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Judgment
Heard the parties.
This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 of CrPC with the prayer for quashing and setting aside the order taking cognizance dated 22.11.2016 passed by learned CJM, Latehar in connection with the Latehar P.S. Case No. 66 of 2015 corresponding to G.R.No. 265 of 2015 registered for the offences punishable under Sections 467, 468, 120B and 420 of IPC.
The allegation against the petitioner is that the petitioner in criminal conspiracy with the accused persons, has committed forgery by forging the money receipt of Shri Mangalam Finance and taking Rs. 2,60,000/- for the purpose of supplying a Scorpio vehicle to the informant but did not supply the said vehicle and misappropriated the said amount and the role of the petitioner in the said transaction is that the petitioner issued a cheque for Rs. 2,60,000/- of his account which was dishonoured.
It is submitted by learned counsel for the petitioner that the case is next fixed to 09.10.2026 for appearance of the accused persons of the case and the charge has not yet been framed. It is next submitted that the allegation against the petitioner is false and no offence of cheating is made out against the petitioner and the petitioner has not played deception since the beginning of the transaction between the parties, hence, it is submitted that the the prayer as made in this criminal miscellaneous petition be allowed.
Learned Spl. PP and learned counsel for the Opp. Party no. 2, on the other hand, vehemently oppose the prayer of the petitioner and submit that there is a specific and direct allegation against the petitioner of committing forgery for the purpose of cheating in criminal conspiracy with the co-accused persons and the said allegations against the petitioner was found to be true during the investigation of the case. It is next submitted that it is a settled principle of law that at the time of taking cognizance based on Police Report, learned Chief Judicial Magistrate cannot add or subtract any offence, in respect of which the charge sheet has been submitted and the same can only be considered at the time of framing of charge and because of non appearance of the accused persons of the case, learned Chief Judicial Magistrate, Latehar could not consider the framing of charge. It is next submitted that if the entire allegations made against the petitioner are considered to be true in their entirety, then the offence in respect of which, charge sheet has been submitted and cognizance has been taken, is made out against the petitioner, hence, it is submitted that this Criminal Miscellaneous Petition being without any merit, be dismissed.
Having heard the submissions made at the Bar and after going through materials available in the record, it is pertinent to mention here that it is a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Girish Radhakrishnan Varde reported in (2014) 3 SCC 659, para 15 of which reads as under :-
“15.The question, therefore, emerges as to whether the complainant/informant/prosecution would be precluded from seeking a remedy if the investigating authorities have failed in their duty by not including all the sections of IPC on which offence can be held to have been made out in spite of the facts disclosed in the FIR. The answer obviously has to be in the negative as the prosecution cannot be allowed to suffer prejudice by ignoring exclusion of the sections which constitute the offence if the investigating authorities for any reason whatsoever have failed to include all the offences into the charge-sheet based on the FIR on which investigation had been conducted. But then a further question arises as to whether this lacunae can be allowed to be filled in by the Magistrate before whom the matter comes up for taking cognizance after submission of the charge-sheet and as already stated, the Magistrate in a case which is based on a police report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the trial court only at the time of framing of charge under Sections 216, 218 or under Section 228 CrPC as the case may be which means that after submission of the charge-sheet it will be open for the prosecution to contend before the appropriate trial court at the stage of framing of charge to establish that on the given state of facts the appropriate sections which according to the prosecution should be framed can be allowed to be framed. Simultaneously, the accused also has the liberty at this stage to submit whether the charge under a particular provision should be framed or not and this is the appropriate forum in a case based on police report to determine whether the charge can be framed and a particular section can be added or removed depending upon the material collected during investigation as also the facts disclosed in the FIR and the chargesheet.” (Emphasis supplied)
Wherein the Hon’ble Supreme Court of India has
categorically laid down the law that a Magistrate in a case which is based on Police Report cannot add or subtract sections at the time of taking cognizance as the same would be permissible by the learned trial court at the time of framing of charge.
The allegation against the petitioner is that the petitioner in criminal conspiracy with the co-accused persons has committed forgery for the purpose of cheating and the only contention of the petitioner is that the cheque which was purported to be issued by the petitioner, has not been issued by the petitioner, hence the co -accused persons are liable for the forgery and not petitioner; but the same is at best a defence of the petitioner and the same cannot be considered by this Court in exercise of its power under section 482 of CrPC, as it is a settled principle of law that the defence of an accused persons and the veracity of the evidence put forth by the accused, cannot be considered in exercise of jurisdiction under Section 482 of Cr.P.C. by the High Court, as that would be job of the trial court, has been held by Hon’ble Supreme Court of India in the case of State of Madhya Pradesh versus Awadh Kishore Gupta & Ors. reported in 2004 2 Supreme 501
It is also a settled principle of law that no mini trial can be conducted by the High Court in exercise of power under Section 482 of Cr.P.C, as has been reiterated by the Hon’ble Supreme Court of India, in the case of State of Uttar Pradesh & Anr. vs. Akhil Sharda & Ors. reported in 2022 LiveLaw SC 594, the relevant portion of which reads as under :-
“ Having gone through the impugned judgment and order passed by the High court has set aside the criminal proceedings in exercise of powers under Section 482 CrPC, it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482CrPC. As observed and held by this court in a catena of decisions, no mini trial can be conducted by the High Court in exercise of power under Section 482CrPC, jurisdiction and at the stage of deciding the application under Section 482CrPC, the High Court cannot get into appreciation of evidence of the particular case being considering. (Emphasis supplied)
Now coming to the facts of the case, there is direct and specific allegation against the petitioner that the petitioner in criminal conspiracy with the co-accused persons has committed forgery for the purpose of cheating and the same has been found to be true by the police during the investigation of the case.
Under such circumstances, this Court is of the considered view that there being no justifiable reason to accede to the prayer made in this Criminal Miscellaneous Petition in exercise of its power under section 482 of CrPC, hence this court is of the considered view that this is not fit case where the prayer as made in this Criminal Miscellaneous Petition by the petitioner is to be acceded in exercise of its power under Section 482 of CrPC.
Accordingly, this Criminal Miscellaneous Petition being without any merit is dismissed.