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IN THE HIGH COURT OF JHARKHAND AT RANCHI
RAJESH SHANKAR, J.
Uma Shankar Malviya. - Appellant
Versus
The State of Jharkhand through C.B.I. - Respondents
Cr. Appeal (SJ) No.423 of 2016
Decided On : 07-05-2019
Prevention of Corruption Act, 1988 - Section 13 - Code of Criminal Procedure - Section 340 - Indian Penal Code - Sections 409, 420, 423, 424, 465 and 120B – First Information Report – Appeal against conviction - Health and Family Welfare Department, Government of Jharkhand and has been made accused only on basis of statement of respondent and consequently charge-sheet has been submitted against him - It is also submitted that respondent had informed appellant that said statement was made by him due to torture of investigating officer - Respondent was knowing fully well that all 32 PAN Cards were his creation out of which most were delivered to his own address and returns were filed either by him or by his office – However made false statement under Section 164 Cr.P.C. on basis of which appellant has been implicated in present case. As such ingredients prescribed under Section 340 of Cr.P.C. are present in case particularly in view of fact that respondent no.2 has given false statement under Section 164 Cr.P.C. to implicate appellant in present case – Held, This shows that such a course will be adopted only if interest of justice requires and not in every case - Before filing of the complaint court may hold a preliminary enquiry and record a finding to the effect that it is expedient in interests of justice that enquiry should be made into any of offences referred to in Section 195 - This expediency will normally be judged by the court by weighing not magnitude of injury suffered by the person affected by such forgery or forged document but having regard to the effect or impact such commission of offence has upon administration of justice - It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or like, but such document may be just a piece of evidence produced or given in evidence in court where voluminous evidence may have been adduced and the effect of such piece of evidence on broad concept of administration of justice may be minimal - In such circumstances court may not consider it expedient in interest of justice to make a complaint - It would, thus emerge that two conditions must be fulfilled for entertaining a complaint filed under Section 340 of Cr.P.C.; first is that a person has given false evidence in a proceeding before court and second is that in the opinion of the court it is expedient in interest of justice to make an inquiry of offence committed by concerned person - appellant has suffered grave injury and mental agony - However since statement given under section 164 Cr.P.C. by the respondent is a corroborative piece of evidence and in absence of any substantive evidence no judgment of conviction can be passed against an accused court of view that no such grave injury would be caused in administration of justice in not initiating a proceeding against respondent under Section 340 Cr.P.C. at this stage. Nevertheless, the learned court below has given a finding of fact that there is no nexus between deposition and statement made by him under Section 164 Cr.P.C. in connection with present case - Appellant has also failed to show any material before this Court to establish that statement made by respondent has any connection with statement made by him under Section 164 Cr.P.C. in present case so as to conclusively construe that he has made a false statement against appellant so as to attract provisions of Section 340 of Cr.P.C – Appeal dismissed
1. The present appeal is directed against the order dated 30.01.2016 passed by the Special Judge, CBI Ranchi in connection with Cr. Misc. No.1/2013 along with Cr. Misc. No.03/2015 whereby and whereunder the petition filed by the petitioner under Section 340 of the Code of Criminal Procedure has been dismissed.
2. The factual background of the case is that pursuant to the order dated 4.8.2010 passed in W.P. (PIL) Nos.4770 of 2008 and 2255 of 2009, the CBI took up the investigation of Vigilance Case No.9 of 2009 dated 02.07.2009, which relates to commission of various offences punishable under the Indian Penal Code and the Prevention of Corruption Act, 1988. Accordingly, an FIR was instituted against Madhu Koda, the then Chief Minister of Jharkhand, Kamlesh Singh, Bhanu Pratap Shahi and Bandhu Tirkey (the Ex. Ministers of Government of Jharkhand) and on that basis R.C Case No. 05(A)/2010-AHD-R dated 11.08.2010 was registered under Sections 409, 420, 423, 424, 465 and 120B of the Indian Penal Code and Sections 7, 10, 11 and 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. During the course of investigation, the Central Bureau of Investigation conducted a raid at the official premises of a Chartered Accountant, namely, Vinay Kumar Jalan (respondent no.2 herein) on 25.05.2011 and seized return papers of some persons, including the appellant, his wife and other family members. On 26.05.2011 the respondent no.2 made statement under Section 164 Cr.P.C. disclosing that a trust was formed by Bhanu Pratap Shahi, the then Minister, in the name of “Dehati Asthapana Nyas”. He further stated that he had been knowing the appellant since 2007 and on his instruction to furnish the list of donors of the above said trust, the appellant furnished the said list and on that basis a return was prepared and handed over with power of attorney to the appellant, who brought back the same after obtaining the signatures of those persons and thus the same was submitted in the Income Tax Department by the law firm owned by the respondent no.2. The appellant filed a petition for initiating an enquiry under Section 340 Cr.P.C. for taking action against the respondent no.2 before the Special Judge, CBI, Ranchi, which was registered as Cr. Misc. No.01/2013. However, the said petition was rejected vide order dated 30.09.2013. Thereafter, the appellant preferred an appeal before this Court, being Cr. Appeal (SJ) No.960 of 2013. The said appeal was disposed of vide order dated 24.04.2015 by remanding the matter to the concerned court below. The appellant again filed Cr. Misc. No.3 of 2015 before the Special Judge, CBI, Ranchi which was clubbed with Cr. Misc. No.01/2013 and both were rejected vide order dated 30.01.2016.
3. The learned counsel for the appellant submits that the donors, namely, Jitendra Sharma, Amar Singh, Ramesh Agrawal, Narayan Choudhary and Niketa Roy whose PAN cards are of 08.12.2000, 20.06.2003, 20.05.2003 and of the year 2003, respectively, have been furnished much prior to 2009 and as such the statement made by Vinay Kumar Jalan (respondent no.2) under section 164 Cr.P.C on 26.05.2011 is completely false and concocted. It is further submitted that the respondent no.2 has falsely dragged the appellant in the present case, as would be apparent from his deposition made in another case i.e. R.C Case No.52(A) of 1996 as P.W.60 who during his cross-examination made on 01.03.2007 disclosed that he created 800 PAN in the names of 800 bogus persons. As per his deposition, he purchased 500 photographs from different studios for obtaining PAN Cards. He also deposed that he got the signatures of his three juniors, namely, Jiwant Kumar Das, Binod Kumar Choudhary and Shri Manoranjan on the bogus files and a draft was prepared in respect of 500 bogus files. Curiously enough, the respondent no.2, while defending the case of “Dehati Ashtahpana Nyas” in I.T.A No.127/Ran/2010 before the Income Tax Commissioner has himself suppo
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