Krishan Pal Singh Chauhan vs State of Haryana

R.L. Anand, J.

This is a criminal revision filed by complainant Shri Krishan Pal Singh Chauhan and has been directed against the order dated 14th November, 1995 passed by the Court of learned Sessions Judge, Ambala, who allowed the revision petition filed by Shri Parveen Sablok and his wife Smt. Geeta Sablok, and reversed the order dated 25th February, 1995 passed by the Judicial Magistrate Ist Class, Ambala City, who decided to frame the charges against the accused under Sections 420/406/506 read with Section 120B, Indian Penal Code.

The brief allegations of the complainant are that parties to the complaint came in contact with each other in the month of February 1991 and after threefour meetings, accused No. 1, namely, Shri Chuni Lal Sablok started alluring the complainant that he along with accused Nos. 2 and 3, namely, Shri Parveen Sablok and Smt. Geeta Sablok, had started the business of restaurant in the name and style of M/s Fast Food Restaurant at the main road, Ambala City, and they were earning very good income from the said restaurant. All the three accused had hatched a criminal conspiracy to cheat the complainant by way of getting huge amount and in furtherance of this conspiracy, accused No. 1 started saying that the complainant was just like his son and it was a fatherly advice that he should join the business of restaurant as a partner with the accused party. Accused No. 2 claimed that the complainant was just like his brother and accused No. 3 stated that the complainant was just like his brotherinlaw and like a family member. Accused Nos. 2 and 3 assured the complainant that he would be given 40% share in loss and profit very honestly and the interest of the complainant would be protected. The complainant was not supposed to join in the active business and was to remain as sleeping partner. Believing the representation of the accused, the complainant started investing the amount in the business of restaurant. Some time the amount was given in the presence of all the three accused and some time in the presence of any of these three accused from July 1991 to 12th September, 1993, and in this manner the complainant paid a sum of Rs. 1,03,250/. In order to be more sure, a partnership deed was executed on 14.9.1993 between the complainant and accused Nos. 2 and 3. Some columns of the deed were kept blank intentionally by the accused party while stating that partnership deed would be submitted to the Income Tax and Sales Tax Departments after filling the same. All the three partners signed the partnership deed. Even after the execution of partnership deed, complainant kept on investing the amount in the business by way of cheques and cash. All the cheques were in the name of Parveen Sablok and the complainant had paid a total amount of Rs. 1,95,300/. Even after receiving the amount and execution of the partnership deed, the accused party did not implement the contents of the partnership deed. No account in the joint names of the partners was opened and no account was given to the complainant. Later on, it was revealed that partnership deed was a waste paper and the complainant was further threatened that the complainant would be done to death if he would again demand his share in the business. The accused party totally refused to return the amount paid by the complainant and hence the accused party had cheated the complainant by playing the fraud and they had dishonestly misappropriated and converted the amount of Rs. 1,95,300/ to their own use.

It may be mentioned here at the first instance that this complaint was filed against Sarvshri Chuni Lal Sablok, Parveen Sablok and Smt. Geeta Sablok, who were arrayed as accused Nos. 1, 2 and 3, respectively. Vide order dated 26th March, 1994, the learned Magistrate forwarded the complaint to the SHO, Police Station Baldev Nagar, Ambala City, for investigation under Section 156(3), Cr.P.C.

Investigation was conducted by the Police and during the course of investigation, accused No. 1 Chuni Lal was found innocent, while accused Nos. 2 and 3, namely, Parveen Sablok and Smt. Geeta Sablok, respectively, were arrested by the Police. The documents were taken into possession by the Police vide separate recovery memos. and after the completion of the investigation of the case, Parveen Sablok and Smt. Geeta Sablok were challaned for the offences under Sections 420, 406 and 506 read with Section 120B of the Indian Penal Code. The copies of the documents were supplied to the accused as required under the law and the learned Magistrate vide order dated 25th February, 1995 framed the charges against Parveen Sablok and his wife Smt. Geeta Sablok, as stated above and the reasons given by the learned Magistrate are contained in the following paras, which I would like to reproduce :

"After giving due consideration to the respective submissions of both the parties and carefully analysing the material placed on the file, I am of the considered opinion that material placed on the file is sufficient to conclude that a prima facie case against the accused under sections 420/406/506/120B IPC is made out. On the basis of material placed before the court, it becomes prima facie clear that accused Nos. 2 and 3 with a fraudulent intention induced the complainant to invest a huge amount in the name of partnership in the alleged business of restaurant. Though, an alleged partnership deed was executed between the parties, but some columns of the same were kept blank for the reasons best known to the accused party. There is nothing on the file to draw an inference that alleged partnership deed ever acted upon between the parties or complainant was ever given any share in loss or profit in the business of restaurant to be run by the accused party. At the time of framing of charge, allegations levelled in the complaint are to be considered and evidence is to be proved at the time of trial. In this context, I am fully fortified by the views expressed in the above case law relied upon by the learned counsel for the complainant.

The contention of the learned counsel for the accused that present is a case of civil nature does not carry any conviction with me since intention of the accused was in alluring the complainant to invest a huge amount in the business. Thereafter they did not intentionally account for income and expenditure and they did not refund the money to the complainant.

Consequent upon my aforesaid discussion, I am of the considered view that a prima facie case to proceed against the accused is made out under Sections 420/406/506/120B, IPC. Let they be charged accordingly."

Aggrieved by the aforesaid order, the two accused, namely, Parveen Sablok and Smt. Geeta Sablok, filed a criminal revision in the Court of learned Sessions Judge, Ambala, who accepted the revision and set aside the order passed by the learned Magistrate and the reasons advanced by the learned Sessions Judge are contained in paras Nos. 8 and 9 of the judgment, which are reproduced as follows :

"8. A perusal of the trial court file would show that a photocopy of the alleged partnership deed dated 14.9.1993 is available on the trial Court file. As per the said photocopy of the partnership deed dated 14.9.1993, the partnership was entered into between the accusedpetitioners Parveen Sablok and Smt. Geeta Sablok on the one hand and Krishan Pal Singh Chauhan complainant on the other. In the said partnership deed, most of the important columns were left blank, including the date on which the partnership would commence and the amount to be invested by the partners and what business was to be carried on by the Firm etc. Even the column meant for the witnesses was left blank. The letter dated 1.7.1994, written by the Senior Manager of the Punjab National Bank, Model Town Branch, Ambala City, is also available on the trial Court record. In fact, this letter is the basis for showing that various payments were made to the accusedpetitioners by the complainant. In the said letter, it has been mentioned by Senior Manager of the Bank that the police had made enquiries from the bank in respect of payments allegedly made by the complainant to the accused by way of 29 cheques and in reply to the said letter, the Senior Manager of the Bank had informed the police that out of those 29 cheques only seven cheques were issued in favour of accused petitioner Parveen Sablok. A perusal of the said letter dated 1.7.1994 would show that even with regard to those seven cheques, it could not be said that the payment was made to accusedpetitioner Parveen Sablok in respect of those seven cheques. The first cheque, which was allegedly issued by the complainant to accusedpetitioner Parveen Sablok, is at serial No. 4 of the said letter and it was only mentioned that out of Saving Bank Account No. 11890, cheque was issued in favour of Parveen Sablok and he received the payment. However, it was not mentioned whether it was a bearer cheque or a cross cheque and whether the payment was made in cash at the counter of the bank or payment was deposited in the bank account of accusedpetitioner Parveen Sablok. Similar is the position in respect of the cheques at serial No. 13 and 25. So far as the other four cheques are concerned, at serial Nos. 19, 21, 22 and 23, these were allegedly issued out of Saving Bank Account No. 11679, in favour of accusedpetitioner Parveen Sablok. However, with regard to these cheques also, the position is similar inasmuch as it is not known as to whether these payments were made in cash or were deposited in the bank account of accused Parveen Sablok and who had received the payment of these cheques. Furthermore, even the dates or the amounts of these cheques have not been mentioned in the said letter dated 1.7.1994, except in respect of cheque at serial No. 22, in which it is mentioned that the payment was received on 17.9.1993 and not on 18.9.1993. However, even against this entry, the amount of cheque has not been mentioned, whereas in respect of remaining six entries mentioned above, neither the amount nor the date has been mentioned. With regard to the remaining cheques, it is mentioned in the said letter that those cheques were either issued in favour of other persons or no such payment was made against those cheques. It may also be mentioned here at this stage that even the list of the payments allegedly made by the complainant to the accused party, referred to in para 7 of the complaint, is not available in the trial Court file.

In the absence of the dates when the alleged payments were made and in view of the alleged partnership deed, which was lying blank in respect of important matters, in my opinion, there was absolutely no occasion to frame charges under Sections 420/406/506/120B against the accusedpetitioners, especially when there is absolutely nothing on the record to show that the payments were made by the complainant to the accused persons by practicing fraud etc. upon the complainant. If the complainant had made any payment to the accused, as a partner of the partnership firm and if the accused have not made any payment to the complainant, towards his share in the profit in the said partnership firm, in my opinion, it would be a civil transaction and no criminal offence would be made against the accusedpetitioners, on the basis of any such transactions. In AIR 1991 Supreme Court Page 476, it was held by the Hon''ble Supreme Court that for holding an accused guilty for the offence under Section 420, IPC, there should be evidence to show that the accused practised any fraud on the complainant and thereby induced him to part with the property. In the present case, as referred to above, there is absolutely nothing on the record to show that there was any inducement or parting of the amount by the complainant to the accused, in pursuance thereof. In this view of the matter, no offence under Section 406 IPC is made out, as there is nothing on the record to show that any amount was given to the accused by way of trust. Similarly, no offence under Section 506 IPC is made out, on the facts and circumstances of the present case. Furthermore, there is no evidence of any criminal conspiracy and that being so, even the offence under Section 120B IPC is not made out against the accusedpetitioners, on the facts and circumstances of the present case. To me, it appears that the complainant has converted a civil transaction into a criminal transaction by filing the present complaint against the accusedpetitioners, without there being any material to show that any criminal case was made out against the accusedpetitioners."

This time the complainant was aggrieved by the order of the learned Sessions Judge and he has filed the present revision petition, praying that the order of the learned Sessions Judge on the face of it is illegal.

This revision petition I am disposing of with the assistance rendered by Shri K.S. Jetley, Advocate appearing on behalf of the petitioner; Shri S.S. Pattar, A.A.G., Haryana, appearing on behalf of the State; and Shri Ashwani Talwar, Advocate, appearing on behalf of respondents Nos. 2 to 4.

The challan was presented under Sections 406, 420, 506 and 120B, Indian Penal Code, and in these circumstances the relevant provisions are contained in Chapter No. XIX of the Code of Criminal Procedure. Section 240 of the Code of Criminal Procedure is a guiding section, which determines the controversy between the parties and it lays down that if upon such consideration (as mentioned in Section 239), examination, if any, and hearing, the Magistrate is of the 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, which shall then be read over and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried. In other words, while framing the charge under Section 240, Cr.P.C., the Magistrate is to see a prima facie case against the accused. This section also gives power to the accused to rely upon such documents in order to convince the Magistrate that there does not exist any prima facie case and they are entitled to be discharged as per the provisions of Section 239, Cr.P.C. "Grounds for presuming", which is equivalent to prima facie case is the subjectmatter of interpretation by several courts, including the Hon''ble Supreme Court. A combined reading of Sections 239 and 240, Cr.P.C., would indicate that if the Magistrate after going through the allegations of the final report under Section 173, Cr.P.C., supported by the documents, and after taking into consideration the documents, if any, produced by the accused, comes to a conclusion that there exist grounds to proceed with the case and the case is one which should be investigated and inquired into, he is duty bound to frame a charge as there existed a prima facie ground equivalent to ground for presuming that the accused has committed an offence. The sufficiency of evidence whether it would end in conviction or acquittal is not supposed to be seen by the Magistrate. He is not supposed to touch even the merits of the case, which can be discussed only by him when he will appreciate the evidence for the purpose of recording a conviction or acquittal after the parties led evidence. The wording of Section 240, Cr.P.C., is equivalent to the wording of Section 228 of the Code, though Section 228, Cr.P.C., falls in Chapter XVIII thereof. This wording has been recently interpreted by the Hon''ble Supreme Court in a case reported as State of Maharashtra v. Priya Sharan Maharaj and others, 1997(2) RCR (Crl.) 634 : 1997(2) All India Criminal Law Reporter 812, where it was held by the Hon''ble Supreme Court that it is settled law that at the stage of framing the charge, the Court has to consider the material before it with a view to find out if there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. This citation is equivalent to 1997(2) RCR 634. These provisions of Sections 239 and 240, Cr.P.C., have also been considered in Amarjit Singh Grewal v. State of Punjab, 1997(2) RCR 662 a judgment pronounced by this Court where it was held that at the stage of framing charge the court has simply to see if on basis evidence collected, the charge is groundless or not. It does not mean that there should be sufficient ground for purpose of conviction. Even though the accused may have a defence, but the same has to be left to be decided by an appropriate forum. After relying upon State of Karnataka v. L. Muniswamy and others, AIR 1977 SC 1489, this Court has also held in Ram Chand v. State of Punjab, 1997(2) RCR 789, that for the purpose of framing the charge, the Court is only to see a prima facie case and the sufficiency of evidence resulting into conviction is not to be seen because that will be seen by the trial Court when it will enter into provisions of Sections 232, 234 and 235 of the Code of Criminal Procedure. This Court is also aware of the observations made in Sant Parkash Singh v. State of Punjab, 1995(1) RCR 1, wherein it was held that while exercising the powers under Section 240, Cr.P.C., the judge is not required to act like a post office, but he is supposed to see as to whether on the basis of the allegations of the prosecution any triable case is made out or not. In Sumanjit Singh v. Satish Kumar and another, 1992(2) RCR 488, while interpreting the provisions of Sections 227 and 228, Cr.P.C., it was held that 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 to constitute the alleged offence. In Vijay Kumar v. State of Punjab, 1996(2) RCR 21, after relying upon State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 and Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja, 1991(1) RCR (Crl.) 89 : AIR 1990 SC 1962, it was held that if the evidence collected during investigation revealed commission of an offence, the guilt or innocence of the accused should be determined during trial and not at the time of framing of charge and the court need not undertake an elaborate inquiry in sifting and weighing the materials. It is not necessary for the Court to dive deep into various aspects. Reliance was placed on Guru Bipin Singh v. Chongtham Manihar Singh and another, 1997(1) RCR (Crl.) 127 : 1997 Supreme Court Cases (Cri.) 274 ; and Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others, 1991(1) RCR (Crl.) 89. This very proposition was repeated in Hukam Chand v. State of Punjab, 1992(2) RCR (Crl.) 644 : 1992(2) All India Criminal Law Reporter 689. In State of Maharashtra etc. v. Som Nath Thapa, 1996(2) RCR (Crl.) 480 : JT 1996(4) SC 615, the guideline which was given by the Hon''ble Supreme Court was that when the Court comes to the conclusion that commission of the offence is a probable consequence, a case of framing of charge exists. Summarising the ratio of the Hon''ble Supreme Court as well as of this Court, and at the cost of repetition, it can be stated that if on the allegations of the report, supported by documents, a triable issue arises in favour of the complainant, which should be investigated at the full length trial, the Court should be armed with a power to frame the charge, though it must not behave like a post office at the whims of the complainant and the State. Sufficiency of evidence whether it would end in conviction or acquittal is not in the purview of the Court framing the charge under Section 240, Cr.P.C. or under Section 228, Cr.P.C., at that stage. This case has to be viewed through a very close hole and if the allegations give a colour that the accused involved in the criminality of the offence and the allegations of the complainant require scrutiny of the Court, even the charge can be framed on weak evidence, little caring that such evidence may not result fruits to the prosecution or to the private complainant. Equally is true that the Court is not to act blindly for the complainant or for the prosecution, while determining a controversy under Section 240 of the Code of Criminal Procedure.

After summing up the above proposition of law on the relevant sections, now I have to evaluate the allegations of the complainant petitioner. His case throughout was that it was represented to him by the accused that the complainant should invest the amount and he would be made a partner in the restaurant and the complainant would be given profits and loss. On this representation of the accusedrespondents, the complainant earlier parted with a sum of Rs. 1.3 lacs and finally in all he parted with a sum of Rs. 1,95,300/. It is also the case of the complainant that though a formal partnership deed was executed, but that partnership deed remained inconclusive and this was done intentionally by the accusedrespondents, who had left certain columns as blank and a representation was also given to the petitioner that it has been done so as the document is required to be produced before the Income Tax and Sales Tax authorities. All the times the petitioner was believing that he would be made a partner and he would get the necessary profit from the partnershipfirm. The case of the complainantpetitioner is that in spite of the fact that he was treated as a partner, but the respondents developed a criminal intent and for this reason they did not open any partnership account in the bank nor any accounts were rendered to the petitioner; so much so, the petitioner has even been deprived of the benefits of the profits of the partnership. It is the case of the petitioner that he entrusted the money to the respondents with the expectation that this amount will be utilised. The money was given either in cash or in the shape of bank cheques. The entire exercise which has been done by the learned counsel for the respondents as well as by the learned Sessions Judge is that the allegations of the complainant make out a case of civil liability. According to the learned counsel for the respondents, it was a case of partnership and if the respondents had not rendered the accounts of partnership to the petitioner, the remedy lay in the dissolution of partnership and for seeking of the accounts. This submission of the learned counsel for the respondents has been examined by me in depth, but I am not in a position to agree with his arguments because of the patent fallacy which lies in the argument, i.e., that the respondents did not admit the petitioner as a partner. According to the respondents, they had not received a single penny from the petitioner, which defence of the respondentsaccused prima facie does not bear a ring of truth and it is highlighted if I make a reference to Annexure P3, which indicates that some of the cheques were issued by the complainant and the payments of those cheques were received by Parveen Sablokrespondent. The said cheques are mentioned at serial Nos. 4, 13, 19, 21, 22, 23 and 25 in the letter Annexure P3. In what context these amounts have been received by the respondentsaccused, is the point to be determined by the trial Court itself. Whether these amounts were advanced by the complainant to the accused on the assurance that the petitioner would be admitted as a partner and he would be paid the profits of the partnership firm or these amounts were advanced by way of loan ? No sane person would like to part with the amount unless he is assured with something. What are those representations which led the complainant to pay the amount is a question of fact which can only be adjudicated at the time of the trial. At the time of framing of the charge, the virgin allegations of the complaint coupled with the documents prima facie disclose that the accusedrespondents are guilty of the offence under Sections 406 or 420, Indian Penal Code. It is also the case of the complainant that when he demanded the return of the money, he was duly threatened. It is further the case of the complainant that the accused had conspired with each other and had tried to fleece the complainant.

I have gone through the reasons advanced by the learned Sessions Judge, Ambala while accepting the revision filed by the accused and for the quashment of the charges. I have already reproduced the operative portion of the order of the learned Sessions Judge. A perusal of the same would show that the learned Sessions Judge had committed an illegality by going into the merits of the case. He had written a judgment for the accusedparty which was not within his domain while dealing with a criminal revision. By allowing the revision petition the learned Sessions Judge has committed a patent illegality in the opinion of this Court and this illegality has to be rectified by this Court while exercising the powers of revision.

In this view of the matter, I allow this revision and set aside the order of the learned Sessions Judge and restore the order passed by the learned Magistrate and directions are given to the learned Magistrate to proceed with the complaint according to law from the stage where it was when the proceedings of the trial Court were interfered with by the learned Sessions Judge. The respondents are directed to appear before the trial Court on 29th July, 1997.