Mahesh Chandra Sharma, J.
1. The petitioners Sayed Ahmad Ali Razvi and Sayed Irfan Ali Razvi filed this revision petition against the order dated April 20, 2000 of Additional Chief Judicial Magistrate No. 1 Ajmer in Case No. 262 of 1992 framing charge against them for the offence under Sections 419, 420, 468 and 120 B IPC. As the revision petition was not traceable, the record of S.B. Cr. Revision Petition No. 286 of 2000 was reconstituted vide order of this Court dated September 9, 2009. The learned Counsel for the petitioner No. 1 informed that Sayed Ahmad Ali Razvi, petitioner No. 1 died.
2. Brief facts of the case are that complainant non-petitioner Sayed Raze Ali Razvi on January 13, 1980 lodged FIR at Police Station Kotwali Ajmer, which was registered at No. 5 of 1980 under Section 420 IPC against the accused petitioners. As per this report the complainant submitted that his father Alhaz Sayed Hussain Ali Razvi Vakil Zavra died on November 25, 1967 at Ajmer. He was Kalid Bardar and Khidmad Gujar of Mazar Dargah Khawaza Saheb, Ajmer, hence he was known to various persons of India and also of foreign countries and they used to send him gifts by post. After the death of his father, he told his brother Molvi Sayed Ahmed Ali Razvi Vakil Zavra to send the information regarding the death of their father to all persons knowing to their father. His brother told him that the he had sent information to all the persons regarding the death of their father. It was mentioned that till today the persons are sending Nazrana through post and bank drafts. The complainant mentioned that he did not approve this method of extorting money from the persons and taking the same in the name of a dead person cheating the employees of the postal department and this was an illegal act. He came to know that this work was being done after the death of his father. When he talked to his brother Ahmed Ali then he refused and told that he never took such amount. In such a situation with intention to judge his truth-ness he sent some money orders from post office Bokaro Steel City, District Dhanbad and from its branch post offices in the name of his late father and from the above city also sent a demand draft of Rs. 500/- bearing number A 22094 dated 3.4.79 through registered post No. 192 of 4th of July, 1979. After that he made inquiries from the Bank of Baroda Ajmer Branch then he came to know that the above said draft was encashed on May 2, 1979 by the account holder No. 13948. This account holder was Shri Ahmed Ali. It was mentioned that the registered letter No. 333 dated 21.5.79 and Insured registered letter dated May 23, 1979 bearing No. 055 was got released from GPO Ajmer. The accused persons got released so many amounts. It was mentioned that he also went to the General Post Office, Ajmer and Manager Bank of Baroda, Station Road, Ajmer and Dhanbad Branch for taking action. It was also mentioned that Shri P.N. Bhargava, Asstt. Senior Superintendent and the Town Inspector, Post office has taken all the photostat copies from him of the documents on September 14, 1979 and September 6, 1979 and he get them noted all the things. It was then mentioned that during the inquiry by the persons of the post office, Ahmed Ali informed them the name of his son Mohamad Irfan Ali is also known by the name of Sayed Hussain Ali, which is totally wrong. The complainant has further mentioned that neither he or his sons and Ahmed Ali and his sons have right to have the same name like their father. Sayed Mohammed Irfan Ali was never known as Sayed Hussain Ali, which is clear from the documents, which the complainant attached with the report. It was mentioned that he had the receipts of money orders and other documents which he may produce at the appropriate time. It was mentioned that accused persons are using the name of his father in various departments and taking the money in the name of his late father Alhaz Sayed Hussain Ali Razvi Vakil Zavra. The police on the basis of above mentioned complaint registered a case against the accused petitioners for the offence under Section 420 IPC. After thorough investigation, the police came to the conclusion that it is purely a civil dispute and no offence has been committed by the accused persons and hence submitted final report in the matter on March 17, 1980. Both the parties compromised the matter and submitted compromise deed before the police and also before the Court. After a period of 12 years, suddenly the trial Court took cognizance against the accused petitioners for the offence under Sections 419, 420, 468 and 120B IPC vide order dated November 19, 1992. The accused petitioners aggrieved against the order dated November 19, 1992 preferred a revision petition before the Sessions Judge Ajmer. The revision petition was heard by Special Judge SC/ST Prevention of Atrocities Cases, Ajmer. The revisional Court vide order dated Feb. 23, 1996 while dismissing the revision petition directed the trial Court to hear the matter on the basis of the material available on record at the time of framing of charge. The trial Court after hearing arguments of both the sides framed charges against the accused petitioners for the offence under Sections 419, 420, 468 and 120-B IPC vide order dated April 28, 2000. Against this order the present revision petition has been preferred.
3. I have heard learned Counsel for the parties and gone through the material available on record.
4. Mr. A.K. Gupta learned Counsel for the petitioner submitted following submissions:
The trial Court has not properly considered this aspect of the case that the police after investigation submitted a final report in the case, and the reasons given by the police while submitting the final report are clear on this point. There is evidence of Mohammad Ali S/o Nizamuddin available on record and from the evidence it is clear that it is purely a civil dispute between the parties and no offence has been committed by the petitioner.
From the impugned order framing charge, it seems that the trial Court was impressed by this fact that the revisional court while dismissing the revision petition of the petitioners filed against the order of taking cognizance directed the trial Court to frame charge. The trial court has failed to consider this aspect of the case that taking cognizance and framing of charge are two different stages. While taking cognizance, the accused is not before the Court and thus the Court has to believe the facts and circumstances brought on record by the investigating agency or by the complainant but at the time of framing of charge the person accused is before the court and he tries to convince the court and tries to bring those facts which were not brought by the investigating agency or the complainant before the court at the time of taking cognizance. It is the duty of the trial court to look into the material and evidence of both the sides and after scrutinizing the same properly and appreciating the same, has to pass appropriate order. From the impugned order it is clear that the trial Court has not considered this aspect of the matter.
There is no legal bar on having so many names by a person. In the facts and circumstances of the case, it seems that the trial Court was impressed by this fact that in the school certificate the name of the accused petitioner No. 2 is Sayed Irfan Ali Razvi and his name is also Habibi Hussain Ali Irfani. The trial Court did not consider this fact that this fact is not at all so important. In the school register he mentioned only one name and there is no necessity of showing all the names in that certificate or to mention alias also in the application submitted for admission or at any point of time thereafter.
The case of the complainant is that his father was very well known and his name was Alhad Sayed Hussain Ali Razvi and he was known to many persons of India and also to the residents of the foreign countries. After the death of his father the Murids of his father used to send gifts and cash in his name and the petitioner No. 2 added the name with his original name and accepted all these money orders and bank drafts etc. There is no evidence available on record of any Indian or foreigner to this effect that he sent the amount to the father of the complainant at any point of time and he was given an impression that the amount has been received by the father of the complainant. Thus in absence of this evidence, no charge can be framed against the accused petitioner.
It is the case of the complainant that he asked the petitioners to inform all the related persons about the death of their father. This fact clearly goes to show that there was no bad intention the part of the petitioners and it was the duty of the complainant himself to inform the concerned persons about the death of their father. If the complainant has failed to inform the concerned persons then he is responsible for the same and it cannot be said that the accused petitioner has committed any offence.
The complainant has mentioned that he sent money orders from Bokaro City and the same was taken by the accused petitioners disclosing that their father was alive. If this fact be taken into consideration on its face value even then no offence under Section 419 or 420 IPC is made out.
From a bare perusal of the material and evidence available on record, it is clear that there is no evidence that the accused petitioners have cheated ) any person by pretending to be some other person or by knowingly substituted one person for another. Thus, when there is no such evidence attracting the ingredients of Section 416 IPC, no charge can be framed for offence under Section 419 IPC.
As per the provisions of Section 420 IPC, the offence under Section 420 IPC is made out if a person cheats by dishonestly inducing the persons deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, on hand, this evidence is lacking. The accused petitioners have not induced dishonestly to any person and due to this reason no person has delivered any property to them.
While framing charge under Section 468 IPC against the accused petitioners, the trial Court has failed to consider this aspect of the case that no document has been forged and used.
After 12 years of lodging of the FIR, cognizance was taken against the accused petitioners and for this delay, the accused petitioners cannot be faulted. Inspite of this fact that various judgments of the Apex Court, specially common causes and Rajdev Sharma were cited before the trial Court to show that speedy trial is a fundamental right guaranteed under Article 21 of the Constitution. From a bare perusal of the impugned order it is clear that the trial Court did not consider this aspect of the case.
5. Mr. A.K. Gupta, learned Counsel for the petitioner placed reliance on R. Kalyani v. Janak C. Mehta and Ors. : JT 2008 (12) 279, Zandu Pharmaceutical Works Ltd. and Ors. v. Md. Sharaful Haque and Ors. : AIR 2005 SC 9 : RLW 2005(1) SC 135, Century Spinning and . and Ors. v. State of Maharashtra : 1972 SC 545, State of Karnataka v. Muniswamy and Ors. : AIR 1977 SC 1489, Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra : JT 2008 (6) SC 299, Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors. : AIR 2008 SC 251 State of Kerala v. Pareed Pillai and Anr. : AIR 1973 SC 326, Mahadeo Prasad v. State of W.B. : AIR 1954 SC 724, State of Bihar v. Umashankar Kotriwal and Ors. : AIR 1981 SC 641, Badan Singh v. State RCC 1990 83 : RLW 1989(2) RAJ 468, and K.K. Tiwari v. Superintendent of Police RLR 1989 (1) 80.
6. Mr. Pradeep Srimal, Public Prosecutor and Mr. Ashwin Garg, learned Counsel for the complainant opposed the arguments of the learned Counsel for the petitioners and argued that the trial Court rightly framed charge against the accused petitioners as per the material available on record. There is no illegality or irregularity in framing the charge against the petitioners by the trial Court by the impugned order. Mr. Ashwin Garg, placed reliance on Natwar Lal and 67 Ors. v. State and Ors. Western Law Cases : 2008 (3) 497 : 2008(3) RLW 2522 (Raj.), copy of the order dated Feb. 23, 1996 passed on Revision Petition No. 12 of 1993 and 15 of 1993 by special Judge SC/ST Atrocities Case, Ajmer filed by Irfan Ali and Molvi Sayyed Ali Razvi and further order dated November 19, 1992 passed by Additional Chief Judicial Magistrate No. 1 Ajmer in the Final Report No. 7 of 1980 and FIR No. 6 of 1980 taking cognizance against the accused petitioners. Mr. Garg, placed reliance on the decision of this Court in Om Prakash and Anr. v. State of Rajasthan, S.B.Cr. Revision Petition No. 1282 of 2003, decided on January 22, 2009, wherein this Court laid down following principles in regard to framing of charge by the courts below:
(i) No reasons are required to be recorded when the charges are framed against the accused persons.
(ii) In cases instituted otherwise than on a police report the Magistrate is required to write an order, showing the reasons only if he is to discharge the accused.
(iii) Only in a case where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the court can discharge the accused.
(iv) the High Courts to be loathe in interfering at the stage of framing the charges against the accused.
(v) At the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged.
(vi) It is not obligatory for the Judge at that stage of the trial 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.
(vii) At the initial stage if there is a 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 ground for proceeding against the accused. (viii) 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, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial.
(ix) The Supreme Court reminded the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far fetched reasons which in law amount to interdicting the trial against the accused persons.
(x) Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for an unjustified litigation under the cloak of technicalities of law.
7. The Apex Court in Om Wati v. State : AIR 2001 SC 1507 held as under:.it would not be safe at this stage to deprive the prosecution in proving its case on the basis of direct evidence, the statement of the deceased claimed to be admissible under Section 32 of the Evidence Act and the other documents including the inquest report allegedly disclosing the infliction of injuries on the person of the deceased which resulted in his death. The acceptance of the opinion of the doctors, as incorporated in the post mortem report for the cause of death of deceased being hepatic failure following viral hapatites cannot be accepted on its face value at this stage. Therefore, the order of the High Court would be illegal and liable to be set aside.
The Supreme Court reminded the High Courts of their statutory obligation to not to interfere at the initial stage of framing the charges merely on hypothesis, imagination and far fetched reasons which in law amount to interdicting the trial against the accused persons. Unscrupulous litigants should be discouraged from protecting the trial and preventing culmination of the criminal cases by having resort to uncalled for an unjustified litigation under the cloak of technicalities of law.
8. I have gone through the entire material available on record and the order passed by the trial Court. In my opinion the order passed by trial Court deserves to be set aside in the facts and circumstances of the case and the matter should be remanded back to him to again hear both the parties and pass fresh order, Any comments at this stage in the matter will prejudice either case of the parties.
9. For these reasons, the revision petition is allowed and the order of the trial Court dated April 20, 2000 is set aside and the matter is remanded back to the trial Court (Additional Chief Judicial Magistrate No. 1 Ajmer) for rehearing the parties and pass a fresh order within fifteen days after receipt of certified copy of the order of this Court. If the court reaches to the conclusion that the charges are to be framed, in such circumstances the Court will frame charge and proceed for trial expeditiously.