Neelesh vs State Of Madhya Pradesh

Rajendra Kumar Srivastava, J

This Criminal Revision has been preferred against the order dated 22.02.2018 passed by the learned 3rd Additional Sessions Judge, Multai in session trial No. 110/2017 whereby the learned 3rd Additional Sessions Judge Multai has framed the charges under Sections 409, 420, 420, 409,120-B, 467, 409 and 471 of the I.P.C. and under Sections 65 and 66 of the Information & Technology Act.

According to the case of the prosecution, petitioner-accused submits that he was posted at Branch Jaulkheda, Bank of Maharashtra Tehsil Multai, District Betul since 30.04.2013 to 29. 04.2015. At the time of joining, Jaulkheda Bank of Maharashtra Tehsil Multai, the co-accused-Abhishek Ratnam was the Banch Manager. He was transferred from there on 8. 05.2013 to Bank of Maharashtra Branch Multai, District Betul. Abhishek Ratnam worked there from 09.05.2013 to 02.09.2013. The co-accused-Abhishek Ratnam had come to Jaulkheda Branch on 01.06.2013, Saturday, after the closure of the Bank due to half day and with the help of co-accused-Vishal @ Vinod Pawar (Part time of Sweeper of Branch), got the C.C.T.V. cameras of the Bank closed and by using the password of their Branch Cashier, Deenath Rathore and the petitioner-accused has done the transaction of Rs. 11 lakhs and on 02.06.2013, on sunday, again got the Bank opened with the help of co-accused-Vishal @ Vinod Pawar, put off the C.C.T.V. Camera and then opened 12 fake K.C.C. loan account and has made transferred the amount of money to the 12 fake accounts by using the password of the Branch Manger, Vinay Ojha and Cashier, Deenanath Rathore and the petitioner-accused and thus Abhishek Ratnam misappropriated the amount of money of Rs. 99,94,067/-. Subsequently, Branch Manger has lodged the written report on 03.05.2014 against the co-accused-Abhishek Ratnam and part time Sweeper Vinod Pawar and Crime No. 609/2014 was registered at Police Station Multai, Betul under Sections 409, 420, 120-B, 34 of the IPC and under Sections 65 and 66 of the Information & Technology Act on 19.07.2014. During the course of the investigation, on the memorandum statement of the co-accused Abhishek Ratnam, Dhanraj Pawar, petitioner was arrayed as an accused in the case as his password has been used by co-accused Abhishek Ratnam in the commission of the offence committed by the Abhishek Ratnam along with the password of Branch Manager Vinay Ojha and Cashier Deenanath Rathore. Challan has been filed against co-accused Abhishek Ratnam, Dhanraj Pawar and petitioner-accused under Section 173 sub clause 8 of the Cr.P.C. The investigation was kept pending against Lakhan Hingway, Ravindra Koshta, Yadav Rao Choukidar, Anurag Bhargava, Vinay Ojha and Deenanath Rathore on the basis of memorandum statement of co-accused Abhishek Ratnam.

On 22.02.2018, the learned trial Court has famed the charges against the petitioner-accused on the ground that the petitioner in conspiracy with co-accused has by fabricating false document, using them as genuine document and his password being used by the co-accused, has committed the offence punishable under Sections 409, 420, 420, 409,120-B, 467, 409 and 471 of the IPC and under Sections 65 and 66 of the Information & Technology Act.

According to the petitioner-accused, the order impugned of framing of the charges against the petitioner-accused is illegal, perverse and contrary to law and is therefore, liable to be set aside. The FIR lodged against the co-accused Abhishek Ratnam against whom the whole case of the prosecution revolves around and he is the man who after being transferred from the Bank at Jaulkheda Bank of Maharashtra, came over there from his place of service at Branch Betul to previously posted Branch at Jaulkheda after the closure of the Bank on Saturday on 01.06.2013 and also on 02.06.2013 on Sunday, got the Bank opened with the help of part time Sweeper co-accused Vishal @ Vinay Pawar, got off the C.C.T.V. Cameras and by using the password of the petitioner-accused as well as other co-accused persons, then Branch Manager and Cashier has made transaction to the extent of Rs. 99,94,067/- and merely on the basis of his memorandum who has been co-accused, the petitioner-accused has been arrayed as an accused in absence of any legal material implicating the petitioner, therefore, the order of the framing of the charge is illegal, perverse and contrary to law.

The learned trial Court should have seen that the F.I.R. has been lodged against the co-accused Abhishek Ratnam, Vishal @ Vinod Pawar and after the investigation, while keeping the investigation in progress under Section 173 sub-clause 8 of Cr.P.C. against the Lakhan Hingway, Ravindra Koshta, Yadav Rao Choukidar, Anurag Bhargava, Vinay Ojha and Deenanath Rathore on the basis of memorandum statement of co-accused Abhishek Ratnam in the piecemeal, the challan has been filed against co-accused Abhishek Ratnam, Dhanraj Pawar and the petitioner-accused, this has caused great prejudice and miscarriage of justice.

The case against the petitioner-accused is that no evidence except the memorandum statement of the co-accused which is inadmissible in the eyes of law. The co-accused Abhishek Ratnam who is a habitual offender used the password by taking out the password from the system by doing permutation and combination in searching the password and committing theft of password when his subordinates were operating the system with his evil eye for the purposes of the commission of the offence for his wrongful gain and wrongful loss to the Bank and therefore, for the offence committed used the password of the other accused persons. It has come on the record that co-accused Abhishek Ratnam after the commission of the offence has given the money to the other co-accused persons, Vinay Ojha, Lakhan Hingway, Dhanraj Pawar, Anurag, Ravindra Koshta, Yadav Rao Choukidar and therefore the framing of the charge against the petitioner is bad in law and is therefore, liable to be set aside.

Learned trial Court should has seen that the petitioner was on the date of commission of the offence was only having experience of one month of his service as probationary Officer and the co-accused Abhishek Ratnam taking advantage of his post, being the Branch Manager of the Branch and taking advantage of his short service during the Bank business has committed theft of the password of the co-accused and the petitioner and has misused the same.

It is further argued that in the whole case of the prosecution, there is no material implicating the petitioner in the commission of the offence and if whole case of the prosecution is accepted on its prima-facie value, no case for commission of any offence is at all made out against the petitioner and therefore, charges framed against the petitioner-accused is liable to be set aside and the petitioner is liable to be discharged from the charges framed against him.

Learned counsel for the State submitted that there is prima-facia case against the petitioner-accused who was posted as Assistant Branch Manger at that time he had the key of Bank. Bank was opened in holiday from the key of Bank and money was misappropriated from the password of the petitioner-accused. So it can not be said that there is no evidence and it is clear that there is prima facia evidence against the petitioner-accused. So petition is liable to be dismissed.

It is established principle that if prima-facie case is made out charge has to be framed at this stage and it is not necessary to appreciate evidence at the stage of framing charge.

The Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J. has held as under:-

"It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., Court posed a question, whether at the stage of framing the charge, the trial court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:

"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the 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)

The  Apex  Court  in  the  case  of  Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & others reported in 2010(1) M.P.J.R. (SC) 36 has held as under:-

"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied.

The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."

According to the prosecution, petitioner-accused had the key of Bank and disputed transaction was done in the holiday. It is evident that the Bank was opened in the holiday. While petitioner-accused had the key of bank, password of petitioner-accused was used to draw the money and aforesaid money was transferred to forged account. So this fact shows prima facia materials of the offence. Petitioner-accused will explain all the circumstances before the learned trial Court. So such materials constitute the offence.

The Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J.

"The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar vs. Ramesh Singh (1977) 4 SCC 39, Union of India vs. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274, and held thus: -

"From the above discussion it seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The court may for this limited purpose shift the evidence as it cannot be expected even at the 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)"

Petitioner-accused submits that co-accused Abhishek Ratnam after the commission of the offence has given the money to the other co-accused persons, Vinay Ojha, Lakhan Hingway, Dhanraj Pawar, Anurag, Ravindra Koshta,Yadav Rao Choukidar and therefore, the framing of the charge against the petitioner-accused is bad in law and is therefore, liable to be set aside.

It is evident from the record that Investigation Officer mentioned these facts in the charge sheet and the evidence is collected against Lakhan Hingway, Ravindra Koshta, Yadav Rao Choukidar, Anurag, Vinay Ojha, Deena Nath. After collection of the evidence, charge sheet would be put up before the Court against these persons. So it can not be said that Investigating Agency is not doing anything against these persons. Apart from that 178 of Cr.P.C. prescribes that the Police Officer should be able to collect that evidence and sent it to the Magistrate if fresh material come to light then the police can re-open the case. Further investigation of the case by police subsequently to filing of charge sheet is permissible under Section 173(8) of the Cr.P.C.. So far as the discussion appears that there is no material irregularity and perversity of the impugned order of the trial Court.

Accordingly, this revision is dismissed.