Bombay High Court
Sukamal Dhondiram Sekhare vs The State Of Maharashtra And Others on 2 May, 2017
Author: K.K. Sonawane
Bench: S.S. Shinde, K.K. Sonawane
{1}
crwp 1222.16 f.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1222 OF 2016
Sau. Sukamal Dhondiram Sakhare,
Age : 46, Occu. Agriculture,
& Member of Village Panchayat Chinchpur,
R/o Dharur, District Beed. ...PETITIONER
(Ori. Accused)
versus
1. State of Maharashtra
Through Police Inspector,
Police Station : Yusuf Wadgaon,
Tq. Kaij, Dist. Beed.
2. Executive Engineer,
Rural Water Supply Division,
Zilla Parishad, Beed.
3. M.A. Thorat,
Sectional Engineer and
Incharge Deputy Engineer,
Rural Water Supply, Sub-Division,
Zilla Parishad, Beed.
4. Ashok Bhaskar Handibag,
Age : Major, Occu. Country Liquor,
(Shop) Business, R/o Chinchpur,
Tq. Dharur, District : Beed.
...RESPONDENTS
(Ori. Complainant)
.....
Mr. V.D. Salunke, Advocate for Applicant
Mr. S.G. Karlekar, APP for Respondent-State
Mr. K.B. Jadhav, Advocate for Respondent No. 2 & 3
.....
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 24th FEBRUARY, 2017.
PRONOUNCED ON : 2nd MAY, 2017
JUDGMENT :( Per : K.K. Sonawane, J.) ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {2} crwp 1222.16 f.odt 1] The petitioner moved the present petition taking recourse to Section 482 of the Cr.P.C. and Article 226 of the constitution of India, seeking relief to quash and set aside the impugned FIR bearing Crime No. 142 of 2015, registered at Yusuf wadgaon Police station, District Beed for the offence punishable under Section 409, 420, r/w. 34 of IPC against petitioner and others for the allegations of criminal breach of trust, cheating etc. by misappropriation of public funds.
2] It has been alleged that the Govt. of Maharashtra under the aegis of Central Government promulgate the scheme/project known as "Swajaldhara" to improve the ground water level and supply of water to the rural area. Accordingly, the Govt. of Maharashtra issued the Govt. Resolution dated 2nd April, 2004 and delineated the guidelines for management and implementation, disbursement of funds, monitoring and supervision etc. of the scheme. It has been contended that the scheme was made applicable to the village Chinchpur Tq. Dharur, dist. Beed. The petitioner was the member of the Gram Panchayat Chinchpur during the period 2008 to 2013. She was also elected as Upa-Sarpanch of the village for the period of 2012-13. Pursuant to the scheme/project of the Government of Maharashtra, the Rural Water Supply and Sanitation Committee ( for short "Water supply committee") at the village level came to be constituted and the petitioner was nominated as a Secretary. The estimated cost of the entire project was calculated at Rs. 37,32,450/- and it was revised to Rs. 42,76,400/-. The concerned Department of the Rural Water Supply, Zilla Parishad, Beed had also given technical sanction to the proposed estimated cost of the scheme. ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 :::
{3} crwp 1222.16 f.odt The funds of Rs. 40,63,104/- was made available to the Rural Water Supply Scheme of village Chinchpur, including the Govt. contribution as well as contribution from the public. Accordingly, the work of the proposed water supply scheme of village Chinchpur was commenced in the year 2008 and came to be completed around the year 2013.
In the month of December, 2012, there was fresh elections of the Gram Panchayat of village Chinchpur and the charge of the Water Supply Committee was given to the newly elected members of the Gram Panchayat on 25.3.2013 by the petitioner and since then the petitioner has no concern at all with the alleged scheme. However, on 10.12.2015, respondent No.3 Shri Thorat, Deputy Engineer, Rural Water Supply Sub-Division, Zilla Parishad Beed approached to the police of Yusuf Wadgaon police station and filed the impugned FIR bearing Crime No. 142 of 2015. It has been alleged that the Rural Water Supply Scheme at village Chinchpur was sanctioned by the Govt. of Maharashtra under the Bharat Nirman Programme. The estimated cost of the scheme as per the technical sanction was Rs 42,76,400/-. The total funds of Rs. 40,63,104/- was made available to the concerned scheme by way of Govt. contribution as well as contribution from the community. After completion of the entire scheme, only a sum of Rs. 1089/- was shown as balance in the bank account of the scheme. The respondent No.4 Ashok Bhaskar Handibag made allegations that there was misappropriation of public funds while implementing the Water Supply Scheme at village Chinchpur. He had also launched agitation and given threats of self-immolation for initiating action against the members of the Gram Panchayat. Therefore, ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {4} crwp 1222.16 f.odt the concerned District Collector, Beed bade for requisite enquiry into the allegations. The first informant Shri Thorat, Deputy Engineer, and his associate Shri Salunke, Sectional Engineer of Rural Water Supply Department, Zilla Parishad, Beed conducted the enquiry. They visited to the sites and carried out local inspection. The first informant Shri Thorat Deputy Engineer, forwarded the report of preliminary enquiry to the Executive Engineer, Rural Water Supply Sub Division, Beed. Thereafter, the Executive Engineer constituted a Committee of 4 members for fact finding enquiry into the allegations of misappropriation of public funds. Meanwhile, the first informant Shri Thorat was directed by the Executive Engineer, Rural Water Supply, Zilla Parishad, Beed to lodge the FIR against the petitioner and other office bearers of the Gram Panchayat for the allegations of criminal breach of trust, cheating etc. It has been alleged that during the enquiry, valuation of the work of water supply scheme was re-assessed and it was found that the approximate valuation of the work carried out under the scheme was Rs. 29,31,033/-. However, fund of Rs. 40,63,104/- was made available, out of which only Rs. 1089/- shown balance in the bank account. Therefore, the office personnel of the Zilla Parishad, Beed arrived at the conclusion that rest of the amount of Rs. 11,30,892/- was misappropriated and swindled by the office bearers of the Rural Water Supply and Sanitation Committee of village Chinchpur. The petitioner being secretary of the Committee was one of the authorized person for operating the bank account of the scheme. Therefore, the first informant Shri Thorat, Deputy Engineer, Zilla Parishad, Beed lodged the impugned FIR against the petitioner and others, the validity, ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {5} crwp 1222.16 f.odt legality and propriety of which is agitated in the present petition. 3] Shri Salunke, learned counsel for the petitioner vehemently submitted that the entire allegations made against the petitioner are totally false, baseless and frivolous. The allegations made in the FIR do not prima facie constitute any cognizable offence against the petitioner. According to Shri Salunke, the work of water supply scheme at village Chinchpur was commenced as per the letter dated 5.12.2008, addressed to the Deputy Chief Executive Engineer, Zilla Parishad, Beed as well as concerned Block Development Officer, Panchayat Samiti, Dharur. It was directed to both these authorities to monitor and supervise the work of alleged scheme sanctioned by the Government of Maharashtra for village Chinchpur. Shri Salunke submitted that as per Govt. guidelines, the work of water supply scheme was undertaken by the Gram Panchayat, Chinchpur. In view of the progress and quality of the work carried out on behalf of Gram Panchayat Chinchpur, the Govt. Authorities disbursed the installments of the funds payable for the scheme in favour of the Water Supply Committee. The assessment of the work and utilization of the funds were verified time and again by the office personnel of the Zilla Parishad, Beed. The members of the Competent committee visited to the site and conducted the local inspection of the work carried out under the scheme. There were no complaints in regard to the quality and quantity of the work of the alleged scheme. Learned counsel Shri Salunke pointed out that pursuant to the Government Resolution dated 2nd April, 2004, there was a District Executive committee headed by the chief Executive Officer, Zilla Parishad, Beed. The ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {6} crwp 1222.16 f.odt concerned District Executive Committee was to supervise and monitor the work for implementation of the scheme. It was also directed that the concerned Technical Expert from the panel of Zilla Parishad Beed, would visit to the proposed work of the scheme for verification about its quality etc. and to submit report to the District Executive Committee for requisite action. Learned counsel Shri Salunke drawn attention towards the chunk of documents, bearing signature and acknowledgement of the office personnel of Zilla Parishad Beed. He contended that the entire work of the scheme was carried out under the supervision of the office personnel of Zilla Parishad, Beed, and there was no complaint in regard to the quality of the work or misappropriation of public funds. According to Shri Salunke, the impugned FIR came to be filed due to political rivalry. He explained that the respondent No.4 was having a country liquor shop in the village Chinchpur. There were complaints against the liquor shop of respondent No.4. He is the person of criminal antecedents. Pursuant to public outcry, the Gram Panchayat of village Chinchpur has taken a decision to shut down the country liquor shop of respondent No.4 Ashok Handibag and passed the resolution to that effect in the meeting dated 15.8.2015. But, taking umbrage of the action of Gram Panchayat against the country liquor shop of respondent No.4 Ashok Handibag, he indulged in the activities to harass the office bearers of the Gram Panchayat on one or other pretext. He attempted to pressurize the officers of the Zilla Parishad for initiating action against the Gram Panchayat Chinchpur. He also made allegations of misappropriation of funds in the Water Supply Scheme by the office bearers of the Gram ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {7} crwp 1222.16 f.odt Panchayat Chinchpur. The respondent no.4 Ashok Handibag and his associates launched agitation and by scaling on the mobile tower, they gave threats of self-immolation in case no action is taken against the Gram Panchayat, Chinchpur, for misappropriation of funds in the Water Supply Scheme. Thereafter,the Executive Engineer, Rural Water Supply, Sub Division, Beed has given written assurance to the respondent No.4 for requisite action into the matter. According to Shri Salunke, the impugned FIR is a fallout of the written assurance given to respondent No.4 Ashok Handibag. He fervidly contended that the entire scheme was commenced in the year 2008 and completed in the year 2013. The newly elected members of the Gram Panchayat took over the charge of the affairs of the Water Supply Committee in the month of March, 2013. Uptill August/September, 2013, there was no complaint or grievance about the work of Water Supply scheme carried out in the village. But, after the resolution of closing down the country liquor shop of respondent No.4 in the meeting dated 15.8.2015, the entire trouble emanated for the office bearers of the Gram Panchayat, village Chinchpur. The impugned FIR is filed with malafide intention to harass the petitioner. The allegations are made with ulterior motive to wreak vengeance on the part of respondent No.4 Ashok Handibag. The allegations made in the FIR even if considered and appreciated at their face value and accepted in its entirety, do not prima facie constitute any offence against the petitioners. The office personnel of the Zilla Parishad time and again visited to the site and carried out the local inspection. After their verification, the further installments from the contribution of Government fund were disbursed in ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {8} crwp 1222.16 f.odt favour of the scheme. In such circumstances, the allegations made at belated stage after a colossal period since 2008 would not be taken into consideration and deserves to be brushed aside and ignored, being made to wreak vengeance. Therefore, the learned counsel Shri Salunke prayed to quash and set aside the impugned FIR by exercising inherent powers under section 482 of Cr.P.C.
4] In refutal, learned APP as well as learned counsel for respondent Nos.2 and 3 opposed the contentions propounded on behalf of petitioner. They submitted that the Water Supply Scheme was being implemented under the Bharat Nirman Programme of the Central Government. The work of the scheme was carried out from the funds made available from the contribution of Government as well as funds collected from the public. The total amount of Rs. 40,63,104/- was made available out of which except balance of Rs. 1089/- in the bank account, rest of the amount was shown spent for the implementation of the scheme. But, during the enquiry, the office personnel of the Zilla Parishad, Beed, made revaluation of the work carried out under the scheme and it was found that the approximate valuation of the work of the scheme was only Rs. 29,31,033/-. Therefore, the adverse inference was drawn that the concerned office bearers of the Water Supply Committee of Panchayat Samiti, Chinchpur misappropriated rest of the amount of Rs. 11,30,892/-. Moreover, the petitioner was the Secretary of the Committee and she was authorized to operate bank account of the scheme. Therefore, learned APP and learned counsel for respondent Nos. 2 and 3 vehemently submitted that the ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {9} crwp 1222.16 f.odt entire allegations made in the FIR, prima facie, constitute commission of cognizable offence of criminal breach of trust and cheating by the petitioner. Hence, it would not just and proper to invoke powers under Section 482 of Cr.P.C. to quash and set aside the impugned FIR.
5] We have carefully considered the rival submission propounded on behalf of both sides. We have also delved into the documents produced on record, including the police investigation papers. The intense scrutiny of the factual score in the light of relevant documents on record, reflects that the argument canvassed on behalf of learned counsel Shri Salunke appears considerable and sustainable one. There are attending circumstances on record which impelled us to think about the agitation of respondent No.4 which culminated in filing the FIR.
6] At the threshold, we venture to deal with some of the significant features of the scheme "Swajaldhara" implemented under the directions of the Central Government. There was an Govt. Resolution dated 2nd April, 2004 issued by the Govt. of Maharashtra for guidelines in regard to, the mode and manner of implementation of the scheme in rural area. The Government Resolution dated 2nd April, 2004 adumbrates in-built mechanism to monitor and supervise the work of the scheme to be carried out in rural area, including the guidelines for allocation of funds, etc. There were directions to constitute the Committees at State level, District level and Village level, for better management and effective supervision of the work as well as disbursement of Government funds, auditing of the accounts etc. ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {10} crwp 1222.16 f.odt There was a provision to form Core Group of professional/experts to assist the Committee for proper implementation of the scheme. The Chief Executive Officer as well as Executive Engineer, Rural Water Supply, Zilla Parishad, Beed were the Chairman and Member Secretary of the District Executive Committee comprising 15 members from various Government departments. The District Executive Committee has a managerial and supervisory power over the work of the scheme to be implemented in the rural area. The District Executive Committee is also authorized to conduct joint inspection with Village Committee and to take care about the quality and quantity of the work carried out under the scheme. There was also provision about auditing of the accounts of scheme from the approved auditor. The relevant provisions of Clause VII of the Govt. Resolution dated 2nd April, 2004 is extracted as below :-
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M½ ftYgk Lrjkojhy xq.koRrk rikl.kh f'kok; jkT; ik.kh iqjoBk o LoPNrk fe'ku Loty/kkjk ;kstus varxZr dkekaps jW.Me i/nrhus rKkaps pewekQZr ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {11} crwp 1222.16 f.odt rikl.kh djhy- ;klkBh ik.kh iqjoBk fe'ku egkjk"Vª thou izkf/kdj.k] Hkwty loZs{k.k o fodkl ;a=.kk vkf.k brj ckgsjhy ;a=.kkrhy rKkaps pew r;kj d#u R;kekQZr gh rikl.kh d#u ?ksbZy- dssanz 'kklukP;k Loty/kkjk ;kstusP;k ekxZn'kZd lwpusuwlkj o {ks= lq/kkj.kk izfdz;suqlkj ;kstukaph dkes lq# vkgsr o HkkSfrd dkekph xq.koRrk ;ksX; vkgs ;kckcrgh jkT; fe'ku dk;Zokgh djsy-
7] In such backdrop, we proceed to examine the validity and propriety of the impugned FIR for penal action against the petitioner. Admittedly, the scheme of Rural Water Supply known as "Swajaldhara" was made applicable to village Chinchpur, Taluka Dharur, Dist. Beed. The work of the scheme was undertaken by the Gram Panchayat, Chinchpur. Pursuant to the Govt. Resolution dated 2/4/2004, the Rural Water supply and Sanitation Committee (Water supply Committee) was constituted and the petitioner being member of the Gram Panchayat was nominated as a Secretary of the Water Supply committee. In order to monitor and supervise the work of Water Supply Committee, there was District Executive Committee and the Chief Executive Officer as well as Executive Engineer, Rural Water Supply Division, Zilla Parishad, Beed, were the Chairman and Member Secretary, respectively, of the Executive Committee at the District Level. The estimated cost of the scheme approved by the authority of the Zilla Parishad, Beed was 42,76,400/-. The work of the scheme was commenced in the year 2008 and completed around the year 2012-13. The chunk of documents produced on record on behalf of petitioner demonstrate that the entire work of the scheme was carried out under the supervision of the office personnel of Zilla Parishad Beed. We came across with one letter of ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {12} crwp 1222.16 f.odt the concerned Block Development Officer, Panchayat Samiti, Dharur dated 20/3/2014 (Exhibit I) addressed to the Executive Engineer, Rural Water Supply Division, Zilla Parishad, Beed who was also the Member Secretary of the District Level Committee for the scheme. In the letter, the concerned BDO categorically stated that he conducted the inspection and it was revealed that the funds allocated were all utilized for the work of the scheme and there was no irregularity or misappropriation of the funds. The concerned BDO recommended to release the last and final installment of the Govt. fund for the scheme. We have also perused the police investigation papers of the crime. There are documents showing the factual aspect that office personnel of the Zilla Parishad, Beed, time and again visited and verified the quality and quantity of the work of the scheme. We have also perused the documents of Contingency Bill sanctioned by the concerned Executive Engineer, Rural Water Supply, Zilla Parishad, Beed. He was also the Member Secretary of the District Level Committee. The Executive Engineer, Rural Water Supply, Zilla Parishad, Beed, after verification of the reports of technical experts and his office personnel etc. as well as on his own subjective satisfaction, accorded the sanction for final installment of the amount payable to the scheme. It was transpired that the Executive Engineer, allowed to pay the last installment of Rs. 14,61,326/- in favour of the scheme from the budget available for the year 2012-13. The Executive Engineer, while allocation of the last installment of the scheme, appended the certificate that after personal verification he found that the expenditure incurred for the scheme was correct and same was essential to ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {13} crwp 1222.16 f.odt be incurred for completion of the scheme. The bill was under the caption "Contingency Expenditure Bill (Form No. 29)" and the relevant extract of the said certificate appended under the signature and seal of the Executive Engineer, is reproduced as below :-
"1½ eh izek.khr djrks dh] ;k fcykar vkdjysyk [kpZ iq.kZi.ks vko';d gksrk vkf.k izR;{ki.ks dsysyk vkgs-
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4½ eh izek.khr djrks dh] ojhy fcykr lekfo"B dsysys lkeku o HkkaMkj lacaf/kr oLrq lqphoj ?ks.;kr vkys vkgs- vkf.k loZ lkekukpk o HkkaMkjpk ;FkksfprfjR;k fg'kksc ns.;kr vkyk vlqu] rs iMrkG.;kr vkysyk vkgs- 5½ eh izek.khr djrks dh] fcykr nk[koysyh [kjsnhpk eky pkaxY;k fLFkrhr feGkyk vkgs- R;k ifj.kke cjkscj vkys o R;kpk nj pkaxyk vkgs- vkf.k R;klkBh fnysys nj fLod`r o cktkjHkkokis{kk vf/kd ukghr- vkf.k nksunk jDde fnyh tkoq u;s Eg.kqu lacaf/kr eqG ekx.kh i=d o chtdkr jDde fnY;klacaf/kr uksan ?ks.;kr vkyh vkgs-
dk;Zdkjh vfHk;ark xzkeh.k ik.kh iqjoBk foHkkx] ft-i- chM D:\Ganarl File\ORDER.doc 8] At this juncture, we are conscious of the fact that it would be unjust and improper to appreciate the defence of the accused or indulge in the enquiry to ascertain the merits of the accusations. But, the documents produced on record on behalf of the petitioner/accused which are ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {14} crwp 1222.16 f.odt uncontroversial in nature and in case, such documents are considered and if it is found that the accusations against the applicants are unsustainable and improbable , in such a matter, it is incumbent and obligatory on the part of the High Court, to appreciate these documents while exercising the powrs under Section 482 of Cr.P.C. to meet the ends of justice and prevent abuse of process of law. It would be profitable to take recourse of the observations of Their Lordships of the Apex Court, in the matter of Anita Malhotra Vs. Apparel Export Promotion Council and another, reported in (2012)1 SCC 520, in para. No. 20 of said judgment are reproduced hereinbelow :-
"20. As rightly stated so, though it is not proper for the High court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code."
In view of the aforesaid observations of the Honourable Apex Court, we do not find any impediment to appreciate the documents placed on record, particularly, official documents of the Water Supply Scheme of the Zilla Parishad, Beed, as well as Government notifications for the guidelines to implement the water supply scheme in the rural area etc. Obviously, all these documents are unquestionable and beyond suspicion or doubt. Therefore, we venture to consider those documents for the enquiry in respect of the merits of the accusation and its sustainability. ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 :::
{15} crwp 1222.16 f.odt 9] As referred supra,after due verification and inspection by the authority of the Zilla Parishad, Beed, the requisite installment of Government contribution was disbursed in favour of the Village Committee for implementation of the scheme. In all, the total sum of Rs. 40,63,104/- was made available out of estimated cost of Rs. 42,76,400/- for the aforesaid Water Supply Scheme of village Chinchpur. The said amount includes both contribution of the funds by the Government and funds collected from the public contribution. It is to be noted that there were no complaints or grievances about the quality or quantity of the work of the scheme uptill the month of October, 2015 nor any Government authority of the Zilla Parishad, raised objection about the deficiency or infirmity in the work of the scheme. The petitioner categorically stated that in the year 2012-13, there were fresh elections of the Gram Panchayat, Chinchpur and she had handed over the charge of the Water Supply Committee to the newly elected members of the Gram Panchayat in the month of March, 2013. Admittedly, during the stint of the petitioner being a Secretary of the Water Supply Scheme, there were no complaints or grievances about any malpractices/misappropriation etc. in the work of the scheme. The authority of the Zilla Parishad, Beed was also found satisfied about the quality and quantity of the work carried out under the Water Supply Scheme, otherwise, there would have no disbursement of final installment of the Govt. contribution for the scheme. In such peculiar circumstances, the allegations of infirmities in the work of the scheme and thereby misappropriation of public money, after a colossal period since the year 2008, on ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {16} crwp 1222.16 f.odt commencement of the work under supervision of Zilla Parishad, Beed appears preposterous and incomprehensible one.
10] We find some force in the submissions of the learned counsel for petitioner that the impugned FIR is politically motivated and filed only to wreak vengeance against the office bearers of the Gram Panchayat, Chinchpur. The petitioner produced on record documents pertaining to the news published in daily newspaper about the agitation launched by the respondent No.4 Ashok Handibag, for initiating action against the Gram Panchayat, Chinchpur, for misappropriation of funds in the Water Supply Scheme. His complaint dated 1/10/2015 is also produced on record (Exhibit R-1) addressed to the District Collector, Beed, in which he has insisted the District Collector to take action on his complaint prior to 30/10/2015, otherwise, the villagers would resort to hunger strike in front of the Collector office, Beed. There are news paper cuttings depicting the agitation launched by the respondent No.4 and his associates by scaling on the mobile tower. They persuaded for penal action against the petitioner on the allegations of misappropriation of funds in the Bharat Nirman Scheme. There are circumstances available on record to point out that the respondent No.4 and his associates, taking umbrage of the resolution passed by the Gram Panchayat, dated 15.8.2015 to close down the country liquor shop of the respondent No.4, located in the village Chinchpur, launched agitation only with an purported motivation to harass the office bears of the Gram Panchayat. The impugned FIR appears to be a fallout of the political rivalry and filed only with an ulterior motive to wreak vengeance. ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 :::
{17} crwp 1222.16 f.odt 11] It is the settled rule of law that jurisdiction under Section 482 of Cr.P.C. has to be exercised very sparingly and with great deal of caution. It has been delineated that in exercise of its jurisdiction the High Court is not to examine the matter superficially but it is essential to be seen that the criminal proceedings are not a short-cut of other remedies available in law. Undisputedly, the inherent powers under Section 482 of the Cr.P.C. has to be exercised to prevent abuse of process of any court of law, or otherwise to secure the ends of justice. In the case of State of Karnataka Vs. L. Muniswamy, reported in 1977 Cri.L.J. 1125, the Hon'ble Supreme Court has laid down that in the exercise of the wholesome powers under Section 482 of the Code, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of process of the court of law or that the ends of justice require that the proceedings are to be quashed.
12] In the matter of State of Haryana vs. Ch. Bhajanlal and others AIR 1992 SC 604, in para.104, it has been observed as below :-
104. Speaking for the Bench, Ranganath Mishra, J. as he then was in Madhavrao Jiwaji Rao Scindia V. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 : (AIR 1988 SC 709) has expounded the law as follows : (at p.711 of AIR) " The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {18} crwp 1222.16 f.odt particular case to consider whether it is expedient and in the interest of justice is permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage."
13] We would like to reiterate that apparently from the evidence on record, an inescapable conclusion can be drawn that prior to complaint dated 1/10/2015 filed by respondent No.4, there were no grievances about the poor quality, use of sub-standard material, or work being in-complete etc, but after the resolution dated 15 th August, 2015, passed by the Gram Panchayat Chinchpur thereby closing the country liquor shop of respondent No.4, allegations cropped up against the office bearers of the Gram Panchayat for misappropriation of funds in the Water Supply Scheme. 14] We are at our wit's end that when the work of water supply scheme was carried out under the supervision and inspection of the authority of Zilla Parishad, Beed, as contemplated under the guidelines of Govt. Resolution dated 2/4/2004, in such circumstances, how the authority of the Zilla Parishad would itself lodge the impugned FIR against the Gram Panchayat authority. The entire work was executed under the directions of the office personnel of the Zilla Parishad, Beed, itself. The action of impugned FIR appears absurd and illogical one. There was condition under Clause 7 of the Govt. Resolution dated 2/4/2004 that no installment be ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {19} crwp 1222.16 f.odt allowed to be disbursed in case of any infirmity in the work. In the instant case the Executive Engineer, Zilla Parishad, Beed allowed the Contingency Bill from the budget of the year 2012-13 and disbursed the final installment in favour of village committee. These circumstances would constrain to conclude that all the work of scheme was carried out as per norms of the Government and, therefore, last installment was paid for the scheme. 15] Moreover, we are at a loss to understand that for what purpose the Executive Engineer, Rural Water Supply Division, Zilla Parishad, Beed who was himself the Member Secretary of the District Executive Committee for the scheme, proceeded to constitute a Committee of 4 office personnel of the Zilla Parishad, for re-assessment of the work of the scheme. It is to be noted that the technical sanction for estimated cost of the scheme was Rs. 42,76,400/- and after due verification and inspection of the quality and quantity of the work carried out under the scheme, the installments of the funds from Govt. contribution were released and disbursed in favour of the Water Supply Committee. Under such circumstances, when the entire documents of measurement, its valuation as well as report of Technical Experts of the work of scheme, all were available in the office of the Executive Engineer, Zilla Parishad, Beed, then for what reason the Executive Engineer felt it necessary to conduct revaluation of the work of scheme. The constitution of committee of office personnel of the Zilla Parishad once again for enquiry into the matter, appears inexplicable and paradoxical one. It would hard to appreciate that the valuation done in the year 2015-16 of the work of scheme completed long back would give correct data for ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {20} crwp 1222.16 f.odt inference of misappropriation of public funds. It would cumbersome to appreciate the enquiry report of the Zilla Parishad personnel as conclusive proof for adverse inference against the petitioner. In such circumstances, the allegations of misappropriation of funds against petitioners appears to be detrimental, prejudicial causing injustice to her. Therefore, the penal action initiated by filing the impugned FIR cannot be considered as legal, proper and within the ambit of law. The circumstances demonstrate that the impugned FIR came to be filed after agitation of Respondent No. 4 which was launched with purported motivation to vent wrath. The entire attempt of respondent No.4 is evidently to rope in all office bearers of the Gram Panchayat, concerned with the implementation of scheme in the village during the period 2012-13. It would be an abuse of process of law. The documents of the Water Supply Scheme of the office of Executive Engineer, Zilla Parishad, Beed and the resolution of Gram Panchayat to shut down the country liquor shop of the respondent No.4 speaks volume. Therefore, there is no impediment to draw the inference that the invoking of jurisdiction of the criminal court in this case is an abuse of process and not permissible under the law. The disgruntled respondent No.4 cannot be allowed to vent his wrath by making the authority of Zilla Parishad, Beed to file impugned FIR against the petitioner.
16] At this stage, we would like to make a reference of various kinds of cases wherein the powers under Section 482 of Cr.P.C. and under Article 226 of the Constitution of India are permitted to be exercised, as per the guidelines delineated in the case of State of Haryana vs. Ch. Bhajanlal ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {21} crwp 1222.16 f.odt and others reported in AIR 1992 SC 604. Their Lordships of the Apex Court, in para. No. 108, which read thus :-
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {22} crwp 1222.16 f.odt Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
17] In the above premises, we have no hesitation to exercise the inherent powers under Section 482 of the Cr.P.C. in favour of petitioner. We are of the considered opinion that the impugned FIR is an abuse of process of law as same is filed with malafide intention to harass the petitioner as well as with ulterior motive to vent wrath owing to criminal action already initiated against respondent No.2. It is expedient in the interest of justice ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {23} crwp 1222.16 f.odt not to allow prosecution to continue against the petitioner. There was an in-built mechanism available for sanction & disbursement of the funds for implementation of the scheme in the rural area. It seems that initially the impugned FIR is filed against the office bearers of the Gram Panchayat and technical service provider only, but, lateron, I.O. arraigned the concerned Deputy Engineer and Sectional Engineer of the Rural Water Supply, Sub Division, Beed as accused in this case. But, we find that the petitioner cannot be made scapegoat for the allegation of misappropriation of funds after a colossal period since year 2008. The penal action initiated against the petitioner appears to be unsustainable and misconceived one. Therefore, the impugned FIR deserves to be quashed and set aside to the extent of petitioner in this case. In case, higher authority of the Government found that there was some mischief played pertaining to public fund or infirmity in the quality of the work, and the petitioner is responsible for the same, the civil action for recovery of the amount, if any, could have been undertaken against the delinquent petitioner. At this juncture, the circumstances on record demonstrates that impugned penal action is not sustainable and maintainable against the petitioner within the purview of law. Hence, we find no impediment to allow the petition and quash and set aside the impugned FIR to the extent of petitioner - Smt. Sukamal Dhondiram Sakhare. We make it clear that the observations made hereinabove, are prima-facie in nature and considered only to the extent of role of the petitioner in this crime and confined to the present petitioner only. Needless to state that the other co-accused in this crime are not entitled to derive any sort of benefit ::: Uploaded on - 03/05/2017 ::: Downloaded on - 04/05/2017 00:32:25 ::: {24} crwp 1222.16 f.odt from the observations made hereinahove.
17] For the aforesaid reasons, writ petition stands allowed. Rule is made absolute in terms of prayer clause (B). The impugned FIR is quashed and set aside. Writ petition stands disposed of accordingly.
[K.K.SONAWANE] [S.S. SHINDE]
JUDGE JUDGE
grt/-
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