Madhya Pradesh High Court
Shivkumar Sharma vs The State Of Madhya Pradesh on 22 July, 2022
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 22th OF JULY, 2022
WRIT PETITION No. 12313 of 2022
Between:-
SHIVKUMAR SHARMA S/O
SHRI PRABHUDAYAL
SHARMA, AGED 51 YEARS,
OCCUPATION- ASSISTANT
SOCIETY MANAGER,
PRIMARY AGRICUTLURE
CREDIT CO-OPERATIVE
SOCETY TODA PICHHORE
TEHSIL KARERA, DISTRICT
SHIVPURI R/O- VILLAGE
SALAIYA TEHSIL KARERA,
DISTRICT SHIVPURI
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI RAGHVENDRA DIXIT - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH
THROUGH ITS PRINCIPAL
SECRETARY DEPARTMENT
OF CO-OPERATIVE VALLABH
BHAWAN BHOPAL (MADHYA
PRADESH)
2. REGISTAR CUM
COMMISSIONER CO-
OPERATIVE VINDHAYACHAL
BHAWAN BHOPAL (MADHYA
PRADESH)
3 DISTRICT CO-OPERATIVE
2
CENTRAL BANK MARYADIT
SHIVPURI THROUGH ITS
CHIEF EXECUTIVE OFFICER
STATION HOUSE OFFICER
POLICE STATION KARERA
4
DISTRICT SHIVPURI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI N.S.TOMAR - GOVERNMENT ADVOCATE FOR THE
STATE)
(BY SHRI D.P.SINGH - ADVOCATE FOR THE RESPONDENT
NO.3)
----------------------------------------------------------------------------------------
This petition coming on for hearing this day, the Court passed the
following:
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking following reliefs:-
i- That, the impugned complaint dated 18-05-2022 (Ann.P/1) passed by respondent no.3 may kindly be quashed.
ii- That, respondents may kindly be directed to follow the procedure prescribed u/s 83 to 85 of the Act of 1960 and also directed to comply the order dated 11-05-2022 (Ann. P/2) passed in W.P. no.10975/2022.
iii- That, respondent no. 4 may kindly be directed to follow the principle of natural justice and procedure prescribed u/s 83 to 85 of the Act of 1960 prior to lodge an F.I.R.
iv- That, cost and other relief which may deem fit may also be granted.
A preliminary objection has been raised by Shri Singh that by the present petition, the petitioner has challenged the complaint made by the 3 Bank to the SHO, Police Station Karera, District Shivpuri to lodge the FIR. It is submitted that pre-hearing to suspected accused before lodging the FIR is not requirement of law, therefore, the relief No.1 claimed by the petitioner cannot be granted and to substantiate his submission, the counsel for the respondents has relied upon the order passed by this Court in the case of Raman Dubey Vs. State of M.P. on 22/07/2020 passed in W.P.No.6771/2020.
Heard on the question of preliminary objection. On the face of arguments, it appears to be very convincing and attractive but on its deeper scrutiny, this Court is of the considered opinion that the respondents have adopted an innovative idea to circumvent the order dated 11/05/2022 passed by this Court by in W.P.No.10975/2022.
The necessary facts for disposal of the present petition in short are that, some preliminary enquiry and audit was conducted and it was found that there is a defalcation of Rs.3,82,79,236/- accordingly, notice dated 13/04/2022 (Annexure R/4/1) was issued to the petitioner with a direction to deposit the aforesaid amount.
The notice dated 13/04/2022 reads as under:-
Ø-@LFkk-@2022&23@87 f'koiqjh fnukad 13-04-2022 @@ uksfVl @@ izfr Jh f'kodqekj 'kekZ lgk;d lfefr izca/kd izkFkfed d`f"k lk[k lgdkjh laLFkk VksMkfiNksj fo"k;%& jkf'k tek djkus ckor~A lanHkZ%& iz'kkldh; cSBd fnukad 12-04-2022 ds vuqlkjA 4 mijksDr lanfHkZr fo"k;karxRkZ vkidks voxr djk;k tkrk gS fd vki ftyk lgdkjh dsfa nz; cSad e;kZ- 'kk[kk djSjk dh iSDl laLFkk VksMkfiNksj ij izHkkjh lfefr izca/kd in ij dbZ o"kksZ ls vkt fnukad rd lfefr izc/a kd VksMkfiNksj ds in ij dk;Zjr gSA vkidh laLFkk dks fnukad 25@04@2019 dks jkf'k 20000000-00 ,oa fnukad 18@02@2019 dks 3897556 ,oa fnukad 11@01@2013 dks jkf'k 4980000-00 ,oa fnukad 04@07@2018 dks 7060505-00 ,oa 13@11@2017 dks 2341175-00 bl izdkj dqy jkf'k 38279236-00 'kk[kk djSjk n~okjk vkidh laLFkk ds [kkrksa ls vkids n~okjk vukf/kd`r rkSj ij /kujkf'k dks lansgkLin vkgj.k o varj.k fd;k x;k gSA ;g fd iath;d lgdkjh laLFkk,Wa ,oa vk;qDr lgdkfjrk e-iz- 'kklu Hkksiky ds funsZ'kkuqlkj cSad n~okjk ftyk lgdkjh dsna zh; cSad e;kZ- djSjk dh tkWap mijkar izfrosnu izkIr gqvk rFkk vf/kd`r pkVZMZ vdkmaVasV ds n~okjk vkWfMV fjiksVZ izLrqr dh x;h ftlesa vkidh laLFkk ls /kujk'kh dk lansgkLin vkgj.k vkSj varj.k gksuk ik;k gSA tkWap fjiksVZ o vkWfMV izfrosnu dh izfr eq[;ky; esa voyksdukFkZ miyC/k gSA bl lwpuk i= ds ek/;e ls vkidks voxr djk;k tkrk gS fd vki lwpuk i= izkfIr ds 15 fnol ds Hkhrj vkgfjr jkf'k 38279236- 00 :i;s cSad es tek djk,aA fu;r vof/k esa /kujkf'k tek ugha djk;s tkus dh n'kk esa vkids fo:} vkxkeh dk;Zokgh djusa gsrq foo'k gksuk gksxk ftlds fy, vki Lo;a O;fDrxr :i ls mRRjnk;h jgsaxsA eq[; dk;Zikyu vf/kdkjh ftyk lgdkjh dsUnzh; cSd e;kZ- f'koiqjh From the plain reading of this notice, it is clear that no opportunity was granted to the petitioner to file his objection to the preliminary enquiry report/audit report. Thereafter, by application dated 28/04/2022, the petitioner sought a copy of preliminary enquiry report/audit report. A copy of the said application was also sent to Dy. Commissioner Cooperative Society Administrator and Branch Manager, Zila Sahkari Kendriya Bank Maryadit, Karera, District Shivpuri. By letter dated 29/04/2022, the Dy. Commissioner Cooperative Society directed the 5 CEO, District Sahkari Kendriya Bank Maryadit, Shivpuri to supply the preliminary enquiry report/audit report. However, it appears that the said documents were not supplied and accordingly, the petitioner filed W.P.No.10975/2022, which was disposed of by order dated 11/05/2022 by following observations:-
This petition is preferred by the petitioner under Article 226 of the Constitution of India seeking following reliefs:-
i. That, the impugned orders dated 13.04.2022 and 14.05.2011 (Annexure P/1 and P/2) passed by respondent No.3 may kindly be quashed.
ii. That, respondents may kindly be directed to supply all adverse material like enquiry report, audit report and an audit said to be carried out by chartered accountant before taking any action against petitioner.
iii. That respondents may kindly be directed to hold fact f inding enquiry as prescribed chapter 6 Rule 23 onwards of the sewa niyam 2013 and restrained then not to take any coercive steps or recovery without following due process of law.
iv. That, cost and other relief which may deem fit may also be granted."
2. It is the submission of the counsel for the petitioner that vide impugned order dated 13.04.2022 (Annexure P-1) he has been directed to deposit the amount of Rs.3,82,79,236.00/- whereas petitioner has not received any enquiry report/ audit report so far therefore, he cannot prepare his defence and reply the allegations as surfaced in enquiry report.
63. Learned counsel for respondents opposed the prayer and specially counsel for respondent No.3, submits that enquiry report indicates the embezzlement of public money at the instance of present petitioner who happens to be Assistant Society Manager and it was his responsibility to look into the financial transaction.
4. However, counsel for respondent No.3 fairly submits that department shall provide a copy of enquiry report/ audit report for perusal of petitioner so that he can file his reply and prepare his defence if any exists against him.
5. Heard.
6. Considering the submissions, petition is disposed of with directions to the respondents to make available the enquiry report/ audit report to the petitioner within three days from today and if petitioner receives copy of audit report/enquiry report within three days, then he shall be at liberty to proceed in accordance with law.
Respondent/Society consequently shall also be at liberty to ensure consequential follow up action as per law and impugned notice.
7. With the aforesaid direction, petition stands disposed of.
It is the case of the petitioner that without complying the order passed in W.P.No.10975/2022, the respondents have issued a complaint to SHO, Police Station Karera, District Shivpuri for lodging the FIR. It is submitted that the gist of the complaint, which has been made to the SHO, Police Station Karera, District Shivpuri is also same on the basis of which notice dated 13/04/2022 was issued to the petitioner to deposit the amount of Rs.3,82,79,236/-.
When a specific question was put to the counsel for the respondents as to whether any attempt was made to supply a copy of 7 preliminary enquiry report/audit report to the petitioner or not, then it was vaguely replied that the petitioner did not approach the authorities. However, the counsel for the respondents was unable to point out any document to show that any letter/information was ever sent to the petitioner to attend the office on a particular day for receiving the aforesaid documents. Even otherwise the respondents could have sent a copy of the preliminary enquiry report/audit report either through a special messenger or by the registered post as per Section 86 of the Act, 1960, but nothing was done by the respondents. Thus, it is clear that in order to circumvent the order passed by this Court in W.P.No.10975/2022, the respondents made a complaint to SHO, Police Station Karera, District Shivpuri to lodge an FIR. It is true that no suspected accused has a right of pre-hearing before lodging the FIR, but at the same time, the respondents also cannot be permitted to play game of hide and seek as well as can not be permitted to by-pass the order of High Court by adopting new method, specifically when no attempt was made by the respondents to lodge the FIR prior to filing or decision of Writ Petition No.10975/2022.
It is also not out of place to mention here that during the course of arguments, it was pointed out by Shri Dixit that the respondents had filed a review petition to modify the order passed in W.P.No.10975/2022, which was registered as R.P.No.751/2022 and the said review petition has been dismissed by this Court by order dated 18/07/2022 with following observations:-
After arguing for a while when this Court expressed his view regarding futility of review and found that review is misconceived, then learned counsel for the petitioner regretfully and 8 apologetically seeks permission to withdraw this review petition.
Prayer accepted.
Petition is dismissed as withdrawn.
Be that whatever it may be.
The crux of the matter is as to whether the respondents are right in not supplying a copy of the preliminary enquiry report/audit report to the petitioner before directing him to deposit an amount of Rs.3,82,79,236/-.
It is submitted by the counsel for the respondents that as per relief Clause No.2 the petitioner is seeking a direction to the respondents to follow the procedure as laid down under Sections 83 to 85 of M.P. Co- operative Societies Act, 1960 (in short, the Act, 1960) but the said provisions are not applicable.
Considered the submissions made by the counsel for the respondents.
Section 84, 84-A and 85 of the Act, 1960 reads as under:-
[84. Enforcement of charge.-
Notwithstanding anything contained in Chapter VII or any other law for the time being in force, but without prejudice to any other mode of a recovery provided in this Act, the Registrar or any 71 person empowered by the Registrar in this behalf, may on an application of the society and subject to such rules as State Government may make in this behalf, make an order directing the payment of any debt or outstanding demand due to the society by any member or past or deceased member by attachment and sale or transfer by any other mode for such period and subject to such terms and conditions as the Registrar or such other person may specify, of the property or any interest therein which is subject to a charge under (sub-
section (1) of section 40, sub-section (l) of section 9
41), and sub-sections (1), (2) and (3) of section 42:
Provided that no order shall be made under this section unless the member, past member or nominee, heir or legal representative of the deceased member has been served with a notice of the application and has failed to pay the debt or outstanding demand within thirty days from the date of such service.] [84-A. Recovery of sums due to certain societies.] [(1) Notwithstanding anything contained in sections 64, 69 and 78, on an application made by a cooperative society for recovery of arrears of its dues, the Registrar may, after making such enquiry as he deems fit, grant a certificate for the recovery of the amount stated therein to be due as an arrear.] (2) The certificate granted by the Registrar shall be final and conclusive proof of the arrears stated therein, and the same shall be recoverable as arrears of land revenue.] [85. Execution of orders, etc.- [Every order or award passed or decision given by the Registrar under any provision of this Act, every order passed bye the Appellate or Revisional Authorities and every order made, decision given by the Liquidator, if not carried out]-
(a) on a certificate signed by the Registrar or any person authorized by him in this behalf be deemed to be decree of a Civil Court and shall be executed in the same manner as a decree of such Court; or
(b) be executed according to the law and under the rules for the time being in force for the recovery of arrears of land revenue; or
(c) be executed by the Registrar or any other person empowered by the Registrar in this behalf, by the attachment and transfer in the manner as may be prescribed or sale or 10 sale without attachment of any property of the person or a society against whom the order, decision or award has been obtained or passed:
Provided that any application for the recovery under clause (b) shall be made-
(i) to the Collector and shall be accompanied by a certificate signed by the Registrar or by any person authorized in this behalf; and
(ii) within five years from the date fixed in the order, decision or award and if no such date is fixed, from the date of order, decision or award, as the case may be].
From the plain reading of Section 84 of the Act, 1960, it is clear that the Registrar without prejudice to any other mode of recovery provided in this Act, may on an application of the society and subject to such rules as State Government may make in this behalf, make an order directing the payment of any debt or outstanding demand due to the society by any member or past or deceased member by attachment and sale or transfer by any other mode for such period and subject to such terms and conditions as the Registrar or such other person may specify. As per proviso to this Section, it is clear that no order shall be made under this Section unless the member, past member or nominee, heir or legal representative of the deceased member has been served with a notice of the application and has failed to pay a debt or outstanding demand within 30 days from the date of such service.
The order dated 13/04/2022 was not passed by the Registrar. It was passed by CEO, Zila Sahkari Kendriya Bank Maryadit, Shivpuri. By this order, the petitioner was directed to deposit an amount of Rs.3,82,79,236/-.
11Furthermore, it is well established principle of law that no one can be condemned unheard. This Court while deciding W.P.No.10975/2022 had categorically directed the respondents "to make available the enquiry report/audit report to the petitioner within three days from today and if the petitioner receipts the copy of the enquiry report/audit report within three days, then he shall be at liberty to proceed in accordance with law. The respondent/bank consequently shall also be at liberty to ensure consequential follow up action as per law and impugned notice." Thus, before proceeding further in the matter, the respondent/bank was under
obligation to supply a copy of the preliminary enquiry report/audit report to the petitioner. In blatant violation of principle of natural justice as well as violation of direction given by this Court, no report of the preliminary enquiry report/audit report was ever supplied by the respondents. On the contrary, they adopted a very innovative idea under an impression that since, a suspected accused is not entitled for pre-hearing, therefore, the FIR can be lodged. The stand taken by the respondent/bank that the petitioner did not approach the authority to receive the preliminary enquiry report/audit report is per-se misconceived. It is not the case of the respondent/bank that the preliminary enquiry report/audit report was voluminous and could not have been supplied to the petitioner. It is not the case of the respondent/bank that the petitioner was ever informed to attend the office to receive the copy of the preliminary enquiry report/audit report. As already pointed out by the respondent/bank could have supplied the preliminary enquiry report/audit report by sending it by registered post or by serving upon him through a special messenger. Nothing was done. Once a direction was given by this Court in W.P.No.10975/2022, to the respondents to make available the 12 preliminary enquiry report/audit report, then the respondents cannot run away from their liability by shifting their responsibility on the shoulders of the petitioner by alleging that he did not attend the office. Even otherwise the notice/documents should have been sent as per Section 86 of the Act, 1960.
Furthermore, as per principle of natural justice, it is not required that a person against whom action is being taken must approach the authorities to collect the documents on which the department wants to place reliance. The documents can be denied only on the ground that they are voluminous but even under that condition, the respondents are under obligation to permit the delinquent officer to inspect those documents.
It is submitted by the counsel for the respondent/bank that in notice dated 13/04/2022, it was specifically mentioned that the petitioner can inspect the preliminary enquiry report/audit report.
This submission made by the counsel for the respondent/bank cannot be accepted in the light of order dated 11/05/2022 passed in W.P.No.10975/2022. After a specific direction was given by this Court to supply a copy of the enquiry report/audit report, then nothing was left for the respondent/bank to deny the said documents.
It is clear case of violation of principle of natural justice in spite of the direction given by this Court.
The submission as to whether, which provision of co-operative societies Act would apply, does not arise at this stage. In W.P.10975/2022 the parties were given opportunity to proceed in accordance with law and the respondent/bank was also given liberty to ensure consequential follow up action as per law and impugned notice. Since, the first part of the order dated 11/05/2022 passed in W.P. No.10975/2022 has not been 13 complied with, therefore, whether the provisions of Sections 59, 64, 83, 84, 84-A and 85 of the Act, 1960 or any other provision of the said Act would be applicable or not is left open.
So far as the written complaint made by the Bank to the SHO, Police Station Karera, District Shivpuri is concerned, this Court is of the considered opinion that at this stage, it would not be appropriate to quash the same. However, it is directed that the said complaint shall be kept in abeyance till the final order is passed by the competent authority after giving due opportunity of hearing. Along the return, the respondent/bank has not filed a copy of preliminary report, although, according to the respondent/bank itself, the said preliminary reply is in existence. Accordingly, it is directed that the respondent/bank shall positively supply the copy of the preliminary enquiry report to the petitioner before proceeding further in the matter.
So far as the supply of audit report is concerned, in view of the fact that the said copy has been filed alongwith the return and has been supplied to the counsel for the petitioner, therefore, the respondent/bank shall not be under obligation to supply an additional copy of the audit report to the petitioner. The petitioner shall be at liberty to file his reply/objection to the preliminary enquiry report/audit report within a period of ten days from the date of receipt of the preliminary enquiry report. The respondent/bank shall personally serve the copy of preliminary enquiry report by sending a special messenger. The petitioner is also directed to give his correct address to the respondents so that the further communication can be made on the said address by registered post. The petitioner shall give the aforesaid information in writing to the respondent/bank within a period of 10 days from today.14
In case, if the petitioner is not available for receiving the copy of preliminary enquiry report which will be sent by a special messenger, then the said report shall be sent to the petitioner by registered post as per Section 86 of the Act, 1960 at the address, which shall be given by the petitioner in writing within a period of 10 days from today.
It is made clear that the provisions of Section 27 of General Clauses Act would also apply.
Needless to mention here that in case, if a finding is recorded that the petitioner is responsible for defalcation, then either the complaint made by the respondent/bank (Annexure P/1) shall automatically stand revived in toto or if any modification is required, then the said complaint shall stand revived subject to the amendment which also shall be informed by the respondent/bank. If the petitioner is found innocent, then the bank shall withdraw the complaint, which has been sent to the SHO, Police Station Karera, District Shivpuri.
Since, impugned complaint (Annexure P/1) has been sent by the respondent/bank to by-pass the order passed by this Court in W.P.No.10975/2022 as well as in violation of principle of natural justice, therefore, this petition is allowed with cost of Rs.50,000/- to be deposited by the bank in the Registry of this Court within a period of one week from today.
With aforesaid observation, the petition is Allowed.
(G.S. AHLUWALIA) JUDGE Pj'S/-Digitally signed by PRINCEE BARAIYA Date: 2022.07.22 17:38:59 -07'00'