ANJANA SHARAN Vs. THE STATE OF JHARKHAND

JUDGEMENT

(1.) This Cr. Revision is directed against the order impugned dated 27.2.2009 passed in Kotwali (S. Nagar) P.S. case No. 552 of 2004 corresponding to G.R. No. 3080 of 2004 by which Shri R.S. Mishra. Judicial Magistrate, 1st Class, Ranchi dismissed the petition filed on behalf of the petitioner for her discharge under Section 239 of the Code of Criminal Procedure for the alleged offence under Sections 406/420 of the Indian Penal Code. The informant of the case Shri Kaushal Kishore Singh was impleaded as O.P. No. 2 against whom though notice was served but he did not prefer to enter appearance in this Cr. Revision.

(2.) The prosecution case was based upon the written report presented by the informant O.P. No. 2 to the Senior S.P., Ranchi narrating, inter alia, that he was employee of B.S.N.L. He further narrated that his friend S. Binod Babu, son of S. Rama Shankar Ayair, 'swetanchal, Harmu Bye-pass Road, Argora, Ranchi and his wife Anjana Sharan (petitioner herein) was working at Doranda Branch of State Bank of India. That S. Binod Babu was also an employee in the Zonal Office of the State Bank of India but he started business of computer after tendering his resignation. In course of business of computer when he fell in acute need of money, he applied before the Bank for loan. For obtaining loan from the bank a borrower applicant was required to show some fixed deposits and for that S. Binod Babu demanded a sum of Rs. 5 lakhs from the informant and in this connection his wife Anjana Sharan put pressure upon him with the assurance that the money if lend by him would be paid back as the earliest. It was further stated that S. Binod Babu and his wife Anjana Sharan conveyed that they had already obtained work order for Rs. 11 lakhs. On their pressure, it was stated that the complainant delivered a sum of Rs. 3,80,000'- by way of loan and against that S. Binod Babu issued 4 account payee cheques with the amount filled in, total to the tune of Rs. 1,19,000/- and the balance amount was mentioned in the agreement paper which was executed by him with the assurance to return the balance amount by 15.5.2004 except a sum of Rs. 40,000/- which was promised to be returned on 15.6.2004. It was alleged in the written report that none of the four cheques could be honoured by the Bank as such the amount could not be transferred to the credit of the informant. He then got a legal notice sent through his lawyer but there was none to receive and another notice was also sent on the address of his mother, sister and the petitioner Anjana Sharan on the address given which also could not be served. The informant had given address of the petitioner Anjana Sharan at the bottom viz. "Anjana Sharan, State Bank of India, Doranda Branch, Ranchi." It was requested by the informant to take legal action against the accused person including as against the petitioner Anjana Sharan for the alleged offence under Section 420 of the Indian Penal Code. The police registered a case against all the 3 named accused for the alleged offence under Sections 406/420 of the Indian Penal Code on 6.10.2004. The I.O. after investigation submitted charge- sheet against the petitioner Anjana Sharan i.e. wife of late Awadhesh Sharan, Puran Bihar, Harmu B ye-pass Road, P.S. Argora, District-Ranchi observing that the alleged offence was not found true against the named accused S. Binod Babu though it was observed therein that he neither appeared before the police nor his correct address could be ascertained by the Investigating Officer.

(3.) The learned counsel Mr. Pandey Neeraj Rai appearing on behalf of the petitioner submitted that the police papers which were supplied to the petitioner contained the name of 15 witnesses proposed to be relied upon by the prosecution, likewise there were as many as 7 documents (cheques and hand notes) executed by Mr. S. Binod Babu, proposed to be so relied upon. The petitioner preferred a petition under Section 239 of the Code of Criminal Procedure for her discharge on the ground that there was no material for framing of charge against her for the alleged offence by giving reference to the several paragraphs of the case diary and submitted that the materials therein could not establish the nexus between the petitioner and the alleged offence nearly or remotely. Learned counsel Mr. Pandey Neeraj Rai further assailed the order by submitting that the discharge application of the petitioner was rejected on the sole consideration that the cognizance of the offence was already taken in this case against her and the contentions advanced on her behalf did. not appear to be so sound as to discharge her at that stage by observing that there were sufficient materials available on the record to put the petitioner on trial but without disposing at least a few materials presumed to be prima facie materials so as to frame charge. Advancing his argument, the counsel submitted that the learned Judicial Magistrate failed to appreciate that the offence alleged under Sections 406 and under Section 420 of the Indian Penal Code were of quite different nature to each other and on the same set of facts, charge cannot be framed under both the sections. Section 420, IPC in the given facts and circumstances cannot be attracted against the petitioner for want of essential ingredients which is called deception, because there was no material on the record to suggest that the petitioner made the informant to believe something to be true which she herself knew to be false. Similarly, there was no allegation as such that at the inception of transaction or at the time of making promise by the principal accused the petitioner had pre-conceived that there would be default in the repayment and therefore, there was no material at all to frame charge under Section 420, IPC. Similarly, Section 406 of the Indian Penal Code was not attracted against her for want of essential ingredients viz., "misappropriation on conversion to own use" as 'against her whereas, in the instant case the allegation of raising money for personal use was levelled against the principal accused S. Binod Babu who defaulted in repayment and on having gone traceless after executing an undertaking of repayment of loan by issuing cheques which were ultimately dishonoured. Even no entrustment of money was made by the informant to the petitioner and the actual person who received the loan was S.Binod Babu. The prosecution even failed to pin point certain material in the case diary that the entire transaction was done with the dishonest intention for the loss to be caused to the informant by unlawful means and the gain to be caused to the petitioner by unlawful means. The petitioner had not violated any term of an expressed or implied legal contract. Even it could be assumed that the petitioner had been entrusted with some money, though denied, the repayment was to be made by S. Binod Babu, who executed hand note for repayment and thereafter he not only defaulted in repayment but also went traceless after giving cheques to the informant which were ultimately dishonoured, according to the prosecution case.