Smt. Fatma Begum vs State Of U.P. & Another
2014 Latest Caselaw 4234 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 14
 
Case :- CRIMINAL REVISION No. - 4523 of 2009
 

 
Revisionist :- Smt. Fatma Begum
 
Opposite Party :- State Of U.P. & Another
 
Counsel for Revisionist :- Mukhtar Alam,V.K. Upadhyay
 
Counsel for Opposite Party :- Govt. Advocate,Irshad Ali,M.K.Pandey,V.K.Upadhyay
 

 
Hon'ble Mrs. Ranjana Pandya,J.

This revision has been preferred against the order dated 24.08.2009 passed by the Judicial Magistrate, Najibabad, district Bijnor in Criminal Case No. 2980 of 2007 State vs. Smt Fatma Begum, under sections 420, 467, 468, 471, 409 IPC, PS Najibabad, district Bijnor, by which the learned Judicial Magistrate rejected the discharge application filed by the revisionist.

Brief facts of the case are that an application under section 156(3) Cr.P.C. was filed by the opposite party No. 2 alleging that Atiqur Rahman is the Deputy Manager of Najibuddaula Girls Inter College, Najibabad. This school runs classes from 1 to 10 and distributed scholarship to the minority girl students. An amount of Rs. 2,73,360/- was transferred to the account of the school on 16.01.1998 in Vidur Gramin Bank, Branch Najibabad. This account was being operated by the Principal and the cash book was also prepared by the Principal. The accused have shown the entry of the aforesaid amount on 01.03.1999. On that time, the accused-revisionist was the Principal of the school. The accused instead of distributing the scholarship of Rs. 28,800/- to the students misappropriated the same to her own use. She issued cheque No. 272506 for Rs. 10,368/- in the name of Zubaida, another cheque No. 272507 for Rs. 9,936/- in the name of Zubaida Parveen and third cheque bearing No. 272512 for a amount of Rs. 8,496/- in the name of Khalda Parveen. On 12.11.1999 this amount has been withdrawn from the Bank account. The cheques, which have been issued were encashed during the period the Principal was under suspension. She has verified the signatures of the person withdrawing the cheque amount on 23.12.1999. On 20.12.1999, the accused was suspended from her post. The accused instead of distributing Rs. 28,800/- to the class 1 to 3 students of minority castes misappropriated the amount to her own use. The matter was complained by Smt Zareen Akhtar, Assistant Teacher to Smt Mamur Khanam, Assistant Principal. Thus, an application was filed under section 156(3) Cr.P.C. , whereby it was ordered that the case be registered and investigation began. After investigation, the police submitted charge sheet against the accused-revisionist. The accused revisionist moved a discharge application before the trial court and vide order dated 24.08.2009, the learned lower court found that there is no evidence against the accused under sections 467, 468, 471 IPC, but since there was evidence against the accused under sections 420, 409 IPC, hence charges were ordered to be framed.

Feeling aggrieved the accused-revisionist has come up in revision.

I have heard learned counsel for the revisionist, learned counsel for the opposite party No. 2 and learned AGA.

Learned counsel for the revisionist has argued that the statements of Khalda Parveen, Zubaida and Zubaida Parveen, in whose favour the cheques were issued, were not recorded by the Investigating Officer, under section 161 Cr.P.C., whereas the statements were absolutely necessary. Besides he has also argued that the affidavits filed before this Court along with counter affidavit were neither before the Investigating Officer nor they could be looked into at this stage.

Learned counsel for the revisionist has argued that the disputes are essentially of a civil nature, they should not be filed as criminal complaints and it is the duty of the criminal court to check the abuse of process of law and the criminal courts should ensure that criminal proceedings are not misused for settling the scores or pressurizing parties to settle civil disputes.

Learned counsel for the revisionist has placed reliance upon the judgment reported in (2009) 8 Supreme Court Case 751, Mohammed Ibrahim and others vs. State of Bihar and another, in para 18, it has been held that :

"Let us now examine whether the ingredients of an offence of cheating are made out. The essential ingredients of the offence of "cheating" are as follows:

(i) deception of a person either by making a false or misleading representation or by dishonest concealment or by any other act or omission;

(ii) fraudulent or dishonest inducement of that person to either deliver nay property or to consent to the retention thereof by any person or to intentionally induce that person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived; and

(iii) Such act or omission causing or is likely to cause damage or harm to that person in body, mind, reputation or property.

Learned counsel for the revisionist has argued that the ingredients of cheating do not stand proved by any stretch of imagination and the learned Magistrate has not stated the grounds and materials, on which he found that there was evidence to frame charges against the accused-revisionist under sections 420, 409 IPC.

Learned counsel for the revisionist has further placed reliance upon the judgment reported in 2002 (44) ACC 168 SC, S.W. Palanitkar and others vs State of Bihar and another, in which it has been held that mere breach of trust without any fraudulent intention will not result in penal offence of a criminal breach of trust unless there is evidence of any mental act and entrustment of property to appellants or their domain over any of the properties must be established.

It has been held in the case of S.W. Palanitkar and others vs State of Bihar and another (supra) that:

"Turning to the facts of the case, there is nothing either in the complaint and/or in sworn statements of the complainant and the three witnesses that any property was entrusted to any of the appellants at all or the appellants had domain over any of the properties of respondent No.2 which they dishonestly converted to their own use so as to satisfy the ingredients of Section 405 IPC punishable under Section 406 IPC. Further the agreement also did not require entrustment of any property to the appellants. Taking the complaint and the statements of the witnesses as they are, it cannot be said even prima facie, that the appellants committed any offence punishable under Section 406 IPC, since the ingredients of that offence were not satisfied. Hence the learned Magistrate committed a serious error in issuing process against the appellants for the said offence. Unfortunately, the High Court also failed to correct this manifest error."

It is settled principle of law that the revisional jurisdiction is not as wide as the appellate jurisdiction and under the revisional jurisdiction, the High Court is required to exercise its powers where there is material irregularity or manifest error of law or procedure, or there is misconception or misreading of evidence or where the court below has failed to exercise jurisdiction vested in it or has exercised the jurisdiction wrongly and perversely or where the facts admitted or proved do not discloses any offence.

As a broad proposition, the interference of revisional court may be justified in cases (i) where the decision is grossly erroneous (ii) where there is no compliance with the provision of law (iii) where the finding of fact affecting the decision is not based on evidence on record (iv) where the material evidence of parties has not been considered (v) where the court below has misread or mis-appreciated the evidence on record (vi) where the judicial discretion has been exercised arbitrarily or perversely.

In exercise of revisional jurisdiction the court may not exercise jurisdiction to reassess the evidence and reappraisal of evidence is not permissible within the revisional jurisdiction. Hon'ble the Apex Court in A.I.R. 1999 Supreme Court 981 in the case of State of Kerela Vs. Putthumana Illath Jathavedan Namboodiri has held that "the High Court while hearing revision does not work as an appellate court and will not re-appreciate the evidence, unless some glaring mistake is pointed out to show that injustice has been done".

In A.I.R. 2002 Supreme Court 2229 in the case of Jagannath Chaudhary Vs. Ramayan Singh, Hon'ble Apex Court has held that "revisional jurisdiction is normally to be exercised only in exceptional cases where there is a glaring defect in the procedure or there is a manifest error on point of law resulting in miscarriage of justice". Similarly In A.I.R. 2002 Supreme Court 107 in the case of Munni Devi Vs. State of Rajasthan and others it was held by Hon'ble Apex Court that "while exercising the revisional power the High Court has no authority to re-appreciate the evidence in the manner as the trial court and appellate courts are required to do".

The statement of the witnesses under section 161 Cr.P.C. is on record. Perusal of the record shows that although the cheques were said to have been issued by the accused-revisionist, but they were encashed during the period of her suspension and admittedly she has been suspended on 20.12.1999, whereas the cheques have been encashed on 23.12.1999. Although the learned lower court has opined that the photostat copy of the cheques have been filed by the Investigating Officer in the case diary. All the cheques have been verified on 23.12.1999. It is also the fact that the Investigating Officer has not examined Khalda Parveen, Zubaida Parveen and Zubaida, but the learned lower court has opined that the Investigating Officer has collected other evidence on the basis of which charges can be framed against the revisionist under sections 420, 409 IPC. According to the learned lower court the principal and teacher have specifically stated that Smt Fatma Begum signed the cheques in their presence. Admittedly, the money was not distributed between the girls belonging to the minority class.

In 2014 (84) ACC 656 SC, State of Tamil Nadu v. N. Suresh Rajan and others the Hon'ble Apex Court has laid down that:

"True it is that at the time of consideration of the applications for discharge, the Court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. To put it differently, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the Court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage. Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another, in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi):

"11. It is trite that at the stage of framing of charge the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the Court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."

Section 239 Cr.P.C. gives the ground on which the accused can be discharged, which reads as under:

"If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."

In Santosh Kumar Yadav Vs. State of U.P. and another, 2011 (72) ACC 7870, it has been laid down if there are ingredients of offence against the accused, charges should be framed.

The Hon'ble Apex Court in 2010 (1) ACR (SC) P. Vijayan Vs. State of Kerala and another has held that whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At the stage of charge, it cannot be claimed that there is no sufficient ground to proceeding against the accused and discharge is the only remedy. Whether the trial would end in conviction or acquittal is absolutely immaterial.

Thus, the impugned order does not suffer from any illegality, irregularity or impropriety and the revision is liable to be dismissed at the admission stage.

Accordingly, the revision is dismissed.

Interim order, if any, stands vacated.

Order Date :- 11.8.2014

Sazia