Jharkhand High Court
Om Prakash Singh vs State Of Jharkhand Through Vigilance on 14 June, 2013
Author: R. R. Prasad
Bench: R.R.Prasad
In the High Court of Jharkhand at Ranchi Cr.M.P.No.2054 of 2012 Om Prakash Singh.......... ...........................Petitioner VERSUS State of Jharkhand through Vigilance .......Opposite Party CORAM: HON'BLE MR. JUSTICE R.R.PRASAD For the Petitioner : Mr.B.P.Pandey, Sr. Advocate For the Vigilance :Mr.Shailesh, Advocate 14/ 14 .6.13. This application has been filed for quashing of the FIR of Khunti P.S. Case no.114 of 2010 (Special Case No.61 of 2010) instituted under Sections 161, 406, 409, 420, 457, 468, 471/34 of the Indian Penal Code and also under Section 7/13(i)(d) of the Prevention of Corruption Act.
It is the case of the prosecution that the Department of Health, Medical Education and Family Welfare allotted a sum of Rs.340 lakhs in the financial year 2008-09 for upgrading Primary Health Centre, Arki as community Health sub Centre. For extending the said project, Executive Engineer, Rural Development Special Division, Ranchi -cum-Khunti was nominated as executing agency. The Executive Engineer was to be assisted by Rajendra Kumar Jain, Assistant Engineer and Ram Binod Prasad Sinha, Junior Engineer. For executing the work, Executive Engineer did transfer a sum of Rs.98.90 lakhs as an advance to Rajendra Kumar Jain, Assistant Engineer. However, on verification of the work by the special inspecting team constituted under the order of the Deputy Commissioner, Khunti, it was found that the work only worth Rs.28.59 lakhs had been done and rest of the amount of Rs.70.31 lakhs had not been accounted for and therefore, it was suspected that the said amount has been misappropriated by the Assistant Engineer and the Junior Engineer of the Rural Development Special Division, Ranchi-cum- Khunti. On such allegation, case was registered against these persons.
The matter was taken for investigation. Having investigated the matter, the police submitted charge sheet against Ram Binod Prasad Sinha, the then Junior Engineer but at the same time investigation was kept open with respect to other accused persons.
Since according to learned counsel appearing for the petitioner, name of the petitioner got transpired in course of investigation, this application was filed for quashing of the FIR as the petitioner, who at the relevant point of time was posted as Assistant Engineer had nothing to do with the misappropriation of the amount, if any.
Mr.B.P.Pandey, learned Sr. counsel appearing for the petitioner submitted that when a sum of Rs.98.90 lakhs was advanced to the Assistant Engineer on 1.8.2009, the petitioner was posted at the time as Assistant Engineer, who subsequently got transferred to other place and handed over the charge on 11.11.2009 but before handing over the charge, the petitioner had transfered the said amount of Rs.98.90 lakhs in the account of Ram Binod Prasad Sinha, Junior Engineer for the purpose of completion of the work. Accordingly, the then Junior Engineer acknowledged receipt of the said amount by issuing a receipt. When the petitioner got transferred from that project, one Rajendra Kumar Jain, Assistant Engineer was deputed at the place of the petitioner and as such, responsibility shifted upon him to execute the work.
In this respect, it was further submitted that when the petitioner was posted as Assistant Engineer, work worth Rs.16,88,039.37 had already been done and that apart, materials worth Rs.18,36,346/- had been purchased by the Junior Engineer, entry of which had been made by the petitioner in the measurement book but the committee while estimating the valuation of the work as Rs.28.59 lakhs did not take into account the valuation of the material which was lying over the site.
Thus it was submitted that in the aforesaid circumstances, it is evident that the work was done worth Rs.16,88,03,937/- and the material was purchased worth Rs.18.36,346.32, till the petitioner was posted there and therefore, after transfer of the petitioner if anything wrong was done, the petitioner cannot be held guilty for that.
In this regard, it was further pointed out that on account of misappropriation of the amount of the instant project and also of other projects, one case had earlier been lodged as Kotwali P.S. Case no.411 of 2010 and during investigation, it got transpired that it was Ram Binod Prasad Sinha, Junior Engineer, who was responsible for misappropriation of the amount advanced to him for executing different schemes and probably in this eventuality, when the instant case was lodged, the petitioner was not made named accused. However, during investigation the petitioner is being suspected to have also committed the offence, though from the fact stated above, it is quite evident that all the money which was entrusted to the petitioner had been transferred to the Junior Engineer and thereby necessity arose for filing this application wherein prayer has been made to quash the FIR so far it relates to the petitioner.
Further submission is that when information was received that lakhs and lakhs rupees have been misappropriated by the Junior Engineer, Ram Binod Prasad Sinha which had been advanced to him for executing several projects including the instant project, a case was registered as Kotwali P.S. Case no.411 of 2010 in which charge sheet has already been submitted but no culpability was found of the petitioner in the instant case. Subsequently, for the same subject matter, instant case has been filed which cannot be maintained in view of the decision rendered in a case of T.T.Antony vs.State of Kerala and others reported in [(2001) 6 SCC 181] and also in a case of Babubhai vs. State of Gujarat and others reported in [(2010)12 SCC 254].
Thus, it was submitted that since both the FIRs relate to the same transaction, second FIR cannot be maintained and hence, on this ground also the FIR is fit to be quashed.
As against this, Mr. Shailesh, learned counsel appearing for the Vigilance by referring to the statements made in the counter affidavit submitted that for converting Primary Health Centre, Arki into a community Health Centre, a sum of Rs.98,90,000/- was allotted to this petitioner, who at the relevant point of time was posted as Assistant Engineer but during verification, it was found that the work worth Rs.28,59,000/- has only been done and thereby it has been alleged that a sum of Rs.70,31,000/- has been misappropriated .
In this regard, it was further submitted that for execution of the said project, money spent for construction of boundary wall has been shown as Rs16,88,039.00 and for building it has been shown as Rs.18,36,346/- total being Rs.35,24,369.00 which after deduction of royalty of Rs.38,915/- comes to Rs.34,85,450/- and if amount is deducted from the amount advanced, balance comes to Rs.64,05,165/- which has remained unadjusted and this is the amount which has been misappropriated by the accused persons.
It was further submitted that whatever vouchers have been produced for showing purchase of the materials those vouchers have been found to be forged and therefore, the Investigating Officer has been directed to make investigation in other direction also. Thus, it has been submitted that the fact of the case is as such that FIR never warrants to be quashed.
Having heard learned counsel appearing for the parties and on perusal of the record, it does appear that the petitioner has come forward with his case that money on being received for executing the work for the project, some construction work worth Rs.16,88,03,937/- was done whereas a sum of Rs.18,36,346.32 was spent in purchasing the materials and thereupon the petitioner got transferred and before he was transferred, money which had been advanced had been given to the Junior Engineer. However, the case of the prosecution as has been put forth on behalf of the Vigilance is that some work during tenure of this petitioner was done and the building material has also been claimed to have been purchased but at the same time, it has been alleged that for showing purchase of the building materials, vouchers have been produced which have been found forged.
In such situation, whatever plea has been advanced on behalf of the petitioner for showing the petitioner to be innocent cannot be accepted at this stage, particularly when the matter is still under investigation.
So far other point relating to lodgment of the case on the same set of allegation is concerned, it be stated that it has been held in a case of Babubhai vs. State of Gujarat and others (supra) that if the allegations are the same in both the FIRs, second FIR is liable to be quashed when it is being found on looking to the allegation made in both the FiRs to be the same. Here in this case, copy of the FIR of Kotwali (Ranchi ) P.S case no.411 of 2010 never seems to have been brought on record, though charge sheet submitted in the aforesaid case has been brought on record but from the charge sheet it is not at all discernable that the allegation made in the case was the subject matter for investigation in other case.
In this regard it be stated that during hearing of the case, carbon copy of the case diary of Kotwali P.S. Case no.411 of 2010 was produced. Perusal of the same and also on perusal of charge sheet, it does appear that the case is confined mainly to other project. In that event, it can be said that the situations are not as such which calls for quashing of the instant FIR.
Accordingly, I do not find any merit in this application. Hence, it is dismissed.
( R. R. Prasad, J.) ND/