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2012 DIGILAW 130 (PNJ)

Jayanti Parkash Goenka v. State of Haryana

2012-01-24

RAKESH KUMAR GARG

body2012
JUDGMENT Mr. Rakesh Kumar Garg, J.: - The petitioner, against whom charge has been framed vide impugned order dated 12.12.2011 under Sections 420/467/468/471/379/506 read with Section 120-B IPC, has filed this criminal revision petition challenging the said order. 2. Brief facts of the case are that the complainant-Nand Kishore Goenka (i.e. Father of the petitioner) filed a complaint against the petitioner submitting that the petitioner being his eldest son used to manage the entire business of the firm, of which he was the sole proprietor. He had also given a general power of attorney to the petitioneraccused for operating the SBI account. The petitioner had played a fraud upon him by forging a document alleged to be an agreement for transferring the property of M/s Jayanti Timber Industries (firm) in his favour and on the basis of that forged document, he closed the account of the said firm and got a new account opened in his own name as proprietor and he further misappropriated the amount of cheques in connivance with the other accused and committed theft of the account books of his firm and also of his three sons and his wife, ledger book, cash book, income tax file, cheque book, pass book in order to misuse them for his personal use. Since, no action was taken on his complaint made to the police, the instant complaint was filed in the Court. 3. All the accused as mentioned in the complaint were summoned vide order dated 7.8.1997 under Sections 420/467/468/471/379/506 read with Section 120-B IPC. During the trial, the complainant died and his son Krishan Kumar Goenka i.e. respondent No.2 contested the complaint on his behalf, who was allowed to proceed vide order dated 20.5.1997. 4. After evaluating the precharge evidence, the trial Court discharged the petitioner and other accused vide order dated 19.7.2006. 5. Aggrieved from the said order, the complainant filed a revision petition before the Additional Sessions Judge, Yamuna Nagar at Jagadhri , which was allowed and the matter was remanded back to the trial Court to pass an order after hearing the matter afresh. 6. The petitioner filed Criminal Revision No.3042 of 2011 before this Court challenging the said order of the Additional Sessions Judge, Yamuna Nagar at Jagadhri dated 5.9.2011. 6. The petitioner filed Criminal Revision No.3042 of 2011 before this Court challenging the said order of the Additional Sessions Judge, Yamuna Nagar at Jagadhri dated 5.9.2011. The said revision petition was dismissed by observing as under:- “The Revisional Court, after considering and after application of mind, has remitted the case back to the trial Court for re-considering the evidence afresh. The apprehension of the petitioner is that there is hardly any option now left with the trial Court but to frame a charge. Any observations made by the Revisional Court while remanding the case of course would be taken into consideration by the trial Court as having been made for the purpose of passing the order and not as any binding direction. The trial Court would apply its independent mind to the evidence on the basis of material collected and placed before it to see if it is a case of discharge or there is a material to frame a charge. The petitioner would be at liberty to take his remedy in case any adverse order is passed against him by the trial Court. It will not be appropriate to at this stage to interfere in the revision petition filed by the petitioner before this Court.” 7. Vide impugned order dated 12.12.2011, the Judicial Magistrate 1st Class, Yamuna Nagat at Jagadhri had framed the charge against the petitioner and others under Sections 420/467/468/471/379/506 read with Section 120-B IPC. The said order reads thus:- “Arguments heard. On bare perusal of preliminary evidence, pre-charge evidence and other documents placed upon the file. A prima facie case for charging the accused to face trial for the commission of offence punishable under Section 420/467/468/471/379/506 read with Section 120-B IPC is made out against the accused. Also at this stage, on framing of charge, Court need not to pass a detailed order, a detailed order needs to be passed only in case of discharging the accused. In this regard, this Court placed reliance upon AIR 2000, 522 (S.C.) wherein it is held – Cr.P.C. Section 239, 240, 482 IPC framing of charge – reasons need not be recorded by trial Court – order framing charge cannot be quashed merely on the ground that it is cryptic. 2. In this regard, this Court placed reliance upon AIR 2000, 522 (S.C.) wherein it is held – Cr.P.C. Section 239, 240, 482 IPC framing of charge – reasons need not be recorded by trial Court – order framing charge cannot be quashed merely on the ground that it is cryptic. 2. Section 244 requires a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms an opinion that there is ground for presuming that the accused had committed the offence which he is competent to frame. In such a situation, he is only required to frame the charge in writing against the accused. 3. Even in cases instituted otherwise than on police report, the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. It is clear from Section 245 Cr.P.C. Even in trial before the Court of Sessions, the Judge is required to record reasons only if he decides to discharge the accused. But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge. 4. In view of the facts discussed above, let the accused be charge-sheeted under Sections 420/467/468/471/379/506 read with Section 120-B IPC.” 8. Challenging the aforesaid order in this revision petition, learned counsel for the petitioner has vehemently argued that vide order dated 5.12.2011 passed in Criminal Revision No.3042 of 2011, this Court had directed the trial Court to apply its independent mind to the evidence on the basis of material collected and placed before it to see if it was a case of discharge or that there was a material to frame a charge. However, vide impugned order, the trial Magistrate neither referred to the order of this Court nor any evidence in support of his opinion that offences under Sections 420/467/468/471/379/506 read with Section 120-B IPC were made out. However, vide impugned order, the trial Magistrate neither referred to the order of this Court nor any evidence in support of his opinion that offences under Sections 420/467/468/471/379/506 read with Section 120-B IPC were made out. The trial Magistrate has lost sight of the fact that initially the accused were discharged by the trial Court by order dated 19.7.2006 and further were was a direction by this Court in Criminal Revision No.3042 of 2011 to see if there was evidence to frame particular charges but instead of passing any speaking order or referring to the material in order to frame charges against the accused, the trial Magistrate has held that no speaking order is to be passed for framing charges. Thus, according to the counsel for the petitioner, the impugned order is liable to be set aside. 9. I have heard learned counsel for the petitioner and perused the impugned order as well as the other documents placed on record of this petition. 10. It is useful to refer Sections 239 and 240 of the Cr.P.C which reads thus: “S.239. When accused shall be discharged – If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” S.240.Framing of charge- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 11. A perusal of the above provisions show that a Magistrate is competent to frame a charge on consideration of the documents and other material attached with the police report submitted under Section 173 Cr.P.C and finding that a prima facie case has been made out. A perusal of the above provisions show that a Magistrate is competent to frame a charge on consideration of the documents and other material attached with the police report submitted under Section 173 Cr.P.C and finding that a prima facie case has been made out. It is also well settled that at the stage of framing of charge, the court need not to pass a detailed order and thus, what is required is that on bare perusal of the preliminary evidence and other documents placed on the file, a Magistrate has to be satisfied that a prima facie case is made out for charging the accused to face trial. 12. It may also be mentioned that while passing the impugned order, no doubt the Magistrate has not referred to the orders of this Court and the reasons for framing the charge against the accused-petitioner, however, from the aforesaid fact itself, it cannot be made out that the trial Magistrate has not applied its independent mind to the evidence on the basis of material collected and placed before him to see if it is a case of frame a charge. 13. Admittedly, the case of the complainant is that the petitioner in connivance with other accused had cheated his own father by forging an agreement dated 29.12.1995 vide which the petitioner had got the property in the name of M/s Jayanti Timber Industries transferred in his own name and has further closed the account of his father which was in the name of the firm and got the new account opened in his own name and withdrew the amount of Rs.9.5 lacs. Even a perusal of the order dated 19.7.2006 of the Judicial Magistrate 1st Class, Jagadhri would show that in precharge evidence, complainant Krishan Kumar Goenka (PW-1) has testified and reiterated the averments as made in the complaint. Moreover, Gulshan Rai, Assistant Director, FSL, Madhuban while appearing as PW-4 had testified that agreement dated 29.12.1995 Ex.PW2/B was a forged document. 14. It is the specific stand of the petitioner that there was a family settlement which was effected on 16.12.1995 and all the properties were duly partitioned vide document Ex.DI and on the basis of the said document, a property was got transferred in his name by his father on 29.12.1995 and thus, there was no forgery committed by him. 15. It is the specific stand of the petitioner that there was a family settlement which was effected on 16.12.1995 and all the properties were duly partitioned vide document Ex.DI and on the basis of the said document, a property was got transferred in his name by his father on 29.12.1995 and thus, there was no forgery committed by him. 15. Not only this, the aforesaid stand of the petitioner taken before this Court is further belied from the judgment dated 8.12.2010 of the Civil Court which has been placed on record of this revision petition wherein the Court has given a specific finding that the agreement dated 29.12.1995 is a forged document and the settlement dated 16.12.1995 Ex.D1 cannot be read into evidence being unregistered document. It may also be noticed at this stage that the judgment of the Civil Court dated 8.12.2010 was allowed to be taken on record by the Additional Sessions Judge, Yamuna Nagar at Jagadhri in the revision petition filed by the complainant against the earlier order dated 19.7.2006 of the Judicial Magistrate 1st Class, discharging the petitioner and other accused. 16. In view of the pre-charge evidence as discussed in the foregoing paragraphs of this order and the Civil Court judgment dated 8.12.2010 wherein a specific finding has been given with regard to the documents relied upon by the petitioner, it cannot be argued that there was no material on record before the Judicial Magistrate 1st Class, Jagadhri while framing charges against the petitioner. 17. It may also be noticed at this stage that the Hon’ble Supreme Court in Special Leave Petition (CRL.)No.4606 of 2011 (Helios & Matheson Information Technology Ltd. & Ors. Versus Rajeev Sawhney & Anr.) decided on 16.12.2011 has held that the revisional Court can examine the correctness of the order framing charges by reference to the documents referred to in Sections 239 and 240 Cr.P.C and that the Court could not quash the charges on the basis of documents which the accused may produce except in exceptional cases where the documents are of unimpeachable character and can be legally translated into evidence. 18. As noticed earlier, the complainant in the present case had made specific allegations which would call for a proper enquiry and there is enough material before the trial Court as discussed above to reach to prima facie conclusion to frame charges against the petitioner. 19. 18. As noticed earlier, the complainant in the present case had made specific allegations which would call for a proper enquiry and there is enough material before the trial Court as discussed above to reach to prima facie conclusion to frame charges against the petitioner. 19. Thus, I find no merit in this petition. 20. Dismissed. 21. However, the observations made hereinabove shall not be construed as an expression of opinion on the merits of the case. ----------