NARENDRA SHANTILAL ADHYARU Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THIS Criminal Revision Application is preferred by the petitioner [original complainant] challenging the judgment and order passed by the learned Judicial Magistrate, First Class, Dholka, dated 30.5.94 in Criminal Case No. 488 of 1990 whereunder the learned trial Judge has discharged the respondent no.2 [original accused] under Sec.245 of Criminal Procedure Code.

(2.) I have heard Ms. Moksha Thakkar on behalf of Mr. N.K. Majmudar, learned counsel appearing for the petitioner. It is submitted by Ms. Thakkar that the learned trial Judge has erroneously discharged the accused from the offence punishable under Section 420 of I.P.C. She has fairly stated that formal charge under Section 406 of I.P.C., could not have been framed considering the averments made in the complaint and the facts stated by the complainant in his deposition on oath. Number of witnesses have been examined, which demonstrate the conduct of the accused and his attempt to defraud two employees simultaneously in the month of February, 1990. Respondent accused was subjected to departmental proceedings and the Department of Post and Telegraph of Union of India had initiated vigilance proceedings against the respondent accused. Witnesses examined by the petitioner -complainant clearly suggest that by inducing the complainant, accused was able to get about Rs. 12,000/ - from the complainant and that too under the pretext that the amount was required to be given to the higher ups so that mutual transfer application preferred can be granted. It appears that the complainant was keen to come down to Ahmedabad by getting transfer from Dholka to Ahmedabad Division in Ahmedabad. Evidence shows that considering the anxiety of the complainant to get himself transferred to Ahmedabad Division, the accused had paid visit to Dholka and induced the complainant to part with some amount. For the sake of arguments, even if it is accepted that the complainant was given assurance for return of amount, whether would be a matter of relevance is a question of appreciation of evidence at the ultimate end of the trial.

(3.) THERE is enough force in the arguments advanced by Ms. Thakkar that warrant trial case instituted otherwise in a police report is to be conducted in a particular procedure prescribed and the complainant was supposed to link the evidence to satisfy the Court prima facie that the case against the accused is worth framing charge and there is scope for complainant side to bring home the charge. Learned trial Judge was not right in evaluating the evidence on merit as if the learned trial Judge is writing judgment at the conclusion of the trial. Learned trial Judge, on the contrary, framed issues/points for determination and recorded findings on merit. This would lead to serious prejudice. Unless the Court is satisfied that there is no prima facie case existing, only then, the accused can be discharged. The Court is supposed to record a finding that there is no sufficient ground for proceeding against the accused. Percentage of scope of acquittal has little relevance. Underlined portion appears under Section 227 of the Code, which means that no reasonable person can come to a conclusion that there is ground whatsoever to sustain the charge against the accused. It is well settled that at the stage of framing of charge, meticulous consideration is not required as is done in the present case. What is relevant for consideration at the stage of framing of charge is only sufficiency of the ground for proceeding against the accused.