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2004 DIGILAW 116 (GAU)

Anowarul Haque Barlaskar v. State of Assam

2004-02-18

AFTAB H.SAIKIA

body2004
JUDGMENT A.H. Saikia, J. 1. Heard Mr. A.B. Choudhury, learned Counsel for the Petitioner. Also heard Mr. P.C. Gayan, learned PP, Assam. 2. The legitimacy and the correctness of the judgment dated 13.11.95 passed by the learned Sessions Judge, Cachar at Silchar in Criminal Revision No. 31(4)/94 is the subject matter of challenge in this revision petition. 3. The basic question which has come up for consideration before this Court is whether the learned Sessions Judge was justified in reversing the order dated 26.9.94 passed by the Addl. Chief Judicial, Magistrate, Cachar, Silchar in G.R. Case No. 1006 of 1985 under Sections 468 / 420 IPC by which the accused Petitioner was discharged from the charge of committing forgery in a cheque. It would be necessary to notice the prosecution case in a short compass. The complaint was lodged with the Silchar Police Station by one D. Bhattachaijee, the then Branch Manager, State Bank of India, Silchar Branch, on 23.5.85 alleging that the Petitioner had forged a Govt. cheque being No. 871985. It was stated that on 21.5.85 when one Sri Pronoy Kr. Choudhury placed a Govt. Cheque being No./871985 (Book No. 17440) dated 21.5.85 bearing an amount of Rs. 38,939.15 favouring Sri P.K. Choudhury drawn by the Executive Engineer, Silchar PWD Road Division, to the counter, it was revealed on proper verification of Govt. cheque Register that a cheque bearing the same No. and Book No. amounting to Rs. 58,110/- dated 10.5.85 favouring Sri Arabinda Bhattacharjee drawn by the Executive Engineer, PWD Silchar was paid on 16.5.85 in cash. Then the matter was referred to the Regional Manager, Guwahati by the Bank Manager and thereafter on proper verification of the bank document it was revealed that a cheque bearing No. 871965 (Book No. 17440) dated 10.5.85 for an amount of Rs. 1000/- was issued in favour of accused Petitioner by the said Executive Engineer, who later on, reported to the Executive Engineer that the cheque issued to the accused was lost and the same was never produced before the Bank for payment by the drawer. 4. On receipt of such complaint, police started investigation and on completion of such investigation, the Petitioner was charge sheeted under Section 468 / 419 / 420 IPC. 4. On receipt of such complaint, police started investigation and on completion of such investigation, the Petitioner was charge sheeted under Section 468 / 419 / 420 IPC. The trial Court on perusal of the case record and relevant documents placed before it, came to the finding that from the opinion of the Forensic Science Laboratory (for short, 'FSL') to which the cheque in question was sent for examination, there appeared no evidence in record to show that the writings by which the alleged cheque was forged were the signatures and writings of accused Petitioner and the said FSL had not given any opinion that the specimen hand writings and signatures of the accused Petitioner i.e., S-1 to S-5, A-1, A-1/1, Q-9, Q-10, Q-11 and Q-11/1 had got any similarities with that of the writings made on the alleged forged cheques i.e., Q-1 to Q-8. Consequently, taking into account all these factors and on proper appreciation of evidence on record, the trial Court was of the view that no prima facie material was available to show that the Petitioner forged the alleged cheque and as a result, the accused Petitioner was discharged from the charges as mentioned above. 5. Feeling aggrieved by the said discharge order, the State preferred a revision before the learned Sessions Judge, Cachar, Silchar who by the judgment as mentioned above, allowed the revision petition and the case was remanded to the trial Court for framing the charge against the accused Petitioner by discussing the entire materials available on the case diary and also by hearing the learned Counsel for the parties. As against this order, the Petitioner has moved this Court. 6. Assailing the impugned judgment and order, Mr. Choudhury, learned Counsel for the Petitioner, has forcefully argued that the learned Sessions Judge in remanding the case for consideration of the matter relating to the framing of charges against the Petitioner, committed grave error of law. His argument is that once the trial Court is prima facie satisfied upon consideration of the materials available on record and the relevant documents placed before it, there is no sufficient materials for proceeding against the accused, such order of discharge cannot be said to be bad in law. His argument is that once the trial Court is prima facie satisfied upon consideration of the materials available on record and the relevant documents placed before it, there is no sufficient materials for proceeding against the accused, such order of discharge cannot be said to be bad in law. Only point that needs to be considered in discharging the accused under Section 227 Code of Criminal Procedure is whether the court is satisfied that the accusation made against the accused is frivolous and that there is no material for proceeding against him. Once it is satisfied that such accusation is based on no material, the accused shall be discharged. 7. Before delving upon the issue raised herein, it would be proper to refer to the provision of Section227 Code of Criminal Procedure which runs as follows : 227. Discharge. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing. 8. The language of the section aforesaid is very much clear and unequivocal. The procedural law prescribed therein is that on overall consideration of the record of the case and the documents made available therewith and after hearing of the contentions of learned Counsel for the rival parties, if the judge considers that there is no sufficient ground to proceed against the accused, he shall discharge the accused by assigning reasons for such discharge. In the instant case, from the perusal of the trial Court's judgment itself, it appears that the learned Magistrate, on consideration of the materials available on record, especially the opinion of the FSL, being the expert authority to opine in the related case of forgery of a cheque in question, came to the conclusion that the signature of the accused person did not tally with the signature made in the forged cheque and as such there was no evidence as regards the commission of the forgery by the Petitioner and accordingly he was discharged under Section 227 Code of Criminal Procedure This Court fully concurs with the reasons so recorded by the trial Court in discharging the Petitioner. 9. 9. At the same time, this Court is also disinclined to accept the view expressed by the learned Sessions Judge in upsetting the discharge order so passed by the trial Court. It is observed by the learned Sessions Judge that the trial Court had failed to take into account the other evidence on record with special reference to the statement recorded by the I.O. On careful scanning of the record, this Court does not find any such substantial evidence to support such finding of the learned Sessions Judge. Once the trial Court is satisfied on the basis of the opinion of expert, i.e. F.S.L. that no case of forgery has been made out against the Petitioner, the court cannot make a roving enquiry so as to come to the truthfulness, correctness and veracity of the evidence at the initial stage of trial. 10. Reliance has been placed by Mr. Choudhury to a recent decision of the Apex Court in Dilawar Balu Kurane v. State of Maharashtra reported in 2002 (1) UJ 269 (SC) : (2002) 2 SCC 135 . In the said cited case, the Apex Court held in paragraph 12 as follows : 12. Now the next question is whether a prima facie case has been made out against the Appellant. In the said cited case, the Apex Court held in paragraph 12 as follows : 12. Now the next question is whether a prima facie case has been made out against the Appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not 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 while giving 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 of the Code of Criminal Procedure, 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 conducting a trial. See Union of India v. Prafulla Kumar Samal and Anr. 1979 3 SCC 5. 11. Having regard to the above judicial pronouncement and also upon extensive hearing of the learned Counsel for the rival parties and also on perusal of the materials available on record including the judgments and orders of the courts below, this Court is of the considered view that no error and/or illegality was committed by the trial Court, in discharging the accused-Petitioner inasmuch as the trial court, on being satisfied and also by recording adequate reasons, discharged the accused-Petitioner in total compliance of the provision of Section 227 Code of Criminal Procedure Accordingly, the impugned judgment and order rendered by the learned Sessions Judge is hereby set aside and quashed. 12. In the result, the revision succeeds and stands allowed. Petition allowed.