Madhya Pradesh High Court
Subrato Roy vs The State Of Madhya Pradesh on 16 March, 2011
HIGH COURT OF MADHYA PRADESH : JABALPUR
M.Cr.C. No. 9421/2007
Subrato Roy
-Vs-
State of Madhya Pradesh
M.Cr.C. No. 9424/2007
Ram Kumar Maitra
-Vs-
State of Madhya Pradesh
M.Cr.C. No. 11602/2007
V.K. Vaishnav
-Vs-
State of Madhya Pradesh
M.Cr.C. No. 11603/2007
Nirmal Kumar Jain
-Vs-
State of Madhya Pradesh
&
M.Cr.C. No. 7672/2008
Harish Bagwaiya
-Vs-
State of Madhya Pradesh
PRESENT : HON. M.A.SIDDIQUI,J.
Shri R.N. Singh, Sr. Advocate with Shri
Hitendra Singh , Adv. for petitioners in M.Cr.C.
Nos. 9421, 9424, 11603 and
M.Cr.C.7672/2008.
Shri S.C. Datt, Sr. Advocate with Shri Sachin
Chouksey, Adv.for petitioner in M.Cr.C.No.
11602/2007.
Smt. S. Paliwal, Govt. Advocate for
State/respondent.
ORDER RESERVED ON 08/03/2011.
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ORDER PASSED ON 16/03/2011.
ORDER
This order shall govern in all the above referred link cases.
(2) Petitioners have prayed to quash the entire proceedings in Criminal Case No. 2021/2003 pending before the Judicial Magistrate Ist Class, Burhanpur, arising out of Crime No. 120/2000 registered by PS-City Kotwali, District-Burhanpur.
(3). It is an admitted fact that Subrato Roy ( petitioner in M.Cr.C.No. 9421/2007) was posted as Incharge-Chief Engineer at Bhopal, Ram Kumar Maitra (petitioner in M.Cr.C.No.9424/2007) was also posted as Chief Engineer, Bhopal. V.K.Vaishnav (petitioner in M.Cr.C.No. 11602/07) was Executive Engineer at Regional Office, Indore, Harish Bagwaiya (petitioner in M.Cr.C.7672/08) was Assistant Engineer at Regional Office, Indore, and N.K. Jain (petitioner in M.Cr.C.No.11603/07) was Secretary of the Mandi Samiti, Burhanpur at the time of alleged incident.
(4) The instant matters arise out of Resolution dated 1.10.96 passed by Krishi Upaj Mandi Samiti, Burhanpur. The Mandi Samiti resolved to construct two over head tanks to reserve the water. The controversy is that as per -3- proposal it was resolved that two over head tanks will be constructed and capacity of each tank will be 2 lacs ltrs. of water per tank, and it is the allegation that this 2 lacs ltrs. figure was interpolated into 6 lacs . As per 2 lacs ltrs. tanks the estimated cost was Rs.24 lacs for two tanks, but for 6 lacs ltrs. tanks it was more than Rs. 71 lacs for two tanks.
(5) As per report in writing filed by one Balram Choubey who was posted as Secretrary on 27.3.99, before his posting petitioner N.K. Jain was Secretary of the Mandi Samiti. Balram Choubey made a complaint in writing that all officers including the then Secretary, Engineers of Regional Office at Indore and both Chief Engineers at Bhopal were involved in conspiracy, and instead of tanks for 2 lacs ltrs., they, by doing interpolation, made it to 6 lacs ltrs. in order to gain more profits while initial proposal was for 2 lacs ltrs. for each water head tank, and the amount of Rs.24 lacs was taken to more than Rs. 71 lacs. So all these persons committed mischief and interpolation and at that time petitioner N.K. Jain was the Secretary, Harish Bagwaiya was AE at Regional Office, Indore, petitioner V.K. Vaishnav was EE at Regional Office, Indore, and petitioners R.K. Maitra and Subrato Roy were the -4- Incharge Chief Engineers at Headquarter, Bhopal, all were involved in the alleged offence. On this report, PS- City Kotwali, Burhanpur registered Crime No. 120/2000 and investigated the matter and filed charge sheet, charges under sections 120-B, 420,467,468 and 409 of IPC have been framed against all petitioners. (6) I have heard learned counsel for both the parties and perused the case diary and documents on record. (7) The main controversy started by proposal Annexure (A/9) in which it is said that as per proposal over head tanks bearing capacity of 2 lacs ltrs. each have to be constructed. In the decision part,it clearly appears that over writing has been done on the figure "2" which has been amended to figure "6". The allegation of the prosecution against the petitioners is that all petitioners have conspired and all are responsible for this interpolation and it has been done with the knowledge and consent of all, and all were benefited by it. (8) Learned counsel appearing for petitioners have submitted that undisputedly all petitioners have been ordered to face departmental enquiry and in departmental enquiry all have been exonerated and it has been indirectly pointed out that this figure was amended by the officers of the Burhanpur Mandi Samiti including -5- petitioner/Secretary N.K.Jain. As there is difference between the proposal and decision and as per proposal dated 1.10.96 initially it was resolved to construct over head tanks of 2 lacs ltrs. each, but looking to the need and availability of the fund,etc. it was further agreed that instead of 2 lacs ltrs.tanks, 6 lacs ltrs. tanks should be constructed, so the figure "2" was amended by the then staff with concurrence of all, and it was as per need. It is said that there is difference between "proposal" and "decision".
(9) Learned Govt.Advocate appearing for the State has vehemently opposed the prayer. She submitted that as per Annexure A/9, there was proposal for tanks of 2 lacs ltrs. in Ist part, and in the 2nd Part it has been marked as Decision No.2 and the 2nd Part is not a proposal, but it is a decision and figure "2" has been interpolated as "6" while it was left 2 lacs in the Ist part, i.e., proposal. So, this is obvious that interpolation was not carried with care and caution.
(10) Learned counsel for petitioners submits that as per proposal dated 1.10.96 letter was sent to Divisional Office, Bhopal vide Annexure A/3 and it was asked to give estimate and plan and as the Regional Office, Indore was authorized for the work up to Rs.15 Lacs so the -6- matter was forwarded to Head Office at Bhopal for acceptance of estimate and proposal, and its sanction. Shri S.C.Datt, learned senior counsel appearing for petitioners has submitted that at that time, petitioner V.K. Vaishnav was posted there, the estimate and plan was beyond his capacity, so he simply worked as post office and sent it to Head Office at Bhopal and it cannot be said that he was involved in any kind of conspiracy. (11) Per contra, learned Govt. Advocate appearing for State has submitted that as per evidence collected meeting was held on 17.05.99 in which it has been clearly shown that the original proposal was for 2 lacs ltrs. water head tanks and estimate plan was for Rs. 24 lacs and it was sent to Regional Office at Indore, and as per technical report, of which copy is attached with the case diary which bears the seals and signatures of petitioner V.K. Vaishnav, Executive Engineer, Regional Office,Indore, Secretary, N.K.Jain, Mandi Samiti, Burhanpur, , Harish Bagwaiya, AE, Regional Office, Indore, as per this technical report, over writing on figure "2" and insertion of figure "6" is there at three places and estimate of Rs.24 lacs has been interpolated to Rs. 71,63,000/- and again there are signatures and seal of the concerned persons.
-7-(12) From perusal of the technical report and estimate plan, it is very much clear that up to Indore, it was 2 lacs ltrs. tanks and plan was for Rs.24 lacs, but in the letter which was forwarded to Bhopal Head Office by Indore Office no interpolation is there and it is 6 lacs ltrs. tanks and estimated cost of more than Rs. 71 lacs is there as per letter written by the petitioner of Indore to Bhopal dated 14.10.96. As per report of enquiry committee consisting of the then MLA, President, Mandi Board, Burhanpur etc.there were no sources and no such need of constructing huge tanks of 6 lacs ltrs. of water as per local conditions and requirement.
(13) As far as petitioners of Bhopal headquarter of Mandi Board are concerned, at the time of incident, one petitioner was posted and he made so many quarries and after seeking explanation he accepted the proposal, and by the other petitioner who was later on posted at Bhopal, work of sanction, estimate, etc. was carried out. (14) Learned Govt. Advocate appearing for the State has opposed the arguments about the innocence of petitioners at Bhopal, but nothing was shown that they were having the knowledge of such interpolation, there might be some carelessness, but it is not seen that they were involved in conspiracy.
-8-(15) Another submission of petitioners' counsel is that all the petitioners have been exonerated from the departmental enquiry and as per authority P.S.Rajya vs. State of Bihar (1996) 9 SCC 1 wherein it has been held that the applicant who was exonerated in departmental proceedings in the light of report of the Central Vigilance Commission and concurred by the UPSC for the allegation of criminal charges of over writings and alternation, in such case the prosecution may be quashed.
(16) Learned Govt. Advocate appearing for the State has submitted that in the aforesaid authority departmental enquiry was concurred by UPSC while in this case no such authority has concurred, so this case law has no application in the instant case. I do agree with the arguments advanced by learned Govt. Advocate for State. I am of the firm view that on the ground of exoneration in the departmental enquiry, the whole proceeding of criminal case cannot be thrown away as by reading said enquiry reports it is very much clear that so many documents were not led before enquiry officers and so many important witnesses were also withheld and were not examined before the enquiry officer and these -9- facts have been specifically mentioned in the enquiry report.
(17) Learned counsel for petitioners relied upon authority of Apex Court in State of Karnataka vs. M. Devendrappa and another AIR 2002 SC 671 wherein it has been held that in the proceeding U/s 482 Cr.P.C. before the High Court where charge sheet alleging commission of offences of cheating and forgery on the background of fact, High Court noted that involvement of persons show that they can only be indicated to be witnesses, there was no "definite evidence" to show that some of the accused were directly involved, and that there was no material to hold that the accused persons had committed theft or forgery for the purpose of cheating or have used genuine forged documents or had cheated the Government and there was no evidence to infer common intention to commit such offences, charge sheet quashed on grounds that continuance of proceedings would be an abuse of process of Court/ends of justice not proper, U/s 482 Cr.P.C. meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal was not necessary.
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As far as this case law is concerned, about the petitioners at Bhopal Head Office, Subrato Roy and Ram Kumar Maitra, their case can be kept in this category. The cases of other petitioners cannot be kept in the category of "no definite evidene", against them there is specific allegation. As far as petitioner N.K.Jain, Secretary is concerned, he was Incharge of all documents of Mandi Samiti, Burhanpur in which interpolation has taken place, his involvement seems to be there and involvement of engineers of Indore seems to be there as per above discussion and against them prima facie case is there.
(18) Learned counsel for petitioners has advanced the argument that all the petitioners are public servants so sanction U/s 197 Cr.P.C, is a must as the work has been done in discharge of official capacity. They have placed reliance on a decision of this Court in Dr. Dinesh Sharma vs. State of M.P. 2006 (5) MPHT 349 wherein it has been said that if no mala fide is shown on the point by the accused, then no cognizance be taken without sanction, but here, as far as petitioners of Burhanpur and Indore are concerned, their work cannot be said to be bona fide . Moreover the act of interpolation cannot be said to be done under the colour of official work. So no
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sanction U/s 197 Cr.P.C. is necessary. This case is not applicable in the facts and circumstances of the case in hand, as far as petitioners, except the petitioners at Bhopal are concerned.
(19) Learned counsel for petitioners have relied upon the following authorities :-
1. Mahesh Chaudhary vs. State of Rajasthan (2009) 4 SCC 439;
2. R.Kalyani vs. Janak C.Mehta and others (2009) Vol. 1 SCC 516;
3. VVS Rama Sharma and others vs. State of M.P. and others (2009) Vol. 7 SCC 234;
4. Medchl Chemicals & Pharma (P) Ltd. vs. Biological E.Ltd. (2000)3 SCC 269 ;
5. State of Maharashtra vs. Salman Salim Khan and others (2004) 1 SCC 525; and
6. M.Cr.C.No.5326/2009 (Ashok Nanda and another vs. State of M.P. and another).
As far as position of law is concerned, nobody can be in disagreement but as far as facts and circumstances of the present case are concerned, these authorities do not fully apply to the facts and circumstances of the present case for petitioners at Burhanpur and Indore. (20) I am in full agreement with the learned counsel for petitioners for petitioner Subrato Roy of M.Cr.C.9421/07 and R.K.Maitra of M.Cr.C.9424/07, the then Incharge
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Chief Engineers at Head Quarter, Bhopal that no prima facie case is there against them showing their involvement so authority in State of Haryana and others vs. Ch.Bhajanlal and others AIR 1992 SC 604 fully applies as un-controverted allegations made in the FIR and evidence collected at the time of investigation of the incident do not disclose commission of any offence or make out a case against these two petitioners, hence, looking to the circumstances of the case, M.Cr.C.9421/07 filed by Subrato Roy and M.Cr.C.9424/07 filed by R.K. Maitra are allowed. With respect to above two petitioners Subrato Roy and R.K. Maitra , proceedings in Criminal Case No. 2021/2003 pending before the Judicial Magistrate Ist Class, Burhanpur, arising out of Crime No. 120/2000 registered by PS-City Kotwali, District-Burhanpur together with the FIR are quashed. They are acquitted of the charges. Their bail bonds are discharged.
As far as other petitioners are concerned, prima facie evidence is there against them, hence, M.Cr.C.No. 11602/07, M.Cr.C.No. 11603/07 and M.Cr.C.No. 7672/08 are dismissed.
(21) Before parting with the case, it is made clear that trial Court shall not be influenced by this order in any
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manner and has to decide finally the case on its own merits after hearing the concerned parties .
(M.A.Siddiqui) Judge.
Jk.