MISC. Application No. 717 of 2005 · Uttarakhand High Court · 2010

Lakheda filed a complaint against the petitioner Sunita Sharma, the then Principal of Vivekanand School with the allegations that the complainant had taken teacher(cid:146)s training from Vivekanand School, Jogiwala, Dehradun during the period July 2001 to May

2002. During the aforesaid period, Rs.200/- per month of the complainant was deposited by the petitioner for eleven months, who had assured the complainant that the deposited money would be refunded back to the complainant after the training is completed. But the money was not refunded to the complainant by the petitioner. It is further alleged that after the training, 2 when the complainant asked for Rs.2200/- which he had deposited during his training, the petitioner refused to give the same. On 5.2.2003, the complainant sent a letter to the petitioner demanding his money, but the petitioner neither gave reply of the letter nor she refunded the money. Thereafter, as a last opportunity, the complainant again sent a letter dated

23.3.2003 to the petitioner. In reply, the petitioner sent a letter dated 21.4.2003 to the complainant and offered Rs.963/- after deducting Rs.1237/- from the total amount of Rs.2200/- in lieu of the amount outstanding against the complainant towards the damage of a chair. It is alleged that the petitioner has deliberately deducted Rs.1237/- as penalty while the petitioner has herself issued clearance certificate dated 31.5.2002 to the complainant in which there was no outstanding amount on the complainant. It is further stated that neither the complainant has damaged any chair of the school nor there was any outstanding amount on him. It is further alleged that the petitioner has not refunded money of the complainant even after issuing of the clearance certificate. With the same averments, this complaint was filed by the respondent no.3 Kailash Lakheda in the court of Special Judicial Magistrate Ist, Dehradun, which was registered as Complaint Case No.831 of 2004 under Section 409 of IPC. The complainant in support of his case got himself examined under Section 200 Cr.P.C. After recording the statement u/s 200 of Cr.P.C., learned Judicial Magistrate Ist took cognizance against the applicant and accordingly she was summoned. Thereafter, on 10.10.2005, after hearing learned counsel for the parties and after recording the evidence u/s 244 of Cr.P.C., the learned Judicial Magistrate Ist, Dehradun vide his order dated 10.10.2005 directed to frame charge against the applicant and on the same day, he framed charge u/s 409 of I.P.C. against the applicant. Feeling aggrieved by the said order dated 10.10.2005 and the charge dated 10.10.2005, the petitioner has preferred the present C482 application before this Court. Learned counsel for the petitioner argued that the petitioner has falsely been implicated in the said case and the 3 charge framed against the petitioner was only on the basis of doubt, which is not justified as per law. I do no find force in the argument advanced by learned counsel for the petitioner. It is settled legal position that on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charge 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 at that stage. I am fortified in my view with the judgment rendered by Hon(cid:146)ble Apex Court in case of (cid:147)Soma Chakravarty vs. State (Th.CBI)(cid:148) reported in 2007 AIR SCW 3683. Paras-19 and 20 are relevant to mention here, which reads as under:- (cid:147)19. Learned counsel for the appellant relied on the decisions of this Court in Union of India and another vs. Major J.S. Khanna etc. 1972 (3) SCC 873; State of Maharashtra and others vs. Som Nath Thapa and others, 1996 (4) SCC 659 and L Chandraiah vs. State of A.P. and another, 2003 (12) SCC 670 and contended that before framing the charges the court must have some material on the basis of which it can come to the conclusion that there is a prima facie case against the accused. In our opinion there was such material before the Court while framing the charge.

20. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the Court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. 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 at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, 4 the accused committed the offence, can only be decided in the trial.(cid:148) From a perusal of the contents of the complaint, the evidence recorded u/s 244 of Cr.P.C. in support of the complaint and after going through other papers available in file as well as in view of the settled legal proposition, I am of the view that prima facie a case under Section 409 of IPC is made out against the petitioner and the trial court has rightly framed the charge against the petitioner u/s 409 of IPC. For the reasons recorded above, there is no force in the application. The C482application, being devoid of merit, is dismissed accordingly. Interim order dated 20.10.2005 stands vacated. RG (Dharam Veer, J.) 14.07.2010