BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04/04/2007 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.(MD).No.846 of 2005 and Crl.M.P.(MD).No.6971 of 2005 N.M.Thomas ... Petitioner Vs 1.Vinodh Kumar 2.The Sub Inspector of Police, Nanguneri Police Station, Nanguneri. ... Respondents Prayer Petition filed under Sections 397 read with 401 of the Code of Criminal Procedure, to set aside the order dated 27.04.2005 made in Criminal Revision No.15 of 2004 on the file of the learned Additional Sessions Judge, Tirunelveli, reversing the order dated 18.11.2003 made in Cr.M.P.No.276 of 2003 in C.C.No.236 of 2002 on the file of the learned Judicial Magistrate, Nanguneri. !For Petitioner : Mr.Sethupathi for Mr.S.Sivathilakar ^For Respondents: Mr.P.Rajendran Government Advocate (Crl. Side) for R2. Mr.K.N.Thambi for R1. :ORDER
This Criminal Revision Case is focussed to set aside the order dated
27.04.2004 made in Criminal Revision No.15 of 2005 on the file of the learned
Additional Sessions Judge, Tirunelveli, whereby the order dated 18.11.2003 made
in Cr.M.P.No.276 of 2003 in C.C.No.236 of 2002 on the file of the learned
Judicial Magistrate, Nanguneri was reversed.
2. The facts giving rise to the filing of this Criminal Revision as stood
exposited from the records would run thus:
It so happened that the police registered a case in Cr.No.117 of 2001 for
the offence punishable under section 420 I.P.C based on the complaint of the
first respondent herein.
3. The gist and kernel of the case of the prosecution is that the accused
was working under the first respondent and as an employee under him, he
collected a sum of Rs.48,000/- (Rupees forty eight thousand only) on 20.08.1999
from one Selvaraj, who was at that time a Supervisor working under the first
respondent, with the task of taking it to Cochin and handing over to the first
respondent. But, the petitioner did not do so; thereupon, there was a massive
search for him and he could not be traced and thereupon, on 21.02.2000, a
complaint was lodged with the police who did not take any action. The
Superintendent of Police was addressed and on his direction, the said case in
Cr.No.117 of 2001 was registered. The police investigated into the matter and
laid the police report for the offences punishable under Section 420 I.P.C
before the learned Magistrate concerned. When the stage has come for framing of
charges, the petitioner herein, filed Crl.M.P.No.276 of 2003 for discharging
him; thereupon, the learned Magistrate after hearing both sides, allowed that
application and discharged the petitioner/accused on the main ground that there
was no clarity in the F.I.R and that there was no reason for altering the penal
Section 420 I.P.C into Section 408 I.P.C and that such criminal case emerged as
a counter blast to the complaint filed by the accused as against the first
respondent herein for the offence punishable under Section 138 of the Negotiable
Instruments Act.
4.Being aggrieved by and dissatisfied with the order of the learned
Magistrate, the defacto complainant preferred a revision as against the said
order before the learned Additional Sessions Judge who set aside the order of
the learned Magistrate and remitted the case back to the learned Magistrate for
framing charges. The learned Additional Sessions Judge was of the opinion that
there were sufficient facts found set out as per the records and in such a case,
the learned Magistrate was not justified in simply discharging the accused.
5. Being aggrieved by the order of the learned Additional Sessions Judge,
this Criminal Revision Case has been filed by the accused on various grounds
inter alia which run thus:
The learned Additional Sessions Judge failed to take into consideration
the statements under Section 161 Cr.P.C of the witnesses and that their
statements would in no way link the accused with the crime. The learned
Additional Sessions Judge also failed to appreciate that the said criminal
complaint was only a counter blast to the said complaint filed under Section 138
of the Negotiable Instruments Act.
6. The learned Counsel for the petitioner would cite the decision of the
Honourable Apex Court in Union of India v. Prafulla Kumar Samal and another
reported in 1979 Supreme Court Cases (Cri) 609 and highlight the fact that even
though proof beyond all reasonable doubts is not required, there should be
strong prima facie case for framing charge. An excerpt from it, would run thus:
“7. Section 227 of the Code runs thus:
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.
The words ‘not sufficient ground for proceeding against the accused’ clearly
show that the Judge is not a mere post office to frame the charge at the behest
of the prosecution, but has to exercise his judicial mind to the facts of the
case in order to determine whether a case for trial has been made out by the
prosecution. In assessing this fact, it is not necessary for the court to enter
into the pros and cons of the matter or into a weighing and balancing of
evidence and probabilities which is really his function after the trial starts.
At the stage of Section 227, the Judge has merely to sift the evidence in order
to find out whether or not there is sufficient ground for proceeding against the
accused. The sufficiency of ground would take within its fold the nature of the
evidence recorded by the police or the documents produced before the Court which
ex facie disclose that there are suspicious circumstances against the accused so
as to frame a charge against him.”
7. However, the learned Counsel for the first respondent would cite the
decision of this Court in Hema Mohnot v. State., etc., reported in 2006-2-
L.W.(Crl.) 668. An excerpt from it, would run thus:
“13. From the judgments of the Hon’ble Supreme Court, cited above, it is
clear that the question whether a charge should be framed or not when the Court
is considering under Section 245(1) Cr.P.C., the Court has to take into account
whether any case has been made out against the accused which if unrebutted would
warrant his conviction. The Hon’ble Supreme Court has gone to the extent of
saying that the trial Court has to consider the question as to framing of charge
on a general consideration of the materials placed before him by the
investigating police officer. Even a very strong suspicion founded upon
materials before the Magistrate, which leads him to form a presumptive opinion
as to the existence of the factual ingredients constituting the offence
alleged, may justify the framing of charge against the accused in respect of the
commission of that offence.”
8. Absolutely, there is no quarrel with the trite proposition of law that
at the time of framing charge, there should necessarily be strong materials
which would enable the Judge to frame charge, even though proof beyond all
reasonable doubts is not required.
9. The learned Counsel for the petitioner would draw the attention of this
Court to the relevant portion of the F.I.R at page Nos.1 and 2 of the typed set
and certain excerpt from it, which would run thus:
“….. kjpg;g[ U:.48>000/- bgWkjp fhR Xiy> gzpe;J mDg;g[fpnwd;. ….
… mthpd; jtWjyhd eltof;ifapy; mtiu 1999k; Mz;L Mf];l; khjk; ntiyia tpl;L
ePf;fpndhk;. mtiu gzp ePf;fk; bra;jij mwpe;j nky;go egh; rpq;fndhp mYtyfj;jpy;
,Ue;j ifbahg;gk; ,l;l K:d;W fhnrhiyfisa[k; nkYk; U:gha;.48>000/- k; ehw;gj;J
vl;lhapuk; jpUor; brd;W tpl;lhh;. ,J Fwpj;J ehd; Vw;fdnt ehd;Fndhp fhty;
epiyaj;jpy; g[fhh; bfhLj;jpUe;njd;. ….. ”
10. Highlighting that particular point, the learned Counsel for the
petitioner would argue that there is no clarity at all whether the cheques were
issued for Rs.48,000/- or Rs.48,000/- was entrusted to that accused in the form
of cash, for which the learned Counsel for the first respondent would clearly
explain and expound that it was written so in the format column concerned by the
Investigating Officer and the actual versions in the complainant are nothing to
do with it and such an explanation is convincing.
11. However, in the copy of the F.I.R, it is found as under:
“mjw;F bry;tuh];> thiHf;fha; md;o njhL tpw;w gzj;ij vd;dplk; thq;fpf;
bfhz;L U:.48>000/- bfhz;L> 20k; njjpna bfhr;rpDf;F bry;tjhf brhy;yp mq;F te;J
tpl;lhnu vd;W vd;dplk; brhd;dhh;.”
12. As such, it is clear that there is no discrepancy in the F.I.R at all
and the learned Magistrate as per the above excerpt, got himself confused with
the entire case.
13. The learned Magistrate by setting out the facts as above was of the
wrong opinion as though a sum of Rs.48,000/- (Rupees forty eight thousand only)
in the form of three cheques was involved and even he misdirected himself by
assuming as though there was nothing to show as to how Section 420 I.P.C was
altered into Section 408 I.P.C.
14. The learned Additional Sessions Judge correctly looked into these
aspects and set aside the order of the learned Magistrate.
15. The perusal of the F.I.R concerned and the relevant statements under
Section 161 Cr.P.C which also form part of the records, would ex facie and prima
facie show that one Selvaraj entrusted a sum of Rs.48,000/- to the accused for
being handed over to the first respondent and that amount was not handed over by
the accused to the first respondent. In such a case, necessarily, these facts
should be delved deep into and during trial alone, the truth will come to lime
light. Relating to the plea of counter blast, I would like to observe that due
to time lag only, no complaint can be thrown away as counter blast. However, I
do not express any opinion regarding the truth or otherwise of the matter. The
petitioner is at liberty to put forth all his defence during cross-examination
and with open mind, the trial Court is expected to arrive at a conclusion after
hearing both sides while disposing of this matter.
16. At this juncture, the learned Counsel for the petitioner made an
extempore representation that a time frame may be fixed for the disposal of this
matter. There is considerable force in the submission of the learned Counsel
for the petitioner and accordingly, the matter shall be disposed of within a
period of two months from the date of receipt of a copy of this order.
17. With the above direction, this Criminal Revision petition is closed.
Consequently, connected Crl.M.P(MD).No.6971 of 2005 is also closed.
rsb
To
1.The Sub Inspector of Police,
Nanguneri Police Station,
Nanguneri.
2.The Additional Sessions Judge,
Tirunelveli.
3.The Judicial Magistrate,
Nanguneri.
4.The Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.