Madhya Pradesh High Court
Ghanshyam Karma vs The State Of Madhya Pradesh on 16 May, 2018
Author: S.K.Awasthi
Bench: S.K.Awasthi
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HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
D.B: HON'BLE SHRI JUSTICE S.C. SHARMA & HON'BLE SHRI
JUSTICE S.K. AWASTHI
M.CR.C NO.27256/2017
Ghanshyam Karma S/o Kalu Ram Karma
Vs.
State of M.P
Shri C.B. Pandey, Advocate for the applicant.
Shri Pankaj Wadhwani, Public Prosecutor for the State.
O R D E R
(Passed on 16 /05/2018) Per S.K.Awasthi, J:
This petition is filed under Section 482 Cr.P.C. for quashment of FIR and the charge-sheet arising out of Crime No.741/2013 registered at Police Station- Jhabua, District- Jhabua registered against the applicant
2. According to the applicant, a charge-sheet was filed by the Police Station Jhabua under Sections 409, 420, 467, 468, 471 r/w Section 120-B IPC and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act arising out of aforesaid crime number.
3. Brief facts of the case are that as per M.P. Government National Rural Health Mission, a manual was created to provide for the use of Janani Mobility Express for the purpose of providing primary care to women during their pre and post delivery stage and -2- also for weak, sick and malnourished children. The rates were provided for engaging vehicles from service providers.
4. To engage vehicles as such the CMHO, Jhabua published an advertisement in the newspaper on 03.12.2011, tenders were invited and after completing the necessary formalities, the service providers were engaged to provide vehicles to function as Janani Mobility Express.
5. On 28.06.2013, an inspection was conducted by Dr. M. Geeta, who was Head of the Divisional Health Mission. She expressed her displeasure over the working of District Accounts Officer, and thereafter, the Mission Director requested the Collector, Jhabua to inspect the account of the scheme. The Collector formed a committee on 03.07.2013. The committee inspected the accounts and found Accounts Officer present applicant Ghanshyam Karma, Dr.Smt.Rajani Dabar and Dr.Kunwar Singh Dodava responsible for excess payment of Rs.1,72,768/-. It was also alleged that some furniture was purchased, however, no entry was made in the stock register and payment for a sum of Rs.49,400/- was doubtful. Similarly, purchase of stationery items for Rs.56,942/- was also found doubtful.
6. This petition is filed on the ground that (i) the investigating agency did not collect any material against the present applicant and by this way or that way, they tried to implicate the present applicant. (ii) The applicant is a public servant and in view of the provisions of M.P. Police Establishment Act 1947, the Special Police Establishement has power and authority to investigate -3- specified offences against the applicant. (iii) Although the applicant was working as District Accounts Manager under the National Rural Health Mission, Jhabua and however, he had no control over the accounts until he obtains prior approval and sanction from his controlling authorities. The applicant is having no power either for sanction any amount or for make any payment. He only make the proposals for payment on the note sheets under the instruction of his superior officeers Smt.Rajni Darbar, CHMO and Dr. Kunwar Singh Dodhve and the payment has been done by the aforesaid Officers, who had sanctioned the amount and signed all the cheques in respect of all payments under such schemes. There is no evidence to show that the applicant conspired with the other co-accused persons, therefore, the trial under sections 409, 420, 467, 468, 471 r/w Section 120-B IPC and Section 13(1)(d) r/w Section 13(2) of Prevention of Corruption Act of the IPC cannot be sustained.
7. Learned counsel for the applicant placing reliance on the judgment passed by the Hon'ble Apex Court in the case of C.B.I vs. Ramesh Galli reported in 2016 (3) SCC 788 and the order dated 08.07.2016 passed by this Court in the case of Ravindra Kumar Dubey vs. State of M.P in M.Cr.C.No.9915/2015 argued that the local Police has no jurisdiction to register a crime and investigate the offence under the provisions of the Prevention of Corruption Act. Under these circumstances, he prayed for quashment of the FIR as well as charge sheet against the applicant.
8. Learned counsel for the respondent/State placing reliance on an order dated 26.10.2017 passed by the Full Bench of this Court -4- in case of Arvind Jain vs. State of M.P. in Cr.A. No.544/2016 argued that the full Bench of this Court held that the local police has the jurisdiction to investigate the offence under the provisions of Prevention of Corruption Act, and therefore, no case is made out for quashment of FIR and the charge-sheet.
9. We have heard the rival contention of the parties and perused the record.
10. First contention of the learned counsel for the applicant is with respect to investigation by local police is concerned, the present case was investigated by Rachna Mukati Bhadoria, Sub Divisional Officer Police, who is in the rank of Deputy Superintendent of Police. The only lapse on the part of the investigating agency appears to be that no prior sanction from the Judicial Magistrate First Class as provided for under Section 17 of Prevention of Corruption Act was obtained, however, such lapse on the part of investigating agency in the investigation as a whole is not found vitiated. Hence, there appears to be no force in the argument that the investigation in this case is vitiated because the local police had no jurisdiction to investigate the offence.
11. On coming to the merit of the case, the report prepared by the committee, who was given the task to examine the accounts and prepared a detailed report, in which it was mentioned that there were irregularities in payment in respect of vehicles which were engaged as Janani Mobility Express. The charge-sheet shows that the statements of service providers were recorded. Statements of Yugal Kishore Naik is available in the case diary, who was running transport agency in the name of Naik Bandhu Transport Company. He said that he received money by cheque, however, it was not mentioned in the cheque or the cover letter for which vehicle the payment was made, and according to him, complete payment was not received by the agency. However, he -5- did not say that any amount given to him was taken back by the present applicant for his own use. It is not alleged that the applicant demanded or received any amount from from him. Similarly, statements of Ramanlal Naik, Uday Singh, Jayes Kumar Parihar, Persingh and Gopal Krishna from whom furnitures were purchased were also on record and they did not say that the payment made to them was taken back by any of the officers involved in this matter, rather they said that the payment was not accompanied by details showing against which vehicle or against which item, the payment was being made. In this situation, it is apparent that so far as the present applicant is concerned, who only make the proposals for payment on the note sheets under the instruction of his superior officeers Smt.Rajni Darbar, CHMO and Dr. Kunwar Singh Dodhve and the payment has been done by the aforesaid Officers, who had sanctioned the amount and signed all the cheques in respect of all payments under such schemes. had no mens-ria to gain illegally. There was also no prima-facie evidence of unlawful gain.
12. This Court is well aware that there is presumption in case of financial irregularity and there is also heavy duty on the person approving financial proposal to be more cautious, however, any negligence in performing their duty would not incur any criminal liability and for criminal liability specific unlawful gain has to be indicated.
13. In this view of the matter, looking to the role assigned to the present applicant in the whole matter, no case is made out under Sections 409/120-B, 420/120-B, 467, 468, 471/120-B of IPC and Sections 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act. Accordingly, this application is allowed. The First Information Report bearing Crime Number 741/2013 registered at Police Station- Jhabua, District- Jhabua registered against the -6- applicant-Ghanshyam Karma for the offences under Sections 409/120-B, 420/120-B, 467, 468, 471/120-B of IPC and Sections 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act and all the consequential proceedings flowing out of the said FIR stands quashed.
(S.C. Sharma) (S.K. Awasthi)
Judge Judge
skt
Digitally signed by
Santosh Kumar Tiwari
Date: 2018.05.17 11:24:15
+05'30'
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8. So far as the investigation by local police is concerned, the present case was investigated by Rachna Mukati Bhadoria, Sub Divisional Officer Police, who is in the rank of Deputy Superintendent of Police. The only lapse on the part of the investigating agency appears to be that no prior sanction from the Judicial Magistrate First Class as provided for under Section 17 of Prevention of Corruption Act was obtained, however, such lapse on the part of investigating agency in the investigation as a whole is found vitiated. As such there appears to be no force in the argument that the investigation in this case is vitiated because the local police had no jurisdiction to investigate the offence.
9. Coming to the merit of the case, the report prepared by the committee, who was given the task to examine the accounts and prepared a detailed report, in which it was mentioned that there were irregularities in payment in respect of vehicles which were engaged as Janani Mobility Express. The charge-sheet shows that the statements of service providers were recorded. Statements of Yugal Kishore Naik is available in the case diary, who was running transport agency in the name of Naik Bandhu Transport Company. He said that he received money by cheque, however, it was not mentioned in the cheque or the cover letter for which vehicle the payment was made, and according to him, complete payment was not received by the agency. However, he did not say that any amount given to him was taken back by the present applicant for her own use. Similarly, statements of Ramanlal Naik, Uday Singh, Jayes Kumar Parihar, Persingh and Gopal Krishna from whom -8- furnitures were purchased were also on record and they did not say that the payment made to them was taken back by any of the officers involved in this matter, rather they said that the payment was not accompanied by details showing against which vehicle or against which item, the payment was being made. In this situation, it is apparent that so far as the present applicant is concerned, who only approved the payment after the file was scrutinized by two persons below had no mens-ria to gain illegally. There was also no primafacie evidence of unlawful gain.
10. This Court is well aware that there is presumption in case of financial irregularity and there is also heavy duty on the person approving financial proposal to be more cautious, however, any negligence in performing their duty would not incur any criminal liability and for criminal liability specific unlawful gain has to be indicated.
11. In this view of the matter, looking to the role assigned to the present applicant in the whole matter, no case is made out under Sections 409/120-B, 420/120-B, 467, 468, 471/120-B of IPC and Sections 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act. Accordingly, this application is allowed. The order framing charges is set aside. The present applicant is discharged from charges under Sections 409/120-B, 420/120-B, 467, 468, 471/120-B of IPC and Sections 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act.
(S.C. SHARMA ) (S.K. AWASTHI)
JUDGE JUDGE
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hk/