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2024 DIGILAW 376 (GUJ)

Rashmiben Ranmalbhai Vadher v. State Of Gujarat

2024-02-23

M.K.THAKKER

body2024
JUDGMENT : 1. This application is filed by the applicant – original accused no.3 challenging the order passed by the learned 2nd Additional Chief Judicial Magistrate, Bhavnagar dated 01.05.2015 in Criminal Case No.2373 of 2014 below exh.15 whereby, the discharge application filed by the present applicant came to be rejected. 2. It is the case of the complainant, who is the respondent no.2 that Hitachi JCB machine was hired by the accused nos.1 to 3 named in the private complaint, who are the partners of Ajay Salt Works. The rent amount which fixed of Rs.1,50,000/- was not paid, therefore, the cheque bearing no.073848 of Rs.1,25,000/- was issued in favour of the complainant and assurance was given that on depositing the said cheque, the amount would be credited in the account. 3. On depositing the said cheque, the same was dishonoured on the ground that the signatures of the partners which are required, are not there in the cheque. Feeling cheated, the private complaint came to be filed under Sections 406, 420 and 114 of the Indian Penal Code. On recording the verification, the learned trial Court has passed an order under Section 202 of the Code of Criminal Procedure directing the police officer of ‘C’ Division police station, Bhavnagar to submit the report. The report was submitted by the police officer on 01.01.2013 contending that the cheque which was dishonoured, was not signed by the present applicant and during the inquiry, it was found that three accused, namely, Ajaybhai Trivedi, Chakurbhai Vajubhai Chauhan and Ramjibhai Vajubhai Chauhan had cheated the complainant by keeping the present applicant in dark. 4. Considering the report, the learned trial Court has issued the summons under Section 204 of the Code of Criminal Procedure vide order dated 06.05.2014. The present applicant has preferred an application below exh.15 praying to discharge from the charges on the ground that as per the report submitted by the inquiry officer, all the transactions were done without knowledge of the applicant and in the cheque also, there was no any signature of the applicant. The present applicant has preferred an application below exh.15 praying to discharge from the charges on the ground that as per the report submitted by the inquiry officer, all the transactions were done without knowledge of the applicant and in the cheque also, there was no any signature of the applicant. After considering the submissions advanced by the learned advocate, the learned trial Court has rejected the application on the ground that though the cheque was the self-cheque, it is yet to be examined that how the complainant came into the possession of the cheque and as the applicant is the partner of Ajay Salt Works, therefore, the application at this stage is not required to be considered. 5. Being aggrieved and dissatisfied with the aforesaid order dated 01.05.2015, the present revision application is filed before this Court. 6. Heard learned advocate Mr.Tatvdeep Jani for the applicant. Learned advocate Mr.Vishal Thakker for the respondent no.2 has requested for time on the ground that though on 15.12.2023, when the matter was adjourned, he called his client but, his client did not turn up and would likely to come in the next week. 7. This Court is of the view that this matter is adjourned from time to time and is pending since 2015, therefore, the request made by learned advocate Mr.Thakker is declined. 8. Learned advocate Mr.Jani submits that as per the report submitted by the inquiry officer, which is annexed with the application, it transpires that the cheque which was issued in favour of the complainant for payment of rent of JCB machine, did not contain the signature of the present applicant. From the statements recorded during the inquiry, the other partners had stated that without taking the consent of the present applicant, the transaction was carried out and, therefore, the cheque which was issued in favour of the complainant, did not having signature of the applicant. The inquiry officer concluded that the amount which is required to be paid towards the rent was without knowledge of the present applicant and as the signature of the present applicant did not made, the bank has not cleared the cheque and it was returned with the endorsement “requisite signature does not found”. 9. The inquiry officer concluded that the amount which is required to be paid towards the rent was without knowledge of the present applicant and as the signature of the present applicant did not made, the bank has not cleared the cheque and it was returned with the endorsement “requisite signature does not found”. 9. The application which was preferred by the applicant came to be rejected by the learned trial Court only on the ground that the cheque which was returned, is yet to be examined that how the complainant came into the possession of the cheque as the cheque was self-cheque. The another ground on which the application came to be rejected is that the applicant is the partner of Ajay Salt Works. The learned trial Court did not discuss about the reasons for not considering the application in light of the report which was submitted by the police officer pursuant to the order passed under Section 202 of the Code of Criminal Procedure. 10. The purpose of Section 227 of the Code of Criminal Procedure is to ensure that the Court should be satisfied that the accusation made against the accused is not frivolous and there is some material to proceed against him. At the end, if the Court after examining the material, comes to the conclusion that there is no legal evidence, then the framing of the charge would be groundless and compelling the accused to face the trial is contrary to the procedure of Article 21 of the Constitution of India. 11. Now, to test the facts of the case with regard to the alleged charge i.e. under Sections 406 and 420 of the Indian Penal Code and to prove the charge for the offence under Section 406, the essential ingredients which require are, (i) Entrusting any person with property or with any dominion over property; (ii) The person entrusted (a) dishonestly misappropriating or converting to his own use that property or (b) dishonestly using or disposing of that property or willfully suffering any other person so to do in violation, (i) of any direction of law prescribing the mode in which such trust is to be discharged, or (ii) of any legal contract made touching the discharge of such trust. 12. 12. So far as Section 420 of the Indian Penal Code is concerned, necessary ingredients which require to constitute an offence are, (i) There must be deception i.e. the accused must have deceived someone. (ii) That by the said deception, the accused must induce a person, (a) to deliver any property; or (b) to make alter or destroy the whole part of the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable security. (iii) That the accused did so dishonestly. 13. Considering the same, the basic requirements to bring home the accusation under Sections 406 and 420 of the Indian Penal Code, are the requirement to prove conjointly (i) entrustment (ii) whether the accused had actuated by dishonest intention or not, misappropriated it or converted to his own use for detriment of the persons who entrusted it. 14. The distinction between criminal breach of trust and cheating is that while for cheating, criminal intention is necessary at the time of entrustment, mere proof of entrustment is sufficient in criminal breach of trust. To prove the charge for the offence under Section 420 of the Indian Penal Code, it is essential for the prosecution to establish the criminal intention at the time when the offence was committed. The distinction between mere breach of contract and cheating depends upon the intention of the accused at the time of alleged inducement, which may, however be judged by the subsequent conduct. 15. The Apex Court in the case of Kanchan Kumar vs. State of Bihar reported in (2022) 9 SCC 577 has held as under:- “11. Issue: The short question arising for consideration is whether the Appellant is entitled to be discharged of the proceedings initiated against him under the PC Act. 12. Legal provision and precedents: Section 227 of the Cr.P.C relating to discharge is as under: “227. Discharge — If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 13. Discharge — If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” 13. The threshold of scrutiny required to adjudicate an application under Section 227 of the Cr.P.C., is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. In Prafulla Kumar Samal (supra), it was noted that: (SCC p.9. para 10) “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” (emphasis supplied) 14. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” (emphasis supplied) 14. In Sajjan Kumar v. Central Bureau of Investigation, the Court cautioned against accepting every document produced by the prosecution on face value, and noted that it was important to sift the evidence produced before the Court. It observed that: (SCC pp.376-77, para 21) “21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: ... (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case...” (emphasis supplied) 15. Summarising the principles on discharge under Section 227 of the Cr.P.C, in Dipakbhai Jagdishchandra Patel v. State of Gujarat, this Court recapitulated: (SCC p. 561, para 23) “23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the court is expected to do is, it does not act as a mere post office. The court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. The sifting is not to be meticulous in the sense that the court dons the mantle of the trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. (emphasis supplied)” 16. In the instant case, the allegation as per the complaint is that the contract was executed and the Hitachi JCB machine was hired with an agreement to pay Rs.1,50,000/- towards the rent by the partners of Ajay Salt Works and for payment of the aforesaid debt, cheque bearing no.073848 of Rs.1,25,000/- was issued by the accused named in the private complaint. The present applicant, who was named in the private complaint being accused no.3, was the partner of Ajay Salt Works however, the cheque which was issued does not contain the signature of the present applicant. The inquiry which was initiated pursuant to the order passed under Section 202 of the Code of Criminal Procedure, suggests that the contract which was executed with the complainant, was without the knowledge of the present applicant and keeping in dark the present applicant, the cheque was issued for payment of the rent by the remaining accused. Therefore, it would be difficult to conclude that the intention of the present applicant is to cheat the complainant as well as he had committed any offence by entrusting the cheque to the complainant. Mere allegation would not suffice to frame the charge against the present applicant. Therefore, it would be difficult to conclude that the intention of the present applicant is to cheat the complainant as well as he had committed any offence by entrusting the cheque to the complainant. Mere allegation would not suffice to frame the charge against the present applicant. The charge can be framed only if the Court is of the opinion, after considering all the documents submitted and hearing the complainant and the accused, that the accused had committed the offence. If there is no sufficient ground for proceeding against the accused, no charge can be framed against the accused. 17. Considering the overall circumstances and the law laid down by the Apex Court in the case of Kanchan Kumar (supra), this Court feels no hesitation in holding that there is no ground for framing charge against the applicant for the offence punishable under Sections 406 and 420 read with Section 114 of the Indian Penal Code and, therefore, the present revision application deserves to be allowed. 18. The learned trial Court, while assigning the reasons for rejection of the discharge application, come to the conclusion that how the cheque (self-cheque) was came into possession of the complainant. That this inquiry should be made by the learned trial Court before issuance of the process under Section 204 of the Code of Criminal Procedure. Once the cognizance was taken by the learned trial Court by issuing the process, application for discharge cannot be rejected on the ground that still the complaint itself is required to be inquired into. On this ground also, the impugned order deserves to be quashed and set aside. 19. Resultantly, this revision application is allowed. The order passed by the learned 2nd Additional Chief Judicial Magistrate, Bhavnagar dated 01.05.2015 in Criminal Case No.2373 of 2014 below exh.15 is quashed and set aside. Rule is made absolute accordingly.