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Chhattisgarh High Court · body

2009 DIGILAW 365 (CHH)

J. C. MESHRAM v. STATE OF C. G.

2009-12-04

T.P.SHARMA

body2009
ORDER 1. By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short 'the Code'), quashment of the order framing charge dated 2-4-2002 and criminal proceeding pending against the petitioner in Criminal Case No. 139/96 pending before the Court of Additional Chief Judicial Magistrate, Durg is prayed. 2. Quashment is prayed on the ground that the material collected on behalf of the prosecution is not prima facie sufficient for taking cognizance or framing of charge and even if the allegation made in the charge sheet is admitted in its face value, then the same will not be sufficient for conviction of the petitioner, therefore, continuance of criminal proceeding and framing of charge against the petitioner would only amount to abuse of the process of the Court. 3. Brief facts necessary for the disposal of this petition are that the petitioner was posted as Chief Executive Officer in the District Antya Vyavasay Cooperative Society, Durg (for short 'the Society') and in discharge of his official duty, the petitioner along with the Collector, Durg has issued a cheque amounting Rs.60,000/-in favour of the Gramin Bank, Chandrakhuri on 24-2-95 for subsidy to ten beneficiaries, the cheque was account payee, and on the basis of the said cheque one savings bank account bearing No.3299 was opened in the name of the petitioner and Rs.60,000/- was deposited in that account. Subsequently, other amounts of subsidy have been deposited in the said account from time to time by the other co-accused persons. The accused persons by committing forgery & cheating subsequently, withdrawn the amount deposited in the said account. After investigation, charge sheet was filed before the Additional Chief Judicial Magistrate, Durg and after hearing the parties, the Magistrate has framed charge against the petitioner for the offence punishable under Sections 420, 467,468,471,409 & 120B read with Section 34 of the I.P.C. The order framing charge was impugned before the revisional Court in Criminal Revision No. 198/2002 but the same was dismissed vide order dated 10-12-2002 by the 7th Additional Sessions Judge (Fast Track Court), Durg. 4. I have heard learned counsel for the parties and perused the petition, copies of the order impugned, charge sheet and other documents. 5. Mr. Pramod Verma, learned Senior Advocate appearing on behalf of the petitioner, argued that this is a case of no evidence relating to the petitioner herein. 4. I have heard learned counsel for the parties and perused the petition, copies of the order impugned, charge sheet and other documents. 5. Mr. Pramod Verma, learned Senior Advocate appearing on behalf of the petitioner, argued that this is a case of no evidence relating to the petitioner herein. According to the admitted case of the prosecution, the petitioner herein was working as Chief Executive Officer in the Society and in discharge of his official duty he has issued the account payee cheque in dispute, along with the Collector. Forged account was opened in the name of the petitioner and the alleged amount was deposited in the said account, thereafter, other cheques were also deposited in the forged account opened by the co-accused persons in the name of the petitioner and subsequently, the amount was withdrawn from the said account. Documents were examined by the handwriting expert and they have opined that the account has not been opened by the petitioner and the money has not been deposited or withdrawn by the petitioner. Learned Senior Advocate further argued that if the entire allegation made in the charge sheet is admitted in its face value, it may only be inferred that the cheque ofRs.60,000/- issued under the signatures of the petitioner herein & the Collector in discharge of their official duty was deposited in one forged account opened in the name of the petitioner, other cheques were also deposited in the said account and subsequently, money was withdrawn from the said account by the co-accused persons who have committed cheating, forgery and criminal misappropriation of money. However, the allegation made in the charge sheet is even prima fade not sufficient to infer that at the instance of the petitioner or under conspiracy with the petitioner or in sharing common intention with the petitioner, any such account. was opened and the money was deposited & withdrawn. In absence of any such allegation, if the allegation made in the charge sheet is admitted in its face value, same would not be sufficient for conviction of the petitioner for any of the charges levelled against him. 6. On the other hand, learned State counsel argued that no specific allegation has been made against the petitioner herein. In absence of any such allegation, if the allegation made in the charge sheet is admitted in its face value, same would not be sufficient for conviction of the petitioner for any of the charges levelled against him. 6. On the other hand, learned State counsel argued that no specific allegation has been made against the petitioner herein. Documents of accounts, deposits & withdrawal have not been prepared by the petitioner, but the fact remains that forged account was opened in the name of the petitioner. 7. Copies of charge sheet and other documents reveal that forged account was opened in the name of the petitioner, but the prosecution has not filed any material to show that the account was opened at the instance of the petitioner or he was having knowledge of the fact or he has been benefited by opening and operation of such account. 8. This is a petition under Section 482 of the Code. Power under Section 482 of the Code may be invoked in appropriate and exceptional cases sparingly and not as a rule. While dealing with exercise of power under Section 482 of the Code in the matter of M/s. Zandu Pharmaceutical Works Ltd. and others Vs. Md. Sharaful Haque and others) the Apex Court has held thus, "8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 9. When no offence is disclosed by the complaint the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 9. In order to appreciate the quashment of criminal proceeding and charge, the Com1s are required to consider whether the allegation made in the charge sheet, if admitted in its face value, would be sufficient for conviction or not and if the san1e would be sufficient for conviction, then it cannot be said that the charges are groundless or prosecution has not collected prima facie material. But in the present case, even if the entire allegation made in the charge sheet is admitted in its face value, no conviction of the petitioner would be possible and nothing can be inferred against the petitioner. 10. Consequently, the present criminal proceeding and charge framed against the petitioner are without any prmia facie material, fran1ing of such charge and continuance of criminal proceeding against the petitioner would only be abuse of the process of the Court. This is a fit case in which the extra ordinary inherent power can be invoked. 11. In the result, the petition is allowed. Order framing charge and criminal proceeding relating to the petitioner herein in Criminal Case No. 139/96 pending before the Court of Additional Chief Judicial Magistrate, Durg are hereby quashed. Petition Allowed.