CR.RA/254/1994 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 254 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE C.K.BUCH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= NARENDRA SHANTILAL ADHYARU - Applicant(s) Versus STATE OF GUJ & 1 - Respondent(s) ========================================================= Appearance : MS MOKSHA THAKKAR for MR NK MAJMUDAR for Applicant MR HL JANI, ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1, MR BM MANGUKIYA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE C.K.BUCH Date : 24/12/2008 ORAL JUDGMENT 1. This Criminal Revision Application is preferred by the petitioner [original complainant] challenging the judgment and order passed by the learned Judicial Magistrate, First Class, Dholka, dated 30.5.94 in Criminal Case No. 488 of 1990 whereunder the CR.RA/254/1994 2/5 JUDGMENT learned trial Judge has discharged the respondent no.2 [original accused] under Sec.245 of Criminal Procedure Code. 2. I have heard Ms. Moksha Thakkar on behalf of Mr. N.K. Majmudar, learned counsel appearing for the petitioner. It is submitted by Ms. Thakkar that the learned trial Judge has erroneously discharged the accused from the offence punishable under Section 420 of I.P.C. She has fairly stated that formal charge under Section 406 of I.P.C., could not have been framed considering the averments made in the complaint and the facts stated by the complainant in his deposition on oath. Number of witnesses have been examined, which demonstrate the conduct of the accused and his attempt to defraud two employees simultaneously in the month of February, 1990. Respondent accused was subjected to departmental proceedings and the Department of Post & Telegraph of Union of India had initiated vigilance proceedings against the respondent accused. Witnesses examined by the petitioner-complainant clearly suggest that by inducing the complainant, accused was able to get about Rs. 12,000/- from the complainant and that too under the pretext that the amount was required to be given to the higher ups so that mutual transfer application preferred can be granted. It appears that the complainant was keen to come down to Ahmedabad by getting transfer from Dholka to Ahmedabad Division in Ahmedabad. Evidence shows that considering the anxiety of the complainant to get himself transferred to Ahmedabad Division, the accused had paid visit to Dholka and induced the complainant to part with some amount. For the sake of arguments, even if it is accepted that the complainant was given assurance for return of amount, whether would be a matter of relevance is a question of appreciation of evidence at the ultimate end of the trial. CR.RA/254/1994 3/5 JUDGMENT 3. There is enough force in the arguments advanced by Ms. Thakkar that warrant trial case instituted otherwise in a police report is to be conducted in a particular procedure prescribed and the complainant was supposed to link the evidence to satisfy the Court prima facie that the case against the accused is worth framing charge and there is scope for complainant side to bring home the charge. Learned trial Judge was not right in evaluating the evidence on merit as if the learned trial Judge is writing judgment at the conclusion of the trial. Learned trial Judge, on the contrary, framed issues/points for determination and recorded findings on merit. This would lead to serious prejudice. Unless the Court is satisfied that there is no prima facie case existing, only then, the accused can be discharged. The Court is supposed to record a finding that there is no sufficient ground for proceeding against the accused. Percentage of scope of acquittal has little relevance. Underlined portion appears under Section 227 of the Code, which means that no reasonable person can come to a conclusion that there is ground whatsoever to sustain the charge against the accused. It is well settled that at the stage of framing of charge, meticulous consideration is not required as is done in the present case. What is relevant for consideration at the stage of framing of charge is only sufficiency of the ground for proceeding against the accused. 3.1In the present case, learned trial Judge, after reading deposition of the complainant in the background of the complaint filed and other facts that which have come on record about parting with the amount and that too, by withdrawing the same from one Credit Society, ought to have considered it to be independent relevant evidence otherwise, Postal Department would not have instituted vigilance inquiry against the accused. CR.RA/254/1994 4/5 JUDGMENT 4. Grievance of the petitioner against accused was that he was induced to part with some amount by offering to sign willing note supporting the mutual consent transfer application which was submitted to the higher officers authorized to order such transfer and after getting the amount, the accused firstly Rs. 500/- and thereafter amount of more than Rs. 11,000/-the accused surreptitiously withdrew his consent. It has emerged from the record that in the very month of February, 1990, the accused had signed the said willing note in mutual transfer application of one Diptiben R. Raval examined by the complainant before the learned trial Judge. So, the totality in the present case is required to be considered. 5. Mr.H.L. Jani, learned APP appearing for the respondent no.1 State has fairly submitted that this is a case where the learned trial Judge ought to have asked the accused to face trial on merit, because, independent witnesses representing the Postal Department have placed certain circumstances, which corroborate the say of the complainant. So, at least, there was sufficiency of ground to continue with the proceeding and the proceedings were required to be conducted to their logical conclusion. Summary rejection of such complaint would lead to frustration and genuine grievance brought before the Criminal Court in the form of a private complaint. 6. Nobody is present for the respondent no.2, but I have considered all the probabilities pointed out by Ms. Thakkar and Mr. Jani. This is a case, where learned trial Judge ought to have framed charge against the accused for the offence punishable under Section 420 of I.P.C, and asked the accused to face trial on merit. 7. Revision application, therefore requires to be allowed and CR.RA/254/1994 5/5 JUDGMENT therefore, the same is allowed. Judgment and order passed by the learned Judicial Magistrate, First Class, Dholka, dated 30.5.94 in Criminal Case No. 488 of 1990 is hereby quashed and set aside. Bhikhubhai H. Rajput, respondent no.2, original accused of the complaint filed by the present petitioner to face the trial. Learned trial Judge is directed to frame formal charge against the accused and to proceed further with the trial on merit. Rule is made absolute. [C.K. BUCH, J.] pirzada/-