On 29.09.2020 Hon’ble Justice Ravindra Maithani of the Uttrakhand High Court passed his judgement in a case dealing with embezzlement of funds.
Uttarakhand High Court has ruled that a prima facie case has to be made out to take action under Section 319 Cr.P.C.
Brief Facts of the Case:-
An FIR was filed against the petitioner and other accused under sections 409, 420, 467, 468, 471 and 120-B IPC at the Police Station in New Tehri. As per the FIR, the petitioner in the present case is the chairperson of Prathmik Shikshak Vetanbhogi Sahkari Samiti Ltd.
The allegation against them is that they embezzled a sum of Rs 61 lakhs. A case was filed against the accused, and during the final hearing, the prosecution moved an application under section 319 of Cr.P.C and submitted that based on the statements of witnesses a prima facie case has been made out against the petitioner.
The Court allowed the application and accordingly, the petitioner was summoned. The petitioner applied to quash of the order but it was dismissed on 12.06.2014.
Aggrieved by order of the trial judge, the petitioner moved the High Court of Uttarakhand.
Proceeding before the Court
The counsel for the petitioner made the following statements:-
It was submitted that the Samiti issued 41 cheques out of which the petitioner signed only two cheques. It was also stated that the cheques were a loan and that loan has also been repaid.
The counsel further submitted that the cheques were issued in the name of Sushila Mewar and Balendra and were encashed by Suri Bharti and Balak Ram. as both Suri Bharti and Balak Ram have been acquitted in the appeal, no case can be made out against the petitioner.
It was also stated that in the order dated 19.12.2013. No cognizance was taken against the petitioner, and his file was separated from the present case.
The counsel further submitted that as no charge sheet has been filed against Suri Bharti and Balak Ram under Section 409 IPC, therefore, there is no question of summoning the petitioner under Section 409 IPC.
Contentions of the Respondents:-
The counsel for the respondents stated that because a prima facie case has been made out against the petitioner, the orders under challenge do not require any interference.
Analysis of the Court
The Hon’ble Judge considered the provisions of section 319 Cr.P.C and opined that even though it states that a person can be summoned if there was a prima facie case but what should be the level of satisfaction that the Court required has not been clearly stated.
Further, the Court relied on Hardeep Singh vs the State of Punjab and others 2014 (3) SCC 92 where the Supreme Court held that the evidence should be able to make a case more than what can be proved prima facie to the extent that if the evidence goes unrebutted, would lead to a conviction”.
The Judge opined that the petitioner was summoned at the fag end of the trial in the case.
The Court observed that the case against the petitioner was based solely on the statements of two witnesses.
On the issue of signing the cheques, it was stated that out of 41 cheques in 39 had forged signatures. The cheques that the petitioner made were made out to existing persons, and one of them was a member of the Samiti. It was also stated that the amount disbursed was paid back in full.
On the statement of the prosecution that cheques were delivered to other people with the help of bank employees, the Court opined that even if such a took place, it does not make out a prima facie case against the petitioner.
The decision of the Court
The Court held that no prima facie case had been made out against the accused, and therefore, he cannot be summoned under section 319 Cr.P.C and accordingly, the Court allowed the petition.
Title: Vinod Uniyal vs State of Uttrakhand and Another
Case No.: Criminal Misc. Application No. 638 of 2014
Date of Order: 29.09.2020
Quorum: Hon’ble Justice Ravindra MaithaniAdvocates: Mr. R. P. Nautiyal, Senior Advocate for the petitioner and Mr. P. C. Bisht, Brief Holder for the State of Uttarakhand.
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