Mohd. Aqil And Anr. vs State
1987 Latest Caselaw 280 Del

ORDER

M.K. Chawla, J.

1. Delhi District Cricket Association (hereinafter referred to as the DDCA) is a company registered under the Indian Companies Act. Its affairs are managed by a General Committee as per the Memorandum and Articles of Association of the Company. During the year 1979-80, the Board of Directors" consisted of the following: - S/Shri

1. R.P. Mehra, Hony. President (since expired).

2. D.P. Jain, Hony. Vice-President.

3. Y.K. Modi, Hony. Vice-President.

4. L.N. Tandon (accused No. 4), Hony. General Secretary.

5. K.K. Mehra (accused No. 2), Hony. Sports Secretary.

6. R. Saran (accused No. 3), Hony. Club Secretary.

7. K.K. Bagai (accused No. 1), Hony. Treasurer and 7 other members.

All these office-bearers were authorised to operate the bank account of the DDCA.

2. Shri Satish Mehra, accused No. 5 s/o late Shri R.P. Mehra, President, was an employee in the Bank of India, Ansari Road Branch, Daryaganj, Delhi. Shri Satpal, accused No. 6 was working as the Typist in the office of the DDCA. Shri Sushil Malhan, accused No. 7 was a contractor attending to some construction work of the D.D.C.A. Shri Mohd. AqiL accused No. 8, Shri Sami Ahmed, accused No. 9 and Shri Mumtazuddin, accused No. 10 are the real brothers. They had floated a firm for obtaining commission from the Association.

3. On 18-9-1981, Shri N.D. Bhatia, Director (Inspection and Investigation), Ministry of Law, Justice and Company Affairs, Shastri Bhawan, New Delhi, lodged a report with the Director, Central Bureau of Investigation, New Delhi, regarding the affairs of the DDCA, alleging therein that payments amounting to about Rs. 1,18,000/- have been made as commissions to certain parties for procuring advertisements, fixing of hoardings and bookings of stalls in the Test match-ground, whereas the advertisements were released by the parties directly to the DDCA on which no commission was payable, during the time of Fourth Indo-Australia and Second India-Pakistan Test matches held respectively during the months of Oct. and Dec, 1979. It is also alleged that on a sample check of the accounts, it was noticed that few of the leading industrial organisations had released their advertisements to the DDCA directly and there was no intermediary or agent involved in the same. Under the circumstances, the payment of commission to the so-called agents was not genuine and the funds of the DDCA had been dishonestly siphoned by its office bearers and that the agents had beep obviously brought in as a camouflage and cover for committing criminal breach of trust in respect of the funds of the DDCA.

4. The matter was investigated by the C.B. I. and on 15-2-1984, a challan was filed in the Court of the Metropolitan Magistrate, Delhi against Shri K.K. Bagai, Shri K.K. Mehra, Shri R. Saran, Shri L.N. Tandon, Shri Satish Mehra, Shri Satpal Battu, Shri Sushil Malhan and the three brothers Shri Mohd. Aqil, Sami Ahmed and Shri Mumtazuddin, stating therein that on the aforesaid acts of omission and commission accused Nos. 1 to 10 have committed offences punishable Under Section 120B, I.P.C. read with Sections 409 and 477A, I.P.C. Accused Nos. 1 to 4 have also committed substantive offences punishable Under Section 409 read with Section 109, I.P.C. and further that accused Nos. 1 to 4 and 6 committed substantive offences punishable under Section 477A, I.P.C. Accused Nos. 5 and 7 to 10 allegedly committed offences punishable under S.477A read with Section 109, I.P.C., whereas accused No. 6 has committed offences punishable under Sections 467 and 471, I.P.C.

5. The prosecution cited as many as 346 witnesses and filed the copies of 1285 documents.

6. At the stage of framing charge, arguments were heard for quite some time by Shri Subbash Wason, Chief Metropolitan Magistrate, Delhi By his detailed order dated 7-6-1986, he found that there exits a prima facie case to frame charges against Shri K.K. Bagai, Shri R. Saran, Shri Satish Mehra, Shri' S. P/Battu, Shri Sushil Malhan, Shri Mohd. Aqil, Shri Sami Ahmed and Shri Mumtazuddin for the offences punishable under Section 120-B read with Sections 409 and 477, I.P.C. S/Shri K.K. Bagai and R. Saran were further charged with substantive offences punishable under Section 409 and S/Shri Satish Mehra, S.P. Battu, Sushil Malhan, Mohd. Aqil, Sami Ahmed and Mumtazuddin were directed to face charge for offences punishable under Section 409, I.P.C. read with Section 109, I.P.C. S/Shri K.K. Bagai, R. Saran, and Satpal Battu were further separately charged for offences under Section 477-A, I.P.C. Further, S/Shri Satish'Mehra, Sushil Malhan, Mohd. Aqil, Sami Ahmed and Mumtazuddin were charged for the offences punishable under Section 477-A read with Section 109, I.P.C. Shri Satpal Battu was separately charged for the commission of offence punishable under Sections 467 and 471, I.P.C. for preparation of forged documents and using the same as genuine. Shri K.K. Mehra and Shri L.N. Tandon were discharged.

7. Shri Mohd. Aqil, Sami Ahmed and Mumtazuddin have filed the present Criminal Revision 192 of 1986 for the setting aside of the order of charge whereas the State has come in revision (Criminal Revision 231/86) against the order of discharge of accused Shri K.K. Mehra and Shri L.N. Tandon. Notice to show cause as to why the revision petitions be not admitted was issued to the respondents in both the cases.

8. I have heard the arguments of the learned Counsel for the parties at length and with their help gone through the record carefully.

9. Learned Counsel for the petitioners in Cr.R. 192/86 tried to point out that material evidence favoring the petitioners has either has been ignored altogether or wrong inferences have been drawn to justify their involvement. According to the learned Counsel, the petitioners have nothing to do with the D.D.C.A. nor at any point of time they contacted or realised the amount as alleged Their transactions, if any, were bona fide and their acts do not fall within the ingredients of any of the provisions with which they have been charged.

10, The submission of the learned Counsel for the petitioner in Cr.R. 231/86 is that the documentary evidence involving the accused Shri K.K. Mehra and Shri L.N. Tandon though taken into consideration, has been brushed aside without any cogent reason. The bare perusal of the oral as well as documentary evidence would justify the framing of the charge against these accused persons also.

11. It is not disputed that the learned Chief Metropolitan Magistrate has given a detailed and reasoned order. He has referred to the material oral as well as documentary evidence, forming part of the report under Section 173, Cr.P.C. At this stage, the learned Chief Metropolitan Magistrate has done what was required of him.

12. For the purpose of framing charge, the Court is required to consider judicially as to whether on consideration of the material on record, it can be said that the accused has reasonably connected himself with the offences alleged to have been committed and that on the basis of the said material, there is a reasonable probability or chance of the accused being found guilty of the offence alleged. If the answer is in the affirmative, the Judge will be at liberty to presume "that the accused had committed the offence" as mentioned in Section 228 of the Code for the purpose of framing the charge.

13. In finding out a prima facie case, not only the First Information Report or complaint but even the statements of the witnesses recorded under Section 161, Cr.P.C, although the same may have been recorded after some delay, during investigation of the case, are to be taken into consideration and if from all other material, a prima facie case is made out against the accused, then the Magistrate has no option but to frame a charge against the accused. This standard test has been fully applied by the Court below, who has come to a definite conclusion that there is no case against Shri K.K. Mehra and Shri L N. Tandon even if the allegations against them are taken on their face value, whereas prima facie, there exists an evidence justifying the framing of charges against the remaining accused In arriving at such a conclusion, he has sifted and weighed the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. He is not expected to make a roving enquiry in the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

14. However, in a case, if two views are equally possible and the Judge is satisfied that evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused and this principle appears to have been followed in the case of the revision filed by the State. On careful examination of the impugned order, I am satisfied that the evidence has been looked into from a right perspective and a correct conclusion has been arrived at. The impugned order cannot be said to be perverse. No interference at this stage is called for. Both the revision petitions are dismissed.