Madhya Pradesh High Court
Dinkar Krishna Rokade vs The State Of Madhya Pradesh Through ... on 19 February, 2018
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
M.Cr.C.No.3915/2018
(Dinkar Krishna Rokade Vs. State of M.P.)
Indore, Dated 19.02.2018
Shri Lucky Jain, learned counsel for the applicant.
Shri Anand Soni, learned counsel for the
respondent/Lokayukta.
By this petition under Section 482 of Cr.P.C.,1973, the petitioner is challenging the order dated 26.11.2012, passed by learned Special Judge, (Prevention of Corruption Act) Mandsaur, Annexure P-2.
Learned counsel for the respondent submits that the order dated 26.11.2012 has been considered earlier in Cr.R.No.227/2013 decided on 11.08.2016. He also submits that recalling the final order dated 11.08.2016 was dismissed vide order dated 07.10.2016 passed in M.Cr.C.No.10187/2016.
The order dated 11.08.2016 passed in Cr.R.No.227/2013 reads as under:-
"None for the applicant.
Shri Anand Soni, learned counsel for the respondent.
The present revision has been filed by the applicant under Section 397 of the Code of Criminal Procedure, 1973 being aggrieved by order dated 26/11/2012 passed by learned Special Judge (P. C. Act), Mandsaur in Special Case No.02/2006 by which charges have been framed against the present applicant.
The facts of the case reveal that earlier in the same trial, an order was passed on 25/09/2007 by the learned Special Judge discharging the accused persons from the charges under Section 13(1)(d), 13(2) and 15(2) of the Prevention of Corruption Act, 1988 read with Section 120-B of the Indian Penal Code. The order of discharge was challenged by State of Madhya Pradesh through Special Police Establishment, Lokayukt Office, Ujjain and this Court by an order dated 25/08/2010 has set aside the order of discharge passed by the trial Court dated 25/09/2007. Paragraphs No.17 to 23 of the aforesaid judgment reads as under:-
"17/ In the case at hand on 14.9.1998 non- applicant no.1 Shri Rokde took charge and on the same day he issued notice to contractor for completion of work according to specifications, meaning thereby, up to that time work was not completed as per specifications then how and on what basis Shri Rokde had given work completion report on the very next day i.e. on 15.9.1998. This fact speaks volume and allegation levelled by the prosecution appears prima facie correct that Shri Rokde and other engineers and officers of the department, against whom department has not given sanction to prosecute them, hatched conspiracy with contractor non applicants no.2 and 3 for giving false and incorrect work completion report to collect toll tax. If road was not completed as per specifications, how it could be permitted to be used by the public and as to how toll tax could be recovered from the public. Toll tax could have been recovered from the users of the vehicles on the said road when road was completed as per specifications.
18/ It is trite law that "merely because remedy by way of civil suit is available, is not a impediment in maintaining a criminal complaint provided the complaint discloses the ingredients of the offence alleged". When somebody suffers injury to his person, property or reputation; he may have remedies both under civil and criminal law and the same is legal position when act is committed against the State. In case of Indian Oil Corpn. V. NEPC India Ltd. [2006(6) SCC 736]. Supreme Court has elaborately considered the above mentioned principle and observed as under :-
"The respondents thereupon filed petitions under Section 482 CrPC for quashing the said two complaints on the following grounds:
(i) The complaints related to purely contractual disputes of a civil nature in respect of which IOC had already sought injunctive reliefs and money decrees.
(ii) Even if all the allegations in the complaints were taken as true, they did not constitute any criminal offence as defined under sections 378, 403, 405, 415 or 425 IPC.
The High Court by a common judgment allowed both the petitions and quashed the two complaints. It accepted the second ground urged by the Respondents herein, but rejected the first ground. The said order of the High Court is under challenge in these appeals. On the rival contentions urged, the following points arise for consideration :
(1) Whether existence or availment of civil remedy in respect of disputes arising from breach of contract, bars remedy under criminal law?
(2) Whether the allegations in the complaint, if accepted on face value, constitute any offence under sections 378, 403, 405, 415 or 425 IPC ?
Held :
A given set of facts may make out :
(a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The best is whether the allegations in the complaint disclose a criminal offence or not. (Para 12) In this case, it is no doubt true that IOC has initiated several civil proceedings to safeguard its interests and recover the amounts due. These acts show that civil remedies were and are available in law and IOC has taken recourse to such remedies. But it does not follow therefrom that criminal law remedy is barred or IOC is estopped from seeking such remedy.
(Para 15) The respondents, no doubt, have stated that they had no intention to cheat or dishonestly divert or misappropriate the hypothecated aircraft or any parts thereof. But these are defences that will have to be put forth and considered during the trial. Defences that may be available, or facts/aspects when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At this stage, we are only concerned with the question whether the averments in the complaint spell out the ingredients of a criminal offence or not. (Para 16) The High Court was, therefore, justified in rejecting the contention of the respondents that the criminal proceedings should be quashed in view of the pendency of several civil proceedings. (Para 17) [Also see: Shri Vishnu Dutt Sharma V. Smt. Daya Sapra [JT 2009 (13) SC 44].
19/ In the light of aforesaid legal preposition, in the instant case at the most it can be said that Division Bench of HighCourt has decided the contractual/civil dispute between the party, which does not mean that respondents have been exonerated by the High Court if prima facie criminal case for the above mentioned offences, on the basis of material available in the charge sheet, is made out for prosecution. This position is also clear on the basis of observation made by learned Single Judge in W.P.No.1615/1998 in internal page no.9:-
"It is further clarified that the Hon'ble Lokayukt would be free to complete the enquiry and investigation as it may deem fit in the facts and circumstances of the case. This order should not be treated as creating any impediment in completion of the investigation/enquiry by the Hon'ble Lokayukt."
20/ The material available in the charge sheet that in a very short period the construction of by-pass road was shown to be completed, which was not possible and inferior quality of material was used which is clear from the several analysis reports of experts. Work was not done according to specifications, several kind of breaches were committed by the contractor, and concerned officers/engineers of the department were keeping their eyes closed. If anonymous complaint would have not be received by Lokayukt office, the preliminary enquiry would have not been done. After doing enquiry when Lokayukt police found substance, registered the crime and detailed investigation was done but charge sheet could not be filed against non applicant no.1 Shri Rokde and other non applicants because sanction was not granted by the department for the reasons best known to the department. It is clear in the instant case that at one place department levelled allegations against Shri Rokde and same is also prima facie applicable against other engineers and officers, who were in-charge in time to time of by- pass road and did not take care and effective steps. Lokayukt police waited for filing charge sheet, and the moment non applicant no.1 Shri Rokde retired, charge sheet was filed against the non applicants for the above mentioned offences. Therefore, investigating agency cannot be held responsible for delay in investigation. Apart from this, delay simplicitor would not be sufficient to quash the criminal proceedings, specially in the factual position involved in the instant case, wherein to collect evidence several setps had been taken i.e. samples of material were taken and same were sent to laboratory examination. For all these purposes a detailed report has been submitted in the charge sheet by the investigating agency. In this view of the matter, the decision rendered by Supreme Court relied upon by learned counsel for the non applicants in case of Panakj Kumar (supra), has no application in the instant case. There is no dispute regarding scope and ambit of Section 227 of the Criminal Procedure Code, as discussed in case of Prafulla Kumar (supra). The factual matrix of case of Sheetla Sahai (supra) is altogether different than the case at hand. In the case at hand, non applicant no.1 Shri Rokde joined on 14.9.1998 and issued notice on the same day to the contractor to complete the work as per terms & conditions of the contract and specifications, and on very next date i.e. 15.9.1998 issued the work completion report giving entitlement to non applicants no.2 and 3 to collect toll tax.
21/ Learned trial Court while discharging the non applicants, has not at all considered the above mentioned legal and factual position and acceded the argument of learned counsel for the non applicants herein that no toll tax was collected and if collected, same was collected on the basis of order/orders passed by High Court, therefore, offence, as alleged, would not be made out against the non applicants. Learned trial Court has not, at all, discussed about offence punishable under Section 15 of the Act, punishment for attempt to commit an offence referred to in Clause 'C' or Clause 'd' of sub-section '1' of Section '1' of Section '13' of the Act.
22/ It is pertinent to mention here that probably if an anonymous complaint would have not been received by the Lokayukt police, the respondent no.2 and 3 would have started collection of toll tax on the basis of work completion certificate given by respondent no.1 Shri D.K.Rokde, and respondents no.2 and 3 would have not filed writ petition in the High Court.
23/ On the basis of above mentioned legal and factual analysis, in the considered opinion of this Court impugned order of discharge of non applicants herein is not sustainable, therefore, same is hereby set aside. Non applicants are directed to appear before the trial Court on 28.9.2010, and trial Court is directed to proceed further in trial in accordance with provisions of law."
Meaning thereby, from bare perusal of the aforesaid judgment delivered by the Division Bench of this Court it is evident that the Division Bench was of the opinion that the discharge on the part of the learned Special Judge was improper and the same has been set aside. Now the present applicant has came before this Court against order framing the charges.
In light of the detailed order passed by the Division Bench earlier, we are of the considered opinion that the second revision again, in respect of charge, is not at all maintainable especially in light of the fact that the Division Bench of this Court has already held that the discharge by the trial vide order dated 25/09/2007 is bad in law.
Accordingly, the admission is declined."
The petitioner challenged the impugned order earlier also and similar proceedings were initiated and after passing of the final order dated 25.08.2010 in Cr.L.R. No.05/2008 an SLP was filed which has been dismissed on 15.09.2015.
Considering the aforesaid, no case for interference in the impugned order as prayed for is made out. M.Cr.C.No.3915/2018 is dismissed.
C.C.as per rules.
(P.K.JAISWAL) (VIRENDER SINGH )
JUDGE JUDGE
RJ/
Digitally signed by Reena
Joseph
Date: 2018.02.21 11:24:24
+05'30'