D.R. Khanna, J.
(1) These two revisions have been moved by Harbhajan Singh and Sita Ram Kapur against an order dated 26.10.1981 of Shri O.P. Gogne, M.M., New Delhi, whereby charge u/s 120-B read with sections 420 and 477-A Indian Penal Code . was directed to be framed against each of them. There are two other accused, namely, Jagdish Lal Chanana and Harish Chander Kapur. They have, however, not chosen to assail the said order under which the former has also been directed to be charge under those provisions of law and the latter u/s 420 Indian Penal Code .
(2) Briefly stated the prosecution case is that on 9.7.1979 Tasawar Hussain, a clerk of the Stores (Accounts) Department, Central Cottage Industries Emporium sent his helper Ganga Ram to bring the sale statement book from Jagdish Lal Chanana. The latter, however, happened to be on leave, and as such Ganga Ram searched his cabin and found the sale statement book which he took to Mr. Hussain. It was then noticed that the book had all the 3 copies of a sale statement lying in the same in the name of M/s. Bliss & Bloom for the month of July, 1978 showing two carpets worth Rs. 4,280/having been sold in their name. This was unusual inasmuch as one copy thereof should have been sent to the General Administration Branch, another would remain with Jagdish Lal Chanana who was the Senior Accounts Asstt. and the third kept in the sale statement book itself. That sale statements purported to bear the signatures of V.D. Gulati, Asstt. Manager Stores (Accounts) and M.S. Dewan, another official of the Emporium. Both when confronted with those statements, denied that they had signed them and added that they were forged. It was then noticed that a cheque for Rs. 4,280.00 had already been issued in the name of M/s. Bliss & Bloom and encased through its account in the Hindustan Commercial Bank, Connaught Place.
(3) Further investigation then brought out startling state of affairs, and it was found that amounts totalling over rupees 11 lacs had been fraudulently paid in the name of that party and the person who was operating the bank account in its name in the Hindustan Commercial Bank was none else than Jadish Lal Chanana. All this was done during the period from 1973 to 1979. That concern M/s. Bliss & Bloom had earlier an account with the Cci Emporium when it used to supply goods on consignment basis but the same was discontinued in 1969. No supplies were effected thereafter.
(4) According to prosecution, the Cci Emporium which is a public undertaking has three departments. One is called the General Administration Deptt. second Stores Deptt. and third Finance (Accounts) Deptt. Each of them has a Manager and above them is General Manager. The Stores Deptt. itself has three branches. One is called the Stores, second stores account and the third concerns Export, packing and shipping.
(5) Goods which are purchased by the Emporium are of two types. One class relates to those which are outright purchased and then marketed. The other class is of obtaining goods on consignment sale account basis. Under this class, suppliers place their goods at the disposal of the Emporium and they are paid price thereof subject to sales being effected. From the sale proceeds, the Emporium charges commission, and the balance sale price is given over to the suppliers. It is to this consignment sales account class that the present case relates.
(6) According to the procedure prevalent goods are first supplies to stores department along with invoices and or challans. They are entered in the stock register of the Stores Deptt. where an index register is maintained which gives code numbers of the suppliers. Copies of invoices and challans along with the code numbers are then sent to General Administration Branch for their record. Original invoices or challans are sent by the Stores Department to Stores A/c Deptt. where a register is maintained of different parties and goods supplied by each of them. The goods are then sent to Emporium for sale.
(7) After the sale of goods, copies of cash memos are sent to Stores (A/c) Deptt. along with sale analysis. From them, entries are made in the register maintained party-wise. After the close of the month, account of sale of each party is totalled and sale statements are then prepared by the Stores (Accounts) Deptt. They arc signed by Asstt. Manager Stores (A/c). There is a book of sales statements, and each statement is prepared in triplicate. That sale statement book is then sent to the Finance Department for purpose of payments to parties. It was at this stage that Jagdish Lal who was Senior Accounts Assistant in the Finance Deptt. came into the picture. The sale statements as such went to him. The other accused Harish Chander Kapur was Asstt. Sales Manager (Finance) from 1973 to 1978.
(8) Jagdish Lal used to then check those sale statements and make entries on their basis in the consignment sale register in which code number, name of the party as well as the amount of the commission deducted and balance sale proceeds payable were entered or monthly basis. Two vouchers were prepared by him, one would be payment voucher which was in the form of sale statement, and the second Journal Voucher.
(9) The consignment register, payment voucher, Journal Voucher were then put up before the Asstt. Manager (Finance), and after checking, he would sign the entires in the consignment register, payment voucher and journal voucher. Jagdish Lal then prepared cheques based on payment vouchers. Those cheques were signed by Manager and Asstt. Manager (Finance). They were all account payees'. Those cheques would then go to Jagdish Lal who would send them along with original copy of the sale statements to the parties concerned. If the parties would appear personally they were handed over to them, and in other case they were sent by post.
(10) The sale statement book would remain in the Stores Deptt, but its custody would pass on to Jagdish Lal Chanana after its completion.
(11) The prosecution case next is that Jagdish Lal would enter the name of M/s Bliss and bloom in consignment register although no supplies were made by this party after 1969. The mode adopted was said to be that he would forge sale statements by signing as V.D.Gulati, and then make entries in consignment sale register. On their basis he would prepare payment vouchers and then obtain cheques.
(12) Jagdish Lal had, it is next alleged, opened an account in the name of M/s. Bliss & Bloom in the Hindustan Commercial Bank on 26.2.1973, and showed himself as the Proprietor. All those cheques which were otherwise account payees were in this manner encased by him in this account. From there, he would transfer the amounts to five other accounts which he had opened in Syndicate Bank, Bank of India, Punjab National Bank Canara Bank and Punjab & Sind Bank. The accounts in these banks were in his individual name.
(13) The amounts so taken by him under the name M/s. Bliss & Bloom from the Emporium totalled Rs. 11,36,265.00 and covered a period from 1973 to 1979. With these large amounts he it is alleged, started living lavishly. A house was purchased by him in Anand Niketan which was luxuriously furnished with carpets, air-conditioners etc. Another property was constructed at Faridabad. He was also maintaining a car and had foreign trips. Rs. 2,27,950.00 were besides recovered from his house which included fixed deposit of Rs. 70,000.00. The children were found to be studding in the best of schools,,
(14) Jagdish Lal is as such made the main accused, and the charge against him is u/s 4201.P-C. Harish Chandar Kapur was the Asstt. Manager of Finance from 1973 to 1978, and he used to sign the consignment sales register on the basis of sale statements furnished by Jagdish Lal.
(15) Sita Ram has been imp leaded as he had signed 4 payment vouchers and three cheques in favor of M/s. Bliss & Bloom in 1974-75 of the total value of Rs. 41,563.00. This was when Asstt. Manager Finance happened to be on leave on certain dates, and he was required to act in his place.
(16) Harbhajan Singh had signed 9 entires in the consignment sales register and had also signed 6 payment vouchers totalling Rs. 1,63, 783/. He had taken over as Asstt Sales Manager (Finance) in Jan, 1979. Two of the sale statements with regard to disputed entires in consignment sales register were found blank and two other statements had been torn out of the register. Harbhajan Singh was suspended after the investigation of the case. He was later reinstated and has now retired with full retirement benefits.
(17) Sita Ram Kapur, however, continues to remain in service. He was not suspended nor any departmental action taken against him.
(18) Jagdish Lal Chanana was dismissed from service, and his writ against the dismissal was rejected by this Court.
(19) The case of the petitioners is that they were not in any manner involved in the conspiracy with Jagdish Lal Chanana, and that no part of the money was embezzled by them or given over to them. The entire course of events according to them, shows that it was Jagdish Lal Chanana who had been embezzling the money and is the real culprit. Sita Ram Kapur states that be was not on regular duty as Asstt Manager (Finance) and acted as stop-gap arrangements on certain dates only when Harish Chander Kapur, Asstt. Manager (Finance) happened to be on leave. Harbhajan Singh similarly contends that he took over in Jan, 1979, and was entirely misled by Jagdish Lal Chanana. No means read on their part is stated to be involved, and if at all, they can can be accused of negligence and dereliction of duty. It is next pointed out that the Emporium itself has not taken any action against them. They have pleaded that it was not part of their duties to compare the sale statements book with the consignment sales register. It has been now after the discovery of this large embezzlement that the Emporium has issued instructions in this regard and covered up the procedural lacuna that existed. In support reliance has been placed on a number of decisions in order to show that the element of means read must be shown to exist in case of criminal conspiracy and positive involvement in the overall perpetration of crime should be brought out. All that the prosecution in the present case has revealed from the investigation is that there at worst occurred lapse of vigilance in not detecting in time the forgery and cheating that Jagdish Lal was clandestinely committing without their notice. Thus in the case L. Dhanya Naik V. State. 1977 Crl.L.J.954, the Karnataka High Court declined to hold a B.D.O guilty of criminal breach of trust when it was found that he had signed payment orders without check up of the total in cash book as well as in the treasury schedule. This was considered to be negligence in performance of duties. Similarly the Supreme Court in Jethsur Surangbhai V. State. : 1984CriLJ162 , set aside the convictions of a Chairman of a cooperative society who used to sign papers and approve various tenders as a matter of routine, though it could be said that he should have acted with care and caution. It was observed that his negligence would not be a positive proof of his intention to commit the offence. Reference has also been made to Dr. Dattatraya v. State 1982 Crl L.J 1025, where it was observed that it is wrong to say that at the stage of framing the charges, the Court cannot apply its judicial mind to the consideration whether or not there is any ground for presuming commission of the offence. It affects person's liberty. The responsibility of framing of the charges is that of the Court and it has to judicially consider the question of doing so. Without fully adverting to the material on record, it must not blindly adopt the decision of the prosecution. Similarly in case State v. L. Muniswamy, : 1977CriLJ1125 , the Supreme Court declined to interfere in the discharge of an accused at the stage of framing of charge, when it was found that there was no material on record on the basis of which any Tribunal could reasonably come to the conclusion that the accused were, in any manner, connected with the incident leading to the prosecution. I.L.R. (Delhi) 619 State v. Sh. J, Manchanda) was also referred to.
(20) (A) From the side of the prosecution, however, it has been urged that it would be entirely premature at this stage to come to any definite view that the complicity of the petitioners was not involved in the crime, specially when they had sanctioned the payments of some of the disputed amounts to the fictitious concern, M/s. Bliss & Bloom. They were not mere stamping authorities to what Jagdish Lal.was putting up before them, and in fact were senior officers under whom Jagdish Lal was working. Substantial amounts have thus been illegally paid, and the recoveries effected so far from Jagdish Lal have been of limited amount only. Rather in this game of crime, his sharing of booty with his seniors, specially when they were dittoing whatever he was doing, could naturally be inferred. Moreover, it is claimed that Jagdish Lal has already purported to take the stand that he was a sort of tool in the hands of his seniors, and whatever he was doing, was at their bidding, and sharing the amounts with them. The other co-accused Harish Chander Kapoor who has not filed any revision, it is pointed out, has been charged u/s 120-B, 420 and 477-A Indian Penal Code ., and this was because he was the Asstt. Manager, authorising payments for most of the period during which the crime was committed. The position of the present petitioners is stated to be not much different.
(21) I have heard the parties, and given my due consideration to all the circumstances. At the stage of framing of charge the Court has not to minutely and meticulously go into the merits of the evidence collected by the prosecution and consider in details and weigh in a sensitive balance whether the facts if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter u/s 227 or 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or the trial is sure to end in his conviction.
(22) If there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there is no sufficient around for proceeding against the accused. The crucial consideration for purpose of determining whether there is sufficient ground for proceeding against an accused is whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. All this would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. (See in this regard State V. L. Muniswamy 1977 Crl. L.J. 1125 (SC), State v. Ramesh Singh 1977 Crl. L.J. 1606 (SC), Union of India v. Profulla Kumar 1979 Crl. L.J. 154 (SC) and Hari Shanker v. State (Delhi Adm. 1981 Crl. L.J. Noc 137.)
(23) Now in the present case as per prosecution case, as revealed by investigation it was Jagdish Lal who was the prime actor in the entire crime, and the money allegedly cheated also went to his account and later on was transferred by him to his other bank accounts. However,the sanction for the payment of amounts and the issue of cheques did not rest with him only. There were senior officers above him, and one of them was the Asstt. Manager (Finance). Till he had cleared the payments, they could not be made. For almost six years, Harish Chander Kapur was holding this post, and he has been made one of the accused. It has to be ascertained whether he had positive complicity in what was embarked upon by Jagdish Lal. The fact remains that it was during his period that it commenced, and continued for most of the time. Harbhajan Singh too took over in January, 1979, and held the post till July of that year when the crime was detected. Two of the sales statements of this period were said to be blank and in spite of that he appears to have sanctioned the payments and issue of cheques. Perhaps he was prevailed upon to do what was being done in the past. However, whether it was entire failure of vigilance and performance of duties by him, or that he had complicity in the crime, are questions to be answered after the evidence has been recorded. Unlike Sita Ram Kapur, his was not a stop gap posting when the regular incumbent had gone on leave. It is also not at this stage open to purview what possible defense the accused may set up later during trial. It is primarily the existence of prima facie evidence against Harbhajan Singh which has to be taken into account for framing charge. In my opinion, it is not possible to answer this entirely in the negative at this stage. I am, thereforee, unable to interfere in the framing of the charge against Harbhajan Singh. Of course, since his deptt. has allowed him retirement with full pensionary benefits, the trial court should liberally extend exemption from appearance during trial to this accused. However, as regards the other petitioner, namely, Sita Ram Kapur, he was not holding regular charge of the Asstt. Manager (Finance), and had acted on some occasions as leave vacancy arrangement. He could not, thereforee, be attributed the acquaintance of entire procedural regularities, and appears to have acted more in a manner as was being done by the regular incumbents. No means read is, thereforee, involved on his part. He is as such discharged.
(24) The result, thereforee, is that subject to the observations made above. Criminal Revision No. 15 of 1982 is dismissed, while Criminal Revision No. 23 of 1982 is allowed.