Madhya Pradesh High Court
Anil Kumar Jatav vs The State Of Madhya Pradesh on 5 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1928
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
M.Cr.C. No. 24098/2018
Anil Kumar Jatav
Vs
State of M.P.
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Shri Aditya Adhikari Senior counsel with Shri Kishore Roy,
learned counsel for the petitioner.
Shri Samarth Awashty, learned G.A. for the respondent/State.
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ORDER
(05.09.2019) Petitioner has filed this petition under Section 482 of the Cr.P.C. for quashing the FIR in Crime No. 354/2014 dated 26.09.2014 registered at Police Station Maanpur, District Umariya for the offence under Section 420/34 of IPC. Since the charge sheet for the offence under Sections 420, 409, 511 read with Section 34 of IPC has also been filed, therefore, he prays to quash the same too. He also seeks quashment of Session Trial No. 7/2017 pending before 2 nd Additional Sessions Judge, Umariya, District Umariya. It is also necessary to mention that on 11.05.2018 the learned 2 nd Additional Sessions Judge has framed the charges under Section 420 and 409/511 of IPC against the present petitioner.
2. Case of prosecution in brief is that CEO Janpad Panchayat Maanpur has filed a written complaint to Incharge Police Station Maanpur District Umariya stating that under the scheme of MANREGA, present petitioner along with co-accused person who 2 M.Cr.C. No.24098/18 were functioning as Sarpanch, Secretary, Assistant Engineer have sanctioned the work of Med Bandhan in the field of Bhurelal Gond and Raja Gond, but in physical the work was not done. The completion certificate of said work has been issued and bill has also been submitted for withdrawing of payment, therefore, it is alleged against the petitioner/accused and co-accused persons that they have cheated the State and tried to misuse of appropriate fund of Government. On the basis of same, case was registered against the petitioner/accused and other co-accused. During the investigation, statements of witnesses have been recorded. After the completion of investigation, charge sheet has als been filed before the trial Court. Thereafter, learned trial judge also framed the charge against the petitioner/accused under Sections 420 and 409/511 of IPC.
3. Learned counsel for the petitioner submits that petitioner/accused physically did spot verification and issued completion certificate as per the site shown by the Sarpanch and Secretary. After issuance of completion certificate, the petitioner/accused came to knowledge that the Sarpanch and Secretary intentionally in fraudulent manner showing an another execution of Medh Bandhan work and obtained the false completion certificate from the petitioner. On 30.01.2012, the petitioner immediately informed by written a letter to the CEO Zila Panchayat and requested to stop the labour payment as claimed by the Sarpanch and Secretary. Petitioner has also informed the Assistant Engineer Mr. S.N. Verma, with regard to fraud, played by the Sarpanch and Secretary. Thereafter, on 16.05.2013, the Assistant Engineer S.N. Verma immediately wrote a 3 M.Cr.C. No.24098/18 letter to the CEO of Janpad Panchayat, Maanpur, not to release the labour payment of forged Medh Bandhan work as shown by Secretary and Sarpanch. On the complaint, the CEO, Zila Panchayat has constituted a District Level Committee vide order No. 1084/JP/2013 on 24.05.2014 and inquiry was conducted. Thereafter, memorandum of inquiry was produced before Zila Panchayat and according to it no proceeding was initiated against the petitioner. Further, CEO himself constituted a team on 28.06.2014 with a malafide intention and conducted an inquiry without perusing the documents submitted by the District Level Committee in their inquiry memorandum. Thereafter CEO, Janpad Panchayat, Maanpur written a letter to lodge the FIR against the petitioner/accused and co-accused. The work of Medh Bandhan was executed by the Work Agency of Gram Panchayat. The Mate Arun Patel executed the layout of another field and the Assistant Engineer has assessed the valuation to issue completion certificate. In departmental enquiry, no charge has been found proved and the co- accused Assistant Engineer S.N. Verma has been discharged from the charges by the Enquiry Officer. So it is evident prima facie no offence is made out against the petitioner/accused because the then Sarpanch and Secretary has shown another Medh Bandhan work. Further, on the basis of spot verification conducted by Mate Arun Patel has performed valuation of work and issued completion certificate. As soon as petitioner received the information that Sarpanch and Secretary has played fraud to withdraw the amount of labour payment, the petitioner immediately informed the Zila Panchyat CEO and the payment has not been released in favour of Secretary and Sarpanch. Thus, the act of 4 M.Cr.C. No.24098/18 petitioner is showing his bona fide and he himself was betrayed by the Sarpanch and Secretary.
4. Apart from that, petitioner/accused was doing the work in near about 15 Gram Panchayat and under it approx 50 villages come, then it is practically difficult for petitioner to verify the work deeply. On the contrary, due to awareness of the petitioner/accused, the then Sarpanch and Secretary could not withdraw the Government fund. So Prima facie no case under Sections 409, 420 read with Section 511/34 of IPC is made out against the petitioner. The complainant Sidhi Gopal Verma, CEO has not been obtained any permission from the Higher Authorities for conducting an inquiry. So this proceeding is misused of procedure of law. Therefore, he prays for setting aside all the proceeding.
5. Learned counsel for the respondent/State submits that there is prima facie material available on the record which shows that petitioner/accused cheated and tried to misuse of appropriate fund. It is not disputed, the work of Medh Bandhan was sanctioned in the field of Bhurelal Gond and Raja Gond, but no work of Medh Bandhan was initiated and completed in the field of them even then petitioner/accused has given the certificate of completion of work and also submitted bill for final payment, so this is not a fit case, where inherent jurisdiction may be invoked. Therefore, he prays for dismissal of this petition.
6. Heard both the parties and perused the record. 5 M.Cr.C. No.24098/18
7. On perusal of case, it appears that the allegation against the present petitioner is that being a Sub Engineer under the "MANREGA Scheme", he has verified work of "Med Bandhan" said to perform in the field of Bhurelal and Raja Gond without actually doing the same. With intention to cause the financial loss to state and also to misappropriate of Government funds, he has made valuation of work and has issued completion certificate for work which was not done actually. Prima Facie, the court found that the petitioner has committed the offence under Sections 420 and 409/511 of IPC
8. Before embarking on the facts of the case, it would be necessary to read first the relevant provisions of IPC, charges under Sections 420, 409/511 of IPC has been framed against the petitioner, same are quoted as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
511. Punishment for attempting to commit offences punishable with imprisonment for life or other imprisonment.--Whoever attempts to commit an offence punishable by this Code with [imprisonment for life] or imprisonment, or to cause such an offence 6 M.Cr.C. No.24098/18 to be committed, and in such attempt does any act towards the commission of the offence, shall, where no express provision is made by this Code for the punishment of such attempt, be punished with [imprisonment of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for that offence], or with such fine as is provided for the offence, or with both."
9. Further, under IPC, the definition of cheating provides in Section 415, which is also reproduced as under:-
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
10. In order to apply the Section 415 of IPC in this case, following ingredients has to prove:-
i. Fraudulent or dishonest inducement.
ii. Dishonest inducement pursuance to delivery of any property.
11. On reading of Section 420 of IPC, it appears that it deals with offence of cheating and dishonestly inducing delivery of property, its essential ingredients are:-
"(i) cheating;
(ii) dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or signed or is capable of being converted into a valuable security, and
(iii) mens rea of the accused at the time of making the inducement."
12. Before applying the Section 409 of IPC, consideration of Section 405 of IPC is necessary. Bare reading of Section 405 IPC 7 M.Cr.C. No.24098/18 shows that the accused is either entrusted with a property or acquires dominion over the property and misappropriates the same dishonestly or converts the same for its own use or dishonestly uses or disposes of that property. In criminal breach of trust, the person comes into possession of a property honestly but he develops dishonest intention subsequent to his acquiring dominion over the property by way of entrustment or otherwise. To constitute the offence of criminal breach of trust following ingredients must be fulfilled:-
(i) There has to be some property.
(ii) The said property must be entrusted to someone with or without any contract.
(iii) The dominion of the property was shifted from complainant to the accused.
(iv) The accused person refuses to return/restore the said property to the rightful owner when demanded.
(v) The accused having misappropriated/converted to its own use/disposed the property refuses to restore the property to the complainant/lawful owner.
13. When offence of criminal breach of trust committed by any public servant or by banker merchant or agent then they shall be punished under Section 409 of IPC.
14. Section 511 of IPC provides the punishment for attempting to commit offence punishable by the IPC for which express provision for its attempt is not made by this Code.
15. Now this Court shall examined the facts of the present case in view of the provisions as mentioned above:-
16. During the investigation, the statements of Bhurelal and Raja Gond have been recorded. Bhurelal Gond clarified in his police statement that he has no knowledge about the work of "Medh Bandhan" in the field of him and his brother Raja. Thereafter, it came to his knowledge when Gram Panchayat prepared a proposal for work 8 M.Cr.C. No.24098/18 of Medh Bandhan in the field of him but no work was done actually. Moreover, final payment was sanctioned then he made complaint of the same to the higher authorities. Therefore, prima facie material is available on the record that work of Medh Banchan was sanctioned in the field of Bhurelal Gond and Raja Gond but work was neither initiated nor completed. Petitioner/accused submitted a report of completion of work and sanctioned final payment in this regard. Thus it appears that there is prima facie case is made out against the petitioner/accused as being a public servant he verified and sanctioned amount for that work which is neither started nor completed. Since the payment has not been made to anyone and same was stopped by the authority, section 511 of IPC would attract in the case and prima facie no error found to frame the charges under Section 409/511 of IPC. So far as offence under Section 420 of IPC is concerned it appears that when the dishonestly inducement is done with regard to any person to deliver any property from him, offence under Section 420 of IPC would prima facie attract in the case. Though, in the case payment has not been done but act of inducement is found with regard to present petitioner.
17. Learned counsel for the petitioner/accused took ground that he issued completion certificate as per the site shown by the Sarpanch and Secretary and as soon as it came to his knowledge that execution of work was not done in the field of Bhurelal Gond and Raja Gond, he wrote a letter to CEO Janpad Panchayat to stop the labour payment and thereafter, labour payment has not been done. A departmental inqury was also conducted and it is found by the inquriy 9 M.Cr.C. No.24098/18 committee that petitioner/accused did not do any work with malafide intention. These submissions of petitioner/accused may be considered at appropriate stage of trial.
18. In the case of Rajiv Thapar Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330, the Hon'ble Apex Court has given the guidelines in step by step procedure to determine the veracity of a prayer for quashment of proceedings under Section 482 of Cr.P.C. The Hon'ble Apex Court has held as under:-
"30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-
30.1 Step one:- whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
30.2 Step two:- whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
30.3 Step three:- whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
30.4 Step four:- whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?
30.5 If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.:10 M.Cr.C. No.24098/18
19. In the case of Hemant Pandey Vs. State of M.P. reported in 2018(1) MPWN 45, Coordinate Bench of this High Court has held as under:-
"8.At the stage of framing of charge, the contents of the F.I.R and the statement of the witnesses ought to be seen. It is to be seen that prima facie case is made out. In the case of C.B.I Vs. K.M. Sharan, (2008) 4 SCC 471wherein the Apex Court has held that the High Court in its jurisdiction under Section 482 Cr.P.C is not called upon to embark upon the inquiry whether the allegations in the F.I.R and the charge sheet are reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are the matters which can be examined only by the Court concerned after the entire material is produced before it on a thorough investigation and evidence is led.
9. It would not be proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceeding ought to be quashed"
20. Therefore, in view of the forgoing discussion this Court found that there is prima facie sufficient material available on the record which shows that the petitioner/accused issued a completion certificate of said work and sanctioned of final amount which was not done, he made inducement to State by his act to get the amount sanctioned for the work, even it had not begin. Thus, this is not a proper case to invoke inherent jurisdiction of this Court.
21. Accordingly this petition is dismissed.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2019.09.07 13:00:38 +05'30'