B.K. Shrivastava, J
1. This revision petition has been filed on 18.2.2019 under section 397/401 of CrPC by petitioner Rishabh Mishra S/o Dinesh Mishra, who is an
accused in Sessions Trial No.578/2018 pending before the 22nd Additional Sessions Judge, District Bhopal, against the order dated 24.11.2018 framing
of charges under sections 468/34, 420/34, 120-B, 471/34 and 409 of IPC against the petitioner.
2. The Additional Sessions Judge framed the charges against the petitioner on 24.11.2018 as under:-
‘‘ , , (0 0)
- 1. 2015 2017
  000
... Â
 ,
, 468/34 ।
2. Â
  0 00 ... Â
Â
83,81,400/- . ,
0 0 0 420/34 ।
3.
  00 0 Â
Â
, 120
।
4. Â Â Â Â Â Â Â Â Â Â Â Â Â Â Â
        0 00    . ..Â
             Â
           , Â
    ,  , 0 0 0 471/34
5. , Â
  00 0 . .. Â
83,81,400/- . Â
0 0 0 -409
।
।’’
3. It is submitted by the counsel for petitioner that the FIR dated 18.03.2018 was lodged only against 2 accused named Pooran Pandey and Navneet
Singh Arora. During the course of investigation, upon the basis of memorandum of Pooran Pandey under section 27 of Evidence Act, the petitioner
has been wrongly implicated in this case along with other co-accused. No complaint was made against the petitioner. No specific and general
allegations were made against the petitioner. The ATM in which such misappropriation of cash is reported were never under the domain or control of
the petitioner. The petitioner had never been allotted the said route of ATM during his service to the company as an employee. No any ingredients
have been found in the entire evidence submitted along with the charge-sheet related to the offence alleged. It is also argued that even if it is
presumed that the petitioner received some money from the main accused, then he may be prosecuted only for the offence under section 411 of IPC.
The petitioner was terminated by the company in July, 2017. Therefore, it is requested to set aside the order dated 24.11.2018 related to framing of the
charges against the petitioner. The petitioner placed reliance upon the case of Mohammed Ibrahim and others Vs. State of Bihar and another (2009) 8
SCC 751.
4. On the other side, the counsel for State strongly opposed the revision. It is submitted by the State that challan has been filed and as per the evidence
collected, sufficient material is available against the present petitioner. He was entered into conspiracy with two main accused. All accused persons
are involved in the same type of crime. They helped each other by giving the money, therefore, the trial court did not commit any mistake by framing
the charges against the petitioner.
5. The law regarding “framing of charges†and the power of Revisional Court in the “revision against the charge†is well settled by Catina of
decisions.
7. In State of Bihar v. Ramesh Singh, AIR 1977 SC 2018 it has been said that at that stage the Court is not to see whether there is sufficient ground
for conviction of the accused or whether the trial is sure to end in his conviction. The Apex court said :-
“Reading Ss. 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity
and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of
the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be
incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt
or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage the Court is not to see
whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his convictionâ€.
8. In State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 the court said 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. 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.
9. In Union of India v. Prafulla Kumar Samal and another, 1979 CRI.L.J. 154 [S.C.]= AIR 1979 SC 366 = 1979 SCR(2) 22 a9f,ter taking into
consideration the various authorities, the following principles laid down by the Apex Court :-
“(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.â€
10. Three Judges Bench of Supreme Court inÂS updt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja
and others, AIR 1980 SC 52 = 1979 Cri.L.J. 1390 said that :-
“At the stage of framing charges, the prosecution evidence does not commence. The Magistrate has therefore, to consider the question as to framing of charge on
a general consideration of the materials placed before him by the investigating Police Officer. The standard test, proof and judgment which is to be applied finally
before finding the accused guilty or otherwise is not exactly to be applied at the stage of S.277 or 228. At this stage, even a very strong suspicion founded upon
materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the
offence alleged, may justify the framing of charges against the accused in respect of the commission of that offenceâ€.
11. Again in Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja and others, AIR 1990 SC 196 2t,he court said that it seems well
settled that at the stage of framing the charge, the Court is required to evaluate the material and documents on record with a view to finding out if the
facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may 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.
12. In Tulsabai v. State of M.P., 1993 CRI.L.J. 368 [M.P.] the M.P. High Court relied on Ramesh Singh (supra) and Anil Kumar (supra) and said :-
“Though guidelines as to the scope of inquiry for the purpose of discharging of an accused are contained in Section 227, Cr. P.C. itself. It provides that ""the Judge
shall discharge when he considers that there is no sufficient ground for proceeding against the accused."" The ground in the context is not a ground for conviction,
but a ground for putting the accused on trial. It is in the trial that the guilt or innocence of the accused will be determined and not at the time of framing of charge.
Therefore, the Court need not undertake an elaborate inquiry. The power conferred by S. 227 to discharge an accused is designed to prevent harassment to an
innocent person by the arduous trial or the ordeal of prosecution. The power has been entrusted to the Sessions Judge to bring to bear his knowledge and experience
in criminal trials. If the Sessions Judge after hearing the parties frames a charge and also makes an order in support thereof, the law must be allowed to take its own
courseâ€.
13. Three Judges Bench of Supreme Court inS tate of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744 = 1996 AIR SCW 197 s7aid that at the
stage of framing the charge there must exist ground for presuming that accused has committed the offence. The court said that word ""presume"" m
eans probable consequence . If there is ground for presuming that the accused has committed the offence, a Court can justifiably say that a prima
facie case against him exists, and so, frame charge against him for committing that offence. In Black's Law Dictionary word 'presume' has been
defined to mean ""to believe or accept upon probable evidence"". Legal 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."" 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 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 stage.
14. In the case of State of Maharashtra v. Priya Sharan Maharaj and others, AIR 1997 S.C. 2041 = 1997 AIR SCW 1833 = [1997]4 SCC 3,9 3the
Apex court said that High Court cannot seek independent corroboration at stage of framing of charge and quash charge and discharge accused. At
the state of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that the accused has
committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not
likely to lead to a conviction.
15. Again in Arun Vyas and another v. Anita Vyas, AIR 1999 SC 2071 = 1999 AIR SCW 1793, the Apex court observed that Section 239 has to
be read along with S. 240 Cr. P. C. If the Magistrate finds that there is prima facie evidence or the material against the accused in support of the
charge (allegations) he may frame charge in accordance with S. 240 Cr. P. C. But if he finds that the charge (the allegations or imputations) made
against the accused do not make out a prima facie case and do not furnish basis for framing charge, it will be a case of charge being groundless, so he
has no option but to discharge the accused. Where the Magistrate finds that taking cognizance of the offence itself was contrary to any provision of
law, like S. 468 Cr. P. C., the complaint being barred by limitation, so he cannot frame the charge, he has to discharge the accused.
16. Further in the case of State of M.P. Vs. S. B. Johari and others, AIR 2000 SC 665 = 2000 AIR SCW 189 = 2000 CRI.L.J. 9 4c4o,urt also said
that quashment of charge by appreciating materials produced by prosecution at the stage of framing of charge is not justified. At stage of framing
charge, Court is not required to marshal materials on record but only has to prima facie consider whether there is sufficient materials against accused.
Court observed :-
“It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the
accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction the
accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence,
which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross- examination or rebutted by
defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trialâ€.
17. In State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338 the court observed that the crystallized judicial view is that at the stage of framing charge,
the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate
evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Kanti Bhadra Shah v. State of West Bengal,
2000 (1) SCC 722 the Court said if the trial court decides to frame a charge, there is no legal requirement that he should pass an order specifying the
reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial judge has formed the opinion, upon consideration of the
police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence
concerned.
18. In Om Wati v. State, Through Delhi Admn., 2001 Cri.LJ 1723 the Apex court has observed that we would again remind the High Courts of their
statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far-fetched reasons which in
law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protracting the trial and preventing
culmination of the criminal cases by having resort to uncalled for and unjustified litigation under the cloak of technicalities of law.
19. In Palwinder Singh v. Balvinder Singh, (2009) 3 SCC 850 it has been said that Charges can also be framed on the basis of strong suspicion.
Marshaling and appreciation of evidence is not in the domain of the court at that point of time. In Sajjan Kumar v. Central Bureau of Investigation,
(2010) 9 SCC 368 the Supreme court also said that at the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge
petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or
acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of
various documents and is free to take a decision one way or the other.
20. In the case of R. S. Mishra v. State of Orissa, AIR 2011 SC 1103 = 2011 CRI.L.J. 165,4 the court took notice of the expression in S. 228 ""if after
such consideration"" and said that it provide an interconnection between S.227 and S.228. While dropping or diluting charge under particular section,
although accused is not discharged, Court is expected to record reasons. The court observed :-
“As seen from Section 227 while discharging an accused, the Judge concerned has to consider the record of the case and the documents placed therewith, and if
he is so convinced after hearing both the parties that there is no sufficient ground to proceed against the accused, he shall discharge the accused, but he has to
record his reasons for doing the same. Section 228 which deals with framing of the charge, begins with the words ""if after such consideration."" Thus, these words in
Section 228 refer to the 'consideration' under S. 227 which has to be after taking into account the record of the case and the documents submitted therewith . These
words provide an inter-connection between Sections 227 and 228. That being so, while Section 227 provides for recording the reasons for discharging an accused,
although it is not so specifically stated in Section 228, it can certainly be said that when the charge under a particular section is dropped or diluted, (although the
accused is not discharged), some minimum reasons in nutshell are expected to be recorded disclosing the consideration of the material on record. This is because the
charge is to be framed 'after such consideration' and therefore, that consideration must be reflected in the order.â€
21. In the case of Central Bureau of Investigation, Hyderabad Vs. K. Narayana Rao, 2012 AIR SCW 513, 9the Apex Court considered its earlier
authorities about the scope of Sections 227 and 228 of Cr.P.C., and held that for framing of charge, a roving inquiry in pros and cons of matter and
weighing of evidence as is done in trial is not permissible at this stage. The charge has to be framed if Court feels that there is strong suspicion that
accused has committed offence. Thus, even if there is a strong suspicion which leads the Court to think that there is ground for presuming that the
accused has committed an offence, a charge can be framed.
22. Again in Sheoraj Singh Ahlawat v. State of U.P., (2013) 11 SCC 476 the court said that while framing charges, court is required to evaluate
materials and documents on record to decide whether facts emerging there from taken at their face value would disclose existence of ingredients
constituting the alleged offence. At this stage, the court is not required to go deep into probative value of materials on record. It needs to evaluate
whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused.
Even if, there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then
framing of charge against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence
but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by
prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on
materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material,
if submitted. Whether the prima facie case made out, depends upon fact and circumstances of each case. If two views are possible and materials
indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case,
total effect of evidence and documents produced before it. The court should not act as mouthpiece of prosecution and it is impermissible to have
roving enquiry at the stage of framing of charges.
23. Again in Prem Sharma @ Shiv Prasad Mishra Vs. Shivprakash Mishra, ILR [2013] M.P. 2029, the Court referred thSe updt. & Remembrancer
of Legal Affairs, West Bengal, v. Anil Kumar Bhunja and others, AIR 1980 SC 52 ,and Niranjan Singh Karam Singh Punjabi v. Jitendr Bhimraj Bijja
and others, AIR 1990 SC 1962 and said that according to the provisions of Sections 227 and 228 of Cr.P.C., it is for the Trial Court to consider the
material available on record with the object that if it is not rebutted, then whether the accused can be convicted for a particular offence or not. By
considering such material, if the accused is convicted for that offence, then charge for that offence shall be framed.
24. In Ashok Sharma (Dr.) v. State of M.P., 2014 (II) MPJR 124 (DB), the Division Bench of this court observed that at the stage of framing of
charge, appreciation of evidence produced before it is non-required. The court observed :-
“It is true that at the time of framing of charge, the court has not required to appreciate the evidence to conclude whether the material produced
before the court are sufficient or not for convicting the accused. There is difference between the evaluation of materials produced before the court
and appreciation of evidence produced before the court at the time of framing of the charge. For evaluation, the court is allowed to look into the
material only prima facie be satisfied about the existence of sufficient ground for proceeding against the accusedâ€.
25. Also in the case of Devendra Singh & Ors. Vs. State Of M.P., ILR 2016 M.P. 259, the high court observed that the material and quality of
evidence cannot be gone into and the Revisional Court has limitations which don't empower to intervene at an interlocutory stage. All that has to be
looked into at the time of framing of charge, is existence of prima facie case.
26. Recently in State By Karnataka Lokayukta v. M. R. Hiremath, 2019 SCC online SC 73 4the court again said that at this stage, considering an
application for discharge, the Court must proceed on the assumption that the material which has been brought on record by the prosecution is true and
evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the
ingredients necessary to constitute the offence.
27. It appears that FIR dated 18.3.2018 has been lodged upon the basis of written report submitted by Shri Pawan Waman, Branch Manager,
Logicash Solutions Private Limited, Saket Nagar, Bhopal. The company was taken the contract of filling the currency in various ATMs. The company
having a Branch at 2A/268, Saket Nagar, Bhopal, was also having the contract with the State Bank of India and Bank of Baroda. Pooran Pandey and
Navneet Arora both are the employees of the company and were responsible to fill the money in various ATMs. Both were having the code number
and the key for opening the lock, and without their assistance any ATM could not be opened.
28. It is also appeared that surprise audit was conducted through Arun Kumar. Two ATMs of State Bank of India, situated at Sarnath Complex,
Indrapuri and one ATM of SBI situated at J.K.Road were audited by Arun Kumar as per the instructions of the company. During audit it has come
into the notice that the amount which was given to fill in the ATM was not filled and the lesser amount was filled. Rs.24,35,900/- found shortage in the
aforesaid ATM; while both accused generated the forged admin switch report of ATM in which it was shown that the entire money has been filed.
After taking the money from company, they did not fill the entire money in the concerned ATM. Total 31 ATMs were given for maintenance to the
aforesaid accused; out of them 28 ATMs were audited and Rs.85,95,900/- were found short in the aforesaid ATM; while in the ATM of Jahangirabad
Rs.2,14,500/- were found excess. Therefore, after deducting the aforesaid amount, it is found that the amount of Rs.83,81,400/- was embezzled by the
accused persons.
29. upon the basis of written report dated 18.03.2018, submitted by Shri Pawan Waman, Branch Manager, Logicash Solutions Private Limited, Saket
Nagar, Bhopal, the police registered FIR No.131/2018, Annexure A-2. During investigation, petitioner Rishabh Mishra was also arrested on 23.3.2018.
30. Main accused Pooran Pandey interrogated by the police from time to time. Upon the information given by Pooran Pandey, total 4 memos under
section 27 of the Evidence Act were prepared on 18.3.2018, 22.3.2018, 23.3.2018 and 26.3.2018. Accused Navneet Arora also interrogated and his
memo was prepared on 18.3.2018. Pooran Pandey gave the information that he gave the money to other co-accused. He also said that the aforesaid
amounts were given to fulfill the shortage of money, which was found short in their ATMs. They were also doing the same job and also committed
embezzlement in the same manner in their ATMs. In the memo dated 22.3.2018 Pooran Pandey gave the information that he gave the amount of
Rs.5,50,000/- to petitioner Rishabh Mishra in August, 2017 for the same purpose to fulfill the shortage of money in his ATM.
31. In furtherance to the aforesaid information given by Pooran Pandey, the police interrogated the present petitioner Rishabh Mishra on 22.3.2018.
The accused himself gave the information as under:-
‘‘ 2015 2017   0 0
(
) । 2017
5,50,000/-
2,50,000/-
1,50,000/- 4,00,000/-
।’’
32. After the information given by the petitioner, the police recovered an amount of Rs.4,00,000/- on 23.3.2018 from the possession of petitioner
Rishabh Mishra.
33. Various amounts have also been seized from the other co-accused persons. Main accused Pooran Pandey and Navneet Arora gave the entire
information and as per their information other accused interrogated and various amounts have been recovered. Rs.25,00,000/- recovered from Pooran
pandey, Rs.4,82,500/- recovered from Navneet Singh Arora, Rs.4,00,000/- from Ankit Shrivastava, Rs.1,50,000/- from Vipin Das, Rs.4,00,000/- from
petitioner Rishabh Mishra, Rs.15,000/- from Rahul Meena, Rs.60,000/- and 25,000/- from Harsh Parate, Rs.7,000/- from Amit Shukla were recovered.
The statement of Auditor Arun Kumar is also on the record.
34. The petitioner was also serving with the company and some other ATMs were allotted to him for the purpose of filing the currency. He also
committed embezzlement in the same manner like Pooran Pandey and Navneet Arora. They gave the money to each other for fulfilling the shortage
found in their ATMs. Therefore, prima facie, it may be presumed that all the accused persons entered into the conspiracy of committing the theft /
embezzlement of amount, which was given by the company for filling the ATM. In the aforesaid situation, Charge U/s 120-B has been framed and
charges under sections 468, 420 and 471 have been framed with the help of section 34 of IPC.
36. In view of this Court, the trial court did not commit any mistake by framing the aforesaid charges. Prima facie sufficient material is available
against the petitioner to proceed further. Elaborate discussion of evidence is not necessary at this stage. The accused may submit his defence before
the trial court during the evidence and he is free to establish that he was not involved in the conspiracy or he was only bona-fide receiver of the
amount.
37. Therefore, no interference is required in the impugned order. Hence, the petition is dismissed.
