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2003 DIGILAW 1063 (RAJ)

Om Prakash v. State of Rajasthan

2003-07-28

H.R.PANWAR

body2003
Honble PANWAR, J.–By this criminal revision petition under Section 397/401 of the Code of Criminal Procedure (for short, ``the Code), the accused-petitioner has challenged the order dated 15-10-2001 passed by the Judicial Magistrate, Raisinghnagar, whereby the learned trial Court framed the charges against the accused-petitioner for the offences under Sections 420 and 406 of the Indian Penal Code (for short, ``IPC). (2). I have heard learned counsel for the petitioner and the learned Public Prosecutor and perused the impugned order as also the record of the trial court. (3). It is contended by the learned counsel for the petitioner that the sale deed, for which cheating is alleged, was executed by the complainant and while executing the sale deed, if any offence of cheating is committed then unless the sale deed is quashed, petitioner cannot be put to trial in a criminal court. It was further contended that the matter is of civil nature and the parties have resorted for the remedy to the civil court and, therefore, the finding of the civil court will be binding and under these circumstances, it will be proper either to wait for the decision by the civil court or to quash the criminal proceedings. (4). Learned Public Prosecutor appearing for the State refutted the contentions raised by the learned counsel for the petitioner and supported the order framing the charges passed by the learned trial court. It was contended by the learned Public Prosecutor that the complainant is a widow and illiterate lady who has been cheated by the petitioner who is none else but the real younger brother of the deceased husband of the complainant and, thus, submitted that the order passed by the trial court calls for no interference. (5). Complainant Smt. Radha Devi Widow of late (Shri) Manphool lodged an FIR on 17-3-2000 with Police Station, Muklawa, district Sri Ganganagar, inter alia, alleging therein that she inherited the agricultural and measuring 2 Bighas in Chak No. 16-TK, Murada No. 4. On the death of her husband, the land was mutated in her favour. The accused-petitioner, who is the younger brother of her husband, by deceitful means and fraudulent intention, got executed a sale deed of the land in question in his favour without paying any consideration under the belief and garb that the complainant executed a document for giving the land on contract (Theka) for cultivation purpose. The accused-petitioner, who is the younger brother of her husband, by deceitful means and fraudulent intention, got executed a sale deed of the land in question in his favour without paying any consideration under the belief and garb that the complainant executed a document for giving the land on contract (Theka) for cultivation purpose. From the FIR and the statement of other witnesses, it is clear that the complainant, who is an illiterate widow, brought this matter to the knowledge of the Panchayat and a Panchayat was convened to resolve this controversy. The accused, before the Panchayat, admitted in clear terms that he got the land of the complainant transferred in his favour by a registered sale deed and no consideration was ever paid by him to the complainant for the alleged sell. In the presence of various members of the Panchayat, the accused- petitioner executed an agreement on a non-judicial stamp of Rs. 100/- which is on record. By this agreement, it was agreed that he would pay Rs. 1,20,000/- to the complainant as the price for one and half Bigha of land in two installments, i.e. Rs. 60,000/- on 15-12-1999 and remaining Rs. 60,000/- on 15-12-1999 and remaining Rs. 60,000/- on 25-4-2000 and would re-transfer the land measuring half Bigha in favour of the complainant for which he will execute a sale deed. There was also some agreement with regard to path way. Despite his unequivocal admission before the various members of the Panchayat and execution of the agreement dated 11-2-1999, the accused-petitioner, by a dishonest and fraudulent intention, has neither paid the sum of Rs. 1,20,000/- nor returned the possession of land measuring half Bigha, as such committed the offences of cheating as well as criminal breach of trust by misappropriating the said amount in question for his wrongful gain. (6). I have carefully gone through the statement of various prosecution witnesses recorded by the police, who were the members of the Panchayat. I have also gone through the said agreement. The specimen signatures of the petitioner was taken in the presence of the Deputy Superintendent of Police, Raisinghnagar and sent to the Handwriting Expert for opinion. The FSL report issued by the State Forensic Science Laboratory is on record. From the opinion of the handwriting expert, it is clear that the specimen signatures of the petitioner are similar to his admitted signatures. The FSL report issued by the State Forensic Science Laboratory is on record. From the opinion of the handwriting expert, it is clear that the specimen signatures of the petitioner are similar to his admitted signatures. Thus, prima facie, the execution of the agreement dated 11-2-1999 is established. (7). At the stage of framing the charge, the trial court is required to consider the material placed before it by the investigating agency and after hearing, it has to form an opinion as to: whether there is a ground for presuming that the accused has committed the offence. If on consideration and hearing, the trial court is of opinion that there is a ground to presume that the accused has committed the offences then the charge has to be framed and the court may proceed with the trail. (8). In the instant case, on careful scrutiny of the material available on record, including the statement of the prosecution witnesses, the agreement and the FSL report, the trial court rightly came to the conclusion that there is a ground for presuming that the accused-petitioner has committed the offences noticed above and, therefore, it cannot be said that the order of the learned trial court suffers from any irregularity, illegality or perversity. (9). It has next been contended by the learned counsel for the petitioner that the dispute is of a civil nature and as such the criminal proceedings should be quashed. The Honble Apex Court, in State of Haryana vs. Bhajan Lal (1), has held that quashment of FIR or a complaint in exercise of inherent powers of the High Court should be limited to very extreme exceptions. Same view has been reiterated in Rajesh Bajaj vs. State NCT of Delhi (2), wherein the Honble Apex Court held that merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. The Court further observed as under:- ``It may be that the facts narrated in the present complaint would as well reveal a commercial transaction or money transaction. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. (10). In Trisuns Chemicals Industry vs. Rajesh Agarwal & Ors. But that is hardly a reason for holding that the offence of cheating would elude from such a transaction. In fact, many a cheatings were committed in the course of commercial and also money transactions. (10). In Trisuns Chemicals Industry vs. Rajesh Agarwal & Ors. (3), the Honble Supreme Court held that merely because dispute is of civil nature and Magistrate had no jurisdiction to take cognizance, the same cannot be a sufficient ground for quashing FIR, particularly when act prima facie constitutes an offence. The Honble Apex Court held as under:- ``We are unable to appreciate the reasoning that the provision incorporated in the agreement for referring the disputes to arbitration is an effective substitute for a criminal prosecution when the disputed act is an offence. Arbitration is a remedy for affording reliefs to the party affected by breach of the agreement but the arbitrator cannot conduct a trial of any act which amounted to an offence albeit the same act may be connected with the discharge of any function under the agreement. Hence, those are not good reasons for the High Court to axe down the complaint at the threshold itself. The investigating agency should have had the freedom to go into the whole gamut of the allegations and to reach a conclusion of its own. Pre-emption of such investigation would be justified only in very extreme cases. (11). In Vitoori Pradeep Kumar vs. Kaisula Dharamaiah & Ors. (4), the Honble Supreme Court held that the so-called civil suit is a suit for specific performance. We see no justification on the part of the High Court under such circumstances to direct that the criminal proceedings should be quashed. (12). It is settled law that at the stage of passing order in terms of sections 227 and 228 Cr.P.C., the Court is required to peruse the evidence in order to find out whether or not there is any sufficient ground for proceeding against the accused and if after such consideration, the Court is of the opinion that there is a ground for presuming that the accused has committed an offence, the Court may frame a charge against the accused. (13). In Kanti Bhadra Shah & Anr. (13). In Kanti Bhadra Shah & Anr. vs. State of West Bengal (5), the Honble Supreme Court held as under:- ``If the Trial Court decides to frame a charge, there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the Trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. It was further held that there is no legal requirement that the Trial Court should write an order showing the reasons for framing a charge, why should the already burdened Trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. (14). In State of Bihar vs. Ramesh Singh (6), the Honble Supreme Court observed as under :- ``Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that the beginning and the initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter u/s. 227 or 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. (15). In Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau (7), the Honble Supreme Court held as under:- ``At the stage of framing charge, the Court is not expected to go deep into the probative value of the materials on record. If on the basis of materials on record the Court could come to the conclusion that the accused would have committed the offence, the Court is obliged to frame the charge and proceed to the trial. (16). In Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chordia and Another (8), the Honble Supreme Court has observed that Court should be loth in interfering at the stage of framing of charge against the accused. Self restraint on the part of the High Court should be the real unless there is glaring injustice. (17). In Supdt. & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors. (9), the Honble Supreme Court observed as under :- ``At the initial stage of framing of charges, the prosecution evidence does not commence. The Court has, therefore, to consider the question of framing the charges on general considerations of the material placed before it by the investigating agency. At this stage, the truth, veracity and effect of the judgment which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. At this stage, the truth, veracity and effect of the judgment which the prosecution proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding an accused guilty or otherwise is not exactly to be applied at the stage of framing the charge. Even on the basis of a strong suspicion founded on materials before it, the Court can form a presumptive opinion regarding the existence of factual ingredients constituting the offence alleged and in that event be justified in framing the charges against the accused in respect of the commission of the offence alleged to have been committed by them. (18). In State of Maharashtra vs. Priya Sharan Maharaj (10), the Honble Supreme Court held that the law on the subject is now well settled as pointed out in Niranjan Singh Punjabi vs. Jitendra Bhimraj Bijja (11), that at sections 227 and 228 stage, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, 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. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out if there is a ground for presuming that the accused has committed the offence or that there is no 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. (19). In State of Delhi vs. Gyan Devi & Ors. (12), the Honble Supreme Court held that the legal position is well settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the Court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge, the Court is to examine the materials only with a view to be satisfied that a prima facie of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under section 482 seeking for quashing of charge framed against them the Court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the Court, a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. It is to be kept in mind that once the trial court has framed a charge against an accused, the trial must proceed without unnecessary interference by a superior court and the entire evidence from the prosecution side should be place on record. Any attempt by an accused for quashing of a charge before the entire prosecution evidence has come on record, should not be entertained. (20). In Munna Devi vs. State of Rajasthan & Anr. (13), the Honble Supreme Court held as under :- ``The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers, the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged. (21). In view of the above settled legal principles, it is clear that at the stage of framing of charge, the trial court is not required to meticulously examine and marshal the material available on record as to whether there is sufficient material against the accused which would ultimately result in conviction. The Court is prima facie required to consider whether there is sufficient material against the accused to presume the commission of the offence. The Court is prima facie required to consider whether there is sufficient material against the accused to presume the commission of the offence. Even strong suspicion about commission of offence is sufficient for framing the charge, the guilt or innocence of the accused has to be determined at the time of conclusion of trial after evidence is adduced and not at the stage of framing of the charge and, therefore, at the stage of framing of charge, the Court is not required to undertake an elaborate enquiry for the purpose of sifting and weighing the material. (22). In view of the above settled legal proposition, the order passed by the learned trial court does not require any interference. The revision is accordingly dismissed.