Madhya Pradesh High Court
Takhat Singh vs The State Of Madhya Pradesh on 22 December, 2021
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
THE HIGH COURT OF MADHYA PRADESH
MCRC No.62402/2021
Takhat Singh vs. State of M.P.
Gwalior, Dated : 22/12/2021
Shri K.K. Sharma, Counsel for the applicant.
Shri C.P. Singh, Panel Lawyer for the respondent/State.
Case diary is available.
2. This third application under Section 438 of Cr.P.C. has been filed for grant of anticipatory bail. The second application was dismissed as withdrawn by order dated 21.10.2021 passed in M.Cr.C.No.50581/2021.
3. The applicant apprehends his arrest in connection with Crime No.349/2021 registered at Police Station Chachoda, District Guna for offence under Sections 409, 420, 467, 468, 34 of IPC.
4. This third application under Section 438 of Cr.P.C. has been filed on the ground that in a departmental enquiry instituted against the applicant and other co-accused persons, some of the charges have been found partially proved and although a punishment of stoppage of two increments with cumulative effect has been imposed, but still the suspension of the applicant has been revoked and, therefore, the applicant may be granted anticipatory bail. It is further submitted that it is well established principle of law that repeat application under Section 438 of Cr.P.C. is maintainable on the basis of change in circumstance. By referring to the enquiry report it is submitted that the charge No.1 was misappropriation of Rs. 14.94 Lac without constructing four ponds. It is submitted that although charge No.1 has 2 THE HIGH COURT OF MADHYA PRADESH MCRC No.62402/2021 Takhat Singh vs. State of M.P. been found to be partially proved but the findings recorded by the Enquiry Officer clearly indicates that the applicant was in fact exonerated. It is submitted that although the Enquiry Officer has found that an amount of Rs. 14.94 Lacs was withdrawn without there being any construction work of four ponds, but since the said embezzled amount was redeposited by the Sarpanch and Gram Rojgar Sahayak, therefore, it is clear that the applicant had no share in the embezzled amount. It is further submitted that the applicant does not know as to whether the amount of Rs. 14.94 Lacs was withdrawn after obtaining his signature on the relevant documents or not and only if the record is made available to the applicant, only then he would be able to take a specific stand as to whether amount of Rs. 14.94 Lacs was withdrawn after his approval or not.
5. Per contra, the application is vehemently opposed by the counsel for the respondent/State. It is submitted by the counsel for the State that during the course of investigation it has been found that the relevant record is missing and it has not been made available by the Gram Rojgar Sahayak on the ground that they have been misplaced. Thus it is clear that not only the amount of Rs. 14.94 Lacs was fraudulently withdrawn without there being any construction of four ponds but thereafter even the entire record has been either destroyed or has been taken away by the guilty persons, so that the prosecution may not lay their hands on the actual act done by the accused persons. 3
THE HIGH COURT OF MADHYA PRADESH MCRC No.62402/2021 Takhat Singh vs. State of M.P. However, it is submitted that the applicant is the Secretary of the Gram Panchayat and as per law no money can be withdrawn without there being any concurrence by the applicant.
6. In reply, it is submitted by the counsel for the applicant that muster roll is to be prepared by the Gram Rojgar Sahayak. However, fairly conceded that only after the muster roll is countersigned by the applicant in the capacity of Secretary Gram Panchayat and only after it is ultimately uploaded on the website, the amount cant be withdrawn. It is further submitted that as per the procedure the joint signatures of the various authorities including the Panchayat Secretary is essential.
7. Heard the learned counsel for the parties.
8. At the beginning of the arguments, when this Court realized that the counsel for the applicant is trying to rely on the outcome of the departmental enquiry, then a specific question was put to Shri Sharma as to whether any finding recorded in a departmental enquiry has any bearing on criminal case or not. It was rightly replied by Shri Sharma that the outcome of departmental enquiry has no relevance.
9. Since during the course of arguments, Shri Sharma was trying to rely on the evidence recorded in a departmental proceedings, therefore, again a question was put to Shri Sharma as to whether any evidence recorded in a departmental enquiry can be read or not and again it was fairly conceded that it cannot be read. However, Shri Sharma argued the matter at length on merits leaving this Court no 4 THE HIGH COURT OF MADHYA PRADESH MCRC No.62402/2021 Takhat Singh vs. State of M.P. option but to decide each and every arguments of Shri Sharma. Although this Court is well aware of the fact that any finding or detailed observation at the stage of bail is not warranted.
10. Be that whatever it may.
11. The applicant is working on the post of Panchayat Secretary. The allegations are that an amount Rs. 14.94 Lac was withdrawn on the pretext that four ponds have been constructed in the village. Later on it was found that none of the pond was ever constructed and without constructing any pond an amount of Rs. 14.94 Lacs was withdrawn. It also appears that some of the authorities had subsequently redeposited the amount. Whether the redeposit of amount at a later stage would absolve the applicant from a criminal act or not?
12. It is well established principle of law that even a temporary embezzlement amounts to an offence therefore, if the embezzled amount, either in part or whole, has been deposited by the co-accused persons, still it would not absolve the applicant from his criminal liability. According to Shri Sharma himself the amount cannot be withdrawn without the joint signatures of the applicant. However, he constantly insisted that at present he is not aware as to whether the amount was withdrawn after obtaining his signatures or not and, therefore unless and until the record pertaining to construction of four ponds is provided to him, he will not be able to take a specific stand in 5 THE HIGH COURT OF MADHYA PRADESH MCRC No.62402/2021 Takhat Singh vs. State of M.P. this regard.
13. Although on the face of arguments, the submission made by Shri Sharma appears to be very impressive but in view of the fact that the entire record is missing from the office on the pretext that it has been misplaced and it has not been provided to the investigating agency, therefore, Shri Sharma has taken a stand that he is not aware as to whether he has signed the document or not and thus unless and until the documents are shown to him, he will not be in a position to take a specific stand.
14. Thus it is clear that the applicant wants to take advantage of his own wrong. On one hand, the record has been removed from the office and on the other hand now the accused persons are claiming that until and unless the record is provided to them, they will not be able to take a specific defence. However, it is not the case of the applicant that the amount was permitted to be withdrawn by the Bank without there being any joint signatures of the applicant.
15. Be that whatever it may.
16. Even in the departmental enquiry the applicant has not been exonerated in toto. The Enquiry Officer as well as the Disciplinary Authority have come to a conclusion that in fact an amount of Rs. 14.94 Lacs was withdrawn without constructing four ponds in the village. Therefore, the basic allegations regarding dishonest withdrawal of amount by showing that four ponds have been 6 THE HIGH COURT OF MADHYA PRADESH MCRC No.62402/2021 Takhat Singh vs. State of M.P. constructed was found proved. Under no circumstance it can be said that the basic allegations leveled against the applicant were not found proved. Furthermore, any evidence recorded in the departmental proceedings or any findings recorded by the Enquiry Officer/Disciplinary Authority has no bearing on the criminal case and both the cases are to be decided on their own merits as the degree of proof in both the cases is different.
17. The facts of the case are that the applicant was working as a Secretary, Gram Panchayat Narayanpura and by fraudulently showing that four ponds have been constructed, an amount of Rs. 14.94 Lacs was withdrawn and only after the scam came to light, some of the accused persons re-deposited the whole/partial amount. Under these circumstances, this Court is of the considered opinion that the applicant has no case for grant of anticipatory bail.
18. At this stage, it is submitted by Shri Sharma that earlier the applicant was placed under suspension and after the conclusion of departmental enquiry, his suspension order has been revoked and in case if he is re-arrested, then again he would be liable to be placed under suspension on the ground that he has remained in judicial custody for a period of 48 hours.
19. Considered the submissions made by the counsel for the applicant.
20. In view of the allegations that a huge amount of Rs. 14.94 Lac 7 THE HIGH COURT OF MADHYA PRADESH MCRC No.62402/2021 Takhat Singh vs. State of M.P. was withdrawn fraudulently by showing that four ponds have been constructed in a village which were to be used for the benefit of the villagers, this Court is of the considered opinion that as per provisions of Madhya Pradesh Civil Services (Classification, Control and Appeal) Rules, 1966, a person has to face the consequence if he remains in custody. Merely because some consequences are provided under the rule cannot be said to be a good ground for grant of anticipatory bail specifically when even in the departmental enquiry the applicant has been found to be guilty of withdrawal of Rs.14.94 Lacs without there being any construction of four ponds.
21. Under these circumstances, no case is made out for grant of anticipatory bail.
22. The application fails and is hereby dismissed.
(G.S. Ahluwalia) Judge (alok) ALOK KUMAR 2021.12.22 17:36:40 +05'30'