Himachal Pradesh High Court
Sharwan Singh & Another vs State Of H.P. And Others on 30 September, 2024
Neutral Citation No. ( 2024:HHC:9328 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No 85 of 2022.
.
Reserved on: 21.08.2024.
Date of Decision: 30.09.2024.
Sharwan Singh & Another ...Petitioners
Versus
State of H.P. and others ...Respondents
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioners : Mr. Rajesh Kumar Sharma, Advocate.
For the Respondents : Mr. Ajit Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The present petition has been filed against the order
dated 26.10.2021 passed by learned Judicial Magistrate First Class,
Jhandutta, District Bilaspur (learned Trial Court) in an application
under Sections 239 and 245 of the Code of Criminal Procedure
(hereinafter referred to as Cr.P.C.) for discharging the petitioners
(accused before the learned Trial Court) in FIR No. 27 of 2019, dated
16.03.2019, for the commission of offences punishable under
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Neutral Citation No. ( 2024:HHC:9328 )
Sections 420 and 120B of Indian Penal Code (hereinafter referred to
as IPC) registered at Police Station Sadar, District Bilaspur. (the
.
parties shall hereinafter be referred to in the same manner as they
were arrayed before the learned Trial Court for convenience)
2. Briefly stated, the facts giving rise to the present petition
are that the police submitted a charge sheet against the accused for
the commission of offences punishable under Sections 420, 406,
467, 468 and 120B of IPC. It was asserted that a complaint was
received regarding the financial irregularities detected in Tillai
Gram Sewa Sehkari Sabha Samiti during the audit. It was found that
an amount of ₹ 27,00,04,156.50/- was misappropriated out of
₹87,97,34,609.39/-. The Secretary of the Society had issued
fraudulent loans in the name of different loanees. The loans were
shown to be recovered at the end of the year and again shown to be
disbursed in the next year. The holders of the account were asked to
verify their accounts but few people came. Some letters issued to the
loanees were received undelivered with the report that the addresses
were not residing at the given addresses. The amounts were
disbursed without any receipts. Huge loans were disbursed to
Ashwani Gautam and Nirmala Devi, who were not even residing
within the jurisdiction of the Society and could not have become
Neutral Citation No. ( 2024:HHC:9328 )
members of the Society as per the bye-laws. The sanction was not
taken by the Secretary from the Managing Committee and he had
.
spent the amount himself. The interest was also not correctly
charged. Commission was paid to the agents but there was no
provision for the appointment of the agents. The amount was not
correctly mentioned in the various sale deeds. The money was being
paid in cash contrary to the rules and regulations. The software for
maintaining the record was also not proper. Secretary Rajesh Patiyal
had opened the accounts in his name and in the name of his
daughter. He was operating those accounts. Many other
irregularities were found. The police registered the FIR and
constituted a special investigating team. The team verified the
record. The police found during the investigation that the Secretary
was fixing the interest rate himself without reference to any person.
Ashwani Gautam and Nirmala Devi were inducted as members
contrary to the Rules of the Society. They could not have been
inducted as members because only the residents could have been
inducted as members. The loan could have been given for
agricultural purposes but the loan was sanctioned to them for
business purposes. 110 fictitious loanees were mentioned and a loan
of 22 crores was disbursed by fraudulent promissory notes.
Neutral Citation No. ( 2024:HHC:9328 )
Resolution No. 1094 dated 10.04.2017 was entered in the register.
These fraudulent promissory notes were signed by Ashwani Sharma
.
@ Ashwani Gautam and Nirmala Devi. The amount of
₹ 27,00,04,156.50/- was transferred to the account of the Secretary.
The names mentioned in these promissory notes were found to be
fictitious. The Committee had failed to exercise control over the
Secretary and he had wrongly transferred the amount to his account
and the account of his daughter. The loans sanctioned to Ashwani
Gautam and Nirmala Devi were not repaid by them. The loans were
disbursed without completing the formalities. The other members
had also conspired with Rajesh Kumar, Ashwini Gautam and
Nirmala Devi to disburse loans to them. Hence a charge sheet was
filed against them.
3. Petitioner Sharwan Singh filed an application seeking his
discharge stating that resolution No. 773 pertains to the formation
of the new Committee of the Society. It does not deal with the
advancing of the loan. This resolution was not even on the record or
mentioned in the resolution register. It was never placed before the
Management Committee for approval. Resolution No. 816 was
passed on a back date by the Secretary at the back of the
Management Committee. The Secretary needed to get the loan
Neutral Citation No. ( 2024:HHC:9328 )
passed by the Committee in every month's meeting. No action was
taken by the auditors earlier. The Members of the Management
.
Committee were arrayed as accused because they had failed to
exercise control over the Secretary and they in connivance with
Rajesh Kumar had advanced the loan more than the prescribed limit
contrary to the rules and regulations. The petitioner was not named
in the charge sheet and there is nothing on record to show his
involvement. The wrongful gains and wrongful losses were also not
mentioned. Resolution No 773 was passed much earlier to the
induction of the petitioner as a member. He became a member on
28.12.2014 vide resolution No. 794. He could not have been charged
with negligence. Three members committee was framed vide
resolution No. 410. The promissory note did not bear the
petitioner's signatures. He was not even present on 10.04.2017 when
the resolution No. 1094 was passed. The loan was advanced on
31.07.2017, whereas the applications were filed on 31.03.2018.
Everything was done by the Secretary and there was no connivance
of the petitioner; hence, it was prayed that the accused/petitioner
Sharwan Singh be discharged
4. A similar application was also filed by Rajesh Kumar
taking almost all the identical pleas.
Neutral Citation No. ( 2024:HHC:9328 )
5. The learned Trial Court dismissed the applications after
holding that prima-facie irregularities and cheating in furtherance
.
of criminal conspiracy between the accused persons were apparent.
A huge amount was involved which was not recovered. It was not a
fit case for discharging the accused. Therefore, the applications for
discharging the accused were dismissed and the charges were
ordered to be framed.
6. Being aggrieved from the order passed by learned Trial
Court, the accused/petitioner has filed the present petition assering
that the applications were dismissed without discussing the
objections taken by the petitioners/accused. The charges were
framed by the Court on the same day and the matter was ordered to
be listed for prosecution evidence. The opinion given by the Police
Officer after the investigation was illogical and not supported by any
evidence. The role of the petitioners/accused was not mentioned nor
were the details of offences committed by them. The material on
record is not sufficient to create grave suspicion towards the
petitioners and did not justify the framing of charges. The material
collected by the prosecution, even if accepted to be true, does not
constitute grave suspicion against the petitioners. The
circumstantial evidence does not lead to an inference of the guilt of
Neutral Citation No. ( 2024:HHC:9328 )
the petitioners. Petitioner No.1 did not participate in the meeting
which had passed resolution No. 1094 dated 10.04.2017 and he had
.
also not signed the resolution. There was nothing to suggest his
common intention along with the other co-accused and the charge
could not have been framed against him. Therefore, it was prayed
that the present petition be allowed and the order passed by the
learned Trial Court be set aside.
7. The petition was opposed by filing a reply denying the
contents of the petition, however, it was admitted that the
petitioners were arrayed as accused and they had filed the
applications seeking their discharge which were dismissed. It was
asserted that the petitioners were the members of Gram Sewa
Sehkari Sabha Samiti Tillai at the time of the commission of the
offence. Gram Sewa Sehkari Sabha Samiti, Tillai disbursed the loan
without following the rules of the society and petitioners being
members of the Society are liable for the commission of the offence.
A prima facie case was made against them for committing offences
punishable under Sections 420 and 120B of IPC. It was specifically
mentioned in the charge sheet that all the transactions were being
done under the supervision of the Secretary and the Committee
Members. The Members had signed the concerned register at the
Neutral Citation No. ( 2024:HHC:9328 )
time of the advancing of the loan and the petitioners being the
members are liable for the wrongful disbursal of the loan. The
.
learned Trial Court had rightly appreciated the material. Therefore,
it was prayed that the present petition be dismissed.
8. A rejoinder denying the contents of the reply and
affirming those of the petition was filed. It was asserted that
petitioner No.1 was elected on 21.12.2014 as a member of the Society
and he took charge vide resolution No. 794 dated 28.12.2014.
Petitioner No.2 was elected as a member on 26.04.2017 and he took
charge vide resolution No. 1112 dated 11.05.2017. 110 loans were
disbursed on 31.03.2017 which were approved by the Committee vide
resolution No. 1094 dated 10.04.2014. The petitioner was not a
member at the time of the induction of the members to whom the
loans were disbursed. He did not participate in the meeting which
had passed resolution No. 1094 dated 10.04.2017. Petitioner No.2 was
elected as a member on 15.05.2017 after the loans were approved on
10.04.2017. These aspects were not dealt with by the learned Trial
Court. Therefore, it was prayed that the present petition be allowed
and the order framing charges be set aside.
Neutral Citation No. ( 2024:HHC:9328 )
9. I have heard Mr. Rajesh Kumar Sharma, learned counsel
for the petitioners and Mr. Ajit Sharma, learned Deputy Advocate
.
General for the respondent/State.
10. Mr. Rajesh Kumar Sharma, learned counsel for the
petitioners submitted that the petitioners were innocent and they
were falsely implicated. There was nothing on record to connect the
petitioners with the commission of the crime. They did not
participate in the resolution sanctioning the loan and they cannot be
held liable for the advancing of the fraudulent loans. They had not
signed the resolution; therefore, it was prayed that the present
petition be allowed and the order passed by the learned Trial Court
be set aside. He relied upon the judgment of the Hon'ble Supreme
Court in Sharif Ahmed vs State of UP SLP Cr. 1074 of 2017 decided on
01.05.2024 in support of his submission.
11. Mr. Ajit Sharma learned Deputy Advocate General for the
respondent/State submitted that the Court has to see a prima-facie
case at the time of framing of the charges. The Court does not
appreciate the evidence as it would do after the conclusion of the
trial. Sufficient material was collected by the prosecution to show
the involvement of the present petitioner. They were the members
Neutral Citation No. ( 2024:HHC:9328 )
of the Society, which had advanced the loan. Therefore, it was
prayed that the present petition be dismissed
.
12. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
13. It was laid down by the Hon'ble Supreme Court in State of
Gujarat v. Dilipsinh Kishorsinh Rao, 2023 SCC OnLine SC 1294 that the
Court has to consider the material collected by the prosecution as
true and determine, if any, offence is made out or not. It was
observed:
"7. It is trite law that the application of judicial mind is
necessary to determine whether a case has been made out by
the prosecution for proceeding with trial and it would not be
necessary to dwell on the pros and cons of the matter by
examining the defence of the accused when an application for
discharge is filed. At that stage, the trial judge has to merely
examine the evidence placed by the prosecution in order to
determine whether or not the grounds are sufficient to
proceed against the accused on the basis of charge sheet
material. The nature of the evidence recorded or collected by
the investigating agency or the documents produced in which
prima facie it reveals that there are suspicious circumstances
against the accused, so as to frame a charge would suffice and
such material would be taken into account for the purposes of
framing the charge. If there is no sufficient ground for
proceeding against the accused necessarily, the accused would
be discharged, but if the court is of the opinion, after such
consideration of the material there are grounds for presuming
that the accused has committed the offence which is triable,
then necessarily charge has to be framed.
Neutral Citation No. ( 2024:HHC:9328 )
8. At the time of framing of the charge and taking cognizance
the accused has no right to produce any material and call upon
the court to examine the same. No provision in the Code
grants any right to the accused to file any material or
.
document at the stage of framing of charge. The trial court
has to apply its judicial mind to the facts of the case as may be
necessary to determine whether a case has been made out by
the prosecution for trial on the basis of charge-sheet material
only.
9. If the accused is able to demonstrate from the charge-sheet
material at the stage of framing the charge which might
drastically affect the very sustainability of the case, it is unfair
to suggest that such material should not be considered or
ignored by the court at that stage. The main intention of
granting a chance to the accused of making submissions as
envisaged under Section 227 of the Cr. P.C. is to assist the
court to determine whether it is required to proceed to
conduct the trial. Nothing in the Code limits the ambit of such
hearing, to oral hearing and oral arguments only and
therefore, the trial court can consider the material produced
by the accused before the I.O.
10. It is a settled principle of law that at the stage of
considering an application for discharge the court must
proceed on an assumption that the material which has been
brought on record by the prosecution is true and evaluate said
material in order to determine whether the facts emerging
from the material taken on its face value, disclose the
existence of the ingredients necessary of the offence alleged.
This Court in State of Tamil Nadu v. N. Suresh Rajan, (2014) 11
SCC 709 adverting to the earlier propositions of law laid down
on this subject has held:
"29. We have bestowed our consideration to the rival
submissions and the submissions made by Mr. Ranjit
Kumar commend us. 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
Neutral Citation No. ( 2024:HHC:9328 )
pass an order of discharge. It is trite that at the stage of
consideration of an application for discharge, the court has
to proceed with an assumption that the materials brought
on record by the prosecution are true and evaluate the said
.
materials and documents with a view to find out whether
the facts emerging therefrom taken at their face value
disclose the existence of all the ingredients constituting
the alleged offence. At this stage, the probative value of the
materials has to be gone into and the court is not expected
to go deep into the matter and hold that the materials
would not warrant a conviction. In our opinion, what needs
to be considered is whether there is a ground for
presuming that the offence has been committed and not
whether a ground for convicting the accused has been
made out. 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."
11. The defence of the accused is not to be looked into at the
stage when the accused seeks to be discharged. The
expression "the record of the case" used in Section 227 Cr.
P.C. is to be understood as the documents and articles, if any,
produced by the prosecution. The Code does not give any right
to the accused to produce any document at the stage of
framing of the charge. The submission of the accused is to be
confined to the material produced by the investigating
agency."
14. This position was reiterated in Ram Prakash Chadha v.
State of U.P., 2024 SCC OnLine SC 1709 wherein it was observed:
"12. We have already considered the meaning of the
expression "the record of the case and the documents submitted
therewith" relying on the decision in Debendra Nath Padhi's
case (supra) only to re-assure as to what are the materials
falling under the said expression and thus, available for
Neutral Citation No. ( 2024:HHC:9328 )
consideration of an application filed for discharge under
Section 227, Cr. P.C. In light of the same, there cannot be any
doubt with respect to the position that at the stage of
consideration of such an application for discharge, a defence
.
case or material, if produced at all by the accused, cannot be
looked at all. Once "the record of the case and the documents
submitted therewith" are before the Court they alone can be
looked into for considering the application for discharge and
thereafter if it considers that there is no sufficient ground for
proceeding against the accused concerned then he shall be
discharged after recording reasons therefor. In that regard, it
is only appropriate to consider the authorities dealing with
the question as to what exactly is the scope of consideration
and what should be the manner of consideration while
exercising such power.
13. The decision in Yogesh alias Sachin Jagadish Joshi v. State of
Maharashtra (2008) 10 SCC 394: AIR 2008 SC 2991 this Court
held that the words "not sufficient ground for proceeding
against the accused" appearing in Section 227, Cr. P.C.
postulates the exercise of judicial mind on the part of the
Judge to the facts of the case revealed from the materials
brought on record by the prosecution in order to determine
whether a case for trial has been made out. In the decision
in State of Tamil Nadu v. N Suresh Rajan (2014) 11 SCC 709 this
Court held that at a stage of consideration of an application
for discharge, the Court has to proceed with an assumption
that the materials brought on record by the prosecution are
true, and evaluate the materials to find out whether the facts
taken at their face value disclose the existence of the
ingredients constituting the offence. At this stage, only the
probative value of the materials has to be gone into and the
court is not expected to go deep into the matter to hold a
mini-trial.
14. In the decision in BK Sharma v. State of UP 1987 SCC OnLine
All 314, the High Court of Judicature at Allahabad held that the
standard of test and judgment which is finally applied before
recording a finding of conviction against an accused is not to
be applied at the stage of framing the charge. It is just a very
Neutral Citation No. ( 2024:HHC:9328 )
strong suspicion, based on the material on record, and would
be sufficient to frame a charge.
15. We are in agreement with the said view taken by the High
.
Court. At the same time, we would add that the strong
suspicion in order to be sufficient to frame a charge should be
based on the material brought on record by the prosecution
and should not be based on supposition, suspicions and
conjectures. In other words, in order to be a basis to frame a
charge the strong suspicion should be the one emerging from
the materials on record brought by the prosecution.
16. In the decision in Stree Atyachar Virodhi Parishad v. Dilip
Nathumal Chordia (1989) 1 SCC 715, this Court held that the
word 'ground' in Section 227, Cr. P.C. did not mean a ground
for conviction, but a ground for putting the accused on trial.
17. In P. Vijayan v. State of Kerala (2010) 2 SCC 398, after
extracting Section 227, Cr. P.C., this Court in paragraphs No.
10 and 11 held thus: --
"10.
****************
.......If two views are possible and one of them gives rise to
suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage, he is not to see whether the trial will end in conviction
or acquittal. Further, the words "not sufficient ground for
proceeding against the accused" clearly show that the Judge is
not a mere post office to frame the charge at the behest of the
prosecution, but has to exercise his judicial mind to the facts of
the case in order to determine whether 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 a weighing and balancing of evidence and
probabilities which is really the function of the court, after the
trial starts.
11. At the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient
ground for proceeding against the accused. In other words, the
Neutral Citation No. ( 2024:HHC:9328 )
sufficiency of ground would take within its fold the nature of
the evidence recorded by the police or the documents produced
before the court which ex facie disclose that there are
suspicious circumstances against the accused so as to frame a
.
charge against him."
18. In paragraph 13 in P. Vijayan's case (supra), this Court took
note of the principles enunciated earlier by this Court in Union
of India v. Prafulla Kumar Samal (1979) 3 SCC 4 which reads
thus: --
"10....
(1) That the Judge while considering the question of
framing the charges under Section 227 of the Code has
the undoubted power to sift and weigh the evidence for
the limited purpose of finding out whether or not a
prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose
grave suspicion against the accused which has not been
properly explained the Court will be fully justified in
framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible and
the Judge is satisfied that the 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.
(4) That in exercising his jurisdiction under Section 227
of the Code the Judge which under the present Code is a
senior and experienced court cannot act merely as a post
office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total
effect of the evidence and the documents produced
before the Court, any basic infirmities appearing in the
case and so on. This however does not mean that the
Judge should make a roving enquiry into the pros and
Neutral Citation No. ( 2024:HHC:9328 )
cons of the matter and weigh the evidence as if he was
conducting a trial."
19. In the light of the decisions referred supra, it is thus
.
obvious that it will be within the jurisdiction of the Court
concerned to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused concerned has been made out. We are of
the considered view that a caution has to be sounded for the
reason that the chances of going beyond the permissible
jurisdiction under Section 227, Cr. P.C., and entering into the
scope of power under Section 232, Cr. P.C., cannot be ruled out
as such instances are aplenty. In this context, it is relevant to
refer to a decision of this Court in Om Parkash Sharma v. CBI
(2000) 5 SCC 679. Taking note of the language of
Section 227, Cr. P.C. is in negative terminology and that the
language in Section 232, Cr. P.C., is in the positive terminology
and considering this distinction between the two, this Court
held that it would not be open to the Court while considering
an application under Section 227, Cr. P.C., to weigh the pros
and cons of the evidence alleged improbability and then
proceed to discharge the accused holding that the statements
existing in the case therein are unreliable. It is held that doing
so would be practically acting under Section 232, Cr. P.C., even
though the said stage has not been reached. In short, though it
is permissible to sift and weigh the materials for the limited
purpose of finding out whether or not a prima facie case is
made out against the accused, on appreciation of the
admissibility and the evidentiary value such materials
brought on record by the prosecution is impermissible as it
would amount to denial of opportunity to the prosecution to
prove them appropriately at the appropriate stage besides
amounting to exercise of the power coupled with obligation
under Section 232, Cr. P.C. is available only after taking the
evidence for the prosecution and examining the accused.
20. Even after referring to the aforesaid decisions, we think it
absolutely appropriate to refer to a decision of the Madhya
Pradesh High Court in Kaushalya Devi v. State of MP 2003 SCC
OnLine MP 672. It was held in the said case that if there is no
Neutral Citation No. ( 2024:HHC:9328 )
legal evidence, then framing of charge would be groundless
and compelling the accused to face the trial is contrary to the
procedure offending Article 21 of the Constitution of India.
While agreeing with the view, we make it clear that the
.
expression 'legal evidence' has to be construed only as
evidence disclosing prima facie case, 'the record of the case and
the documents submitted therewith'.
21. The stage of Section 227, Cr. P.C. is equally crucial and
determinative to both the prosecution and the accused, we
will dilate the issue further. In this context, certain other
aspects also require consideration. It cannot be said that
Section 227, Cr. P.C. is couched in negative terminology
without a purpose. The charge sheet is a misnomer for the
final report filed under Section 173 (2), Cr. P.C., which is not a
negative report and one that carries an accusation against the
accused concerned of having committed the offence (s)
mentioned therein.
22. In cases, where it appears that the said offence(s) is one
triable exclusively by the Court of Session, the Magistrate
shall have to commit the case to the Court of Session
concerned following the prescribed procedures under Cr.
P.C. In such cases, though it carries an accusation as
aforementioned still legislature thought it appropriate to
provide an inviolable right as a precious safeguard for the
accused, pre-battle protection under Section 227, Cr.
P.C. Though, this provision is couched in negative it obligated
the court concerned to unfailingly consider the record of the
case and document submitted therewith and also to hear the
submissions of the accused and the prosecution in that behalf
to arrive at a conclusion as to whether or not sufficient ground
for proceeding against the accused is available thereunder.
Certainly, if the answer of such consideration is in the
negative, the court is bound to discharge the accused and to
record reasons therefor. The corollary is that the question of
framing the charge would arise only in a case where the court
upon such exercise satisfies itself about the prima facie case
revealing from "the record of the case and the documents
submitted therewith" against the accused concerned. In short,
Neutral Citation No. ( 2024:HHC:9328 )
it can be said in that view of the matter that the intention
embedded is to ensure that an accused will be made to stand
the ordeal of trial only if 'the record of the case and the
documents submitted therewith' discloses ground for
.
proceeding against him. When that be so, in a case where an
application is filed for discharge under Section 227, Cr. P.C., it
is an irrecusable duty and obligation of the Court to apply its
mind and answer to it regarding the existence of or otherwise,
of ground for proceeding against the accused, by confining
such consideration based only on the record of the case and
the documents submitted therewith and after hearing the
submissions of the accused and the prosecution in that behalf.
To wit, such conclusion on the existence or otherwise of
ground to proceed against the accused concerned should not
be and could not be based on mere suppositions or suspicions
or conjectures, especially not founded upon material available
before the Court. We are not oblivious to the fact that
normally, the Court is to record his reasons only for
discharging an accused at the stage of Section 227, Cr.
P.C. However, when an application for discharge is filed under
Section 227, Cr. P.C., the Court concerned is bound to disclose
the reason(s), though, not in detail, for finding sufficient
ground for rejecting the application or in other words, for
finding a prima facie case, as it will enable the superior Court
to examine the challenge against the order of rejection."
15. Thus, in view of the binding precedent of the Hon'ble
Supreme Court, the Court is to see the material collected by the
prosecution against the petitioners to determine whether a prima
facie case is made out against the petitioners.
16. The prosecution asserted that resolution No. 1094 dated
10.04.2017 was ante-dated by Secretary Rajesh Kumar in connivance
with the other Members of the Society. It was stated in the charge
Neutral Citation No. ( 2024:HHC:9328 )
sheet that Rajesh Kumar had sanctioned the loan in favour of
Ashwani Sharma and Nirmala Devi over the loan limit in connivance
.
with the Members of the Committee and these loans were again
shown to be freshly disbursed on 31.03.2017 in the name of 110
fictitious loanees. Resolution No. 1094 was also prepared by him. It
was also stated that Rajender Kumar, Ashwani Sharma and Nirmala
Devi had obtained the loan fraudulently. The resolution of the
Society bears the signatures of the Managing Committee. These
allegations prima facie show that the Members of the Managing
Committee had facilitated the disbursal of the loan fraudulently by
putting their signatures. Whether these allegations can be proved or
not is not the question to be determined, at this stage, and is a
matter of trial. The learned Trial Court had rightly held that these
allegations constituted the involvement of the petitioners and other
Committee Members with the fraudulent disbursal of the loan.
17. Significantly the copies of the resolutions inducting the
petitioners were not placed on record which would have
corroborated the version of the petitioners regarding their
induction. Reference was made to the copies of the resolution
extracted in the application seeking discharge. However, in the
absence of the actual resolutions, the resolution quoted in the
Neutral Citation No. ( 2024:HHC:9328 )
application seeking discharge cannot be relied upon. Further,
resolution No. 1094 quoted in the application shows that the loan
.
was sanctioned in favour of the loanees with effect from 01.04.2016
to 31.03.2017 and this resolution was passed in the meeting of the
Committee unanimously, which shows the involvement of the
petitioners.
18. It was contended that this resolution was passed behind
the back of the Management Committee. This is a matter of trial and
cannot be determined at this stage. The resolution prima facie shows
that it was passed unanimously in the meeting of the Committee and
the petitioners being the members of the Committee cannot escape
from liability at this stage.
19. Hence the learned Trial Court had rightly held that the
petitioners could not be discharged based on the material placed
before the Court and there is no infirmity in the order passed by the
learned Trial Court.
20. The judgment in Sharif Ahmed (Supra) held that
sufficient detail regarding the involvement of the accused is
required to be given. In the present case, it was specifically stated
that Members of the Management Committee had signed the
resolution authorizing the disbursal of the fraudulent loan, which
Neutral Citation No. ( 2024:HHC:9328 )
shows their involvement. Thus, this judgment will not assist the
petitioners in any manner.
.
21. The learned Trial Court had framed the charges for the
commission of the offences punishable under Sections 420 and 120B
of IPC against petitioner Sharwan Singh and Rakesh Kumar. The
allegations in the charge sheet show that the petitioners along with
other members of the Committee had signed a fictitious resolution
and made a representation to the Members of the Committee
regarding the authorization to disburse the loan and thereby
facilitated the disbursal of the loan. Thus, there is no infirmity in
framing the charges for the commission of aforesaid offences.
22. Consequently, there is no merit in the present revision
petition. Hence, the same is dismissed.
23. The observation made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
24. The parties through their respective counsel are directed
to appear before the learned trial court on 23rd October, 2024.
(Rakesh Kainthla)
Judge
30th September, 2024
(Nikita)
