Madhya Pradesh High Court
Lalit Gupta vs The State Of Madhya Pradesh Thr. on 24 October, 2017
1
Cr.R. No. 469/2017
[Lalit Gupta Vs. State of M.P. ] (Cr.R.No.469/2017 )
[Anand Saran Gaur Vs. State of M.P.] (Cr.R. No. 544/2017)
[Narendra Prasad Sharma Vs. State of M.P.] (Cr.R. No. 607/2017)
[Abhay Manke Vs. State of M.P.] (Cr.R. No. 612/2017)
[Shailendra Singh Bhadoriya (Cr.R. No. 616/2017)
Vs. State of M.P.]
24.10.2017
Shri Sunil K. Jain, Advocate for the petitioner.
Shri K.L. Gupta, Special Public Prosecutor for the
Lokayukt Organization.
1.The present common order governs the disposal of Cr.R. No. 469/2017, R.R. No. 544/2017, Cr.R. No. 607/2017, Cr.R. No. 612/2017 and Cr.R. No. 616/2017 which arise out of same offences and are more or less attended with similar circumstances, facts and law.
2. In all these criminal revisions, challenge is to the order of framing of charge against the petitioners who were functioning at that relevant point of time i.e. in the year 2001 in capacities as mentioned against their names in the table enumerated below alongwith offences for which they have been charged.
S.No Name of Office/po Offence in which charge is . petitioner st held framed 1 Lalit Gupta Sub 13(1)(c)/120-B of PC Act read Cr.R. No. Engineer with 13(2) Sec 13(1)(d)/120-B 469/17 IPC read with Sec 13(2) of PC Act & Ss 467/120-B, 468/120B, 471/120-B and 420/120-B of IPC 2 Cr.R. No. 469/2017 2 Anand Saran Sub 13(1)(c)/120-B of PC Act read Gaud Engineer with 13(2) Sec 13(1)(d)/120-B Cr.R. No. (PHE) 544/2017 IPC read with Sec 13(2) of PC Act & Ss 467/120-B, 468/120B, 471/120-B and 420/120-B of IPC 3 Narendra Auditor 13(1)(c)/120-B of PC Act read Prasad Local with 13(2) Sec 13(1)(d)/120-B Sharma fund, Cr.R. No. Gwalior IPC read with Sec 13(2) of PC 607/2017 Act & Ss 467/120-B, 468/120B, 471/120-B and 420/120-B of IPC 4 Abhay Manke Storekee 13(1)(c)/120-B of PC Act read Cr.R. NO. per with 13(2) Sec 13(1)(d)/120-B 612/2017 IPC read with Sec 13(2) of PC Act & Ss 467/120-B, 468/120B, 471/120-B and 420/120-B of IPC 5 Prop. M/s Supplier 13(1)(c)/120-B of PC Act read Soma with 13(2) Sec 13(1)(d)/120-B Associates (Shailendra IPC read with Sec 13(2) of PC Singh Act & Ss 467/120-B, Bhadoriya) Cr.R. No. 468/120B, 471/120-B and 616/2017 420/120-B of IPC
3. Learned counsel for the rival parties are heard on the question of admission.
4. Bare facts giving rise to the present piece of litigation is that impelled by a written complaint by one Chote Lal to the Collector, Distt. Morena that financial irregularities have been committed in purchase of supplies by Nagar Panchayat, 3 Cr.R. No. 469/2017 Banmore Distt. Morena, the Collector entrusted the SDO with conduction of fact finding inquiry, who in turn submitted a report finding the allegations to be true. Pursuant thereto, an FIR bearing Crime No. 0/2009 dated 18.11.2009 (Annexure P-3) was lodged against 13 accused including the 05 accused who are petitioners herein alleging offences punishable u/S 13(1)(D) and 13(2) of the Prevention of Corruption Act(PC Act for brevity), 120-B, 467, 468 471 and 420 IPC.
4.1 In the report, it was found that from 22.03.2001 to 04.05.2001 i.e. within two weeks a huge amount of Rs. 11,00,000/- was spent by the Nagar Panchayat for purchase of certain material which on being found doubtful, the Collector Distt. Morena by letter dated 09.11.2001 addressed to the Superintendent of Police, Lokayukt Organisation Gwalior directed to take appropriate action against the accused who were implicated in the fact finding inquiry. The Lokayukt Organization registered offences on 20.07.2007 and conducted investigation at it's own level. During the investigation, physical verification was carried out and the material was not found available as per the stock register. It was further found that vide voucher No. 106 dated 04.05.2001 for Tanker, Rs. 54,589, vide voucher No. 107 dated 04.05.2001 for Gumti Rs. 21,512/- and vide voucher No. 108 dated 04.05.2001 for Trolley Rs. 51,564 were paid. As against the said purchases, it was found that though these items purchased were entered in the Stock Register, but on physical verification carried out on 26.05.2001 and 27.05.2001, the said purchased items were not found available. It was further found that the said purchased items were some how brought from somewhere on 29.05.2001 and kept in the premises of Nagar Panchayat. It was further found 4 Cr.R. No. 469/2017 that due care and caution was not exercised by the then CMO, Hari Shankar Sharma and the Chariman of Nagar Panchayat Shri Kamla Singh Raje. It was further noticed that Storekeeper Ajay Manke exercising gross negligence without physically receiving the purchased stock, made entries in the Stock Register. The Investigating Officer procured 12 different files/records from the Nagar Panchayat pertaining to purchases of Essential Commodities relating to municipal services of water supply, lighting and conservation departments. These files were scrutinized and it was found that since the making of false entries in stock register till the payment was made for the purchases, the officers and employees of the Municipal Council including the Chairman Kamal Singh Raje ignored all the rules and regulations resulting into pecuniary loss to the Nagar Panchayat and corresponding undue benefit to the suppliers and in the process misused their offices and posts. Ultimately it was found in the investigation that loss to the tune of Rs. 3,57, 545/- was incurred by the Nagar Panchayat. It was also found that to ensure undue benefit to the suppliers, tenders were broken up into of small groups. Further it was found that all the work orders were issued on single date i.e. 17.04.2001 in favour of firms which were not registered with the Commercial Tax Department. In certain cases, purchases were made despite the items purchased not related to essential municipal services. Despite the purchased items not physically received by the store, the necessary entries of receipt of items was made in the Stock Register. To overcome the pecuniary purchase limit of Rs. 50,000/- of the PIC of Nagar Panchayat, the payments were broken into denomination to fit into the said pecuniary limit. The publication of tenders was found to be made in newspapers 5 Cr.R. No. 469/2017 having no or very less circulation in the area concerned. It was further discovered that on 11.04.2001, Sub-Engineer M.L. Sharma of the Nagar Panchayat was shown to be absent whereas he was very much available in the office of Nagar Panchayat.The notesheets which were moved in the entire process from tendering to making of payment were found to be writ large with over writing and interpolations which were found to fall under the category of forgery. Irregularities were also found to be committed in the Commercial Tax deductions. In the process, erring employees and officers of Nagar Panchayat, Banmore violated Rule 25 of the Bhandaran Kray Adhiniyam. The entire process was further found to be in violation of provisions of M.P. Municipalities Act 1968 and the rules framed thereunder. Noticing violation of various mandatory rules governing the process of purchase of items, it was found that the then CMO, Shri Hari Shankar Sharma and Shri Kamal Singh Raje, the then Chairman PIC, Nagar Panchayat Banmore, Distt. Morena have conspired together to misuse their offices alongwith bogus firms to make unlawful payment. Accordingly, offences punishable u/S 13(1)(D) and 13(2) of the Prevention of Corruption Act(PC Act for brevity), 120-B, 467, 468 and 471 IPC were found to be prima-facie committed by 12 accused named in the FIR.
4.2 The investigation thereafter was conducted and chargsheet was filed by the Lokayukt Organization in the Court of competent jurisdiction against each of the 5 petitioners who were among a total of 13 accused. Chargsheet submitted to Special Court at Morena alleged the same offences against all the accused arising out of the following allegations found in the investigation.
6 Cr.R. No. 469/20174.2(i) In regard to petitioner Lalit Gupta in Cr.R. No. 469/2017 8- Jh yfyr xqIrk] mi;a=h vkjksih us Lo;a dh inLFkkiuk uxj iapk;r ckueksj esa u gksus ds ckotwn oLrqvks dks dz; djus ds iwoZ nj ds laca/k esa vfHker xyr rjhds ls fn;k tcfd uxj iapk;r okueksj esa inLFk mi;a=h Jh ,e-,y- 'kekZ dks mifLFkr gksus ds ckn Hkh vuqifLFkr crk;k x;k Fkk Jh yfyr xqIrk dks vfHker fdlh ofj"B vf/kdkjh ls vkns'k izkIr gksus ds mijkar fn;k tkuk Fkk yfyr xqIrk us fcuk vius ofj"B vf/kdkfj;ksa ds vuqefr ds lh/ks uksV'khV ij gh 09 izdj.kksa esa vfHker fn;k o vijkf/k;ksa ls feydj in dk nq:i;ksx djrs gq, "kklu dks vkfFkZd {kfr igqapkbZ ,oa voS/k ykHk vftZr fd;kA 4.2(ii) In regard to petitioner Anand Saran Gaud in Cr.R. No. 544/2017 3- Jh vkuUn 'kj.k xkSM] mi;a=h us dz; dh xbZ lkexzh dh xq.koRrk ds laca/k esa uksV'kkhV ,oa fcy esa fn;s x;s vfHker esa vUrj budh dwV jpuk o voS/kkfud d`R;ksa dks o "kM;a= dks iznf'kZr djrk gS vkjksih Jh ,0,l0 xkSM us vU; vkjksihx.kksa ds lkFk feydj vius in dk nq:i;ksx dj dwV jpuk djrs gq, 'kklu dks {kfr igqapkus esa lg;ksx fd;kA 4.2(iii) In regard to petitioner Narendra Prasad Sharma in Cr.R. No. 607/2017 9- Jh ,u0ih0 'kekZ laijh{kd yksdy Q.M Xokfy;j ¼lsokfuo`Rr½ Jh ,u0ih0'kekZ lhfu;j vkfMVj milapkyd chek rFkk Lfkkuh; fuf/k laijh{kk Xokfy;j }kjk Lohd`r dk;Zdze vuqlkj bafnjk xka/kh ikB'kkyk okueksj dk vkfMV djus x;s Fks mlds ckotwn Jh ,u-ih-'kekZ }kjk eq[; uxj ikfydk vf/kdkjh okueksj dks ;g er fn;k fd lkexzh uxj ikfydk vf/kfu;e 1961 /kkjk 112 vuqlkj lekpkj i=ksa esa fufonk vkeaf=r fd;s x;s gS rFkk xq.koRrk dk Hkh mYys[k fu;ekuqlkj fd;k x;k rnkuqlkj mi;a=h }kjk xq.koRrk laca/kh tkudkjh dh iqf"V dh gS Lvksjdhij }kjk fcy vuqlkj lkexzh izkIr gksus ,oa LVkQ ,.Vªh dk mYys[k gS vr% okVjoDlZ lkexzh dh [kjhnh fu;ekuqlkj dh xbZ gksus ,oa xq.koRrk dk mYys[k gksus ls Hkqxrku fd;k tk ldrk gS A tks vius in dk nq:i;ksx Fkk rFkk voS/k ykHk vftZr dj 'kklu dks vkfFkZd {kfr igqapkbZA 4.2(iv) In regard to petitioner Abhay Manke in Cr.R. No. 612/2017 7- Jh vHk; ekuds] LVksj dhij vkjksih us v/;{k dey flag jkts ,oa lh0,e0vks0 7 Cr.R. No. 469/2017 gjh'kadj 'kekZ o vU; ds lkFk feydj in dk nq:i;ksx djrs gq, 'kklu dks {kfr igqapkbZ o Hk.Mkj x`g esa lkeku u gksus ds ckotwn Hkh lkeku dks Hk.Mkj iath essa p<k;k o cksel QeksZ dks voS/kkfud ykHk igqapk;kA 4.2(v) In regard to petitioner Shailendra Singh Bhadoriya in Cr.R. No. 616/2017 10- Jh 'kSysUnz flag HknkSfj;k iq= Lo0 Jh ejnku flag HknkSfj;k izks0 lksxk lsYl ,.M bathfu;lZ lksukfydk gksVy fcYfMax t;sUnzxat Xokfy;j tks lksek lsYl ,.M bathfu;lZ dk izksijk;Vj Fkk vkjksih us uxj iapk;r okueksj ds uxj iapk;r v/;{k ,oa eq[; uxj ikfydk vf/kdkjh o vU; deZpkfj;ksa ds lkFk feydj cksel QeksZa ds ek/;e ls feF;k fcy rS;kj dj voS/k ykHk izkIr fd;k o 'kklu dks vkfFkZd {kfr igqapkbZA
5. Thereafter, learned Special Judge after hearing learned counsel for the rival parties framed the impugned charge against all the above petitioners alleging offences punishable u/S 13(1)(c)/120-B read with 13(2) of PC Act, Sec 13(1)(d)/120- B IPC read with Sec 13(2) of PC Act & Ss 467/120-B, 468/120B, 471/120-B and 420/120-B of IPC by order dated 08.05.2017, after relying upon various decisions of the Apex Court including Pg 11-12.
5.1 So far as Cr.R. 469/2017 is concerned, learned counsel for the petitioner therein submits that the petitioner was a Sub- Engineer in the Department of Public Health Engineering and was not an employee of the Nagar Panchayat Banmore Distt. Morena. Petitioner merely gave his opinion about the genuineness of the purchases on being sought by the Nagar Panchayat owing to absence of the Sub-Engineer working in the Nagar Panchayat. It is submitted that even if the opinion was wrong then the same was not binding upon the Nagar Panchayat and thus no criminal action can emanate out of the same and thus no offence of criminal misconduct is made out. It is further submitted that the basic ingredients of the offences of 8 Cr.R. No. 469/2017 cheating and forgery and also under the Prevention of Corruption Act are not made out by a bare reading of the allegations against the petitioner. Reliance is placed on the decision of Apex Court in the case of Rini Johar & Another Vs. State of Madhya Pradesh & Others reported in (2016) 11 SCC 703 para 29 and 30 whereby the criminal prosecution for cheating punishable u/S 420 read with Sec 34 was quashed as allegations which could have given rise to civil action were camouflaged as criminal prosecution.
5.2 On the other hand, learned counsel for the prosecution submits that strong suspicion in the given facts and circumstances where the petitioner despite availability of the Nagar Panchayat Sub-Engineer tendered his opinion unlawfully and without prior concurrence of his superior authority in the PHE department which demonstrates that in the entire process of purchase of material by the Nagar Panchayat, the petitioner was involved. It is submitted that the extent of involvement and presence/absence of mense rea cannot be gone into at this stage of framing of charges. Reliance is placed by the prosecution on the Division bench decision of this Court in a bunch of petitions including Cr.R. No. 113/2016(Karunesh Dandotia Vs. State of M.P. & Others).
5.3 As regards Cr.R. 616/2017, the petitioner is the proprietor of M/s Soma Sales & Engineers, supplier of generator and water pumps who had supplied the material to the Nagar Panchayat. It is submitted by the counsel for petitioner that petitioner has been made accused based upon the false assumption that the petitioner firm is not functional which is belied by certain evidence collected in the investigation itself. It is further submitted that the petitioner is not a public servant and 9 Cr.R. No. 469/2017 thus is not amenable to the rigorous of the PC Act. 5.4 Per contra, learned counsel for the prosecution has relied upon certain findings recorded in the investigation report submitted by the Investigating Officer of the Lokayukt Organization submits that the petitioner was hand in glove with the officers and employees of the Lokayukt Organization and was instrumental in enabling those officers and employees to indulge in cheating and forgery leading to undue benefit to them and the firm of the petitioner and corresponding loss to the Nagar Panchayat.
5.5 As regards Cr.R. 612/2017 it is submitted by learned counsel for the petitioner that petitioner was Storekeeper at the relevant point of time at Nagar Panchayat and has been falsely implicated as neither any cheating nor forgery is committed by him.
5.6 Per contra, learned counsel for the prosecution submits that the petitioner being Storekeeper at the relevant point of time made false entries in the Stock Register of non- availability of stock despite the same being available, thereby creating an artificial scarcity and a corresponding need for floating tenders for causing undue benefit to the suppliers and corresponding loss to the Nagar Panchayat.
5.7 As regards petitioner in Cr.R. No. 607/2013, it is submitted that the petitioner was Senior Auditor at the relevant point of time in Local Fund, Gwalior and was sought opinion by the Nagar Panchayat, Banmore prior to making payment for the supplies received by the Municipality. The petitioner gave his report based on the Sub-Engineer and Storekeeper's report and thus, it is submitted that the petitioner cannot be held responsible for any cheating or forgery which may have taken 10 Cr.R. No. 469/2017 place between the Nagar Panchayat and the suppliers. It is further submitted that there was no meeting of minds between the petitioner and the other co-accused and therefore, the offence of cheating as defined u/S 415 IPC is not made out. 5.8 Per contra, learned counsel for the prosecution submits that the petitioner prepared certain notesheets containing his opinion which had no date and since the petitioner was one of the links in the chain which started from the act of employees of Nagar Panchayat creating artificial scarcity of stock till payment made to the suppliers for purchases, the prosecution of the petitioner is essential with the aid of criminal conspiracy. 5.9 As regards petitioner in Cr.R. No. 544/2017, it is submitted that there was no allegation in the original complaint made to the District Magistrate and further that the SDO did not find any incriminating material against the petitioner. It is also submitted that petitioner did not approve or sanction any bill during the tenure during which he was posted in the Nagar Panchayat Banmore. It is further submitted that petitioner was earlier posted at Municipal Council Morena and was relieved from the said Council on 24.08.2001 and joined at Nagar Panchayat, Banmore on 30.04.2001, whereas the relevant period during which the offence is alleged to be committed was from 22.03.2001 to 25.05.2001. It is submitted by the petitioner that he had verified the entire stock on 01.05.2001 immediately after his joining at Nagar Panchayat on 30.04.2001. It is further submitted that all the purchases which are the subject matter of the impugned charge are for the period prior to joining of petitioner.
6. In the conspectus of the above mentioned discussion what apparently comes to light is that 13 accused were 11 Cr.R. No. 469/2017 proceeded against in the investigation in connection with the offences punishable u/Ss 13(1)(c)/120-B of PC Act read with 13(2) Sec 13(1)(d)/120-B IPC read with Sec 13(2) of PC Act & Ss 467/120-B, 468/120B, 471/120-B and 420/120-B of IPC . Out of these 13 persons, 11 were employees of the Nagar Panchayat or the State Government and therefore fall squarely within the definition of "public servant" defined u/S 21 of IPC and also u/S 2(c) of Prevention of Corruption Act.
7. One of the contentions raised by the counsel in Cr.R. 616/2017(Shailendra S. Bhadoriya Vs. State) is that petitioner being a proprietor of Soma Sales & Engineering and not being Government servant is not amenable to the rigours of PC Act. This submission deserves to be rejected at the very outset in view of the Apex Court decision in case of P. Nallammal and Another Vs. State represented by Inspector of Police reported in (1999) 6 SCC 559. Relevant portion of which is reproduced below:
10.Thus, clause (b) of the sub-section encompasses the offences committed in conspiracy with others or by abetment of "any of the offences" punishable under the PC Act. If such conspiracy or abetment of "any of the offences" punishable under the PC Act can be tried "only"
by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of the trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried alongwith the public servant before the Court of a Special 12 Cr.R. No. 469/2017 Judge having jurisdiction in the matter.
11. Shri K.K. Venugopal, learned senior counsel contended that P.C. Act, being a special enactment has taken into its fold specific cases of abetment of offences. Vide Sections 10 and12 of the P.C. Act. Those sections are extracted below:
"10. Punishment for abetment by public servant of offences defined in section 8 or 9.- Whoever, being a public servant, in respect of whom either of the offences defined in section 8 or section 9 is committed, abets the offence, whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
12. Punishment for abetment of offences defined in section 7 or 11.- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."
According to the learned counsel since no other type of abetment is made specifically punishable under the P.C. Act there cannot be any question of a non-public servant abetting the offence under Section 13(1)(e) of the P.C. Act.
7.1 The above said decision has been relied upon by the Apex Court in the case of State of UP Vs. Udai Narayan & Another reported in (1999) 8 SCC 741.
8. A close scrutiny of the prosecution story indicates that right from the stage of creating an artificial scarcity in the Stock Register thereby setting in motion the process of calling of tenders from a particular firm and procuring items for municipal services with no or inadequate verification till making payments involved large number of public servants were involved right from the storekeeper Abhay Manke, Sub-Engineer of the Nagar 13 Cr.R. No. 469/2017 Panchayat, Banmore Lalit Gupta, the ministerial staff of the Nagar Panchayat namely Preetam Manjhi AG-III, Jitendra K. Jain AG-III and Vinod Dhakre Head Clerk-cum-Accountant in the Nagar Panchayat and also Shri Hari Shankar Sharma, the officiating CMO, the Auditor of Local Fund Gwalior and the Sub- Engineer Anand Sharan Gaud of PHE and lastly, Kamal Singh Raje the then Chairman of Nagar Panchayat alongwith four different proprietors of the companies which supplied the items to the Nagar Panchayat were involved. All these persons have been made accused by the prosecution to complete the chain forming the unlawful creation of artificial demand of stock in the Stock Register till the same was fulfilled made by supply of materials without carrying out necessary physical verification and which received a wrongful seal of approval by the Auditor to enable this entire unlawful process to assume a lawful appearance with the intention to suppress the illegalities and irregularities committed. Each of the 5 petitioners out of total 13 accused made in the chargsheet are essential to complete the chain to establish prima-facie case of cheating, forgery perpetrated with the aid of conspiracy.
9. Each of the accused is an in separable link in that chain of prosecution which enables the charge to stand and satisfy the basic ingredients which are necessary to form the offences alleged in the charge.
10. As such this Court is of the considered view that even if certain allegations against certain accused appear to be somewhat frivolous and falling a bit short of satisfying the basic criteria of grave suspicion of commission of offence which is required for framing of charge, it would be appropriate not to interfere with the process of framing of charge at this stage and 14 Cr.R. No. 469/2017 leave it for the trial Court to decide the veracity of the charges against each individual accused after adducing evidence. This is all the more necessary as looking to the complexity of the factual matrix involved, discharge of even a single accused would render the chain of facts and circumstances of prosecution broken. The act of each of the accused is so inextricably linked with the other that the act of one becomes a cause for the other and so on and so forth.
11. In view of the above, this Court refrains from interfering in the matter especially in view of the limited scope of available under the revisional powers u/S 397 read with Sec 401 of IPC as is evident by the law laid down by the Apex Court in the case of State of Maharashtra Vs Sujay Mangesh Poyarekar reported as (2008) 9 SCC 475 where it was held that powers of the revisional courts are very limited and the revisional court should not interfere unless there is a jurisdictional error or an error of law is noticed.
(Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
24/10/2017 24/10/2017
sh/-