High Court of Bombay

Percy Meher Master Vs. The State of Maharashtra

MANU/MH/2313/2017

04.10.2017

Criminal

Judge must discharge Accused, if on examination of record, there is no sufficient ground for proceeding against him

Present petition challenges impugned judgment passed by Additional Sessions Judge, thereby dismissing the same filed by the Petitioner against the order of Chief Judicial Magistrate, rejecting application filed by the Petitioner for his discharge of the offence registered against him under Sections 406, 409, 420, 467, 468, 471 and 472 read with Section 34 of Indian Penal Code, 1860 (IPC). Principal contention of Petitioner is that, amount of UAPIL in current account at Nagpur was transferred to its loan account at Mumbai to clear the loan liability of the same company, as both these accounts are in the name of UAPIL which admittedly is not disputed fact and as such demonstrates that, by satisfying such loan liability, the Petitioner has not utilized or misappropriated the amount for his personal interest.

With regard to registration of crime against the Petitioner under Sections 467, 468, 471 and 472 of IPC are concerned, it is to be noted that, for attracting those sections, making of false document is an essential element for committing forgery. Section 464 of IPC provides that, a person is said to make false document if he makes signs, seals or executes a document dishonestly and fraudulently with an intention to create an impression that the document was signed, sealed or executed by or under authority of a person who has not signed, sealed or executed the said document or given authority for the same. A dishonest and fraudulent intention is an essential element to make out an offence of forgery. Similarly, terms "dishonestly and fraudulently", when considered to provide that an act is done with intention causing wrongful gain or wrongful loss to any person, same is to be an dishonest act. Wrongful gain means receiving property by unlawful means, which the person receiving is not legally entitled for. Likewise, wrongful loss means loss of property by unlawful means to which the person loosing is legally entitled for.

In the circumstances, when the case of Petitioner along with the property involved in this petition is concerned, which is money under the cheque in question belonging to UAPIL, same is found to be utilized for clearing loan liability of UAPIL itself. In fact, the Petitioner/company was legally bound to pay the debt of Bharat Cooperative Bank Limited and as such, it is found that by making such payment, UAPIL has only discharged its legal liability and by no stretch of imagination, it can be said that, by issuing cheque, the Petitioner has either forged the document or due to his act caused monetary loss or wrongful loss to UAPIL. Apart from transfer of amount of Rs. 81,00,000/-, Petitioner has deposited further amount of Rs. 1,33,19,254/- to clear the loan liability. Moreover, it is no case of prosecution that, the Petitioner had forged the signature of Chairman-cum-Managing Director on the disputed cheque.

The case of prosecution as is apparent from the record is that, Petitioner by issuing said cheque under his signature had written to the authorities of Federal Bank that signature of Chairman-cum-Managing Director would be obtained on the cheque later on. Said conduct of Petitioner in fact further establishes that, at no point of time, he had misled the bank by making false or misleading statement. In that view of the matter, even provision of Section 420 of IPC, cannot be attracted in the present case as under the transaction in question, amount from current account of UAPIL was transferred to its loan account and as such there is nothing to establish that, the Petitioner in any manner had cheated the company of which he himself was a director.

Sections 406 and 409 of IPC, can be said to be attracted only in case of dishonest misappropriation. In the petition in hand, admittedly, the Petitioner had not received any amount under the cheque in question. In that view of the matter, there is no question of his misappropriating any amount nor it is the case of prosecution that, the Petitioner has converted amount under the cheque for his personal use. From the conduct of Petitioner, it is crystal clear that, there was no dishonest intention on the part of Petitioner. On the contrary, he had acted by transferring amount to clear the loan liability. In that view of the matter, no provisions of Sections 406, 409 of IPC are found to be attracted against the petitioner.

It is well established that under Section 227 of Code of Criminal Procedure, 1973 (Cr.PC), a duty is cast on the judge to apply his mind to the material on record and if on examination of the record, he does not find sufficient ground for proceeding against the Accused, he must discharge him. On the other hand, if after such consideration and hearing he is satisfied that, a prima facie case is made out against the Accused, he must proceed to frame a charge as required by Section 228 of the Cr.PC. At the stage of Sections 227-228 of Cr.PC, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their fact value disclose the existence of all the ingredients constituting the alleged offence.

In Union of India v. Prafulla Kumar Samal, wherein the Apex Court after considering the scope of Section 227 of Cr.PC observed that, the words 'no sufficient ground for proceeding against the Accused' clearly show that the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into weighing and balancing evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their fact value establish the ingredients constituting the said office.

It seems well settled that, at the stage of Sections 227-228 of Cr.PC, the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, if taken at their face value disclose the existence of all the ingredients constituting the alleged offence. In view of facts involved in the petition and the law, the Courts below have miserably failed to appreciate the case of Petitioner in its true perspective, who, is found to be entitled for order of discharge. Impugned order passed by Additional Sessions Judge, and order passed by Chief Judicial Magistrate, are quashed. Petition is allowed.

Relevant

Union of India v. Prafulla Kumar Samal (MANU/SC/0414/1978
: 1979 (3) SCC, 4)

Tags : Application Discharge Grant

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