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2023 DIGILAW 1291 (JHR)

Manoj Kumar @ Manoj Singh v. State of Jharkhand

2023-11-01

SUBHASH CHAND

body2023
JUDGMENT : The instant Cr. Revision is against the order dated 11.04.2023 passed in G.R.No.507 of 2021 by the learned Judicial Magistrate, 1st Class, Dhanbad whereby the application for discharge under Section 239 of Cr.P.C. has been rejected. 2. The brief facts leading to this Cr. Revision are that the trial of case crime No. 0227 of 2018 for the offence under Sections 420, 406, 467 and 471 of I.P.C. against the petitioner-accused was going on before the court of Judicial Magistrate, Dhanbad. An application under Section 239 of Cr.P.C. for discharge was moved on behalf of petitioner/accused on these grounds that no case is made out for the alleged offence against the petitioner. From the very allegations made in the F.I.R. and also the allegation made in the complaint which was earlier filed on behalf of the complainant/informant and same was merged with the police case, there is no evidence in regard to the mens rea on the part of the petitioner-accused. Indeed, as per informant’s case she invested 5,50,000/-rupees in the alleged firm of the petitioner-accused. Out of which 1,20,000/-rupees was received by the informant as a profit share and 4,25,000/-rupees was paid by the petitioner-accused through the demand draft. So far as the claim of 45,000/-rupees which was made by the informant, the same is baseless because same was directly expended by the informant in travelling. In view of the above prayed to discharge the petitioner. 3. The learned trial court after hearing the rival submissions of the parties, passed the impugned order on 11.04.2023 whereby rejected the discharge application of the petitioner-accused. 4. Aggrieved from the impugned order dated 11.04.2023 the instant Cr. Revision has been directed by the petitioner on the ground that the impugned order passed by the court-below is bad in the eye of law. The learned court-below has not taken into consideration the fact that no ingredient of the alleged offence is made out against the petitioner. The matter is exclusively of civil nature, the learned court-below did not consider this material fact while rejecting the discharge application of the petitioner. Informant had also taken the share of the profit out of the business. The learned court-below has failed to consider that there was no evidence in regard to deception being played from the very inception upon the informant by the petitioner-accused. 5. Informant had also taken the share of the profit out of the business. The learned court-below has failed to consider that there was no evidence in regard to deception being played from the very inception upon the informant by the petitioner-accused. 5. I have heard the learned Counsel of petitioner and the learned Counsel of O.P.No.2 and on behalf of State, learned A.P.P. as well and perused the material on record. 6. It is the settled law that while disposing the discharge application, the court concerned has to go through the allegations made in the F.I.R. or in the complaint and the evidence collected by the I.O. in support of the F.I.R. allegations. If from the allegations made in the F.I.R. and the evidence collected by the I.O., there are sufficient ground to proceed with trial the court should decline to allow the discharge application; if the court is of definite opinion that no ingredient of the offence is made out from the evidence collected by the I.O. or even from the allegations made in the F.I.R. itself the discharge application should be allowed. At the same time it is also the settled law as laid down by the Hon’ble Apex Court in catena of case law that while disposing the discharge application or framing the charge, the court has not to appreciate the evidence on record. The appreciation of the evidence or marshalling of the evidence is not permissible. The court cannot conduct the mini trial at the time of framing charge. 6.1 The Hon’ble Apex Court held in Palwinder Singh vrs. Balwinder singh (2008) 14 SCC 504 : 13. Having heard the learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can also be framed on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi [ (2005) 1 SCC 568 : 2005 SCC (Cri) 415] wherein it was held as under: (SCC p. 579, para 23) “23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra case [Satish Mehra v. Delhi Admn., (1996) 9 SCC 766 : 1996 SCC (Cri) 1104] holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.” 6.2 The Hon’ble Apex Court held in Sanghi Brothers (Indore) Pvt. Ltd. vrs. Sanjay Choudhary & Ors. (2008) 10 SCC 681 : 11. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy [ (1977) 2 SCC 699 : 1977 SCC (Cri) 404] it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (underlined [Ed. : Herein italicised.] for emphasis) The court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. (See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [ (1989) 1 SCC 715 : 1989 SCC (Cri) 285] and State of W.B. v. Mohd. Khalid [ (1995) 1 SCC 684 : 1995 SCC (Cri) 266].) 6.3 The Hon’ble Apex Court also held in Rukmini Narvekar vrs. Vijaya Satardekar & Ors. A.I.R.2009 SC 1013: 38. (See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia [ (1989) 1 SCC 715 : 1989 SCC (Cri) 285] and State of W.B. v. Mohd. Khalid [ (1995) 1 SCC 684 : 1995 SCC (Cri) 266].) 6.3 The Hon’ble Apex Court also held in Rukmini Narvekar vrs. Vijaya Satardekar & Ors. A.I.R.2009 SC 1013: 38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case [ (2005) 1 SCC 568 : 2005 SCC (Cri) 415] by the larger Bench therein to which the very same question had been referred 6.4 The Hon’ble Apex Court held in Central Bureau of Investigation vrs. Mukesh Pravinchandra Shroff & Ors (2010) 3 SCC Cr. 315: “The appreciation of evidence, at the stage of discharge is impermissible what is required is to be seen is whether there are sufficient grounds to proceed against accused.” 7. As per F.I.R. allegations, the informant Renu Ranjan Singh gave the written information with the Police Station concerned with these allegations that on 22.06.2017 she gave cheque of Rs. 5,50,000/-to Manoj Singh in the name of the Company Real Event to carry on the business. On this date the transaction was made to pay the amount of 5,50,000/-to invest the same in the Company of Real Event of Manoj Singh and the said amount was paid by the petitioner to informant on several dates as mentioned in the F.I.R. and Manoj Singh had assured her that he would make her partner of the said Company and after investment in the business out of the profit the half share will be of the informant. No account of the same was ever given by the accused to the informant even his principal amount paid by him was never refunded. After having played deception upon the informant, the accused had misappropriated the money of the informant and this F.I.R. was lodged. On this written information the case crime No.0227 of 2018 under Sections 420,406,467 and 471 of I.P.C. was registered against the petitioner. 8. The I.O. conducted the investigation. In para 3 of the case diary I.O. recorded the restatement of informant-victim who reiterated the averments made in the F.I.R. itself. In para 12 of the case diary the statement of husband of informant was recorded who also corroborated the prosecution story. In para 22 of the case diary statement of friend of the informant i.e. Priyanka Singh was recorded in which she stated that the accused had also asked her to invest money in the business and he has told her that Renu Ranjan Singh was the partner of his firm; but till date Renu Ranjan Singh was never made partner of the said firm by the accused. In para 23 of the case diary the statement of the nephew of the informant Rishikesh Singh was recorded who also corroborated the prosecution story. In para 29 of the case diary is the conversation of the cassette of the audio between the informant and the accused in which the same is stated in regard to the partnership of the said firm. In para 39 of the case diary, it is also mentioned that an agreement was executed in regard to partnership; but the same was destroyed while washing the motorcycle. But the informant never put her signature on any partnership agreement. 9. After para 7 of the case diary the licence for Real Event in the name of Manoj Singh, form of GST registration, details in regard to purchase of the equipments made by the accused for the business of the firm Real Event are being annexed to show that the petitioner had invested money in purchasing the equipment just to carry on business of the said Real Event firm. 10. 10. The learned Counsel for the petitioner has contended that there is no evidence in regard to the deception being played upon the informant since the petitioner has made sincere effort to carry on the business of the said firm Real Event as he had also purchased the equipment; but on account of the pandemic Covid the business failed and the amount which was being invested by the informant-accused in his firm, the same was also refunded by the petitioner to the informant. As such no alleged offence is made out against the petitioner. 11. This contention of the petitioner is not found tenable reason being that in the F.I.R. itself the informant has stated that the said amount 5,50,000/-was paid to him on the very assurance that she would be partner of the firm. This statement of the informant is also corroborated with the statement of her husband and also corroborated the statement of her friend Priyanka Singh in view of para 22 of the case diary. Even in para 39 also corroborates the allegations made in the F.I.R. that the said amount was given to make her partner in the said firm and from the evidence collected by the I.O. there is nothing on record to show that that any effort was made by the petitioner to make the informant partner of the said firm. Even the purchase which was made by him of the equipment etc., the GST registration etc. all are exclusively in the name of the petitioner Manoj Kumar Singh; as such the deception was also played from the very inception upon the informant to pursue her to give the said amount 5,50,000/-on the very pretext of making her partner in the firm. Therefore, the very offence under Section 420 of I.P.C. is made out. 12. So far as the offence under Section 406 of IPC is concerned, from the allegations made in the F.I.R. and also the evidence collected by the I.O. the said amount was misappropriated by the petitioner-accused. As such the offence under Section 406 of I.P.C. is also made out. 13. But so far as the offence under Sections 467 and 471 of IPC are concerned, there is no evidence in regard to committing any forgery on any document on the part of the petitioner. As such the offence under Section 406 of I.P.C. is also made out. 13. But so far as the offence under Sections 467 and 471 of IPC are concerned, there is no evidence in regard to committing any forgery on any document on the part of the petitioner. Neither there is allegation in the F.I.R. itself nor there is evidence collected by the I.O. in regard to forgery. As such no ingredient of the offence under Sections 467 and 471 IPC is made out. 14. In view of the submissions and material on record and also taking into consideration the allegations made in the F.I.R. and the evidence collected by the I.O. the offence under Sections 420 and 406 of IPC is made out against the petitioner-accused; but the offence under Sections 467 and 471 of IPC is not made out. Accordingly, this Cr. Revision deserves to be allowed partly. 15. This Cr. Revision is hereby allowed partly. The impugned order passed by the court-below is set aside to the extent of not discharging the petitioner of the offence under Sections 467 and 471 of IPC. Rest of the order passed by the court-below is hereby affirmed. 16. Accordingly, this Cr. Revision stands disposed of. 17. Let this order be communicated to the court-below. 18. It is also made clear that any finding recorded by this Court shall not prejudice the case on merit.