J. ANTONY Vs. STATE

JUDGEMENT

(1.) THESE revisions are directed by A4 and A5 against the order of dismissal of their petitions Cr.M.P. No. 316 of 1991 in C.C. No. 1157 of 1990 on the file of the Judicial Magistrate No. 1, Kancheepuram under S.239, Cr.P.C.

(2.) THE brief facts, which are necessary for disposal of these two revisions, can be stated as follows: These two revision petitioners, who are A4 and A8 along with A6 filed a petition under S.239, Cr.P.C, to quash the proceedings against them in the said case alleging that none of the ingredients have been established even on the materials which have been furnished to the petitioners and that the trial is nothing but an abuse of process of Court and as such the prosecution has to be quashed. The District Supply Officer, Kancheepuram, through the District Collector of Chengalpattu, at Kancheepuram gave a complaint on 9.3.89 to the respondent/police alleging that A1 to A3 being the licensed dealers allegedly received additional quota of kerosene from Hindustan Petroleum Corporation by using bogus additional allotment orders. On the basis of the said complaint a case was registered in Cr. No. 7/89 under Ss.420, 469, 466, 471 and 34, I.P.C., against A1 to A3 alone. After investigation and after examination of several witnesses a charge -sheet was filed on 19.6.90 against A1 to A6 and as regards A1 to A6 are concerned, they are concerned in the first charge that between August 1988 and February 1989 they hatched a criminal conspiracy to use 13 bogus additional allotment orders purported to have been issued by the District Supply Officer, Chengai -Anna District and to obtain 2300 KLs of Kerosene from Hindustan Petroleum Corporation and thereby A1 to A6 committed the offence punishable under S.120B read with Ss.420 and 471, I.P.C. and as per the charge No. 4, A3 to A6 are alleged to have aided and abetted A -1 to A -3 by advancing money to them for taking delivery of the additional quantity of Kerosene and thereby they committed an offence punishable under S.420 I.P.C. read with S.309, I.P.C. The main charges were against A2 and A3 alleging that they used bogus documents and thereby cheated the Hindustan Petroleum Corporation and obtained Kerosene of additional quantity by using 13 bogus orders. The respondent examined during investigation about 159 persons who were cited as witnesses. The learned trial Magistrate discharged A6 holding that only witness No. 61, who was employed under him had given statement that he had obtained Pay Order from the bank in which A6 was having account as there was no difficulty for the account holder to get pay orders immediately, otherwise it will take some time and no other witness has spoken about his complicity with the offence. As regards A4 and A6 are concerned their petitions were dismissed on the ground that there are statements of witnesses Nos. 132, 58, 59 and 60 available. Hence they are not entitled to the order of discharge. In this case, as per the admitted case of prosecution A1 to A3 are the licence dealers in Chengalpattu District and they secured the documents purported to have been issued by the Civil Supplies Corporation in respect of additional allotment of kerosene and on the basis of 13 bogus orders from 1988 to 14.2.89 they obtained additional allotment of 2379 KLs of Kerosene were meant for public distribution. It is only on the basis of the communication sent by the Hindustan Petroleum Corporation regarding the allotment of Kerosene to the District Supply Officer. It was verified and it was found that A1 to A3 who are wholesale kerosene dealers committed the offence of forging and cheating by forged documents and taking delivery of kerosene. During investigation it was revealed that they transported kerosene through the tankers and lorries belonged to A4 to A6 and hence the charge -sheets have been filed against them along with A1 to A3 for various circumstances as stated above.

(3.) LEARNED Additional Public Prosecutor appearing for the respondent fairly submitted that though nearly 159 witnesses were cited in the charge -sheet only the employees had given statements against these petitioners and they are witness 59 and witness No. 60 and they have conceded that witness No. 132 has not spoken to anything about A4 and he also admitted that their evidence is only in respect of obtaining the pay orders at the instance of their masters viz., A4 and A5. The only contention urged on behalf of the respondent was these transport operators who are A4 and A5 after obtaining pay orders have taken delivery and they used to transport kerosene and as a transport contractor they are expected only to transport and deliver the goods at the destination and that they have gone beyond that jurisdiction. Their act creates a suspicion in the mind of the prosecution. The said submission itself is sufficient for framing the charge and in support of that contention reliance was placed in State of Bihar v. Ramesh Singh (AIR 1977 SC 2013) where this Court had occasion to consider the said decision while deciding Cr. R.C. No. 402 of 1991. The facts of the above decision squarely apply to the facts of this case as rightly pointed out by learned counsel for the petitioners. Learned counsel for the petitioners also submitted that there is absolutely nothing on the side of the prosecution when the pay order was obtained, there is no material on the side of the prosecution that these pay orders are going to be used for getting the allotment by utilising the bogus orders. According to him, this case cannot come under the category of 'strong suspicion'. He also relied on certain decisions in support of his contention regarding the scope of inherent powers of the High Court to quash the proceedings at the stage of filing of the charge -sheet and also regarding the materials which are required for the charge of abetment. The decisions are: