Madhya Pradesh High Court
Shrinivas Sharma vs The State Of Madhya Pradesh on 6 April, 2017
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M.Cr.C.No.10351/2008
06.04.2017
Mr.Manish Datt, learned Senior Counsel with
Mr.Yogesh Soni, learned counsel for the petitioner.
Mr.Arvind Singh, learned Panel Lawyer for the
respondent/State.
1. The present petition has been filed by the petitioner for exercise of inherent jurisdiction by this Court under Section 482 of Code of Criminal Procedure, 1973 to quash criminal proceedings against the petitioner in criminal case no.2021/2003 ( State of M.P. Vs. Shrinivas and Others ) pending in the Court of learned Judicial Magistrate First Class, Burhanpur, by which the petitioner is facing criminal trial for offence under sections 409, 420, 467, 468 and 120-B of IPC. Two of the co-accused persons being Subrato Roy and Ram Kumar Maitra have been absolved by this Court vide order dated 16.03.2011 passed in M.Cr.C.No.9421/2007 & M.Cr.C.No.9424/2007, as their role was found to be remote and 2 without adequate evidence against them. However, the petitions filed by three other co- accused persons Mr. V.K. Vaishnav, Nirmal Kumar Jain and Harish Bagwaiya were dismissed by the same order.
2. The brief facts of the case are that a resolution was passed by the Krishi Upaj Mandi Samiti, Burhanpur on 1.10.1996, by which, it was resolved to construct two overhead tanks for the purpose of accumulating and distributing water. The allegations against the petitioner and the co- accused persons are that the said resolution was manipulated and instead of two lakh liters, for which the water tank was to be constructed, was interpolated and changed to six lakh liters per water tank, thereby, escalating the cost of construction from Rs.24,00,000/- (Rupees Twenty four Lakhs Only) to more than 71,00,000/- (Rupees Seventy One Lakhs Only).
3. The FIR was registered on the complaint preferred by one Balram Choubey, who at 3 material point of time was posted as Secretary of the Mandi Samiti. In the said complaint, it was alleged that the petitioner and all the other co-accused persons, involving themselves in a criminal conspiracy and with the intent of unlawfully enriching themselves and causing a concomitant loss to the Mandi Samiti, interpolated the figure of two lakh liters to six lakh liters in order to escalate the cost of construction by almost rupees fifty Lakhs and, thereby causing an unlawful gain to the contractor and themselves and corresponding loss to the State exchequer. Crime No.120/2000 for offences under sections 120-B, 420, 467, 468 and 409 of IPC were registered and taken into investigation. Post investigation, the charge- sheet was filed against the petitioner and the co-accused persons. In this, the chronology relating to the offence assumes great significance as the same would determine, if there is prima-facie case against the petitioner herein.
44. The undisputed time line of the offence is that on 01.10.1996 the meeting of the Mandi Samiti was convened in which the proposal for the construction of the two water tanks of two lakh liters each at a cost of Rs.24,00,000/- (Twenty Four Lakh Rupees) was resolved. On 7.10.1996, the said proposal was sent to the Executive Engineer at Indore Division. On 14.10.1996, the file relating to the construction of six lakh liters capacity tank "two in number" was sent to the Chief Engineer by the Executive Engineer at Indore. Here, it is apparent that the alleged interpolation from two lakh liters per tank to six lakh liters was done between 7.10.1996 to 14.10.1996. Thereafter, the said proposal was sent to the Chief Engineer Subrato Roy for the issuance of technical sanction for the construction of the said overhead tanks which was granted by him on 20.02.1997.
Thereafter, on the same day itself administrative approval was granted by the Commissioner/Director of the Mandi Samiti for the two overhead tanks. Subsequently, 5 thereafter, the proposal was sent to the head office at Bhopal and the same was approved by the then Managing Director Mr. J.S.Mathur on 04.08.1998. Thereafter, the agreement was entered into between the contractor and the Mandi Samiti and as the contract was valued at more than 15,00,000/- (Fifteen Lakh Rupees), it required the signature of the Executive Engineer of the Mandi Samiti along with the Secretary of the Mandi Samiti. It is here, the criminality is alleged against the petitioner that he, who at the material point of time was Executive Engineer, signed and executed the contract with the contractor on 18.08.1998 and, thereby became particeps criminis in the said crime along with the other co-accused persons.
5. Learned senior counsel for the petitioner has submitted that the initiation and continuation of the proceedings against the petitioner is a gross abuse of the process as the undisputed case of the prosecution itself is that before the petitioner was posted as the Executive 6 Engineer with the Mandi Samiti vide order dated 22.06.1998, the offence had already matured and had culminated on 20.02.1997 with the administrative approval which was granted for the construction of the six lakh liters water tank which happened even before the petitioner was transferred to the Mandi Samiti at Burhanpur. Before this, the petitioner was posted at Gwalior and he was relieved on 26.06.1998 from Gwalior and is stated to have joined on the post as the Executive Engineer at Burhanpur on 29.06.1998. The crux of the argument is that when the petitioner was not even posted at Burhanpur when the offence itself had attained fruition, how could he be deemed to have been a partner in a conspiracy when the offence had already taken place? In short, the contention of the learned Senior counsel for the petitioner is that once the administrative approval was granted by the Commissioner/Director of the Mandi Samiti for the construction of the said water tank. The execution of the contract with the contractor 7 was a mere formality which was required for the work to commence. But for the signature of the petitioner on the contract, it is undisputed that there is no involvement of the petitioner in the decision making process which had culminated on 20.02.1997.
6. Per contra, learned counsel for the State has drawn the attention of this Court to the statement of S.K.Chakrawarty, which was recorded on 24.10.2000, wherein the said witness is stated to have " dk;Z dh rduhdh o iz ' kklfud Lohd` f r lEHkkx dh dk;Z i kyu ;a = h Jh oS " .ko }kjk djk;h x;h ys f du] dk;Z dk vuq c a / k Jh ,l-,u-'kekZ }kjk djk;k x;k gS A lfefr }kjk nj ds la c a / k es a fy;s x;s fu.kZ ; ij ,l-,u-'kekZ dks iq u % fopkj djuk Fkk tks mUgks u s ugha fd;k vr% os Hkh nks " kh gS A ". The petitioner had been roped in as an accused only on the basis of this statement which goes to reflect that he is being deemed guilty only because he did not reconsider the construction of six lakh liters water tank at the time of executing the contract which he ought to have.
87. After having perused the documents and after having appreciated the undisputed facts in this case, it is unfortunate that the petitioner appears to have been roped in into this case only on account of having signed the contract which followed the entire decision making process which culminated on 20.02.1997 almost more than a year before he had joined Mandi Samiti at Burhanpur. Nowhere, is it alleged by the prosecution that the petitioner had been a part and parcel of the decision making process which had approved the enhancement of the capacity of the water tanks from two lakh liters to six lakh liters or that he had even an opportunity to consider whether or not the enhancement is in accordance with law, as all this had been done when the petitioner was still posted at Gwalior. In short, the petitioner has been made an accused only on the grounds that he ought to have known and appreciated, that what was impossible for him for him to know. The rule of law enshrined in the maxim "Lex non cogit ad impossiblia"
or "the law shall not expect the
impossible" comes to the aid of the
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Petitioner. Having gone through the statement of Mr. S.K. Chakrawarty, it is absolutely clear that but for signing the contract, there is not a shred of evidence against the petitioner, where far from his involvement in the said offence, it can even be said that he had knowledge of what was going on. He signed along with Mandi Samiti only on account of a legal requirement which mandated him to sign the contract as the value of the same was more than Rs.
50,00,000/- (Rupees Fifty Lakh Only).
8. Under the circumstances, this Court is of the opinion that the continuation of the said case against the petitioner would be a gross abuse of process and, therefore, quashes the proceedings against him in criminal case no. 2021/2003 (State of M.P. Vs. Shrinivas and Others) pending before the court of learned Judicial Magistrate First Class, Burhanpur.
C.C. as per rules.
(ATUL SREEDHARAN) JUDGE rk