Tulsiram vs The State

K.N. Phaneendra, J—The revision petitioner has called in question the order passed by the Principal District & Sessions Judge, Bidar in Spl. C.C. No. 50/2011 in rejecting his application filed u/S 239 of the Cr.P.C. and refused to discharge the accused in the said case vide order dated 21.08.2014. The petitioner has sought before this Court to set aside the said order passed by the learned Sessions Judge.

Before adverting to the legal and factual aspects involve in this particular case it is just and necessary to bare in mind the brief factual matrix of the case.

The records disclose that the accused has been working as First Division Assistant in Sericulture Department. On the source information received by the Deputy Superintendent of Police with regard to amassing of wealth, the Deputy Superintendent of Police attached to Lokayuktha has prepared a source report on 27.12.2008 and thereafter F.I.R. was lodged before the Karnataka Lokayuktha, Bidar Police Station in Crime No. 9/2008 on 29.12.2008 against the petitioner for the offences punishable under Sections 13(1)(I)(e) r/w Sec. 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as ''P.C. Act'' for short). After registration of the case the Investigating Officer obtained search warrant from the Special Court and in fact search was effectively done on 30.12.2008 and during the course of the search of the house of the petitioner at Bangalore and house of the petitioner at Bidar, the Investigating Officer has seized certain articles and also documentary evidence against the petitioner under different panchanamas. After collection of the entire materials against the accused, the accused was also called upon to submit his statement and in fact the petitioner has also submitted a detailed statement along with several documents explaining the assets, expenditure and income of the petitioner and his family members for the check period. After completion of the investigation a final report was submitted holding that the check period between 07.02.1983 to 29.12.2008 the petitioner was possessing disproportionate assets to the extent of Rs. 16,01,098/- which is amounting to excess of his known source of income to 35.94%. After filing of the charge sheet the Special Judge, Bidar, has taken cognizance and issued summons to the accused and in pursuance of the same he appeared before the Court and filed application under Section 239 of Cr.P.C. seeking his discharge on various grounds. During the course of arguments the revision petitioner and the Special Public Prosecutor filed detailed objections and also written arguments. After hearing arguments the Special Judge, Bidar, rejected the said application vide impugned orders.

Learned counsel for the petitioner arguing at length and in detail, submitted that the learned Special Judge has not properly weighed the materials on record particularly the papers collected by the Investigating Officer which are actually in favour of the accused though not they are part and parcel of the charge sheet papers. Nevertheless in a different file the said papers have also been produced before the Court, which totally lost the sight of the learned Special Judge. It is also specifically contended that the accused has given a clear explanation for the disproportionate alleged asset to the extent of Rs. 16,01,098/- shown. It is the specific contention taken up by the accused as argued by the learned counsel that the total assets acquired by the petitioner was calculated at Rs. 20,62,918/-, the expenditure calculated was at Rs. 39,91,944/-. Therefore, the total assets and expenditure was calculated to Rs. 60,54,862/-. The total known source of income as per the prosecution itself is Rs. 44,53,764/-. Therefore it was calculated that the disproportionate asset was Rs. 16,01,098/-. It is stated that out of the said assets and expenditure if 10% margin of the benefit in the total income is provided, then the disproportionate assets will come down to hardly Rs. 11,55,722/- and that has to be explained by the accused for his discharge.

The learned counsel further argued that the petitioner has categorically stated about his agricultural properties and how he has acquired those properties and also the agreements of sale in respect of the properties held by him and acquired the amount out of the lease agreement dated 16.06.1998, etc. but these materials have not been properly considered and appreciated by the trial Court and brushed aside the said documents only on the ground that source of those properties have not been explained by the accused.

The trial Court also has not even looked into the income acquired by the petitioner by way of rents. Though the I.O. has reckoned the electricity bill to the extent of Rs. 53,077/- wherein it is wrongly calculated as against Rs. 10,072/- as per volume No. 7 page No. 601. This particular aspect has also not been taken into consideration while calculating the amount. The learned counsel has also argued that the affidavits filed by the tenants at page No. 195 and 196 volume nil, lease agreement at page Nos. 183, 184, 205 to 208 of the volume nil and also the statements at page No. 734 at volume No. 8 have not been looked into by the Court, which show that the petitioner has acquired a sum of Rs. 4,53,000/- by way of rents and that has not been taken into consideration by the I.O.

It is also contended that, at the time of joining service itself the petitioner declared that he has got gold ornaments worth Rs. 2,84,680/-, silver items valued at worth Rs. 1,200/- and gold ornaments in bank locker worth Rs. 5,800/-. Though these are declared in the first A.P.R. itself, as per volume No. 3 page No. 103 and 113, the learned Special Judge has totally ignored all these aspects and no explanation has been given in the orders.

Learned counsel also contended that the petitioner has a family business of sheep and goat rearing and his wife and mother have been doing the said business right from the beginning and they have earned lot of money particularly his wife has earned Rs. 4,90,620/- and mother has earned Rs. 23,48,681/-. In this regard the police themselves have collected the documents at page No. 68 to 110 in volume nil and the certificate issued by the competent authority at page No. 12 to 38 in volume nil and Goat Census Certificates at 39 to 58 in the schedule mentioned and panchanama conducted by the I.O. and the photograph at page Nos. 63 to 67 and the certificate issued by the Veterinary Deputy Director at page Nos. 1 to 8 and the statements and affidavits of the witnesses at page No. 103 to 138 in volume No. 3 have also not been looked into by the learned Special Judge to consider whether the said income has properly been taken into consideration by the I.O. or not.

It is further argued before the Court that the expenditure of the family is taken as Rs. 9,00,000/- including the mother and the wife of the petitioner. Mother''s income has not been taken into consideration by the I.O. but the expenditure of the mother has been added to the petitioner. Therefore, when expenditure alone is taken income also ought to have been taken to some extent. But, that has not been taken into consideration and this is also evidenced by the Investigation papers itself not considered by the trial Court. At least if expenditure of mother is not added to expenditure, expenditure would be reduced by Rs. 3,00,000/-. Such benefit is not at all given.

It is specifically contended further that the petitioner has entered into an agreement to sell a land measuring 1 1/2 acre at Bidar for a sum of Rs. 96.00 lakhs and received an amount of Rs. 60.00 lakhs as advance pertaining to this document the I.O. has also collected lot of documents which are at page No. 183 in volume No. 3 page No. 161 to 164 in volume nil and statements of the witnesses have also been recorded by the I.O. but these documents have not been looked into to ascertain prima facie whether there are any substance in the said documents but the learned Judge has not looked into but in one sentence stated that the accused has not produced any material to show how he actually acquired this property.

Learned counsel lastly contended that the agricultural income has not been properly considered by the Court though expenditure has been taken into consideration. The agricultural income was taken as Rs. 25.00 lakhs though the accused has given records for Rs. 73.00 lakhs. The expenditure to the extent of 9.60 lakhs has been taken into consideration when the agricultural income is taken to the extent of 50%, the expenditure also should have been taken to an extent of 50%. Therefore, there is calculation of more than Rs. 4,80,000/- in that regard is not properly appreciated and considered by the I.O. The rentals received by the accused from leasing the house property has also not been properly considered, though the electricity bills paid by the accused has been taken as expenditure, the statement of the tenants and other materials collected by the I.O. though produced before the Court in a separate file, has not been considered by the trial Court. Therefore, the trial Court has not looked into the materials on record but only on the ground that the accused has not at this stage shown to the Court how he acquired the immovable properties and on that ground alone the petition has been dismissed, which is erroneous.

Learned counsel has cited several rulings in this regard, which, I am going to discuss little later.

Countering the above said arguments of the learned counsel for the petitioner and learned counsel Sri. Kumman appearing for Lokayuktha Police, Bidar, submitted before this Court in support of the objections filed by the prosecution before the trial Court stating that though the I.O. has fairly collected lot of materials but the prosecution has only relied upon the documents which are submitted along with the charge sheet only. Rest of the documents produced before the Court cannot be looked into by the Court to ascertain whether there is any prima facie material to frame charges against the accused. He further contends that on perusal of the documents and statement of witnesses there are sufficient materials to show that there is disproportionate assets held by the accused. Therefore, the trial Court has properly appreciated the materials on record and dismissed the application.

It is also contended by the learned counsel that, for the purpose of framing charges there is no need for the Court to give detailed judgment on the orders but it would suffice if it peruses the records and come to the conclusion that there is suspicion with regard to the complicity of the accused regarding the crime alleged against him. It is further submitted by the learned counsel that the landed properties which are in the name of the wife of the accused and mother of the accused for which source of acquisition of those properties have not been stated by the accused. Moreover the properties that is sy. No. 108 measuring 8 acres 13 guntas which is the property taken on lease in the name of Girish. The said person is a close relative of the brother of Shobha, who is the wife of the accused. Therefore, in the absence of sufficient materials to show the source for acquisition of the said property, it cannot be taken into consideration. It is also submitted by the learned counsel that so far as the house properties are concerned as income by way of rent is concerned, the accused or his wife has not filed income tax returns. Therefore, those income by way of rent cannot be taken as income. Further, it is submitted that the gold and silver articles which were declared even much prior to joining the duty but he has not produced any documents to show existence of those properties at the time of joining the duty. Further, it is submitted that the wife of the accused is the owner of sy. No. 136/2 to the extent of 26 guntas but she sold an extent of 1 acre 32 guntas without there being any power of attorney from the mother of the accused in whose name the remaining property stands.

The said power of attorney has not been produced in time before the I.O. Therefore, it is submitted the I.O. has properly considered all the materials available on record and the trial Court has also considered the above said factual aspects and dismissed the application and therefore it does not call for any interference at the hands of this Court.

After hearing the learned counsels I have carefully perused the order passed by the trial Court. The trial court upto page No. 16 of its order referred to the arguments and counter arguments of the counsels for the accused and the prosecution. The opinion expressed by the learned Judge is at para Nos. 17 to 19. The reasons given by the learned Judge is with reference to only one aspect of the matter. It is observed by the learned Judge that one has to show lawful source of acquisition of the properties. Just because the delinquent official intimated as per law or the rules it does not mean to say that he has acquired those properties by lawful source. Though in the APRs the accused has regularly stated about the acquisition of properties that is not the sufficient criteria unless he shows what is the lawful source for acquisition of the property. The accused has failed to explain by means of cogent and convincing material before the Court with regard to lawful source for acquisition of his properties.

It is further observed by the trial Court that there is no whisper by the accused that he had got any ancestral property inherited from his father or forefathers and he has acquired certain income to the extent of 73.50 lakhs on the ground that there was agreement between one Girish, brother of wife of the accused about giving 40 acres 3 guntas to the wife of the accused.

Learned Judge has also observed that the accused has stated that the agricultural income of Rs. 73.50 lakhs, but it has not considered what exactly the income taken by the I.O. out of the agricultural income and what is the deduction that has been given to agricultural expenditure which was taken at Rs. 9.00 lakhs and odd but the income has been taken at Rs. 25.00 lakhs which is 50% of the agricultural income taken as income by the I.O. but the expenditure is taken as full to the extent of Rs. 9.00 lakhs. The expenditure also should have been taken to the extent of 50% which extends remaining amount of Rs. 4,60,000/- taken excess by the I.O. that has not been properly considered by the trial Court. The trial Court has not at all considered the remaining aspects of the matter with regard to the rentals and also with regard to the goat rearing by the accused and his family members and also the other income as stated by the accused and as argued before this Court by the learned counsel which is detailed by me earlier.

The trial Court in fact as could be seen from the order, has not stated anywhere what are the specific documents perused by it out of the materials collected by the I.O. but it has only stated that just because the accused has declared his income & expenditure and assets & liabilities in the A.P.R. does not get converted into known source of income. Except in several places observing in such a manner the trial Court has not considered the other aspects of the matter, with reference to the entire materials produced by the I.O. fairly unmindful and whether it is in favour of the accused or the prosecution.

Learned counsel for the respondent has also not raised any objection before this Court with regard to the production of the entire materials by the I.O. whether it goes in favour of the accused or in favour of the prosecution, to that extent the I.O. is very fair. But he only concentrated on the arguments that there is no need for the Court to give a detailed discussion with regard to the materials on record for the purpose of framing of charges. In this regard he has relied upon a decision reported in Smt. Om Wati and Another Vs. State, through Delhi Admn. and Others, AIR 2001 SC 1507 : (2001) CriLJ 1723 : (2001) 2 Crimes 59 : (2001) 3 JT 585 : (2001) 2 SCALE 505 : (2001) 4 SCC 333 : (2001) 2 SCR 482 : (2001) AIRSCW 1230 : (2001) 2 Supreme 423 and another Vs. State, Through Delhi Admn. And Others), wherein the Apex Court has observed that:

"Court is required to record its reasons only if it decides to discharge the accused but it is not required to do so if it is to frame charges against the accused."

But, in the same decision it is also observed that:

"Court on perusal of evidence has only to find out whether there exists sufficient ground so that a prima facie case is not made out to proceed against the accused. It is only when even accepting as it is the evidence, which prosecution proposes to adduce, no case is made out against the accused, court can discharge him. The High Court should not ordinarily interfere with trial court''s order for framing of charges unless there is glaring injustice."

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The above said ruling clearly discloses that the Court has to apply its mind to the materials available on record produced by the I.O. in order to ascertain whether the materials on record could be accepted on their face value and whether it is sufficient to frame charges and proceed against the accused. Therefore, the said ruling in my opinion is not only favourable to the prosecution but also to the accused. The grounds urged before this Court as noted above is of multi faceted, the learned counsel has not only urged before this Court on various aspects but also he has specifically pointed out documents which are produced by the I.O. during the course of investigation in several volumes and also without giving any number to a volume which is referred to as volume-nil, he has also produced certain materials which are favourable to the accused.

On careful perusal of the arguments of the learned counsel and also the documents placed before the Court, it clearly reveals that the I.O. has not only produced certain documents in support of the charge sheet but also produced certain documents in a separate volume stating that they are separately placed and they are not part and parcel of the charge sheet papers. I have carefully with all curiosity perused the said documents. In the separate volume which is not numbered, which is referred to as volume number nil the I.O. has produced bills and receipts issued by Bhavani Sugar Factory to the extent of Rs. 41,58,431/- at pages 26 to 178 and 147 to 153. The A.P.M.C. receipts to the tune of Rs. 26,36,564/- at the said volume at page Nos. 110 to 146 showing the agricultural income of the accused, etc. the volume number nil at pages 179 to 181 also shows net income of the mother of the accused through agriculture to the tune of Rs. 7,36,365/- but the trial Court has not considered these documents. Whatever may be the evidentiary value the Court may attach to these documents but the Court has to look into these documents before passing any orders. The I.O. has taken 50% of the agricultural income of the accused but the expenditure is taken at Rs. 9,20,000/- to the fuller extent and not to the extent of 50% proportionately. The Special Judge, in fact, has not considered and reasoned out this particular aspect to resolve the anomaly.

On perusal of the other documents, the electricity bill was reckoned at Rs. 53,077/- vide volume No. 7. The I.O. has also recorded the statements of the tenants and also the affidavits of the parties in the separate volume number nil at pages 195 and 196 and lease agreement at pages 183, 184 and 205 to 208 and receipts for payment by the witnesses at page Nos. 7 and 8 and the payment of Rs. 4,53,000/- by the tenants, etc. All these materials were collected by the I.O. during the course of investigation. As could be seen from the orders of the trial Court these are all the documents which are not looked into by the trial Court at all. What is the evidentiary value that could be attached to these documents have to be verified by the Court only after perusal of these documents with reference to the income arising out of leasing the house property by the accused to his tenants.

As could be seen from the order of the trial Court, the income from sheep and goat rearing earned by the wife and mother of the accused, the documents pertaining to these transactions have not even looked into by the trial Court. The documents which are at page Nos. 68 to 110 in volume number nil the sale receipts issued by P.D.O. and the Goat Census Certificate at page Nos. 39 to 58 in volume No. 1 and Goat Rearing Certificate at page Nos. 12 to 38 in volume number nil and the panchanama prepared by the I.O. with reference to Goat Rearing at volume number nil page Nos. 59 to 62 and the certificate issued by the Veterinary Deputy Director at volume number nil at page No. 128, affidavit of one Siddappa and also the document showing income from Goat Rearing, i.e., APR produced at volume number 3 pages 103 to 138. All these documents are not actually produced by the accused but collected by the I.O. during the course of investigation. These are all the important materials which are collected by the I.O. have not been looked into by the trial Court and are as conspicuously absent in the order of the learned Special Judge. The learned Special Judge ought to have perused these materials to ascertain what evidentiary value could be attached to them.

Apart from the above, it is the case of the accused that he has entered into an agreement to sell the land measuring 1 1/2 acres at Bidar for a sum of Rs. 90 lakhs and had received demand draft for Rs. 60 lakhs in advance. In respect of the transaction the I.O. has also collected the document that is the said agreements at pages 183 of volume No. 3 and page Nos. 161 to 164 at volume number nil and also the statement of the witnesses recorded by the I.O. in volume number nil page Nos. 167 to 189. These material statement of witnesses and documents have also not been referred to and considered by the trial Court. Therefore, looking from the above said factual aspects and the grounds urged by the accused before the trial Court, the trial Court has not considered the materials which are collected by the I.O. apart from the materials submitted along with the charge sheet. The said materials, according to the accused, collected by the I.O. during the investigation are favourable to the accused if those documents and statement of the witnesses and materials would have been looked into by the trial Court it would have discharged the accused.

As the trial Court has not made out any attempts even to consider and discuss the veracity and value of those documents and statements of the witnesses to consider whether it is a fit case to proceed against the accused or not, in such an eventuality the order is not sustainable.

Further, the trial Court has mainly concentrated on the fact that with regard to the property purchased by the wife and mother of the accused and the house property in the name of the accused and his wife and observed that the accused has not disclosed source of income for acquiring these properties. It is to be noted here that, on overall analysis of the entire material on record the prosecution wants to say that only to the extent of Rs. 16 lakhs and odd the amount is in excess to the known source of income of the accused. Therefore, excluding 10% out of the same the accused has to give his explanation. The accused has to explain only the source for the remaining amount and it is not for the purpose of acquisition of the entire properties which are investigated by the I.O. This particular ground taken by the accused has also not been properly appreciated by the trial Court. In this background the learned counsel has cited several rulings as to how the Court has to act upon the materials on record and what is the duty of the Court while dealing with the application u/S 239 of Cr.P.C.

In a decision reported in State of Madhya Pradesh Vs. Mohanlal Soni, AIR 2000 SC 2583 : (2000) CriLJ 3504 : (2000) 8 JT 333 : (2000) 5 SCALE 197 : (2000) 6 SCC 338 : (2000) 2 UJ 1182 : (2000) AIRSCW 2674 : (2000) 5 Supreme 139 the Hon''ble Apex Court has observed in the following manner.

"At the stage of framing charges the Court has to prima facie consider whether there is any sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence to conclude whether 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. Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence, then the charge can be quashed.

In the normal course the documents in question in the present case could not have been prepared in anticipation that the respondent would have to face such charges on a future date. The documents being the orders of assessment or returns filed with the Income Tax Authorities on their face value supported the case of the respondent. There was no bar to consider the material on record in the case on hand, which was collected during the course of investigation and produced before the Court."

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This ruling in fact is to be borne in mind not only for the purpose of filing of Income Tax Returns but also for the purpose of considering the APR filed by the accused. This equally can be stated that the accused could not have prepared in anticipation that he has to face such charges in future when he filed his first APR declaring his gold and silver articles to the concerned authorities. The trial Court should bear in mind these things while considering the first A.P.R. filed.

In another ruling reported in Niranjan Singh Karam Singh Punjabi and Others Vs. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962 : (1990) CriLJ 1869 : (1990) 3 JT 408 : (1990) 2 SCALE 193 : (1990) 4 SCC 76 : (1990) 3 SCR 633 connected with other appeals, the Apex Court has observed in the following manner.

"The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. In exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial"

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If this ruling is understood in a proper manner it is not that the Court has to conduct a mini trial but it necessarily look into all the documents produced before the Court by the prosecution in order to ascertain whether there are sufficient grounds to proceed against the accused or if there are any other materials which gives rise to a strong suspicion with regard to the complicity of the accused in the crime as alleged by the prosecution. Therefore, a balance has to be struck by the Court in sifting and weighing or evaluating the materials produced by the prosecution. That means to say though roving enquiry is not necessary on the materials placed but it is imperative that the Court has to at least look into the materials produced by the Prosecution to satisfy itself whether it is in favour of the accused or in favour of the prosecution.

As noted above, in this particular case the learned Special Judge has only referred with regard to only one circumstance that is the agricultural properties acquired by the accused and that he has not made any efforts to look into the other materials produced by the prosecution at all with regard to the Goat Rearing, rentals received, selling of the properties by the wife and also the power of attorney of the mother of the accused given in favour of the wife etc.

In another ruling which is a very important ruling so far as this case is concerned, reported in 2007 DGLS (AHC) 6703 rendered by Delhi High Court wherein the Delhi High Court has stated that:

"The Court while framing charges may not take into account the defense of the accused or the documents in custody of the accused which were not produced by the accused before the Investigating Officer or which did not form part of the investigation but the Court is duty bound to consider the evidence collected by the Investigating Officer during the investigation of the case. If it is brought to the notice of the Court by the accused that some of the evidence or documents have been withheld by the Investigating Officer or the prosecution deliberately, so that truth does not come out before the Court, the Court, before framing of charge can order the Investigating Officer to place the entire investigation before it and ask for him to produce case diaries. Fair investigation is the right of the accused and this right can be exercised by the accused at the time of charge and the accused can insist upon the Court to consider the evidence collected by the Investigating Officer but has not made part of the charge sheet."

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In another ruling reported in State of Madhya Pradesh Vs. Sheetla Sahai and Others, (2009) CriLJ 4436 : (2009) 10 JT 388 : (2009) 10 SCALE 632 : (2009) 8 SCC 617 : (2009) 13 SCR 1048 : (2009) AIRSCW 5514 wherein the Apex Court has observed as follows:

"At the time of framing of charges material brought on record whether disclose commission of offence or not must be determined having regard to entirety of materials brought on record by prosecution and not on part of it. Plea that Court at time of framing of charge could only look to those materials whereupon prosecution intended to rely upon and ignore other which are in favour of accused not tenable."

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In view of the above rulings it is crystal clear that if the accused has produced any materials before the I.O. or if the Investigating Officer himself has collected some materials though they are not part and parcel of the charge sheet and not relied upon by the prosecution or propose those materials to be produced at the time of the trial, but, if those documentary evidence or statement of the witnesses collected by the I.O. or produced by the accused before the I.O. doing investigation those documents and statement of the witnesses also relevant for the purpose of considering whether there is any prima facie material to proceed against the accused for framing of the charges. It should not be misunderstood that whatever documents that are produced by the accused before the Court which is neither produced before the I.O. during the investigation nor collected by the I.O. shall also be considered by the Court. But it is plain and clear that those materials collected by the I.O. during the course of the investigation though may not as part and parcel of the charge sheet but separately produced before the Court, those documents, statement of witnesses and the materials shall also be looked into by the Court for the purpose of ascertaining prima facie case against the accused.

In this regard it is also worth to note here a decision of the apex Court reported in Hardeep Singh Vs. State of Punjab and Others etc. etc., AIR 2014 SC 1400 : (2014) CriLJ 1118 : (2014) 1 JT 412 : (2014) 1 SCALE 241 : (2014) 3 SCC 92 AND CONNECTED APPEALS, relying upon its own decision

"At the stage of framing of charges under the provisions of Sections 227 and 228 of Cr.P.C. the Court is required to evaluate the materials and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as the gospel truth even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground "for presuming that the accused has committed the offence" or that there is not 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."

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In view of the above said decisions it is clear that the Court can sift and evaluate materials on record though not appreciate the materials collected by the I.O. The Court has to assess the materials on record on their face value and consider whether accepting the documents on their face value whether it makes out a case against the accused to proceed against him to frame charge.

Looking from the above facts and circumstances of this case and in view of the above said rulings with reference to the order passed by the trial Court, the trial Court has not made out any efforts to look into all the documents produced by the I.O. including the documents which are alleged to be in support of the accused which are kept in the separate volumes unnumbered. According to the accused these materials, if they were properly sifted and evaluated for the purpose of ascertaining the prima facie case, the same would disclose that the prosecution has no prima facie case and the accused has successfully explained the difference of amount as claimed by the prosecution and even he has got more source of income and there is absolutely no disproportionate assets compared to his income.

In view of the above said facts and circumstances, I am of the opinion that the trial Court has to make all its endeavour to look into all the materials on record and then it has to come to a conclusion whether there are materials to proceed against the accused or not, that has not been done in this case.

In similar facts and circumstances this Court in a case in Crl. R.P. No. 766/2011 dated 26.07.2011 has observed that under such circumstances the matter requires to be remitted to the trial Court for fresh disposal. The observation at paragraph No. 3 is as under:

"3. The main grievance of the learned counsel for the petitioner is that, the petitioner has filed voluminous documents before the investigating officer himself and they were not taken into consideration by the investigating officer and, had those documents been taken note of there would have been no case to proceed against the petitioner. Learned counsel referred to the statements which are at Annexed to the present petition and submitted that even the said statements would make out no case against the petitioner. That apart, the trial Court has not passed an order which could be considered as the order passed after considering the arguments addressed by the petitioner''s counsel. Therefore the impugned order be set aside and the petitioner be given liberty to make the application seeking discharge from the case."

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The above observation made on relying upon a ruling of the Apex Court in Rukmini Narvekar Vs. Vijaya Satardekar and Others, AIR 2009 SC 1013 : (2009) CLT 104 : (2009) CriLJ 822 : (2008) 11 JT 32 : (2008) 13 SCALE 523 : (2008) 14 SCC 1 : (2009) AIRSCW 118 and also the case in Harshendra Kumar D. Vs. Rebatilata Koley Etc., AIR 2011 SC 1090 : (2010) 1 BC 685 : (2011) 101 CLA 330 : (2011) 162 CompCas 247 : (2011) CriLJ 1626 : (2011) 1 Crimes 280 : (2011) 1 JCC 42 : (2011) 1 RCR(Criminal) 887 : (2011) 2 SCALE 278 : (2011) 3 SCC 351 : (2011) 1 SCC(Cri) 1139 : (2011) 106 SCL 159 : (2011) 2 SCR 670 : (2011) AIRSCW 1199 : (2012) AIRSCW 323 : (2011) 1 Supreme 742 : (2011) 8 Supreme 523 held that:

"If the materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, the trial Court cannot refuse to take a look at the uncontroverted facts and therefore, the trial Court be directed to consider the prayer of the petitioner for discharge."

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The Apex Court observed in Rukmini Narvekar''s case that

"there may be circumstances where the defence material would convince the Court that the prosecution version is totally absurd or preposterous and concocted, under such rare and exceptional cases, the defence could be permitted to place the material."

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Considering the above said rulings this Court has directed the accused to file application for discharge and thereafter the application be disposed of in accordance with law.

On consideration of all the facts, circumstances and rulings, though the learned counsel has called upon this Court to look into all the materials on record and give a finding with regard to the prima facie case against the accused but when the trial Court has not bestowed its attention to all the materials on record and not recorded its finding on those materials with regard to the prima facie material to proceed against the accused for framing charges or for his discharge, it may not be proper on the part of this Court, to step into the shoes of the trial Court to rely upon the materials which were not relied upon by the trial Court and to pass any order.

Under the above said circumstances, I feel it is just and necessary to remand the matter to the trial Court with a specific direction as to how the Court has to consider the materials on record. Hence, I proceed to pass the following order.

ORDER

Petition is allowed. Consequently, the order passed by the learned Sessions Judge in SPL. C.C. No. 50/2011 on the application filed under Section 239 Cr.P.C. dated 21.08.2014 is hereby set aside. Matter is remitted to the trial Court with a specific direction that the trial Court has to consider all the documentary evidence and statements of all the witnesses which are produced by the I.O. in all the volumes including unnumbered volume (mentioned as volume-nil) as noted in the body of the order and the documents relied upon by the accused and also the explanation offered by the accused explaining with regard to the disproportionate assets as claimed by the prosecution and further the trial Court has to bestow its attention to the above said observations by this Court and the rulings relied upon by the accused as noted above and thereafter pass appropriate order on application under Section 239 of Cr.P.C.

Office is hereby directed to return the records to the trial Court for compliance forthwith.