Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 17 (CHH)

Nand Kumar Agrawal v. State of C. G.

2011-01-20

T.P.SHARMA

body2011
ORDER T.P. Sharma, J. 1. By this petition under Section 482 of the Code of Criminal Procedure, the Petitioner has challenged legality and propriety of the order dated 27.11.2001 passed by the Additional Sessions Judge, Dhamtari in Criminal Revision No. 33/2001, affirming the order dated 20.6.2001 passed by the Judicial Magistrate First Class, Dhamtari in Criminal Case No. 225/2001, whereby learned Judicial Magistrate First Class has framed the charge of the offence punishable under Section 409 of the l.P.C. against the present Petitioner and one deceased Uttam Khande. 2. As per brief case of the prosecution, on the basis of documents filed on behalf of the Petitioner, present Petitioner was working as Manager of Kisan Rice Mill, Dhamtari, he has taken advance of Rs. 3,56,240/- on 18.12.2001, but as per inquiry made by the Tahsildar, he has failed to account for the same and has criminally misappropriated the same. On the aforesaid basis, repot was lodged and prosecution has been launched against the Petitioner and one Uttam Khande. 3. I have heard learned Counsel for the parties, perused the order impugned and other documents filed on behalf of the Petitioner. 4. Learned Counsel for the Petitioner submits that at the stage of framing of charge, the trial Court was required to see prima facie material sufficient for framing of charge under Section 409 of the l.P.C, that too an entrustment to the public servant and misappropriation of the amount, but in the present case, as per inquiry report of Assistant Registrar and audit report, the present Petitioner has taken advance of Rs. 3,56,240/-, he has account for the same within the stipulated period as required under the notification dated 6.5.97, he has not committed any misappropriation of the public money. Learned Counsel further submits that such society i.e. Kisan Rice Mill has clearly submitted its report that the present Petitioner has not committed any offence punishable under Section 409 of the l.P.C. Learned Counsel also submits that sanction as required in terms of Section 76(2) of the C.G. Co-operative Societies Act, 1960 (for short 'the Act, 1960') has not been accorded by the competent authority, which is sine qua non for prosecution. Therefore, in the absence of such sanction, prosecution is also not competent, Learned Counsel contented that no any prosecution can be launched against the Petitioner in respect of anything done or purported to have been done by him in good faith under this Act. 5. Learned Counsel placed reliance in the matter of Om Prakash Gupta and etc. v. Stale of Bihar 2000 Cri.L.J. 1750 in which the High Court of Patna has held that in case of exoneration of accused of charges in departmental proceedings and taking cognizance of offence subsequently by Magistrate for same cause of action on same set of charges not permissible. Learned Counsel further placed reliance in the matter of G.A. St. George v. Uma Dutt Sharma AIR 1939 All in which the High Court of Allahabad has held that on the basis of suspicion, courts are not required to frame the charge without prima facie material for framing of such charge. Learned Counsel relied upon the matter of Rex v. V. Krishnan AIR 1940 Mad 329 in which the High Court of Madras has held that in order to constitute criminal breach of trust there must be an entrustment; there must be mis-appropriation or conversion to one's own use or use in violation of any legal direction or of any legal contract; and thirdly the misappropriation or conversion or disposal must be with dishonest intention. 6. On the other hand, learned Counsel for the State opposes the petition and submits that the present Petitioner has withdrawn the money of Rs. 3,56,240/- which was public money and has failed to account for such money, even withdrawal of such money did not find the part of cash book. The matter has been examined by the Tahsildar. On the basis of detail report of the Tahsildar, F.I.R. has been lodged and after investigation, charge sheet has been filed. On the basis of prima facie material collected on behalf of the prosecution, the trial Court has rightly framed the charge. While framing the charge, the Courts below have nor committed any illegality. Learned Counsel further submits that no sanction is required for the prosecution of the present Petitioner. 7. Power under Section 482 of the Code of Criminal Procedure is exceptional in nature and should be used sparingly. While framing the charge, the Courts below have nor committed any illegality. Learned Counsel further submits that no sanction is required for the prosecution of the present Petitioner. 7. Power under Section 482 of the Code of Criminal Procedure is exceptional in nature and should be used sparingly. While dealing with exercise of power under Section 482 of the Code of Criminal Procedure in the matter of Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors. AIR 2005 SC 9 the Supreme 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.... 8. As per order impugned and order of the revisional Court, on the basis of prima facie material collected on behalf of the prosecution, the trial Court has framed the charge of Section 409 of the l.P.C. against the Petitioner. As per detailed report of the Tahsildar, the present Petitioner has committed criminal breach of trust of money advanced to him, but as per report of Assistant Registrar, he has not committed such criminal misappropriation or default. 9. At the time of framing of charge, the Court is required to see evidence in its face value, no meticulous scrutiny is necessary. Even strong circumstance that the present Petitioner has committed is sufficient for framing of the charge. 10. While dealing with the question of framing of charge, the Supreme Court in the matter of State of Bihar v. Ratnesh Singh AIR 1977 SC 2018 has held in para 4 as under, 4. ...at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. ...at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be imcompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. 3ut at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused.... 11. As regards the question of requirement of sanction, Section 76 of the Act, 1960 reads as under: 76. Cognizance of offences.: (1) No Court inferior to that of a Magistrate of the First Class shall try and offence under this Act. (2) No prosecution shall be instituted under this Act without the previous sanction in writing of the Registrar any such sanction shall not be given without giving to the person concerned an opportunity to represent his case. Any prosecution under the Act, 1960 is not competent without the previous sanction in writing of the Registrar. Specific procedure has been provided in Sub-section (2) of Section 76 of the Act, 1960. 12. In the present case, the Petitioner has not been prosecuted under the Act, 1960, but has been prosecuted under Section 409 of the I.P.C.. Any prosecution under the Act, 1960 is not competent without the previous sanction in writing of the Registrar. Specific procedure has been provided in Sub-section (2) of Section 76 of the Act, 1960. 12. In the present case, the Petitioner has not been prosecuted under the Act, 1960, but has been prosecuted under Section 409 of the I.P.C.. therefore, no any sanction is required for prosecution of the Petitioner under Section 409 of the I.P.C. in terms of Section 76(2) of the Act, 1960. 13. Section 88 of the Act, 1960 provides that no any prosecution can be launched against the Petitioner, in respect of anything done or purporting to have been done by him in good faith under this Act. Section 88 of the Act, 1960 reads as under: 88. Indemnity for acts done in good faith.-No suit, prosecution or other legal proceedings shall lie against the Registrar or any person subordinate to him or acting under his authority, in respect of anything done or purporting to have been done by him in good faith under this Act. 14. This is a case of criminal misappropriation and it is difficult to hold that criminal misappropriation has been committed in good faith. 15. As held by the High Court of Patna in the matter of Om Prakash Gupta and etc. 2000 Cri.L.J. 1750 (supra), after exoneration of accused from departmental inquiry, accusation on the same fact and same cause of action is not permissible. Departmental inquiry and criminal prosecution are different act and procedure and both are not controlled by each other. 16. As held by the High Court of Allahabad in the matter of G.A. St. George AIR 1939 All (supra), prosecution is not based only on suspicion, but in the present case, the prosecution is based on material collected on behalf of the prosecution prima facie sufficient for framing of charge. 17. As held by the High Court of Madras in the matter of Rex AIR 1940 Mad 329 (supra), in order to constitute criminal breach of trust, the prosecution is required to see prima facie that money was entrusted and he has used for his own use or use in violation of any legal direction or of any legal contract and that too with dishonest intention. The Petitioner was under obligation to account for, but as per material collected on behalf of the prosecution he has failed to account for, even it has not been entered into account book which is primary requirement for taking such advance. The facts of the case of Rex AIR 1940 Mad 329 (supra) are distinguishable to that of the present case. 18. While framing the charge under Section 409 of the I.P.C. and while dismissing the revision, both the Courts below have not committed any illegality. I do not find any ground for interference in exercise of extraordinary jurisdiction in terms of Section 482 of the Code of Criminal Procedure. 19. Consequently, the petition is liable to be dismissed and it is hereby dismissed. Vide order dated 23.8.2002, further proceedings of Criminal Case No. 225/01, pending in the Court of Judicial Magistrate First Class, Dhamtari has been stayed. The trial Court is directed to expedite the trial and conclude the same as early as possible.