The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV NO.115 OF 2023 V.Sarveswar Rao …. Petitioner Mr.D.Panda, Advocate State of Odisha -versus- …. Opposite Party Mr.S.K.Nayak, AGA CORAM: MR. JUSTICE D.DASH Order No. ORDER 10.08.2023 06. 1. The Petitioner, by filing this Revision, has called in question the legality and propriety of an order dated 23.02.2023 passed by the learned Judicial Magistrate First Class (JMFC), Bhubaneswar in C.T. Case No.4053 of 2020. 2. The Petitioner being arraigned as an accused with two others in CID CB Cuttack Cyber P.S. Case No.26 of 2020 registered for commission of offence under section 419/420/467/468/469/471 of the Indian Penal Code, 1860 (for short ‘the IPC’) read with section 66-C & 66-D of the Information Technology Act, 2000 (in short ‘the I.T Act’) was placed in the Final Form submitted by the Investigating Officer to face the trial for commission of the said offences. 3. The Petitioner then filed an application under section 239 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) for his
Facts
discharge. The Trial Court by the impugned order has rejected the said application in holding that the grounds projected by the Petitioner for discharge do not merit consideration. // 2 // 4. Prosecution case is that one Akash Kumar Pathak committed forgery by impersonating himself as the Managing Director (i/c), Passenger Car Division of Tata Motors Ltd. and has cheated innocent persons alluring them to provide jobs, without any authority and for the purpose, he was using the logos of Tata Motors and Tata Group as also the Company’s brand name. In that way, money was being collected from innocent aspirants for providing them jobs at Tata Motors by using fake visiting cards, e- mail ids and identity card in posing himself as the Managing Director of Tata Motors. In course of investigation, it is said to have been ascertained that said Akash Pathak was not in employment with Tata Motors and had no connection with the said Company. It is further said that he having taken rooms in the Westin Hotel, Pune on rent was maintaining an office with staff placing the nameplate falsely showing his position as the Managing Director, Tata Motors Ltd. with display of logo of Tata Motors. It is further stated that his would be father-in-law namely
Legal Reasoning
materials on record do not reveal prima facie case for commission of offence under section 120(B)/419/420/467/468/469/471 of the IPC and section 66-C/66-D of the I.T Act as against this Petitioner to face the trial being charged. He submitted that a bare reading of the materials noted in the chargesheet, those do not implicate this Petitioner in commission of the said offences. He further submitted that materials on record do not disclose that the mail correspondence with Google Inc. relating to e-mail id “[email protected]’ had been created by this Petitioner on 26.03.2019 and deleted on 25.11.2020. It was also submitted that the allegation that the Petitioner had collected resumes from different job aspirants do not derive support from the statements of the witnesses recorded under section 161 of the Cr.P.C. or the documents. According to him, the materials available on record do not go to show that any emails were sent through the Petitioner’s mail id to Akash Kumar Pathak or this Petitioner had assured anyone for a job at Tata Motors Ltd. He submitted that Sunil Kumar Behera, Chandrasekhar Goud, M Balakrishma Reddy, N Dambaru Reddy, M Suresh Reddy, M Bikram Reddy and Madhusmita Rath who have stated to have received application forms on mail from Page 4 of 11 // 5 // [email protected] which according to the information received from Google Inc. was created by co-accused, who has arranged online interviews, and informed that they were in the list of selected candidates and imparted offline training course. But they do not state anything against this Petitioner playing any role therein. He submitted that the account statement would show that the transactions from their accounts are with the account of Sri Pradeep Kumar Panigrahi and from their straight to Akash Kumar Pathak and no transaction is shown to the account of the Petitioner. He therefore submitted that the Trial Court with the available materials on record has gone wrong in holding that a case for framing of the charge for the said offences stands against this Petitioner. 6. Mr.S.K.Nayak, learned Additional Government Advocate submitted that when in course of investigation materials have been collected by examining witnesses and recording their statements under section 161 of the Cr.P.C. that as per the direction of the Petitioner, his mail account i.e. [email protected] was used by Sunil Kumr Sahoo and Tapan Kumar Nepak and they too were also using as per the direction, the mail accounts of Sri Pradeep Kumar Panigrahi, i.e. [email protected] being provided with the passwords and then as per the direction of this Petitioner, new email id was created under the name, ‘unknown’ i.e. <[email protected]> and then the Petitioner gave them the resumes of some persons and asked them to scan those and send to the mail account i.e. [email protected] which they were doing and retunring the scan copies to the Petitioner who was then destroying those. He having further invited the attention to other available materials hinting at the involvement of the Petitioner with Sri Pradeep Kumar Panigrahi and Akash Pathak submitted that the Page 5 of 11 // 6 // Trial Court keeping in view all these has rightly rejected the prayer for discharge of the Petitioner. 7. This Court is in the seisin of the revision filed by the Petitioner in questioning the sustainability of an order passed by the Trial Court, refusing thereby to discharge the Petitioner in putting an end to the criminal trial in so far as he is concerned. At this juncture, before proceeding to dwell upon the contention in the foregoing paragraphs, it would be apt to take note of the settled principles of law in the matter of consideration of the application filed by the accused seeking discharge in the criminal case. The principles of law are too well settled that while answering the question of framing the charges, a duty is cast upon the Court to consider the record of the case and documents submitted therein. In that exercise, if the decision is to discharge the accused under section 227 of the Code of Criminal Procedure (in short, ‘the Code’), the Court is called upon to give a definite opinion for said discharge. Meaning thereby, that if the Court considers that there is no sufficient ground for proceeding against the accused, it shall discharge the accused after recording the reasons for doing so. The language of section 227 of the Code makes it clear that the Court cannot proceed merely on presumption and therefore, the word ‘considers’ finds place therein. The next parameter is that if after considering the record of the case and the documents submitted there with and hearing in that behalf, the Court exercises the power to frame charges against the accused under section 228 of the Code, said view is tentative. Meaning thereby, that if the Court is of the opinion that there is ground for even presuming that the accused has committed an offence, he shall frame the charge in writing. Page 6 of 11 // 7 // It has been held in case of State of Bihar V.Ramesh Singh; AIR 1977 SC 2018 that at this initial stage, truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged upon their critical analysis. It is not obligatory at the stage 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. 8. In case of Amit KapoorV.Ramesh Chander; (2012) 53 OCR (SC) 74: (2012) 9 SCC 460, it has been held that at the stage of framing the charges, the Court is not concerned with the proof, when upon careful perusal of the materials placed, there arises strong suspicion in the mind of the Court that the accused has committed the offence, which if put to trial could prove him guilty, the Court would be justified in proceeding with the trial by framing the charge. Here however the rile of caution comes into play that mere suspicion is not enough and the suspicion founded upon the materials on record must be of strength persuading the Court to form a prima facie opinion justifying the trial as those when proved may lead to a result in favour of the prosecution. 9. The crystallized judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused and the Court for the purpose is not required to appreciate the evidence to conclude whether the materials produced are sufficient or not for convicting the accused. Ref:-State of M.P. v. Mohanlal Soni; (2000) 6 SCC 338. 10. In the recent case in M.E.Shivalinga Murthy V. Central Bureau of Investigation, Bengaluru; (2020) 77 OCR (SC) 935: (2020) 2 SCC 768, the Hon’ble Apex Court referring the earlier Page 7 of 11 // 8 // decisions including the one in case of P.Vijayan V. State of Kerala and Another; (2010) 45 OCR (SC) 646: (2012) 2 SCC 398 have discerned the following principles. i. if two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial judge would be empowered to discharge the accused; ii. iii. the Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution; the judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court; iv. if the evidence, which the prosecutor proposes to v. vi. adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence, then, there will be no sufficient ground for proceeding with the trial; it is open to the accused to explain away the materials giving rise to the grave suspicion; the Court has to consider the board 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; vii. At the time of framing of the charges the probative value of the material on record cannot be gone into, Page 8 of 11 // 9 // and the material brought on record by the prosecution, has to be accepted as true; viii. 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. The defence version not based upon the deriving no support from the materials or documents placed by the prosecution is not to be looked into at the stage when the accused seeks discharge. The ‘record of the case’ used in section 227 of the Code is to be understood as the documents and articles, if any produced by the prosecution. 11. In the backdrop of above, it becomes necessary to address the rival contentions carrying at and with reference to the materials available on record. 12. Perusal of the record would reveal that the Petitioner had collected the resumes from the job aspirants and given those two Sunil Kumar Sahoo and Tapan Kumar Nepak to send those to the another mail account after scanning and thereafter was destroying the same. The Petitioner is an associate of Sri Pradeep Kumar Panigrahi, and was working as his Personal Assistant and it is stated that as per the direction of Sri Pradeep Kumar Panigrahi, the Petitioner was receiving the resumes of the unemployed youths and making the arrangements to send those through a fake mail id i.e. <[email protected]> created under his direction to Akash Kumar Pathak, the would be son-in-law of Sri Pradeep Kumar Panigrahi in the mail id [email protected] which had been created by Akash Kumar Pathak. Witnesses namely Krushna Chandra Panigrahi and P.Daneshu Reddy have stated during their Page 9 of 11 // 10 // examination in course of investigation to have given the resumes to the Petitioner for being provided with the jobs. The bank statement of the witness P.Daneshu Reddy seized in course of investigation shows that he has withdrawn money from that account during that time. Another witness has also stated about the meeting of Akash Kumar Pathak, Sri Pradeep Kumar Panigrahi and this Petitioner in hatching the conspiracy to cheat public by using fake identity card, visiting card, mail id, Tata Motor’s logo etc as genuine and that witness has also stated that this Petitioner with those two others used to visit different places together. Materials also reveals that this petitioner was preparing the list of job aspirants through local contact promising them with job in Tata Motors in lieu of money and thereafter, was sending the list to the Private Secretary of Akash Kumar Pathak who was fraudulently running the fake office at Hotel Westin, Pune and that Akash Kumar Pathak was sending mail to the job aspirants and after receiving money through this Petitioner was sending fake selection lists online. Materials on record also shows that some of the job aspirants have directly sent the biodatas/Cvs and also some have paid money to the Petitioner. The call detail reports (CDR) reveals that this Petitioner was in conversation with Akash Kumar Pathak and his Personal Assistant and Private Secretary. Forensic examination of exhibits reveal that Akash Kumar Pathak had managed to conduct fake online interviews and training programmes by providing assurance that those aspirants have been selected as employees of Tata Motors Ltd. The Private Secretary of Akash Kumar Pathak in his statement has narrated the role that was being played by this Petitioner. 13. The above discussed available materials on record being tested in the touch stone of the settled legal principles as Page 10 of 11 // 11 // aforenoted; this Court finds no such illegality or impropriety in the order impugned in this Revision whereby the Court below has rejected the application under section 239 of the Cr.P.C. filed by the Petitioner for his discharge. 14.
Arguments
Sri Pradeep Kumar Panigrahi, the sitting Member of the Odisha Legislative Assembly representing Gopalpur Assembly Constituency was also collecting money from the job aspirants, their parents and guardians. He was receiving the cash at his Courtpeta, residence at Berhampur through his brother Dillip Kumar Panigrahi by using one Hemanta Rath as his agent. It is further stated that he defrauded many persons by duping them with false promises to provide the jobs to those qualified and unemployed youths. It has also been the allegation that one P.Daneshu Reddy was in search of job for his younger son Dibakar, who having Diploma in Mechanical Engineering was unemployed. He in June, 2020 met Page 2 of 11 // 3 // Sri Panigrahi, the MLA at his residence and asked him to arrange a job for his unemployed son Dibakar. He was then told by Sri Panigrahi, that if money would be spent, his son would get the job at Tata Motors where his close acquaintance was occupying the high position. So he agreed to do so and Sri Panigrahi, asked him to send the resume to this Petitioner (V.Sarveswar Rao) working as his Personal Assistant. It is next stated that Dibakar thereafter received a call letter and was interviewed for the job after the resume was emailed to this Petitioner. Thereafter, being asked by Sri Panigrahi, to pay a sum of Rs.5,00,000/- to this Petitioner, the money was paid to the Petitioner in his house. Dibakar then received information that he was in the select list. But he did not receive any appointment/joining letter in service and later on having learnt from the news clippings that several persons have in that way been cheated by Sri Panigrahi, he informed the Police. It is also stated that one David Peter as the Personal Assistance of Akash Kumar Pathak has implicated this Petitioner in keeping a database of the colleges in Odisha and sending him the details of the students who were being unsuccessful in campus interviews and was receiving huge amounts from them for providing jobs. It has also been ascertained that Sunil Kumar Sahoo and Tapan Kumar Nepak being employed by this Petitioner, as per his orders had created a Gmail Id in the name of ‘unknown’ from which the resumes collected by the Petitioner from candidates were being mailed by them to Akash Kumar Pathak and after being mailed, the Petitioner was destroying those. So it is said that the Petitioner and two others had committed offence of cheating by impersonation, by creating forged electronic records in the form of Gmail address in the name of Tata Motors with the intent of making Page 3 of 11 // 4 // wrongful gains by causing wrongful loss to the all those persons in the pretext of providing those persons the job at Tata Motors and thus have collected huge amounts from them and fabricated documents projecting Akash Kumar Pathak as the M.D of Tata Motors Ltd., received resumes from the aspirants, sent them letters purportedly issued by Tata Motors Ltd., conducted fake online interviews, collected money after issuing forged selection letter and also conducted false online training. 5. Mr.D.Panda, learned counsel for the Petitioner submits that
Decision
In the result, the Revision stands dismissed. The interim order stands vacated. (D. Dash) Judge Gitanjali Signature Not Verified Digitally Signed Signed by: GITANJALI NAYAK Reason: Authentication Location: OHC Date: 11-Aug-2023 18:16:45 Page 11 of 11