State (CBI) vs Partha Sanyal and Another

R.S. Mongia, C.J.—Heard Mr. D.K. Das, learned counsel for the petitioner and Mr. J.M. Choudhury, learned counsel appearing for the respondents.

The C.B.I. (SPE), Silchar had filed a case against Shri Partha Sanyal, Accountant, Indian Bank, Silchar and one Shri K. James, before the Special Judge, Assam, Guwahati u/s 419, 420, 467, 468, 471, IPC read with Section 13(1)(d) of the Prevention of Corruption Act. The case was registered as Special Case No. 1 l(C)/93. So far as the respondent, Partha Sanyal is concerned, the Special Judge discharged him, vide order dated 12.5.1995, and so far as respondent, K. James is concerned, it was held that since he was not a public servant, his case need not be tried by a Special Judge. This Criminal Revision was filed u/s 397, CrPC, against the order of discharge, dated 12.5.1995, against Shri Partha Sanyal. Though Shri K. James is also arrayed as a respondent, but no relief has been claimed by the petitioner, CBI.

It may be observed here that vide order dated 19.6.1997, Mr. Justice V.D. Gyani, a Judge of this Court (since retired) had accepted the revision petition and set aside the order dated 12.5.1995 discharging Shri Partha Sanyal. Shri Partha Sanyal filed Criminal Appeal No. 917 of 1998 before the Apex Court. The primary grievance made was that at the time the case was heard by the learned Judge of the High Court, he was not present. It may be observed here that the learned Judge of this Court had observed that despite service of notice, Shri Partha Sanyal had not entered appearance. However, the Apex Court, vide order dated 31.8.1998 set aside the order of this court dated 19.6.1997 and remanded the case for rehearing after hearing the respondent, Shri Partha Sanayal. Shri Partha Sanyal has put in appearance through his counsel, Shri J.M. Choudhury and Shri B.M. Choudhury.

In a nut shell, the prosecution story is that some person had submitted fictitious Income Tax returns purported to be of the assessees who were non-existent. Along with the Income Tax returns, some T.D.S. certificates were attached, which were allegedly fake and forged. This was with the idea to get refunds from the Income Tax Department. The alleged role played by the respondent, Shri Partha Sanyal, was that he as an accountant of the Bank was instrumental and facilitated in getting three accounts opened in the names of fictitious persons who are non-existent, at the behest of Shri K. James, who is stated to have impersonated. The further allegations are that Shri Sanyal facilitated the passing of the cheques.

The learned counsel for the respondent, Shri Partha Sanyal, submitted that whatever Shri Sanyal did in opening the accounts was perfectly legal and as per his duties in opening the accounts.

I have perused the order dated 12.5.1995 discharging the respondent, Shri Sanyal.

At the stage of framing the charge against an accused what is to be seen is that whether the prosecution allegations, if proved, constitute an offence. If the answer is in the affirmative, charge must be framed without going into as to what would be the defence of the accused. At the stage of framing the charge, the defence whatever is not to be gone into. The Apex Court in State of Maharashtra, Etc. Etc. Vs. Som Nath Thapa, Etc. Etc., observed as under :

"28. Before adverting to what was stated in R.S. Nayak Vs. A.R. Antulay and Another, let the view expressed in State of Karnataka Vs. L. Muniswamy and Others, be noted. Therein, Chandrachud, J. (as he then was) speaking for a three Judge Bench stated at page 119 (of SCR) ; (at pp. 1493-94 of AIR), that at the stage of framing charge the court has to apply its mind to the question whether or not there Is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person''s liberty substantially, need for proper consideration of material warranting such order was emphasised.

What was stated in this regard in Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia and Another, which was quoted with approval in paragraph 78 of State of West Bengal and another Vs. Mohammed Khalid and others, is that what the court has to see, while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime. No more is required to be inquired into.

In R.S. Nayak Vs. A.R. Antulay and Another, Bhagwati, CJ opined, after noting the difference in the language of the three pairs of Section, that despite the difference there is no scope for doubt that at the stage at which the Court is required to consider the question of framing be charge, the test of ''prima facie'' case has to be applied. According to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima facie case against him exists, and so, frame charge against him for committing that offence."

Let us note the meaning of the word ''presume''. In Black''s Law Dictionary, it has been defined to mean ''to believe or accept upon probable evidence''. (Emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law ''presume'' means ''to take as proved until evidence to the contrary is forthcoming''. Stround''s Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of the fact alleged". In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.

The aforesaid shows that if on the basis of materials on record, a Court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently. If the Court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."

The prosecution cannot be allowed to be scuttled at the stage of framing the charge. In a later authority of the Apex Court, reported as State of M.P. Vs. S.B. Johari and Others, it was observed that at the time of framing the charge, the court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction of the accused. If the court is satisfied that a prima facie case is made out for proceeding further, then charge has to be framed. The charge could be quashed if the evidence which the prosecution 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 the accused committed the particular offence. In other words, minus the defence or the challenge of the prosecution evidence in the cross-examination, if the court finds that there is sufficient material to proceed with the case, charge must be framed.

From the materials on record, I find that the trial court was not justified in discharging the accused, Shri Partha Sanyal. Consequently, I accept this revision petition and quash the order of the trial court dated 12.5.1995. The trial court is directed to proceed in the matter expeditiously and conclude the trial, preferably within one year. Needless to mention that any observation made above would in no way prejudice the trial court during the trial.