State vs S.P. Jayagopal

K.M. Natarajan, J.—This revision petition is directed against the order of discharge of the Respondent/accused No. 6 in C.C. No. 1157 of

1990 on the file of the Judicial Magistrate No. 1 Kancheepuram u/s 239 Cr.P.C.

The brief facts of the prosecution case which are necessary for the disposal of this revision can be stated as follows: Accused 1 to 3 are the

licensed dealers in kerosene at Chengalpattu District. They forged documents purported to have been issued by the Civil Supplies Corporation in

respect of additional allotment of kerosene on the basis of a forged orders(13) from 19.8.1988 to 14.2.1989, for additional allotment of 2379 KL

of Kerosene meant for public distribution system. A communication was sent by Hindustan Petroleum Corporation regarding the allotment of

kerosene to the District Supply Officer. On verification it is found that A1 to A3 who are the wholesale kerosene licensed dealers committed an

offence of forgery and cheating by forging documents and taking delivery of kerosene. During investigation it was revealed that they transported the

kerosene through 4 tanker lorries belonging to A4 to A5 and hence charge sheet has been filed against A4 to A6 along with A1 to A3 for the

offence under Ss. 420, 467, 471 and 420 read with 109, I.P.C. The Respondent along with A4 and A5 filed a petition in C.C. No. 316 of 1991

to discharge them u/s 239 Code of Criminal Procedure The learned trial Magistrate for the reasons assigned in his order, allowed the petition so

far as the 6th accused is concerned and dismissed the petition as regards A4 and A5 are concerned. Aggrieved by the order of discharge in so far

as the 6th accused/Respondent is concerned, this revision is filed by the State.

The learned Government Advocate fairly submitted that though about 130 witnesses were examined during investigation and cited in the charge

sheet, only P.W.61 who is employed under the 6th accused/Respondent spoke about the involvement of A6. According to him/his statement itself

does not establish the participation of A6 in the offence alleged with the other accused. The fact that this transport contractor after paying money

obtained pay order for taking delivery of the kerosene and they used to transport kerosene and since as a Transport Contractor, the contract is

only to transport the goods at the destination, and he has gone beyond his jurisdiction, the same created suspicion in the mind of the prosecution.

The said suspicion itself is sufficient for framing a charge and in support of this contention, he relied on the decision of our Supreme Court, reported

in State of Bihar Vs. Ramesh Singh, , the learned Counsel for the Respondent vehemently argued that this witness No. 61 is employed under the

Respondent/6th accused and his evidence does not in any way connect the Respondent in this case. He further submitted that the Respondent is

running a transport corporation in the name of Jayawani Transports wherein 6 tankers and 5 lorries for carrying and are running. Besides that he

had got 25 lorries and that the witness and two other persons Allavudin and Selvam were attending the office work and also used to go to bank

and attend bank transaction and the maintenance of lorry work etc., and that A6 is having accounts in two banks in Karnataka Bank, Anna Nagar

and State Bank of Trivancore at Anna Nagar. He would state that A3 Kandaswamy kerosene dealer is a good friend of his master A6 and he

used to hire lorry for transporting kerosene. His further statement is that the pay order which was shown to him is in respect of the kerosene which

was transported, which was obtained from the bank, was obtained by another employee of the concern of A6 by name Durai. The said Durai has

not been examined. He would say that since A6 was having account in those banks, if it is put the address of Jayawani Transport which relates to

A6 transport, pay order would be issued immediately. For none of the pay orders, any cheque or any amount was drawn from A6 account. Only

money was paid in cash and pay order was obtained. Besides this evidence that A6 helped A3 in obtaining pay orders from the bank quickly there

is no other material to connect this A6 with the offence in question. P.W. No. 61 had no personal knowledge about obtaining the pay orders

referred to and it is not known under what circumstances they have been obtained. The competent person was only Durai. The said Durai has not

been examined. P.W. No. 61 evidence is only to the effect that the signature in the pay order slip is that of Durai beyond that his evidence is not in

any way helpful to the prosecution. The learned Counsel for the Petitioner vehemently argued that from his statement it is clear that since A6 is an

account holder of those banks, the bank obliged to issue pay orders and hence the pay order was drawn in the name of Jayawani Transport. It is

not the case of prosecution that any amount was withdrawn from the account of A6 and the pay order was obtained or that A6 paid his money

and he got the pay order. It is not the case of the prosecution that the amount utilised to obtain the pay order was that of the Respondent viz., A6.

Except he lent support to A3 in obtaining pay orders, there is nothing to show that A6 is directly or indirectly involved in the alleged conspiracy or

committed the offence either forgery or cheating as alleged. As regards transport is concerned, even according to the prosecution, they were

transported as usual from Tondiarpet to various destination. The learned Counsel for the Respondent submitted that the decision relied on by the

learned Government Advocate is not applicable to the facts of this case. In the decision reported in State of Bihar Vs. Ramesh Singh, it was held

as follows:

Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of

the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused had

committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused

Again it was observed as follows:

If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-

examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient

ground for proceeding with the trial.

The learned Counsel for the Respondent/accused submitted that the second part of the observation made by the Supreme Court in the decision

quoted above, is applicable to the facts of this case and even accepting the evidence of P.W.61 driver of A6 in toto, it cannot be said that A6 has

committed the offence and so, there is no sufficient ground for proceeding with the trial.

The learned Counsel for the Respondent also submitted that the finding of the learned trial Magistrate as against A6 is concerned is correct and he

is perfectly justified in discharging A6 viz., the Respondent herein. The facts involved in the above quoted was that at about 3.00 AM one Smt.

Tara Devi wife of the Respondent/accused was found burning in the kitchen of his house, A hulla was raised Chandreshwar Prasad Singh brother

of Tara Devi, who is Professor of Botany in the said college and lives nearby came to the scene of occurrence, and he found the Respondent and

his brother standing near the burning body of Tara Devi died apparently as a result of the extensive burn injuries on her person. Thereupon F.I.R.

was lodged and the Respondent was prosecuted. When the case was opened by the prosecution, as per Section 226 of the Code it was

contended on behalf of the Respondent that there was no sufficient ground for proceeding with the trial against the Respondent and accordingly

discharged the accused, and that matter went upto Supreme Court and the Supreme Court while allowing the appeal observed as follows:

The fact that Tare Devi died on unnatural death and there were burn injuries on her person does not seem to be in doubt or dispute. The question

to be decided at the trial court be whether the Respondent as is the prosecution case, had murdered her and set fire to her body or whether she

committed suicide by herself setting fire to it. This undoubtedly is a serious matter for decision at the trial. But at the stage of framing the charge

copious reference to Modi''s Medical Jurisprudence and judging the post-mortem report of the Doctor who performed the auto pay over the dead

body of the lady meticulously was not quite justified as has been done by the trial judge. According to the prosecution case, the Respondent was in

love with one of his girl students, named Kupur Ghosh and this led to the serious differences between the Respondent and his wife, the unfortunate

Tara Devi, inducing the former to clear the path of his misadventure in the manner alleged by the prosecution. On the other hand, the defence

seems to suggest that the alleged love affair of the Respondent led Tara Devi to commit suicide.

This has to be decided only at the final stage of the trial. Further at the time of the alleged occurrence he was present, his brother and members of

the family were there. A stricter proof will have to be applied for judging the guilt of the accused with reference to the various circumstantial

evidence against him. It is only, in that circumstances, a day prior to the occurrence the story of assault on Tara Devi by the Respondent, had given

her a threat to kill her arid accordingly allowed the appeal. There is absolutely nothing in this case to show that there is strong suspicion against A6

that he had committed any offence along with others. Hence the decision is not in any way helpful to the case of the prosecution. On a careful

consideration of the entire materials available on record, this Court is of the view that the charge against the Respondent/A6 is groundless and the

learned trial Magistrate is perfectly justified in discharging the accused No. 6 u/s 239 Code of Criminal Procedure and the order passed by the

learned trial Magistrate is perfectly legal and correct and it does not suffer from any infirmity, illegality so as to warrant this Court to interfere.

In the result, the order of discharge so far us this Respondent is concerned is confirmed and this revision fails and stands dismissed.