Madhya Pradesh High Court

Smt. Kishori Sharma vs The State Of Madhya Pradesh Thr on 2 February, 2022

Author: Rajeev Kumar Shrivastava

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             The High Court Of Madhya Pradesh
                          Bench Gwalior
                      *****************

SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

MCRC 28411 of 2017

Smt. Kishori Sharma

Vs.

State of MP

============================== Shri Vivek Khekdar, counsel for the petitioner. Shri Avneesh Singh, counsel for the respondent /State.

             ===============================
Reserved on                                  24/01/2022
Whether approved for reporting              ......../........
                ==============================
                                 O R D ER
                         (Passed 02/02/2022)

Per Rajeev Kumar Shrivastava, J

By invoking the inherent power of this Court, the instant

petition has been preferred by petitioner under Section 482 of CrPC

for quashment of FIR as well as charge sheet in connection with

Crime No.264 of 2013 registered at Police Station Thatipur, Gwalior

for offence under Sections 420, 467, 468, 120-B of IPC, Section 3 (1)

(2)(4) of Madhya Pradesh Nishepakon Ke Hiton Ka Sarakshan

Adhiniyam and Section 45(5) of RBI Act and other consequential

criminal proceedings initiated therefrom.

(2) Necessary facts for disposal of present petition in narrow

compass are that on 04/07/2013, an FIR was registered against

twenty persons including petitioner on the basis of order passed by

Collector in Jansunwai on the complaint filed by one Shri Ravindra

Singh Tomar and others against M/s. BNP Real Estate & Allied Ltd.,

M/s. BNP India Developers & Infrastructure, M/s. BNP Insurance &

Investment Services Ltd [hereinafter it would be referred as ''the

Company''] alleging therein that Rs.50,000/- has been taken from the

complainant in the name of selling plots. On the basis of complaint,

FIR has been lodged. Matter was investigated and during

investigation, it was found that petitioner- accused along with other

co-accused have taken money from various persons by playing a

fraud. A forgery case was registered against Directors of the

Company and others. After completion of investigation, FR was

filed against petitioner and thereafter, challan was filed before the

Court.

(3) It is submitted by learned counsel for the petitioner that

petitioner is the permanent resident of Indore and when she came to

know about lodging of FIR, she surrendered before police and

released on bail on 18/12/2016. Thereafter, she appeared before the

Court and received copy of charge-sheet. Although statements of

witnesses were recorded behind the back of petitioner before Court,

but no allegation has been levelled against her, therefore, offence is

not made out against petitioner. It is further submitted that petitioner

was one of Directors of M/s. BNP Real Estate & Allied Ltd. and was

holding the post of Director till 10/12/2010 and thereafter, she

resigned from the said post. On the basis of documentary evidence

collected by police from Registrar of the Companies, complaint has

been filed against M/s. BNP India Developers & Infrastructure Ltd.

and M/s. BNP Insurance & Investment Ltd. One Raghvendra Singh

Narwariya and Neeraj Singh Singh Narwariya who are stated to be

Directors of that Company have issued various receipts and there is

no active role or connection of petition with M/s. BNP Real Estate &

Allied Ltd. It is further submitted that since FIR has been registered

against petitioner in the year 2013 and allegation is about 28/05/2012

on-wards and at that time, petitioner was not on the post of Director

of said Company and was not in picture as she has already resigned

in 2010, therefore, allegation levelled against her is treated to be a

gospel truth. Therefore, no charge is made out against the petitioner.

In support of his contention, learned counsel for the petitioner has

relied upon the judgment passed by this Court in the case of Dr.

Dinesh Kaushal vs. State of MP reported in 2012( 5) MPHT 347.

Statements of witnesses recorded under Section 161 are not reliable

as their evidence were recorded in the month of May, 2012 and prior

to that, petitioner has already been resigned from the said post and

she had no concern with the Company. Petitioner has been wrongly

impleaded as accused in the FIR which is the abuse of process of law.

It is further submitted that in case of partnership Firm, it is the duty

of prosecution to prove that concerning person is an active partner at

the time of incident. Failure on the part of prosecution to bring on

record any material to establish that petitioner was one of partners in

the said Firm on the date of checking, then only proceeding can be

initiated otherwise not. Therefore, cause of action arises from 2012

and not prior to it. To buttress his contention, learned counsel for the

petitioner has relied on the judgment passed by Rajasthan High Court

in case of Dharampal and Others Vs. State of Rajasthan, reported

in 1999 CrLJ 3110.

(4) On the other hand, the Counsel for the State supported the

impugned order of framing charges passed by learned Court below

after collecting material by police against petitioner and canvassed

that FIR as well as charge-sheet and other consequential criminal

proceedings cannot be quashed. It is further submitted that while

exercising the power under Section 482 of CrPC, the High is not

supposed to embark upon the enquiry whether the allegation in the

FIR or charge-sheet is reliable or not and thereupon to give definite

finding about the truthfulness or veracity of allegations. The High

Court can interfere with the prosecution or investigation only when

the allegations made in the FIR and the charge sheet are taken on

their face value and accepted in its entirety, even then no prima facie

offence would be made against the the petitioner. Hence, prayed for

dismissal of this petition.

(5) Heard the learned counsel for the parties and perused the

documents available on record.

(6) Before considering the submissions made by the parties, it would

be appropriate to consider the scope of powers under Section 482 of

Cr.P.C. regarding framing of charges/quashment of FIR.

(7) In the matter of Union of India Vs. Prafulla Kumar Samal

and another reported in (1979) 3 SCC 4, it is held by the Hon'ble

Apex Court 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.

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

(8) In the matter of Dilawar Balu Kurane Vs. State of

Maharashtra reported in (2002) 2 SCC 135], it is held by the Apex

Court as under:-

"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 Prafulla Kumar Samal (supra)].

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 appellant.''

(9) In the case of Sajjan Kumar vs. Central Bureau of

Investigation [(2010) 9 SCC 368], it is held by the Hon'ble Apex

Court as under:-

"21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:-

(i) The Judge while considering the question of framing the charges under Section 227 Cr.P.C. 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. The test to determine prima facie case would depend upon the facts of each case.

(ii) 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.

(iii) The 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, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.

(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.

(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged

offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.

(vii) 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."

(10) In the case of State through Central Bureau of Investigation

Vs. Dr. Anup Kumar Srivastava [AIR 2017 SC 3698], it is held by

the Apex Court as under:-

"23.... The legal position is well-settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 of the Code seeking for the quashing of charge framed against him the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such.

The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case."

(11) Similarly, in the matter of State of Himachal Pradesh vs.

Shri Pirthi Chand, reported in AIR 1996 SC 977 the Supreme Court

has observed as under:-

"great care should be taken by the High Court before embarking to scrutinize the FIR/charge-sheet/ complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted and the charge- sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions, which are considered mandatory, and its effect of non-compliance. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge sheet. It is observed "when the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of Justice or it would be an abuse of the process of the Court. When Investigating Officer spends considerable time to collect the evidence and places the

charge-sheet before the Court, further action should not be short-circuited by resorting to exercise the inherent power to quash the charge-sheet."

(12) Further, in the matter of Medchal Chemicals and Pharma (P)

Ltd. Vs. Biological E. Ltd., reported in 2000 SCC (Cr) 615 the

Supreme Court reversed the decision of High Court quashing the

complaint and set aside the impugned order, has observed as under:-

"Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as rarest of rare so as not to scuttle the prosecution. With the lodgment of First Information Report the bail is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the Court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount."

It is further observed by the Supreme Court that: "In a proceeding under Section 482 of the Code, the complaint in its entirety shall have to be examined on the basis of the allegations made in the complaint and the High Court at that stage has no authority or jurisdiction to go into the matter or examine its correctness." Whatever appears on the face of the complaint shall be taken into consideration without any critical examination of the same."

It is further observed that:

"Be it noted that tin the matter of exercise of the High Court's inherent power, the only requirement is to see whether continuance of the proceeding would be a total abuse of the process of Court. The Criminal Procedure Code contains a detailed procedure for investigation, charge and trial, and in the event, the High Court is desirous of putting a stop to the known procedure of law, the care and caution to quash the complaint in exercise of its inherent jurisdiction."

(13) Considering the totality of the facts and circumstances of the

case as well as the law laid down by the Hon'ble Apex Court as

above, the impugned F.I.R. this Court is of the considered opinion

that no case is made out warranting quashment of charges as well as

FIR lodged against the petitioner.

(14) Before parting with this order, this Court would like to

mention that observation in this order has been made in the light of

limited scope of interference at this stage. The Magistrate concerned

is directed not to get prejudiced by any observations made by this

Court and it is expected that the trial Court should decide the trial

strictly in accordance with the evidence come on record as well as

law.