R.K. VISHWAKARMA Vs. STATE OF M.P.

JUDGEMENT

(1.) This order shall govern disposal of Miscellaneous Criminal Case Nos.7031109, 7032/09, 7033/09, 7034/09, 7035/09, 7036/09, 7037/09 and 7038/09. All these petitions have been filed under section 482 of the CrPC for quashment of the initiation of proceedings of Special Sessions Judge, Dhar in S.T. No.148/2009 in furtherance to the order dated 25.9.2009 and to set aside the same, whereby the application filed by the accused/objector Insaf Khan under section 319 of the CrPC has been allowed, joining the applicants as accused, and commencement of the trial against them.

(2.) IN brevity the description of the incident is that, one Mi. K.K. Sharma, District Marketing Officer of Madhya Pradesh Rajya Sahkari Vipdan Sangh Maryadit, District Dhar has lodged a written report to police Kotwali Dhar, stating that Insaf Khan, in -charge of go down has committed irregularities in various documents, maintaining the account of stock of sale of goods deposited in the go down and transfer in the financial year 2006 -07. After investigation and on seizing the document from his custody the offence under sections 408, 409, 467 and 468 has been registered against him. It was also found that Insaf Khan, Go down Keeper has made false entries of stock and sale, however, misappropriated the Government funds of about Rs.21 ,00,000/ -; thus challis was filed against him at Crime No.857/07 by the Police Station Kotwali Dhar.

(3.) SHRI T.C. Jain, learned counsel appearing on behalf of the applicants has made three fold submissions; firstly, the statement of prosecution witness Mr. Ritu Singh Kalesh is not yet complete and only the examination -in -chief has been recorded, however, without cross -examination, and relying upon such statement cognizance cannot be taken, exercising the powers under section 319 of the CrPC. In support there to reliance has been placed on a judgment of the apex Court in the case of Mohd. Shafi v. Mohd. Rafiq and another [(2007)4 SCR 1023]; referring various paragraphs of the said judgment, it is urged 'that the examination -in -chief of witness cannot form the basis to take cognizance against the applicants. Thus, the order impugned passed by the trial Court, is contrary to the principles of law as laid down in the said judgment. Secondly, it is , contended that while taking cognizance under section 319 of CrPC the Court must see some additional material, if any, brought on record, which was not in a prosecution case, and sufficient to constitute of offence against the accused persons, otherwise the applicants cannot be made accused invoking such powers. The reliance has been placed on a judgment of the apex Court in the case of Lalsuraj @ Suraj Singh and another v. State of Jharkhand [(2009) 1 SCC (Cri.) 844]. Thirdly, the report of the Senior Cooperative Inspector, Mr. Ritu Singh Kalesh and his examination -in -chief recorded in Court may be an opinion on the issue, unless the prosecution has collected the evidence of commission of offence by accused hawing mens ria or conspiracy otherwise the cognizance against the applicants call not be directed. At last it is urged that the opinion of the Senior Cooperative Inspector and his statement if it is accepted as it is, even then ingredients of having any conspiracy by meeting of mind of fraudulent or dishonest intention to establish the ingredients of sections 408,409,467 and 468, is not on record; in support to the said submission, reliance has been placed on judgment reported in L. Chandraiah v. State of Andhra Pradesh and another [AIR 2004 SC 252]. In view of the said submission prayer is made to set aside the order impugned of the trial Court and to reject the application filed by Insaf Khan under section 319 of CrPC.