Madhya Pradesh High Court
Jagdish Prasad Shrama vs The State Of Madhya Pradesh Thr. on 10 May, 2016
Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another)
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON. SHRI JUSTICE U.C. MAHESHWARI
&
HON. SHRI JUSTICE SUSHIL KUMAR GUPTA
CRIMINAL REVISION NO.922/2015
Petitioner Jagdish Prasad Sharma
Versus
Respondents State of M.P. and another
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Shri Vinod Kumar Bharadwaj, learned Senior counsel assisted by
Shri Anvesh Jain, learned counsel for the applicant.
Shri J.M. Sahani, learned Panel Lawyer for the respondent
No.1/State.
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Whether approved for reporting :
ORDER
(__/__/2016) Per Justice Sushil Kumar Gupta,
1. By this criminal revision under section 397 read with section 401 of the Code of Criminal Procedure 1973 (in short "the Code") applicant has challenged the order/judgment dated 26.8.2015 passed by Second Additional Session Judge, Shivpuri in S.T. No.205/2010 whereby the charges of offence punishable under Sections 409 of IPC, Section 467, 468, 471 read with Section 120 (b) of IPC and Section 5 & 6 of the M.P. Vinirdhist Brashta Acharan Nivaran Adhiniyam, 1982 have been framed against the applicant.
Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another) 2
2. The prosecution case, in short, is that the police has registered a case under Section 409, 467 read with section 120 (b), Section 468 read with Section 120 (b), Section 471 read with section 120 (b) of IPC and under Section 5 & 6 of the M.P. Vinirdhist Brashta Acharan Nivaran Adhiniyam, 1982 against the applicant and one another stating that on 1.3.2008 forged muster roll has been created in respect of the newly constructed pond in Village Mohrai and the applicant was entrusted with amount and wheat and the same has not been paid and thus misappropriated 100.42 quintals of wheat and Rs.1,11,884/- and also created forged muster roll showing false entries in muster roll. Thus, they have forged the valuable security and used those documents as genuine documents knowingly the document is forged and committed corruption.
3. The police after completing the investigation submitted challan before the Court below and during the investigation the prosecution recorded statements of the witnesses. The case was committed to the Session Court and thereafter the Session Court after considering the evidence collected by the prosecution, framed the charges against the applicant under Sections 409 of IPC, Section 467, 468, 471 read with Section 120 (b) of IPC and also framed charges under Section 5 & 6 of the M.P. Vinirdhist Brashta Acharan Nivaran Adhiniyam, 1982 vide order/judgment dated 26.8.2015.
4. Learned Senior counsel appearing for the applicant submitted that there is no evidence available on record against the applicant for framing of charge under Sections 409 of IPC, Section 467, 468, 471 Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another) 3 read with Section 120 (b) of IPC and under Section 5 & 6 of the M.P. Vinirdhist Brashta Acharan Nivaran Adhiniyam, 1982. Learned counsel aruged that the applicant has no concerned with the distribution of the wheat to the labour and also he has no concern with the payment of the labour. Learned counsel further submits that the Collector, Shivpuri has conducted the enquiry and vide order dated 4.3.2008 the authority held that the applicant cannot be held guilty and it is further submitted that during the departmental enquiry the statement of M.C. Sonkal was recorded, who admitted that the payment has been made by the Sarpanch or member of Panchayat. And also in the revaluation report it has been mentioned that the valuation done by the applicant is correct. Learned counsel further submits that along with challan the original documents were not filed and in the order- sheet dated 9.10.2012 the Session Court observed on the basis of report that the related cash book and other original documents were not on record. Learned counsel for the applicant further submits that the learned Court below failed to consider the nature of the evidence recorded by the police and documents produced before the Court below and mere suspicion alone without anything else cannot form basis of charge against the applicant, and therefore, is not sufficient to frame the charges. Learned counsel submits that the additional papers filed by the applicant were not considered by the Court below. Learned counsel further submits that no prima facie case to frame the charge is made out against the applicant and also there is no legal evidence available against the applicant. To Bolster his submissions Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another) 4 learned counsel relied on the judgments in the case of Vesa Holding P. Ltd and another Vs. State of Kerala and others, 2015 CRI. L.J. 2455 and Umesh Mandloi Vs. State of M.P., 2015 (III) MPWN 27.
5. Per contra the learned Panel Lawyer for the respondent contended that there is no merit in the contention of the learned counsel for the applicant and has fully supported the impugned order passed by the Court below and submitted that there is prima facie evidence available on record against the applicant for framing the charges under Section 409 of IPC, Section 467, 468, 471 read with Section 120 (b) of IPC and Section 5 & 6 of the M.P. Vinirdhist Brashta Acharan Nivaran Adhiniyam, 1982.
6. Learned Panel Lawyer for the respondent/State also submitted that at the stage of framing of charge documents produced by the accused cannot be considered. Learned counsel relied on the judgment in the case of State of Orissa Vs. Devendra Nath Padhi, (2003) 2 SCC
711.
7. Having heard the learned counsel for the parties, perused the entire record and considered the arguments advanced by the learned counsel for the parties.
8. Applicant is a Sub-Engineer, who is posted at Janpad Kolaras.
9. It has to be seen that what are the duties and responsibilities of the Sub-Engineer. The duties and responsibilities of the Sub Engineer has been given in Madhya Pradesh Karya Vibhag Manual, which is applicable in all technical departments of the Madhya Pradesh. As per Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another) 5 the Appendix 1.28 of Madhya Pradesh Karya Vibhag Manual, the following duties and responsibilities of the Sub-Engineer are given:-
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¼i½ vius vkidks eLVj rkfydk ls lacaf/kr fu;eksa ls iw.kZ:i esa
ifjfpr j[kuk] ekiu iqLrdksa] HkaMkj.k fglkc] ,e-,-,l- fglkc] Vh ,oa lh fglkc] lM+d /kkrq okilh] lfdZV gkÅlksa ,oa foJke x`gksa ds vlckc] phuh crZu bR;kfn ds laca/k esa ifjfpr gksuk o mudk ifjikyu djukA** According to the aforesaid duties and responsibilities of Sub-
Engineer, it is clear that the Sub-Engineer is the primary execution officer of the work.
10. As per the FIR the allegation against the Sub Engineer Jagdish Prasad Sharma is that he has prepared false muster roll and on the Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another) 6 basis of false muster roll the payment has been made by the Sarpanch and the Secretary of the Gram Panchayat, Mohrai. Learned counsel for the applicant submits that applicant has not made the payment to the labourers even he was not authorized to make the payment and payment has been made by the Sarpanch as well as Secretary of the Gram Panchayat and there is no evidence against the applicant. Therefore, there is no evidence for criminal misappropriation of the government money, but there is no substance in this arguments advanced by the learned counsel for the applicant because Sub- Engineer is a first person who has authorized to prepare the muster roll and it is his duty to prepare the proper muster roll, therefore, he is the first person who is responsible for preparing false muster roll and on that basis criminal misappropriation of the Government money was done. It is also pertinent to mention here that he is the main accused who had issued a false report for valuation of the work. Therefore, it could not be said that he is not responsible for preparation of any false muster roll or payment. So far as enquiry report given by the administrative officer that cannot be considered at this stage, where after investigation it was found that he was the first person who has made the false muster roll and on that basis payment was made by the Sarpanch and Secretary. One enquiry report was given by the Chief Executive Officer of Janpad Panchayat, Kolaras dated 01.03.2006, it is apparent that Sub-Engineer Jagdish Prasad Sharma who is applicant is also involved in criminal misappropriation of Rs. One Lac along with the Sarpanch Raghuraj Singh and Secretary Sardar Singh Rawat for making Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another) 7 a false valuation report. From the statement of Ram Singh Kushwaha, Executive Engineer, Rural Engineer Service, Shivpuri. Applicant-Sub- Engineer is also involved in making the false muster roll as well as making false valuation report.
11. It is pertinent to mention here that co-accused Raghuraj Singh has filed a bail application under Section 438 of CrPC which was registered as M.Cr.C.No.1458/2008 and in that application order has been passed on 31.03.2008, in which, it was argued that the present applicant Jagdish Prasad Sharma, Sub Engineer had issued the false report for valuation of the work and only allegation against the applicant Jagdish Prasad Sharma has been levelled. Although, it is not binding in this case but even after perusal of the entire record, it is also apparent that the applicant is the person, who has prepared the false muster roll on which payments has been made by the Sarpanch and Secretary of the Panchayat.
12. So far as the documents produced by the learned counsel for the applicant at the time of framing of the charges against the applicant in the light of the judgment of Hon'ble Apex Court Debendra Nath Padhi (supra) the same cannot be considered at the time of framing of charge.
13. In view of the aforesaid reasons and the findings so also the cited case in Debendra Nath Padhi (supra), the case laws cited on behalf of the applicant in the matter of Vesa Holding P. Ltd (supra) and Umesh Mandloi (supra) being distinguishable on facts with the case at hand are neither applicable to the case nor helping to the Cr.R.No.922/2015 (Jagdish Prasad Sharma Vs. State of M.P. and another) 8 applicant herein. So far as the principle laid down in such cases, this Court did not have any dispute.
14. In view of the aforesaid, we have not found any perversity, illegality, irregularity or anything against the proprietary of law in the order impugned framing the charges against the applicant. Consequently, this revision being devoid of any merit deserves to be and is hereby dismissed.
(U.C. Maheshwari) (Sushil Kumar Gupta)
Judge Judge
Pawar/-