Hajibabu and Others vs State of Karnataka

K.N. Phaneendra, J.—The petitioners had approached this Court seeking to set aside the order passed by the JMFC, Devadurga in C.C. No. 200/2009 refusing to discharge Accused Nos. 1 and 3 (petitioners herein) for the offences punishable under Sections 465, 406, 420, r/w. Section 34 of IPC.

I have heard the arguments of the learned counsel for the petitioners as well as the learned HCGP and perused the records.

Earlier, these petitioners have approached this Court in Crl. P. No. 15610/2013 seeking quashing of the entire proceedings at the stage when cognizance was taken by the learned Magistrate. This Court reserving liberty to the petitioners to file necessary application for their discharge, dismissed the said petition vide order dated 23.08.2013. The petitioners in fact filed the petition under Section 239 Cr.P.C for their discharge before the JMFC and vide order dated 31.05.2014, the JMFC has rejected the said petition and refused to discharge the said accused persons (petitioners). Therefore, the petitioners are before this Court. Though this order is revisable by the Court of Sessions, as this Court has already entertained this revision and the learned counsel insist this Court to pass an order on merits, in order to avoid the multiplicity of proceedings, I have taken-up this matter for final disposal, after hearing both the parties.

The brief factual matrix of the case emanate from the records are that, on the complaint lodged by the CEO, TMC, Devadurga, stating that the petitioners who were working in the TMC, Devadurga, during the year 2007-2008 have in fact encashed the cheque for Rs. 4,52,944/- instead of Rs. 1,52,944/- and misused the said amount for their wrongful gain, the police after due investigation, recorded the statements of the witnesses and filed the charge sheet for the offences punishable under Sections 406, 420, 465 of IPC. The Court has taken cognizance of the offences and issued summons, and consequently, after issuance of summons, the petitioners have made application for their discharge.

During the course of the arguments, it is submitted by the learned counsel admitting that these two persons were working in TMC, Devadurga, during that relevant point of time and they were entrusted with the work of releasing the funds to the beneficiaries or to the persons, who are entitled for the amount. Therefore, in that context, they issued a cheque for Rs. 1,54,944/- and thereafter, the person by name Gangadhara, who received the cheque, has misused the cheque by over-writing the figures of Rs. 152,944/- as Rs. 4,52,944/-. In fact, the said Gangadhar has committed the said offences and the petitioners have not committed any offences. In fact, it is submitted that the counter-foil in the cheque book tallies with the amount mentioned in the cheque issued in favour of one Gangadhara. But the question remains for consideration before the trial Court is that, whether even prior to issuance of the cheque, the figures were tampered as Rs. 4,52,944/- by Accused Nos. 1 and 3, who were actually in custody of the cheque prior to the issuance of the same to the said Gangadhar or whether subsequently after issuance of the cheque, the said Gangadhar has manipulated the said cheque for the purpose of his wrongful gain, has to be thrashed-out during the Course of full-dressed trial. If suspicion is created in the conduct of the petitioners and the specific allegations are made that even prior to issuance of the cheque, it was tampered and there was collusion between the petitioners and the beneficiary of the said cheque and therefore, they were also indulged in committing the said offences. In my opinion, such doubt has to be cleared beyond reasonable doubt by the prosecution during the course of the evidence. Therefore, while framing of the charge, even incurring a suspicion with regard to the complicity of offences being committed by the accused is sufficient. The Court need not at this stage expect what evidence the prosecution may produce before the Court in order to establish their case and whether the trial may end up in acquittal or conviction of the accused. On going through the materials on record viz., charge sheet papers submitted by the police under Section 173 of Cr.P.C and after hearing the parties, if the Court is of the opinion that there are sufficient grounds to proceed against the accused and if a suspicion is established against them, that suspicion has to be removed during the course of the trial. In such circumstances, the Court has to frame charges and proceed with the case. Therefore, in this particular case, I do not find any strong reasons to interfere with the order passed by the Trial Court.

Though the sanction point is raised, but the Trial Court has observed that the Deputy Commissioner, who has already issued sanction to prosecute the accused, is the competent authority to issue such sanction order. The validity of the sanction order and whether such sanction order is issued after applying its mind by the competent authority, has to be thrashed-out during the course of the trial. Even the ground of application of mind by the sanctioning authority cannot be considered at the time of framing of charges, when the sanction order issued is not denied by the other side. Therefore, in my opinion, the above said two factors require some evidence before the Court. Hence, the trial Court has not committed any serious mistake in rejecting the application filed under Section 239 of Cr.P.C., as such, there is no room for interference by this Court. Hence, the petition deserves to be dismissed.

Accordingly, the petition stands dismissed.