Allowed

Atul Kumar v. the State of Jharkhand

Jharkhand HC8 May 2019Cr.M.P./4355/2018

Case brief

AI extract

What is this about?

High Court quashed the order summoning government servants as accused under Section 319 Cr.P.C, holding the trial court committed gross error and perversity by inferring complicity without material evidence and without obtaining mandatory sanction under Section 197 Cr.P.C.

What did the court decide?

The order dated 25.07.2018 summoning petitioners under Section 319 Cr.P.C is quashed.

Atul Kumar Vs the State of Jharkhand — Civil Procedure and Limitation | Jharkhand HC (2019)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M.P. No.4348 of 2018

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Vivek Kumar Mehta ….. Petitioner Versus The State of Jharkhand ….. Opp. Party

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With Cr. M.P. No.4355 of 2018 Atul Kumar ….. Petitioner Versus The State of Jharkhand ….. Opp. Party

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CORAM: HON'BLE MR. JUSTICE AMITAV K. GUPTA

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For the Petitioners : Mr. M. A. Niyazi, Advocate Mr. Ravi Ranjan, Advocate Mr. Anil Kumar, Advocate For the State : Mr. Ashok Kumar, A.P.P. ---------

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05/Dated: 8th May, 2019

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1. These miscellaneous petitions, have been filed for quashing the order dated 25.07.2018, passed by learned Judicial Magistrate, 1^st Class, Hazaribagh, whereby the petitioners have been summoned under Section 319 Cr.P.C to face trial alongwith the sole accused Braj Kishore Sharma, for the charges under Sections 420, 406 467, 468, 471 and 409 of the Indian Penal Code, in connection with Barhi P.S. Case No.335 of 2014, corresponding to G.R. No.4467 of 2014.

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Since both the miscellaneous petitions are directed against the order dated 25.07.2018, accordingly, they are heard together and are being disposed of by this common order.

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2. Mr. M. A. Niyazi, learned counsel, for the petitioners, has submitted that the petitioners were posted as Block Development Officers, Barhi Block, during the period when the alleged defalcation of public money by accused Braj Kishore Sharma had taken place. It is submitted that the petitioner Vivek Kumar Mehta was posted as Block Development Officer (B.D.O.), at the relevant time, and had lodged the F.I.R., being Barhi P.S. Case No.335 of 2014 on the basis of the audit report wherein misappropriation and

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defalcation of public money was detected. That, an enquiry was conducted by the Sub-Divisional Officer, Barhi on 17.02.2017, while a three member Enquiry Committee comprising of Director, D.R.D.A., Hazaribagh, District Education Officer and District Accounts Officer, Hazaribagh, submitted its report on 25.05.2017. In both the enquiry reports there was a categorical finding that the amount was defalcated and deposited in the bank account of the sole accused, Braj Kishore Sharma who had subsequently refunded approximately Rs.3,00,000/- out of the embezzled amount of approximately Rs.22,00,000/-, as would be evident from the bank statements of Braj Kishore Sharma, annexed with the present petitions. In the enquiry reports of the SubDivisional Officer and the three members Committee, no involvement of the petitioners was made out.

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3. It is further submitted that Braj Kishore Sharma was alleged to have changed the actual amount in the cheque through interpolation by prefixing numbers and words. As such, he had withdrawn money in excess of the actual amount mentioned in the cheque appropriating the excess amount by depositing the same in his own bank account. It is submitted that these petitioners had signed on the cheques, cash register and the cheque issue register against the actual amount but one Braj Kishore Sharma fraudulantly prepared the Advices of excess amount, before depositing the cheques in the Bank.

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4. Learned counsel further submitted that during trial the aforesaid documents and the enquiry reports were produced by the prosecution in the court below and the documents reveal that the petitioners were not involved in misappropriation or embezzlement of public money. The petitioner Vivek Kumar Mehta was examined as P.W.-5, and during cross-examination he had testified that he had signed the cheques for the actual amount. The court below, however, on the basis of the deposition of P.W.-5 has summoned these petitioners under Section 319 Cr.P.C to face trial along with the sole accused Braj Kishore Sharma without appreciating the fact that this case was lodged against the sole accused Braj Kishore Sharma who had committed forgery by

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interpolating numbers and words of the actual amount mentioned in the cheques bearing the signature of these petitioners. It is argued that the testimony of P.W.-5 cannot be treated as an admission that he had signed the cheque for an amount which was encashed by the sole accused Braj Kishore Sharma.

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5. Learned counsel during the course of his argument submitted that Hon'ble Supreme Court in its judgment as reported in Hardeep Singh Vs. State of Punjab & Ors; (2014) 3 SCC 92, has elaborately considered and discussed the meaning and usage of word 'evidence' of the Evidence Act and has held that it includes, the evidence tested on cross-examination. According to the learned counsel, the well settled legal proposition is that while exercising powers under Section 319 Cr.P.C., the court has to be satisfied that the evidence is of such degree which in all probability will lead to conviction of the person summoned to be arrayed as an accused along with the accused already facing the trial. The court below has committed a manifest error in summoning the petitioners to face the trial as an accused under Section 319 Cr.P.C without appreciating the fact, that there is no material evidence on record to show that these petitioners had ever signed the fraudulent Advice/ Advices prepared by the sole accused Braj Kishore Sharma. During trial, statement of the sole accused has also been recorded who has nowhere stated that he had altered the Advice/ Advices, on the instruction of the petitioners or the excess amount was withdrawn by him in connivance with these petitioners. He has further submitted that the satisfaction which is to be arrived at by the court for summoning a person under Section 319 Cr.P.C is to be recorded on the basis of the material evidences available on record. In the instant case, as is evident from the impugned order, the court below has misinterpreted and misconstrued the deposition of P.W.-5, and as such committed perversity in arriving at the conclusion that the petitioners have admitted to have signed for the interpolated/ excess amount of the cheques.

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6. Learned counsel has further submitted that in terms of Section 197 Cr.P.C, sanction is required to be obtained from

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the competent authority for prosecution of any government servant. Moreover, the petitioners ought to have been given an opportunity of hearing before being arraigned as an accused under Section 319 Cr.P.C.

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On the above grounds, learned counsel has contended that the order dated 25.07.2018, is not tenable in law or on facts and deserves to be quashed.

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7. Mr. Ashok Kumar, learned A.P.P. has submitted that no error has been committed by the court below because the documents available on record can be looked into by the trial court during the trial. According to him the question of sanction is not to be looked into when summons are to be issued and it can be considered by the court below after the appearance of the petitioners. Moreover, sanction is required at the stage of cognizance while in the instant case, only summons have been issued and the stage of cognizance has not yet been reached.

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8. Heard the learned counsels for the parties. It is pertinent to notice that in the case of Hardeep Singh (Supra), Hon'ble the Supreme Court has elaborately discussed meaning of the word 'evidence' and has observed that the evidence emerged during enquiry or trial should be one which, if un-rebutted, will lead to the conviction of the person summoned to be arrayed as an accused under Section 319 Cr.P.C.

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In the instant case, indisputably, the court below in exercise of powers under Sections 319 Cr.P.C., has summoned the petitioners to be arrayed as accused solely on the basis of the evidence of P.W.-5, Vivek Kumar Mehta (petitioner). During his cross-examination he has stated that he had signed for the actual amount on the cheques. The court below failed to consider and appreciate the fact that the prosecution had adduced other oral and documentary evidences also and closed its evidence. The prosecution had exhibited the enquiry reports of Sub-Divisional Officer, Barhi, Hazaribagh and the report of the three members committee which was the foundation of the case of the prosecution. Initially the allegation was only against the sole accused Braj Kishore Sharma and it was the petitioner who had lodged the F.I.R on

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the basis of the audit report. The court below has failed to consider that there was specific allegation that the amount as mentioned in the cheques was interpolated by the accused Braj Kishore Sharma while the Advice which was prepared and submitted to the bank by Braj Kishore Sharma did not bear the signatures of the petitioners. In fact, the prosecution had not adduced any evidence to show the complicity of these petitioners in the alleged crime.

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It is, therefore, evident that the court below has committed gross error and perversity in passing the order for summoning the petitioners to face the trial along with the sole accused by drawing an inference that the petitioners had put their signatures on the interpolated amount as prepared by original accused Braj Kishore Sharma. The sanction as mandated under Section 197 Cr.P.C was also not obtained for arraying the petitioners as accused.

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9. It is not disputed that charge-sheet of this case was submitted after thorough investigation. In the counteraffidavit filed by the State, nothing material has been brought forth to show the complicity of these petitioners in the alleged offence. The contention of learned A.P.P that the documents will be seen at the stage of trial is palpably fallacious for the simple reason that the petitioners were summoned under Section 319 Cr.P.C on the day the case was fixed for judgment against the sole accused, namely, Braj Kishore Sharma. The prosecution had already adduced documentary evidences which were brought on record as exhibits. Therefore, the arguments of learned A.P.P that defence of the petitioners can be looked into when the documents are produced in the court below has no legs to stand on.

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10. The statement made by P.W.-5, i.e., the petitioner, Vivek Kumar Mehta, during his cross-examination cannot by any stretch of imagination be said to be an admission, rather as submitted by learned counsel for the petitioners, it is a clarification by the P.W.-5, to the question put by the defence, that he had signed for the actual amount. As submitted by the learned counsel for the petitioners, the defalcated public money also went into the account of the sole accused Braj

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Kishore Sharma and not in the account of the petitioners according to the exhibits available on record. The court below has also failed to appreciate the fact that the sole accused Braj Kishore Sharma, in his statement after closure of prosecution evidence, under Section 313 Cr.P.C., has nowhere stated that the forgery by interpolating the actual amount was committed at the behest of these petitioners. Apparently the court below has committed a manifest error by issuing summons against the petitioners to face the trial without appreciating the material evidences available on record.

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11. The legal proposition in this regard has been enunciated by the Hon'ble Supreme Court in the case of Hardeep Singh (Supra), and later followed in catena of cases, wherein it has been observed that, the court is required to see that the material evidences available on record, makes out much more than a prima facie case and such evidence will only lead to the conviction of the person summoned under Section 319 Cr.P.C. This settled legal position has not been properly appreciated by the court below.

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12. Thus, in view of the discussions made hereinabove and on the basis of well settled legal proposition enunciated in Hardeep Singh (Supra) , in my considered opinion, the impugned order dated 25.07.2018 is not tenable in law. Consequently, it is, hereby, quashed.

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13. As a result, these criminal miscellaneous petitions are, hereby, allowed.

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(AMITAV K. GUPTA, J.)

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Chandan /-

Atul Kumar v. the State of Jharkhand

Case brief

What is this about?

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Atul Kumar v. the State of Jharkhand

Case brief

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