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2018 DIGILAW 1267 (ALL)

Ramji Pandey v. State Of U. P.

2018-05-18

DEVENDRA KUMAR UPADHYAYA

body2018
JUDGMENT : 1. Heard learned counsel for the petitioner and learned Additional Government Advocate for the State-respondents. 2. This petition under Section 482 Cr.P.C. has been filed challenging the charge sheet dated 19.05.2005 filed in Case No.1185 of 2005; State vs. Ramji Pandey (Case Crime No.80 of 2002, under Sections 409, 120B IPC, Police Station Fatanpur, District Pratapgarh) before the court concerned. 3. The facts of the case, which can be culled out from the pleadings available on record, are that an FIR at Case Crime No.80 of 2002, under Section 409 IPC was lodged by the petitioner himself at Police Station Fatanpur, District Pratapgarh with the allegation that in the physical verification of the stock of Sadhan Sahkari Samiti Limited, Narainpur Kala, Development Block Gaura, District Pratapgarh conducted on 30.09.2001, deficiency of 27.500 metric tonne of Urea and 21.700 metric tonne of DAP fertilizer was found, total value of which was Rs.3,09,300/-, which has been embezzled by the accused named in the FIR, namely, Ved Prakash Singh, who was the In-charge Secretary of the Cooperative Society at that point of time. In the FIR, it was recited by the complainant-petitioner that accused Ved Prakash Singh deposited a sum of Rs.25,000/-on 15.05.2002 and thereafter again deposited a sum of Rs. 25,000/-on 29.05.2002. However, the complainant has embezzled rest of the amount along with interest accrued thereon. The FIR was investigated by the Investigating Agency which in this case appears to have been conducted by the Special Investigation Branch (Cooperative), Range Faizabad. On conclusion of investigation, impugned charge sheet dated 19.05.2005 was filed before the court below and accordingly learned Additional Chief Judicial Magistrate by means of the order dated 12.08.2005 passed an order taking cognizance of the offence. 4. It may be observed that on investigation of the FIR, it appears that complicity of the petitioner himself (who had lodged the FIR) in commission of the crime was found and accordingly charge sheet has been filed not only against the named accused in the FIR, namely, Ved Prakash Singh but also against the petitioner-Ramji Pandey. 5. The petitioner at the relevant point of time was posted as Branch Manager of the District Cooperative Bank, Branch Gaura, District Pratapgarh. The named accused Ved Prakash Singh was posted as Secretary of Sadhan Sakhari Samiti Limited. 5. The petitioner at the relevant point of time was posted as Branch Manager of the District Cooperative Bank, Branch Gaura, District Pratapgarh. The named accused Ved Prakash Singh was posted as Secretary of Sadhan Sakhari Samiti Limited. On completion of investigation of FIR, it was concluded by the Investigating Agency that along with named accused Ved Prakash Singh, the petitioner was also guilty of committing offence under Section 409 read with Section 120-B IPC. 6. It has been contended by learned counsel for the petitioner that there is no material available on record which even remotely can suggest complicity or involvement of the petitioner in commission of crime. He has also stated that as a matter of fact, it is the petitioner who himself had lodged the FIR against the person who had committed embezzlement, namely, Ved Prakash Singh, the Secretary of Sadhan Sahkari Samiti Limited. He has further stated that as a matter of fact, it is only Ved Prakash Singh who can be said to be guilty of offence under Section 409 IPC for the reason that it is not denied that Ved Prakash Singh had deposited the amount of Rs.25,000 twice, firstly on 15.05.2002 and thereafter again on 29.05.2002. 7. In support of his submission, he has relied upon some agreement ¼vuqca/k i=½ which has been annexed as annexure no.4 to the writ petition), which is said to have been entered into between Ved Prakash Singh and two other individuals wherein these two individuals, namely, Man Singh and Bhagwati Prasad Pandey are said to have stood guarantor in default of Ved Prakash Singh in making good the deficiency of the amount said to have been embezzled by him. 8. In sum and substance, the submission advanced by learned counsel for the petitioner is that in absence of any material whatsoever or any evidence which can be said to have been collected by the Investigating Agency pointing out any complicity of the petitioner in commission of crime under Section 409 IPC, the order passed by the Magistrate taking cognizance of the offence is unlawful and on the basis of impugned charge sheet, the petitioner cannot be subjected to trial, neither can he be proceeded against. 9. What is noticeable in this case is that the impugned FIR was lodged only under Section 409 IPC, that too, only against one named accused Ved Prakash Singh. 9. What is noticeable in this case is that the impugned FIR was lodged only under Section 409 IPC, that too, only against one named accused Ved Prakash Singh. However, offence under Section 120-B IPC cannot be read in isolation. Criminal conspiracy has been defined under Section 120-A IPC, which is quoted herein below:- "120A. Definition of criminal conspiracy.—When two or more persons agree to do, or cause to be done,— (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof." 10. Punishment for criminal conspiracy has been provided under Section 120-B IPC, which is also extracted herein below:- "120-B. Punishment of criminal conspiracy.—(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both." 11. From a bare perusal of the definition of criminal conspiracy occurring in Section 120-A IPC, it is more than clear that for a person to be charged of criminal conspiracy, he may or may not be found to be involved in commission of main crime. The criminal conspiracy can be said to have been hatched in a given set of facts when two or more persons agree to do or cause to be done, an illegal act. Such an agreement is known as criminal conspiracy. 12. The criminal conspiracy can be said to have been hatched in a given set of facts when two or more persons agree to do or cause to be done, an illegal act. Such an agreement is known as criminal conspiracy. 12. In view of definition of the criminal conspiracy as found in Section 120-A and the different punishments prescribed for criminal conspiracy depending on main offence, it is abundantly clear that the submission made by learned counsel for the petitioner that since the petitioner cannot be said to be involved in committing offence under Section 409 IPC, he could not be charged of Section 120-B IPC, is highly misconceived. 13. The charge sheet filed before the court below clearly mentions various statements recorded by the Investigating Agency during the course of investigation of the witnesses and also the documents collected by it. As to the material which was collected and has been filed by the Investigating Agency, a reference at this juncture would be relevant to be made to the letter dated 21.03.2005 written by the Circle Officer of the Special Investigation Branch (Cooperative), Faizabad to the Superintendent of Police of the Special Investigation Branch (Cooperative), U.P. Lucknow which reveals that during the course of investigation, involvement of the petitioner in commission of crime has been found on the basis of statements recorded by the Investigating Agency of various witnesses, such as the then District Assistant Registrar (Cooperative) and Secretary-cum-General Manager, District Cooperative Bank, Pratapgarh and the documents collected from them. 14. As to the sufficiency of material or evidence to take cognizance of offences on submission of charge sheet, it may be observed that the same is the preserve of the learned Magistrate. In a petition filed under Section 482 Cr.P.C., this Court has only to see as to whether there was material/evidence and as to whether the Magistrate while taking cognizance has applied his mind to it or not. Insufficiency or sufficiency evidence is not the preserve of this Court while exercising its jurisdiction under Section 482 Cr.P.C. 15. For the reasons disclosed above, this Court finds itself unable to agree with the submissions made by learned counsel for the petitioner. 16. The petition is, thus, dismissed. 17. Insufficiency or sufficiency evidence is not the preserve of this Court while exercising its jurisdiction under Section 482 Cr.P.C. 15. For the reasons disclosed above, this Court finds itself unable to agree with the submissions made by learned counsel for the petitioner. 16. The petition is, thus, dismissed. 17. While parting with the case, it is directed that in case the petitioner appears before the court below within two months from today and makes an application for bail, his prayer for grant of interim bail/bail shall be considered in light of the observations made by Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P and others, reported in (2009) 4 SCC 437 . The Magistrate concerned shall be guided by the Full Bench decision of this Court in the case of Smt Amarawati and another Vs. State of U.P. reported in (2004) 57 ALR 390 (All) (FB).