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2004 DIGILAW 205 (HP)

Shyam Dutt v. Ravi Dutt

2004-08-27

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. – 1. This Petition has been preferred by the petitioner-complainant (hereafter referred to as the complainant) against the order dated 2.11.1999 passed by learned Sessions Judge, Solan whereby the order of the learned Chief Judicial Magistrate, Solan framing charge against the respondents-accused (hereinafter referred to as the accused) under Section 420/34 Indian Penal Code has been set-aside. 2. Brief facts leading to the filing of the present petition 'are that the complain- ant filed a complaint against the accused persons under Sections 406, 420, 468 and 471 Indian Penal Code on the allegations that the complainant had instituted a suit against the accused Ravi Dutt wherein the said accused made a statement that he would not sell or create any charge on the land till it was partitioned and it was within the knowledge of the accused persons that the land is owned by accused Ravi Dutt in the joint holding to the extent of two bighas only. However, the accused persons secured loan from the H.P. State Cooperative Agriculture and Rural Development Bank Ltd. Branch Solan in the sum of Rs. 35,000/- creating a mortgage to the extent of 1/3rd share in the land comprising khasra Nos. 24, 127, 160, 219, 247, 99, 28, 29, 84, 110, 163, 717/329 and 334 measuring 21 bighas 2 biswas situate in Village Mansal. The said mortgage deed was registered in the office of Sub-Registrar, Solan. Accused Narender Kumar acting as a General Power of Attorney of accused Ravi Dutt, filed an affidavit attested by the Executive Magistrate claiming therein that the land was owned by Ravi Dutt to the extent of 5 bighas 7 biswas. Accused Ravi Dutt had already sold 5 bighas 1 biswas of land out of his share in the aforesaid land leaving only 2 bighas of land of his share and that the aforesaid act of mortgaging the land for taking loan from the Bank by the accused was intentionally done with a view to cheat by playing fraud and filing wrong documents before the bank: authorities. Even the Bank Manager did not bother to check the revenue records and other documents. On coming to know of the aforesaid acts of the accused persons the complainant obtained the copies of revenue records and lodge the complaint against the accused persons under Sections 406, 420, 467, 471 and 468 Indian Penal Code. 3. Even the Bank Manager did not bother to check the revenue records and other documents. On coming to know of the aforesaid acts of the accused persons the complainant obtained the copies of revenue records and lodge the complaint against the accused persons under Sections 406, 420, 467, 471 and 468 Indian Penal Code. 3. The learned Trial Magistrate after recording the preliminary evidence, vide order dated 20.2.1999 came to the conclusion that there were grounds to issue process against the accused persons for commission of an offence under Section 420 Indian Penal Code. After securing the presence of the accused, pre-charge evidence was recorded and on consideration of such evidence charge under Section 420 read with Section 34 Indian Penal Code was framed against the accused persons. 4. Being aggrieved, the accused persons preferred a Revision Petition before the learned Sessions Judge, which was allowed by the impugned order. Being aggrieved the complainant has preferred the present petition. 5. I have heard learned counsel for the parties and have also perused the records. 6. It was contended by the learned counsel for the petitioner that the pre-charge evidence discloses a prima facie case under Section 420 read with Section 34 of the Indian Penal Code against the accused and the learned trial Magistrate had rightly framed the charge against them. It was further contended that the learned Sessions Judge assumed existence of certain facts without anything on the record from which such inferences or assumptions could have been drawn and evidently the learned Sessions Judge appreciated the pre-charge evidence as if he was appreciating the evidence on record after full trial of the case which is contrary to the letter and spirit of the law, therefore, the impugned order cannot be sustained. 7. On the other hand, the learned counsel for the accused while supporting the reasoning and conclusion is in the impugned judgment submitted that no illegality has been committed by the learned Sessions Judge in allowing the petition and setting aside the order of the trial Court framing a charge against the accused persons, therefore, the impugned judgment does not call for any interference. 8. Since the State is only a formal party to the petition, 'therefore, the learned Deputy Advocate General merely assisted the Court on legal aspects. 9. 8. Since the State is only a formal party to the petition, 'therefore, the learned Deputy Advocate General merely assisted the Court on legal aspects. 9. Before examining the rival contentions of the learned counsel for the parties, it may be pointed out that it is manifest from the provisions of Section 227 and 228 of the Code of Criminal Procedure that the Court at the time of consideration of the charge has to apply its mind to the material on record to be satisfied whether there are grounds to proceed against the accused or not. In case on appreciation of the material on record, the Court comes to be conclusion that the accusations against the accused are frivolous and the material placed before the Court does not show prima facie case, the accused has to be discharged. In case there is sufficient material prima facie supporting the accusations the Court has to frame a charge against the accused. A meticulous analysis of the material on record is not required at the stage of consideration of charge and even a very strong suspicion founded on the material on record may justify the framing of the charge. 10. In Balkrishan Sharma v. State of H.P., (2202 CrL L.J. 4364), this Court while dealing with the subject in hand, held as under: "5. It may be pointed out at the very outset that when after considering the police report and the documents sent with it under Section 173 of the Code and making such examination, if any, of the accused, as the trial Court thinks fit, if it is of the opinion that the said material prima facie discloses that the- accused has committed an offence which it is competent to try, then it shall frame in writing a charge against the accused. When the Court forms such an opinion, it is not supposed to give reasons in detail for arriving at the prima facie conclusion that the accused has committed the offence and there are grounds to proceed against him and to charge him for the commission of such offence. When the Court forms such an opinion, it is not supposed to give reasons in detail for arriving at the prima facie conclusion that the accused has committed the offence and there are grounds to proceed against him and to charge him for the commission of such offence. However, if the Court, after perusal of the aforesaid material, finds that there is no ground for presuming that the accused has committed an offence, the charge must be considered to be groundless, that is to say, that there is no ground for framing a charge against that accused and he should, therefore, be discharged. However, the Court is expected to record its reasons for so doing, it may, however, be pointed out that the Court though is not required to record detailed reasons for framing a charge against the accused, but, the record it has relied upon, to arrive at the prima facie conclusion that there are grounds to proceed against the accused, must disclose that in fact there are reasons to proceed against the accused for the commission of the offence for which he has been ordered to be charged." 11. In State of H.P. V. Des Raj (2003 (1) Current L.J. 290), this Court reiterated the aforesaid view while holding as under: "5. It may be pointed out at the very outset that Sections 227 and 228 of the Code make it manifest that the Court has to apply its mind to the material on record to be satisfied whether there are grounds to proceed against the accused or not'? In case the Court, on appreciation of the material on record, comes to the conclusion that the allegations against the accused are frivolous and the material placed before the Court does not show a prima facie case to proceed, the accused has to be discharged. However, if there is sufficient material to proceed against the accused, the Court has to frame a charge against the accused. The test to determine whether there are grounds to proceed or not, would depend upon the facts and circumstances of each case and it would be determined on the basis of the material placed before the Court by the prosecution. The test to determine whether there are grounds to proceed or not, would depend upon the facts and circumstances of each case and it would be determined on the basis of the material placed before the Court by the prosecution. While perusing the material with a view to find out whether there are sufficient grounds to proceed against the accused or not, the standard of test will not be the same as is finally applied before finding the accused guilty or otherwise. At this stage, even a very strong suspicion founded upon the material on record leading to forming a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged to have been committed by the accused, may justify the framing of charge. Therefore, only the broad probabilities of the case, the deciding effect of the evidence and infirmities, if any, emanating from the records, are to be taken into account to arrive at the conclusion. No roaving inquiry into the alleged facts and weighing the material on record as if the conclusion is to be recorded, after recording of the evidence are required. In case the Judge arrives at the conclusion that the allegations are frivolous and there is no material prima facie supporting the allegations constituting the offence, the accused has to be discharged but if the material on record probables the allegations and even if creates grave suspicion, a charge will have to be framed against the accused." 12. In On, Wati (Smt) and Another State through Delhi Administration and Others ( 2001 (4)SCC 333 ), the Hon'ble Supreme Court while considering the scope of Sections 227 and 228 of the Code, held as under: "At the stage of passing the order in terns of section 227 of the Code, the court has merely to peruse the evidence in order to find out whether or not there is a sufficient ground for proceeding against the accused. If upon consideration; the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. If upon consideration; the court is satisfied that a prima facie case is made out against the accused, the Judge must proceed to frame charge in terms of Section 228 of the Code. Only in a case where it is shown that 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 defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused. The court is not required to enter into meticulous consideration of evidence and material placed before it at, this stage." 13. It is in view of the above settled position in law that the present petition requires to be considered and decided. 14. A perusal of the material available on the record, at the time of framing of the charge by the Trial Court against the accused persons, prima facie reveals that accused Ravi Dutt through his General Power of Attorney co-accused Narinder Kumar, mortgaged his ?rd share in the land comprising Khata/Khatauni Nos. 31/44, 31/45 and 31/45. Khasra Nos. 24, 127, 160, 219, 247, 99, 28, 29, 84, 110, 163, 717/329 and 334 in favour of the H.P. State Cooperative Agriculture and Village Development Bank, Branch Solan in lieu of a loan in the sum of Rs. 35,000/ - and the deed Ext. PC was duly registered in this regard. The declaration certifying the correctness of Ext. PC is signed on 24.3.1993 by accused Narinder Kumar and is authenticated by the Tehsildar. It is not in dispute that the loan amount was received by accused Ravi Dutt. It is further evident from the contents of copy of affidavit Ext. PW-3/A that the mortgaged share in the land shown to be that of accused Ravi Dutt is to the extent of 5 bighas, 7 biswas and it was this share in the land which on affidavit is stated to have been mortgaged. It is further admitted by PW 3 that in the Jamabandi filed with the Bank at the time of application for loan, it was mentioned in the remarks column that out of the share of accused Ravi Dutt, land to the extent of 5 bighas, 1 biswa had been sold. It is further admitted by PW 3 that in the Jamabandi filed with the Bank at the time of application for loan, it was mentioned in the remarks column that out of the share of accused Ravi Dutt, land to the extent of 5 bighas, 1 biswa had been sold. Thus the evidence, which is unrebutted as yet and regarding which no explanation in the forum of a statement of the accused recorded by the court or in any other form has yet been given by the accused, prima facie, show that accused Ravi Dutt through accused Narinder Kumar claiming to be the owner in the land in question to the extent of ?rd share, which he was not, has executed the loan documents and procured the loan. What was the intention in doing so is a matter which cannot be assumed at this stage when the accused is vet silent in explaining as to whether he owned ?rd share in the suit land or out of such share. 5 bighas, 1 biswa of land stood transferred or any such transfer is invalid and not acceptable to him or he has challenged such transfer in any manner before a court of competent jurisdiction. Therefore, within the limited ambit and scope of appreciating the material on record at the 'stage of consideration of charge, a prima facie case against the accused persons was made out as held by the Trial Court and the accusations made against the accused cannot be termed as frivolous nor it could be held that the material on record does not disclose a prima facie case against the accused persons. 15. The learned Sessions Judge examined the material on record as if the case was being disposed of on merits after full trial and that too on the basis of assumptions and inferences, which could not legitimately be drawn while dealing with the case under Sections 227 and 228 of the Code. It has been clearly noticed by the learned Sessions Judge in the impugned judgment that there was a note in the Jamabandi in red ink that 5 bighas 1 biswas of land had been sold by accused Ravi Dutt and it was so mentioned even in the copy of Jamabandi produced before the Bank: authorities in support of deed Ext. PC. PC. However, the prima facie incriminating value of this evidence has been ignored on the ground that PW 3 had admitted that there was some clerical mistake by the Bank officials in calculating the share of Ravi Dutt. May be that the Bank officials committed some bona fide mistake in calculating the area, which they could commit because they were not owners of the land in question, but their mistake cannot be read so as to exonerate the accused persons of the part played by them. 16. The note in the remarks column of the Jamabandi has further been disbelieved on the ground that it does not contain reference to any registered sale deed or mutation. It was too early to derive such a conclusion unless the accused were confronted with these documents while recording their statements under Section 313 Criminal Procedure Code. Once it was mentioned in the remarks column of the Jamabandi that Ravi Dutt had sold 5 bighas 1 biswa of land, a conclusion contrary to the remarks, could not have been drawn merely because the note did not contain mutation number or did not refer to any registered sale deed. 17. The next ground relied upon by the learned Sessions Judge for setting aside the order of the Trial Court is that civil litigation is pending regarding the extent of the shares of the parties in the land in question. However, even on this count there is nothing on the record, which may reveal as to what is the stand of accused Ravi Dutt in that litigation. The pendency of such litigation should have made the learned Sessions Judge more cautious about the title of Ravi Dutt in the mortgaged land. 18. The affidavit of Narinder Kumar Ext. PW-3 a has been ignored on the ground that in the absence of any proof that the accused was aware about the sale of land of his share the accused cannot be assumed to have committed the offence and moreover this affidavit is not attested in accordance with law. The fact, however remains that there is nothing on the record on the basis of which it may be said that the accused Narinder Kumar never executed this affidavit or it has not weighed in favour of grant of loan to accused Ravi Dutt. The fact, however remains that there is nothing on the record on the basis of which it may be said that the accused Narinder Kumar never executed this affidavit or it has not weighed in favour of grant of loan to accused Ravi Dutt. The accused were not facing a charge of swearing a forged affidavit, but of procuring loan on the basis of incorrect and wrong record/documents. Prima facie it cannot be said that Ext.PW-3/A is not a document irrespective of its having not been executed in accordance with law or there being any technical defect in its execution. 19. The other ground relied upon by the learned Sessions Judge for discharging the accused persons is that the loan was sanctioned on the basis of documents produced before the Bank whose official had independently scrutinised and calculated the share. As already stated here-in-above in the face of the affidavit produced before the bank officials, they could commit this bona fide mistake of calculation and such a mistake by the bank official does not mean that the accused persons had not filed wrong documents showing more land as owned by Ravi Dutt instead of the land he really owned. 20. The learned Sessions Judge has gone to the extent of calculating the value of the remaining share of Ravi Dutt in the land in question which is stated to be 2 bighas only and holding that the value to 2 bighas of land was sufficient to secure the loan advanced to accused Ravi Dutt. This is no reason at all to exonerate the accused persons from their liability of facing a trial for cheating. 21. The learned Sessions Judge in fact had entered into a meticulous examination of the material on record which was unwarranted and unjustified at the state of consideration of charge, more so, when the evidence disclosing a prima facie case against the accused persons is still unrebutted. Therefore, the impugned judgment cannot be sustained. 22. As a result, this petition is allowed and the impugned order discharging the accused persons is set aside and the order passed by the learned Trial Magistrate is restored and the Trial Court is directed to proceed with the trial of the case and dispose it of in accordance with law. 23. The parties; through their learned counsel; are directed to appear before the Trial Court on 27.9.2004.