Himachal Pradesh High Court
Jitender Kumar Son Of vs State Of H.P on 7 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 7th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No.238 of 2020
Between:
JITENDER KUMAR SON OF
LATE SH.RAM KRISHAN, RESIDENT
OF VILLAGE SHILRU, P.O. MASHOBRA,
TEHSIL AND DISTRICT SHIMLA, H.P.
....PETITIONER
(BY SH. DALIP K.SHARMA, ADVOCATE)
AND
STATE OF H.P.
....RESPONDENT
(BY SH. SUDHIR BHATNAGAR AND
SH. DESH RAJ THAKUR, ADDITIONAL
ADVOCATES GENERAL WITH SH. R.P.
SINGH, SH. KAMAL KISHORE AND
SH. NARINDER THAKUR, DEPUTY
ADVOCATES GENERAL)
Whether approved for reporting?
This petition coming on for orders this day, the Court passed the following:
ORDER
Being aggrieved and dissatisfied with the order dated 18.08.2020, passed by learned Special Judge (Forest)Shimla, District Shimla, H.P., whereby an application under Section 216 Cr.P.C., having been filed by the prosecution, praying therein for addition of charge under Section 120-B of IPC as well as alteration of charge under Section 13(1)( c) read with 13(2) of Prevention of Corruption Act, 1988, ::: Downloaded on - 31/01/2022 23:02:02 :::CIS 2 came to be allowed, petitioner-accused has approached this Court in the instant proceedings, praying therein to set-aside the aforesaid .
order.
2. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that a report/complaint against the staff/ some officials of office of Deputy Commissioner, Shimla, District Shimla, H.P., came to be instituted on the allegation that accused embezzled the money so collected on account of Token Tax, Motor Licence etc. On the basis of aforesaid complaint, FIR No.8 of 2008, under Section 409 read with Section 13(2) of Prevention of Corruption Act, came to be registered at police Station, SV &ACB, Shimla. After completion of the investigation, challan was put before the competent court of law and during the course of trial, accused namely, Sher Singh, Sant Ram Shandil and Sant Ram were discharged by the Court concerned vide order dated 11.08.2014.
Aforesaid order was challenged before this Court by way of Revision Petition No.358 of 2014, but same was dismissed vide order dated 23.09.2015. Learned Court below framed the charges against the accused on 11.04.2014 and thereafter prosecution examined its witnesses and when the matter was fixed for recording statement under Section 313 Cr.P.C, prosecution filed an application under Section 216 Cr.P.C, praying therein for addition of charge under Section 120-B IPC and alternation of charge under Section 13(1((c) read with Section 13(2) of Prevention of Corruption Act (Annexure P-1).
::: Downloaded on - 31/01/2022 23:02:02 :::CIS 33. Aforesaid prayer came to be resisted on behalf of the accused Jitender Kumar i.e. petitioner herein, who claimed before the .
Court below that since application has been filed after inordinate delay of six years, same is not maintainable (Annexure P-2). However, fact remains that learned court below on the basis of material available on record though rejected the prayer of prosecution for addition of charge under Section 120-B IPC, but it altered the charge under Section 13(1)
(c) read with Section 13(2) of the Prevention of Corruption Act. In the aforesaid background, petitioner has approached this Court in the instant proceedings.
4. Having heard learned counsel representing the parties and perused the material available on record vis-à-vis reasoning assigned in the impugned order dated 18.08.2020, passed by learned Special Judge(Forest) Shimla,H.P., this Court finds no illegality and infirmity in the impugned order and as such, no interference is called for.
5. Material available on record reveals that accused Jitender Kumar remained posted as Clerk on the cash counter of SDM-cum-
Licensing Authority(Urban) Shimla for collection of Token Tax and fee under Motor Vehicles Act and in that capacity he committed criminal breach of trust in respect of sum of Rs.51,078/- and as such, committed an offence punishable under Section 409 of IPC. Since it came on record that petitioner-accused while his having posted as Clerk on the cash counter of SDM-cum-Licensing Authority (Urban) Shimla, dishonestly misappropriated a sum of Rs.51,078/-, which was ::: Downloaded on - 31/01/2022 23:02:02 :::CIS 4 entrusted to him as public servant, court below rightly framed/altered the charge against him under Section 13(1)© and punishable under .
Section 13(2) of the Prevention of Corruption Act. Since there was an inordinate delay in making prayer for addition of charge under Section 120-B of IPC, coupled with the fact that three accused stood discharged, prayer made on behalf of the prosecution of addition of charge rightly came to be rejected, but since allegation with regard to misappropriation of public money that too in the capacity of public servant is there and there is sufficient material to support the aforesaid allegations, no fault, if any, can be found with the action of the court inasmuch as alteration of charge under Section 13(1) (c) read with Section 13(2) of the Prevention of Corruption Act is concerned+.
6. Consequently, in view of the above, this Court sees no illegality and infirmity in the aforesaid impugned order dated 18.08.2020, passed by learned Special Judge(Forest) Shimla, District Shimla, H.P, and same is upheld.
7. The present petition fails and same is dismissed accordingly, alongwith pending applications, if any.
7th September, 2021 (Sandeep Sharma),
(shankar) Judge
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