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2014 DIGILAW 2512 (ALL)

Dharmendra Kumar v. State of U. P.

2014-08-15

RANJANA PANDYA

body2014
JUDGMENT Mrs. Ranjana Pandya,J. I have heard learned counsel for the revisionist, learned A.G.A. and perused the material on record. 2. This revision has been preferred against the order dated 26.05.2014 passed by Additional Chief Judicial Magistrate, Court No. 5, Ghaziabad, in Criminal Case No. 3427 of 2011, under Section 406 I.P.C., Police Station Link Road, District Ghaziabad. 3. Brief facts are that the opposite party no. 2 has lodged a complaint before the Magistrate stating the the complainant is a Corporate company having its branch office at 20/02/10, Ground Floor Site-IVth Industrial Area, Sahibabad, Police Station Link Road Tehsil, District Ghaziabad. The company of the complainant does the business of Zinc Scrap from its above mentioned branch. The accused Dharmendra Kumar is proprietor to Jagdamba Metal Traders, Kanwariganj Road, Aligarh who came to the complainant in connection with business along with the relative of the complainant namely Himanshu Varshnay. Himanshu Varshnay introduced the accused as his good friend and told the complainant that the accused wants to purchase Zinc Scrap and it was said that the payment of Zinc Scrap will be made within 10 days. The complainant on believing the accused Dharmendra Kumar and on the request of his relative Himanshu Varshnay promise, sent 9750 Kg. of Zinc Scrap valuing Rs. 7,02,000/- and Rs. 35,100/- as VAT, total amount Rs. 7,37,100/-. The accused said that since he would get the Zinc Scrap, he would make the payment. The complainant sent Zinc Scrap weighting 9750 Kg. valuing Rs. 7,37,100/- including VAT. On 10.05.2011 vide invoice no. 043 by Chaudhary Flight Career, 175 Hapur Road, Chandrapuri, Ghaziabad by Lorry No. U.P. 17 T 1315 and the complainant paid the fare of Rs. 5000/- to the lorry company. The Zinc Scarp was received by the accused on 11.05.2011 which was also communicated to the complainant by mobile. The complainant against asked the accused for payment but the accused mis-appropriated the goods and refused to make payment. 4. The complainant was examined under Section 200 Cr.P.C. and an inquiry under Section 202 Cr.P.C. The statement of PW-1 Naved Chaudhary, PW-2 Himanshu Varshnay, PW-3 Sadaram and PW-4 Vakeel were recorded and some documents were filed on which the accused was summoned. 4. The complainant was examined under Section 200 Cr.P.C. and an inquiry under Section 202 Cr.P.C. The statement of PW-1 Naved Chaudhary, PW-2 Himanshu Varshnay, PW-3 Sadaram and PW-4 Vakeel were recorded and some documents were filed on which the accused was summoned. After the accused was summoned, the accused approached the High Court under Section 482 Cr.P.C. in which following order was passed: - "If the concerned court after hearing the counsel for the accused feels persuaded to have the view that the accused ought not to have been summoned and the charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application u/s 245(2) Cr.P.C. On the other hand if the lower court even after hearing the counsel for accused holds the view that the accused has been rightly summoned and the material produced by the complainant does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits." 5. The accused moved a discharge application which was rejected vide order dated 26.05.2014 against which this revision has been preferred. 6. As far as grounds for discharge are concerned Section 239 Cr.P.C. reads as follows: - "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." 7. The plain reading of the above shows that the court trying the case can direct discharge only for the reasons to be recorded by it and only if it considers the charges against the accused to be groundless. 8. The plain reading of the above shows that the court trying the case can direct discharge only for the reasons to be recorded by it and only if it considers the charges against the accused to be groundless. 8. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. 9. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. Vs. State (NCT of Delhi) and Anr., 2008 2 SCC 561 in which the Apex Court has held that: - "That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C., holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing the charges or directing discharge in the following words: "11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of the offence." 10. Counsel for the revisionist has argued that there is no evidence of entrustment hence no case under Section 406 I.P.C. is made out for framing charge against the revisionist. 11. I have perused the evidence on record in the complaint in which it has been mentioned that the delivery of the goods was effected on the accused. Even in the statement of complainant it is stated that the accused had taken the goods of the complainant into his personal use and has usurped the goods. PW-1 Naved Chaudhary has also stated that goods were received by the accused on 11.05.2011. The same has been corroborated by PW-2 Himanshu Varshnay and PW-3 Sadaram, PW-4 Vakeel has said that he delivered the Zinc Scrap to the accused. 12. In Santosh Kumar Yadav Vs. State of U.P. and another, 2011 (72) ACC 7870, it has been laid down that if there are ingredients of offence against the accused, charges should be framed. 13. The Hon'ble Apex Court in 2010 (1) ACR (SC) P. Vijayan Vs. State of Kerala and another has held that whether the materials at the hands of the prosecution are sufficient or not are matter for trial. At the stage of charge, it cannot be claimed that there is no sufficient ground to proceed against the accused and discharge is the only remedy. Whether the trial would end in conviction or acquittal is absolutely immaterial at this stage. 14. Thus, there are sufficient ground to frame charge against the accused. The order does not suffer from any illegality, irregularity or impropriety and the revision is liable to be dismissed. 15. Accordingly the revision is dismissed.