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2016 DIGILAW 601 (JHR)

Ravi Chemmencheri @ C. Ravi v. State of Jharkhand

2016-04-12

RAVI NATH VERMA

body2016
ORDER : Challenge in this revision application is to the order dated 18.01.2012 passed by learned Judicial Magistrate, 1st Class, Bokaro in C.P. Case No. 325 of 2002 whereby and whereunder the petition filed at the instance of the petitioners for their discharge under Section 245 of the Code of Criminal Procedure (in short “the Code”), has been rejected. 2. The facts of the case, which is relevant for the proper appreciation of the issue involved in this case, in short, is that at the instance of the complainant-opposite party no.3- Birendra Singh, the aforesaid complaint case was filed with the allegation that when the complainant was unemployed and was making attempts in Bokaro Steel Plant for his employment, one of the accused Suresh Kumar Tekriwal approached him and proposed to start a business jointly and with dishonest intention induced him to invest handsome amount in that business. The complainant agreed to support the partnership business but he was not aware that his partner would cheat him and would misappropriate the amount of the partnership business. The complainant entered into the partnership business with the said accused-Suresh Kumar Tekriwal and several partnership firms were constituted including M/s Savita Iron and Steel Processor, M/s Akshay Steel. In terms of the partnership agreement relating to one M/s Akshay Steel, a joint bank account was opened in the Vijaya Bank, Naya More Branch, Bokaro and condition was laid down that the account shall be operated under the joint signatures of both the partners but with utter violation of terms of the said agreement the said accused in connivance with other accused persons Ravi Chemmencheri @ C. Ravi and P. Sampat Kumar Hegde, employee of the said bank, presented different cheques (48 in number) under single signature of accused-Tekeriwal and withdraw Rs.17,20,789/- on different dates starting from 03.08.1999 to 28.02.2000. The accused persons had full knowledge that the signature of the complainant in his capacity of being first partner of M/s Akshay Steel was required on each cheque but even then amounts were allowed by the petitioners in connivance with other employees under single signature of Suresh Kumar Tekriwal and the petitioners facilitated in commission of agreement of misappropriation of huge amount by preparing forged documents and passing the cheques. During continuation of business, there was some dispute between M/s Akshay Steel with M/s Viswanath Transport and in terms of the agreement, matter was referred to arbitrator which was later on compromised. The said accused-Suresh Kumar Tekriwal received total amount of Rs.15,26,00,000/- from different companies including the arbitration award amount but no information regarding receiving of the amounts from those companies was given to the complainant and with dishonest intention he misappropriated the huge amount. Besides the above he also received an amount of Rs.26,51,00,000/- but almost 50% of the aforesaid amount was misappropriated by Suresh Kumar Tekriwal. 3. The court of Chief Judicial Magistrate after recording the statement of the complainant on solemn affirmation and statement of other witnesses produced by the complainant, took cognizance of the offence. After appearance of the accused persons, the witnesses were examined and cross examined in terms of Section 244 of the Code and also provided opportunity to the accused to produce their evidence. Before framing of charge, a petition under Section 245 of the Code was filed at the instance of the two petitioners with prayer to discharge them. The court below after examining the evidence on record, the partnership deed and the defence of the accused persons found that there is strong suspicion about the commission of offence and involvement of the accused and sufficient evidence to frame charge against the accused persons and rejected the discharge petition as indicated above. Hence, this revision. 4. Learned counsel appearing for the petitioners assailing the order impugned as perverse and bad in law, seriously contended that the court below while considering the prima facie materials and the strong suspicion against the petitioners, has not applied its judicial mind and ignored the very settled principle of law. It was also submitted that the court below has not appreciated the evidence brought on record in right perspective and even if the allegations made in the complaint petition and the evidences collected is accepted in its entirety, no case is made out against the petitioners and the same relates to civil dispute. It was also submitted that the court below has not appreciated the evidence brought on record in right perspective and even if the allegations made in the complaint petition and the evidences collected is accepted in its entirety, no case is made out against the petitioners and the same relates to civil dispute. It was also contended that none of the ingredients responsible to constitute the offence of misappropriation of fund or cheating are available on record against the petitioners as there were the bank officials and the allegations even if, is against the partner of those firms namely Suresh Kumar Tekriwal but even then the court below without applying its judicial mind rejected the petition for their discharge by the order impugned. Learned counsel in support of his contention relied on a case Ashish Kumar Sinha @ Antim Singh @ Ashish Singh Versus State of Jharkhand; 2012(2) EastCrC 411 (Jhr) wherein also there was no evidence except suspicion and so the accused was discharged. Similarly, in the instant case also except suspicion that in connivance with the said co-accused Suresh Kumar Tekriwal these two petitioners allowed him to withdraw the huge amount ignoring the terms and conditions of the partnership agreement. 5. Contrary to the aforesaid submissions, learned counsel appearing on behalf of the opposite party no.3-complainant submitted that after considering the evidence available on record including the agreement of partnership firm, the court below finding strong prima facie case and sufficient material passed the order impugned and at this stage, in view of the settled principle, meticulous examination of evidence and roving enquiry are not possible. Learned counsel appearing for the opposite party no.2-Vijaya Bank submitted that the two petitioners have not committed any offence as alleged and there was no any violation of the terms and conditions of the agreement and on mere suspicion the two petitioners have been implicated in this case. 6. Before adverting to the rival submissions of the learned counsels, I think it proper to examine the scope and ambit of the power of the court below on discharge petition. The Code of Criminal Procedure contemplates the discharge of the accused by the court of Sessions under Section 227 of the Code in a case triable by it. 6. Before adverting to the rival submissions of the learned counsels, I think it proper to examine the scope and ambit of the power of the court below on discharge petition. The Code of Criminal Procedure contemplates the discharge of the accused by the court of Sessions under Section 227 of the Code in a case triable by it. Similarly, the cases instituted upon a police report and triable by a court of Magistrate, is covered under Section 239 of the Code but the cases instituted otherwise than on a police report i.e. complaint are dealt with in Section 245 of the Code. In the instant case, it is evident that the petition for discharge was filed under Section 245 of the Code. There is basically no difference in a discharge petition either filed under Section 227 or 239 or 245 of the Code. Sections 227 and 239 of the Code provide that upon consideration of the record of the case, the documents submitted with the police report as contemplated under Section 173 of the Code and after hearing the prosecution and the accused, the court finding sufficient ground and strong suspicion to proceed against the accused can frame charge but if there is no prima facie case, the accused has to be discharged. Similarly, under Section 245 of the Code also, after examination of the complainant and his witnesses and cross examined by the defence if the court finds prima facie case or strong suspicion, it is free to frame charge against the accused. Basically there is no difference in the appreciation of the discharge petition under the above three provisions. The question of discharge is succinctly analyzed by the Hon’ble Supreme Court in the case Sajjan Kumar Vs. CBI, (2010) 9 SCC 368 wherein the Hon’ble Supreme Court has observed in Para 19 as under: “19. It is clear that at the initial stage, if there is 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. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. The presumption of the guilt of the accused which is to be drawn at the initial stage is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce proves the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial.” In another case Rajiv Thapar & Ors. V. Madan Lal Kapoor, (2013) 3 SCC 330 , similar issue was involved and the Hon’ble Supreme Court while dealing the discharge petition in a complaint case, held in Paragraph-28 as follows:- “This is not a stage of evaluating the truthfulness or otherwise of the allegations leveled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has leveled allegations bringing out all ingredients of the charges levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations leveled, trial must be held”. 7. Apparently, in view of the above two decisions it can easily inferred that at the stage of either framing of charge or discharge of accused, the court has not make any roving enquiry into the allegations or meticulously examine the material on record or to evaluate the truthfulness or otherwise the allegations leveled in the First Information Report or in the complaint. At this stage, even if accused is successful in showing some suspicion or doubt, it would be impermissible to discharge the accused before trial because it would result in giving finality to the accusations leveled by the victim or informant without allowing the prosecution to adduce evidence to substantiate the same. 8. I have gone through the order impugned and the evidences available on record, I find that the court below has discussed the evidence of the complainant, his witnesses and the cross examination by defence and has also examined documentary evidences including the partnership deed and passed the order impugned. The court below has discussed the relevant part of partnership deed (Ext.14) where in Column 11 it is clearly stipulated that the Bank account shall be operated by first partner-the complainant in the name of the firm and as such the cheque, bill of exchange shall be signed, accepted, endorsed etc. by the first partner. However, it may be changed if both the partners decide to do so at any time for better operation of the firm. Obviously, the Bank was aware of this term and conditions even then allowed the partner to withdraw the amount without the signature of first partner, the complainant. Regarding the joining of one of the petitioner-P. Sampat Kumar Hegde, the said petitioner will get opportunity during trial. Obviously, this is not a stage to make a roving enquiry into the matter or to see whether the trial will end in conviction or acquittal rather the court has to presume a strong suspicion or a grave prima facie case to proceed. Even if the accused are successful in showing the suspicion or doubt in the allegation leveled by the complainant, at this stage, it would be impermissible to discharge the accused before trial. The court below, in very clear term has come to the conclusion that there is strong suspicion about the commission of offence and involvement of the accused-petitioners. Hence, the ratio decided in Ashish Kumar Sinha @ Antim Singh @ Ashish Singh (supra) is not applicable in the present case and the finding recorded by the court below is not based on mere suspicion. 9. In view of the discussion made above, I do not find any merit in this revision application, accordingly, dismissed.