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Rakesh Deepak Shukla vs State Of U.P. And Another on 12 March, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved

Case :- CRIMINAL REVISION No. – 606 of 2013

Revisionist :- Rakesh Deepak Shukla

Opposite Party :- State Of U.P. And Another

Counsel for Revisionist :- Sushil Shukla

Counsel for Opposite Party :- Govt. Advocate,Samir Sharma

Hon’ble Saurabh Shyam Shamshery,J.

1. Revisionist has approached this Court under section 397 Cr.P.C, assailing the order dated 8.1.2013 passed by learned Trial court in the discharge application filed by the revisionist under section 339 Cr.P.C The revisionist further assailed the order dated 31.1.2013 (amended with permission of this Court vide order dated 16.4.2013) whereby the charges under section 406, 420, 467, 468 and 471 IPC have been framed against the Revisionist.

2. This Court has passed the following order on 29.4.2013.

“Counter affidavit filed on behalf of complainant is taken on record.

List on 20.5.2013.

Meanwhile, Rejoinder affidavit may be filed by the revisionist.

State may also file counter affidavit if it so likes by the next date.

Learned counsel for revisionist submitted that in the charge no.1 framed by the Trial Court, neither the gross sum of amount allegedly misappropriated by the revisionist is disclosed nor the dates on which such misappropriation was made has been mentioned and there has been a total non-compliance of provisions of 212 (2) Cr.P.C

Till the next date of listing, further proceedings in Crl. case no.7646 of 2011 (State vs. Rakesh Deepak Shukla) under Sections 406, 420, 467, 468, 471 P.S. Sector 58 District Gautam Budh Nagar pending in the Court of C.J.M., Gautam Budh Nagar shall remain stayed.”

3. The point for consideration in the present revision petition is that whether in the present case, the charge framed under section 406 against the revisionist has complied with the particulars as to time, place and person as prescribed in section 212 (2) Cr.P.C and in case said charge is bereft of such particulars, whether such error or omission is material so much as the accused has been misled by such error or omission which has occasioned a failure of justice as mentioned in section 215 Cr.P.C?

4.Succinctly the facts of the present case are as follows.

(I) Opposite party No 2/complainant is a German Multinational Company engaged in manufacturing of Homeopathic medicines.

(ii) The applicant was employed in the said company on the post of Area Manager (OTC) and was given the charge of Lucknow, Delhi and Punjab areas. The work of the applicant on behalf of the company was to conduct dealings with clients, book orders, collect payments, recommend for appointment of new dealers/distributors of the Company, to arrange meetings of the dealers/distributors and to deposit the same in the bank account of the Company etc

(iii) The Opp party no 2 filed an application under section 156 (3) Cr.P.C bearing Number 167 of 2009 against the applicant and seven others before the court of Judicial Magistrate, Gautambudh Nagar.

(iv) In the application it was mentioned that the revisionist is Regional Manager and the area allotted to him is Lucknow, Delhi and Punjab. The work of the revisionist is to deal with the parties, book the order, collect payment, appoint new dealer/distributor, introduce them with the officers of the company and to deposit the cheques/drafts received in the account of the company. But for the last about one year the revisionist was not working properly and he has appointed dealer/distributor without giving any information to the company. By playing fraud, the revisionist has supplied the product of the company unauthorizedly to different firms, used the letter-head of the company unauthorizedly damaging the goodwill of the company and misappropriated the charges collected from proposed dealers in his own account and caused loss of about Rs 36 lakhs to the company. The learned Magistrate after considering each and every aspect of the matter directed to register the case and investigate the matter and in consequence, thereof, the First Information Report in the present case was registered against the applicant and other co-accused persons at case crime no 758 of 2009 under sections 406, 420, 467, 468, 471 IPC, Police Station Sector 58, Noida, district Gautam Budh Nagar.

(v) Thereafter the statements of as many as 11 persons were recorded by the Investigating officer under section 161 Cr.P.C and thereafter charge sheet dated 4.12.2009 was submitted against the revisionist/applicant only.

(vi) The learned Magistrate took cognizance of the offence. The Revisionist filed a discharge application on 13.2.2012 mainly on the grounds that –

(a) From bare perusal of the allegations as made in the F.I.R. And also emerging from the prosecution material appended with the charge sheet the ingredients of the offences for which the same has been filed are not disclosed against the accused applicants even assuming them to be true and without rebutting the same, the accused-applicants are entitled for discharge from the instant case.

(b) Consistent stand of the informant-company in its F.I.R and other prosecution material has been that the accused-applicant took cheques from proposed dealers but credited their amounts into the bank account of the company in the name of existing dealers whereafter he took or received personally the goods from the company and finally sold it in the market thus misappropriating the same however no evidence either oral or documentary has been collected to verify whether any goods of any quantity was ever dispatched by the company’s factory at Noida directly to accused-applicant. On the contrary, it is admitted to the company that the goods were always dispatched directly to given address of dealer through XPS Cargo Ltd only. Thus prosecution fails even prima facie to substantiate allegation of entrustment from any evidence on record.

(c ) The company has alleged loss of worth Rs 36 Lakhs as claimed in the F.I.R. No evidence either oral or documentary has been collected to verify whether the money i.e. 36 Lakhs received into company’s account on existing dealer’s ledger credited allegedly by the accused-applicant has been refunded to any of proposed dealer’s account by the company or goods worth 36 Lakhs were dispatched to them. Thus prosecution, even prima facie, fails to substantiate corresponding loss to the company. In fact, loss, if any, was actually incurred by the proposed dealer from whom the amount was taken by the accused-applicant. They being the actual aggrieved person ought to have lodged F.I.R against him but none of such aggrieved proposed dealer have lodged any FI.I.R against accused applicant.

(d) In absence of there being any allegations of anything having been entrusted on to applicants by the informant, which is later alleged to have been misappropriated criminally by them, the offence of S.406 IPC is also not made out against them.

(e) The offence of cheating as defined under section 415 IPC is also per se not attracted since no misrepresentation of any nature has been made by the accused applicant to the company or its officials hence even if the allegations made in the F.I.R are taken to be true ex facie without rebutting the same, no offence of S.420 IPC can be said to have been made out.

(f) The prosecution fails to allege as to what document has been falsely made by the accused applicant to commit fraud upon the company and as such in absence of such allegation, the offences as defined u/s 467, 468 or 471 IPC are also not attracted against the accused applicant even assuming the allegations made against him to be ex facie true.

(vii)The Opp party filed detailed objections to the discharge application. It was specifically stated that the allegation against the applicant has been detailed by the applicant himself in paragraph no 2 C of the discharge application. The applicant who by the method (as detailed in paragraph no 1 above) had gained the trust of existing dealers, would thereafter take payments (for the medicines supplied) in form of blank cheques and deposited the same in his own bank account or took other goods (in lieu of the payment) for the medicines so supplied by the Company) from such dealers, the delivery of which was received at his own residence. The payments/goods thus received by the applicant were misappropriated by him. Thus from the evidence on record, the offence under section 406 IPC is prima facie made out against the applicant.

(viii) The learned Addl Chief Judicial Magistrate Gautambnudh Nagar by order dated 8.1.2013 rejected the discharge application filed under section 239 Cr.P.C.

(ix) The learned Addl Chief Judicial Magistrate framed following charges against the applicant on 31.1.2013.

^^vkjksi la0 1 ;g fd fnukad 25-1-2009 le; vne rgjhj o LFkku Mk0 foyej ‘okcs bf.M;k izk0fy0 36] lS0 60 uks,Mk Fkkuk lS0 58 uks,Mk vkius {ks esa ,oa vius {ks ls ckgj tkdj QthZ rjhds ls dbZ O;fDr;[email protected] dks dEiuh dk fMLVªhC;wVj cuk;k vkSj mDr O;fDr;[email protected] dks dEiuh ds ysVj gSM dk xyr iz;ksx djrs gq, oknh dEiuh ds yk[kks :i;s ysdj csbZekuh iwoZd nqfoZfu;ksx dj fy;k] bl izdkj vkius /kkjk 406 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tksfd bl U;k;ky; ds izlaKku esa gSA

oSdfYid vkjksi la0 2 ;g fd mijksDr fnukad le; o LFkku ij vkius vkius izoapu iwoZd /kks[kk /kM+h dj dEiuh dks vkfFkZd uqdlku igqWpkrs gq, {ks esa ,oa vius {ks ls ckgj tkdj QthZ rjhds ls dbZ O;fDr;[email protected] dks dEiuh dk fMLVªhC;Vwj cuk;k vkSj mDr O;fDr;[email protected] dks dEiuh ds ysVj gSM dk xyr iz;ksx djrs gq, :i;s gM+i fy;s] bl izdkj vkius /kkjk 420 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA

vkjksi la0 3 ;g fd mijksDr fnukad le; o LFkku ij vkius dfFkr dEiuh QthZ ysVj gSM] dh jpuk fdlh /ku vkfn dks izkIr djus ds izkf/kdkj dh dwVjpuk dhA bl izdkj vkius /kkjk 467 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA

vkjksi la0 4 ;g fd mijksDr fnukad le; o LFkku ij dfFkr dEiuh QthZ ysVj gSM] Ny ds iz;kstu ds fy, dwVjpuk dh bl izdkj vkius /kkjk 468 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA

vkjksi la0 5 ;g fd mijksDr fnukad le; o LFkku ij dfFkr dEiuh ds QthZ ysVj gSM] dwVjfpr nLrkostt dks ftlds ckjs esa Kkr gS fd og dwVjfpr gS] vlyh ds :i esa mi;ksx esa yk;sA bl izdkj vkius /kkjk 471 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA

(x) Both the orders dated 8.1.2013 and 31.1.2013 are impugned in the present revision.

5.The learned counsel for the revisionist submitted that –

(a) The concept of framing of charge, in criminal jurisprudence, is with idea to give the accused knowledge of the particulars of the offence or the offences, distinctively, in terms of S 211 212 of the Code in order to afford him the opportunity of meeting his defence against such charge(s) before he is condemned guilty. Opening words of S 213 after S 211 212 of the Chapter XVII of the Code says that ” when the nature of the case is such that the particulars mentioned in sections 211, and 212 do not give the accused sufficient notice of the mater with which he is charged, the charge shall also contain such particulars of the manner in which the alleged offence was committed as will be sufficient for that purpose.” That means in so far as the form of charges as per provisions of the Chapter XVII of Code is concerned the provisions of S 211 212 are mandatory and no trial court can afford to ignore these while framing or drawing of the charge(s) against the accused before it facing trial.

(b) From a bare perusal of the charge No 1 as framed in the instant trial against the accused revisionist goes to reveal that this charge in respect of offence as punishable u/s 406 IPC does not mention the gross sum of which he is charged of criminal misappropriating it and therefore, hit by the provision of S 212 (2) of the Code which is mandatory in nature inasmuch as it uses the word shall in its provision for the trial court. And thus, this requires to be corrected by the trial court before he is required to face trial inasmuch as he is being misled because the accusation of misappropriation of an amount to the tune of Rs 31,84,440/- is not solely being made against him, instead it is alleged by the informant in his F.I.R that the aforesaid amount has been misappropriated by all the accused persons named therein. It is therefore submitted that the accused revisionist is surely to be prejudiced in his trial without any doubt.

(C) The provision of S 464 of the Code which are pari matria to section 537 of the old Code of 1898 is meant for the court of appeal, confirmation or revision when any irregularity committed by the trial court in framing of the charge(s) against the convict accused is detected and then such court of appeal, confirmation or revision, is faced with the problem as to whether it should brush aside the whole proceeding or condone the defect. And it is in that situation provision of S 464 of the Code comes into picture and it is said that no finding, sentence or order of the trial court shall be deemed invalid merely on the ground of any error or misjoinder or irregularity in framing of charge unless in the opinion of such court of appeal, confirmation or revision, a failure of justice has in fact been occasioned due to such error. Therefore, the provision of S 464 of the Code also does not apply in the case of the accused revisionist as in his case the trial has not concluded and it is only the non-compliance of provisions of S 212 (2) of the Code, which is pointed out for correction before this Hon’ble Court. In this connection, reliance was placed upon para 29 of Larger Bench judgment of this Hon’ble Court in 1956 Cr LJ 959 Sri Ram Varma Vs the State.

(d) The language of S 212 (2) of the Code is couched in mandatory form while using the word ‘shall’ in it and therefore, the general terms of section 215 cannot override it and as stated the provisions of Section 211 and 212 ought to be followed in true spirit while framing any charge rest of sections of Chapter XVII of Code only by way of exceptions. These sections, when complied with together, shall afford and give sufficient notice of the matter or full particulars and the nature of the offense(s) charged against any accused. Therefore, when the charge No 1 does not specify the gross amount of which the accused-revisionist is charged to have criminally misappropriated then such charge is hit by the very language of S.212 (2) of the Code and-

(e) use the words “…it shall be sufficient to specify the gross sum……without specifying particulars items or exact dates…..” in S.212 of the Code itself suggest that general provision of ‘effect of errors’ will not apply as the language used in that sub section in itself takes care of exception and provides that specifying the gross amount will sufficient without specifying particulars items therein. Thus, it is the provision of S 212 (2) of the Code, which overrides the later provision in Chapter XVII of Code i.e. of S 215 and not vice versa.

(f) When the case of prosecution is that all the 8 accused persons as mentioned by names in the F.I.R have criminally misappropriated an amount of Rs 31,84,440/- and when admittedly the accused revisionist is sole accused facing trial and no other accused as name in the F.L.R has been charge sheeted alongwith him in the instant case, a serious prejudice would be caused in his defence and therefore, he has questioned such framing of vague charge against him at the earliest opportunity before this Hon’ble Court by way of instant revision petition.

6.Learned counsel submits that in view of above submissions, the revision petition be allowed.

7.Per contra, the learned counsel for the Opp party submits that-

(1) the Opposite party No 2/Complainant (Dr Villimar Schwabe India Pvt Ltd) is a German Multinational Company, engaged in manufacturing of Homeopathic Medicines. The aforesaid Company is a pioneer and world leader in manufacturing of Homeopathic Medicines,

(ii) The revisionist was employed in the said company on the post of Area Manager (OTC) and was given the charge of Lucknow, Delhi and Punjab Areas. The work of the applicant on behalf of the Company was to conduct dealings with clients, book orders, collect payments, recommend for appointment of new dealers/distributors of the Company, to arrange meetings of the dealers/distributors and to deposit the same in the bank account of the Company etc. However, it was detected that the applicant by misusing his position had embezzled/caused loss to the company of about Rs 36,84,440/-,

(iii) As such, an application under section 156 (3) Cr.P.C was filed giving entire details ( modus operandi of the revisionist.

(iv) Counsel for the Opp party no 2 submitted that the Hon’ble Supreme Court in the case of Abdul Sayeed Vs State of M.P. 2010 (10) SCC 259 and Darbar Singh Vs State of Punjab 2012 (10) SCC 476 have held that no interference is required on mere technicalities unless the accused is able to establish that the defects in framing the charges have caused real prejudice to him’; that he was not informed as to what was the real case against him; or that he could not defend himself properly. Paras 42,43,44,45 and 46 of the decision of Abdul Sayeed (supra) being relevant are quoted below.

“42. It has been canvassed on behalf of the appellants that there was no charge framed under Section 34 IPC by the trial Court and appellants and other co-accused have been charged under Section 147/148 IPC. All of them have been acquitted for the said charges. Thus, it was not permissible 22 for the High Court to convict the appellants with the aid of Section 34 IPC. Non-framing of charge is fatal to the prosecution. Thus, the appellants are entitled for acquittal on this ground alone.

Effect of Failure to frame proper charges

44. In State of Andhra Pradesh v. Thakkidiram Reddy Ors., (1998) 6 SCC 554, this Court considered the issue of failure to frame the proper charges. observing as under:

“10. Sub-section (1) of Section 464 of the Code of Criminal Procedure 1973 (`the Code’, for short) expressly provides that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

Sub-section (2) of the said section lays down the procedure that the court of appeal, confirmation or revision has to follow in case it is of the opinion that a failure of justice has in fact been occasioned. The other section relevant for our purposes is Section 465 of the Code; and it lays down that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered by a court of appeal, confirmation or revision on account of any error, omission or irregularity in the proceedings, unless in the opinion of that court, a failure of justice has in fact been occasioned. It further provides, inter alia, that in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact 23 whether the objection could and should have been raised at an earlier stage in the proceedings.”

The Court further held that in judging a question of prejudice, as of guilt, the court must look to the substance of the matter and not to technicalities, and its main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. In the said case this Court ultimately came to the conclusion that despite the defect in the framing of charges, as no prejudice had been caused to the accused, no interference was required.

45. A Constitution Bench of this Court in Willie (William) Slaney v. State of Madhya Pradesh, AIR 1956 SC 116, considered the issue of failure to frame charges properly and the conviction of an accused for the offences for which he has not been charged and reached the conclusion as under:-

“86. … In such a situation, the absence of a charge under one or other of the various heads of criminal liability for the offence cannot be said to be fatal by itself, and before a conviction for the substantive offence, 24 without a charge, can be set aside, prejudice will have to be made out. ….

87. … If it is so grave that prejudice will necessarily be implied or imported, it may be described as an illegality. If the seriousness of the omission is of a lesser degree, it will be an irregularity and prejudice by way of failure of justice will have to be established.”

46. This Court in Gurpreet Singh v. State of Punjab, (2005) 12 SCC 615, referred to and relied upon its earlier judgments in Willie (William) Slaney (supra) and Thakkidiram Reddy (supra), and held that unless there is a failure of justice and thereby the cause of the accused has been prejudiced, no interference is required if the conviction can be upheld on the evidence led against the accused. The Court should not interfere unless it is established that the accused was in any way prejudiced due to the errors and omissions in framing the charges against him. (Emphasis supplied)

A similar view has been re-iterated by this Court in Ramji Singh v. State of Bihar, (2001) 9 SCC 528; and Sanichar Sahni v. State of Bihar, (2009) 7 SCC 198.

7. Further the counsel for the Opp Party relied upon para 20 and 21 of the decision of Darbar Singh Vs State of Punjab (supra) being relevant are quoted below.

“20. The defect in framing of the charges must be so serious that it cannot be covered under Sections 464/465 Cr.P.C., which provide that, an order of sentence or conviction shall not be deemed to be invalid only on the ground that no charge was framed, or that there was some irregularity or omission or misjoinder of charges, unless the court comes to the conclusion that there was also, as a consequence, a failure of justice. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage, during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).

21. The ‘failure of justice’ is an extremely pliable or facile expression, which can be made to fit into any situation in any case. The court must endeavour to find the truth. There would be ‘failure of justice’; not only by unjust conviction, but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and also safeguarded, but they should not be over emphasised to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in respect of the protections available to him under Indian Criminal Jurisprudence. ‘Prejudice’, is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial, and not with respect to matters falling outside their scope. Once the accused is able to show that there has been serious prejudice caused to him, with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. (Vide: Rafiq Ahmed @ Rafi v. State of U.P., AIR 2011 SC 3114; Rattiram Ors. v. State of M.P. through Inspector of Police, AIR 2012 SC 1485; and Criminal Appeal No.46 of 2005 (Bhimanna v. State of Karnataka) decided on 4th September, 2012).” (Emphasis supplied)

8.. The learned counsel for the State has supported the impugned order.

9. I have heard learned counsel for the Applicants as also learned counsel for the Opp. Parties. I have also gone through the materials on record and perused the written submission was filed by the parties.

10. The relevant provisions necessary for disposal of present case are as follows;

Section 211 of Cr.P.C.

211. Contents of charge.

(1) Every charge under this Code shall state the offence with which the accused is charged.

(2) If the law which creates the offence gives it any specific- name, the offence may be described in the charge by that name only.

(3) If the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated as to give the accused notice of the matter with which he is charged.

(4) The law and section of the law against which the offence is said to have been committed shall be mentioned in the charge.

(5) The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.

(6) The charge shall be written in the language of the Court.

(7) If the accused, having been previously convicted of any offence, is liable, by reason of such previous conviction, to enhanced punishment, or to punishment of a different kind, for a subsequent offence, and it is intended to prove such previous conviction for the purpose of affecting the punishment which the Court may think fit to award for the subsequent offence, the fact, date and place of the previous conviction shall be stated in the charge; and if such statement has been omitted, the Court may add it at any time before sentence is passed. Illustrations

Section 212 in The Code Of Criminal Procedure, 1973

212. Particulars as to time, place and person.

(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.

(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, It shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219; Provided that the time included between the first and last of such dates shall not exceed one year.

Section 215 in The Code Of Criminal Procedure, 1973

215. Effect of errors. No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

Section 464 in The Code Of Criminal Procedure, 1973

464. Effect of omission to frame, or absence of, or error in, charge.

(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.

11. Section 212 of the Cr.P.C has two parts. Object of first part is to give the accused notice of the matter with which he is charged and for that a charge shall contain such particulars ( time and place against whom and in respect of which alleged offence is committed) which are “reasonably sufficient” to give such ‘notice’. Therefore if the charge has such particulars which gives sufficient notice of the matter with which accused is charged, the object of the Section 212 Cr.P.C is achieved. The second part of the section 212 Cr.P.C is about “what particulars are sufficient” in respect of charges under criminal breach of trust (405 /406 IPC) or dishonest misappropriation of money or property and consequence of failure of such sufficient particulars. Second part of section 212 Cr.P.C speaks about following offences only.

(I) Criminal breach of trust

(ii) Dishonest misappropriation of money

(iii) Misappropriation of money or property.

For the purpose of what shall be sufficient for above mentioned offences, second part of section 212 Cr.P.C envisages that charge shall specify (as the case may be) the-

(I) Gross sum

or

(ii) other moveable property

in respect of which offence is alleged to have been committed and

(iii) the dates between which the offence is alleged to have committed.

The last part of section 212 (2) Cr.P.C spells out the consequence in case the charge does not specify ‘particular items or exact dates’ and the consequence is that charge so framed shall be deemed to be a charge of one offence within the meaning of section 219 Cr.P.C . Lastly the proviso to section 212 Cr.P.C further specifies that time included between first and last of such dates shall not exceed on year.

12. From the detailed analysis of section 212 Cr.P.C, as mentioned above following conclusion emerges.-

(1). Charge shall be framed with such particulars which are reasonably sufficient to give accused notice of the matter with which he is charged.

(2) In case of charge under ‘criminal breach of trust’ and ‘dishonest misappropriation of money or property’ if the charge contains gross sum, description of property and dates between which alleged offence is committed, would be sufficient for accused to give notice of the matter with which he is charged.

(3) The only consequence that if the charge does not specify particular item or exact date is that the charge shall be deemed to be charge of one offence within the meaning of section 219 Cr.P.C.

(4) The section 212 (2) only prescribed what is ‘sufficient’ as mentioned in section 212 (1), for the charges framed for offences of Criminal breach of trust and misappropriation of money or property and consequently in case such particular is not mentioned or in case such details are not specified, charge so framed would be a charge of one offence under section 219 Cr.P.C.

13. In the light of above discussion, now I proceed to consider whether particulars mentioned in the charge framed under section 406 IPC by the learned Trial Court is reasonable sufficient to give the general notice of the matter with which the revisionist is charged and in the absence of such notice, whether there is any prejudice caused to the revisionist and if yes what will be the relief?

14. In the present case, the proceedings have been initiated in pursuance of the complaint filed under section 200 Cr.P.C The revisionist has access to complaint, statements made under section 200 Cr.P.C and 202 Cr.P.C, in which entire allegations against the revisionist are made. The revisionist has also taken all the plea in his revision petition which shows that he has all the knowledge about details of offence, such as date, time and place of offence and also about the sum involved. The revisionist has not been able to make out a ground that there is any prejudice caused to him as certain particulars are not stated in charge.

16. The term used in section 212 (1) of the Cr.P.C is ‘reasonably sufficient’. From the materials available with the revisionist and from the particulars mentioned in the charge it is reasonably sufficient to have notice to the matter for which he has been charged. For reference charge under section 401 is mentioned here again.

^^vkjksi la0 1 ;g fd fnukad 25-1-2009 le; vne rgjhj o LFkku Mk0 foyej ‘okcs bf.M;k izk0fy0 36] lS0 60 uks,Mk Fkkuk lS0 58 uks,Mk vkius {ks esa ,oa vius {ks ls ckgj tkdj QthZ rjhds ls dbZ O;fDr;[email protected] dks dEiuh dk fMLVªhC;wVj cuk;k vkSj mDr O;fDr;[email protected] dks dEiuh ds ysVj gSM dk xyr iz;ksx djrs gq, oknh dEiuh ds yk[kks :i;s ysdj csbZekuh iwoZd nqfoZfu;ksx dj fy;k] bl izdkj vkius /kkjk 406 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tksfd bl U;k;ky; ds izlaKku esa gSA

oSdfYid vkjksi la0 2 ;g fd mijksDr fnukad le; o LFkku ij vkius vkius izoapu iwoZd /kks[kk /kM+h dj dEiuh dks vkfFkZd uqdlku igqWpkrs gq, {ks esa ,oa vius {ks ls ckgj tkdj QthZ rjhds ls dbZ O;fDr;[email protected] dks dEiuh dk fMLVªhC;Vwj cuk;k vkSj mDr O;fDr;[email protected] dks dEiuh ds ysVj gSM dk xyr iz;ksx djrs gq, :i;s gM+i fy;s] bl izdkj vkius /kkjk 420 Hkk0n0la0 ds vUrxZr n.Muh; vijk/k dkfjr fd;k tks fd bl U;k;ky; ds izlaKku esa gSA^^

Section 405 IPC being relevant is quoted below-

Section 405 in The Indian Penal Code

405. Criminal breach of trust.–Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”.

.

18. Section 405 IPC has following ingredients-

(I) the accused must be entrusted with the property or with dominion over it,

(ii) the person so entrusted must be that property.

(iii) The accused must dishonestly use or dispose of that property or willfully suffer any other person to do so in violation-

(a) of any direction of law prescribing the mode in which such trust is to be discharged or

(b) of any legal contract made touching the discharge of such trust.

19.In terms of section 212 Cr.P.C the charge in question clearly mentions about person, place and time. The charge further mentions about ingredients of section 405/406 IPC such as entrustment, of collecting money and dishonest misappropriation of such money.

20.Therefore, the charge has complete particulars which are ‘reasonably sufficient’ for the purpose of notice as required in section 212 (1) Cr.P.C The only specification which is missing is ‘gross sum’ as required in section 212 (2) Cr.P.C as the words mentioned in the charge are “Lakho Rupaye”. Further from the contents of complaint and revision filed by the Revisionist, it is evident that what is the ‘gross sum’ is well within the knowledge of the revisionist. Even the particular words “Lakho rupaye” are also reasonably sufficient to give notice to the Revisionist that gross sum mentioned in the matter are in Lakhs. The revisionist has not been able to show that alleged defect in framing of charge has caused real prejudice to him or that he was not able to know as to what was the real case against him and that he could not defend himself property. Therefore, in absence of such grounds, no interference is required on mere technicalities.

21.Accordingly, the revision petition is rejected. Interim order if any shall stand vacated.

Order Date :- 12.3.2019

MH

 

 

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