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2003 DIGILAW 707 (KAR)

F. Stephen v. Prabha Shankar

2003-08-22

S.B.MAJAGE

body2003
ORDER S.B. Majage, J.--Under Section 397 of the Code of Criminal Procedure, the Petitioner-accused in C.C. No. 8107 of 2000 on the file of the Court of IV Additional C.M.M. at Bangalore City has requested to quash the order dated 14.8.2001 passed by the learned Magistrate proposing to frame charge for offences punishable under Sections 406 and 420 of Code of Criminal Procedure 2. Facts, which gave rise to the present matter, are: The complainant, being the owner of house property bearing No. 613 situated in 'T' Block of Jayanagar at Bangalore consisted of 3 floors' construction, sold the same to the Petitioner-accused for consideration of Rs.18 lakhs under registered sale deed dated 5.3.1999. According to her, she delivered possession of the said property except the first floor portion, which was in occupation of one Indumathi - a tenant residing therein. So, a sum of Rs.6 lakhs was given to the Petitioner-accused with conditions that he should refund it with interest @ Rs.4% per annum subject to the eviction of Indumathi on or before 3.5.1999 and if said Indumathi is not evicted before 3.5.1999, a sum of Rs.5,000/- per month shall be levied as penalty on complainant and deducted in the said amount by the Petitioner-accused. Accordingly, said Indumathi was evicted before the stipulated date, but the Petitioner-accused neither paid interest nor refunded the said amount inspite of demand and notices issued. Thus, the Petitioner-accused has cheated her and committed criminal breach of trust and consequently, committed offences under Sections 403, 405, 406, 415 and 420 I.P.C. With said allegations, the Respondent-complainant approached Magistrate Court, which took cognizance of the offences and issued process against the Petitioner-accused. That was challenged by him unsuccessfully in Criminal Petition No. 92 of 2001 before this Court. Thereafter, when the matter went back to the learned Magistrate, he recorded the statement of the complainant and then, after considering the material available on record, passed the impugned order proposing to frame charge for offences punishable under Sections 406 and 420 I.P.C. So, the Petitioner-accused is before this Court again. 3. Heard the learned Counsel for the parties. It is vehemently argued for the Petitioner-accused that the averments in the complaint and material on record do not make out a case against accused for the offences alleged and as such, the learned Magistrate was wrong in proposing to frame charge for those offences. 3. Heard the learned Counsel for the parties. It is vehemently argued for the Petitioner-accused that the averments in the complaint and material on record do not make out a case against accused for the offences alleged and as such, the learned Magistrate was wrong in proposing to frame charge for those offences. On the other hand, the learned Counsel for the Respondent-complainant supported the impugned order since, according to him, at this stage, the material on record is sufficient to frame charges as proposed. Perused the records carefully. 4. So, the only point for consideration is: Whether the impugned order requires to be quashed? 5. It is well settled as to when an accused can be discharged without framing any charge. In the case of R.S. Nayak Vs. A.R. Antulay and Another, AIR 1986 SC 2045 , the Supreme Court has observed thus: The Code contemplates discharge of the accused by the Court of Session under Section 227 in case triable by it ; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain somewhat different provisions in regard to discharge of the accused. Under Section 227, the trial Judge is required to discharge the accused if he 'considers that there is no sufficient ground for proceeding against the accused.' Obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under Section 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction. . ." It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. Notwithstanding this difference in the position, there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie is made out, charge has to be framed. 45. In Mahant Abhey Dass Vs. S. Gurdial Singh and Others, AIR 1971 SC 834 , this Court in a case instituted on complaint applied the prima facie test. In State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 , this Court again pointed out that the standard of test and Judgment which is to be finally applied before recording a finding regarding guilt or otherwise of the accused, is not to be applied at the stage of deciding the matter under Section 227. It was further observed: If the evidence which the prosecution proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But, if on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally, the order which will have to be made will be one under Section 228 (charge to be framed) and not under Section 227 (of discharge). But, if on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally, the order which will have to be made will be one under Section 228 (charge to be framed) and not under Section 227 (of discharge). Untwalia, J. who spoke for the Court in that case, quoted with approval the view expressed by Shelat, J. in Nirmaljit Singh Hoon Vs. The State of West Bengal and Another, AIR 1972 SC 2639 and what had been said in yet another earlier decision of the Court in Chandra Deo Singh Vs. Prokash Chandra Bose and Another, AIR 1963 SC 1430 . In the case of Union of India v. Prafulla Kumar Samal, (a decision to which the trial Court referred), this Court was dealing with a case involving allegations relating to offences punishable under Section 5(2) read with Section 5(1)(d) of the Act and Section 120B, IPC, as here. Fazal Ali J. indicated that the Court has 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. In Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, AIR 1980 SC 52 , a three Judge Bench of this Court said: At this stage, as was pointed out by this Court in State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 , the truth, veracity and the effect of the evidence 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 the accused guilty or otherwise is not exactly to be applied. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge.... The language of Sub-section (1) of Section 245 also places the matter beyond dispute by using the same test as suggested by Untwalia J., in the case of Ramesh Singh (supra)." (emphasis supplied) 6. The language of Sub-section (1) of Section 245 also places the matter beyond dispute by using the same test as suggested by Untwalia J., in the case of Ramesh Singh (supra)." (emphasis supplied) 6. Since it was contended for the accused that the allegations made show that the matter is of civil in nature and not for an action under criminal law, it may be relevant to note the following observations made by the Supreme Court in the case of Pratibha Rani Vs. Suraj Kumar and Another, AIR 1985 SC 628 extracted with approval in the case of Alpic Finance Limited v. V.P. Sadasivan, AIR 2001 SCW 823 : ...It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. . . So also, the observations made in the case of Trisuns Chemical Industry Vs. Rajesh Agarwal and others, AIR 1999 SC 3499 that: ...merely because an act has a civil profile is not sufficient to denude it of its criminal outfit. 7. It may also be noted that at the stage of framing charge, the trial Court under Section 245 and the High Court under Section 482 Code of Criminal Procedure are not called upon to embark upon an enquiry as to whether evidence in question is reliable or not. However, if upon the admitted facts and the documents relied upon by the complainant, if no case is made out, the criminal proceedings instituted against the accused are required to be dropped or quashed. As observed by the Supreme Court in the case of Rajesh Bajaj Vs. State NCT of Delhi and Others, AIR 1999 SC 1216 , the High Court or the Magistrate are also not supposed to adopt a strict hypertechnical approach to sieve the complaint through a colander or finest gauzes for testing the ingredients of offence with which the accused is charged. Of course, such an endeavour may be justified during trail but not during the initial stage, as observed in the case of K. Ramakrishna and Others Vs. State of Bihar and Another, AIR 2000 SC 3330 . 8. Bearing in mind said decisions and provisions of law, now let me consider whether it is a case to invoke Section 397 read with Section 401 of the Code of Criminal Procedure ? 9. State of Bihar and Another, AIR 2000 SC 3330 . 8. Bearing in mind said decisions and provisions of law, now let me consider whether it is a case to invoke Section 397 read with Section 401 of the Code of Criminal Procedure ? 9. In the present case, the undisputed facts are: The complainant, being the owner of the property, sold the same to accused under sale deed dated 5.3.1999 for Rs.18,00,000/- ; earlier one Indumathi Naik was in possession of at least a portion of the built portion of that property ; she is not in possession of it now ; the accused passed an undated receipt in favour of complainant for a sum of Rs.6,00,000/- in connection with getting Indumathi vacated from that portion ; non-payment of interest or refund of any part of the amount covered by said receipt. 10. What is pertinent to note is that the accused has not challenged giving an undated receipt by him to complainant and also not challenged the fact that neither he has paid interest agreed to in the said receipt nor paid any part of the amount mentioned as received by him under said receipt. 11. Of course, the learned Counsel for the accused tried to rely on the fact that the said receipt at Ex. P5, though undated, was given to the complainant on 5.2.1999 as stated by her during her cross-examination and as such, that goes to the root of the case of complainant regarding allegations made in the complaint. For this, it is submitted for the complainant that though it is true that said receipt is undated, the complainant has stated at more than one place that said receipt was executed on 5.3.1999 and as such, the statement made by her that it was given to her on 5.2.1999 is of no such consequence, particularly when the recitals therein are seen. 12. I find some force in the said argument advanced for the complainant because the receipt refers that the amount was paid consequent to the execution of sale deed by the complainant in favour of the accused. It is not the case or defence of the accused that the sale deed was executed on or before 5.2.1999. On the other hand, the sale deed is dated 5.3.1999. It is not the case or defence of the accused that the sale deed was executed on or before 5.2.1999. On the other hand, the sale deed is dated 5.3.1999. When this is so and when the said recital is kept in mind with specific dates referred to by her more than once in her cross-examination, simply because at one place she has stated that the said receipt was given to her on 5.2.1999, receipt cannot be taken as dated 5.2.1999. 13. Further, I find some force in the submission made for the complainant that not mentioning any date in the said receipt can be taken as a circumstance in favour of complainant and against the accused to gather the intention, which the accused had in his mind at the time of passing the said receipt, particularly when it is not the case made out even by way of suggestion to the complainant during her cross-examination that he had not received any amount under the said receipt or that said receipt is a fabricated one or that he had paid any interest or part of the amount received by him under said receipt and as such, question of its payment does not arise. 14. So also, on the face of Ex. P5-receipt, not challenged by the accused, it cannot be said at this juncture that on 5.3.1999 itself or before the execution of sale deed by the complainant, he was put in possession of the portion of property, which was in possession of Indumathi, though suggested to the complainant during her cross-examination that after Indumathi Naik delivered possession of the property on 5.3.1999, then only the executed sale deed. In the circumstances, when Indumathi Naik was in possession at the time of sale deed dated 5.3.1999 and even at the time of receipt passed by the accused on 5.3.1999, it was for the accused to come out with a defence as to how and when he took possession of that portion of property, which was in possession of Indumathi and why he had not complied with any of the terms and conditions mentioned in Ex. P5-receipt. All these things may come on record during trial, though not available at this stage. 15. P5-receipt. All these things may come on record during trial, though not available at this stage. 15. So, in view of the facts, circumstances of the case and material on record, it is held that it is not a case to invoke revisional jurisdiction under Section 397 read with Section 401 Code of Criminal Procedure To hold so, no detailed discussion is necessary since that may prejudice the case of the complainant or accused in one way or the other. Suffice it to note, the material available on record, is sufficient enough for framing charge and not for discharge. 16. Incidentally, it may be noted that when process was issued against the accused at first instance, the accused unsuccessfully approached this Court under Section 482 Code of Criminal Procedure and at that stage also, it was observed by this Court that there being a prima facie case, the question of exercising power under Section 482 Code of Criminal Procedure does not arise. It is true that the said observation came to be made at an initial stage, but nothing new or further has been brought on record to say now that prima facie case has not been made out. So, I do not find any such force in the submission made for the accused at this stage that the impugned order requires to be quashed under Section 397 read with Section 401 Code of Criminal Procedure 17. However, before parting with the case, it is made clear that observations made were only to find out whether or not, the impugned order proposing to frame charge is sustainable or not and not for any other purpose and as such, they should not be construed in one way or the other at the time of finding out the guilt or otherwise of the accused for the offence he is going to face trial after framing charge. 18. In the result, the petition is dismissed.