, In A Case Of This Nature Where Even, According To Mr. Das, No Case Has Been Made Out For Taking Cognizance Of An Offence Under Section 420 Of The Penal Code, It Was Obligatory On The Part Of The Learned Chief Judicial Magistrate To Apply His Mind To The Contents Of The Charge-sheet. Such Application Of Mind On His Part Should Have Been Reflected From The Order. "

11. The Learned Counsel For The Respondent No.2 On The Other Hand Submitted That The Petitioner And The Co-accused Taking Advantage Of The Fact That The Respondent No.2 Had Given A Self/bearer Cheque, Have Now Set Up The Defence That The Entire Amount Mentioned In The Cheque Was Paid To The Respondent No.2 But There Is No Evidence In Support Of This Plea. The Learned Counsel For The Respondent No.2 Further Submitted That On 14.5.2003, The Custodian And Joint Custodian Of The Currency Chest, Namely, R.K. Chaturvedi, And Smt. Sunita Srivastava, Respectively, Were Present In The Bank But It Is Surprising That Mr. K.S. Abott, Despite Presence Of The Aforesaid Officials, Engaged The Petitioner, Which, Prima Facie, Reveals A Dishonest Intention On The Part Of The Petitioner And Co-accused K.S. Abott. According To The Statement Of Mr. R.K. Chaturvedi, (the Custodian Of The Chest) Bins Were Not Open On 14.5.2003, And There Was A Total Cash Receipt Of Rs. 20.5 Lakh In The Denomination Of Rs. 500/- In The Chest, Therefore, The Alleged Payment Of Rs. Forty Two Lakh In The Denomination Of Rs. 100/- To The Respondent No.2 Was Doubtful. The Learned Counsel For The Respondent No.2 Further Submitted That In Fact The Petitioner And Co-accused K.S. Abott Had Committed Some Serious Financial Irregularity In The Bank And When They Had Come To Know That An Inspection Of The Bank Was About To Be Held, They In Order To Maintain Cash Balance In The Bank As Per The Relevant Records, Required The Respondent No.2 To Deliver A Cheque Of Rs. Forty Two Lakhs. It Was Further Submitted That The Way The Chest Scroll Register Has Been Misplaced, Prima Facie, Supports That The Alleged Payment Of Rs. Forty Two Lakhs In Cash To The Respondent No.2 Was Not Correct. It Was Further Submitted That In Fact The Money Was Shown To Have Been Received By The Petitioner Himself At The Currency Chest But The Relevant Register, Being A Material Evidence Of This Fact Has Been Misplaced By The Petitioner And Co-accused. Mr. Rajendra Kumar Dwivedi, Learned AGA Supported The Submission Of The Learned Counsel For The Respondent No.2 And Contended That The Dispute Is Of Criminal Nature. The Intention Of The Petitioner And Co-accused Was Dishonest From Very Beginning And If It Was Not So, There Was No Question Of Misplacement Of Relevant Register And Alleged Payment Directly From The Chest.

12. In Support Of His Submission, Mr. Dwivedi, Learned AGA, Relied On Syed Askari Hadi Ali Augustine Imam Vs. State (Delhi Admn.), (2009) 5 Supreme Court Cases 528. In That Case, The Apex Court Has Held That Indisputably, In A Given Case, A Civil Proceeding As Also A Criminal Proceeding May Proceed Simultaneously. Cognizance In A Criminal Proceeding Can Be Taken By The Criminal Court Upon Arriving At The Satisfaction That There Exists A Prima Facie Case. ................It Is Now Well Settled That Ordinarily A Criminal Proceeding Will Have Primacy Over The Civil Proceeding. Precedence To A Criminal Proceeding Is Given Having Regard To The Fact That Disposal Of A Civil Proceeding Ordinarily Takes A Long Time And In The Interest Of Justice The Former Should Be Disposed Of As Expeditiously As Possible. If Primacy Is To Be Given To A Criminal Proceeding, The Civil Suit Must Be Determined On Its Own Merit, Keeping In View The Evidence Brought On Record Therein And Not In Terms Of The Evidence Brought In The Criminal Proceeding.

13. Mr. Dwivedi Further Submitted That The Aforesaid Principles Have Been Reiterated By The Apex Court In The Case Of Devendra & Others Vs. State Of U.P. And Another (supra) (para 13).

14. Mr. Dwivedi, Learned AGA Relied Also On M/s Indian Oil Corporation Vs. M/s NEPC India Ltd., & Ors. (2006) 6 SCC 736. In That Case, Apex Court Reiterated The Aforesaid Principles And Held As Follows:
"(v) A Given Set Of Facts May Make Out: (a) Purely A Civil Wrong; Or (b) Purely A Criminal Offence; Or (c) A Civil Wrong As Also A Criminal Offence. A Commercial Transaction Or A Contractual Dispute, Apart From Furnishing A Cause Of Action For Seeking Remedy In Civil Law, May Also Involve A Criminal Offence. As The Nature And Scope Of A Civil Proceeding Are Different From A Criminal Proceeding, The Mere Fact That The Complaint Relates To A Commercial Transaction Or Breach Of Contract, For Which A Civil Remedy Is Available Or Has Been Availed, Is Not By Itself A Ground To Quash The Criminal Proceedings. The Test Is Whether The Allegations In The Complaint Disclose A Criminal Offence Or Not."

15. The Aforesaid Decisions Have Settled The Legal Position That If The Facts And Circumstances Of A Case Make Out Merely A Liability Of Civil Nature, The Criminal Prosecution In Respect Of That Liability Can Not Lie But If The Facts And Circumstances Of The Case Make Out Both Criminal And Civil Liability, The Civil Proceeding As Also The Criminal Proceeding Can Go On Simultaneously And In That Eventuality The Criminal Proceeding Should Be Given Primacy And, Therefore, The Criminal Proceeding Can Not Be Quashed Or Dropped On Account Of Pendency Of The Civil Case. In The Present Case The Petitioner Has Been Charge-sheeted Under Sections 406, 504, 420, 201 And 120-B IPC. Section 406 IPC Provides For Punishment For The Offence Of Criminal Breach Of Trust And Section 420 IPC Provides For Punishment Of Cheating And Dishonestly Inducing Delivery Of Property, Therefore, In Order To Constitute Either The Offence Of Criminal Breach Of Trust Or Cheating, The Facts And Circumstances Of The Case Must Disclose Fraudulent Or Dishonest Intention On The Part Of The Accused At The Beginning Of The Transaction. But Position Would Be Different If The Intention Of The Accused Was Not Dishonest Or Fraudulent At The Beginning Of The Transaction And It Became Dishonest Or Fraudulent Any Time After The Initial Transaction. In That Eventuality, The Liability Of The Accused Would Be Of Civil Nature, And No Criminal Prosecution Would Be Maintainable With Regard To That Liability. The Petitioner's Case, Therefore, Needs To Be Examined In The Backdrop Of These Settled Principles.

16. In My Opinion, The Facts And Circumstances Of The Case, If Taken At Their Face Value, Prima Facie Disclose Commission Of Cognizable Offences Under Sections 406, 420, 504, 201 And 120-B IPC Against The Petitioner. The Contention That The Dispute Is Of Civil Nature Has No Substance. It Does Not Appear To Be Mere A Case Of Advancement Of Loan And Its Non-payment. There Is Something More Against The Petitioner And The Co-accused. They Had Not Only Fraudulently And Dishonestly Induced The Respondent No.2 To Pay Them Rs. Forty Two Lakh, But After Taking The Cheque Having Endorsement Of "self Or Bearer," They, In Order To Eliminate The Relevant Evidence Regarding The Payment, Misplaced The Relevant Register Kept At The Cash Chest. The Bins Were Not Open On 14.5.2003 And On That Date Total Receipt In The Bank Was Of Rs. 20.5 Lakhs Only In The Denomination Of Rs. 500/-, Therefore, The Alleged Payment Of Rs. Forty Two Lakhs To Respondent No. 2 Was Not Found Incorrect. In Banks, Payments To Bearer Cheque Holders Are Made At The Relevant Window And Not At The Cash Chest. It Has Also Come In Evidence During The Investigation That At The Cash Chest The Alleged Payment Was Shown To Have Been Received By The Petitioner. In This Way Adequate Materials Have Been Collected During The Investigation To Show Prima Facie That The Petitioner And The Co-accused Acted In An Ill-designed Manner From The Very Beginning To Cheat The Respondent No. 2. In This View Of The Matter, The Dispute Can Not Be Said To Be Merely Of Civil Nature. Whether The Allegations Made Against The Petitioner And The Co-accused Are Correct Or Not, Is A Question To Be Decided At The Appropriate Stage After The Trial And Can Not Be Examined At The Preliminary Stage Of Charge. Therefore, I Do Not Agree With The Submissions Of The Learned Counsel For The Petitioner That The Dispute Is Of Civil Nature.

17. Mr. Salil Kumar Srivastava Further Submitted That The Learned Additional Chief Judicial Magistrate Has Committed Error Of Law In Not Considering The Documents Filed By The Applicant. It Was Also Submitted That The Documents Filed By The Applicant Could Be Looked Into By This Court While Considering The Petition Under Section 482 CrPC. It Was Further Submitted That The Respondent No.2 Had Executed The Receipt (Annexure 12) Regarding Receipt Of Rs. Forty Two Lakhs And Moved Various Applications Admitting Receipt Of Rs. Forty Two Lakhs From The Bank, Therefore, Framing Of Charges Against The Petitioner, Without Considering Those Documents Was Not Proper. In Support Of This Submission, Mr. Srivastava Relied On Certain Observations Made By Hon'ble Mr. Justice M. Katju In The Case Of Rukmini Narvekar Vs. Vijaya Satardekar And Others, (2008) 14 SCC ? 1 In Para 22, Which Reads As Follows:

"Thus In Our Opinion While It Is True That Ordinarily Defence Material Cannot Be Looked Into By The Court While Framing Of The Charge In View Of D.N. Padhi's Case (supra), There May Be Some Very Rare And Exceptional Cases Where Some Defence Material When Shown To The Trial Court Would Convincingly Demonstrate That The Prosecution Version Is Totally Absurd Or Preposterous, And In Such Very Rare Cases The Defence Material Can Be Looked Into By The Court At The Time Of Framing Of The Charges Or Taking Cognizance. In Our Opinion, Therefore, It Cannot Be Said As An Absolute Proposition That Under No Circumstances Can The Court Look Into The Material Produced By The Defence At The Time Of Framing Of The Charges, Though This Should Be Done In Very Rare Cases, I.e. Where The Defence Produces Some Material Which Convincingly Demonstrates That The Whole Prosecution Case Is Totally Absurd Or Totally Concocted."
18. But In The Same Case, Hon'ble Altamas Kabir, J. Took A Different View In Para 38 And Observed As Follows:
"In My View, Therefore, There Is No Scope For The Accused To Produce Any Evidence In Support Of The Submissions Made On His Behalf At The Stage Of Framing Of Charge And Only Such Materials As Are Indicated In Section 227 Cr.P.C. Can Be Taken Into Consideration By The Learned Magistrate At That Stage. However, In A Proceeding Taken Therefrom Under Section 482 Cr.P.C. The Court Is Free To Consider Material That May Be Produced On Behalf Of The Accused To Arrive At A Decision Whether The Charge As Framed Could Be Maintained. This, In My View, Appears To Be The Intention Of The Legislature In Wording Sections 227 And 228 The Way In Which They Have Been Worded And As Explained In Debendra Nath Padhi's Case (supra) By The Larger Bench To Which The Very Same Question Had Been Referred."

19. A Larger Bench Of The Apex Court In The Case Of State Of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, Has Settled The Legal Position In Regard To The Relevancy Of Defence Evidence At The Stage Of Charge. In That Case, The Apex Court Has Held As Follows:

"16. All The Decisions, When They Hold That There Can Only Be Limited Evaluation Of Materials And Documents On Record And Sifting Of Evidence To Prima Facie Find Out Whether Sufficient Ground Exists Or Not For The Purpose Of Proceeding Further With The Trial, Have So Held With Reference To Materials And Documents Produced By The Prosecution And Not The Accused. The Decisions Proceed On The Basis Of Settled Legal Position That The Material As Produced By The Prosecution Alone Is To Be Considered And Not The One Produced By The Accused. The Latter Aspect Relating To The Accused Though Has Not Been Specifically Stated, Yet It Is Implicit In The Decisions. It Seems To Have Not Been Specifically So Stated As It Was Taken To Be Well Settled Proposition. This Aspect, However, Has Been Adverted To In State Anti-Corruption Bureau, Hyderabad And Another V. P. Suryaprakasam [1999 SCC (Crl.) 373] Where Considering The Scope Of Sections 239 And 240 Of The Code It Was Held That At The Time Of Framing Of Charge, What The Trial Court Is Required To, And Can Consider Are Only The Police Report Referred To Under Section 173 Of The Code And The Documents Sent With It. The Only Right The Accused Has At That Stage Is Of Being Heard And Nothing Beyond That (emphasis Supplied)......
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18. ................ It Only Means Hearing The Submissions Of The Accused On The Record Of The Case As Filed By The Prosecution And Documents Submitted Therewith And Nothing More. The Expression 'hearing The Submissions Of The Accused' Cannot Mean Opportunity To File Material To Be Granted To The Accused And Thereby Changing The Settled Law. At The State Of Framing Of Charge Hearing The Submissions Of The Accused Has To Be Confined To The Material Produced By The Police."
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24. As A Result Of 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's Case Holding That The Trial Court Has Powers To Consider Even Materials Which Accused May Produce At The Stage Of Section 227 Of The Code Has Not Been Correctly Decided."

20. The Larger Bench Decision In Debendra Nath Padhi's Case (supra) Prevails Over The Observations Made In Rukmini Narvekar's Case (supra), Therefore, The Defence Evidence/documents Had No Relevancy At The Stage Of Charge And They Could Not Be Taken Into Consideration For The Purpose Of Framing Charge Or Discharging The Accused. If The Contention That The Defence Evidence/documents Can Be Taken Into Consideration At The Stage Of Charge Is Accepted, In That Eventuality The Court Has To Consider Pros And Cons Of The Case At That Stage, Which Does Not Appear To Be The Requirements Of Sections 239 And 240 Of The Code.

21. The Learned Counsel For The Petitioner While Arguing On The Ambit And Scope Of Sections 239 And 240 Of The Code, Placed Reliance On The Following Cases:

(i) Dilawar Balu Kurane Vs. State Of Maharashtra (2002) 2 Supreme Court Cases 135;

(ii) Yogesh Alias Sachin Jagdish Joshi Vs. State Of Maharashtra (2008) 10 Supreme Court Cases 394;

(iii) Palwinder Singh Vs. Balwinder Singh And Others (2009) 2 Supreme Court Cases (Cri) 850


22. In The Case Of Dilawar Balu Kurane (supra), The Apex Court Has Examined The Ambit And Scope Of Section 227 Cr.P.C. And Held:-

"In Exercising Powers Under Section 227 Cr.P.C., The Settled Position Of Law Is That The Judge While Considering The Question Of Framing The Charges Under The Limited Purpose Of Finding Out Whether Or Not A Prima Facie Case Against The Accused Has Been Made Out; 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; By And Large If Two Views Are Equally Possible And The Judge Is Satisfied That The Evidence Produced Before Him Gave Rise To Some Suspicion But Not Grave Suspicion Against The Accused, He Will Be Fully Justified To Discharge The Accused, And In Exercising Jurisdiction Under Section 227 Cr.P.C., The Judge Cannot Act Merely As A Post Office Or A Mouthpiece 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 But Should Not Make A Roving Enquiry Into The Pros And Cons Of The Matter And Weigh The Evidence As If He Was Conducing A Trial.".

23. In Case Of Yogesh Alias Sachin Jagdish Joshi (supra), The Apex Court Has Almost Propounded The Same Principles In The Following Terms:-
"It Is Trite That The Words "not Sufficient Ground For Proceeding Against The Accused" Appearing In Section 227 Cr.P.C., Postulate Exercise Of Judicial Mind On The Part Of The Judge To The Facts Of The Case In Order To Determine Whether A Case For Trial Has Been Made Out By The Prosecution. However, In Assessing This Fact, The Judge Has The Power To Sift And Weigh The Material For The Limited Purpose Of Finding Out Whether Or Not A Prima Facie Case Against The Accused Has Been Made Out. The Test To Determine A Prima Face Case Depends Upon The Facts Of Each Case And In This Regard It Is Neither Feasible Nor Desirable 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 Gives Rise To Suspicion Only As Distinguished From Grave Suspicion, He Will Be Fully Within His Right To Discharge The Accused. At This Stage, He Is Not To See As To Whether The Trial Will End In Conviction Or Not. The Broad Test To Be Applied Is Whether The Materials On Record, If Unrebutted, Make A Conviction Reasonably Possible."

24. In The Case Of Palwinder Singh (supra), The Apex Court Reiterated The Aforesaid Principles And Held:-

"The Jurisdiction Of The Learned Sessions Judge While Exercising Power Under Section 227 Cr.P.C Is Limited. Charges Can Also Be Framed On The Basis Of Strong Suspicion. Marshalling And Appreciation Of Evidence Is Not In The Domain Of The Court At That Point Of Time. "

25. Apart From The Aforesaid Cases, In The Case Of Sajjan Kumar Vs. Central Bureau Of Investigation, JT 2010(10) SC 413, The Apex Court Has Formulated The Following Guidelines With Regard To The Question As To How A Matter For Framing A Charge Against The Accused Is To Be Dealt With:

"(i) The Judge While Considering The Question Of Framing The Charges Under Section 227 Of The Cr.P.C. 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. The Test To Determine Prima Facie Case Would Depend Upon The Facts Of Each Case.

ii) 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.

iii) The Court Cannot Act Merely As A Post Office Or A Mouthpiece 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 Etc. However, At This Stage, There Cannot Be A Roving Enquiry Into The Pros And Cons Of The Matter And Weigh The Evidence As If He Was Conducting A Trial.

iv) If On The Basis Of The Material On Record, The Court Could Form An Opinion That The Accused Might Have Committed Offence, It Can Frame The Charge, Though For Conviction The Conclusion Is Required To Be Proved Beyond Reasonable Doubt That The Accused Has Committed The Offence.

v) At The Time Of Framing Of The Charges, The Probative Value Of The Material On Record Cannot Be Gone Into But Before Framing A Charge The Court Must Apply Its Judicial Mind On The Material Placed On Record And Must Be Satisfied That The Commission Of Offence By The Accused Was Possible.

vi) At The Stage Of Sections 227 And 228, The Court Is Required To Evaluate The Material And Documents On Record With A View To Find Out If The Facts Emerging Therefrom Taken At Their Face Value Discloses The Existence Of All The Ingredients Constituting The Alleged Offence. 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.

vii) If Two Views Are Possible And One Of Them Gives Rise To Suspicion Only, As Distinguished From Grave Suspicion, The Trial Judge Will Be Empowered To Discharge The Accused And At This Stage, He Is Not To See Whether The Trial Will End In Conviction Or Acquittal."

26. The Aforesaid Decisions Have Almost Settled The Legal Position That At The Stage Of Charge The Court Is Not Required To Consider Pros And Cons Of The Case And To Hold An Enquiry To Find Out Truth. Marshalling And Appreciation Of Evidence Is Not In The Domain Of The Court At That Point Of Time. What Is Required From The Court Is To Sift And Weigh The Materials For The Limited Purpose Of Finding Out Whether Or Not A Prima Facie Case For Framing A Charge Against The Accused Has Been Made Out. Even In A Case Of Grave Or Strong Suspicion Charge Can Be Framed. The Court Has To Consider Broad Probabilities Of The Case, Total Effect Of The Evidence And The Documents Produced Including Basic Infirmities, If Any. If On The Basis Of The Material On Record, The Court Could Form An Opinion That The Accused Might Have Committed Offence, It Can Frame The Charge, But The Court Should Not Weigh The Evidence As If It Were Holding Trial. Accused Can Be Discharged Only When The Charge Is Groundless. In My Opinion, The Learned Additional Chief Judicial Magistrate Has Taken Into Account All The Relevant Materials And Passed The Impugned Order Keeping In View The Parameters Laid Down By The Apex Court In The Aforesaid Cases. It Does Not Appear To Be A Case Which Is To Be Closed At The Stage Of Charge, Specially When So Many Persons Including Respondent No.2 And Several Officials Of The Bank Have Given Statements Against The Applicant During The Investigation And The Relevant Register Has Been Misplaced. In View Of The Fact That The Respondent No.2 Is Alleged To Have Paid Rs. Forty Two Lakh To The Applicant And Co-accused By Taking Loan From The Bank, The Pendency Of The Civil Proceeding For Recovery Has No Relevance At This Stage. Therefore, The Submission Of The Counsel For The Applicant That No Charge Was Made Out Has No Substance.

27. Mr. Salil Kumar Srivastava Lastly Submitted That Initially A Final Report Was Submitted But The Learned Magistrate Directed For Further Investigation. The Police Again Submitted A Final Report But Under The Direction Of The Director General Of Police The Matter Was Investigated By The Present Investigating Agency, Who Submitted A Charge Sheet. The Learned Magistrate Committed Error Of Law In Ignoring The Final Report While Considering The Prayer For Discharge. It Appears That The First Final Report Was Rejected By The Learned Magistrate Vide The Order Dated 26.4.2005 And He Directed For Further Investigation. In Regard To The Second Final Report It Is Not Clear As To What Order Was Passed Thereon. The Final Reports Had Not Been Relied On By The Investigating Officer In Support Of The Charge Sheet Filed Against The Petitioner And The Co-accused, Therefore, They Were Not The Relevant Documents Within The Meaning Of Sections 239 And 240 Of The Code. According To Section 239 Of The Code, The Relevant Material Is The Police Report And The Documents Sent With It Under Section 173 Of The Code And Not Any Other Document. The Learned Additional Chief Judicial Magistrate Appears To Have Considered The Police Report As Well As The Documents Sent With The Police Report Under Section 173 Of The Code, While Passing The Impugned Order, Therefore, The Impugned Order Can Not Be Quashed On The Ground That The Final Reports Were Not Considered. Therefore, This Submission Also Fails.

28. Whatever Observations Have Been Made In This Judgment Touching Merits Of The Case, Will Have No Significance During The Trial.

29. For The Reasons Discussed Above, The Petition Has No Merit And Is Accordingly Dismissed. Interim Order, If Any, Is Vacated. However, The Bail Prayer Of The Petitioner Vijay Kumar Trivedi In The Aforesaid Criminal Case May Be Considered And Disposed Of By The Courts Below In The Light Of The Principles Laid Down In The Case Of Lal Kamlendra Pratap Singh Versus State Of U.P. & Others (2009) 4 SCC 437.

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