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2015 DIGILAW 266 (MP)

Ajit Jain v. State Of M. P.

2015-03-03

J.K.JAIN, S.R.WAGHMARE

body2015
ORDER : S. R. WAGHMARE, J. By this petition under section 482 of Criminal Procedure Code, the petitioners Ajit Jain and Dilip Jain are seeking quashment of the order framing charge dated 22-5-2013 (Annexure P/1) passed by the Court of 1st Special Judge-cum-Authorised Officer under M.P. Special Courts Act, 2011, Indore and all proceedings pending and arising out of FIR No. 91/2011, dtd.9-8-2011 under the Prevention of Corruption Act, 1988. 2. Briefly stated the facts of the case in a nutshell are that in FIR bearing No. 91/2011 is filed on 9-8-2011 for offence under section 13(1)(e) read with section 13(2) of Prevention of Corruption Act, 1988 against one M. K. Jain, Superintendent Engineer, RES at Indore (MP). He is the brother of the present petitioners Ajit Jain and Dilip Jain and it would be pertinent to note that the names of the petitioners did not figure in the aforesaid FIR and whereas petitioner No. 1 Ajit Jain was the Professor in a Govt. College at Rehli, Distt. Sagar (MP). Petitioner No. 2, Dilip Jain was an Assistant Engineer with MPSEB and posted at Makronia, Sagar, M. P. However, on investigation the prosecution filed the charge-sheet (challan) bearing No. 176/12 against Shri M. K. Jain as well as the petitioners and since the offences alleged against Shri M. K. Jain were under section 13(1)(e) read with section 13(2) of Prevention of Corruption Act, 1988 and sections 420, 467, 468, 471 and 201 of the Indian Penal Code; the petitioners were alleged to have committed the offence of abetment under section 107 of Indian Penal Code and the prosecution has pressed into service under section 109 of Indian Penal Code against them. The main allegations pertain to the fact that the petitioners are brothers and abetted the main accused Shri M. K. Jain in purchasing the property No. 278, Scheme No. 54 BG, Vijaynagar, Indore. And that the present petitioners are the benami co-holders of the said property; but, the actual and real owner is Shri M. K. Jain who purchased the property through ill-gotten wealth, hence the present petition. 3. Counsel for the petitioners has vehemently urged the fact that since the petitioners were neither named in the FIR nor was there any allegations of abetment the offence could not apparently be made out against them. 3. Counsel for the petitioners has vehemently urged the fact that since the petitioners were neither named in the FIR nor was there any allegations of abetment the offence could not apparently be made out against them. Moreover the period of assessment under the question is from 1-6-1981 to 9-8-2011 and the charges have been framed by order dated 22-5-2013. Counsel vehemently urged that the property in question was purchased by a registered sale deed dated 26-2-2010 for Rs. 60 lakhs from one Smt. Mainabai Zindal and Smt. Rina Zindal; whereas proper permission was sought from the Govt. of MP by the main accused Shri M. K. Jain on 28-2-2010 and is available on record as well as along with the petition. It clearly indicates that the loan was properly sought from the IDBI after due sanction from the State Govt. the letter dated 28-2-2010 from Under Secretary, Govt. of MP clearly indicates that building permission was given by the IDA and in accordance with the Rule 19 of the MP Civil Services Rules, sanction was granted for construction of the house on plot No. 278 and all the three brothers were granted sanction to seek a loan; therefore Counsel vehemently urged how could the present petitioners said to have aided and abetted the accused M. K. Jain to acquire the said property through illegal means. Besides Counsel contended that the loan had been paid by the brothers and also had been sanctioned in the name of all the three brothers on 30-1-2010. Similarly Counsel vehemently urged that Shri Ajit Jain who was a Lecturer and paid income tax had filed his Income Tax Returns to indicate that he earned about Rs. 45 lakhs per year and the other brother earned Rs. 49 lakhs per year. Similarly Counsel for the petitioners have also vehemently urged the fact that the petitioners were holder of agricultural lands amounting to 49.27 acres at Sagar, MP and valued of Rs. 45 lakhs per year and the other brother earned Rs. 49 lakhs per year. Similarly Counsel for the petitioners have also vehemently urged the fact that the petitioners were holder of agricultural lands amounting to 49.27 acres at Sagar, MP and valued of Rs. 100/- lakhs and merely casting aspersions and not taking into consideration the documents filed by the petitioners clearly indicated the mala fides on behalf of prosecution and to say that amassing disproportionate assets on the ground of suspicion and conjectures could not be sustainable in the eyes of law and the prosecution should not be permitted to abuse the process of law and the entire prosecution is malicious and based on incorrect source of informations which are absolutely false and erroneous. A vexatious complaint has been filed by one Shri Pramod Jain who was a driver of accused M. K. Jain. This driver married the daughter of M. K. Jain secretly at Ujjain on 9-9-2009 and thereafter tortured her immensely and started making demands for heavy dowry and, therefore, a false complaint had been filed by daughter of accused M. K. Jain against him. This complainant was also evicted by the accused M. K. Jain from their joint property bearing House No. 278, Scheme No. 54 BG, Vijaynagar, Indore and hence he has started filing a false complaint against M. K. Jain and his brothers. All the documents, police reports were available on record; despite which, the present petitioners especially, the uncles were being falsely prosecuted and a such a course should not be permitted. It is a clear case of abuse of process of law. 4. He placed reliance on Shri Ram vs. State of U. P., (1975) 3 SCC 495 to state that in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107; whereas there is no intention or mens rea as is being indicated to substantiate the charge of abetment under section 109. The State Govt. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of section 107; whereas there is no intention or mens rea as is being indicated to substantiate the charge of abetment under section 109. The State Govt. had properly been informed of need for the loan and had been granted the sanctions as already stated above and hence it could not be said to be an incriminating evidence since mere facilitation cannot be interpreted to be an abetment. The physical act or instigation is strongly absent and Counsel prayed that the impugned order framing charge be set aside. Similarly Counsel submitted that active complicity was necessary concomitant for the offence of abetment which was absent in the present case and the burden of proof was clearly on the prosecution which it has failed to discharge. The FIR also does not contain the name of the present applicants. 5. Counsel placed reliance on R. P. Kapur vs. State of Punjab, AIR 1960 SC 866 whereby it was urged that in cases falling under this category where the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. To bolster his submissions Counsel relied on Gangula Mohan Reddy vs. State of Andhra Pradesh, 2010 (1) SCC 750 , AIR 1928 Nag 257, 2005 Cri.L.J. 4322 (Ker), Krishnanand Agnihotri vs. State of M. P., (1977)1 SCC 816 and Pramatha Nath Talukdar and Surendra Mohan Basu vs. Saroj Ranjan Sarkar, 1962 Supp (2) SCR 297. Counsel prayed that the impugned order framing charge be quashed. 6. Counsel for the respondents has categorically made allegations that if the registered sale deed relied on by the present petitioners is considered, it is dated 26-2-2010 whereas the sanction from the State Govt. is dated 28-2-2010. The loan from the Bank is dated 30-1-2010 and thus Counsel for the respondent/S.P.E. urged that it is a clear attempt to pass of ill-gotten wealth. Moreover Counsel also urged that the entire loan amount of Rs. 74 lakhs was paid off within a short period of nine months. The one instalment of Rs. is dated 28-2-2010. The loan from the Bank is dated 30-1-2010 and thus Counsel for the respondent/S.P.E. urged that it is a clear attempt to pass of ill-gotten wealth. Moreover Counsel also urged that the entire loan amount of Rs. 74 lakhs was paid off within a short period of nine months. The one instalment of Rs. 13 lakhs was paid on 25-9-2010 by cheque whereas within another period of three days on 28-9-2010 an amount of Rs. 53,40,145/- was paid in cash by the accused M. K. Jain through his own account. The entire transaction of repayment has been done in the name of the single account of Shri M. K. Jain. This clearly indicated that the suspicious circumstances were available against the accused Shri M. K. Jain as well as the present petitioners. Moreover an objection was also raised that sanction has not been taken properly as required under the provision of law from the State Govt. of M.P. since the other brothers are also government servants, however, Counsel for the respondents urged that if the act pertains to committing of criminal offence does not a part of the duty of the government servant and no sanction is required. Counsel relied on Prakash Singh Badal vs. State of Punjab, 2007(1) SCC 1 . Counsel also relied on State by Central Bureau of Investigation vs. S. Bangarappa, (2001) 1 SCC 369 whereby the Apex Court had held that at the time of framing of charges under sections 211 and 240 of the Criminal Procedure Code, the Court should not undertake detailed analysis and evaluation of material at that stage. It has only to find whether the material adduced by prosecution was sufficient to proceed further. In case offence under section 13(2) read with section 13(1)(e) of Prevention of Corruption Act, 1988 it is not necessary that charge can be framed only on failure of public servant to explain the excess or surplus assets. It does not mean that the court could not frame charge until the public servant fails to explain the excess or surplus pointed out to be the wealth or assets of the public servant concerned. This exercise can be completed only in the trial. In the present case the materials which the prosecution enumerated are sufficient to frame the charge for the offence under section 13(2) read with section 13(1)(e) of the Act. This exercise can be completed only in the trial. In the present case the materials which the prosecution enumerated are sufficient to frame the charge for the offence under section 13(2) read with section 13(1)(e) of the Act. Relying on State of M. P. vs. Awadh Kishore Gupta and others, (2004) 1 SCC 691 Counsel submitted that quashing of proceedings by appreciating the evidence was not permissible and even if the charge is framed at that stage, High Court cannot appreciate the evidence, but can evaluate material and documents on records to the extent of its prima facie satisfaction about the existence of sufficient ground for proceeding against the accused and offence under Prevention of Corruption Act, 1988, even if the investigation was not completed. And quashing of investigation and proceedings by High Court acting upon documents annexed to the petition under section 482 was held not proper. It was impermissible for High Court to look into materials, the acceptability of which was essentially a matter for trial and impugned judgment of High Court is liable to be set aside. 7. Counsel for the respondents prayed that the petition was without merit and the same be dismissed since it would not be proper under the circumstances to quash the charges at this stage or set aside the order framing charge primarily because the factual position cannot be by-passed and investigation has been properly conducted and it would not be proper to weigh the merits to scrutinise the case at this stage as already stated above. The question which pertains to proof would also arise only after the trial is conducted and the prosecution is allowed to lead its evidence. Counsel for the respondents urged that merely because a loan has been sought by all the three brothers and only one of property has been explained, that explanation also is not satisfactory in the light of the repayment of the loan and the needle of suspicion is clearly on the present petitioners to have actively aided and abetted the main accused M. K. Jain in ill-gotten wealth and Counsel prayed that the petition be dismissed. 8. On considering the above, we find that the dispute hinges on the fulcrum whether the petitioners were guilty of actively aiding and abetting the main accused M. K. Jain in the amassing of disproportionate assets. 8. On considering the above, we find that the dispute hinges on the fulcrum whether the petitioners were guilty of actively aiding and abetting the main accused M. K. Jain in the amassing of disproportionate assets. Section 107 also indicates that an act or illegal omission must take place in pursuance of that conspiracy, and there must be a combining together of two or more persons in the conspiracy; secondly, an act or illegal omission must take place in pursuance of that conspiracy and in order to the doing of that thing. It is not necessary that the abettor should concert in the offence with the person who commits it. It is sufficient if he engages in the conspiracy in pursuance of which the offence is committed. And hence the dates as pointed out by the Counsel for the respondents are important in the case. The date of registered sale deed by which the accommodation has been purchased and the date of the sanction by the State Govt. and the date of payment and repayment of loans are all shrouded under cloud of suspicion and it would not be desirable to consider the motive at this stage. The requirement at this stage is merely to ascertain whether there is a prima facie case available against the accused and the complaint requires to be looked into. For the reasons stated above and the prima facie doubt raised against the petitioners would thus under the present circumstances would not amount to a gross abuse of the process of the Court if the trial Court proceeds with the trial. The exceptional circumstance that would lead to the quashment of the charge-sheet, would be only; if, on frivolous and vexatious ground a charge is being framed. The complicity as stated by the Counsel for the petitioners is required to be established and the repayment of loan by accused M. K. Jain alone through a single account within such a short period undoubtedly it amounts to a suspicion and ground for prosecution. We find that the petition cannot be entertained at this stage and the cases cited by the Counsel for the petitioners are of no use to the petitioners. We find that the petition cannot be entertained at this stage and the cases cited by the Counsel for the petitioners are of no use to the petitioners. We have found that the Apex Court has time and again held that it is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process or any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. If the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge, then this Court can exercise jurisdiction under section 482 of Criminal Procedure Code. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. However, at present there is a direct allegation of conspiracy as well as taking and disbursement of the loan by all the three brothers is surprising when they are the government servants. So also it would be profitable to rely on State of Madhya Pradesh vs. S. B. Johari and others, 2000(2) MPLJ 322 , whereby the Court held thus : "It is settled law that at the stage of framing the charge, the Court has to prima-facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not, for convicting the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not, for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further, then a charge has to be framed." (Also see) Umar Abdul Sakoor Sorathia vs. Intelligence Officer, Narcotic Control Bureau, 2000 (1) SCC 138 ; State of Maharashtra and others vs. Somnath Thapa and others, 1996 (4) SCC 659 . Consequently, we find that the petition is without merit and the same is dismissed as such.