Prabhakar S/O Dadaji Pal vs State Of Maharashtra
2004 Latest Caselaw 1367 Bom

JUDGMENT

K.J. Rohee, J.

1. Both these applications have been moved under Section 482 of the Code of Criminal Procedure. They arise out of the order dated 15-4-2004 by 4th Ad hoc Additional Sessions Judge, Chandrapur and as such disposed of by this common order.

2. The first application is moved by original accused No. 2 against the order of the Revisional Court rejecting his application for discharge and maintaining the order of the Chief Judicial Magistrate, whereas the second application is by the State against the order of Revisional Court granting the application of accused No. 3 for discharge by setting aside the order of the Chief Judicial Magistrate.

3. Brief facts would be necessary to appreciate the controversy :

Accused No. 1 Suresh M. Muraskar was serving as Junior Assistant, accused No. 2 Prabhakar Dadaji Pal as Deputy Engineer and accused No. 3 Vivek Gopinath Dubewar as Sectional Engineer in Zilla Parishad's Building Division, Works Sub Division at Mul, district Chandrapur. Accused No. 2 was the head of office whereas accused Nos. 3 and 1 were his subordinates. It is alleged that two cheques dated 27-3-2001 and 27-7-2001 issued by Block Development Officer, Mul in favour of Deputy Engineer were presented by the accused persons to the Bank of Maharashtra for encashment by opening Current Account No. 777. The amount of those cheques was about Rs. 3,50,000/- or so which was shown to the credit side of the said current account No. 777 and thereafter by various cheques the amount was withdrawn from time to time by the accused persons. It is alleged that accused Nos. 1 to 3 in furtherance of their common intention opened current account No. 777, withdrew the amount from it and misappropriated the same. It is alleged that the signatures of accused No. 2 were forged and the stamps of the office of accused No. 2 were also forged by the accused persons.

4. On 19-1-2002 accused No. 2 lodged first information report in respect of the misappropriation. Investigation was undertaken and after completion of investigation, charge sheet dated 25-4-2002 was filed before Chief Judicial Magistrate, Chandrapur, under Sections 409, 420, 468, 471, 477A read with 34 of Indian Penal Code against accused Nos. 1 to 3.

5. By separate applications dated 9-8-2002 and 3-9-2002, accused Nos. 2 and 3 applied for discharge under Section 239 of the Code of Criminal Procedure. After hearing the parties, those applications were rejected by common order dated 8-9-2003 by Chief Judicial Magistrate, Chandrapur. Both accused Nos. 2 and 3 preferred separate criminal revisions against the said order. Those revision applications were decided by 4th Ad hoc Additional Sessions Judge, Chandrapur, by common order dated 15-3-2004. By the said order, accused No. 3 was discharged whereas the application of accused No. 2 was rejected. The State has challenged the discharge of accused No. 3 whereas accused No. 2 has challenged rejection of his application for discharge.

6. A perusal of the charge sheet, documents filed with it, and the impugned order dated 15-3-2004 shows that the evidence against accused No. 2 as well as accused No. 3 is the confessional statement made by accused No. 1 against them. The impugned order clearly shows that the said confessional statement of accused No. 1 is a self-serving and exculpatory statement and as such it is not admissible in evidence. The learned counsel for accused Nos. 2 and 3 submitted that admissibility of the confessional statement can be examined even at the stage of framing of the charge and in support of this submission, they relied upon 1998 Cri.L.J. 4592, Suresh Budharmal Kalani v. State of Maharashtra in which it is observed as under :

"At the stage of framing of charges the Court is required to confine its attention to only those materials collected during investigation which can be legality translated into evidence and not upon further evidence (de hors those materials) that the prosecution may, adduce in the trial, which would commence only after the charges are framed and the accused denies the charges.

7. The learned A.P.P., however, submitted that the admissibility or otherwise of confessional statement cannot be considered at this stage. In support of this submission, he relied on 2004(3) SCALE 257, Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav and Anr. In the said case, it has been held that the admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial.

8. It may be noted that these observations were rendered by the Court while dealing with the bail application and they cannot be imported while considering the matter of discharge under Section 239 of Criminal Procedure Code.

9. It is thus obvious that the confessional statement of accused No. 1 cannot be relied upon for framing charge against accused Nos. 2 and 3.

10. Besides the confessional statement of accused No. 1, as regards accused No. 2 reliance is placed on the statement of Ghettya Punayya Ghettya Raghvayya, the then Manager of Bank of Maharashtra, Branch Mul. From the statement of the said Branch Manager, it is obvious that it is only accused No. 1 who met the Bank Manager from time to time viz. while opening current account No. 777, while depositing cheques dated 27-3-2001 and 27-7-2001 and thereafter while withdrawing the amount from the said account by various cheques. All that the Bank Manager stated that he met accused No. 2, accused No. 2 assured him that account would be opened in Bank of Maharashtra soon. It is further in the statement of the Bank Manager that when accused No. 1 approached him for opening the account with his bank and when accused No. 1 submitted cheque for Rs. 20,000/-, he contacted accused No. 2 on phone and accused No. 2 confirmed the account and the cheque. It may be noted that the Bank Manager never verified the signatures of accused No. 2 and never confirmed them by meeting or calling accused No. 2. In fact it is a material lapse on the part of Bank Manager in not getting the signatures of accused No. 2 confirmed from accused No. 2 himself. It may further be noted that even according to the prosecution the signatures which appeared to be of accused No. 2 are all in the handwriting of accused No. 1. It is thus apparent that by no stretch of imagination, it can be said that there was connivance between accused Nos. 1, 2 and 3 for the misappropriation of the Government funds.

11. There is another aspect which needs to be considered and that is right from 12-6-2000 onwards accused No. 2 who is the superior of accused No. 1 not only issued show cause notices against accused No. 1 but also recommended withholding of five annual increments of accused No. 1 and also requested Deputy Chief Executive Officer of Zilla Parishad for initiating disciplinary action against accused No. 1. On this background, it would be highly improbable that there would be any conspiracy between accused Nos. 1 and 2 for misappropriating the Government funds.

12. The learned A.P.P. submitted that the documents viz. copies of show cause notices alleged to have been issued to accused No. 1 by accused No. 2 and the correspondence between accused No. 2 and the Chief Executive Officer and Deputy Chief Executive Officer of Zilla Parishad cannot be taken into account at this stage and that this can be considered only when the accused is called upon to enter into the defence. However, (1996)9 SCC 766, Satish Mehra v. Delhi Administration and Anr. is the complete answer to this objection. In paragraph 13 it is observed thus :

"Similar situation arises under Section 239 of the Code (which deals with trial of warrant cases on police report). In that situation the Magistrate has to considering the police report and the documents sent therewith. At these two stages the Code enjoins on the court to give audience to the accused for deciding whether it is necessary to proceed to the next stage. It is a matter of exercise of judicial mind. There is nothing in the Code which shrinks the scope of such audience to oral arguments. If the accused succeeds in producing any reliable material at that stage which might fatally affect even the very sustainability of the case, it is unjust to suggest that no such material shall be looked into by the court at that stage."

13. From the above discussion, it would be evident that there was no sufficient material to frame charge either against accused Nos. 2 and 3. The Revisional Court was, therefore, justified in discharging accused No. 3 but was not justified in rejecting the application of accused No. 2 permitting continuation of prosecution against accused No. 2 would be nothing but an abuse of the process of the Court. The impugned order will have to be modified to that extent. Hence the order :

i) Criminal Application No. 1160/2004 is allowed. Accused No. 2 Prabhakar s/o Dadaji Pal is directed to be discharged from Criminal Case No. 272/2002.

ii) Criminal Application No. 1719/2004 is rejected.