1 2025:CGHC:16570 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1101 of 2025 1 - Ashutosh Dwivedi S/o Shri Rajeshwar Prasad Dwivedi, Aged About 34 Years, R/o 22/16, Nehru Nagar (West) Bhilai, District Durg Chhattisgarh. ... Petitioner versus 1 - State of Chhattisgarh Through Station House Officer, Police Station Gandhi Nagar (Ambikapur Dehat), Ambikapur, District Surguja Chhattisgarh. 2 - Chainsai Rajwade S/o Ratansai, Aged About 63 Years, R/o Sonpurkhurd, Ambikapur, District Sarguja Chhattisgarh. ... Respondents (Cause-title taken from Case Information System) For Petitioner : Mr. Ajay Pal SIngh, Advocate. For State : Ms. Laxmeen Kashyap, Panel Lawyer. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 08-04-2025 1. The petitioner has filed the present Criminal Miscellaneous Petition under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023, against the order dated 06-02-2025 passed by learned Special Judge (Chhattisgarh Protection of Depositor Act) Surguja (Ambikapur), in Special Criminal Case No. 06/2022, whereby the application filed by the petitioner under Section 227 of the Cr.P.C. for his discharge has been rejected. 2. The brief facts of the case are that the petitioner is an accused in Special Criminal Case No. 06/2022 pending before the learned trial court, which arises out of Crime No. 302 of 2021, registered at Police Station Ambikapur (Dehat), District Surguja, (C.G.), for the offence under Section 420, 34 of I.P.C. on the complaint made by the complainant Chainsai Rajwade. It is alleged in the F.I.R. that the present petitioner and other accused persons have cheated a huge number of persons by alluring them to deposit their amount in their company, and they will repay the same with higher interest in a short span of time. When the Digitally signed by MOHAMMAD AADIL KHAN 2 amount deposited by the persons and deposits were matured for payment, they fled away. It is also alleged that the petitioner, who is one of the directors of AVM Real Estate and Allied Co. Ltd., collected about Rs. 20,00,000/- from 18-20 depositors and has not repaid the same to them. The police have registered the offence and after due investigation, a charge sheet has been filed before the learned trial court against the present petitioner and other accused persons in which the petitioner is facing trial of the case. 3. During the proceeding of the case, the petitioner has filed an application under Section 227 of the Cr.P.C. for his discharge on the ground that he has withdrawn himself from the company from 07-01-2013 and resigned from its directorship which was duly accepted by the other directors of the company also. The F.I.R. was lodged on 15-07-2021, and on that day, he was neither the director of the company nor connected with the company in any manner. 4. After hearing the parties, the learned trial court rejected the application filed by the petitioner under Section 227 of the Cr.P.C. vide its order dated 06-02-2025, which is under challenge in the present petition. 5. Learned counsel for the petitioner would submit that on the date when the F.I.R. was lodged, the petitioner has already resigned from the company, which has been duly accepted by the company and other directors of the company. The ROC has also been recorded, and the petitioner has been relieved from any liability of the company. There is no active participation of the petitioner in the alleged fraudulent transaction, and no criminal liability can be fastened upon him. The complaint of the complainant is that he has not received his amount back from the company, but much prior to the maturity date of his deposit, the petitioner had resigned from the company. There is no sufficient evidence against the petitioner in the charge sheet to frame the charge, and his application is erroneously rejected by the learned trial court. 6. On the other hand, learned counsel appearing for the state would submit that there is prima facie evidence available in the charge sheet against the petitioner that he was also involved in the alleged offence of cheating. The charge sheet 3 has been filed against the petitioner for the offence under Section 420, 34 of I.P.C., Sections 4, 5 and 6 of the Prize Chits and Money Circulation Schemes (Banning) Act, and Section 10 of the Protection of Depositors Interest Act, 2005. The petitioner is said to have resigned from the company on 07-01-2013, whereas the allegation in the complaint is that the petitioner and other accused persons, who are the directors of the AVM Reas Estate and Allied Co. Ltd. have collected money from him in the year 2010-11 and he deposited total Rs. 58,400/- with the said company, they made them an agent, and thereafter they fled away. Admittedly, in the year 2010-11, when the complainant deposited the amount in the company, the petitioner was one of the directors, who subsequently, in the year 2013, left the company. He cannot take the benefit that he left the company subsequently and has no liability. Therefore, there is sufficient reason to dismiss the application of the petitioner, and the learned trial court has rightly rejected the same, which needs no interference. 7. I have heard learned counsel for the parties and perused the documents annexed with the petition. 8. While considering the scope of Section 227 of the Cr.P.C., the Hon’ble Supreme Court has considered in the case of M.E. Sivalingamurthy v. Central Bureau of Investigation, Bengaluru, (2020) 2 SCC 768, in Para 17 and 18 of its judgment, the Hon’ble Supreme Court has laid down the legal principles applicable in regard to an application sitting discharge, which is as under : “17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala and discern the following principles: 17.1. 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. 17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. 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. 17.4. If the evidence which the Prosecutor proposes to adduce 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". 4 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 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. 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. 17.8. 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. 18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any. produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi).” 9. In the matter of Ajay Singh and another v. State of Chhattisgarh and others, reported in (2017) 3 SCC 330, the Hon’ble Supreme Court in Para 9 of its judgment held that: “9. Chapter XVIII CrPC provides for trial before a Court of Session. Section 227 empowers the trial Judge to discharge the accused after hearing the submissions of the accused and the prosecution and on being satisfied that there is no sufficient ground for proceeding against the accused. The key words of the section are "not sufficient ground for proceeding against the accused". Interpreting the said provision, the Court in P. Vijayan v. State of Kerala has held that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 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. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.” 10. Further, in the matter of Sajjan Kumar v. Central Bureau of Investigation, reported in (2010) 9 SCC 368, in Para 21 of its judgment the Hon’ble Supreme Court has held that : “21. On consideration of the authorities about the scope of Sections 227 d and 228 of the Code, the following principles emerge: 5 (i) The Judge while considering the question of framing the charges under Section 227 CrPC 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. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an 9 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. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents 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.” 11. Recently in the matter of “Ram Prakash Chadha v. State of Uttar Pradesh”, reported in AIR 2024 SC 3540, the Hon’ble Supreme Court has considered in Para 12 to 22 & 30 that : “12. We have already considered the meaning of the expression "the record of the case and the documents submitted therewith" relying on the decision in Debendra Nath Padhi's case (supra) only to re-assure as to what are the materials falling under the said expression and thus, available for consideration of an application filed for discharge under Section 227, Cr.PC. In the light of the same, there cannot be any doubt with respect to the position that at the stage of consideration of such an application for discharge, defence case or material, if produced at all by the 6 accused, cannot be looked at all. Once "the record of the case and the documents submitted therewith" are before the Court they alone can be looked into for considering the application for discharge and thereafter if it considers that there is no sufficient ground for proceeding against the accused concerned then he shall be discharged after recording reasons therefor. In that regard, it is only appropriate to consider the authorities dealing with the question as to what exactly is the scope of consideration and what should be the manner of consideration while exercising such power. 13. The decision in Yogesh alias Sachin Jagadish Joshi v. State of Maharashtra' this Court held that the words "not sufficient ground for proceeding against the accused" appearing in Section 227, Cr.PC, postulate exercise of judicial mind on the part of the Judge to the facts of the case revealed from the materials brought on record by the prosecution in order to determine whether a case for trial has been made out. In the decision in State of Tamil Nadu v. N. Suresh Rajan and Ors. this Court held that at a 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 materials to find out whether the facts taken at their face value disclose the existence of the ingredients constituting the offence. At this stage, only the probative value of the materials has to be gone into and the court is not expected to go deep into the matter to hold a mini-trial. 14. In the decision in BK Sharma v. State of UP, the High Court of judicature at Allahabad held that the standard of test and judgment which is finally applied before recording a finding of conviction against an accused is not to be applied at the stage of framing the charge. It is just a very strong suspicion, based on the material on record, and would be sufficient to frame a charge. 15. We are in agreement with the said view taken by the High Court. At the same time, we would add that the strong suspicion in order to be sufficient to frame a charge should be based on the material brought on record by the prosecution and should not be based on supposition, suspicions and conjectures. In other words, in order to be a basis to frame charge the strong suspicion should be the one emerging from the materials on record brought by the prosecution. 16. In the decision in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and Anr., this Court held that 7 the word 'ground' in Section 227, Cr.PC, did not mean a ground for conviction, but a ground for put- ting the accused on trial. 17. In P. Vijayan v. State of Kerala and Anr., after extracting Section 227, Cr.PC, this Court in paragraph Nos. 10 and 11 held thus: - "10. *********** ...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. Further, the words "not sufficient ground for proceeding against the accused" clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. 11. 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, In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him." 18. In paragraph 13 in P. Vijayan's case (supra), this Court took note of the principles enunciated earlier by this Court in Union of India v. Prafulla Kumar Samal which reads thus: - "10.… (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. 8 (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 merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, 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 does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 19. In the light of the decisions referred supra, it is thus obvious that it will be within the jurisdiction of the Court concerned to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused concerned has been made out. We are of the considered view that a caution has to be sounded for the reason that the chances of going beyond the permissible jurisdiction under Section 227, Cr.PC, and entering into the scope of power under Section 232, Cr.PC, cannot be ruled lout as such instances are aplenty. In this con- text, it is relevant to refer to a decision of this Court in Om Parkash Sharmav. CBI. Taking note of the language of Section 227, Cr.PC, is in negative terminology and that the language in Section 232, Cr.PC, is in the positive terminology and considering this distinction between the two, this Court held that it would not be open to the Court while considering an application under Section 227, Cr.PC, to weigh the pros and cons of the evidence alleged improbability and then proceed to discharge the accused holding that the statements existing in the case therein are unreliable. It is held that doing so would be practically acting under Section 232, Cr.PC, even though the said stage has not 9 reached. In short, though it is permissible to sift and weigh the materials for the limited purpose of finding out whether or not a prima facie case is made out against the accused, on appreciation of the admissibility and the evidentiary value such materials brought on record by the prosecution is impermissible as it would amount to denial of opportunity to the prosecution to prove them appropriately at the appropriate stage besides amounting to exercise of the power coupled with obligation under Section 232, Cr.PC, available only after taking the evidence for the prosecution and examining the accused. 20. Even after referring to the aforesaid decisions, we think it absolutely appropriate to refer to a decision of the Madhya Pradesh High Court in Kaushalya Devi v. State of MP. It was held in the said case that if there is no legal evidence, then framing of charge would be groundless and compelling the accused to face the trial is contrary to the procedure offending Article 21 of the Constitution of India. While agreeing with the view, we make it clear that the expression 'legal evidence' has to be construed only as evidence disclosing prima facie case, 'the record of the case and the documents submitted therewith'. 21. The stage of Section 227, Cr.PC, is equally crucial and determinative to both the prosecution and the accused, we will dilate the issue further. In this context, certain other aspects also require consideration. It cannot be said that Section 227, Cr.PC, is couched in negative terminology without a purpose. Charge sheet is a misnomer for the final re- port filed under Section 173 (2), Cr.PC, which is not a negative report and one that carries an accusation against the accused concerned of having committed the offence (s) mentioned therein. 22. In cases, where it appears that the said offence(s) is one triable exclusively by the Court of Session, the Magistrate shall have to commit the case to the Court of Session concerned following the prescribed procedures under Cr.PC. In such cases, though it carries an accusation as aforementioned still legislature thought it appropriate to provide an inviolable right as a precious safe guard for the accused, a pre-battle protection under Section 227, Cr.PC. Though, this provision is couched in negative it obligated the court concerned to unfailingly consider the record of the case and document submit- ted therewith and also to hear the submissions of the accused and the prosecution in that behalf to arrive at a conclusion as to whether or not sufficient ground for proceeding against the accused is available 10 thereunder. Certainly, if the answer of such consideration is in the negative, the court is bound to discharge the accused and to record reasons therefor. The corollary is that the question of framing the charge would arise only in a case where the court upon such exercise satisfies itself about the prima facie case revealing from "the record of the case and the documents submitted therewith" against the accused concerned. In short, it can be said in that view of the matter that the intention embedded is to ensure that an accused will be made to stand the ordeal of trial only if 'the record of the case and the documents submitted therewith discloses ground for proceeding against him. When that be so, in a case where an application is filed for discharge under Section 227, Cr.PC, it is an irrecusable duty and obligation of the Court to apply its mind and answer to it regarding the existence of or otherwise, of ground for proceeding against the accused, by confining such consideration based only on the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution in that behalf. To wit, such conclusion on existence or otherwise of ground to proceed against the accused concerned should not be and could not be based on mere suppositions or suspicions or conjectures, especially not founded upon material available before the Court. We are not oblivious of the fact that normally, the Court is to record his reasons only for discharging an accused at the stage of Section 227, Cr.PC. However, when an application for discharge is filed under Section 227, Cr.PC, the Court concerned is bound to disclose the reason(s), though, not in de- tail, for finding sufficient ground for rejecting the application or in other words, for finding prima facie case, as it will enable the superior Court to examine the challenge against the order of rejection. 30. In the light of the records of the case and the documents submitted therewith, it can only be found that the said finding of the Trial Court on the ground to proceed against the appellant is based on suppositions and suspicions, having no foundational support from the materials produced by the prosecution. With respect to the first part of the above extracted recital from the order of the Trial Court, it is to be noted that it is nobody's case that the appellant was in the Police Station or informed of the sufferance from chest pain. As relates the second suspicion, it is to be noted that the very Trial Court itself, in the very order dated 19.04.2007 itself, stated that in Crime No.351/1993 under Section 392. IPC the deceased Ram Kishore was only a witness and that the amount in cash and 11 the draft involved was that of the appellant. It is also the case of the prosecution that the said case was registered, at the instance of the appellant against unknown persons. Hence. when the appellant who lost the money went to Police Station along with the witness thereof, how can it be presumed by the Court as a strong case for suspicion for commission of the offence of criminal conspiracy. especially taking note of the very case of the prosecution that causative incident for the case occurred when Ram Kishore was returning after collecting the business proceeds of the appellant and that the appellant was informed of it over telephone by Ram Kishore. When there is no case for the prosecution that the appellant pointed the fingers at Ram Kishore how the lodging of the complaint, apprehending custodial death of Ram Kishore who was appellant's clerk for about 13 years, which caused the registration of custodial death case under FIR No. 371/1993 can be taken as a ground for framing charge against the appellant for the offences punishable under Sections 302, IPC, 120-B with the aid of Section 34, IPC.” 12. In light of the records of the case and the documents submitted therewith, I examine the allegation against the petitioner in the case. As per the F.I.R., it is alleged that the petitioner was one of the directors of AVM Real Estate and Allied Co. Ltd., and the complainant was deceived about depositing money in his company having a high return, and he deposited Rs. 58,400/- in the company. When he could not return his money back, he lodged the report to the police on which the F.I.R. had been registered. The said company has been running since 2010, and the petitioner was responsible for the affairs/transactions of the company till 07-01-2013 when he allegedly left the company. Therefore, it cannot be said at this stage that the petitioner has no liability of the company with respect to the amount deposited by the complainant and when his amount is not returned, he lodged the report. Whether or not he resigned from the company on 07-01- 2013 and what liabilities he owed are the matters of evidence, which are to be decided after leading evidence of the parties. At this stage, there is sufficient prima facie material available on record to frame the charge and to proceed with the trial of the case against the petitioner. The learned trial court rightly considered the facts and circumstances of the case in view of the aforesaid law laid down by 12 the Hon’ble Supreme Court and has rightly dismissed the application of the petitioner in which this court does not find any ground warranting interference. 13. Accordingly, the present petition lacks merits and is hereby dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Aadil