1. This revision has been filed by the applicant/complainant Jatan Kumar Garg against the order dated 10.10.2014 passed by Special Judge (Prevention of Corruption Act), Indore in Sessions Trial No.01./2010, whereby the learned Judge rejected the application filed under Section 216 of Cr.P.C. for framing the charge under Section 409 of IPC against respondents No.1 & 2.
2. Brief facts of the case are that the complainant/applicant filed a complaint against the respondent No.1 Satyanarayan Tiwari, Executive Engineer, Division II, Musakhedi, Indore and respondent No. 2 Smt. Pramod Trivedi, Accountant regarding his corrupt act on which respondent No.3/Special Police Establish (Lokayukat) Indore registered Crime No.09/2009 against the respondents No.1 & 2 under Section 13(1), C, D, 13 (2) Prevention of Corruption Act r/w S.120-B of IPC after enquiry and investigated the matter. After investigation, it was found that respondents No.1 & 2 during the period from 01.04.2002 to 31.12.2005 withdrew the sum of Rs.5,02,99,480/- by self cheque instead of cross cheque and have not properly maintained the cash-book regarding that amount and violated the Government financial Rules in this regard and misused their position to withdraw the said amount. Investigation also revealed that respondent No.1 issued two cheques worth of Rs.29,298/- in the name of Sunil Kumar Pandey but instead of giving the said cheques to Sunil Kumar he himself withdrew the amount by forging his signature and dishonestly embezzled the said amount. Thereafter, the Special Police Establishment filed charge-sheet in the Special Court against respondents No.1 & 2 under Sections 13(1), C, D, 13 (2) Prevention of Corruption Act r/w S.120-B, 409, 467, 468, 471 of IPC.
3. On that complaint, the Special Court registered Special Case No.01/2010 and framed charges against respondent No.1 under Sections 13(1)D, 13 (2) Prevention of Corruption Act and Section 467, 468, 471 of IPC and against respondent No.2 u/S. 13(1) D, 13 (2) Prevention of Corruption Act r/w S.120-B of IPC and proceed with the trial.
4. During the trial, applicant filed an application under Section 216 Cr.P.C. averting that in para 2 of the audit report prepared as per order dated 09.01.2007 passed by the Division Bench of this Court in W.P. No.4773/2006, wherein it is mentioned that payment of Rs.5,02,99,480/- by self cheque instead of bearer cheque shows violation of Govt. financial rules and possibility of misuse of that amount, therefore, charge under Section 409 of IPC also be framed against respondents No.1 & 2.
5. Learned trial Court has rejected the application observing that although in the audit report, it is mentioned that respondents violated the financial rules and did not maintain the cash book properly and made payment of the amount through self cheque instead of bearer cheque but this is only a procedural violation. At the same time in the report, it is also mentioned that all 274 cheques that were issued by the respondents to withdraw the said amount have entry in the cash-book and that said amount was transferred to the subordinate employees for payment and also some payment was done by divisional office. So prima facie there is no evidence to frame charge under Section 409 of IPC against respondent no 1 and 2. Being aggrieved by this order complainant filed this revision. Learned counsel for the applicant submitted that in para 2 of the audit report it is clearly mentioned that accused respondents No.1 & 2 have misappropriated the aforesaid amount and the trial Court has committed mistake in not framing the charge against them u/S.409 of IPC .
6. Learned counsel for the respondents No.1 & 2 submitted that the trial Court has framed charge on 03.12.2010 while the applicant filed this application u/S. 216 Cr.P.C on 17.06.2014 after five years to prolong the trial. So the application is not maintainable. Even otherwise, it is mentioned in the audit report that cheques of Rs.5,02,99,480/- issued by the accused/respondents No.1 & 2 were paid to other persons. There is no evidence to show that respondents issued cheques of the said amount for wrongful gain, so learned trial Court has not committed mistake in rejecting the application. Although learned trial Court has framed the charges against the respondents No.1 & 2 on 03.12.2010 while the applicant filed application under Section 216 of Cr.P.C. on 17.06.2014 but for amending the charge, application can be filed at any stage. The Hon''ble apex Court in the matter of Anant Prakash Sinha @ Anant Sinha vs. State of Haryanan and another (2016) 6 SCC 105 held that charge can be amended at any time. It is not to be understood, that unless evidence has been let in, charges already framed cannot be altered for that is not the purport of S.216 Cr.P.C. the Court can be change or alter the charge if there is defect or something is left out that any stage. So merely on the ground that applicant filed the application after 5 years, the application cannot be rejected. But as to the point of not framing of charge under Section 409 IPC by the trial court is concerned the relevant audit report which is part of charge-sheet reads as under:-
"VERNACULR MATTER OMITTED"
The apex Court in the case of Yogesh @ Sachin Jagdish Joshi
vs State of Maharashtra (2008) 10 SCC 349 held that if two views
are equally possible and the Judge is satisfied that the evidence
produced before him gives rise to suspicion only as distinguished
from grave suspicion, he will be fully within his right to discharge the
accused. At this stage, he is not to see as to whether the trial will end
in conviction or not. The broad test to be applied is whether the
materials on record, if unrebutted, makes a conviction reasonably
possible. Thus a charge against a person can only be framed if there
exists a strong suspicion but nothing less than that.Mere suspicion
without any basis,could not be the reason for farming of charge
against a person.
7. In this case also apart from the report no other supporting
evidence is produced by prosecution along with the charge-sheet,
which shows that except for Rs.29,298/- other amount was also
embezzled or misappropriate by respondents No.1 & 2 regarding
which the lower court has already framed charge. On the perusal of
that report it is revealed that that auditors only indicated of a
possibility of misuse of funds and it is also mentioned in the audit
report that cheques of Rs.5,02,99,480/- issued by the
accused/respondents No.1 & 2 were paid to other persons. So there
is no prima facie evidence on record which creates strong suspicion
to frame the charge against respondents No.1 & 2 u/S.409 of IPC
regarding withdrawal of Rs.5,02,99,480/-.
8. The trial court has assigned good reason for not framing charge against respondents no.1 and 2 regarding withdrew the sum of Rs.5,02,99,480/- by self cheque instead of cross cheque under section 409 IPC. Although it is mentioned in the report that respondents have violated the financial rules and did not maintain the cash-book properly and made payment through cheque instead of bearer cheque but this is only a procedural violation which may lead to departmental enquiry but only on that basis without other supporting evidence showing that respondents used the amount dishonestly, charge u/S.409 of IPC cannot be made out. So it appears that trial Court has not committed any mistake in rejecting the application u/S.216 of Cr.P.C. accordingly, the revision petition is dismissed as such.
