MUKESH MALHOTRA Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) PETITIONER Mukesh Malhotra stands charged for having committed offences punishable under the provisions of Sections 467, 468 and 420 of the Indian Penal Code by the Court of learned Chief Judicial Magistrate, Solan, District Solan, H.P. It is this order dated 23.8.2012 which is assailed in the present petition filed under the provisions of Section 482 of the Code of Criminal Procedure, 1973.

(2.) ON a complaint (Annexure P -1) received by the Superintendent of Police Solan, Distt. Solan, H.P., F.I.R. No. 33/2010, dated 23.2.2010 (Annexure P -2), was registered at Police Station Sadar, Distt. Solan, H.P., under the provisions of Sections 420, 467 and 468 of the Indian Penal Code (referred to as IPC). According to the complainants Sh. Devinder Singh Bajwa, Sh. Rajesh Malik and Ms. Poonam Verma, petitioner Mukesh Malhotra by forging their signatures on certain documents, diverted business of the partnership firm by changing its name, of which he is the beneficiary. This was so done only with an intent of cheating and using the documents to his personal use, advantage and gain. Petitioner misrepresented, wrote a letter to M/s Star Den Media Services Private Ltd. and got the contract changed in the name of M/s Solan Set T.V. in place of M/s Solan Communication. Petitioner who was working as a partner with the complainants got the business of the partnership diverted to a new concern with which they have no concern.

(3.) SECTION 228 of the Code of Criminal Procedure, 1973 (referred to as the Code), mandates that if a Judge is of the "opinion that there is ground for presuming that the accused has committed an offence" he shall frame, in writing, a charge against the said accused. The gravamen of the section is thus the "opinion" of the Judge concerned. It is also a settled position of law that at the beginning of trial, truth, its veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under S. 227 or S. 228 of the Code. At that stage, Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. If evidence which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross -examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then only there will be no sufficient ground for proceeding with the trial. [State of Bihar vs. Ramesh Singh, AIR 1977 SC 2018 : (1977) 4 SCC 39] At the stage of framing charge all that is required to be established is that a prima facie case is made out by the prosecution. Sufficiency of evidence resulting into conviction is not to be seen, which is to be done only after trial, based on direct or circumstantial evidence. Charges can be framed if there is some material showing possibility of commission of crime as against certainty [State of A.P. vs. Golconda Linga Swamy, (2004) 6 SCC 522]. Possibility of involvement of the accused in the crime is also a reason good enough to frame charge against the accused. [See: Keshub Mahindra vs. State of M.P., (1996) 6 SCC 129 and State of M.P. vs. S. B. Johari & others, (2000) 2 SCC 57]