Jharkhand High Court

Md. Mejaj Alam vs The Union Of India on 30 August, 2023

                                          1                     Cr.Rev. No. 675 of 2023 &
                                                                Cr.Rev. No. 748 of 2023




             IN THE HIGH COURT OF JHARKHAND, RANCHI
                                ----

Cr.Rev. No. 675 of 2023

----

      Md. Mejaj Alam                                   .... Petitioner
                                --   Versus      --
      The Union of India, through C.B.I.               .... Opposite Party
                                       With
                              Cr.Rev. No. 748 of 2023
                                        ----
      Md. Rahamatullah                                 .... Petitioner
                                --   Versus      --
      The Union of India, through C.B.I.               .... Opposite Party

                                        ----

CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

---

For the Petitioners :- Mr. Balaji Srinivasan, Advocate Mr. Niranjan Kumar, Advocate [Cr.Rev. No. 675 of 2023] Mr. Lukesh Kumar, Advocate [Cr.Rev. No. 748 of 2023] For the C.B.I. :- Mr. Anil Kumar, A.S.G.I.

Ms. Chandana Kumari, A.C to A.S.G.I.

Mr. Nitish Parth Sarthi, A.C. to A.S.G.I.

----

5/30.08.2023 In both the cases, the order can be dictated today as both

the cases are arising out of same F.I.R with consent of the parties.

2. Both these cases are listed today at sl.nos.19 and 20

respectively under the heading 'Fresh Filing' and both the cases are

arising out of the same F.I.R and in view of that, both the cases are

being heard together.

3. Heard Mr. Balaji Srinivasan, the learned counsel for the

petitioner in Cr.Rev.No.675 of 2023 and Mr. Lukesh Kumar, the learned

counsel appearing for the petitioner in Cr.Rev. No.748 of 2023 and

Mr. Anil Kumar, the learned A.S.G.I appearing on behalf of the

respondent- C.B.I., in both the cases.

4. In both criminal revision petitions, the petition of discharge

are also similar and by a common order, in both the cases, the discharge

petitions filed by the petitioners have been rejected by the learned court.

5. The present criminal revision petitions have been filed for

Cr.Rev. No. 748 of 2023

setting aside the order dated 29.04.2023 passed by the learned Special

Judge, C.B.I., Dhanbad in M.C.A. No.777 of 2022 and M.C.A. No.1613 of

2022 arising out of R.C.Case No.6A/2013-D, pending in that learned

court.

6. On the written complaint, the case was registered alleging

therein that the case is based on written complaint bearing

No.CCL/VIG/RI-7/2012/RDA-04-13/13-14/808 dt.19.06.2013 lodged by

Sri Shailendra Singn, Sr. Manager & HOD (Security), Darbhanga House,

CCL, Ranchi before SP, CBI, ACB Dhanbad, Ranchi alleging that-

In Criminal Revision No.675 of 2023:

A. On 05.07.2012, officials of Vigilance Department, CCL, Ranchi

conducted a surprise check, Kathara Washery, C.C.L to verify the

source information received regarding fraudulent misappropriation

of sale of slurry and coal rejects of 25000 MT approx. worth Rs.4

crores approx.. at Kathara washery Kathara Area of Central

Coalfields Ltd (CCL), Ranchi by public servants working at Kathara

Washery CCL in connivance with private parties.

B. During the Surprise check it was revealed that during the period of

2010-2011 public servants working at Kathara Washery (Md. Islam

Ansari, then UDC Clerk Grade-I; Md. Rahamatullah, the then

weighbridge clerk, Grade-II, Sri Ajay Kumar Singh, the then Helper

Category-II, Sri Navin Kumar, Manager (Coal preparation) and Sales

Incharge Shri J.s. Srivastava, then Chief Manager (Coal

preparation) and Project officer all of Kathara washery, Kathara

Area, CCL in connivance with some private parties have fraudulently

misappropriated sale of slurry and coal rejects of 25000 MT approx.

worth Rs.4 crores approx. of Kathara Washery, Kathara Area of

Central Coal Fields Limited, Ranchi.

In Criminal Revision No.748 of 2023:

Cr.Rev. No. 748 of 2023

That it is stated that the prosecution case is based on

written complaint given by Sri Shailendra Singh, Senior Manager

(Security), HOD (Security), Darbhanga House, CCL, Ranchi to

the Superintendent of Police, C.B.I., Dhanbad on 19.06.2012 is

inter alia that as per laid down norms & guidelines viz. sales

policy of CCL, Ranchi, sale of slurry & Rejects (valuable by-

product of washery) is being done from various sale points

including Kathara washery of Kathara Area, CCL, Slurry in

dispatched to the consumers/purchasers (having Fuel Supply

Agreement with CCL or authorized e-auction bidder) and coal

rejects are dispatched to the authorized e-auction bidders

against sale orders issued by Sales & marketing Division of CCL

HQ against deposition of due sale price. Person(s)/Parties in

whose favour sales orders are issued to lift the material

(Slurry/Coal rejects) from the respective sales points through

their authorized representative. On receipt of sale order at

respective area Office, the area Sales office in turn issues a

release order to the sales centre of the area authorizing the

private party for lifting the mentioned quantity of material.

Documentation to this effect, such as sale order, release order,

lifting order, loading/punching card, security check post register,

Road sale weighbridge record, sale ledger, Challan, Monthly

lifting-cum-balance statement etc. regarding sale of above

material are to be maintained by concerned offices such as

sales office, Security I/c of the project and Weighbridge I/c of

Kathara Washery, CCL. A Surprise Check was also conducted on

05-07-2012 at Kathara Washery, CCL, by the officials of

Vigilance Department, CCL for verifying source information

regarding misappropriation and fraudulent sale of Slurry and

Cr.Rev. No. 748 of 2023

Rejects by the officials of Kathara washery, CCL, in connivance

with some private parties. It was also revealed that some

parties, as described below, had lifted more than 500 MT of

slurry/reject without paying value. Md. Islam Ansari, the then

UDC, Clerk Grade-1, Md. Rahamatullah, the then Weighbridge

Clerk, Grade-II, Shri Ajay Kumar Singh, the then Helper,

Category-II, Shri Navin Kumar, manager (coal preparation) &

Sales Incharge and Shri J S Srivastava, the then Chief

Manager(coal preparation) & Project Officer of Kathara

Washery, Kathara Area, CCL connived with private persons

(quantity of 500 MT and above) namely Shri Pramod Kumar

Singh, Proprietor of M/s Barun Kumar Singh, Shri Iftikar Alam,

Proprietor of M/s B D Enterprises, Shri Arun Kumar Agrawal,

Proprietor of M/s Arun Kumar Agrawal, Md. Hasim, Proprietor of

M/s GGN Construction, M/s Namita Singh, Proprietor of M/s

Namita Singh, Shri Rakesh Sondhi, Proprietor of M/s Milage Com

(P) Ltd., Shri Amit Kejriwal, Proprietor of M/s Amit Kejriwal and

Shri Sunil Kejriwal, Proprietor of M/s Jagdish Enterprises and

other unknown parties/persons during 2010-2011 with a view to

cheat & defraud CCL, Ranchi and in pursuance thereof they

have dishonestly & fraudulently dispatched rejects & Slurry

aggregating 25000 MT (approx) from Kathara washery, Kathara

Area, CCL without realizing the sid: value of aforesaid material

worth Rs. 4 Crores (approx) and thereby causing wrongful loss

to CCL and corresponding wrongful gain to private parties. Md.

Islam Ansari, Md. Rahamatullah, Shri Ajay kumar Singh, Shri

Navin Kumar, the then Manager(coal preparation) & Sales

Incharge, Shri J. S Srivastava, the then Chief Manager(coal

preparation) & Project Officer, all of Kathara Washery, Kathara

Cr.Rev. No. 748 of 2023

Area, CCL have prepared and issued lifting order,

Loading/Punching card, Challans/sales Invoice etc. and allowed

dispatch of Slurry & Reject from Kathara Washery during 2010-

2011, whereas, they dishonestly & fraudulently abusing their

official position, have willfully not recorded the dispatch of

approx. 15355.645 MT of Slurry & 9904.17 MT of

Rejects(aggregating 25,259.815 MT) in the prescribed sales

ledger of kathara Washery as well as in monthly lifting-cum-

balance statements for above period.

Further, for the month of January-2011, officials of

Kathara Washery have dishonestly & fraudulently issued false

lifting-cum-balance statement of Kathara Washery, incorrectly

citing "Company Fault" as reasons for short lifting against some

of the sale orders, and thereby dishonestly and fraudulently

allowed undue refund without imposition of possible penalty

from such parties. Out of such firms, the above said dishonest &

fraudulent dispatches of rejects/slurry and misappropriation by

the said officials of Kathara washery in connivance with the said

parties by way of creating/using false documents, resulted into

undue and wrongful loss to CCL, Kathara to the tune of

approximately Rs. 4 crores and corresponding wrongful gain to

themselves.

It is therefore, requested that an FIR be lodged against

Md. Islam Ansari, the then UDC, Clerk Grade-1, Md.

Rahamatullah, the then weighbridge Clerk, Grade-II, Shri Ajay

Kumar Singh, then Helper, Category-II, Shri Navin Kumar,

Manager (Coal preparation) & Sales Incharge and Shri J. S.

Srivastava, the then Chief Manager(Coal preparation) & Project

Officer, all of Kathara Washery. Kathara Area, CCL, private

Cr.Rev. No. 748 of 2023

persons namely Shri Pramod Kumar Singh, Proprietor of M/s

Barun Kumar Singh, Shri Iftikar Alam, Proprietor of M/s B D

Enterprises, Shri Arun Kumar Agrawal, Proprietor of M/s Arun

Kumar Agrawal, Md. Hasim, Proprietor of M/s GGN Construction,

M/s Namita Singh, Proprietor of M/s Namita Singh, Shri Rakesh

Sondhi, Proprietor of M/s Milage Com (P) Ltd., Shri Amit

Kejriwal, Proprietor of M/s Amit Kejriwal and Shri Sunil Kejriwal,

Proprietor of M/s Jagdish Enterprises and others unknown,

investigation be carried out and persons or firms/companies

responsible for causing fraud may be booked as per provisions

of law.

On the basis of aforesaid complaint an FIR bearing

M.C.A. Case No. 1613/2022 arising out of R.C. Case no.

6A/2013-D registered for the offences u/s 120 B, r/w 409, 420,

468, 471, 477-A of I.P.C. and u/s 13 (2) r/w 13 (1)(c) & (d) of

Prevention of Corruption Act, 1988 was registered against the

petitioner.

6. Mr. Srinivasan, the learned counsel appearing on behalf of

the petitioner in Criminal Revision No.675 of 2023 submits that so far the

petitioner in this petition namely, Md. Mejaj Alam is concerned is not

named in the F.I.R. being R.C.6(A)/2013-T registered by C.B.I. (A.C.B.),

Dhanbad dated 21.06.2013 nor mentioned in the complaint dated

15.06.2013. He submits that there is no role as alleged assigned to the

petitioner in the complaint which is the basis of the F.I.R, however, the

C.B.I. has erroneously charge sheeted this petitioner and to substantiate

his argument, he took the Court to the charge sheet which has been

annexed with the criminal revision petition. He submits that the petitioner

is only a lifting agent of a particular company and he has got no role in

purchasing of the coal or the slur from M/s C.C.L. and to buttress his

Cr.Rev. No. 748 of 2023

argument, he refers to charge sheet with regard to the name and

occupation of the petitioner i.e. at page no.71 of the concerned criminal

revision petition. By way of placing the same, he submits that it is an

admitted fact that the petitioner was only authorized lifter of M/s B.C.

Enterprises and M/s Amit Kejriwal. So far as the purchasers are

concerned, he refers to page no.77 of the petition which is the part of

the charge sheet and submits that so far Promod Kumar Singh is

concerned who is proprietor not charge sheeted on the ground that the

FIR against these accused persons could not be substantiated during the

investigation. He also took the Court to the brief facts of the case

disclosed in the charge sheet and submits that the allegations are there

that due to criminal conspiracy the petitioner along with other co-accused

fraudulently and dishonestly misappropriated approx. 15355.645 M.T slur

of worth value of Rs.2,74,51,107.88 and 9904.17 M.T coal reject of worth

value of Rs.1,26,98,140.78 of Kathara Washery, Kathara Area of M/s

C.C.L and thereby caused wrongful loss to the tune of

Rs.4,01,49,248.66/- approx. and corresponding wrongful gain to

themselves and others. He submits that thereafter it has been stated that

in the investigation, the name of this petitioner has come and therefore

he has been arrayed as one of the accused. He further draws the

attention of the Court to the charge sheet and submits that it has come

that the rejects and slurry of Kathara Washery were sold through e-

auction and the same has been transported through the road. Relying on

this, he submits that once the e-auction is there, there is no question of

making any fraudulent action on behalf of the petitioner who happened

to be only lifter of the two of the proprietors who are the purchasers of

the coal rejects and slurry. He further submits that in the entire charge

sheet and very fairly he has taken the Court to each and every

paragraphs as well as lines of the charge sheet and by way of referring

Cr.Rev. No. 748 of 2023

this charge sheet he submits that apart from that, there is no allegation

against the petitioner. He submits that even it has come in the charge

sheet that the sale consideration has been returned to the purchasers.

He further submits that no case of forgery in view of the charge sheet

against the petitioner is made out in view of section 415 of the IPC which

is the definition section and if that is absent, the section 420 IPC is not

attracted. He further submits that there is no question of making any

forged document on behalf of the petitioner and in view of that, the IPC

sections 467 and 468 are not attracted. He submits that the petitioner

was only lifting agent and on the basis of valid documents he has only

lifted the coal or the slurry. He also draws the attention of the Court to

the chart in the charge sheet with regard to sale order number, punching

card number, fraudulent quantity, despatched in M.T., name of sales in-

charge who has signed on fraudulent challan, name of sales clerk who

has signed on fraudulent challan, name of authorized lifter agent,

lifter/agent responsible for fraudulent lifting, lifter/ agent responsible for

fraudulent lifting as per loading slip and sales clerk who has signed on

fraudulent punching card. By way of referring such charge, he submits

that in some of the column the petitioner has signed with regard to lifting

of the coal or slur and that was on the basis of authorized documents. He

further submits that finally in the charge sheet the case against the

petitioner has been sum up by way of saying that the petitioner has lifted

material even more than the quantity of coal against the sale order in

which he was the authorized agent by signing challan-cum-gate passes

and loading slips which is in absence of any cogent material. He further

submits that it has been wrongly alleged in the charge sheet that the

petitioner has lifted material more than the quantity of coal rejects

against sale orders for which he was not an authorized agent by signing

challan and gate passes and loading slips. He further submits that the

Cr.Rev. No. 748 of 2023

allegation made in the charge sheet is about active involvement of this

petitioner in the alleged fraud was also based on without any material.

He submits that once the charge sheet itself is vague, there is no reason

of framing of charge and the petitioner is entitled to be discharged. He

submits that the law is well settled in this regard as if two views are

possible, and the view which is coming in favour of the petitioner, that is

required to be followed and the discharge is a rule. To buttress all his this

argument, he relied in the case of Dilawar Balu Kurane v. State of

Maharashtra, (2002) 2 SCC 135, and he refers to paragraph no.12

and 14 of the said judgment, which is quoted below:

12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial (see Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609] ).

14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the

Cr.Rev. No. 748 of 2023

appellant.

7. Relying on this judgment, he submits that the Judge who is

considering the discharge petition is required to weigh the evidence and

the Judge is not a post office and that is the ratio of judgment and the

case of the petitioner is fully covered in light of the said judgment. He

further refers to the case of Samir Sahay @ Sameer Sahay v. State

of Uttar Pradesh and Another, (2017) 9 SCR 731 and refers to

paragraph nos.14 to 16, 18 to 19 and 21 to 23 of the said judgment

which are quoted below:

14. The application was filed by the appellant seeking discharge on the ground that there is no evidence to frame charge under Section 420 IPC. The learned Chief Judicial Magistrate while rejecting the application filed by the appellant for discharge has observed that on the assurance of both Major P.C. Sahay (Retd.) and the appellant, the complainant and his wife deposited Rs 86,000. The learned Chief Judicial Magistrate has given the following reasons for rejecting the application: "It has been clearly mentioned in the FIR that after the assurance of deceased P.C. Sahay and his son Samir Sahay the money was invested in the Company. As well as it has also been mentioned that accused Samir Sahay was receiving commission from the Company after perusing all the evidence in the file as per law there is proof to frame allegation against accused Samir Sahay."

15. The order passed by the Chief Judicial Magistrate was challenged. The High Court by brief order has dismissed the revision observing that the counsel for the revisionist could not point out any manifest error or otherwise illegality so as to warrant interference.

16. Before we proceed further to examine the contentions of the learned counsel for the parties, it is necessary to notice the ingredients for establishing a charge under Section 420 IPC. Section 415 IPC defines "cheating" which is to the following effect:

"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"."

Cr.Rev. No. 748 of 2023

17. Section 420 IPC is with regard to the cheating and dishonestly inducing delivery of property which is to the following effect:

"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. According to Section 415 IPC, the inducement must be fraudulent and dishonest which depends upon the intention of the accused at the time of inducement. This Court had occasion to consider Sections 415 and 420 IPC in Hridaya Ranjan Prasad Verma v. State of Bihar [Hridaya Ranjan Prasad Verma v. State of Bihar, (2000) 4 SCC 168 : 2000 SCC (Cri) 786] . This Court after noticing the provisions of Sections 415 and 420 IPC stated the following in paras 14 and 15: (SCC pp. 176-77) "14. On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

15. In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time of inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such a culpable intention right at the beginning, that is, when he made the promise cannot be presumed."

19. Again in Dalip Kaur v. Jagnar Singh [Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 : (2010) 2 SCC (Cri) 223] , this Court

Cr.Rev. No. 748 of 2023

noticed the ingredients of Section 420 IPC. In paras 9 to 11 the following was stated: (SCC pp. 699-700) "9. The ingredients of Section 420 of the Penal Code are: '(i) Deception of any persons;

(ii) Fraudulently or dishonestly inducing any person to deliver any property; or

(iii) To consent that any person shall retain any property and finally intentionally inducing that person to do or omit to do anything which he would not do or omit.'

10. The High Court, therefore, should have posed a question as to whether any act of inducement on the part of the appellant has been raised by the second respondent and whether the appellant had an intention to cheat him from the very inception. If the dispute between the parties was essentially a civil dispute resulting from a breach of contract on the part of the appellants by non- refunding the amount of advance the same would not constitute an offence of cheating. Similar is the legal position in respect of an offence of criminal breach of trust having regard to its definition contained in Section 405 of the Penal Code. (See Ajay Mitra v. State of M.P. [Ajay Mitra v. State of M.P., (2003) 3 SCC 11 : 2003 SCC (Cri) 703] )

11. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta [R. Kalyani v. Janak C. Mehta, (2009) 1 SCC 516 : (2009) 1 SCC (Cri) 567] is attracted, which are as under: (SCC p. 523, para

15) '(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.

(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.

(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the Court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus. (4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue.'"

21. In the first information report even allegation of making assurance was not made against the appellant but was made against Major P.C. Sahay (Retd.), father of the appellant. There

Cr.Rev. No. 748 of 2023

was no allegation that the appellant fraudulently or dishonestly induced the complainant to deposit money. This Court in Arun Bhandari v. State of U.P. [Arun Bhandari v. State of U.P., (2013) 2 SCC 801 : (2013) 2 SCC (Cri) 21] , has held that it is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating. An earlier two-Judge Bench judgment of this Court in State of Kerala v. A. Pareed Pillai [State of Kerala v. A. Pareed Pillai, (1972) 3 SCC 661 : 1972 SCC (Cri) 705] , was quoted with approval in para

21. Paras 21, 22, 23 and 24 which are relevant are to the following effect: (Arun Bhandari case [Arun Bhandari v. State of U.P., (2013) 2 SCC 801 : (2013) 2 SCC (Cri) 21] , SCC pp. 811-12) "21. Before we proceed to scan and analyse the material brought on record in the case at hand, it is seemly to refer to certain authorities wherein the ingredients of cheating have been highlighted. In State of Kerala v. A. Pareed Pillai [State of Kerala v. A. Pareed Pillai, (1972) 3 SCC 661 : 1972 SCC (Cri) 705] a two-Judge Bench ruled that: (SCC p. 667, para 16) '16. ... To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise [and] such a dishonest intention cannot be inferred from [a] mere fact that he could not subsequently fulfil the promise.'

22. In G.V. Rao v. L.H.V. Prasad [G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 : 2000 SCC (Cri) 733] , this Court has held thus: (SCC pp. 696-97, para 7) '7. As mentioned above, Section 415 has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property; in the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. As observed by this Court in Jaswantrai Manilal Akhaney v. State of Bombay [Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 575 : 1956 Cri LJ 1116] , a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person, must be established. It was also observed in Mahadeo Prasad v. State of W.B. [Mahadeo Prasad v. State of W.B., AIR 1954 SC 724 : 1954 Cri LJ 1806] , that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.'

23. In S.W. Palanitkar v. State of Bihar [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] it has been laid

Cr.Rev. No. 748 of 2023

down that: (SCC p. 250, para 21) '21. ... In order to constitute an offence of cheating, the intention to deceive should be in existence at the time when the inducement was made. It is necessary to show that a person had fraudulent or dishonest intention at the time of making the promise, to say that he committed an act of cheating. A mere failure to keep up promise subsequently cannot be presumed as an act leading to cheating.'

24. In the said case while dealing with the ingredients of criminal breach of trust and cheating, the Bench observed thus: (S.W. Palanitkar case [S.W. Palanitkar v. State of Bihar, (2002) 1 SCC 241 : 2002 SCC (Cri) 129] , SCC p. 246, paras 9-10) '9. The ingredients in order to constitute a criminal breach of trust are: (i) entrusting a person with property or with any dominion over property, (ii) that person entrusted (a) dishonestly misappropriating or converting that property to his own use; or (b) dishonestly using or disposing of that property or wilfully suffering any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged, (ii) of any legal contract made, touching the discharge of such trust.

10. The ingredients of an offence of cheating are: (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by, (ii)(b) the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.'"

22. The Chief Judicial Magistrate while rejecting the application of the appellant for seeking discharge has not even referred to any allegation or evidence on the basis of which it can be said that ingredients of Section 420 IPC were made out in the facts of the present case.

23. We are, thus, of the considered opinion that in the present case ingredients of Section 420 IPC were not made out so as to frame any charge under Section 420 IPC against the appellant.

8. By way of relying on this judgment, Mr. Srinivasan, the

learned counsel for the petitioner submits that in this judgment

interpretation of section 415 and section 420 of the I.P.C has been made

by the Hon'ble Supreme Court and if there is no inducement and that too

Cr.Rev. No. 748 of 2023

must be fraudulent and dishonest, then only these sections are attracted.

He submits that the case of the petitioner on that point is fully covered in

view of this case and the petitioner is fit to be discharged. He further

relied in the case of Hridaya Rangan Prasad Verma v. State of

Bihar and Another, (2021) 3 SCR 859 and particularly refers to page

869 of the said judgment and refers placitum 'e', 'f', 'g' and 'h' of the said

judgment which is on that page and the same are extracted

hereinbelow:-

On a reading of the section it is manifest that in the definition there are set forth two separate classes of acts which the person deceived may be induced to do. In the first place he may be induced fraudulently or dishonestly to deliver any property to any person. The second class of acts set forth in the section is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. IN the first class of cases the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but not fraudulent or dishonest.

In determining the question it has to be kept in mind that the distinction between mere breach of contract and the offence of cheating is a fine one. It depends upon the intention of the accused at the time to inducement which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of the transaction, that is the time when the offence is said to have been committed. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise.

9. Relying on this judgment, Mr. Srinivasan, the learned

counsel for the petitioner submits that the case of the petitioner is

covered as to hold a person guilty of cheating, it is necessary to show

that he has fraudulent and dishonest intention at the time of making

promise. He further refers to the case of Mohammed Ibrahim and

Others v. State of Gujarat and Another, (2009) 8 SCC 751 and

refers to paragraph nos.13 and 17 of the said judgment which are quoted

below:

Cr.Rev. No. 748 of 2023

13. The condition precedent for an offence under Sections 467 and 471 is forgery. The condition precedent for forgery is making a false document (or false electronic record or part thereof). This case does not relate to any false electronic record. Therefore, the question is whether the first accused, in executing and registering the two sale deeds purporting to sell a property (even if it is assumed that it did not belong to him), can be said to have made and executed false documents, in collusion with the other accused.

17. When a document is executed by a person claiming a property which is not his, he is not claiming that he is someone else nor is he claiming that he is authorised by someone else. Therefore, execution of such document (purporting to convey some property of which he is not the owner) is not execution of a false document as defined under Section 464 of the Code. If what is executed is not a false document, there is no forgery. If there is no forgery, then neither Section 467 nor Section 471 of the Code are attracted.

10. Relying on this judgment, Mr. Srinivasan, the learned

counsel submits that forgery of a document against the petitioner is not

made out and the learned court has erroneously dismissed the petition

filed by the petitioner for discharge. On this ground, he submits that the

petitioner may kindly be allowed to be discharged and the impugned

order may kindly be set aside.

11. Mr. Lukesh, the learned counsel appearing in Cr.Revision

No.748 of 2023 adopted the argument of Mr. Srinivasan, the learned

counsel appearing in Cr. Revision No.675 of 2023 and he only added by

way of submitting that in the impugned order the learned court has

considered that the petitioner was a sales clerk grade -II of Kathara

Washery which is erroneous in view of the fact that in the application

made under the Right To Information Act, it has been informed to the

petitioner that he was posted as weigh-bridge cleark-II for the same

period and he submits that in view of this, the case of the petitioner is

further strengthened and the petitioner is fit to be discharged.

12. Per contra, Mr. Anil Kumar, the learned A.S.G.I appearing on

behalf of the C.B.I submits that the procedure has been disclosed in the

charge sheet itself and based on the inputs from the Washery it has

Cr.Rev. No. 748 of 2023

transpired that area office offers amount of coal rejects/slurry available

for same to CCL Headquarters. NIT issued by the CCL Headquarters

based on e-auction, sale order is issued to the successful bidder (buyer)

after receiving full price of the auction material by the CCL Headquarter

and the same is collected by the buyer or their authorized representative/

lifting agent. He submits that buyers are required to receive and lift the

coal rejects/ slurry within 45 days of issue of sale order. He further

submits that in paragraph no.2 it has come that buyer or their authorized

representative (handling agent) further issue authorization to another

private party (lifting agent/lifter -in common parlence) and handover the

original sale order to this lifter to arrange for lifting the purchased

quantity of coal rejects/ slurry. The authorized lifting agent or persons,

generally, driver of a truck gives a hand written chit showing sale order

number, D.O. Holder number, product-slurry/ coal rejects, truck number

to be used for lifting. The driver further report to the sales clerk of sales

office Kathara Washery for issuance of loading card, termed as punching

card. He submits that all these facts has come in the investigation which

has been disclosed in the charge sheet. He further submits that it has

come in the charge sheet at paragraph no.10 that the Area General

Manager is supposed to sign the sale certificate only in case of e-auction

sale order. Short lifting of Zero lifting due to company fault practically

fault of officials of Kathara Washery as indicated in foot-note of the said

certificate has been also disclosed. He submits that the role of these two

petitioners have been summarized in the charge sheet. He submits that

in view of the materials on record and the charge sheet this is not a case

to discharge the petitioners when the prima facie materials are there and

this is not the stage to consider those aspects when the strong prima

facie case is made out. He further submits that the said charge sheet has

been based on the proper investigation and the C.B.I has also looked into

Cr.Rev. No. 748 of 2023

the different documents and thereafter has filed the charge sheet and he

refers to the list of documents contained as Annexure-1 in the charge

sheet. He relied in the case of State, through Deputy

Superintendent of Police v. R. Soundararasu etc., 2022 AIR SC

4218 and refers to paragraph nos.61, 72, 75, 76 and 81 of the said

judgment, which are quoted as under:

61.Section 239 of the CrPC lays down that if the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused. The word 'groundless', in our opinion, means that there must be no ground for presuming that the accused has committed the offence. The word 'groundless' used in Section 239 of the CrPC means that the materials placed before the Court do not make out or are not sufficient to make out a prima facie case against the accused.

72.The ambit and scope of exercise of power under Sections 239 and 240 of the CrPC, are therefore fairly well settled. The obligation to discharge the accused under Section 239 arises when the Magistrate considers the charge against the accused to be "groundless". The Section mandates that the Magistrate shall discharge the accused recording reasons, if after (i) considering the police report and the documents sent with it under Section 173, (ii) examining the accused, if necessary, and (iii) giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, i.e., either there is no legal evidence or that the facts are such that no offence is made out at all. No detailed evaluation of the materials or meticulous consideration of the possible defences need be undertaken at this stage nor any exercise of weighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Section 239/240 is as to whether the allegation/charge is groundless.

75.In Munna Devi v. State of Rajasthan and Anr., (2001) 9 SCC 631 : (AIR 2002 SC 107 : 2002 CRI. L. J. 225 (SC) ), this Court held as under:-

"3.....The revision power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the first information report even if they are taken at the face value and accepted in their entirety do

Cr.Rev. No. 748 of 2023

not constitute the offence for which the accused has been charged."

76.Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with appellate power. A revisional court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure.

81.In the overall view of the matter, we are convinced that the impugned orders passed by the High Court are not sustainable in law and deserve to be set aside. The circumstances emerging from the record of the case, prima facie, indicate the involvement of the accused persons in the alleged offence. Having regard to the materials on record, it cannot be said that the charge against the accused persons is groundless. There are triable issues in the matter. If there are triable issues, the Court is not expected to go into the veracity of the rival versions.

13. Relying on this judgment, he submits that at this stage this

Court may not discharge the petitioners.

14. In view of the above submission of the learned counsels

appearing on behalf of the parties, the Court has gone through the

materials on record including the charge sheet annexed with the petition

as well as the impugned order passed by the learned court. It is an

admitted fact that initially the petitioner was not named in the F.I.R,

however, in the investigation the role of the petitioners have been

revealed and that is why the petitioners have been charge sheeted by the

C.B.I. In the charge sheet, the allegations are there that the accused

persons including the employees of M/s C.C.L. as well as these

petitioners in a criminal conspiracy fraudulently and dishonestly

misappropriated aprox. 1355.645 M.T of slurry of worth value of

Rs.2,74,51,107.88 and 9904.17 M.T of coal rejects of worth value of

Cr.Rev. No. 748 of 2023

Rs.1,26,98,140.78 of Kathara Washery, Kathara Area of M/s C.C.L and

thereby caused wrongful loss to the tune of Rs.4,01,49,248.68/- approx.

corresponding to wrongful gain to themselves and others. The complicity

of the petitioners was found and thereafter the petitioners have been

arrayed as accused in the said charge sheet. The procedure has also

been disclosed in the said charge sheet wherein it has been disclosed

that the Area Office offers amount of coal rejects/ slurry available for sale

to M/s C.C.L Headquarters, N.I.T issued by M/s C.C.L Headquarters and

based on e-auction sale, order is issued to the successful bidder (buyer)

after receiving full price of the auction materials by the M/s C.C.L

Headquarters and the same is collected by the buyer or their authorized

representative/ handling agents and the buyers are required to receive

and lift the coal rejects/ slurry within 45 days of the issue of sale. Thus, it

is clear that on receiving of the full amount with regard to the said coal

rejects/ slurry the bills are being issued and the handling agent are lifting

the same by way of producing the written chit. The loading card is also

known as punching card. It has been disclosed that the Area General

Manager is only sighing the certificate with regard to e-auction sale order

and for the rest, he is not signing. It has come in the charge sheet that

weigh bridge registers and the compact disc of Kathara Washery was

found to be 1411.95 M.T of slurry rejects was illegally dispatched against

six sales orders and the numbers are also disclosed in paragraph no.10 of

the charge sheet and it has been stated that the said was not authorized

by the M/s C.C.L, Ranchi to lift any slurry/rejects from Kathara Washery

and whereas these SOs were illegally and unauthorized utilized in

Kathara Washery and the accused persons got issued false and fabricated

challan cum gate passes, punching cards etc. worth of 1411.95 M.T of

slurry/ rejects which has caused and undue loss to the M/s C.C.L and

corresponding to undue gain to the others. It has come in the charge

Cr.Rev. No. 748 of 2023

sheet that atleast six numbers of challans were unauthorizedly utilized for

lifting the slur to the tune of 1411.95 M.T. The question remains that

when such has come in the investigation, whether the argument

advanced by the learned counsel for the petitioners with regard to

making out a case under section 415 and 420 of the IPC as well as

section 468 of the IPC are made out or not, the answer is simply 'yes' in

view of the fact that it has come that atleast six numbers of challans

have been used unauthorizedly. The petitioner, namely, Md. Mejaj Alam

admittedly the lifters of two of the companies namely M/s B.D.Enterprises

and M/s Amit Kejriwal. The Court further finds that Annexure-1 of the

charge sheet is the list of the documents on which the investigation has

been made. The certified copy of details of original sale order was

examined by the CBI and the other documents were also there. The

punching card is disclosed at serial no.15 and the said punching cards

are numerous which has been disclosed in the said document. Thus, it

appears that to find out whether the petitioners role is there with regard

to the said documents which is voluminous in nature, that cannot be a

subject matter of consideration while the Court is considering the petition

for discharge and that can be only in course of the trial. The judgments

relied by Mr. Srinivasan, the learned counsel appearing for the petitioner

are not in dispute. If the principles are well settled and on the principles

on the facts on those cases have been held by the Hon'ble Supreme

Court.

15. Coming to the facts of the present case, there are

allegations of lifting of slurry to the tune of 1411.51 M.T. in absence of

authorized challan and that is based on voluminous document which is

enclosed as Annexure-1 to the charge sheet. The Court is in agreement

with the argument of Mr. Srinivasan, the learned counsel appearing for

the petitioner that the Court is not a post office and a sterio type order

Cr.Rev. No. 748 of 2023

cannot be passed merely based on the charge sheet submitted by any of

the agency and the weighing value of this evidence prima facie is

required to be enquired by the court concerned but that enquiry is also

to a limited extent to find out the prima facie case, not a enquiry, like,

the trial which can be only in course of the trial. It is well settled that at

the time of considering the discharge petition, 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

confusion. A reference may be made to the case of State of Tamilnadu

by Inspector of Police in Vigilance and Anti Corruption v.

N.Suresh Rajan and Others, (2014) 11 SCC 709, wherein at

paragraph no.29, 32.4, 33 and 34 it was held as under:

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 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, 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. 32.4. While passing the impugned orders [N. Suresh Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528 of 2009, order dated 10-12-2010 (Mad)] , [State v. K. Ponmudi,

Cr.Rev. No. 748 of 2023

(2007) 1 MLJ (Cri) 100] , the court has not sifted the materials for the purpose of finding out whether or not there is sufficient ground for proceeding against the accused but whether that would warrant a conviction. We are of the opinion that this was not the stage where the court should have appraised the evidence and discharged the accused as if it was passing an order of acquittal. Further, defect in investigation itself cannot be a ground for discharge. In our opinion, the order impugned [N. Suresh Rajan v. Inspector of Police, Criminal Revision Case (MD) No. 528 of 2009, order dated 10-12-2010 (Mad)] suffers from grave error and calls for rectification.

33. Any observation made by us in this judgment is for the purpose of disposal of these appeals and shall have no bearing on the trial. The surviving respondents are directed to appear before the respective courts on 3-2-2014. The Court shall proceed with the trial from the stage of charge in accordance with law and make endeavour to dispose of the same expeditiously.

34. In the result, we allow these appeals and set aside the order of discharge with the aforesaid observations.

16. The principles of discharge has been discussed elaborately

in the case of Union of India v. Praful Kumar Samad and Another,

(1979) 3 SCC 4, wherein at paragraph no.10 the emerging principles

were dealt with which are as under :

"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:

(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

Cr.Rev. No. 748 of 2023

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 cons of the matter and weigh the evidence as if he was conducting a trial."

17. In the case in hand, the Court finds that there are materials

against the petitioner namely Md. Mejaj Alam, who is the lifter and of

atleast two of the proprietor who is the purchaser of the coal. So far the

argument added by Mr. Lukesh, the learned counsel appearing for the

petitioner in Cr.Rev. No.748 of 2023 namely Md. Rahamatullah is

concerned, only on the point of post which is said to be incorrect in the

charge sheet, the petitioner cannot be allowed to be discharged when

the materials are there against the petitioner and the difference with

regard to the post is that on RTI information it has been informed that

Md. Rahamatullah was weigh-bridge clerk-II and in the charge sheet it

has come that he was sales clerk grade -II, however, there are materials

against the petitioner namely Md. Rahamtullah in the charge sheet.