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2024 DIGILAW 34 (UTT)

Jayendri Rana v. State of Uttarakhand

2024-01-08

RAVINDRA MAITHANI

body2024
JUDGMENT : Ravindra Maithani, J. The challenge in this petition is made to order dated 18.11.2021, passed in Criminal Case No.709 of 2020, State vs. Jayendri Rana and others, by the court of Chief Judicial Magistrate, Uttarkashi (“the case”), by which, an application for discharge filed by the petitioner and the co-accused has been dismissed and the order dated 29.06.2022, passed in Criminal Revision No.14 of 2021, Jayendri Rana vs. State, by the court of Sessions Judge, Uttarkashi (“the revision”), by which the order dated 18.11.2021, passed in the case has been affirmed. 2. Heard learned counsel for the parties and perused the record. 3. The prosecution case, briefly stated, is as follows; The case is based on an FIR No.69 of 2018, under Sections 420, 467, 468, 471, 406 IPC, Police Station Kotwali Uttarkashi, District Uttarkashi, according to which, the petitioner was Chairman, Nagar Palika Parishad, Uttarkashi (“the Nagar Palika”), but she committed forgery. The rent receipts were issued without construction of the shop in collusion with the vendors and she, in fact, attempted to sell the Government land. The FIR is a little more detail. 4. The State was required to file counter affidavit, which the State has not filed. In fact, the informant was issued a notice. He also did not file any objection. On 27.12.2023, the Court observed as follows:- “In fact, on 20.07.2022, for the first time, State was given time to file counter affidavit. It is more than 17 months now. The Court proceeded to hear the matter.” 5. Learned counsel for the petitioner when proceeded to argue, referred to various resolutions of the Nagar Palika. The Court directed the petitioner to produce the documents at the time of hearing. Learned counsel for the petitioner has tendered the extracts of Resolution of the Nagar Palika, Uttarkashi dated 18.10.2014, 08.01.2015, 12.05.2015, 08.12.2015, 22.05.2017, 18.08.2017, as also entire case diary of the case. They are taken on record. 6. Learned counsel for the petitioner would submit that the petitioner did not commit any offence. He would raise the following points in his submissions:- (i) In order to streamline the working of the vegetable vendors certain pre-fabricated shops were to be constructed at the place where vegetable vendors were already working. For that purpose, on 18.10.2014 a resolution was passed by the Nagar Palika fixing the premium for such construction at Rs. He would raise the following points in his submissions:- (i) In order to streamline the working of the vegetable vendors certain pre-fabricated shops were to be constructed at the place where vegetable vendors were already working. For that purpose, on 18.10.2014 a resolution was passed by the Nagar Palika fixing the premium for such construction at Rs. 4 Lakhs, which was subsequently reduced by resolution dated 12.05.2015 of the Board Meeting. (ii) The Nagar Palika has in its meeting held on 08.12.2015 reduced the premium amount from Rs.4 Lakhs to Rs.3 Lakhs, to be paid in installments. (iii) The Nagar Palika further in its meeting held on 22.05.2017, approved the construction of the pre-fabricated shops with a rent of Rs. 1,500/-. (iv) In its meeting held on 18.08.2017 the Nagar Palika Parishad further resolved that the money recovered from the vegetable vendors will be paid as salary to the contract workers. 7. Learned counsel for the petitioner would submit that construction of pre-fabricated structure was approved in the Board Meeting of the Nagar Palika by validly passed resolutions, as indicated hereinabove. He would submit that the premium and the rate of rent as well as the measurement of the shops were approved in the Board Meetings of the Nagar Palika on various dates. Pursuant to those resolutions, premium and rent were deposited and it was paid as salary to the contract workers. Learned counsel would submit that it does not make out any case at all. The charges against the petitioner are groundless. 8. Learned State counsel would submit that whatever the petitioner has done, she has done pursuant to the resolutions of the Nagar Palika. 9. The petitioner did file discharge application. The provisions of framing of charge and discharge are contained under Sections 239 & 240 of the Code of Criminal Procedure, 1973 (“the Code”). Section 239 and 240 of the Code read as follows:- “239. When accused shall be discharged.—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.” “240. Framing of charge.—(1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 10. A bare reading of the above provisions makes it abundantly clear that if after examining the accused and hearing arguments the Magistrate concerned finds the charge against the accused to be groundless, an order of discharge shall be passed. On the other hand, if the Magistrate is of the opinion that there is ground for presuming that the accused has committed the offence triable by the Magistrate, charges shall be framed. 11. The charge sheet has been filed against the petitioner for the offence punishable under Sections 406, 420 IPC. Section 406 IPC provides punishment for criminal breach of trust, which has been defined under Sections 405. Section 420 IPC provides punishment for cheating. It reads as follows:- “405. Criminal breach of trust.—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 406. Punishment for criminal breach of trust.— Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 420. 406. Punishment for criminal breach of trust.— Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. 420. Cheating and dishonestly inducing delivery of property.—Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” 12. The petitioner has filed the extracts of resolution. A perusal of resolutions makes the following position clear. Sl. No. Date Resolution 1. 18.10.2014 Resolution No.7:- Resolution for pre fabricated shops for vegetable vendors at a cost of Rs. 4 Lakhs 2. 08.01.2015 Resolution No.5:- To reconsider the cost of prefabricated shops as it was considered that Rs.4 Lakhs is on higher side. 3. 12.05.2015 Resolution No.9:- The cost of prefabricated shops is reduced from Rs.4 Lakhs to Rs.3 Lakhs. 4. 08.12.2015 Resolution No.3:- The measurement of the prefabricated shops was fixed. It was further approved that the cost should be Rs. 3 Lakh. There was further discussion on that issue under this agenda. 5. 22.05.2017 Rent of the prefabricates shops was fixed @ Rs.1500/- per month. Size was further confirmed. Premium was reduced to Rs. 2 Lakhs to be paid within a month. 6. 18.08.2017 The amount received by the Nagar Palika may be utilized for paying salary of the contractual workers. 13. According to the charge-sheet the petitioner got pre-fabricated shops constructed at the Government land and without construction, rent receipts were issued and lottery drawn and the money was spent on other heads. 14. The prosecution has not even been able to show, as to what kind of cheating has been done by the petitioner? Where is any breach of trust? It is not the case of the prosecution that the petitioner was entrusted with any property, which she utilized otherwise than the directions, for her own purpose. Even it has not been shown by the prosecution that in any manner the petitioner dishonestly induced anyone to deliver property. Where is any breach of trust? It is not the case of the prosecution that the petitioner was entrusted with any property, which she utilized otherwise than the directions, for her own purpose. Even it has not been shown by the prosecution that in any manner the petitioner dishonestly induced anyone to deliver property. Whatever action has been done by the petitioner, according to the prosecution itself, that was done by her in discharge of duties as a Chairman, Nagar Palika. The acts were done as per the Resolutions of the Nagar Palika Board. Therefore, having considered the entirety of fact, this Court is of the view that the charges levelled against the petitioner are groundless. The petitioner ought to have been discharged of the offence under Section 406, 420 IPC. The court below committed an error of law in rejecting her application. Therefore, the petition deserves to be allowed. 15. The petition is allowed. 16. The order dated 18.11.2021, passed in the Case as well as the order dated 29.06.2022, passed in the revision are set aside. 17. The petitioner is discharged of the charges under Sections 406, 420 IPC. According to the charge sheet, the petitioner was not arrested during investigation. She does not need to surrender now.