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Madhya Pradesh High Court · body

2009 DIGILAW 1388 (MP)

Munnalal v. State of M. P.

2009-12-17

PIYUSH MATHUR, S.SAMVATSAR

body2009
ORDER Mathur, J. - 1. This is a revision petition preferred against the order dated 6.12.2006 passed by the Special Judge, Morena in Sessions Trial No. 03/05, whereby the charges under section 420 and 406 of the Indian Penal Code read with section 13 (1) ( c) (d) and 13 (2) of the Prevention of Corruption Act, 1988, have been framed against the petitioner and an application preferred under section 91 of the Criminal Procedure Code for calling the additional documents/records has been rejected without examining the necessity of summoning of the record for framing of the Charge. 2. The Economical Offences Bureau Office of the State of Madhya Pradesh has submitted a charge-sheet against as many as 13 persons in relation to mis appropriation of funds of Prathmik Bunkar Sahakari Samiti, Noorabad and Prathmik Bunkar Sahakari Samiti, Dattehara, Morena, where petitioner Munna1al was described to be the President of one of the Society during year 1990-93, when on account of misappropriation of funds and nonutilizaion of the fund, certain, offences were found to be committed by the petitioner. 3. Learned counsel for the petitioner submits that an application under Section 91 of the Criminal Procedure Code was filed on behalf of the accused persons, namely, Yadunth Singh Tomar, Deen Dayal and Munnalal and a specific prayer was made on behalf of petitioner Munnalal that since the Society is not functioning at the prescribed place and there exists an official order authorizing its shifting from the prescribed place to the changed place and the entire amount entrusted to the Society was properly utilized and a Utilization Certificate was issued and the balance of the amount was deposited, where after no offence could have possibly been made out and since the summoning of these documents would be necessary for the just decision of the case, a prayer for calling the record was made before the Court below, but the same was rejected on the ground that as per the general direction given by the High Court, the cases pertaining to the Prevention of Corruption Act were required to be disposed of by the end of the year. The application was cursorily rejected and the charger were framed against the petitioner contrary to the documentary evidence. 4. The application was cursorily rejected and the charger were framed against the petitioner contrary to the documentary evidence. 4. Learned counsel for the State has submitted that the Trial Court has correctly applied the principle enunciated by the Hon 'ble Supreme Court in the case of State of Orrisa v. Devendra Nath Padhi reported as (2005) 1 SCC 568 , wherein the Court has propounded that the provisions of Section 91 of the Criminal Procedure Code should not be permitted to be mis-utilized for the purposes of introduction of defence by the accused persons at the stage of framing of charges. Learned Public Prosecutor has also stated that deposit of the balance amount by the petitioner-Society would not be sufficient to exonerate the petitioner-accused. He has justified the passing of the impugned order as to also the imposition of the charge. 5. Learned counsel for the petitioner submits that since the petitioner happens to be an Office Bearer/Elected Representative of the Co-Operative Society, therefore, the provisions of Prevention of Corruption Act would not be applicable to such of the category of persons, which are not prescribed notified in the Category of 'Public Servant' and as such the Court was not justified in imposing the charge under the provisions of Prevention of Corruption Act. His further submission revolves around the fact of non-summoning of the documents and non-considration of the application, preferred under Section 91 of the Criminal Procedure Code, to demonstrate that had the trial Court been vigilant about the nature of the document, sought to be summoned by the accused persons, it would have relized that in view of the production of Utilization Certificate and the Certificate of shifting of the headquarter of the Society, the Court would have not framed the charges at all. 6. 6. Learned counsel for the petitioner has also drawn our attention to an order passed in Criminal Revision No. 44/07, wherein a Single Judge of this Court, while dealing with a Revision Petition of co-accused Yadunath Singh Tomar, has found that without passing the orders on the application preferred under Section 91 of the Criminal Procedure Code, the order of imposition of charges was not justified and since the case of the present petitioner is not different than the case of Yadunath Singh Tomar, on the principle of parity, it may be remanded back to the Court below, for entertaining the application preferred under section 91 of the Criminal Procedure Code as also by calling the document and then hearing parties on the question of imposition of charges. 7. We have considered the facts of the case, perused the record and heard the learned counsels and found that the certain applications were filed on behalf of the accused persons before the Trial Court in terms of Section 91 of the Criminal Procedure Code and specific document and the necessity of summoning the document were pressed into service before the trial Court, but without examining the necessity of calling the document, the trial Court has rejected the application on the ground that the cases pertaining to the Prevention of Corruption Act have to be disposed by the end of the year but this could not be treated to be legitimate ground for rejecting the application. 8. 8. While supporting the order of rejection of the application preferred under Section 91 of the Criminal Procedure Code, the trial Court has made a reference to a judgment of the Supreme Court State of Orrisa v. Devendra Nath Padhi reported as (2005) 1 SCC 568 , wherein the Supreme Court has certainly observed that the provisions of Section 91 of the Criminal Procedure Code should not be misutilized for the purposes of alleging an accused person to introduce his defence at the stage of framing of the charge, but in a subsequent judgment reported as (2008) 14 SCC 1 [Rakumini Narvekar v. Vijay Satardekar], the supreme Court has clarified that there can be rare and exceptional cases where alleged defence material could be shown to the trial Court, for demonstrating that the prosecution version is totally absurd or preposterous and in some of such circumstances the defence material could be looked into by the Court at the time of framing of the charge of taking cognizance. The Supreme Court has further said that it cannot be said to be an absolute proposition of law that under no circumstance the Court can look into the material produced by the defence at the time of framing of the charge. The Supreme Court has specifically carved out an exception that in rare of the rarest circumstance, such an exercise could be performed, but the scope for entertaining the application under section 91 of the Criminal Procedure Code and consideration of the material produced by the defence has certainly been visualized. 9. We have been also persuaded by the fact of passing of an order by the Single Judge of this Court, whereby the Trial Court has been directed to consider the application and the documents before framing the Charge and we find parity not only in the circumstances but in the nature of the documents sought to be summoned by similarly situated accused persons of the same trial. 10. Therefore, in view of the aforesaid discussions, the charges framed under section 420 and 406 of the Indian Penal Code read with sections 13 (1) (c) (d) and 13 (2) of the Prevention of Corruption Act, 1988, against the accused-petitioner Munnalal Verma and hereby quashed. 10. Therefore, in view of the aforesaid discussions, the charges framed under section 420 and 406 of the Indian Penal Code read with sections 13 (1) (c) (d) and 13 (2) of the Prevention of Corruption Act, 1988, against the accused-petitioner Munnalal Verma and hereby quashed. However, the trial Court is directed to entertain the application of petitioner preferred under section 91 of the Criminal Procedure Code as also to examine the documents, sought to be summoned by the accused-petitioner and to hear the matter on the question of framing of the charge while taking into account the entire evidence and if the trial Court find that there exists sufficient material for framing the charge, the trial Court would be free to frame the charges against the accused persons, even in the light of the documents sought to be produced on behalf of the accused-petitioner. 11. With the aforesaid observations/directions, this Criminal Revision is finally disposed of.