A charge serves the purpose of notice or intimation to the accused drawn up according to specific language of law giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. The object of a charge is to warn an accused person of the case he is to answer. It cannot be treated as if it was a part of ceremonial. Gainful reference for the purpose may be made on the case of V.C. Shukla Vs. State, reported in 1980 SCC (Cri.)
695. The Criminal Procedure Code gives ample power to the court to alter or amend a charge provided that the accused has not to face a charge for the new offence or is not prejudiced either by keeping him in dark about that charge or in not giving him a full opportunity to meet it andputting forward any defence open to him on the charge finally preferred against him.
In the instant case, a charge had already been framed showing the accused to have defalcated and embezzled an amount of Rs.5,24,610/-. However, after the completion of full accounting it transpired that the actual amount defalcated and embezzled was Rs.44,40,323/- and this actual amount of defalcation and embezzlement was sought to be incorporated in place of the original amount of Rs.5,24,610/- . Apparently, no altercation or modification in the charge was sought and merely the amount misappropriated and embezzled was sought to be rectified. Therefore, there was no new fact being introduced or charge being framed. The accused party had notice of the amount of embezzlement and defalcation that had been fastened upon him and mere change of the amount does not amount to an alteration and modification of the charge. So far as the question of marking the document is concerned, the reasonings assigned by the Revisional Court are cogent and are upheld.
Patna High Court - Orders
Rajnikant Rakesh vs State Of Bihar & Anr on 6 February, 2009
Citation; 2009 CRLJ2149 Patna
The accused of Gogri P.S. Case No.265 of 2004, G.R. 1265 of 2004, through this application has prayed for the quashing of the order dated 26.12.2006 passed by the learned Presiding Judge, Fast Track Court No.IV, Khagaria, in Criminal Revision No.77 of 2006, whereby while allowing the revision , he has set aside the order dated 11.8.2006 passed by the learned Sub Divisional Judicial Magistrate, Khagaria, in the aforesaid Gogri P.S. Case whereby the learned Magistrate had rejected the prayer of the informant to amend the amount in the format of charge and to mark exhibit list of account holders.
The informant, one Narendra Kumar Singh, impleaded herein as O.P. No.2, submitted a written report on 6.10.2004 inter alia alleging therein that he was working since 7.4.2002 on the post of Senior Manager, Sahara India at Khagaria and Branch office of Gogri Jamalpur, was under the jurisdiction of his Branch. It is said that petitioner, Rajnikant Prasad, was posted as Cashier at the said Branch office in between 2.8.2002 to 25.9.2004. It is further alleged that after the internal audit of the institution it came to light that there was reported embezzlement of huge amount to the tune of Rs.5,24,610/- and some irregularities were found in the payment to the depositors. It was also stated that on the basis of collected evidence in future, details would be submitted.
On the basis of the said written report police registered the aforesaid case under Sections 409and 420 I.P.C.
After due investigation the police found that the petitioner and two others were responsible for the embezzlement and they had misappropriated more than 44 lacs through their acts of omission and commission and after completion of the investigation a chargesheet was submitted against the petitioner only keeping the investigation pending against the two others, namely, Sanjay Kumar Singh and Abhay Prakash Choudhary.
Eventually, at the trial, charge against the petitioner was framed under Sections 409, 420, 467,469 I.P.C. on 4.4.2005 for the embezzlement of Rs.5,24,610/-. Subsequently, on 12.5.2005 a petition was filed by O.P. No.2, the informant, with a prayer to amend the charge and in place of Rs.5,24,610/- the real amount mentioned in the case diary, i.e., Rs.44,40,323/- be incorporated therein. No orders were passed on this petition by the court and it was directed to be kept on record until receiving of evidence of informant and others and the prayer could be renewed at theappropriate time. Then again after examination and cross examination of different witnesses and account holders who were named in the chargesheet as also of the informant and the auditors on 13.7.2006 another petition was filed by the informant reiterating the prayer for incorporating Rs.44,40,323/- in place of Rs,5,24,610/- in the format of the charge. The said petition, however, did not find any favour with the learned Magistrate who dismissed the same. Another petition had also beenfiled on 13.7.2006 with a prayer to mark the audit report as an exhibit which was was directed to be kept on record and on 11.8.2006 the said petition was rejected on objection being raised by the defence that in the eye of law computerized document cannot be exhibited.
The informant aggrieved by the two orders of rejection preferred Criminal Revision No.77 of 2006 and by order dated 26.12.2006 while directing the lower court to get necessary correction and incorporate in the format of charge the present amount of defalcation of Rs.44,40,323/- in place of Rs.5,24,610/-, the revisional court also set aside the second part of the order and directed the trial court to mark the document as an exhibit.
Aggrieved by the Revisional Court's order the accused has preferred this application for quashing the said order on the ground that it was the Magistrate who had passed orders correctly and the Revisional Court had erred in law. It was submitted that the learned Magistrate had rightly rejected the petitions dated 13.7.2006 on 11.8.2006 observing that there are two petitions which were different in nature. The observation of the Magistrate that without any provisions in theCr.P.C. these petitions have been filed for amendment of amount in the format of charge only and as no prayer for altering the charge by adding any section had been made, so the amendment in defalcation amount could not be effected as it would change the nature of the case and was also sought to be highlighted. The learned counsel for the petitioner further sought to support the finding of the Magistrate that computerized document cannot be exhibited as the name of the account holders or the defalcated amounts were not mentioned anywhere nor was the relevant date mentioned and that there was no provision to delete a figure and add another figure in the format of charge. The learned counsel for the petitioner also sought to highlight that the order passed by the learned Magistrate dated 11.8.2006 was an interlocutory order and as such could not have been interfered in a revision application and the Revisional Court had set aside the order of the Magistrate on mere conjectures and surmises.
A charge serves the purpose of notice or intimation to the accused drawn up according to specific language of law giving clear and unambiguous or precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. The object of a charge is to warn an accused person of the case he is to answer. It cannot be treated as if it was a part of ceremonial. Gainful reference for the purpose may be made on the case of V.C. Shukla Vs. State, reported in 1980 SCC (Cri.)
695. The Criminal Procedure Code gives ample power to the court to alter or amend a charge provided that the accused has not to face a charge for the new offence or is not prejudiced either by keeping him in dark about that charge or in not giving him a full opportunity to meet it andputting forward any defence open to him on the charge finally preferred against him.
In the instant case, a charge had already been framed showing the accused to have defalcated and embezzled an amount of Rs.5,24,610/-. However, after the completion of full accounting it transpired that the actual amount defalcated and embezzled was Rs.44,40,323/- and this actual amount of defalcation and embezzlement was sought to be incorporated in place of the original amount of Rs.5,24,610/- . Apparently, no altercation or modification in the charge was sought and merely the amount misappropriated and embezzled was sought to be rectified. Therefore, there was no new fact being introduced or charge being framed. The accused party had notice of the amount of embezzlement and defalcation that had been fastened upon him and mere change of the amount does not amount to an alteration and modification of the charge. So far as the question of marking the document is concerned, the reasonings assigned by the Revisional Court are cogent and are upheld.
In the facts and the circumstances of the case, I find no merit in this application which is accordingly dismissed.
(Abhijit Sinha,J) Patna High Court, Patna.
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