(Indore) Pvt.Ltd. Vs. Sanjay Choudhary & Ors.  INSC 1699 (3 October
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1578 OF 2008
(Arising out of SLP (Crl.) No. 1339 of 2007) Sanghi Brothers (Indore) Pvt. Ltd.
..Appellant versus Sanjay Choudhary and Ors. ..Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a learned Single Judge of the Madhya
Pradesh High Court, Indore Bench allowing the Criminal Revision Petition filed
by the respondents. Challenge in the Criminal Revision Petition was to the
order dated 14.8.2006 passed by learned Judicial Magistrate, First Class,
Indore in Criminal case No.2114 of 2003. By the said order charges were framed
against the respondents. The learned Judicial Magistrate directed framing of
charge for offence punishable under Sections 420, 406 read with Section 34 IPC.
facts as projected by appellant in a nutshell are as follows:
is a registered company dealing with the sale of auto vehicles at Indore and
respondents are Directors of the Chetak Construction Ltd. a registered company
having its Head Office at Chetack Chamber, R.N.T. Mark, Indore and accused No.3
is the Secretary of that company. In the year 1988-89 accused approached the
complainant company for obtaining lease of Tata dumpers and light commercial
vehicles for a specific period on monthly lease rent basis.
complainant company that as per the agreement they will pay monthly lease rent
without any default and to support their claim, they will also furnish back
guarantee for due performance of the condition of the contract. In view of that
proposal, agreements were executed between the parties on 13.5.1988, 14.11.1988
and 25.3.1989 for delivery of 25 dumpers, 10 dumpers, 20 dumpers and 4 light
commercial vehicles and accused persons took the delivery of the aforesaid
vehicles from the complainant and also agreed for payment of the monthly lease
rent for 36 months. For the due performance of agreement, necessary documents
were executed by the accused persons in favour of the complainant. After some
time, complainant came to know that accused No.4 was unable to pay him lease
rent according to the agreement. Then complainant called accused No.1 and 2 to
execute personal guarantee bonds in favour of the complainant and after some
persuasion, so called personal guarantee bonds were executed by the accused
Nos. 1 and 2 in favour of the complainant for due performance of the agreement
on 6.12.1991. They also gave collateral security in favour of the complainant
of a property belonging to M/s Choudhary Builders Private Ltd. and also
produced board resolution dated 6.2.1990 to the complainant. Complainant was
unable to get any rent in time from the accused persons and also found that
applicants/accused in violation of the condition of the agreement have
illegally sold eight vehicles to other parties with ulterior motive, thus
committing criminal breach of trust also and had cheated the complainant. On
these allegations, complainant through its Manager filed a complaint under
Sections 420 and 406 IPC against the respondents. Before the trial Court,
learned trial Magistrate after taking the cognizance against the accused
recorded before charge evidence and on consideration of before charge evidence
by order dated 14.8.2006 ordered for framing of the charge as noted above.
The order framing of
charge was questioned before the High Court in the revision petition. After
noticing the stands of the petitioners before it and the respondent who is the
present appellant, the High Court noted as follows:
"All these cases
are distinguishable with the facts of the present case. In the present case,
applicants are not praying quashment of the proceedings under the provisions of
Section 482 of the Criminal Procedure Code. The applicants/accused came up
before this Hon'ble Court against the order of framing of the charge and on the
basis of the prima facie evidence recorded before charge and is trying to
assail the findings of the trial Court and submits that no charge under Section
420 and 406 IPC is clearly made out against the applicants on the basis of
evidence on record and it is also not so unimpeachable that if it is not
rebutted then a conviction can be based on it."
The High Court was of
the view that framing of charge was not sustainable.
support of the appeal, learned counsel for the appellant submitted that the
conclusions of the High Court are clearly indefensible. It is not a requirement
of law that the offence is not so unimpeachable and if it is not rebutted,
conviction can be based on it.
counsel for the respondents on the other hand submitted that the background
facts have been rightly taken note of by the High Court to conclude that the
framing of charge was not sustainable. It was pointed out that there was no
intention of committing the alleged fraud as has been rightly held by the High
Court. Part of the amount has been received and sale of vehicle was permitted
and the bank guarantee was also encashed. Even if it is conceded that there was
breach of contract at some point of time that was remedied because of the
permission to sell vehicles and by encashment of the bank guarantee. The whole
agreement was retrieved. In order to constitute fraud there must be some mental
evil design. There is no question of any seminal intent as there was civil
dispute and the same has been taken note of by the High Court, more
particularly, with reference to the allegations.
way of reply learned counsel for the appellant submitted that because of huge
dues the appellant had the right of repossession which could have been
exercised w.e.f. 6.1.1990 and on 8.2.1990 four personal bank guarantees were
given by the respondents. Since that was not adequate, additional security was
required and same was furnished by offering property security which was not
owned by the respondents.
This could be known
only after the letter of the bank was received.
The intention was very
clear, because it was aimed at preventing the appellant from exercising the
right of re-possession. It is not a case where the High Court conceded that
there was no offence made out.
Charges were framed
and therefore the High Court should not have by the impugned order aborted the
whole trial. The High Court is wrong in stating that there was no allegation of
any criminal intention at the initial stage. It is pointed out that this aspect
was explicitly stated in the complaint.
State of Maharashtra and Ors. V. Som Nath Thapa and Ors. (1996 (4) SCC 659)
this Court observed as follows:
"Let us note the
meaning of the word `presume'. In Black's Law Dictionary it has been defined to
mean "to believe or accept upon probable evidence". (emphasis ours).
In Shorter Oxford English Dictionary it has been mentioned that in law
`presume' means "to take as proved until evidence to the contrary is
dictionary has quoted in this context a certain judgment according to which
"A presumption is a probable consequence drawn from facts (either certain,
or proved by direct testimony) as to the truth of a fact alleged".
(Emphasis supplied). In Law Lexicon by P Ramanath Aiyar the same quotation
finds place at p. 1007 of 1987 Edn.
32. The aforesaid
shows that if on the basis of materials on record, a court could come to the
conclusion that commission of the offence is a probable consequence; a case for
framing of charge exists. To put it differently, if the court were to think
that the accused might have committed the offence it can frame the charge,
though for conviction the conclusion is required to be that the accused has
committed the offence. It is apparent that at the stage of framing of a charge,
probative value of the materials on record cannot be gone into; the materials
brought on record by the prosecution has to be accepted as true at that
227, 239 and 245 deal with discharge from criminal charge. In State of
Karnataka v. L. Muniswamy (1977 (2) SCC 699) it was noted that at the stage of
framing the charge the court has to apply its mind to the question whether or
not there is any ground for presuming the commission of offence by the accused.
(Underlined for emphasis). The Court has to see while considering the question of
framing the charge as to whether the material brought on record could
reasonably connect the accused with the trial. Nothing more is required to be
inquired into. (See Stree Atyachar Virodhi Parishad v.
Chordia (1989 (1) SCC 715) and State of West Bengal v. Mohd. Khalid (1995 (1)
R.S. Nayak v. A.R. Antulay (1986 (2) SCC 716) this Court referred to Sections
227 and 228 so far as they are relatable to trial. Sections 239 and 240 are
relatable to trial of warrant cases and 245(1) and (2) relatable to summons
analyzing the terminology used in the three pairs of sections it was held that
despite the differences there is no scope for doubt that at the stage at which
the court is required to consider the question of framing of charge, the test
of a prima facie case to be applied.
present case is not one where the High Court ought to have interfered with the
order of framing the charge. As rightly submitted by learned counsel for the
appellant, even if there is a strong suspicion about the commission of offence
and the involvement of the accused, it is sufficient for the court to frame a
charge. At that stage, there is no necessity of formulating the opinion about
the prospect of conviction. That being so, the impugned order of the High Court
cannot be sustained and is set aside. The appeal is allowed.
(Dr. ARIJIT PASAYAT)