2025:HHC:16787 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 154 of 2016 Reserved on: 13.05.2025 Date of Decision: 30.05.2025 Mohinder Singh ...Petitioner Versus State of H.P. & another ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Surinder Kumar Saklani, Advocate. For the Respondents/State : Mr. Jitender K. Sharma, Additional Advocate General. Rakesh Kainthla, Judge The present revision petition has been filed for quashing the charges framed by the learned Additional Chief Judicial Magistrate, Theog, District Shimla, H.P. (learned Trial Court) in Challan No. 92-1/2012 and Challan No. 93-1/2013, titled State vs. Mohinder Singh. (Parties shall hereinafter be 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:16787 referred to in the same manner as they were arrayed before the learned Trial Court for convenience.) 2. Briefly stated, the facts giving rise to the present petition are that police presented a challan against the accused for the commission of an offence punishable under Section 409 of the Indian Penal Code (IPC). It was asserted that the informant made a complaint to the police stating that he had applied under the Right to Information Act for a copy of the audit report w.e.f. 01.04.1990 and 31.03.2001 when accused- Mohinder Singh, was Pardhan and w.e.f. 2001 to 2005, when Jia Lal was Pardhan. He found various irregularities in the payments made by the accused. The police registered the F.I.R. and conducted the investigation. The police found that ₹5000/- was disbursed to Gram Panchayat Garaog on 30.04.1999 vide receipt No. 291, and entry was made at Page Nos. 85 and 301 of the cash books. The accused did not disburse the amount to the beneficiary and utilised it under different scheme. This amount was deposited by the accused after 11½ years on 5.12.2010, along with interest, because he required a ‘No Objection Certificate’ for contesting the election. A notice was also issued by Pardhan Ramesh Sawant to the accused to deposit the amount, but the 3 2025:HHC:16787 accused failed to deposit this amount. It was also found that the accused Mohinder Singh took ₹5000/- vide entry No. 83 dated 01.02.1999, ₹7500/- vide entry No. 89 dated 29.09.1999, ₹5000/- vide entry No. 93 dated 28.12.2000 and ₹5000/-vide entry No. 93 dated 07.01.2000. The amount of ₹10,000/- was adjusted at Sl.No.106, however, the amount of ₹12,500/- was not deposited. In this manner, accused Mohinder Singh had misappropriated ₹5000/- under Balika Samridhi Yojna and ₹12,500/-. Hence, the charge sheet was filed against the accused. 3. Learned Trial Court framed the charge against the accused for the commission of an offence punishable under Section 409 of IPC on 27.04.2016. 4. Being aggrieved by the order passed by the learned Trial Court framing of charge, the petitioner has filed the present petition asserting that the informant Ramesh Sawant had filed an election petition, which was registered as case No.12/2011 before SDO-cum Authorised Officer, Theog and the same was decided on 25.04.2015. The Authority concluded that allegations of misappropriation were not proved. The loan 4 2025:HHC:16787 shown outstanding against the petitioner was the matter of audit and could not be said to be an embezzled amount. Authorised Officer allowed the petitioner to deposit the amount with interest and issued a ‘No Dues Certificate’. Block Development Officer, Jubbal, Kotkhai, also issued a ‘No Objection Certificate’ in favour of the petitioner on 30.11.2015. Similarly, ‘No Objection Certificates were issued in favour of the petitioner in the years 2010 and 2011. The petitioner had also deposited the amount shown as due in the Audit report. These documents were made available to the Investigating Officer, but he failed to consider them. The audit objection is to be revoked after fulfilling the requirement of the Audit or the sanction of the competent authority as per Rule 85 of the “Himachal Pradesh Panchayati Raj (Finance, Budget, Accounts, Audit, Works, Taxation and Allowances) Rules, 2002, however, the audit objection was not revoked in the present case. The learned Trial Court failed to consider the arguments made on behalf of the accused. An audit objection cannot be equated with embezzlement. The amount under Balika Samridhi Yojna was utilised in some other scheme and was not misappropriated. The petitioner did not retain a single penny. No case is made out 5 2025:HHC:16787 against the petitioner. Learned Trial Court erred in framing the charge. The petitioner had deposited the amount with interest, and receipts to this effect were issued to him. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 5. I have heard Mr. Surinder Kumar Saklani, learned counsel for the petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State. 6. Mr. Surinder Kumar Saklani, learned counsel for the petitioner, submitted that the learned Trial Court erred in framing the charge. As per the record, the amount was deposited by the petitioner, and there is no misappropriation. As per the charge sheet, the amount was utilised in some other scheme, and the petitioner did not benefit from the amount. Therefore, he prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 7. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that mere deposit of the amount is not sufficient to absolve the petitioner from the commission of a crime; rather, the deposit of the amount shows 6 2025:HHC:16787 that the petitioner had retained the money. The amount under Balika Samridhi Yojna was sanctioned for a particular purpose and was to be utilised for that purpose alone. The utilisation of the amount in a different scheme will not help the petitioner. The advance taken by the petitioner was not utilised, nor was it returned; therefore, misappropriation was duly proved. Learned Trial Court had rightly framed the charge based on the material placed before it. Hence, he prayed that the present petition be dismissed. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. It was laid down by the Hon’ble Supreme Court in State of Gujarat v. Dilipsinh Kishorsinh Rao, (2023) 17 SCC 688: 2023 SCC OnLine SC 1294 that the Court has to see the material collected by the prosecution while framing charges to determine whether a case has been made out for proceeding with the trial or not. It was observed: - 7. It is trite law that the application of judicial mind being necessary to determine whether a case has been made out by the prosecution for proceeding with trial and it would not be necessary to dwell into the pros and cons of the matter by examining the defence of the accused when an application for discharge is filed. At that stage, the trial 7 2025:HHC:16787 judge has to merely examine the evidence placed by the prosecution to determine whether or not the grounds are sufficient to proceed against the accused on the basis of the charge sheet material. The nature of the evidence recorded or collected by the investigating agency or the documents produced in which prima facie it reveals that there are suspicious circumstances against the accused, so as to frame a charge, would suffice, and such material would be taken into account for the purposes of framing the charge. If there is no sufficient ground for proceeding against the accused necessarily, the accused would be discharged, but if the court is of the opinion, after such consideration of the material there are grounds for presuming that the accused has committed the offence which is triable, then necessarily charge has to be framed. 8. At the time of framing the charge and taking cognisance, the accused has no right to produce any material and call upon the court to examine the same. No provision in the Code grants any right to the accused to file any material or document at the stage of framing of the charge. The trial court has to apply its judicial mind to the facts of the case as may be necessary to determine whether a case has been made out by the prosecution for trial on the basis of charge-sheet material only. 9. If the accused is able to demonstrate from the charge- sheet material at the stage of framing the charge, which might drastically affect the very sustainability of the case, it is unfair to suggest that such material should not be considered or ignored by the court at that stage. The main intention of granting a chance to the accused of making submissions as envisaged under Section 227 of the Cr. P.C. is to assist the court in determining whether it is required to proceed to conduct the trial. Nothing in the Code limits the ambit of such hearing to oral hearing and oral arguments only, and therefore, the trial court can consider the material produced by the accused before the I.O. 8 2025:HHC:16787 10. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged. This Court in State of Tamil Nadu v. N. Suresh Rajan, (2014) 11 SCC 709, adverting to the earlier propositions of law laid down on this subject has held: “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, the 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 ground for presuming that the offence has been committed and not whether 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 9 2025:HHC:16787 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.” 11. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged. The expression “the record of the case” used in Section 227 Cr. P.C. is to be understood as the documents and 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. The submission of the accused is to be confined to the material produced by the investigating agency. 12. The primary consideration at the stage of framing of charge is the test of the existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. This Court by referring to its earlier decisions in the State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and the State of MP v. Mohan Lal Soni, (2000) 6 SCC 338 has held the nature of evaluation to be made by the court at the stage of framing of the charge is to test the existence of the prima-facie case. It is also held at the stage of framing of charge, the court has to form a presumptive opinion to the existence of factual ingredients constituting the offence alleged and it is not expected to go deep into the probative value of the material on record and to check whether the material on record would certainly lead to conviction at the conclusion of trial.” 10. Therefore, it is not permissible for this Court to look into the material filed by the petitioner along with the petition. The Court can only look into the documents placed on record by the prosecution to determine whether the charge was framed rightly or not. Therefore, it is impermissible to look into the 10 2025:HHC:16787 order passed by the SDO (C) cum-Authorised Officer, Theog, H.P. 11. It was mentioned in the charge-sheet that the amount disbursed to the petitioner under the Balika Samridhi Yojna was not given to the beneficiary. Section 405 of the IPC defines criminal breach of trust and includes not only the conversion of the property but disposal of that property in violation of the legal contract, express or implied, regarding the discharge of trust. When the money was given to the petitioner under the Balika Samridhi Yojna, there was an implied contract that it would be used under that Yojna and not for any other purpose. Therefore, the utilisation of money for a different scheme amounted to the disposal of the property in violation of the implied contract, and a prima facie case punishable under Section 409 of the IPC is made out. 12. The amount of ₹22,500/- was given as an advance to the petitioner. He only returned ₹ 10,000/-. The amount was to be utilised for the purpose for which it was advanced, or it was to be returned in case of non-utilisation. As per allegations, the petitioner had not utilised the amount, nor had he returned the 11 2025:HHC:16787 amount. Therefore, a prima facie case punishable under Section 409 of the IPC is also made out against the accused. 13. It was submitted that the amount was deposited as per the entry in the cash book. A reference was made to the entry dated 18.06.2000, however, there is clear overwriting in the amount of ₹15,000/-. Therefore, the charges framed by the learned Trial Court cannot be quashed because an entry of return has been made. It is a matter of trial whether the amount was returned or not. 14. Therefore, the learned Trial Court had rightly framed the charges against the accused-petitioner, and no interference is required with the order passed by the learned Trial Court. 15. Consequently, the present petition fails, and the same is dismissed. 16. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case (Rakesh Kainthla) 30th May 2025 Judge (ravinder)