Gujarat High Court
Nathubhai Jivabahai Makwana vs State Of Gujarat & on 18 April, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/SCR.A/845/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 845 of 2015
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NATHUBHAI JIVABAHAI MAKWANA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR DJ BHATT, ADVOCATE for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MS NISHA THAKORE, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/04/2017
ORAL ORDER
1. Rule returnable forthwith. Ms. Nisha Thakore, the learned Additional Public Prosecutor, waives service of notice of rule for and on behalf of the respondent No.1State of Gujarat.
2. By this writapplication under Article 226 of the Constitution of India, the writ applicant original accused seeks to invoke the inherent powers of this Court praying for quashing of the proceedings of Criminal Case No.577 of 2014 pending in the Court of the learned JMFC, Talala arising from the First Information Report being C.R. No. I28 of 2013 registered before the Talala Police Station, DistrictJunagadh for the offence punishable Page 1 of 6 HC-NIC Page 1 of 6 Created On Wed Aug 16 01:35:21 IST 2017 R/SCR.A/845/2015 ORDER under Section 409 and 477 of Indian Penal Code.
3. It appears from the materials on record that at the relevant point of time i.e. when the First Information Report came to be registered, the accused herein was serving as a TalaticumMantri of the village: Chitravad, Taluka: TalalaGir, District: Junagadh. For the purpose of promulgation of the entries of 7/12 records the Mamlatdar Office of Talala Gir instructed the applicant herein to remain present with the books of records of right (Form No.6).
4. The applicant herein submitted the books before the Mamlatdar for the purpose of promulgation of entries for the period between 16.07.2007 & 31.08.2007. During that period two books of records i.e. part2 and part6 could not be produced by the applicant herein. This led to the filing of the F.I.R. for the offence of criminal misappropriation punishable under Section 409 of the IPC & also for the offence under Section 477 of the IPC.
5. Investigation was completed and the same resulted in filing of the chargesheet. The Page 2 of 6 HC-NIC Page 2 of 6 Created On Wed Aug 16 01:35:21 IST 2017 R/SCR.A/845/2015 ORDER filing of the chargesheet culminated in the criminal case referred to above.
6. The applicant was also proceeded departmentally. The departmental inquiry is pending as on day. It appears that he has attained superannuation in the meantime.
7. The moot point for consideration is whether the allegations levelled in the FIR as well as the materials in the chargesheet spell out the necessary ingredients to constitute an offence of criminal misappropriation punishable under Section 409 of IPC & Section 477 of the IPC.
8. There is one additional affidavit on record filed by the applicant herein. The same reads as under: "2. It is submitted that petitioner applied under right to information about the record of rights (hak patrak) part 2 and 4(it is 6) of village Chitravad, and has been informed that the same are found. A copy of the information received by the petitioner is annexed herewith and marked as AnnexureO to this petition.
3. It is submitted that under right to information petitioner has been given letter dated 12/1/2016 written by Mamlatdar, Talala to Police Sub Inspector, Talala police station with regard to production of missing patraks part no.2 and 4 (it is 6) of records of right. A copy of the said letter is annexed here with and marked as AnnexureP to this petition.
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4. It is submitted that under right to information petitioner has been given letter dated 16/09/2015 written by Sarpanch to Mamlatdar, Talala, with regard to production of missing patraks part no.2 and 4(it is 6) of records of right. A copy of the said letter is annexed here with and marked as Annexure Q to this petition.
5. Petitioner received copy of Panch Rojkam dated 16/09/2015 about patrak no.2 and 4 (it is 6) under right to information act. A copy of Panch Rojkam dated 16/09/2015 is annexed here with and marked as AnnexureR to this petition.
6. Mamlatdar Talala wrote letter to Collector, on 16/09/2015 for hak patrak found out and for inquiry against petitioner is annexed here with and marked as AnnexureS to this petition.
7. On 26/27/11/2015 collector, wrote a letter to DDO, which is annexed here with and marked as AnnexureT to this petition.
8. On 22/12/2015 Talati cum Mantri wrote a letter to Mamlatdar which is annexed here with and marked as AnnexureU to this petition.
9. Patrak no.2 and 4(it is 6) are reported to have been deposited in the court. A copy of the said submission made to the Hon'ble Court and there by produced documents, hak patrak no.2 and 4 (it is
6) is annexed herewith and marked as AnnexureV to this petition.
10. Documentshak patrak which are alleged to have been misplaced are found out and there by FIR and criminal case are required to be quashed and set aside in the interest of justice.
11. It is submitted that I had blotless career and during my service I was not given any memo or notice, with a view to tarnish my blotless career some miscreants have played mischief and misplaced the hak patrak no.2 and 4(it is 6), I say that immediately I made complaint to the concern authority but at that point of time no FIR lodge and after 5 years and 9 months of the incident FIR is filed which is belated and has been filed to create difficulty in getting my retirement dues.
12. Even during period for which the above hak patrak no.2 and 6 were missing and not available with panchayat according to FIR, then how entry Page 4 of 6 HC-NIC Page 4 of 6 Created On Wed Aug 16 01:35:21 IST 2017 R/SCR.A/845/2015 ORDER no.974 is given which is from book no.2 by the chitravad village Panchayat. A copy of entry no.974 is annexed here with and marked as AnnexureW to this petition. This speaks volumes about innocence of the present petitioner. Now the documents in question are found out there is no loss to the panchayat and or to the state government and there is no gain to the petitioner there by FIR and criminal case may kindly be quash in the interest of justice.
13. It is submitted that according to FIR record of rights book (hak patrak) no.2 and 6 were missing and the same are found. In all the recovery of said patrak documents by mistake it is mentioned as book no.4 instead of no.6. It is submitted that book no.4 was not missing and that is not the FIR, even on the date of incident I made complaint about missing of book no.2 and 6. documents which were missing are found out there is no question of finding out something which is not missing.
14. I say that during the period for which said documents book no.2 and 6 were missing according to FIR, the panchayat has given copy from said book no.2 and 6 and petitioner was not there when the copy from book no.2 and 6 was given, this proves that petitioner is wrongly rope in and there by FIR and criminal proceeding may kindly be quash in the interest of justice."
9. It appears that the records i.e. part2 and part6 were ultimately recovered from the Office of the Mamlatdar himself. The Investigation reveals that part2 and part6 were very much in possession of the applicant, but, somehow he misplaced the record in his own office. Ultimately, on being found the same were produced before the Mamlatdar for his perusal.
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10. I am of the view that no case worth the name is made out to prosecute the applicant. The applicant herein should not be put to trial for criminal misappropriation or for the offence under Section 477 of the IPC. Let me assume for the moment that the record would not have been available as on day. The same would not constitute an offence of criminal misappropriation. At best it could be a case of negligence.
11. In the result, this application is allowed. The proceedings of the Criminal Case No.577 of 2014 pending in the Court of learned JMFC, Talala are hereby quashed. Since the applicant has attained superannuation, the departmental inquiry if pending, shall be completed at the earliest in accordance with law. Rule is made absolute. Direct service is permitted.
(J.B.PARDIWALA, J.) Manoj Page 6 of 6 HC-NIC Page 6 of 6 Created On Wed Aug 16 01:35:21 IST 2017