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Allahabad High Court · body

2010 DIGILAW 883 (ALL)

RAJ MANGAL KUSHWAHA v. STATE OF U. P.

2010-03-17

VIRENDRA SINGH

body2010
JUDGMENT Honble Virendra Singh, J.—Raj Mangal Kushwaha, the accused for an offence under Section 420, IPC, preferred this revision against the judgement and order dated 30.5.2002 passed by the Chief Judicial Magistrate, Deoria in Criminal Case No. 2887 of 2000, whereby the accused/revisionist has been charged in the trial for the offence under Section 420, IPC. 2. I have heard both the parties and perused the record. 3. It is contended on behalf of the revisionist that the allegations which have came out against the accused are that he had reached to the shop of jewelry dealer Ram Babu, with the intention to sell the articles of gold which were actually not made of gold and he was showing those articles to Hare Ram and Naresh Soni, the servants on the shop and in the meantime, the police party reached on the spot and recovered the articles from the possession of the accused/revisionist and on the face value of these facts, there is no case made out against the accused/revisionist under Section 420, IPC and therefore, the charge framed against him is baseless and the learned Lower Court grossly erred in taking cognizance of the offence under Section 420 IPC and wrongly charged the accused/revisionist for trial on that charge. 4. It is further submitted that the revision in the light of the aforesaid contention deserves to be allowed and the charge framed against the accused deserves to be set aside. 5. Learned AGA contended that there is no error either of law or on the facts of the case and the learned Lower Court passed the impugned order very much perfect in the eyes of law and on the facts of the case, exercising jurisdiction vested in the Magistrate and the revision against the impugned order is liable to be dismissed. 6. In the light of aforesaid contentions I have gone through the entire facts and circumstances on record and the law in this regard. 6. In the light of aforesaid contentions I have gone through the entire facts and circumstances on record and the law in this regard. The law regarding framing of charge and to discharge an accused for an offence as is laid down in various cases by Hon’ble the Apex Court and High Courts in our Country is well known as follows :- “A Judge shall discharge the accused, if after considering the record of the case and the documents submitted and after hearing the statement of the accused and the prosecution considers that there is no sufficient ground for proceeding against the accused i.e, either there is no legal evidence or that the facts did not make out for offence at all. At this stage the Court is not meticulously to judge the evidence proposed to be adduced by the prosecution and not to see whether there is sufficient ground for conviction, nor is any weight to be attached to the probable defence. If the scales of pan as to the guilt or innocence are something like even, ordinarily and generally the order will have to be made for framing of charge. The approach to the issue of framing of charge has to be pragmatic because merely on completing the formalities results in putting an innocent person to trial. The charge should not be framed in cases where the available material does not disclose the ingredients of the offence. The framing of charge in such cases is an exercise in futility and result for wasting valuable time of the Court. The standard of test, proof and judgement which is to be finally applied before finding the accused guilty or otherwise is not to be applied at the stage of deciding the matter as to whether the accused should be discharged. In exercising jurisdiction for framing the charge, the Judge can not act merely as a Post office or a mouthpiece of prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced, and basic infirmities and to find out whether the prima facie case against the accused had been made out. Judge should not make a rowing inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Judge should not make a rowing inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. The test to determine a prima facie case would naturally depend on the facts of each case. By and large, if two views are equally possible and the Judge is satisfied that the evidence giving rise to some suspicion is not grave, he will be fully justified in discharging the accused. The Judge is bound to discharge the accused if he considers that there is no sufficient ground for proceeding against the accused the grounds may be of any nature e.g. the evidence is not sufficient or no legal ground for proceeding, no sanction in cases where sanction is required or barred by limitation or prior judgment of superior Court. The Trial Court is to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Benefit of doubt in prosecution case may be relevant factor at the time of conclusion of trial but not on charge/discharge stage. The accused has got no right to summon any document at the stage of framing the charge and the extraneous matter or the evidence except the evidence collected by the investigating officer, can not be taken into account at the time of consideration of discharge or framing of charge against the accused.” 7. Looking into the aforesaid law and the facts on record, I am of this view that impugned order of framing of charge against the accused/revisionist does not deserve to be interfered because the very ingredients for the offence of cheating are available in the case of prosecution. The cheating is defined in Section 415 of the Indian Penal Code as is quoted below : “415 Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” 8. Here in this case, the accused/revisionist is said to have been bargaining of gold pertaining to some pieces of yellow alloy in his possession stating them to be the gold. The ingredients of the cheating i.e. deceiving the persons at shop fraudulently inducing them to deliver the amount of bargaining is very well available in this case against the accused stating the yellow piece of alloy, the gold is the fraudulent and dishonest intention of the accused to deceive the persons at the shop. The explanation provided in the aforesaid definition of cheating clearly shows that a dishonest concealment of facts is a deception within the meaning of cheating. The illustration (b) provided in Section 415, IPC, very well covers the facts of this case for cheating by the accused. The illustration provides that “(b) A, by putting a counterfoil mark on an article, intentionally deceives Z into a belief that this article was made in a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article, A cheats.” Here in this case too, the accused/revisionist was stating at the time of bargaining with the persons at shop that the pieces of yellow alloy in his possession were made of gold and it amounts intentionally deceiving the persons at the shop as the pieces of yellow alloy were not made of the gold and thus, the accused has dishonestly induced the persons present at the shop for purchasing those pieces of yellow alloy before his arrest by the police. The standard of proof, test and the judgement which has to be finally applied before finding the accused guilty or otherwise, is not to be applied at this stage of deciding the matter as to whether the accused should be charged for the offence. The standard of proof, test and the judgement which has to be finally applied before finding the accused guilty or otherwise, is not to be applied at this stage of deciding the matter as to whether the accused should be charged for the offence. Though the charge for the offence under Section 420, IPC is framed against the accused but looking into this fact that whether the accused deceived the persons at shop to deliver any property to the accused is the matter of facts to be gone through at the time of trial of the case against the accused as to whether the offence under Section 420 IPC or the offence under Section 418 or 417, IPC is made out but at this stage, it cannot be stated that no offence is committed by the accused on the face value of the prosecution case against him. 9. Hence, I find no substance in this revision which deserves to be dismissed and is hereby dismissed accordingly. ————