Gujarat High Court
Harsh Rajendrakumar Patel vs State Of Gujarat on 24 July, 2023
NEUTRAL CITATION
R/CR.MA/990/2021 ORDER DATED: 24/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 990 of 2021
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HARSH RAJENDRAKUMAR PATEL
Versus
STATE OF GUJARAT
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Appearance:
A S TIMBALIA(7372) for the Applicant(s) No. 1
MR RAJESH H SAHJANI(5376) for the Respondent(s) No. 2
MR DHAWAN JAYSWAL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 24/07/2023
ORAL ORDER
1. Rule returnable forthwith. Mr. Dhawan Jayswal, learned APP waives service of notice of rule for respondent no.1 - State.
2. By way of this application, the present applicant - original accused has prayed for the following reliefs:-
26(A) may be pleased to admit this Criminal Misc. Application.
(B) may be pleased to allow this Criminal Misc. Application by quashing and setting aside the complaint registered as C.R. No.11204017200711/2020 registered with Chaklasi Page 1 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined Police Station, Dist,:Kheda arising out of the same complaint filed at Annexure-A before Kuwadawa Police Station, Rajkot by complainant qua the present petitioners in the interest of justice.
(C) pending admission, hearing and till final disposal of this petition, may be pleased to grant stay as to further proceedings of complaint filed by complainant as C.R. No.11204017200711/2020 registered with Chaklasi Police Station, Dist,:Kheda qua the present petitioners in interest of justice.
(D) grant such other and further relief(s) as deemed just and proper by this Hon'ble Court in the interest of justice;
(E) be pleased to dispense certified copy of FIR due to court campus still for outbreak of COVID-19 in the interest of justice.
3. The brief facts of the present case are as under:-
3.1 As per the FIR, the work of beautification of the pond constructed at Chaklasi was entrusted by work order dated 30-4-2018 to Fuldevi Krupa Construction Surat under the Government's unique identity scheme, which work was running till 12-8-2018. The office of the Regional Commissioner Municipality, Ahmedabad Zone has inspected Page 2 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined work done by construction company from 17-10-2020 to 21-
10-2020. Pursuant to that, a report was made during the investigation and the Regional Commissioner, Ahmedabad Zone vide letter No.Pr.K.K. SJMMSPY (Foreign Identity) Chaklasi 2020/1719 dated 7-11-2020 ordered for filing a complaint regarding the irregularities found during the investigation in writing that the following administrative and technical deficiencies have been found regarding the construction of beautification of the lake constructed at Nadiad Dist.Kheda under the Swarnim Jayati Chief Minister Urban Development Scheme (Foreign Identity) at Chaklasi. 3.2 That Kuldevi Krupa Construction, Surat was awarded the tender for the work of beautification of this lake. In this work, the payment for an amount of Rs.53,75,923.14 was received inspite of the work of PCC-1.4.8; 2385.80g/km was not done and the work of stone pitching is uneven and the work of paver block is not in the line level, so many places are currently getting waterlogged due to uneven work. RCC columns are exposed instead of pond water cover. The previously constructed masonry wall as well as the soil Page 3 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined foundation and the earlier soton pitching have been eroded. At some places in the retaining wall, the cover of the pole is not kept as per rules, which means that the work appears to be largely of low quality. Therefore, a financial loss of Rs.15 lakh has been caused to the Government.
3.3 Also, according to the tender clause, the said work was not done by Kuldevi Kripa Construction Surat within the time limit and the penalty of 226 days was obtained without deducting Rs.25,99,719. Kuldevi Kripa Construction has extorted money by doing low quality work. 3.4 Therefore, the quality of work of pond constructed assigned to the Kuldevi Krupa Construction Surat was not according to the tender and was not done within the time limit. And Municipal Engineer Mr. Harsh Patel did not supervise the work despite he has instructed for supervision of this construction. Even though the work was not done properly and not measured property, the Kuldevi Krupa Construction Agency did not pay the penalty money C.C.Patel & Associates Private Limited Engineering Consultancy Page 4 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined Services of Ahmedabad did not show any wrongdoing in the work even during their third party inspection and therefore, a criminal complaint has been filed against all those persons, who have helped each other in committing the crime by defrauding and criminal dishonesty by causing loss to the Goovernment money for their own financial benefits.
4. Heard Mr. A.S. Timbalia, learned advocate for the applicant; Mr. Hardik Muchhala, learned advocate on behalf of Mr. Rajesh Sahjani, learned advocate for the respondent no.2 and Mr. Dhawan Jayswal, learned APP for the respondent no.1 - State.
5. Mr. Timbalia, learned advocate for the applicant has submitted that the FIR is filed after two years of the date of incident. Though the complainant is tried to give some justification in the FIR by stating that it is sent for approval of the Regional Commissioner, the delay of said two years to- much considering the totality of facts and circumstances of the case. He has further submitted that the complainant is also the Chief Officer, this factum itself is required to be Page 5 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined considered while considering the aspect of genuineness of such FIR filed against the present petitioner and Construction company and also, third party, no other persons are implicated as party as accused in the said CIR. He has drawn my attention towards various communications and notes put up by him, during discharging his duty and by objecting the entitlement of the contractor for such payment. He has further drawn my attention towards the aspect of Municipality, who has passed the circular resolution by directing to pay the amount of the work carried out by the accused no.1 company and pursuant to that, the payment was made, though, as per the submission made by Mr. Timbalia , the present petitioner has objected the same on earlier occasion and he has not played any active role in the alleged offence. He further submitted that the appointment of the petitioner is temporary in the Municipality and he is not permanent employee. Therefore, he has falsely implicated in the offence registered under the provisions of Sections-406, 409, 420 and 114 IPC, as no ingredients are satisfied against him. Therefore, he prays that if the proceedings is continued pursuant to the alleged FIR, it will amounts to abuse of Page 6 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined process of law. Therefore, in view of the judgment of Hon'ble Apex Court in the case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604, this is fit case where this Court should exercise the discretionary power under Section-482 of Cr.P.C.
6. Per contra, Mr. Hardik Muchhala, learned advocate on behalf of Mr. Rajesh Sahjani, learned advocate for the respondent no.2 has drawn my attention towards the affidavit filed by the Chaklasi Nagarpalika and submitted that prima- facie offence is made out against the present petitioner as the petitioner has not repaid the penalty of Rs.25,69,719/-. He further submitted that the petitioner has also fulfilled his duty by denying the bills twice and when the body of the Municipality has passed with unanimous resolution under Section-45D of the Gujarat Municipalities Act had decided and instructed the deponent to pay the bills to the agency and therefore, the petitioner has no other alternative, but to follow the instructions of President of Chaklasi Nagarpalika. This avermentm itself is sufficient to consider the case of the present petitioner as petitioner has to follow the instructions Page 7 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined received, more particularly, he as to obey the direction given by the general body.
7. Mr. Jayswal, learned APP has submitted that present petition is filed with a prayers that the person, who is In- charge, has carried out the inspection for the work done by the accused no.1, where, he failed to discharge his duties and therefore, with a view to cover up his lacuna, he has made necessary remarks or comments or communication as indicated by the learned advocate for the petitioner. As such he is also equally responsible for offence committed by the construction company. Therefore, Mr. Jayswal, learned APP has submitted that prima-facie case is made out against the present petitioner and therefore, this Court should not exercise power under Section-482 of Cr.P.C. which should be exercised very sparingly.
8. I have considered rival submissions made at the bar. I have also considered the fact that the appointment of the petitioner is on a temporary basis. It also transpires that at the relevant point of time, the petitioner has raised objection Page 8 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023 NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined by putting notes or by making remarks regarding the payment of bills. However, thereafter the General Body of the Municipality has passed circular/resolution dated 13.08.2019 by which it is directed to pay amount to the accused no.1 company. It also transpires that from the affidavit of the complainant itself, it reveals that even the Chief Officer has no other option after raising such objection about the payment in view of the resolution passed by the General Body of Municipality and therefore, it cannot be said that the petitioner has any criminal intention and/or he is having involvement in the commission of offence. On the contrary, it transpires that while discharging his duty, he tried to point out the lacuna in the execution of work by raising objection regarding the payment of bills at the relevant point of time and therefore, the FIR, which is lodged against the present petitioner is not tenable in the facts and circumstances of the case and in eye of law. Therefore, this is fit case, where the Court should exercise its inherent power under Section-482 of Cr.P.C. to prevent the abuse of process of law in view of judgment of Hon'ble Apex Court in the case of State of Haryana Vs. Bhajanlal reported in AIR 1992 SC 604. Page 9 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023
NEUTRAL CITATION R/CR.MA/990/2021 ORDER DATED: 24/07/2023 undefined
9. In the result, this application is allowed. The F.I.R. being C.R. No.11204017200711/2020 registered with Chaklasi Police Station, Dist,:Kheda, is hereby ordered to be quashed qua the applicant herein. All consequential proceedings pursuant thereto shall stand terminated.
Rule is made absolute to the aforesaid extent. Direct service is permitted.
(SANDEEP N. BHATT,J) A. B. VAGHELA Page 10 of 10 Downloaded on : Sat Sep 16 22:37:49 IST 2023