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Himachal Pradesh High Court · body

2000 DIGILAW 306 (HP)

STATE OF HIMACHAL PRADESH v. RAJPAL

2000-11-28

KAMLESH SHARMA, M.R.VERMA

body2000
JUDGMENT M.R. Verma, J.:- This appeal has been preferred by the State against the judgment dated 29.6.1992 passed by the learned Judicial Magistrate 1st Class (II), Amb, Distt. Una, H.P., whereby the respondent - accused Raj Pal Singh (hereinafter referred to as the accused) and one Ved Bhushan (since deceased) had been acquitted of a charge under Section 408IPC. 2. Brief facts leading to the presentation of this appeal, are as follows: 3. The accused remained posted as Branch Manager in the Kangra Central Co-operative Bank, Amb Branch, from 11.9.1974 to 8.11.1980 and deceased Ved Bhushan was the cashier in the said branch of the bank from 3.10.1973 to 15.10.1980. On inspection of the working of the said bank, the then Deputy General Manager found that the accused and Ved Bhushan had indulged in mal practice, were negligent in the discharge of their duties and had misappropriated the funds of the bank by cheating and forgery and thereby caused actual loss of Rs.3,44,034.24 to the Bank. Accordingly he submitted a report Ex.PW-3/A to the General Manager of the bank, who forwarded the said report alongwith his complaint Ex.PW-1/A to the Superintendent of Police, Una, Distt. Una. Consequently, a case under Sections 409,467,468, 471,420 IPC was registered in Police Station, Amb .On investigation by the police, it was found that the accused and the deceased drew and misappropriated a sum of Rs.1, 74,950/- by forging the bank accounts of different persons and in connivance with Prem Sagar drew Rs.1, 87,000/- from the bank after using it for their personal purposes re-deposited the amount in the bank by forging the records. Therefore, the officer incharge, Police Station, Amb submitted a charge sheet against the accused and the deceased under Sections 409,420,468,471,201/34 IPC and against accused Prem Sagar under Sections 420/120-B/471 IPC. The learned trial Magistrate, vide order dated 16.3.1987 discharged accused Prem Sagar and framed a charged under Section 408 IPC against the accused and deceased Ved Bhushan. To prove the charge against the accused, prosecution examined 11 witnesses. Statements of the accused under Section 313 Cr. P. C. were recorded. One witness was examined in defence. Finally, the trial resulted in acquittal of the accused. Hence the present appeal. 4. We have heard the learned Additional Advocate General for the State and the learned counsel for the accused and have also gone through the records. 5. Statements of the accused under Section 313 Cr. P. C. were recorded. One witness was examined in defence. Finally, the trial resulted in acquittal of the accused. Hence the present appeal. 4. We have heard the learned Additional Advocate General for the State and the learned counsel for the accused and have also gone through the records. 5. The learned Additional Advocate General has, at the first instance, contended that the case deserves to be remanded for fresh trial on the grounds (i) that on the basis of the charge sheet submitted by the police, there are grounds to proceed against the accused persons and to frame charge under Sections 409, 468,471 and 34 IPC but the trial magistrate discharged one of the accused and framed a charge under Section 408 IPC wrongly, therefore, the entire trial was misdirected resulting in miscarriage of justice, (ii) that in view of the said material, complicity of accused Prem Sagar in the commission of the offences complained against is prima facie established and he has been wrongly discharged, and (iii) that the evidence of the prosecution was closed by the trial Magistrate vide order dated 26.2.1992 for insufficient and highly inadequate reasons. 6. There is no dispute that the prosecution neither made any application to the learned trial Magistrate nor preferred any revision petition against the wrong framing of the charge and discharge order which was passed on 16.3.1987 i.e. more than 13 years before. Prem Sagar who was discharged by this order is not before us, and no order prejudicial to him can be now passed on the basis of ground (ii) supra raised by the learned Additional Advocate General. In so far as the accused before us is concerned we do not find it justifiable to remand the case for fresh trial. The case against the accused was registered on 4.7.1981, and remained under investigation till 11.1.1985 when the charge sheet was submitted by the investigating agency. The trial before the learned Magistrate concluded and impugned judgment passed on 29.6.1992. Thus the accused is undergoing the ordeal of facing investigation and litigation for the last more than 19 years which in itself is more torturous than the maximum punishment the trial Magistrate could have awarded to the accused in the event of conviction. The trial before the learned Magistrate concluded and impugned judgment passed on 29.6.1992. Thus the accused is undergoing the ordeal of facing investigation and litigation for the last more than 19 years which in itself is more torturous than the maximum punishment the trial Magistrate could have awarded to the accused in the event of conviction. The State itself is to be blamed for not taking appropriate steps to get rectified the wrong omissions and commissions, if any, in framing the charge and the discharge order dated 16.3.1987 and cannot be permitted to seek remand at this belated stage on the basis of ground (i) supra pressed into service and to hold the contrary will virtually be violative of the accuseds right of speedy trial. 7. As already stated hereinabove, the trial remained pending before the trial Magistrate for more than 7 years. The prosecution had ample opportunity to lead its entire evidence which it had failed to do. The precise submission of the learned Additional Advocate General in this regard is that the default in serving the remaining prosecution witnesses summoned for 26.2.1992 was not of the prosecutor and the trial Magistrate should have enforced compliance of his order regarding service of witnesses by the police instead of closing the prosecution evidence. We are unable to appreciate the contention. In a criminal case instituted on police report, indisputably it is the duty of the prosecution to produce its evidence. In case it is unable to do so for any cause, it may apply to the court to issue summons to any of its witnesses directing him to attend or to produce any document or other thing. Once the court issues such summons, it is duty of the prosecution to get them served through the agency of the State meant for the purpose. In case the summons so issued are not returned served or unserved and prosecution has no reasonable explanation for the lapse, the court will be fully justified in closing the evidence of the prosecution. Once the court issues such summons, it is duty of the prosecution to get them served through the agency of the State meant for the purpose. In case the summons so issued are not returned served or unserved and prosecution has no reasonable explanation for the lapse, the court will be fully justified in closing the evidence of the prosecution. A Court may though adjourn the case for a future date thereby granting another opportunity to the prosecution to produce its evidence subject to payment of costs to the accused as provided in Explanation 2 to sub section (2) of Section 309 of the Code of Criminal Procedure or without costs as may be just in the facts and circumstances of the case but that does not mean that the court should continue to adjourn cases merely on the asking of the prosecution without assigning any reasonable excuse justifying adjournment. 8. The case in hand was for the first time ordered to be listed for prosecution evidence vide order dated 16.3.1987 and was repeatedly listed for the same purpose till 26.2.1992 when the learned trial Magistrate finally ordered closing of the prosecution evidence on the ground that summons issued for service of the remaining witnesses were not returned served or unserved and the prosecution has no reason to explain the lapse. Though the adjournments caused in between the aforesaid period during which the case remained pending for recording prosecution evidence are not entirely attributable to the prosecution, but it had more than enough opportunities to lead its evidence. Therefore, the prosecutions failure to lead evidence without any just and reasonable cause cannot be a ground to remand a case for retrial/recording further evidence which the prosecution had failed to adduce despite more than enough opportunities and time. 9. The view we have taken hereinabove is fully supported by the decisions in Sochi Ram v. Emperor 39 Cr.L.J. 1938 at P.278; Abinash Chandra Bose v. Bimal Krishna Sen & Anr., AIR 1963 SC 316. 10. In Sochi Rams case (supra), the High Court of Patna held as under: "For the reasons given by the learned Judicial Commissioner of Chota Nagpur in his letter of reference, dated August 25, 1937, the conviction is set aside. I do not, however, accept the recommendation that the case should be remanded for re-trial. 10. In Sochi Rams case (supra), the High Court of Patna held as under: "For the reasons given by the learned Judicial Commissioner of Chota Nagpur in his letter of reference, dated August 25, 1937, the conviction is set aside. I do not, however, accept the recommendation that the case should be remanded for re-trial. The prosecution as pointed out by the learned Judicial Commissioner has failed to adduce the necessary evidence which would justify the conviction of the accused. It seems to me that the prosecution should not be allowed another opportunity to fill in the gaps which were deliberately left by them. The prosecution must realize that they are required and expected to produce all the relevant and available evidence in order to bring home the charge to the accused and they cannot be allowed to produce evidence at their pleasure piece meal. With these remarks the reference is disposed of." 11. In Abinash Chandras case, the Apex Court held as under: "In all civilized countries, criminal jurisprudence has firmly established the rule that an accused person should not be placed on trial for the same offence more than once, except in every exceptional circumstances. In this case, the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person. It was not that he prayed for the examination of an expert and that opportunity had been denied to him. The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial Court. That Court was not satisfied that the evidence was adequately reliable to bring the charge home to the accused. The accused was thus acquitted. On appeal, it was open to the High Court to take a different view of the evidence, if the facts and circumstances placed before it could lead to the conclusion that the appreciation of the evidence by the trial Court was so thoroughly erroneous as to be wholly unacceptable to the Appellate Court. If the High Court could come to that conclusion, it could have reversed the judgment and converted the order of acquittal into an order of conviction. If the High Court could come to that conclusion, it could have reversed the judgment and converted the order of acquittal into an order of conviction. But it should not have put the accused to the botheration and expense of a second trial simply because the prosecution did not adduce all the evidence that should, and could, have been brought before the Court of first instance." 12. In view of the position in law and the facts and circumstances of the case as set out hereinabove, this is not a case wherein retrial may be ordered. 13. It was next contended by the learned Additional Advocate General that there is ample evidence on record to prove the charge of dishonest misappropriation of money by the accused, therefore, he may be convicted and sentenced for the commission of the offence under Section 409IPC or the lessor offence for which he was charged. The learned Additional Advocate General has not referred to any provision of law enabling the course suggested by him. 14. The only provisions in law which may have any relevance to the submissions made are Sections 215, 216, 221, 222, and 464 of the Code of Criminal Procedure. 15. Section 216 of the Code reads as under: "Court may alter charge: (l).Any Court may alter or add to any charge at any time before judgment is pronounced. (2) Every such alteration or additional shall be read and explained to the accused. (3) If the alteration or addition to a charge is such that proceeding immediately with the trial is. not likely in the opinion of the Court, to prejudice the accused in his defence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary. (5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction has been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded." 16. Section 464 of the Code of Criminal Procedure reads as under: "Effect of omission to frame, or absence of, or error in, charge : (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may- (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge; (b) In the case of an error, omission or irregularity in the charge, directa new trial to be had upon a charge framed in whatever manner it thinks fit: Provided that if the Court is of opinion that the facts of the case are suchthat no valid charge could be preferred against the accused in respect ofthe facts proved, it shall quash the conviction." 17. It is apparent on bare reading of the aforesaid provisions that recourse to these sections will lead to a retrial of the case and we have already concluded that this is not a case where retrial may be directed at this belated stage. Moreover, recourse to these provisions may be had liberally to undo the prejudice caused to the accused and not to enable the prosecution to rectify its lapses. 18. Moreover, recourse to these provisions may be had liberally to undo the prejudice caused to the accused and not to enable the prosecution to rectify its lapses. 18. Section 221 of the Code reads as follows: "Where it is doubtful what offence has been committed: (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it." 19. It is clear on a bare reading of these provisions that recourse to them can be had if the trial court had doubt as to which of the several offences was made out in view of the material placed before it. This is not so in the case in hand, therefore, being the appellate court, it is not open to this Court to convict the accused for the offence for which he had not been charged without there being any doubt as aforesaid. Therefore, even under these provisions, the contention of the learned Additional Advocate General cannot be accepted. 20. The applicability of the provisions of Section 222 of the Code to this case depends on the view which we may take about the effect of the provisions of Section 215 of the? Code of Criminal Procedure on the question of framing of the charge as involved in this case. Therefore, this aspect of the matter will be examined later. 21. Code of Criminal Procedure on the question of framing of the charge as involved in this case. Therefore, this aspect of the matter will be examined later. 21. Section 215 of the Code reads as follows: "Effect of errors: No error in stating either the offence or the particularsrequired to be stated in the charge, and no omission to state the offenceor those particulars, shall be regarded at any stage of the case as material,1 unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice." 22. As is apparent from the above provisions, an error in framing a charge shall be regarded as material save and except in two eventualities, viz. (i) that such error has misled the accused in his defence and (ii) that it has led to a failure of justice. 23. A perusal of the record and the facts and circumstances of the case particularly the fact that during more than 7 years of the pendency of the case at the trial stage, neither the accused nor the prosecution ever pointed out that the charge under Section 408 IPC was wrongly framed against the accused or it contained any other error or omission. In fact the charge so framed contains all the material particulars and the parties prosecuted their respective cases knowing fully well the allegations and the defence. No prejudice because of the error as pointed out is shown nor does appear to have been caused to either of the parties. 24. On merits we find that the alleged misappropriation by the accused is not substantiated as we shall discuss hereafter, therefore, the question as to under what provision of law the accused may be convicted and sentenced does not survive for determination. Therefore, the provisions of Section 222 of the Code are also not attracted in this case. 25. It is the case of the prosecution that the accused alongwith the co accused (one of whom is since deceased and another discharged) in all misappropriated a sum of Rs. 1,74,950/- and another sum of Rs.1,87,000/- temporarily in connivance with Prem Sagar who stood discharged, therefore, charge against the accused is only in respect of the former sum of Rs.1,74,950/-. It is the case of the prosecution that the accused alongwith the co accused (one of whom is since deceased and another discharged) in all misappropriated a sum of Rs. 1,74,950/- and another sum of Rs.1,87,000/- temporarily in connivance with Prem Sagar who stood discharged, therefore, charge against the accused is only in respect of the former sum of Rs.1,74,950/-. This amount is alleged to have been misappropriated by dishonest non deposits/withdrawals from bank by forging documents, from the accounts of Rattan Chand, Sohan Lal, Prem Sagar, Gian Chand, Ram Singh, M/S. Ram Krishan Rajinder Kumar, T.R. Jaswal and Churdoo Baredi Society and by opening a fictitious account in the name of Tilak Raj Jaswal. Evidently, the aforesaid genuine account holders and the one in whose name fictitious account was opened are the best witnesses to depose about the allegations against the accused. However, none of these persons except PW-5 Rattan Chand, PW-6 Ram Kishan and PW-7 Rajinder Kumar of M/S. Ram Kishan Rajinder Kumar have been produced and examined by the prosecution. So far as PW-5 Rattan Chand is concerned, he has not supported the prosecution version that any amount from his bank account was misappropriated by the accused or anyone else or any cheque was forged for this purpose. PW-6 Ram Kishan has denied withdrawal of the disputed amount of Rs.l 1,000/- by him from his bank account by submitting cheque or withdrawal form and similarly PW-7 Rajinder Kumar has denied withdrawal of the disputed sum of Rs.60,000/- from the bank account of the firm. PW-6 Ram Kishan is admittedly an illiterate person. It is admitted by PW-6 and PW-7 that the accounts work of their firm was looked after by their accountant and the cheques were filled in by him. PW-7 has .further stated that Survir Singh was their accountant and that the withdrawal/deposit transactions with the bank were done by PW-6 and the said accountant. It is not in the statement of either of these witnesses that the aforesaid sums were not withdrawn by their accountant and said accountant has not been examined. In fact, there is no evidence to prove that the different amounts alleged to have been withdrawn and misappropriated by the accused were not drawn and dealt with by or on behalf of the genuine accounts holders. Thus, this is entirely a case of no evidence against the accused. 26. In fact, there is no evidence to prove that the different amounts alleged to have been withdrawn and misappropriated by the accused were not drawn and dealt with by or on behalf of the genuine accounts holders. Thus, this is entirely a case of no evidence against the accused. 26. For all the reasons stated hereinabove, the impugned order of acquittal does not call for any interference and as a consequence this appeal is dismissed. The bail bonds furnished by the accused are discharged.