D V Kundar vs State By Cbi on 3 November, 2010

Karnataka High Court

Author: C.R.Kumaraswamy

IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3"' DAY OF NOVEMBER 2010
BEFORE C

THE HON'BLE MR. JUSTICE C.R. KUMARA'_SWﬁ2_i$l:${_V".  .

CRIMINAL PETITION N,9«.S59'1t'i2r0'0'i'2§'vi"*:: ~ it
BETWEEN: C it it  C

D.V. Kundar,

Aged 68 years,

S/0 V.M. Saiian,

Resident of Devikrupa, ,

Karnad Bypass, Muiki;ff _ 

Mangalore Taluk,   :   
Karnataka--574i_54.  _ '   Petitioner

(By s ri . G  h}}i<  ma*t  ,j' A d.yojca'te:) 
ANO:'.__

State byacdoi S I 

BS & FC, Bangalyojre  '

Represented "b.y_Vi'ts
S'1',a'riTdl_ntgg Cou nsel  "

 'Publicimosectitor.  Respondent

S .g(I5yysrr;t;I”‘ci,;CuHﬁoadhav, Advocate)

Tl1.isv”‘Criminai Petition is filed under Section 482 of

V’ Code” oficriminal Procedure praying to set aside the order
dated 10.7.2009 passed by the XXI Additional City Civil
Sessions Judge & Special Judge for CB1 cases,
it ” “Bangalore city on the application filed under section–319 of

Code of Criminal Procedure and to add CW3, Prakash

‘§../

Narasingadas Punjabi, his father Tej Narasingadas
Navalrai, CW41 — Suresh Purswaney and his wife Karan
Purswaney, CVV4 Gopai Gopai Tiiarmuai Meiwan4iVV.aii14cii.CW5
Arjundas Tharmual Melwani as accused:.~~~.in;Vw’:’__§§ije:ci.al
C.C.No.24S/02. ‘

This Criminal Petition is cc;n1ing’on”fpr-I madamsisoimis it

day the Court made the fo!Iowing’:’.«V__

o R

This Criminal PietiAtion”V’i’s_’VCfi:!’e’d,T’u.n.der Section 482 of

Code of Criminal Procedure aside the order

dated 10.7.;20’D9:I”passed iiy ‘thé’.i_)<~Xi..:V.§i\dditional City Civil

and 'Judge for CBI cases,

Bang:'aAlor.e' city'/Clear»…:t'ne"a.op*l-ication filed under section–319 of
Code of"cCrimin'ai"iiérocedure and to add CW3, Prakash

Narijasirigadas'"~-Punjabi, his father Tej Narasingadas

C trial/al_ra'Ai,% -CW41 — Suresh Purswaney and his wife Karan

,;?'l.~rswVanVe'-3:, Gopa! Gopal Tharmual Melwani and CW5

Arj'una'~as""Tharmua| Melwani as accused in Special

V "C*.C_.No".'245/O2.

2. Accused No.1 has filed an application under

Section–319 of Code of Criminal Procedure in the Court
E? /’4

‘xx’

below. The averments made in the said application are as

unden

2.1 The CBI, BS & FC, Bangalore filed__;’Ch’arjgej:

against 9 accused persons under Sections_:’j1,2t3.::B.,

420, 467, 468, 471, 474 and l§l77:.,141\’Afj7£F5’C ‘and,”1.:sQj..,;/w T

13(1), (c) 8L (d) of Preventi.on,__of cdrtdptiona,A-tt.,.,i,198t§:.

2.2 The Deputy Ge,ne–ralL_:–.Manaoeiri”B..\,l;Ei3ai, Legal
Section, Circle Office,kCa_:’1’a’ra.,§Van4l%’«”Vh,a’s:’lodged a complaint
dated 11.1:;,2ooo Pt-ditash Narasingdas
Punjabi, Suresh Puruswaney

and itareniAP’d.t=tis_viia,net(‘;”‘-it .is_’ aiieged that the said persons
committed , fraauidff was inferred after verifying

indepecndentf-it’by its officers, legal department and

GEQD report, in the matter of FCNR deposit

prcttbvv-V’j’ttd.9’9,z3o for usp-3,7o,ooo/» dated 8.5.1999,

l:iearin.__gj’pr«i*nAted serial No.2039884, Exhibit P-46 and FCNR

..D§2poS%t; No.FCKD No.99/26 for usp 5,oo,ooo/~ dated

it ‘~-,_V5″.–5.i1999 bearing printed Sl.No.2039866, Exhibit P~«6. The

‘V -Vicompiaint of B.V. Pal Deputy General Manager, Canara

Bank was addressed and presented to the then DIG of CBI

one Santosh Macheria. That on receipt of the said
complaint, the DIG Santosh Macheria made an

endorsement on the complaint itself callingﬂi”fog:rVg:”‘tghe

comments from PW–29, P.iVi. Satish, on

the covering letter of B.V.Pai another.endors_e’m*e’ntV’is..ma’dAe 0

to the effect that the copy of the.l”‘:Vorrip’|aintof’

made over to PW-29, P.iVi.

2.3 The DIG San_t’o.sh .i7lachVeriV_a.gge.nerated Va suo motu
FIR (Ex.P–2SS) at 1700 22..ei:’:27;2ooo. The written

complaint crf’llT3iiV: 7i#eii_ diat-édii ‘&’1i.~12.2ooo which was

suppr.c-‘ssedib-3/0 there-CE3~i’&’ivas ipiooidiiced before the Court by
the CBI the Accused No.4, on whose

behalf aVni’—applica_tiori was filed for its production. It is

r€~i.o’%§’i/aingit to stat’e’vt.bat CBI, opposed the production of the

‘ complaint but it was compelled to produce

‘the”t’samev’ti’j_es’ per the orders of Court, just before the

cominencement of examination of PW–29, P.M. Satish, the

if Investigation Officer of this case and the said written

‘complaint dated 11.12.2000 of Canara Bank was marked

it through him as Exhibit D–7. A reading of the complaint of

2* .

z } /;’
aux’

B.\!. Pai dated 11.12.2000 (Ex.D~7) discloses cognizable
offences and also discioses that CW–3 Prakash Narasingdas

Punjabi, his father Te} Narasingdas Punjabi, CW–4V1′.:Su.resh

Puruswaney and his wife Karen Puruswaney are’-i-n.\{o_i_V-§éd”i~~n

the fraud pertaining to the aforesaid

Receipts.

2.4 A reading of the .jt61(«3}_FCr.P.C.7-staitementi

CW–3 Prakash Punjabi CW–4iViv~..:SureshV”Puruszwainey, CW–4
Gopal Tharoomal Me’i’.r\ia%ni ~«£$(1eiwani, C’iiV;5 Arjundas
Tharoomal Meiwani that the real

beneficiarEe.s”j;Vofgitfhe icornrnvitted in respect of FCNR
depos’i.t5 ‘th:i’s’1:.’g’;’a:se..4areﬂi!’ongkong based I\£RIs including

CW–4 GVop.ai’vMie-!._wAa.n’i’r..–‘a’nd CW–5 Arjun Melwani. The

cit’e’d”vv-b.\,.r«’the CB1 to the charge sheet in this

‘ a.|4so:V’d.i:sc-foses that CW–3 Prakash Punjabi, his father

.’Tej”i«Nara’s’iijortias Navalrai, CW–4I Suresh Puruswaney his

wife ..i~’:a«.ren Puruswaney, CW–4 Gopai Melwani and CW–5

A iAirju.n Melwani are ali Hongkong based NRIS are involved in

fraud in this case.

a1…/’

2.5 The :61(3) statements of CW–~3 Prakash Punjabi
and CW–~4 Gopai Melwani disciose that the account

opening forms, Photos, Passpost copies of the .4d’e.pjos’ItVors

were handed over to CW—4 Gopai Meiwani, who’
them to Canara Bank. The depo_si.t _r_ecei_p.tsV”4v\}0.é;&r:e’.’i”eceiv-ed

by CW~4 Gopai Melwani from the;”:Can_ar*a B’a~n_k iiaiitejrivoin

handed over the deposit recevipts,

2.6 The scrutiny.é_of CV92′;-EHi:tra9Ct.of current account
bearing No.01-0O210EV§W’9oAf._V Company M/s.

EMVEE Conif’o;.rts and: maintained at

Corporation Baenk;CAa’n»ton:é*nentﬁr-anch;~E3a:ngaiore marked
as Ex.D–15 loan amounts
transferred from ‘CC-anarat -.Bani<'«…-iiiere received by CW–4

GOP"si. i'/ieiv~.if'§';*«ai Win'-Self as"det.aiied below:

'
_ 1 "489_5.06I._<"

C2 4″4$9528′

” V3′ .. 495422

‘~ch’equerviVi§;’o;. Date Amount

13.5.1999
07.6.1999
02.5.2000

RS.62,00,000/-

RS.25,20,000/-

RS.3,00,000/-

Frauduient ioan amounts pertaining to FCNR

credited to Current Account No.OOO0O3823,

§”

/
1

Va»?

Exhibit P-82 of accused No.9 namely M/s. Dhanapriya
Housing and Finance Ltd. have been transferred to Current

Account No.O1-OO2133 of M/s. Sona Exim

maintained at Corporation Bank, Canton-rnentmﬁranhchjr4_

Bangalore and later withdrawn byr*’C’./\l’-45_Co.oa’itlrylelllwani’asf

shown below:

S|.No. Cheque No. A -..JE9.ate ‘
1 0495422 ziooo ‘aim-,;23,53,ooo/–

2.8 Thge.:sc.r_utir;ﬁ/H current account
bearing .\_/eejay Dairy Products

Private *2 to Accused No.2 of the
Corporationi. Bank,”‘VCa:n’togn’in.ent Branch, Bangalore which is

cited” as Cwhargetshle-et document i\lo.D–27O shows that

wia’s.._withdrawn by CW-4 Gopal Meiwani as shown

Cheque No. Date Amount
“l 0499685 28.4.2000 RS.2,00,000/-

2 0499684 28.4.2000 RS.3,00,000/-

2.9 Exhibit D–~14(a), a document produced by the

prosecution at the instance of A-3 also discloses that CW–4
{,3/,

t4.,cg”‘i4.89529 7.6.1999 RS.23,3S,OOO/–

Gopal Melwani received a sum of USD 20,000/–. That the
161(3) Cr.P.C. statement of CW–4 Gopal Melwani further

discloses that he sometimes received cash in LJ$’i’..§oiV_Iars

and some cash through Bank in his account__i;’n”‘t§–«S_j-i§o!ia_rsM_

at Hongkong.

2.10 Extract of currentZgéacc-ountAibheari-no”if-!Xl_o’:iQ_i–

002106 of accused No.8 Com_panvr-Mi/’s.V

and Traveis Ltd. maintainedi’ -at Coriporation Bank,
Cantonment 8ranch,«_..V:.”B’a’nga_i’o:re=ji-nnarked as E><.D15

discloses that._the frauduiieriiteé a"rno'unts transferred

fromVvi"'C'anar;a' «§5:i<f'1:r'1i<"'~.Vi:§'ie'reé"'wi'ti'icirawn by CW–S Arjun

Meiwaini. as 'shown. bielownzét'

_ iSix.""«.F CheVque~~._i§lo~.."it Date Amount

1 N0-

048’9–s-9* 8.5.1999 Rs.1,98,00,000/–

V2.~1if.»*TChe scrutiny of the Extract of current account

Abearinghi’ No.01–0O2133 of M/s. Sona Exim Pvt. Ltd.

uh’-.,V’he|.onging to A-2 maintained at Corporation Bank,

_.:%Cantonment Branch, Bangaiore which is cited as Charge

sheet document No.D–267 shows that fraudulent loan

belonging to accused No.2, maintained at Corporation
Bank, Cantonment Branch, Bangalore, which is cited as
charge sheet document No.D–266 reveais that an’1jo’u}fit,,:w,as

withdrawn by Gopal Melwani as shown below:-,7

Sl.No. Cheque No. Date V

l 1 484826 5.1.2601 C

3.3 The evidence adlduicedg du’ringi’the:’gtrial, the
documents which are;i_,_’r’Ti.arl<.'ed§.bVoth'.as«.,ExhibitV- P–series
and Exhibit — I3: seriesthe"'co'u'rVse'V'of the trial, the

documents s_ei4:'Lf;,d:.'Vdur«ing:_the.'_'cou"rs'e~~–oi° the investigation,

the docume,ri,t.s.;fi¥i:.e'd "a'nd.'c'ite'd~~V–ir"i support of the charge
sheethv-.an'd sta'te'rnerit,s:'=._rec_orded u/s 161(3) based on

charge sxheetvvcitedA'doci.iments during the course of the

invéstiigliatign by"'P\rii_a.2'9 P.M. Satish, the Chief Investigation

' .€)f'fi–~cei*'..,ofi case, dearly establishes beyond doubt that

theilonl<oV'njgV..ei3ased NRIs are involved in fraud in this case.

That investigation was conducted by the CBI in a

A ma'i~afide manner.

4. The counter is filed by the CBI in the Court beiow

wherein it is stated as under:

4.1 Prosecution filed charge sheet against Shri DA/.
Kamder and Qthers under sections 1208 rfw 420, 467,

468, 471 and 477(A) IPC and Section 13(2) r/w_i3(c:_)(d)

of PC Act, 1988. The ailegation against

that they were parties to a criminal conspi~i”‘ar_.yj,.,

Bangaiore, during the period

Canara Bank, Maileswara-r.n Branch, :B’ang,a_|ore§,

dishonestly and fraudu|entiyki’n’§si’epreiseniting the facts to
the bank, diverted bank ;fe.nds’».py~.forging documents

and valuable ..securiti.e-so jsutp’ deposit receipt,

Power ‘d’ocu’nﬂ1e’r”.vtVS–,”‘§using them as genuine,
induced’ Canavraf’SanV£c;c’s._i§ia{‘¥eswaram Branch, to part with
the proceeds of ~l__oa_n ‘axvaiied against the security of FCNR

d:ge3’poEs_gi’tS_,__ w’ith’ou.t._..the knowledge and consent of the

‘ wdepovsjqtorsi.:§’n–._favour of Accused No.2 and the account of

” his’ grouVp’j_co’mpanies.

~ vV’4;_2VThe averments made in the petition that CBE has

made any verification on the complaint given by

B.\/.Pai, DGM, Canara Bank to Sh. Santosh Macherta, DIG

of CB1, and not registered a case, is not correct. It is

stated that after thorough verification, the CBI has
registered a case on source information in Crime No.RC

5/E/2000/BSFC/BLR. It is stated that the vVC,’$:’1T»,.has

received written compiaint dt.11.12.2OO{),….:.O’d’g’¢;j’.1’Jby

Sii.V.V. Pai, DGM, Canara Bank, which is..m:_af#,<ned.::'as

It is stated that much before
from the bank, the CB1, had"._TConduc V A
verification regarding the in'ft;.:ftFﬂ",'A'ationV"r'eceived'1':on source
and decided to regi_s"ter
conducted after the aiso could not
establish tije'i';;~r:o'ie'V::.Qf =:;a.ny':'~gf'~:."t'i\.a..jfAdepositors in the
conspirfagcfv is stated that the above
mentioned depositors, whose hard

earneci mofneyfwas canvassed as Fixed Deposits to Canara

Branch, by Accused No.2 and 3. Sh.

if with dishonest and frauduient intention

re«p|ac’eG’~,t:he original Account Opening Forms sent by the

_ lV\iRI.depositors and placed bogus Account Opening Forms

A”iA,_V’co-n’itaining the forged signatures and forged passport

-Tfcopies of the depositors in the bank records. Sh. D.V.

Kunder (Ami) sanctioned or caused to be sanctioned

imugii

l ”

sundry loans under valuable security loan (VSL) in favour

of the NRI depositors without their knowled.9iie,,’_:’ia_nd

request, based on false power of attorney§’_:”d”ocii.i;m_er-its’

purported to be executed by the NR1 deposiiti:}jjr’s:’w

amount siphoned off by the acL:,use_d_g.3 i:4’v.en,’

bank had mentioned the n.a’m.es ofVl\_lF§I de~,:o%s.i;torsVVVin

complaint dt. 11.12.2000 verification
revealed that theYfare of the fraud
committed by ,,otherVA,.a.cc_useclVV,’ The evidence
adduced be,r:§ré}i,5,¢ officials, clearly
repaid the amount due
to WThe depositors had filed
complaiiiwt,agains.tth’e»:b’a:ni<' irvith the Banking Ombudsman,

whoi'-diggrectediwthe to pay the amount to the

".fi:_e..i1'averments that NRI depositors are the real

beneficliaries of the fraud committed in the case, is not

if colriect. The documents mentioned in the petition through

'which the petitioner/accused alleges that Sh. Gopal

W'Melwani and Sh. Arjundas Melwani had withdrawn amount

éiy"

are not connected with this case. Those documents are
pertaining to CC. i\io.190/2002 (RC 4/E/2000–BSFC;’«.BLR),

which has been disposed by the Court below

Accused No.1 and 3. The modus operandi adlolptedi

accused in c.c. No.190/2002 is””sirr.ilai; to that :o’f7=th’i’s

case. The accused in connivance’._wlth’ Sh.”l_<_,. 'Va'rand:.ar~aj'a~.,,

Pai (A4) in c.c. No.190/2oof2,,,who was.furi't:r,i"c$riing as'

Senior Manager of Co:'rpV.orat,io'n *i§a:n'lu<:';ii.Qanton'rnein:t branch,
Bangalore, with intention
replaced theyc—ri:g'inal sent by the
NR1 depossiltorss Account Opening Form

conta.inin_g_AlAlti5ie1sforgedll's_igna'tures and forged passport
copiesﬂofi' the bank records. He

sanctioned 'V s-und'ry loans under valuable security loan

:,fii'i j"f~a_your the NR1 depositors without their

aA'n.r.l–:"request, based on false power of attorney

dAo'c_um_eritsf~"purported to be executed by the NR1

cdepositors and loan amount siphoned off by the accused.

the cheques mentioned in the petition, the

2 …accused transferred the amount to NRO SB account

opened without the knowledge of the NR1 depositors and

2} '
V

used the amount to close VSL loans fraudulently availed

by the accused. Cheque No.O49968S and O499684[:b’oth

dated 28.4.2000 for Rs.2 lacs and Rs.3 lacs, ra:aipaca0ua_u,c

which are marked in c.c. N0.190/2002 are.V_cas.h

through which the amount was wi;thdra4w’«n”‘b:y’ithe

by forging the signature of Gopalhlﬂelwani-‘;.l_ .’f’i:”i’ierefore’V”swaV

it is stated that the docunaerits mehti’oh-ed.”c;:b§r the
petitioner in the aboveD’p.etit_i’on’V_ at all connected

with this case.

4.4 for dismissing the
applicatilolny
Sui xhax/_e i:e_arcJ~tbh’e.Eiearned counsel for the petitioner

as wellas the !.earn7ed counsel for the respondent.

h A4’6f”-it isthe countientéon of the learned counsel for the

statement can be relied while arraying

the”-acctgvsedik it The documents reveal that there is a prima

u”””~..V:”‘facsiLe against the accused. The document which he

_ ‘ re’ii»ess”is Ex.D7. The evidence discloses prima facie case

…a–g’;iainst CW»~3, CW–41, CWs.4 and S.

6:? .

Kw’

‘w.\

7. Learned counsei for the petitioner relies on the

following decisions:

1. AIR 2001 SC 2521 (RAKESH vs STATE osgtggaiéniminia)

wherein the Hon’b|e Supreme Court has

“It cannot be said that the.__ter_m j’1ie'{rid.ence””as-..__
used in 5.319 wouldgmgean éeyid-encegg,wh’ic|’i” isj
tested by cross–examin-ati’ogn. i”n.eVqvuestfionuwofs
testing the e\4.idencegi.——b§;I’v-_cross-e§_<:a_rfnining the

piéi;or "–.fg–._V'a'dd'*ing"% such person as
:'aaccuseVd'§7.'f-_Ser;t'i'o_n"V—doe's not contempiate an
addi4tionai._st'age:_4'b{:fi'."st summoning the person
A._Vandia""giving.'- opportunity of cross-
Ee§<amining«…_t.he witness who has deposed
him and thereafter deciding whether
'per-son is to be added as accused or not.
\(\.'orit:J:-_.";'evidence" occurring in sub-section is

f .. in comprehensive and broad sense which
Vvwouid aiso inciude the material coliected by the
investigating officer and the material or
evidence which comes before the Court and

from which the Court can prima facie conciude

that person not arraigned before it is involved

in the commission of the crime.”

10. Hence, once the Sessions Court records

statement of the witness it wouid be

the evidence. It is true that finaily at H

of triai the accused is_,t.o.__be

opportunity to cross–exami,ne,-the uwitn.ess4″to».,___

test its truthfulness. But thatstage w,’0′.u.|’d” not’;

arise while exercising’-v…,:C’ourt’s vpow_eii. Vttnd’e’r”

Section 319, cr..P.c. the de’pos_itio,n is
recorded, no {there no cross-

exarnination, it wo_u’fid_V material
which :.wo.,ul*_cl e:hah’zel,,.:theftsgtgyssmhs Court to

decide”‘~whfet’ner._: powers ftsnder Section 319

?shoutd”b.e not. Sub–section(1) of

éection 319:»ltseif_:p”l=o\.*ides that in the course of

any”–..i_nqvuiVry__ iAnt’o’,«…’~7or triai of, an offence, it

appears’ from the evidence that any person not

accused has committed any offence

,f” such person could be tried together

A Wltl;i’..’:_’t.h€ accused, the Court may proceed

. agyainst such person for the offence for which

he appears to have committed. Further in case

of inquiry there may not be any question of

cross-examining the witness.

£8

13. Hence, it is difficult to accept the

contention of the learned counsel for the—.,_

apneilants that the term ‘evidence’ as used”~in*««.._i’~~.

Section 319, Criminal Procedure Code__;’vv’o’ui’d–.!:25

mean evidence which is tested

examination. The question’ “of t.est:i.ng-VXthe-[3

evidence by cross–examin’atio’ni*~”wofu.ld”_.arise’ii”–~_V”1″

only after addition ofthe_._accused. VTh.e’r’e._:

question of cross–exam’i’n.f:ng theV’w_it’neVss ‘prior
to adding such’ ~p_erso.ii””as[iaccusedif “Section
does not contemp’|cate~i__a§n«ivadditiolnal stage of
first surnmoning.-theiipelrson him an
opportu niiltv-h cross–e”>”<a:nrri'rri n.g..7 the witness

who" d"époseciic'j'–a§–a__in'Vst"vﬁhinri and thereafter

person is to be added as

":.accused""o'r~-_anotfml)\ivo_rd -"evidence" occurring in

s'u.b?sectio_n' in comprehensive and

._broa"d Visencs-eA'whi'ch would also include the

Ernaterialh"co!.l.e(:ted by the Investigating Officer

_an_d–.:t'h,e material or evidence which comes

1 Court and from which the Court can

priirngafacie conclude that person not arraigned

.. 'before it is involved in the commission of the

crime."

.§ /’

*1-we’

2. 1993 SCC (cr|.) 470 (KISHUN SINGH AND OTHERS Vs
STATE OF BIHAR) wherein the Hon’b|e Supreme Court

has held as under:

“13. This Court in Raghubans Duﬁey’

State of Bihar stated _
cognizance of an offence
becomes the Court’s duty
the offenders rea|iy–_._are’V’a.n’d if
finds ‘that apart fro’m:_V’the peVrs.ori’s-rseniti up

by the po:”iC!_e some’tdvt.o4th”e-.5′ persoristare
involved, itH’i’s’ia.its”duV§tY. to’-Vﬁroiceed against
those. personsjj them

be’caif§;js.eV’t.hie siur1’1;m’on::é’rig =of…the additional

——– vvés ‘piartf oaf’t’ne« voroceeding initiated
V –. “i’t.sf.utaki’n’g::cognizance of an offence’.
4’E_ve’n=._after:_4t*he”ioresent Code came into
fﬂf’or_:Ce~,.,’.’- thvefiiegal position has not

‘ V__unde’rg~o_n_e’a change; on the contrary the
:«_–.riat,io of Dubery case was affirmed in
Satpathy v. Tikaram Agarwala.

far there is no difficuity.

“14. We have now reached the crucial point
in our journey. After cognizance is taken
under Section 190(1) of the Code, in
warrant–cases the Court is required to

frame a charge containing particulars as to

the time and place of the alieged offence
and the person (if any) against whom, or

the thing (if any) in respect of which, it was”–._

committed. But before framing the
Section 227 of the Code provides -1-

upon a consideration of the reco.r.d,_’4_fo.f’t.he,_

case and the doc1J’m’e’nts,_1,subm’itted”-:7’I

therewith, the Sessions, Juidgie

that there is notV’««S_’LIi*fic’ie.n’t gro’u’aciv,._,foVr..3

proceeding against t’h.e_”accused,”he sigali,
for reasons be .~r’écorded’,–.,_disch§fge.~yhe
accused. It “i’s’ﬁonI’y+__when”stirredBudge is of
opinion. that Vt.he~re:-is’ *–gérVo_unt.’_ ” presuming

that_”the.c.accuised, i”ias”‘co’rn”mvitted an offence

1111 “that”j;heA:’:ii:;i~ii pr¢c.¢éd”i:ioVsrEame a charge and

recordrthiei’n,,iea,,of..ti1e accused (vide Section

” .2_28).’ immediately clear that

fof.i.imit’edVA’purpose of deciding whether

not’*to….«frame a charge against the

:.accu«sed, the iudge wouid be required to

it “-T4:”ie§_<afnivi.r'ie the record of the case and the

v..d:o:cuVments submitted therewith, which

tg_wVou|d comprise the police report, the

statements of witnesses recorded under

Section 161 of the Code, the seizure-

memoranda, etc., etc. If, on application of
mind for this iimited purpose, the Judge

finds that besides the accused arraigned

if}.

x:»//

before him the complicity or involvement of

others in the commission of the crime prima

facie surfaces from the material

before him, what course of action sh.o’uidv

adopt ?

16. We have already indicated

ratio of this Court’s dec-iisionsffii-n the c:a’ses-..Qf

Raghubans Dubey and l-l’a..re’i’am that:”on’ce the
Court takes cogniizanceyof offencef(n’0t’*”t4he
offender) it becomes..theffC;;)u’i*t’f’s..jdutwy to find
out the real offendeirs.and:_if’i’t, to the
conciusi:oh’«th}3t besides’ put up for
trial §.by5._tfi3e-.’;’-_Vp’oi:i:cg;’ others are also
involyeri’iiniﬂtihgff the crime, it is
the CouA’rt'<l.sVd_u:'ty to:su_rrim.on them to stand trial
along ~ with'*3':_ijthbo's~efA"~.a'lready named, since
sumrrioyningywft-heinif 'wtiuld only be a part of the

jffroicess of.._.takinc co nizance. We have also
';.p .3

4'po'Ai"nteVd~.y_out difference in the language of
if '*S:e'cti"o-n" of the two Codes; under the old

'.Court of Session was precluded from
takingi "cognizance of any offence as a Court of

o"r'i.gé1'nal jurisdiction unless the accused was

if Vfi"'–.committed to it whereas under the present

V'"Code the embargo is diluted by the

replacement of the words the accused by the

words the case. Thus, on a plain reading of

I/..»

{"""CTé

Section 193, as it presently stands once the

case is committed to the Court of Session bya-._»

Magistrate tinder the Code, the restrir:7't'i"o.h_'–«.V""._

placed on the power of the Court of Se_s<§i'o'n"l~t'§t,.,.: :_.

take cognizance of an offence as

originai jurisdiction getsj'|ifted.A_ in

Magistrate committing the :'tiasié.'iu'hdei*
209 to the Court of Sess.i_on the bar of';'S'ecti.oVnV–

193 is lifted thereby 'iht/Teisting "t~h.e"*C-outﬁt of
session completeand i.i'nfettei5ed__jurisdicitioh of
the Court of to take
cognizance of the-offence' include
the su'm'i'ij;o'i1in(j-. of or persons

whose Ctorhp?i.it_tity.ij;;.i;fi'*~– V"vcom'mission of the

t.rime_ic-an 'p;ri-m"a_ facie "iae "gathered from the

:r_nat.eriaVl'aQailai;ii'e.to'h.. record. The Fuil Bench of

the_HighC.ou'rt' rightly appreciated the

._shifta"inV_:'Section V193 of the Code from that

a_nde_r the"o!..d….Code in the case of Sk. Lutfur
P~a~hmié'i"-a

1T7t':FYC}f;:.the reasons stated above while we are

'..ing_ agreement with the submission of the

learned counsel for the appellants that the

stage for the exercise of power under Section

319 of the Code had not reached, inasmuch as

the trial had not commenced and evidence was

hot ied, since the Court of Session had the
(/1,

power under Section 193 of the Code to
summon the appellants as their involvement in

the commission of the crime orima facie
appeared from the record of the case,
no reason to interfere with the impugne_c§”o–rdVe’r__J:115
as it is well settled that once it is
the power exists the exercisewofIpowe’r’V”‘u’ir’i–&i’era4.:j_
wrong provision will not ren»derfth..e ord_e’r

or invalid. We, therefore, dism_is’s thissVa”ppeai” 1’

3. 1994 Crl.LJ 305 (SW. ._vs RADHAKANTA

PATRA AND.OTHEl?;S)».’w’herei’n_ tiaeeclaiciuua High Court

has observed-fas u,r2’dei%.r_

:”;_”‘(A)’ (1974), S5319, 161 –

S’um4rnlonin.;1jnot charge sheeted ~
A._.Stateroents’.’~of°.witrzess recorded under S.161
iEmplui%_cating’persons sought to be summoned,
asA«.Va<;:ti~ve participants in crime —- Court may

loo-§<V»C'_ii1.Eo.-'i't and summon them under 3319.

'Evidence' — Term used under 8.319 —- Import
of — Includes statement made by witness
under S.161, Cr.P.C.

In the different provisions of Criminal

Procedure Code the word ‘evidence’ has been

“3
av,

used in different senses so as to connote

proposed or possible evidence or evidence

adduced Oi’ in bath senses depending upon th_e_

context. It can be seen that the

‘evidence’ used in Section 319, Cr.P.C. inci–u.’des_i’

or refers to both proposed or possible eviderce

as welt as the evidence adduced,

course the proposed or possibl;-=1ievid’ence”mi3sft..__

have a sustainable basis and it mustinoit bet’; u

merely speculative. ;i_S”~._gOr exa.mp.iye’,: the

statement recorded und-ery””S_e’ctiAon 161i,..,.Cr..’i7>.C.
clearly shows ti~.–.e:”pai’iticiiipati’o_n.i of__a person in
the commission otfian offe:nce~..but_’;Vsi:ch person

has notn._b’_e.enE,incluIdedA”‘*a’_s.uyacicuised in the

iic’ha’rge’+;she’e;ti’– m’i’stai2e or for any

li.unexpla§’ne’d__”1_reason,’ ‘ the Court in an

appropriate’ take notice of such

.,statement..r’ecordéd under 5.161, Cr.P.C., and

a_lso.__take”a*ct.i.o.ni on the basis of the same under

.F:3ecti.on._.319, Cr.P.C. However, while looking

statement Court has to be cautious

and “careful. Further it is aiso to be noted that

1 ~. the word ‘may’ used in Section 319(1) makes

rather optional and discretionary for the trial

1 Court to take any action under the said

section.

5′?

’25

In order to be ‘evidence’ within the meaning of

Section 319, Cr.P.C. the concerned statement

or document wiii not oniy have to answer..t’h.e’«…_i’~~.

description as given in the definition of t_h_é”sa.i_d–.:_’:

term in Section 3 of the Evidence ActV’:’b~.u.t’t_heS.4 S

same must also be admiss’i’bie,ar[d _re:liev_antr~.i’.V

under the provisions of:’A:4iav§’iA.as

applicable to a case in<;lu_ding"t_he pros_s;-»i'stigrW.SVgof

the Evidence Act.

(B) Criminal VP’;-CI’J.(1.974),””‘Sf;…’»”1–.51, 162 —
Statement ~.witness ”.”’recorded under
Ev=i_degnt:i~’ary.v’a-iise_QfQ. Statement

‘by? hwi–t;_nes.:gj–…__ V’ ‘d_uri’ng._: investigation —

ssss .§$irati¢icia:gvv.ors.5—i\io£’barréd by S.162 of the
V ‘

Thestatement”r:e’cogrded under S.161, Cr.P.C.

‘and fo=rvv’arded to the Magistrate under Section
135(5), along with the charge-sheet

avre..%-ovbviously documents produced for the

V’i’insfpe:ctiS’on:*’of the Court in connection with the

con.sid.eration of framing of charge and for

it other’ purposes and therefore these recorded

‘A statements answer the description of

.:documentary evidence as contained in Section

3 of the Evidence Act. Such statements
recorded under Sec.161, Cr.P.C. can aiso be

viewed as proposed or possibie orai evidence
is/’

coming within the definition of evidence as

contained in the said Section 8 of the Evidence-._

Act because the makers of such recor«d’e-rif”–«.V”‘–._

statements are expected to make.lV_:'”su”c.h’—-..__f1-

statements while examined in

proposed or possibie evidence ‘ho.we.ver«ca’n._be”~7

adduced in evidence in Codrt ifiiithe’

is admissible and reriievant ﬂu-nderg

doubt 5.162, Cr.P.C,°*..:_b’ars Vti”..e:u”‘Lise’:’:, of
statements recorded ,.«’Ur;’dVi_,e:r V°S_._161′,'”Cr;”i5.C.
except for the pijrpose–s__ in the said
section, h,owevevr….E»n:._spite of 5.162
the said””?,§ctioi*1. “‘F1:’:3,Vt’:-V”be….taJ<en to be
restr;a'i'n'i',n..g:i'th'?e_ notice of the
sv'tatre–n;I,:én'ts:'::?er:o"i*i1,ed 'un'de'r'":S.161, Cr.P.C. in
'i for some limited

puirposes'. fo'r._"examp|e, for the limited

_.purpose_:'of..considering the question whether

a,n_'accuse'd'vs.houid be refeased on baii under

439 or on anticipatory bail under

the concerned Court including

Court very often has to, and does

.Iouoi< into the statements recorded under S.161,

Cr.P.C. Then again, in considering the

-Vquestion whether in a sessions tria! case,

based on poiice report, itharge in required to
be framed under 8.228 read with Ss.226 and

227, C.r.,P.C. and if so, under what heads, the
2-:2

1.3%,»

’27

Court of Session has to consider, amongst
other materiais, if any, the statements of
witnesses recorded under S. 161, Cr.P,C__._
Simiiarly, in a warrant procedure case started_:Z_
on the basis of a police report, under
and 240, Cr.P.C., the Magistrate
consider the statements recorded Lj-ndér:::S.’i61’_’
and forwarded under S.17.:3, :Cr:i>.’4Cu.p,.:4.f’o’r4’thet._’_r~:.e–uAé
purpose of deciding. _whe4ther-.. thepy’.iacc’used’1~.A”
should be discharged’–v..t:o’~:yp charge’
framed against him Aa.n2df..i_f’~~..so, .ui1-d.eArVA)rirhat
sections. Sect;-on’– 16:2,;;_C.r.’P.._Ci..’cannot be so
interpreted as to V_ba_r ti.o’oStin.g..finto__’statements

recorded-iyyiwundejr in such

‘rnen’ti~on§ed above. It is
:7,therefor’e’eypide’n’it:ti:.at 5.162, Cr.P.C. does not
batlooking’tinto”«–..’sta’tements recorded under
_,S.l641,._:Cr*.P’;Ct°for”‘having a preiiminary idea as
whatAAWav3…purp0rting|y stated by the witness
V _ ..duriniginvestigation.”

counsei for the respondent supports the

im.pu9._hed:§?’order passed by the triai Court. Learned

tcounsei; for the respondent reiies on the decision of the

it ‘-rV_V’H–o–rri’bie Supreme Court in the case of KAILASH .\/S. STATE

ﬁx

OF RALEASTHAN reported in AIR 2008 SC 1564 wherein the

Hon’ble Supreme Court has heid as under:

“(A) Criminal P.C. (2 of 1974),

Summoning of additional accused –_pgo’w{erfof
Court ~ Court has to be:-‘ci’rcui7’?Sii?€Qqt”wiiifie-‘[3
exercising power. 1 i _ .

Provisions of .78-.319 3
suggest that during th’ei’i»t:r’ial it has ‘trod-apipceair
from the evidence that'”a notfbe-in~gVEan
accused has committe«d_ for which
such person couldihbie tried t.og’e’tVhcge;¥’ with the
accuse_d”‘.igh’o are aiso The key
words aie appears from the
_e\rigd_e’n.ce’;’1–1 committed any
I_offenice’;_..___I3t, is..:_no__t,. therefore, that merely
because’ so’nj’e>i’v\ii_:thes’ses have mentioned the
_ narne ofVsuch~.,_’p’e.i°’son or that there is some
uvrf*.ateriai”=.a:g_a_i_nst that person, the discretion
:’u:hd:e’i*u.S.319 would be used by the Court. This
is the fact that such person against
_ whoifniiiilsuch discretion is used, shouid be a
a ‘person who could be tried together with the
“accused against whom the triai is already
going on. The discretion under 3319 has to
be exercised very sparingiy and with caution
and only when the concerned Court is satisfied
that some offence has been committed by

such person. This power has to be essentialiy
exercised only on the basis of the evidence. It

couid, therefore, be used oniy after the iegai–._
evidence comes on record and from
evidence it appears that the concerned pje’rsot_:
has committed an offence. The %

appears’ are not to be read’-I-i’g”rit–2y.”

9. Learned counsel for the respo”ndent»”a!’Vso4_relies Von’.

the decision in the case ofVHii*«’Vi_’CV:)’i4.[). Si’:-1″.~.xF:'”iI MOHD.
RAFIQ reported in S(2.Ai8.9f’9iAdwherein the Hon’b|e

Supreme Courthas heA|Ad..a’s’~.urideir: i

“(A) Hc,jQrir’i’;~;;;»i-1,_~_g»: A.tori””1r-$74), s.319–

.a’dd’itionaiwaccused — Exercise

of ° :discreti’o’ndV must arrive at

sat’i”s.faictVio’n_thatttzere exists possibility that

‘ “accused»;Mmmoned in ail iikelihood wouid

i be “c:onvicte’d””iV– Such satisfaction can be

vat upon completion of cross-

‘ eVxéanj.inaVt’i.on of witness — No exception thereto

c.oui-dibe taken far less at instance of witness

A T “and when State was not aggrieved by same —

order passed at instance of witness at stage of
A examination under S.161, improper.”

10. In this case State is not aggrieved party and it is

accused who wants to implicate the charge sheetVwei.t4ne_ss.

Under Section–319 of Code of Criminal Proced_o’rei’«tii_1′.ej: ti1i.:al~.%

Court has got power to proceed against the–.ot:l1e’r’i~f.pe.rso»ns~.,

who appear to be guilty of the olffencejzifine:’.di’scr’etvi.cona:ry

power of the Magistrate?-unclercthe se’ction

extraordinary power which he :e_xerc:i’sed very
sparingly only if the exvilstif Before
taking cognisance of the Court
must :::vi\ii.e’re””evidence let in the
chief–e§€e’rc_iJ’s’e:__is.

justified by the tests specificaliy iaid down”in:”vth’eA.i.:se_ctiio’i’i

itseif. In this case, the accusedyjhjave

deposition sheet nor the V.de4_posit’i’o_n”*of CWs.é’Ini’; tiiei’,

application filed by the accuseidabvefoyre th-ejtriyal it is
mentioned withdrawai the C81 in
his objection statement it ail reiates
to C.C. .tiii:s”:-cavseiV;iAThe respondent –
Investigati stated in their objections
statemerityjthat “§Pai, Deputy Generai Manager,

Cangara i.Bank”g.,av’e’ a complaint, but source of information

TiNo._.VRC 5/E/2000/BSFC/BLR were verified and

f_o’iJ.nci ‘tiAh’e””NRI depositors were not involved in the

crirne. learned counsel for the petitioner is unabie to

pOi_nt out any evidence connected in this case to point out

“thaL’:NRIs were invoived in this crime except indicating

‘”-‘about the withdrawai of the amount by the CW5 connected

with C.C. i\|o.190/2002, which is not the point involved in

”

this case. It is weil settied Saw that the discretionary
power of the Magistrate under this section has to be

exercised very sparingly and that too with great careitand

caution and even in the application, it is not”*-rnge.n’t’ion_ed

what are the acts and omissions commit1tedV_”_:’ey’:tihe4_CWs,._p*.,_

The finding recorded by the tria31g’CoLi_rAt’ijs1″W§’ii_’fo:u’n.d.e:d;.a_nd

does not call for interfere*n._ce at’;_th’–is stsage.. ‘Le:;ar’nied’g

counsel for the petitioner has”i’faihied toVrn.aA_i'<eV':ou't:§a case to
interfere with the impu_'gned.'_VAord'eii Petition is
devoid of merits and iia'bi.e'itfo._'be dismissed.

7.__11._ InVV’t’he~«.r_esugi’t«,i.»_E-p_ass.’ the foliowing:

ipﬁbepee

A ‘Criminal Petition is dismissed.

sf’
33;”

atssésasa
ﬁg $\k;;.:¢;v«a$

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D V Kundar vs State By Cbi on 3 November, 2010

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