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TMI Blog2023 (8) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... nsent of the parties. 2. The argument was concluded on 25.07.2023 and on that date, the judgment was reserved after hearing Mr. Rajendra Krishna, the learned counsel appearing on behalf of the petitioner-Krishna Kumar and Mr. Indrajit Sinha, the learned counsel appearing on behalf of the petitioner-Om Prakash Yadav. 3. In Cr. Revision No. 238 of 2020, the prayer is made for setting aside the order dated 31.01.2020 by which the discharge petition filed by the petitioner in relation to R.C.No. 7(S)/13-EOW-R dated 13.08.2013 (CNRJHRN-01-000383- 2020) was rejected by the learned Special Judge, C.B.I in Miscellaneous Criminal Application No. 61 of 2020, pending in that learned court. 4. The F.I.R was registered alleging therein that-, the FIR was initially lodged by Uma Shankar Prasad Shrivastava stating therein that he has booked one house over the land of 1350 sq.ft. and has also booked one shop of 120 sq.ft. of Sanjeevni Buildcon, Aisharwa Residency at Phase-II, two years back and for the said booking, he has paid Rs. 6,25,000/- for which the receipt has also been issued to him but the informant has neither been given possession of house nor the shops. It has also been alleged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 21 of 2020, pending in that learned court. 6. The F.I.R was registered alleging therein that-, based on a complaint written by Abbhishek Kumar in which it has been stated that he has purchased 2000 square ft, of land from Khata No. 155, Plot No. 841, Sub-Plot No. B59, Deed No. 11401 dated 14.5.2010 at Pundag in the District of Ranchi and he has paid altogether 9 lakhs rupees but till the filing of the FIR neither the land was handed over to the complainant nor money was refunded. After hectic effort a sum of Rs. 4.5 lakhs was returned. There was a problem to refund the entire money along with interest but the said problem has not been fulfilled. The complainant was handed over two cheques of Rs. 2 lakhs and one another cheque of Rs. 1,20,000/- but the said cheques represented in the bank which were dishonoured. The complainant thereafter approached the accused persons for refund of his money or for anything over the land in question but nothing was done by the accused persons. On the basis of the aforesaid complaint, the case has been lodged in Jagarnathpur Police Station. The aforesaid case has subsequently been transferred for investigation to the CBI, ACB, Ranchi by the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en complaint by one Mr. Manoj Shrivastava on 5.1.2012. It has been stated that the complainant/informant has paid a sum of Rs. 51,000/- to M/s Sanjeevni BuildCon Pvt. Ltd. For purchase of a Plot No. 841 situated at Pundag, Ranchi having Khata No. 155 and total area of the flat is 1350 square ft. and the said amount has been paid through the bank draft. The complainant has further paid Rs. 1,00,000/- on 9.1.2010 and Rs. 3,50,000/- on 20.01.2010 as well as he has paid Rs. 36,000/- for the purpose of registration of the said land and for that a money receipt has been given to the complainant by M/s Sanjeevni Buildcon Pvt. Ltd. It has further been alleged that one Jayant Dayal Nandi has given assurance to the complainant that the concerned land/flat shall be registered in his favour within two months and, thereafter the concerned mutation was done which shall be handed over to the complainant. It has further been alleged that after making the entire payment towards the flat, the petitioner contacted Mr. Jayant Dayal Nandi at his office time and again and several times one Mr. Nandi and another employee Shyam Kumar Gupta assured to the complainant that the said work shall be done as soo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. which was registered u/sec 120 (B), 406 & 420 of the Indian Penal Code and Under Section 138 of the N. I Act. According to the said F.I.R. it has been alleged that accused persons mentioned above conspired among themselves and in pursuant to the said criminal conspiracy they cheated to the Complainant on the false Pretext of registration and mutation of 1350 Sq. feet land bearing Plot No. 84, Sub Plot B-75, Khata No. 155 at Aishwarya Residency Project, Pundag, Ranchi for consideration of Rs. 5,37,000/- in favour of the Complainant. But they did not transfer the land as promised to the Complainant and being persuaded they fraudulently and dishonestly issued three cheques of total amount of Rs. 5,01, 000/- in favour of the Complainant. When the aforesaid Cheques were presented in the Bank by the Complainant they dishonored due to insufficient balance. Therefore a regular Jayant Dayal Nandi and Shayam Kishore Gupta has been registered for the offence punishable U/s 120 (B) r/w Sec 406 & 420 of the Indian Penal Code as well as Under Section 138 of the NI Act was instituted. It is further submitted that in compliance of the order and Direction of Hon'ble High Court of Jharkhand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising out of R.C. Case No. 7(S)/13-EOWR, Cr. Revision No. 239 of 2020 arising out of R.C. Case No. 17(S)/13-R and Cr. Rev. No. 240 of 2020 arising out of R.C. Case No. 3(S)/2013-EOW-R. He submitted that the learned Special Judge, C.B.I., Ranchi has taken cognizance by order dated 18.08.2015 against several persons including the petitioners for offence under section 13(2) read with section 1(d) of the Prevention of Corruption Act, 1988 and other sections of the I.P.C, particularly, section 420 and 120B of the I.P.C. He submitted that in these cases, cognizance was taken inspite of no evidence was found during investigation against the petitioners. By way of referring to charge sheet he submitted that one Sri Arvind Singh of Sanjeevani Buildcon Pvt. Ltd. has been given power of attorney of 15 decimals of land by Sri Mahesh Sahu and Ramdhani Sahu belongs to plot no. 841, khata no. 155, thana no. 228 deed no. 337 dated 20.02.2010. The said Sri Arvind Singh has sold the land to the persons giving in the chart at sl.no. 1 to 12 initially and total land which was sold to the persons at sl. 1 to 11 at page no. 9 of the charge sheet, comes to 45.35 decimals and the aforesaid land has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of attorney was made for 40 decimals of land and three sale deeds, however, by the total 75.55 decimals land was transferred by M/s Sanjeevani Buildcon Pvt. Ltd. and total are of mutation is 117.89 decimals in favour of 27 different persons. In the charge sheet, it has been stated that total land of 77.55 decimals includes 40 decimals from the power of attorney and 35.55 decimals from two sale deeds out of 75.55 decimals and in view of 117.89 decimals of land has been mutated. He submitted that in R.C. Case No. 3(S)/2013, the power of attorney no. 513 dated 19.02.2010 was for 40 decimals of land which was the subject matter, however, the total area of mutation is 73.81 decimals in favour of 17 persons and the aforesaid 17 persons are also included in R.C. Case No. 17(S)/2013. On these grounds, he submitted that the discharge petition so far as the petitioner is concerned has passed the order of mutation only in the official capacity and he has followed the procedure, which is also admitted in charge sheet and in view of that, the petitioner may kindly be discharged. 16. Mr. Indrajit Sinha, the learned counsel appearing for the petitioner-Om Prakash Yadav in Cr. Revision No. 255 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no case is made out under the Prevention of Corruption Act as well as under the sections of I.P.C and inspite of that, the petitioner has not been discharged and the charge has been framed. He submitted that the said entries are made pursuant to fiscal purpose and subsequently right and title of ownership can only be decided by the competent civil court and to buttress his such argument, he relied in the case of Rajinder Singh v. State of Jammu and Kashmir and Others, (2008) 9 SCC 368. Paragraph No. 17 of the said judgment is quoted below: "17. It is well settled that revenue records confer no title on the party. It has been recently held by this Court in Suraj Bhan v. Financial Commr. [(2007) 6 SCC 186] that such entries are relevant only for "fiscal purpose" and substantive rights of title and of ownership of contesting claimants can be decided only by a competent civil court in appropriate proceedings." 17. On the same line, he further relied in the case of Jitendra Singh v. State of Madhya Pradesh and Others, 2021 SCC OnLine SC 802. Paragraph nos. 7 and 8 of the said judgment are quoted below: "7. Right from 1997, the law is very clear. In the case of Balwant Singh v. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dduce 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 offence, then, there will be no sufficient ground for proceeding with the trial". 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused. 17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons." 19. He submitted that it is well settled that the courts are not only the post offices and the court is required to apply its mind for framing of the charge and to buttre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anjeevani Buildcon Pvt. Ltd of the petitioner was there, and in view of that, the petitioner may kindly be discharged. 15. On the other hand, Mr. Anil Kumar, the learned A.S.G.I appearing on behalf of the respondent-C.B.I submitted that in the charge sheet it has come that M/s Sanjeevani Buildcon Pvt. Ltd. started purchasing and selling the plots of land in different areas of Ranchi. The company made wide advertisement through newspapers and other modes of media. M/s Sanjeevani Buildcon Pvt. Ltd. was also publishing contact numbers of its marketing agents in such advertisements. Responding to the advertisement, Dr. Uma Shankar Prasad Shrivastava, retired Dairy Development Officer, Government of Jharkhand made telephonic call to the office of M/s Sanjeevani Buildcon Pvt. Ltd. and after due survey and negotiation, Dr. Uma Shankar Prasad Shrivastava agreed to purchase 1350 sq.ft of land for constructing the house and 120 sq.ft of land for running a shop @ Rs.450 per square ft. in Pundag at total Rs. 6,85,000/-. He made the payment which has come in the charge sheet to the tune of Rs. 6,85,000/- to Smt. Anamika Nandi, w/o Sri S.Nandi of M/s Sanjeevani Buildcon Pvt. Ltd and made to ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that in these background, the case handed over to C.B.I and the C.B.I has investigated the matter and it was further found which has come in the charge sheet that Sri Mahesh Sahu and Ramdhani Sahu having share of each 54 decimals of land in the above plot in this way both were having total share of 1.08 acres of land, apart from Vanshawali Partition Suit No. 30 of 2002 has already been decided by the court of Sub-Judge-VI, Ranchi in this regard. In view of that, the Court's order, Mahesh Sahu was given a share of 1.04 acres of land and Sri Ramdhani Sahu has been given a share of 1.03.50 acres of land in above plot. In view of that, Mahesh Sahu and brother Ramdhani Sahu who are having ownership of minimum 1.04 acres land each in above plot, however, Mahesh Sahu and Ramdhani Sahu gave power of attorney of 50 decimals of land belonging to plot no. 841, khata no.155 to Sri Arvind Singh, s/o Ram Daresh Singh of M/s Sanjeevani Buildcon Pvt. Ltd. vide deed No. 337 dated 10.02.2010. He submitted that Arvind Singh of M/s Sanjeevani Buildcon Pvt. Ltd in criminal conspiracy with Sri Shahdeo Mehra executed 57 sale deeds in the office of District Sub Registrar, Ranchi on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot exceed without connivance of the Circle Officer. He submitted that during 2009-2010 Sri Omprakash Yadav was posted and functioning as Circle Officer, Ratu. He has ordered mutation in 19 cases as against the actual holding of 35.55 decimals of land by Smt. Anamika Nandi of M/s Sanjeevani Buildcon Pvt. Ltd., Ranchi. Sri Omprakash Yadav has ordered mutation of 39.49 decimals land in plot no. 841, khata no.155, Mauza-Pundag as against the actual holding of 40 decimals of land Sri Arvind Singh of M/s Sanjeevani Buildcon Pvt. Ltd, Sri Omprakash Yadav ordered mutation of 30.43 decimals land at plot no. 841, khata no.155 which was excess. He further submitted that in other cases the identical is the situation and connivance of the petitioners who are Circle Officers are made out. He submitted that this is not a case that in absence of any connivance the excess mutation was made. He further submitted that the judgment relied by the learned counsel for the petitioners are on different facts and those are not helping the petitioners. He submitted that the learned court has already framed the charge and at this stage this Court may not interfere as they have earlier moved before this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighing materials in golden scales is to be undertaken at this stage - the only consideration at the stage of Sections 239/240 is as to whether the allegation/charge is groundless. 75. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equated with the appellate power. A Revisional Court cannot undertake meticulous examination of the material on record as it is undertaken by the trial court or the appellate court. This power can only be exercised if there is any legal bar to the continuance of the proceedings or if the facts as stated in the charge-sheet are taken to be true on their face value and accepted in their entirety do not constitute the offence for which the accused has been charged. It is conferred to check grave error of law or procedure. 76. Thus, the revisional power cannot be exercised in a casual or mechanical manner. It can only be exercised to correct manifest error of law or procedure which would occasion injustice, if it is not corrected. The revisional power cannot be equ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Anti Corruption v. N. Suresh Rajan and Others, (2014) 11 SCC 709, wherein paragraph no.29, 32.4, 33 and 34 has held as under: "29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les have been enumerated: "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 25. It has been further held in the case of Asim Shariff v. National Investigation Agency, (2019) 7 SCC 148, that mini trial is not expected by the trial court for the purpose of marshaling the evidence on record at the time of framing of record. It has been held at paragraph no. 18 of the said judgment as under: "18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 7 of the PC Act and consequently has discharged the accused for the said offence. What has been weighed with the High Court while discharging the accused is stated in paras 10 and 11 of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order, which are reproduced hereinabove. 11. While considering the legality of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to. 11.1. In P. Vijayan [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488], this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.' " 12. We shall now apply the principles enunciated above to the present case in order to find out whether in the facts and circumstances of the case, the High Court was justified in discharging the accused for the offence under Section 7 of the PC Act. 13. Having considered the reasoning given by the High Court and the grounds which are weighed with the High Court while discharging the accused, we are of the opinion that the High Court has exceeded in its jurisdiction in exercise of the revisional jurisdiction and has acted beyond the scope of Section 227/239 CrPC. While discharging the accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the accused is likely to be convicted or not. For the aforesaid, the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the competent court for the offence under Section 7 of the PC Act, in accordance with law and its own merits." 27. While deciding the discharge petition, the High Court is not required to scrutinize the evidence and advancing elaborate arguments in that count as the High Court is not exercising its power at the appellate stage and only the said argument is being heard in a criminal revision petition. In this regard a reference may be made to the case of State of Uttar Pradesh v. Uday Narayan and Another, (1999) 8 SCC 741. The essential ingredients for the offence of criminal conspiracy are-, (i) an agreement between two or more person, (ii) the agreement must relate to doing or causing to be done either-, (a) an illegal act, or (b) an act which is not illegal in itself, but is done by illegal means. Thus, the plain minds of two or more persons meeting for doing or causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. It is extremely difficult to adduce direct evidence to prove conspiracy, existence of conspiracy and its objectives can be inferred from the surrounding circumstances and the conduct of the accused. On perusal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tenance of Records) Act, 1973. In that case, the conspiracy was not the subject matter. Thus, that judgment is not helping the petitioner. In the case of Jitendra Singh(supra), relied the learned counsel appearing for the petitioner-Omprakash Yadav was only on the point that mutation entry does not confer any right, title and interest and in that case also the civil proceeding was there and in that case the criminality and corruption was not the subject matter and that judgment is not helping the petitioner. In the case of M.E. Shivalingamurthy (supra), the petitioner of that case was acted on the basis of past practice of the Department. He has spoken with the Deputy Director (Legal) and acted on his advice. The discharge petition was allowed by the learned trial court which was reversed by the High Court and the same was the subject matter before the Hon'ble Supreme Court and the Hon'ble Supreme Court has held that at that stage, in view of principle of discharge, the High Court has rightly setaside and the order of the High Court was affirmed and the said case was dismissed and for coming to the ratio of the case the entire facts of the case is required to be considered and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. The said case is also not helping the petitioners. 31. In view of the discussions made hereinabove with regard to ingredients of P.C.Act and section 120B of the IPC the cases relied on the point of section 120B and 420 IPC by Mr. Indrajit Sinha, the learned counsel for the petitioner are not helping the petitioners. Thus, in view of the above facts, reasons and analysis the Court finds that there are allegations against the petitioners of mutating more land than the area of the plot which has also been admitted in the argument of the learned counsel for the petitioners which cannot be ruled out at this stage that the petitioners were not in connivance with the said M/s Sanjeevani Buildcon Pvt. Ltd. The poor people have been cheated by the said M/s Sanjeevani Buildcon Pvt. Ltd. and the connivance of these petitioners cannot be ruled out considering that in two of the cases one of the petitioner has refused the mutation on the ground that the land is excess meaning thereby that they were knowing about the area of the land and inspite of that they have mutated the excess land. 32. In view of the above facts, reasons and analysis and considering the principles of discharge, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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