behalf of revisionist that as per forensic science report original
cheques bearing Nos. 396001, 396002, 396003 were not
signed by revisionist and on this ground primafacie case
against the revisionist is not made out under Section 420 IPC
is rejected being devoid of any force for the reasons
hereinafter mentioned. It is well settled law that at the time of
framing charge meticulous consideration of evidence is not
required. See AIR 1981 SC 1548 title Mohammad Akbar Dar and
others vs. State of J&K and others. See AIR 1977 SC 2433 title Yash
Pal Mital vs. The State of Punjab. It is well settled law that opinion
of expert under Section 45 of Indian Evidence Act 1872 is only
advisory in nature. It is well settled law that facts of cheating
as defined under Section 420 IPC can be proved by way of oral
evidence also. It is well settled law that when there is conflict
between the oral evidence and expert evidence then
testimony of eye version given by eye witness get preference.
See AIR 2012 SC 3046 title Dayal Singh and others vs. State of
Uttaranchal. It is the case of prosecution that accused had
given three cheques of ` 90 lacs each to the complainant
through his employee namely Sunil Kumar @ Manu. Court has
carefully perused the testimony of Sunil Kumar @ Manu
recorded by investigating officer during investigation process.
Sunil Kumar @ Manu has specifically stated in his statement
recorded under Section 161 Cr.P.C. that he joined Tara
Business Group Private Limited in the month of September
2001. Sunil Kumar @ Manu has stated in his statement
recorded under Section 161 Cr.P.C. that accused Rajeshwar
Sabarwal was the owner of Tara Business Group Private
Limited Company. Sunil Kumar @ Manu has also stated in
positive manner that his elder brother Naresh Kumar was also
employed in the company. Sunil Kumar @ Manu has stated
that accused was MD of company and he used to look after
the security work. Sunil @ Manu has stated in his statement
recorded under Section 161 Cr.P.C. that accused Rajeshwar
Sabarwal was owner of two vehicles i.e. Swift and Etioes. Sunil
Kumar has further stated that there were stickers of army
upon both vehicles. Sunil Kumar @ Manu has stated that on
11.3.2012 accused had handed over to him one envelope and
directed him to hand over the envelope to complainant Chuni
Lal Chauhan at his hotel at Parwanoo. Sunil Kumar @ Manu
has further stated in his statement recorded under Section
161 Cr.P.C. that on the same day he came to hotel of
complainant Chuni Lal Chauhan at Parwanoo and handed over
the envelope to complainant Chuni Lal Chauhan on behalf of
accused. Sunil Kumar @ Manu has further stated in his
statement recorded under Section 161 Cr.P.C. that
complainant Chuni Lal Chauhan opened the envelope and in
the envelope there were cash of ` 140000/- (Rupees one lac
forty thousand only) and there were three cheques of ` 90 lacs
each. Sunil Kumar @ Manu has further stated in his statement
recorded under Section 161 Cr.P.C. that accused Rajeshwar
Sabarwal was not retired as Colonel from army. Sunil Kumar @
Manu has further stated that accused informed the people
that he was retired from army from the post of Colonel just to
cheat the people. Sunil Kumar @ Manu has further stated that
after registration of criminal case under Section 420 IPC
accused removed the stickers of Colonel from vehicles and
also sold both vehicles. Court is of the opinion that above
stated statement of Sunil Kumar @ Manu eye witness is
sufficient to frame charge against revisionist under Section
420 IPC. Court is of the opinion that for the purpose of framing
charge Courts are legally competent to peruse police report
and documents sent along with report under Section 173 of
Code of Criminal Procedure 1973 as per Section 239 and
Chapter XIX of Code of Criminal Procedure 1973.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.Revision No. 170 of 2015
Date of Order 13th April 2016
Rajeshwar Sabarwal son of Shri O.P. Sabarwal
V
State of H.P.
Coram
The Hon’ble Mr. Justice P.S. Rana, J.
Brief facts of the case
2. There is recital in final police report filed under
Section 173 of Code of Criminal Procedure 1973 that w.e.f.
16.01.2011 to 01.03.2012 there was business transaction
between the complainant Chuni Lal Chauhan and accused
relating to business of apples and mangoes. There is recital in
police report that accused Rajeshwar Sabarwal had purchased
276853 boxes of apples and mangoes from complainant Chuni
Lal Chauhan. There is also recital in police report that total
cost of 276853 boxes was ` 467315977/- (Rupees Forty six
crore seventy three lacs fifteen thousand nine hundred and
seventy seven only). There is further recital in police report
that accused Rajeshwar Sabarwal had paid an amount to the
tune of `254399480/- (Rs. Twenty five crore forty three lacs
ninty nine thousand four hundred and eighty only). There is
recital in police report that accused Rajeshwar Sabarwal did
not pay an amount to the tune of `212916497/- (Rupees
twenty one crore twenty nine lacs sixteen thousand four
hundred and ninty seven only) to complainant Chuni Lal
Chauhan. There is further recital in police report that accused
Rajeshwar Sabarwal told that he was retired from army from
the post of Colonel and is running the business in the name of
Tara Business Group. There is recital in police report that
accused also told that accused used to supply apples to army
and on 06.05.2011 complainant Chuni Lal Chauhan was
invited in the function of Punjab University Chandigarh and
complainant was honoured with best apple supplier to defence
authorities. There is recital in police report that during
investigation it was observed that accused Rajeshwar
Sabarwal was not retired as Colonel from army. There is also
recital in police report that accused Rajeshwar Sabarwal with
dishonest intention of cheating informed the complainant that
accused was retired from army from the post of Colonel. There
is further recital in police report that accused Rajeshwar
Sabarwal was not Colonel in the army at any point of time.
There is recital in police report that accused Rajeshwar
Sabarwal also did not supply apples and mangoes to the army
authorities. There is also recital in police report that accused
has committed cheating with complainant under Section 420
IPC to the tune of ` 212916497/-(Rupees twenty one crore
twenty nine lacs sixteen thousand four hundred and ninty
seven only).
3. Learned trial Court vide order dated 21.3.2011
held that there exists primafacie material to frame charge
against accused under Section 420 IPC. Learned trial Court
framed charge against accused under Section 420 IPC.
4. Feeling aggrieved against the charge framed by
learned trial Court revisionist filed the present revision
petition.
5. Court heard learned Senior Advocate appearing on
behalf of revisionist and heard learned Advocate General
appearing on behalf of non-revisionist and also perused the
entire record carefully.
6. Following points arise for determination in present
revision petition:-
1. Whether revision petition filed by the
revisionist is liable to be accepted as
mentioned in memorandum of grounds of
revision petition?
2. Final Order.
Findings on Point No.1 with reasons.
7. Submission of learned Advocate appearing on
behalf of revisionist that as per forensic science report original
cheques bearing Nos. 396001, 396002, 396003 were not
signed by revisionist and on this ground primafacie case
against the revisionist is not made out under Section 420 IPC
is rejected being devoid of any force for the reasons
hereinafter mentioned. It is well settled law that at the time of
framing charge meticulous consideration of evidence is not
required. See AIR 1981 SC 1548 title Mohammad Akbar Dar and
others vs. State of J&K and others. See AIR 1977 SC 2433 title Yash
Pal Mital vs. The State of Punjab. It is well settled law that opinion
of expert under Section 45 of Indian Evidence Act 1872 is only
advisory in nature. It is well settled law that facts of cheating
as defined under Section 420 IPC can be proved by way of oral
evidence also. It is well settled law that when there is conflict
between the oral evidence and expert evidence then
testimony of eye version given by eye witness get preference.
See AIR 2012 SC 3046 title Dayal Singh and others vs. State of
Uttaranchal. It is the case of prosecution that accused had
given three cheques of ` 90 lacs each to the complainant
through his employee namely Sunil Kumar @ Manu. Court has
carefully perused the testimony of Sunil Kumar @ Manu
recorded by investigating officer during investigation process.
Sunil Kumar @ Manu has specifically stated in his statement
recorded under Section 161 Cr.P.C. that he joined Tara
Business Group Private Limited in the month of September
2001. Sunil Kumar @ Manu has stated in his statement
recorded under Section 161 Cr.P.C. that accused Rajeshwar
Sabarwal was the owner of Tara Business Group Private
Limited Company. Sunil Kumar @ Manu has also stated in
positive manner that his elder brother Naresh Kumar was also
employed in the company. Sunil Kumar @ Manu has stated
that accused was MD of company and he used to look after
the security work. Sunil @ Manu has stated in his statement
recorded under Section 161 Cr.P.C. that accused Rajeshwar
Sabarwal was owner of two vehicles i.e. Swift and Etioes. Sunil
Kumar has further stated that there were stickers of army
upon both vehicles. Sunil Kumar @ Manu has stated that on
11.3.2012 accused had handed over to him one envelope and
directed him to hand over the envelope to complainant Chuni
Lal Chauhan at his hotel at Parwanoo. Sunil Kumar @ Manu
has further stated in his statement recorded under Section
161 Cr.P.C. that on the same day he came to hotel of
complainant Chuni Lal Chauhan at Parwanoo and handed over
the envelope to complainant Chuni Lal Chauhan on behalf of
accused. Sunil Kumar @ Manu has further stated in his
statement recorded under Section 161 Cr.P.C. that
complainant Chuni Lal Chauhan opened the envelope and in
the envelope there were cash of ` 140000/- (Rupees one lac
forty thousand only) and there were three cheques of ` 90 lacs
each. Sunil Kumar @ Manu has further stated in his statement
recorded under Section 161 Cr.P.C. that accused Rajeshwar
Sabarwal was not retired as Colonel from army. Sunil Kumar @
Manu has further stated that accused informed the people
that he was retired from army from the post of Colonel just to
cheat the people. Sunil Kumar @ Manu has further stated that
after registration of criminal case under Section 420 IPC
accused removed the stickers of Colonel from vehicles and
also sold both vehicles. Court is of the opinion that above
stated statement of Sunil Kumar @ Manu eye witness is
sufficient to frame charge against revisionist under Section
420 IPC. Court is of the opinion that for the purpose of framing
charge Courts are legally competent to peruse police report
and documents sent along with report under Section 173 of
Code of Criminal Procedure 1973 as per Section 239 and
Chapter XIX of Code of Criminal Procedure 1973. Punishment
under Section 420 IPC is seven years and fine. Criminal
offence under Section 420 IPC is warrant case.
8. Submission of learned Advocate appearing on
behalf of revisionist that complainant Chuni Lal Chauhan has
already initiated criminal proceedings under Section 138 of
Negotiable Instrument Act 1881 relating to some cheques and
parallel criminal proceedings under Section 420 IPC cannot be
initiated against the revisionist under Section 420 IPC as
subject matter of complaint filed under Section 138 of
Negotiable Instrument Act and subject matter of criminal case
filed under Section 420 IPC are similar and on this ground
revision petition be accepted is rejected being devoid of any
force for the reasons hereinafter mentioned. It is well settled
law that if criminal offences are distinct then concept of
double jeoparady would not apply relating to same fact. See
AIR 1954 SC 375 title S.A. Venkataraman vs. Union of India
(Constitutional Bench of five Judges). It is well settled law that
concept of double jeoparady as mentioned under Article 20(2)
of Constitution of India is based on the concept of “Nemo
debet bis vaxari”. (Man must not be put twice in peril for the
same offence). It was held in case reported in AIR 1954 SC 375
title S.A. Venkataraman vs. Union of India (Constitutional Bench of
five Judges) that to attract concept of double jeoparady
prosecution and punishment must co-exist. It was held in case
reported in AIR 1961 SC 578 title The State of Bombay vs. S.L. Apte
and another that if two offences are distinct then
notwithstanding the fact that allegations of facts in two
criminal complaints were substantially similar then concept of
double jeoparady could not be invoked. It was held in case
reported in (2012)7 SCC 621 title Sangeetaben Mahendrabhai Patel
vs. State of Gujarat and another that ingredients of offence
punishable under Section 138 of Negotiable Instrument Act
are entirely different from offence punishable under Section
420 IPC. It was held that under Section 420 IPC there is no
legal presumption of antecedent debt but under Section 138
of Negotiable Instrument Act there is presumption of
antecedent debt. It was held that under Section 420 IPC
mensrea is relevant. It was held in case reported in AIR 2015
SC 75 title State of NCT of Delhi vs. Sanjay that offence punishable
under Section 138 of Negotiable Instrument Act and offence
punishable under Section 420 IPC are distinct offences and it
was further held that both proceedings under Section 138 of
Negotiable Instrument Act and proceedings under Section 420
IPC would continue relating to similar facts in view of the fact
that offence under Section 138 of Negotiable Instrument Act
and offence under Section 420 IPC are distinct criminal
offences.
9. Submission of learned Advocate appearing on
behalf of revisionist that learned trial Court has framed the
charge against the revisionist under Section 420 IPC without
any iota of evidence on record is rejected being devoid of any
force for the reasons hereinafter mentioned. Offence under
Section 420 IPC is a warrant case. As per Section 239 of Code
of Criminal Procedure 1873 Chapter XIX Magistrate is under
legal obligation to consider the police report and documents
sent with police report under Section 173 of Cr.P.C. Court has
perused the police report carefully and Court has also perused
the documents annexed with police report carefully.
Investigating Officer has sent the police report under Section
173 Cr.P.C. along with oral statements of thirty witnesses
namely (1) Chuni Lal Chauhan, (2) Lekh Ram, (3) Rajesh
Bhardwaj, (4) Anwaroo, (5) Rajan Gupta, (6) Jai Singh, (7)
Rajesh Punia, (8) Mandeep Singh, (9) Nishant Chauhan, (10)
Rakesh Kumar, (11) Ravi Kiran, (12) Rakesh Dutta, (13) Ajay
Kumar, (14) Sunil Kumar @ Manu, (15) Naresh Kumar, (16)
Sayad Ajmat Tula (17) Vijay Laxmi, (18) Manisha Sharma, (19)
Bihari Lal Chauhan, (20) Kuldeep Singh, (21) Vijender Dutt
Gautam, (22) Hem Raj, (23) Balwant Singh, (24) Amit
Angreesh, (25) ASI Ved Parkash, (26) ASI Kundan Singh, (27)
Shiv Kumar, (28) Nishchint Singh Negi, (29) Padam Chand
Additional S.P. Solan, (30) Susheel Kumar Sharma. Court has
also perused documents annexed with police report i.e. (1)
Final report under Section 173 Cr.P.C. comprised of sixteen
pages. (2) Original FIR. (3) Complaint under Section 156(3)
Cr.P.C. (4) Bill of apples and mangoes. (5) Bills of Laxmi Fruit
company. (7) Billty booked from Haryana Roadways Transport
Chandigarh. (8) Billty booked from Sher-e-Punjab Roadways
Transport Chandigarh. (9) Billty booked from Sher-e-Punjab
Roadways Transport Chandigarh. (10) Recovery memo of
invitation card, five photographs and one momento. (11)
Recovery memo of gate pass and arrival and dispatch ledger
register HPMC Parwanoo from 2010 to March 2011 along with
letter No. 2399-3 dated 30.11.2013. (12) Recovery memo of
letter issued by accused Rajeshwar Sabarwal to Manager PNB
Branch Kasumpti. (13) Original cheque dated 24.3.2014. (14)
Bank account of accused Rajeshwar Sabarwal. After perusal of
police report filed under Section 173 Cr.P.C. carefully and after
perusal of documents annexed with police report carefully
Court is of the opinon that there are grounds for presuming
that accused has committed an offence punishable under
Section 420 IPC because there are grounds that accused
cheated the complainant by way of pretending that accused
was retired as Colonel from army and thereafter accused
obtained supply of 276853 boxes of apples and mangoes in
consideration of `467315977/- (Rupees Forty six crore seventy
three lacs fifteen thousand nine hundred and seventy seven
only). It is prima face proved on record that accused did not
return `212916497/- (Rupees twenty one crore twenty nine
lacs sixteen thousand four hundred and nety seven only)
value of supply of apples and mangoes. It is prima facie
proved on record that accused Rajeshwar Sabarwal was not
Colonel in army at any point of time. It is prima facie proved
on record that accused cheated the complainant and
dishonestly induced the complainant to deliver 276853 boxes
of apples and mangoes in consideration amount of
`467315977/- (Rupees Forty six crore seventy three lacs
fifteen thousand nine hundred and seventy seven only). Prima
face dishonest intention on part of accused is proved from the
very beginning in present case to cheat and dishonestly
induce delivery of movable property.
10. Submission of learned Advocate appearing on
behalf of revisionist that connection of revisionist is not
proved in criminal offence under Section 420 IPC in view of
handwriting expert report placed on record and on this ground
revision petition be allowed is rejected being devoid of any
force for the reasons hereinafter mentioned. After perusal of
investigation report under Section 173 Cr.P.C. and after
perusal of entire documents placed with police report it is held
that prima facie connection of accused is proved relating to
offence under Section 420 IPC as per statement of Sunil
Kumar @ Manu.
11. Submission of learned Advocate appearing on
behalf of revisionist that learned trial Court has exercised
jurisdiction with material irregularity and illegality is also
rejected being devoid of any force for the reasons hereinafter
mentioned. Court is of the opinion that after perusal of
investigation report filed under Section 173 Cr.P.C. and after
perusal of evidence annexed with report it is held that order of
learned trial Court is not illegal and it is held that learned trial
Court has not committed any material illegality.
12. Submission of learned Advocate appearing on
behalf of revisionist that revisionist has also filed complaint
under Section 156(3) of Cr.P.C. for misplacing the cheques of
petitioner and on this ground revision petition be allowed is
rejected being devoid of any force for the reasons hereinafter
mentioned. Court is of the opinion that complicated disputed
facts are involved in present case and Court is of the opinion
that complicated disputed facts inter se the parties cannot be
decided at this stage. It is held that complicated disputed
facts inter se the parties shall be decided by learned trial
Court after giving due opportunities to both the parties to
prove their case in Court of law by way of adducing oral and
documentary evidence. It is held that it is not expedient in the
ends of justice to give any finding relating to complicated
disputed facts inter se the parties at this stage of case without
giving opportunity to parties to prove asserted disputed facts.
13. Submission of learned Advocate appearing on
behalf of revisionist that in view of ruling given by Hon’ble
Apex Court AIR 2000 SC 754 title G.Sagar Suri and another vs. State
of U.P. and others and in view of rulings reported in 2000 Cri.L.J.
174 title Sunil Kumar vs. M/s Escorts Yamaha Motors Ltd and others,
2005 Cri.L.J.2896 title S.Jayaswami and another vs. State of Orissa
and another, (2007)7 SCC 373 title Vir Prakash Sharma vs. Anil
Kumar Agarwal and another, (2009)3 SCC 78 title V.Y.Jose and
another vs. State of Gujarat and another present revision petition
be accepted is rejected being devoid of any force for the
reasons hereinafter mentioned. Court has carefully perused
the above said rulings. All these rulings were given by Division
Bench. It is well settled law that when there is conflict
between ruling given by Division Bench and Larger Bench
then ruling given by Larger Bench always prevails. In view of
the ruling given by Constitutional Bench comprised of five
Judges i.e. AIR 1954 SC 375 title S.A. Venkataraman vs. Union of
India it is held that criminal offence under Section 420 IPC and
criminal offence under Section 138 of Negotiable Instrument
Act are distinct criminal offences. It is held that as offence
under Section 138 of Negotiable Instrument Act and offence
under Section 420 IPC are distinct criminal offences then
benefit of double jeoparady cannot be granted to revisionist
notwithstanding the fact that allegations of both criminal
complaints are substantially similar. It is held that ingredients
of offence under Section 420 IPC and 138 of Negotiable
Instrument Act are not similar. In view of above stated facts
point No.1 is answered in negative.
Point No. 2 (Final Order)
14. In view of findings on point No. 1 revision petition
filed by revisionist is dismissed. Order of learned trial Court is
affirmed. Observations made in this order will not effect the
merits of case in any manner. File of learned trial Court be
sent back forthwith along with certified copy of this order.
Parties are directed to appear before learned trial Court on -
27.4.2016. Criminal revision petition is disposed of. All pending
miscellaneous application(s) if any also stands disposed of.
April 13,2016 (P.S. Rana)
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