ORDER 1. These two revisions have been tiled challenging the order dated 27.9.1995 passed by Special Judge, Bhopal, in Special Criminal Case No.3 of 1994 whereby charge under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act has been framed against Vishnu Rajoria (petitioner of Criminal Revision No.798 of 1995) and whereby accused Mukteshwar Singh (respondent in Criminal Revision No. 954 of 1995) has been discharged. State has challenged the order of discharge of non-applicant Mukteshwar Singh in Criminal Revision No.954 of 1995. Both the revisions involve similar questions and arise out of the common order, therefore, have been heard as connected matters and are being disposed of by this common order. 2. SPE Lokayukt, Bhopal, filed charge-sheet against three accused persons on the allegation of their having committed offence under section 5(1)(d) of the Prevention of Corruption Act, 1947. At the relevant time (in the year 1988) accused Vishnu Rajoria was State Minister of Housing Environment, accused Memoona Sultan was Chairman of M.P. Housing Board and accused Mukteshwar Singh was Commissioner of M.P. Housing Board. In the year 1982, M.P. Housing Board had allotted seven plots situated in Sanjay Upvan, Khajrani, Indore, to various persons. Out of these plots, Plot No. B-1 was allotted to Dr. K.C. Sharma and plot No. B-2 was allotted to the then Member of Rajya Sabha Mr. Ajit Jogi. It is said that Ajit Jogi had encroached over some portion of the plot belonging to Dr. K.C. Sharma against which Dr. Sharma had instituted the legal proceedings against him for removing the encroachment. When he could not succeed by the proceedings under ordinary law, he filed a writ petition (MP No. 230 of 1987) in the Indore Bench of High Court. M.P. Housing Board was also a party in the petition, Ajit Jogi approached the Housing Minister Mr. Vishnu Rajoria with a request that house No. 13-A situated at Ravishankar Nagar, Indore, be allotted to Dr. K.C. Sharma for getting the dispute resolved and obtaining the undisputed possession of the land. Vishnu Rajoria passed an order on 8.3.1988 directing that an alternative plot be given to Dr. Sharma and to remove the encroachment from the plot of Mr. Ajit Jogi, observing further that all the proceedings be executed and informed to him by 21.3.1988. Another similar order was also passed on 15.4.1988. Vishnu Rajoria passed an order on 8.3.1988 directing that an alternative plot be given to Dr. Sharma and to remove the encroachment from the plot of Mr. Ajit Jogi, observing further that all the proceedings be executed and informed to him by 21.3.1988. Another similar order was also passed on 15.4.1988. In compliance of the aforesaid orders, Memoona Sultan passed an order allotting designated House No. 13-A situated on Main Road, Ravi Shankar Shukla Nagar, Indore, to Dr. K.C. Sharma. On 10.5.1988 in 79th meeting of Housing Board in which all the three accused were present, against the policy of the Board it was resolved and decided that in calculating the cost of the house, capitalised interest of the rate of 12% be not charged from Dr. K.C. Sharma and supervision charges be charged only at the rate of 2% instead of 12% from him. Thus, the house having market value of about Rs.10,00,000/- and valuation according to calculation by the Board around Rs.4,38,360/- was given to Dr. K.C. Sharma for Rs.2,83,040/- only. Thus, Dr. K.C. Sharma obtained pecuniary advantage to the tune of Rs. 1,55,320/- and Ajit Jogi also obtained the benefit of getting undisputed land. It is said that M.P. Housing Board suffered a loss of Rs.1,55,320/- by the acts of accused persons, who obtained the aforesaid pecuniary advantage for Dr. K.C. Sharma and Ajit Jogi. It is also alleged that under the policy of Housing Board, a designated plot could not have been allotted to Dr. K.C. Sharma hut the accused persons had abused their position as public servant for allotment of the aforesaid house at very low cost. 3. Learned Special Judge finding a prima facie case for making out the offence under section 5(1)(d) of the Prevention of Corruption Act, 1947, against accused Memoona Sultan and Vishnu Rajoria framed the charges against them, however, finding that accused Mukteshwar Singh had made a dissenting note in the past about reduction of the capitalised interest, held him entitled to he discharged. 4. Shri S.C. Datt, learned counsel for petitioner Vishnu Rajoria submitted that there was no material on record to make out a prima facie case for framing the charge against him. Referring to written orders allegedly passed by accused Vishnu Rajoria on 8.3.1988 and 15.4.1988 he submitted that there was no mention therein that Dr. 4. Shri S.C. Datt, learned counsel for petitioner Vishnu Rajoria submitted that there was no material on record to make out a prima facie case for framing the charge against him. Referring to written orders allegedly passed by accused Vishnu Rajoria on 8.3.1988 and 15.4.1988 he submitted that there was no mention therein that Dr. K.C. Sharma be allotted designated house No. 13-A, order dated 8.3.1988 merely mentioned that Dr. K.C. Sharma be given an alternative plot and after removing the encroachment over the plot, Mr. Ajit Jogi be given possession of his allotted plot. 5. Though there appears some substance in the submission made by the learned counsel but perusal of para 20 of the proceeding of 79th meeting of the Board revealed that the aforesaid house was allotted to Dr. K.C. Sharma on 15.4.1988 on the direction of Minister Vishnu Rajoria. Relevant portion of the proceeding is quoted below : ^^ekuuh; ea=hth] vkokl ,oa i;kZoj.k us funsZ"ku fn;k Fkk fd mijksDr vkcafVr Hkw&[kaMksa ij vfrØe.k gksus ls tks dfBukb;k¡ vkcafV;ksa dks gks jgh gSa] mudks /;ku esa j[krs gq, mijksDr mix`g fuekZ.k vk;qDr dk Hkou Øekad 13&, jfo"kadj "kqDy uxj] bankSj] MkW- ds-lh- "kekZ dks vkcafVr dj fn;k tk,] ekuuh ea=hth ds vkns"k ds vuqlj.k esa bl dk;kZy; ds i= Øekad 2444@bZ-,e- fnukad 15-4-1988 }kjk mijksDr Hkou Mk- ds-lh- "kekZ dks vkcafVr fd;k x;k gSA** Aforementioned proceeding was recorded by the then Commissioner and Secretary of the Housing Board. 6. Referring to note sheet No.61 which is signed by accused Mukteshwar Singh, Commissioner, learned counsel for the State submits that in this note-sheet also it is mentioned that the Minister of Housing and Environment directed that house No.13-A of Ravi Shankar Shukla Nagar, Indore, be allotted to Dr. K.C. Sharma and in compliance of that order by official letter No.2444-CM dated 15.4.1988 the aforesaid house was allotted to Dr. K.C. Sharma. He submits that this provides material to show that the house was allotted on the orders of Vishnu Rajoria. Learned counsel submits that in 77th meeting of the Housing Board it was resolved that the houses allotted to employees of the Board could be sold to them on hire-purchase basis, but by order dated 23.4.1988 passed by the State Government, said decision of the Board was rejected and the order passed in 77th meeting of the Board was amended. Learned counsel submits that in 77th meeting of the Housing Board it was resolved that the houses allotted to employees of the Board could be sold to them on hire-purchase basis, but by order dated 23.4.1988 passed by the State Government, said decision of the Board was rejected and the order passed in 77th meeting of the Board was amended. Therefore, the Board was not empowered to allot the aforesaid house to Dr. K.C. Sharma but in 79th meeting of the Board, on 8.5.1988 it was resolved that the decision taken in 77th meeting be continued and the facts be placed before the Government. Thus, in 79th meeting, in which petitioner Vishnu Rajoria, Mukteshwar Singha and Smt. Memoona Sultan participated, they deliberately flouted the orders passed by the Government as well as the orders of the Board putting a ban on sale of designated houses. 7. Learned counsel for the petitioner referred to provision enacted in section 98 of the M.P. Grih Nirman Mandal Adhiniyam, 1972, which runs as under: "98. Power to State Government to give directions to Board and local authorities. - (1) The State Government may give the Board such directions as in its opinion are necessary or expedient for carrying out the purposes of this Act, after giving an opportunity to the Board to state its objections, if any, to such directions and after considering the said objections, and it shall thereupon be the duty of the Board to comply with such directions. xxxx xxxx xxxx According to him, it enables the State Government to give directions to Board, but it is only after giving an opportunity to the Board to state its objections and after considering the objections raised by the Board, if any, it shall be the duty of the Board to comply with such directions, as such the Board is empowered to state its objection to the directions given by the Government. 8. Perusal of para 18 of the proceeding of 79th meeting of the Board indicates that the decision of the Board taken in 77th meeting to sell the designated houses on hire-purchase basis was rejected by the Government vide notification No. 1175/32-1188, dated 23.4.1988 (issued by Housing and Environment Department) and accordingly the Board had amended its aforesaid decision by official letter No. 2671-2715 dated 28.4.1988. However, on 10.5.1988 in the 79th meeting of the Board, in which petitioner Vishnu Rajoria participated, the Board's decision was reversed, apparently for giving way to the deal of allotment of house to Dr. Sharma. In view of the aforementioned circumstances, at this stage, it cannot be held that there is no evidence indicating involvement of Vishnu Rajoria in the allotment of the house. 9. Learned counsel for the petitioner further submitted that by mere presence of Vishnu Rajoria in the 79th meeting of the Board held on 10.5.1988 on special request it cannot be held that he had in any manner acted in abusing his position as public servant in obtaining any valuable thing or pecuniary advantage for himself or for Dr. K.C. Sharma or for Mr. Ajit Jogi. It was a unanimous decision of the Board not to charge capitalised interest from Dr. K.C. Sharma till he is handed over possession of the house and to charge only 2% of supervision charges instead of 12%. In the aforesaid meeting of the Board nine members viz. (1) Smt. Memoona Sultan, Chairman, (2) Rohini Kumar Bajpai, Ex. MLA, (3) Balbir Khanuja, MLA, (4) Shivdatt Sood, Corporator, Municipal Corporation, Indore, (5) T.N. Ghate, Architect, (6) P.P. Mathur, Additional Secretary, Finance, (7) P.R. Kanhare, Director, Nagar Avam Gram Nivesh, (8) N.P. Muthanna, Chief Engineer, PWD and (9) Mukteshwar Singh, Commissioner, Housing Board as Member Secretary were present. In their presence the unanimous decision was taken by the Board for reducing the aforesaid charges and it was further observed that the aforesaid decision was taken in view of the special circumstances of the case and should not be treated as precedent. 10. Admittedly Minister Vishnu Rajoria was present in the Board's 79th meeting in which the decision of reopening of the sale of designated Houses and to reduce the cost of house allotted to Dr. K.C. Sharma by exempting him from paying the capitalised interest, on the pretext of special circumstances, was taken. It is on record that he extended his advice on concerned matters in the meeting. Witness R.V. Barhate, Deputy Commissioner, Housing Board, in his statement under section 161, CrPC said the aforesaid decisions were taken by the then Minister Vishnu Rajoria, Commissioner Mukteshwar Singh and Chairman Smt. Memoona Sultan. 11. It is on record that he extended his advice on concerned matters in the meeting. Witness R.V. Barhate, Deputy Commissioner, Housing Board, in his statement under section 161, CrPC said the aforesaid decisions were taken by the then Minister Vishnu Rajoria, Commissioner Mukteshwar Singh and Chairman Smt. Memoona Sultan. 11. It is on record that Chief Vigilance Officer and Additional Housing Commissioner (Works) had opined that capitalised interest, at the rate of 12% should be charged from Dr. K.C. Sharma from the date of construction of the house till the possession was handed over to Dr. Sharma, yet it was ordered that the capitalised interest be not charged. 12. At the stage of framing of charge it is the duty of the Court to look into the matter as to whether on the basis of the material available on record, prima facie case for constituting the offence and for proceeding against the accused is made out or not. The Supreme Court in number of decisions considered this aspect in detail. In State of Karnataka v. L. Muniswamy and other [ AIR 1977 SC 1489 ], the apex Court held that: "for the purpose of determining whether there is sufficient ground for proceeding against an accused the Court possesses, comparatively wider discretion in the exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible." 13. In the case of Niranjan Singh Karam Singh Punjahi v. Jitendra Bhimraj Bijja [ AIR 1990 SC 1962 ], the Supreme Court observed: "It seems well settled that at the sections 227/228 stage, i.e., stage of framing the charge, 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 the 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." 14. The Court may for this limited purpose sift the evidence as it cannot be expected even at the 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." 14. Again in the case of Dilawar Babu Kurane v. State of Maharashtra [ AIR 2002 SC 564 ], relying upon the case of Union of India v. Prafulla Kumar Saaman and another [ AIR 1979 SC 366 ], the apex Court reiterated: "12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising power 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 a 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." 15. In the light of the settled legal position on evaluating the material and evidence on record it is found that at this stage it cannot be reasonably held that Mr. Vishnu Rajoria did not abuse his position as public servant in obtaining the house and pecuniary advantage to Dr. K.C. Sharma. It is on record that in the impugned transaction, Board suffered a loss of about Rs.1,55,320/-. Vishnu Rajoria did not abuse his position as public servant in obtaining the house and pecuniary advantage to Dr. K.C. Sharma. It is on record that in the impugned transaction, Board suffered a loss of about Rs.1,55,320/-. However, it is also on record that accused Mukteshwar Singh had put it up on record that the capitalised interest should be charged at the rate of 12%. Even though he was present in the 79th meeting of the Board yet it cannot be said that he joined with Mr. Vishnu Rajoria in obtaining any pecuniary advantage for Dr. K.C. Sharma or Mr. Ajit Jogi. 16. Placing reliance on the ratio of S.P. Bhalnagar and another v. The State of Maharashlra [ 1979 CrLJ 566 ], learned counsel for the petitioner submitted that the abuse of position in order to come within the mischief of section 5(1)(d) must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person. In my view at this stage of framing charge it cannot be held that there is no material to indicate that the accused Vishnu Rajoria did not indulge in transaction with any dishonest intention. In the case of Stale of M.P. v. S.B. Johari and others [ 2000(1) JLJ 142 = (2000)2 SCC 57 ], the Supreme Court held: "It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge should be made. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that the accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial." 17. In such case there would be no sufficient ground for proceeding with the trial." 17. On due consideration of the material and evidence on record I am of the opinion that a prima facie case is made out against accused Vishnu Rajoria affording sufficient ground for proceeding against him, however; there is no sufficient ground against accused Mukteshwar Singh. 18. In the result both the revisions viz., Criminal Revision No. 798 of 1995 filed by petitioner Vishnu Rajoria and Criminal Revision No. 954 of 1995 filed by the State against accused Mukteshwar Singh are dismissed. The order passed by the trial Court is affirmed. Trial Court is expected to proceed with the trial expeditiously. Record of trial Court be sent back immediately. 19. Copy of this order be placed in Criminal Revision No. 954 of 1995.