Sudesh Kumar Rai vs State Of Chhattisgarh
2021 Latest Caselaw 343 Chatt

                                                                           AFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR

                       Order Reserved on : 15.02.2021

                        Order Passed on : 16/06/2021

                                Cr.R. No. 31 of 2021

   1. Sudesh Kumar Rai, S/o. Late Jugal Kishore Rai, aged about 52 years,
       R/o. Ward No. 13, Balram Das Ward, Old Civil Line, Infront of Shukla
       Aata Chaki, Rajnandgaon, District Rajnandgaon, Chhattisgarh.

   2. Narayan Yadav, S/o. Late Jeevrakhan Yadav, aged about 52 years, R/o.
       Behind Om Cycle, Ward No. 19, Sahdev Nagar, Rajnandgaon, District
       Rajnandgaon, Chhattisgarh.

                                                                 ---- Applicants
                                      Versus
      State of Chhattisgarh, Through : Station House Officer, Police Station
       Basantpur, District Rajnandgaon, Chhattisgarh.

                                                             ---- Non-applicant



For Applicants                      : Mr. Malay Shrivastava, Advocate

For Respondent                      : Mr. Gurudev I. Sharan, Govt. Advocate

Hon'ble Shri Justice Rajendra Chandra Singh Samant

C A V ORDER

16/06/2021

1. This criminal revision has been brought challenging the legality,

propriety and correctness of the order dated 12.03.2020, passed in

Sessions Trial No. 22 of 2019, by the learned trial Court rejecting the

application of the applicants filed under Section 227 of the Cr.P.C.

praying for discharge.

2. These applicants and others were charge-sheeted for commission of

offence under Section 409, 419, 420, 468, 471, 413, 120 (B), 201, 217,

34 of the Indian Penal Code, Section 3 (1), 7 of the Essential

Commodities Act, 1955 and Section 66 (c) and 66 (d) of the Information

Technology Act.

3. The applicants filed an application under Section 227 of Cr.P.C. stating

that they have been falsely implicated in the case as there is no material

present in the charge-sheet to show that the applicants have committed

any offence as alleged. Although the applicants were members of super

checking team, but there is no evidence that super checking team went

through any checking or inspecting the documents, on which the team

constituted for issuance of new ration card had worked. Hence, these

applicants have not played any role in the said commission of offences

and none of the offence registered against them is made out. The

Additional District and Sessions Judge, Rajnandgaon has passed the

impugned order by which, the application under Section 227 of Cr.P.C.

was partly allowed and the applicants were discharged for offence under

Section 413 of Cr.P.C., however, the case has been remanded to the

Court of C.J.M. for trial of the applicants and others for the remaining

offences, which are triable by J.M.F.C.

4. It is submitted by the learned counsel for the applicants that initially the

FIR was lodged against one Rupesh Joshi and Prahlad Thakur for

commission of offence under Section 3 (1), 7 of the Essential

Commodities Act, 1955. On the basis of the report submitted by the

Inspector Food Civil Supplies Department, Rajnandgaon. There had

been no allegation in that report of Food Inspector, against these

applicants. These applicants were members of super checking team,

which was constituted by the Commissioner Municipal Corporation,

Rajnandgaon vide (Annexure A-4) according to which, it was the duty of

the applicants to verify the applications, declaration forms. Subsequent to the verification made by the nodal officer and before that being

entered on-line. Other government officers and employees were

entrusted with the duties to scrutinize and verifying the application and

declaration forms of the persons who had applied for issuance of ration

card. Therefore, these applicants were never involved in verifying and

scrutinizing the applications and declaration forms of the applicants for

ration cards at the first instance. The whole investigation shows that

there is no case against these applicants. Relying on the judgment of

Supreme Court in case of Dipakbhai Jagdishchandra Patel Vs. State

of Gujrat & Another, reported in (2019) 16 SCC 547, it is submitted

that the Supreme Court has held that Court is not expected to work as

post office, it is the duty of the Court to sift the evidence and draw

conclusion, whether the charge is prima-facie made out or not. It is

submitted that the learned Additional Sessions Judge has not given

consideration on the application and passed the order in mechanical

manner. Hence, the revision petition be allowed and the applicants be

discharged.

5. State counsel opposes the revision petition and the submission made in

this respect. It is submitted that there is prima facie evidence present in

the charge- sheet against these applicants. As the applicants failed to

perform their duties and connived in the commission of offences, which

shows their active participation. Hence, there is no case for discharge.

6. I have heard the learned counsel for the parties and perused the

documents placed on record.

7. On perusal of the impugned order, it is apparent that after the discharge

of the applicants under Section 413 of I.P.C. charges have been framed

against them under Section 409, 419, 420, 468, 471, 217, 120-B, read

with Section 34 of the Indian Penal Code and Section 66 (c) and 66 (d)

of the Information Technology Act, 2000 and the matter has been

remanded to the Court of Chief Judicial Magistrate, Rajnandgaon.

8. In compliance with the order of the State Government, a drive for

verification of the ration cards was conducted. On completion of the

same, a report dated 30.06.2014 was submitted by Deputy Collector,

Rajnandgaon to Collector, Rajnandgaon, in which it was mentioned that

in Ward No.19, the number of total ration cards issued was 904,

whereas on verification, only 276 ration cards were found to be genuine

and the remaining 628 ration cards could not be verified. The names

mentioned in the unverified ration cards were also not found in the list.

On finding that, some of the persons mentioned in the unverified ration

cards were found living in the vicinity. Query was made from them, who

expressed their ignorance about existence of ration cards in their favour.

It was on this basis, the complaint was given to the police by Food

Inspector, Kamal Narayan Sahu on 02.07.2014. F.I.R. was then

registered against Rupesh Joshi and Prahalad Thakur who were the

Directors of the Fair Price Shop.

9. It has been submitted by the learned counsel and also not disputed that

the applicants were the members of the Super Checking Team, which

was constituted by the Commissioner Municipal Corporation,

Rajnandgaon vide order dated 23.04.2013 and the duty entrusted to

them was to verify the applications and declaration forms before their

entry in the on-line portal. But the Investigating Officer has drawn the

conclusion in the investigation, which is mentioned in the final report that

these applicants being a member of Super Checking Team and being

entrusted with duty to verify the declaration forms and applications of

the ration card, have either deliberately certified the bogus declarations

and applications or they avoided to perform their duty in the manner they were expected to perform, because of which, the bogus ration

cards were made and the same were used for making purchases from

the fair price shops, which has caused huge loss.

10. The point for consideration in this revision petition is this that whether

the conclusion that has been drawn against these applicants by the I.O.

has support of any evidence. On perusal of the complete copy of the

charge-sheet that has been filed by the respondent side, it is found that

no specific inquiry has been held against these applicants before the

F.I.R. was lodged. The complaint given by Food Inspector to the Police

also does not mention the name of these applicants, which is the basis

of F.I.R. that is lodged on 02.07.2014. It cannot be disputed that these

applicants being the member of the Super Checking Committee had

cleared the application forms and the declaration forms of the proposed

beneficiaries, which was the basis that the ration cards were prepared in

the name of the persons, out of which the bulk of such ration cards have

been found to be bogus and fictitious. In the investigation made, the

memorandum statement of co-accused persons namely Rupesh Joshi,

Kamlesh Kumar Dewangan, Jaipal Mangwani, Lomesh Jaiswal, Dilip

Giri @ Raju Goswami, Manish Yadav have been recorded under Section

27 of the Evidence Act, in which there is no mention of the names of

these applicants to show that they were collaborators with other co-

accused persons.

11. A seizure memo of the property seized from the applicant No.1 dated

05.07.2014 is a document of charge-sheet, shows seizure of 343

application forms and declaration forms from the possession of

applicant No.1, which by itself is not clear as to in what manner the

applicant No.1 was in possession of these applications and declaration

forms and whether seizure of these application forms can be regarded

as commission of any of the offences registered against him and the

another applicant. Statements have been recorded of Rupesh Joshi,

one of the accused and R.K. Fadnavis has been recorded at initial stage

in which there is no mention of names of these applicants. Other

witness examined namely Bhagwat Jaiswal, does not make any

statement against these applicants. Another witness Narendra K. Dugga

(Commissioner Municipal Corporations) has stated about the

responsibility of these applicants, as he was the person, who had

constituted the Super Checking Team. Witness T.K. Verma was

Additional Collector, Rajnandgaon, who had stated about the working of

the teams constituted for verification of applications for ration cards and

also the duties entrusted to the applicants. He has stated that in this

case the irregularities have been committed by the main accused

Prahalad Thakur, on that basis, it was the fault of these applicants

because of which the data entry was made of fictitious details, therefore,

these applicants have failed to perform their duties and thus, have

committed irregularities.

12. Witness R.L. Khare has given statement about the formal procedure.

Other witness J.K. Nigam, S.L. Vishwakarma, Raj Kumar Chaurasia

have given statements about the distribution system and there is no

allegation against these applicants in their statements. Statement of

other witnesses namely Vipin Malik and Om Prakash Sahu, mentions

about their contract work of data entry and again they have not stated

anything against these applicants. Loknath Sahu, Rajani Andani,

Shailendra Mishra, Bal Krishna Mishra, Chandrika Janbandhu have not

stated anything against these applicants. Dulasia Sahu was Anganwadi

worker and she was also the Member of the team constituted for the

making of new ration cards. She has not made any statement against these applicants. Ku. Rupali Kunjam, Bhujan Singh Ganitram Thakur,

Shobhna Mishra, K.P. Dixit, Tikendra K. Sahu, Bisan Agrawal, Goutam

Singh, Raja Pansari, Savitri Devi, Manju Joshi, K. Jairavina have also

been examined by the Investigating Officer and there is nothing against

these applicants in their statements.

13. Dhanna Lal Sahu is another witness, who was assisting the main

accused Prahalad Thakur and he has mentioned the name of these

applicants as the persons in charge of Super Checking team but there is

no allegation against them in his statement. Other witnesses Rupran

Sahu, Tarun K. Sahu, Abhijit Hariharno, Prakash Sahrivastava, Ajay

Yadav, Ravi Sonwani, Satyanarayan Lautre, Bhupendra Singh Tekam,

Suraj K. Yadav, Daman Singh, Smt. Asha Das, Bakrithara Mishra,

Jankaran Sahu, Mahendra Singh Mandavi, Zaheer Ahmed Khan,

Mahesh Mishra, Vimla Chauhan and Kishore Kumar Sahu have not

made any specific statement against this applicant.

14. After perusal of the whole charge-sheet, it is found that departmental

witnesses have made statements against these applicants that these

applicants either negligently or inadvertently failed in their duty to verify

the applications and declaration forms in proper manner because of

which the fictitious ration cards have been issued, in the name of such

persons, who had not applied for the issuance of ration cards or in the

name of the fictitious persons.

15. The applicants have been charged with Section 409 of I.P.C. that is

criminal breach of trust by public servant etc. Criminal breach of trust

has been defined in Section 405 of I.P.C., in which first requirement is

this that a person must have been entrusted with some property or any

dominion over property and being in such position he dishonestly

misappropriates or converts such property to his own use. In Section

2(C) of Benami Transaction (Prohibition) Act, 1988 property has been

defined, as "property of any kind whether movable or immovable or

tangible or intangible and includes any rights or interest in such property.

16. After considering on the whole evidence in the charge-sheet, it is found

that these applicants were not entrusted with any kind of property which

is defined under Section 2(C) of the Act, 1988, the word 'property' in

Section 405 of I.P.C. does not have a different meaning, but only thing

that can be taken into consideration is this, that these applicants were

entrusted with a duty and responsibility to make verifications of the

applications and declaration forms. This duty and responsibility do not

come under the definition of property, hence, there seems to be no

ground available and no ground in the case is present to frame charge

under Section 409 of I.P.C. against these applicants.

17. Section 419 and 420 of I.P.C. are as follows:-

"Section 419. Punishment for cheating by personation.--

Whoever cheats by personation shall be punished with imprisonment

of either description for a term which may extend to three years, or

with fine, or with both.

Section 420. Cheating and dishonestly inducing delivery of

property.--Whoever cheats and thereby dishonestly induces the

person deceived to deliver any property to any person, or to make,

alter or destroy the whole or any part of a valuable security, or

anything which is signed or sealed, and which is capable of being

converted into a valuable security, shall be punished with

imprisonment of either description for a term which may extend to

seven years, and shall also be liable to fine."

18. Section 419 of I.P.C. provides that whoever cheats thereby dishonestly

induces the person deceived to deliver any property to any person etc. has committed such offence of cheating by personation. The only

evidence against these applicants is this that he had failed to perform

the duty either deliberately or negligently and thus there is nothing to

hold that they have impersonated on behalf of any person or have given

inducement to any person to deliver any property. Therefore, the charge

framed against these applicants under Section 419 of I.P.C. and Section

420 of I.P.C. is found to be baseless.

19. Forgery is defined under Section 463 of I.P.C. which is as follows:-

"Section 463. Forgery.-- Whoever makes any false

documents or false electronic record or part of a document or

electronic record, with intent to cause damage or injury, to the

public or to any person, or to support any claim or title, or to

cause any person to part with property, or to enter into any

express or implied contract, or with intent to commit fraud or

that fraud may be committed, commits forgery."

20. According to the evidence present in the charge-sheet, there is no such

allegation that these applicants created any false documents etc. The

only allegation present against them is this that they failed to scrutinize

and find out that the application forms and declaration forms were in the

name of fictitious persons and that the signature on the application

forms and declaration forms were forged and thus they failed to perform

their duty. Hence, according to the definition of this offence under

Section 463 of I.P.C. there is no allegation against these applicants

regarding the commission of offence of forgery and intention that forgery

was made for the purpose of cheating. The act of forgery and intention

to cheating can be attributed to those persons, who may have filed the

applications and declaration forms, but not to these applicants according

to the evidence that is present in the charge-sheet, therefore, I am of

this view that there is again no material present to frame charge against

the applicants under Section 468 of I.P.C.

21. Section 471 of I.P.C. is as follows:-

"Section 471. Using as genuine a forged [document or

electronic record].--Whoever fraudulently or dishonestly

uses as genuine any [document or electronic record] which he

knows or has reason to believe to be a forged [document or

electronic record], shall be punished in the same manner as if

he had forged such [document or electronic record]."

22. The main ingredient of this offence is that the person accused must

know or must have reason to believe that the document is forged. To

show that these applicants had knowledge that the applications and

declaration forms that were placed were before them for scrutiny were

forged or that they had reason to believe so, requires more evidence.

On taking into consideration all statements given by all the witnesses,

there appears to be no such evidence present given by any witness that

these applicants had prior knowledge about the forgery of the

documents or that there had been circumstances present which may

have been the reason to believe that the documents are forged,

therefore, again there is no material found which could have been the

basis of framing of charge under Section 471 of I.P.C. against these

applicants.

23. Section 217 of I.P.C. is as follows:-

"Section 217. Public servant disobeying direction of law

with intent to save person from punishment or property

from forfeiture.--Whoever, being a public servant, knowingly

disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending thereby to

save, or knowing it to be likely that he will thereby save, any

person from legal punishment, or subject him to a less

punishment than that to which he is liable, or with intent to

save, or knowing that he is likely thereby to save, any property

from forfeiture or any charge to which it is liable by law, shall

be punished with imprisonment of either description for a term

which may extend to two years, or with fine, or with both."

24. The offence defined under Section 217 of I.P.C. requires that the public

servant had conducted himself of intended to save any person from

legal punishment or to save any property for future or any charge.

25. On perusal of the whole evidence present in the charge sheet, it is

found that there is no such allegations against that these applicants that

they intended to save any person from legal punishment or save any

property forfeiture etc. Therefore, there is altogether no evidence

present for framing of charge against these applicants under Section

217 of I.P.C.

26. In the discussions made hereinabove, it has been found that there is no

material and no prima facie case present for framing charge against

these applicants under Section 409, 419, 420, 468, 471 and 217 of

I.P.C., therefore, the charge of conspiracy for commission of these

offences is not at all made out under Section 120 B of I.P.C.

27. The framing of charge against these applicants under Section 66(c) and

66 (d) of Information Technology Act, 2000 is again without any basis.

The evidence in the charge-sheet shows that these applicants were

entrusted with responsibility to make scrutiny of the applications and

declaration forms and therefore, these applicants are not the persons

who made entry in the computer system, therefore, they are not

responsible for the entries that have been made in the computer.

Therefore, there was no occasion for them to make use of any

electronic signature, password or unique identification for cheating by

using the computer resources. There are other accused persons who

have been charge-sheeted for commission of such offences. Hence,

again, it is held that there is no prima facie case is present in the charge

sheet against these applicants for framing charges under Section 66(c)

and 66(d) of Information Technology Act, 2000.

28. After considering on all the material present in the charge-sheet and the

submissions made by learned counsel from both the sides in this

respect and on the basis of discussions made hereinabove and on the

basis of the conclusions drawn hereinabove. I am of this view that the

impugned order suffers from grave infirmity and illegality, which is liable

to the set aside. Hence, this revision petition is allowed, the impugned

order is set aside. The application filed by the applicants under Section

227 of Cr.P.C. praying for discharge is hereby allowed and these

applicants are discharged from the offences under Section 409, 419,

420, 468, 471, 217, 120 B read with 34 of I.P.C. and Sections 66 (c) and

66 (d) of Information Technology Act.

29. Accordingly, the petition stands disposed off.

Sd/-

(Rajendra Chandra Singh Samant) Judge Monika