Jharkhand High Court
Vijay Kumar Sinha vs State Of Jharkhand on 20 June, 2007
Equivalent citations: [2007(4)JCR318(JHR)], 2008 CRI. L. J. (NOC) 301 (JHAR.) = 2008 (1) AIR JHAR R 85, 2008 (1) AIR JHAR R 85, (2007) 3 JLJR 457, (2007) 4 JCR 318 (JHA)
Author: D.G.R. Patnaik
Bench: D.G.R. Patnaik
JUDGMENT D.G.R. Patnaik, J.
1. Petitioner has prayed for quashing the entire criminal proceeding, which was initiated on the basis of the case registered at Latehar Police Station, vide Latehar P.S. Case No. 66 of 1998 corresponding to G.R. No. 194 of 1998 presently pending in the court of Chief Judicial Magistrate, Latehar. The F.I.R. was lodged on 26.7.1998 and the case was registered for the offences under sections 420,409,467,468 and 471 IPC.
2. Two main grounds have been advanced in support of the prayer. The first ground is that none of the offences for which the case was registered, is made out against the petitioner even on a bare reading of the allegations in the F.I.R. and the second ground is that the informant has suppressed material facts knowingly and intentionally with mala fide intention to cause undue harassment to the petitioner. A third ground, which has also been advanced, is that the order of cognizance is totally bad in law, as because no prior sanction for prosecuting the petitioner for the alleged offences was obtained from the competent authority.
3. Pacts of the case in brief is that during the period between 1990-1993 petitioner was posted as a Divisional Forest Officer at the State Trading Division-II Latehar and during his tenure in office, he had defalcated a sum of Rs. 12,33,995.02 in between 2.1.1990 to 28.12.1993 by issuing 57 permits for supply of timber to various purchasers and consumers and from whom, he had realized money by way of cash and Bank drafts against sale proceeds of the limber, but he did not deposit the money in the Government Treasury. It is further alleged that in order to evade detection, petitioner had illegally retained the records including the bank draft register and the consumer files and even after his transfer from station, petitioner continued to retain the same refusing to surrender the same when demanded by the informant at the time of the petitioner's transfer from the station and even thereafter. The consumer's files were dishonestly obtained from the concerned Foresters in charge of the forest depots and retained by him with intent to manipulate the entries therein. The case was initially investigated by the police of Latehar Police Station and later, investigation was taken up by the State Vigilance Department and yet later, the investigation was entrusted to the C.I.D., who after concluding the investigation, had submitted charge sheet on 30.6.2005 recommending trial of the petitioner for the aforesaid offences and on the basis of the charge sheet, learned court below proceeded to take cognizance of the offences vide its order dated 18,08.2005.
4. Elaborating grounds advanced, Shri A.K. Sahani, learned Counsel for the petitioner, submits that even according to the allegations in the F.I.R., admittedly the petitioner had demitted his office at Latehar in the month of December 1993, where-after he had joined another place of posting and had continued to discharge his duties without any blemish and yet, during the entire period of more than five years prior to the lodging of the F.I.R., no illegality or defalcation of any amount on the part of the petitioner was ever found in course of the annual audits of the Accounts. Learned Counsel explains further that the payment towards the cost of timber made by the individual purchasers was made by way of bank draft drawn in favour of the specific forest division and not in the name of divisional forest officer and such drafts could not therefore, be encashed by any means by the petitioner even in his capacity as the D.F.O., since the drafts have to be deposited in the Government Treasury and the money can be withdrawn only by the order of the Government Treasury. Learned Counsel explains that even if, as alleged, the petitioner had retained the bank drafts without promptly depositing the same in the Government Treasury, it in itself, does not constitute any offence whatsoever since the petitioner did not, and in fact, could not withdraw any such amount for deriving any gain for himself. Learned Counsel explains further that in absence of any allegation that any sale register or any entry relating to sale transaction of timber in such registers or any bank draft was tampered or forged, none of the offences for which the case has been registered, is maintainable.
Referring to the supplementary affidavit filed on behalf of the petitioner, learned Counsel submits that the informant has intentionally and deliberately suppressed certain material facts which otherwise would have established the innocence of the petitioner. Learned Counsel explains that though in the F.I.R., informant has alleged that it was a case of defalcation and misappropriation of a sum of Rs. 12,33,995.02, but it has also been found that a sum of Rs. 8,19,133.45 was already received by the informant much prior to the date of lodging of the F.I.R. Learned Counsel explains further that though, timbers were supplied to the various purchasers during the petitioner's tenure in office, but the total sum of Rs. 12,33,995.02 could not be recovered from the consumers prior to the transfer of the petitioner from the station. The amount was however recovered and received subsequently by the informant who had succeeded the petitioner in office and this fact has been acknowledged by the informant himself vide his letter no. 1033 dated 26,8,1997 and another letter no. 1152 dated 28.9.1997 which were issued by the informant along with the detailed chart showing receipt of the total amount till 26.8.1997, that is, about 10 months prior to the filing of the first information report. Learned Counsel submits that the aforesaid facts clearly demonstrate that the petitioner had neither received any amount, nor had any occasion to defalcate any amount. The case has been instituted by the informant apparently on the directions of his superior in office and on the sole ground that the petitioner had retained the relevant documents with him and had demitted his office without handing over the relevant documents. The informant has merely suspected that the documents were obtained from the sales depots by the petitioner and were intentionally retained by him for the purpose of manipulating the records and to evade detection. Learned Counsel explains that such suspicion is without any basis and in fact, it is false to claim that the petitioner had retained any documents with him since it could be only on the basis of the registers and the relevant documents that the informant could have assessed the total amount due and realizable from the various consumers.
Learned Counsel argues next that the petitioner being an officer of the Indian Forest Service and is removable from the office only by the Central Government, sanction for the petitioner's prosecution for the aforesaid offences under section 197 Cr. PC should have been taken from the Central Government only. The claim of the informant that sanction was obtained from the State Government, is void and not applicable to the petitioner. Learned Counsel explains that the allegations against the petitioner are that he had defalcated the money while in discharge of his official duty. The order of cognizance for the offences, as taken by the learned court blow without proper sanction, as required under Section 197 Cr. PC, is, according to the learned Counsel for the petitioner, bad in law.
5. As against this, the informant/opposite party by his counter-affidavit, would refute the entire grounds of the petitioner, claiming that the grounds are totally misconceived and misleading. Learned Counsel appearing for the opposite party submits that it is misleading on the part of the petitioner to claim that no defect in the accounts were pointed out in course of the annual audit inspection. In fact, it was in the Audit Report No. 126 of the year 1995-96 of the State Trading Division No. 2, Latehar, that irregularity to the tune of Rs. 12.36 lakhs in the sale proceeds of the forest produce sold through the consumer depots were pointed out. It was also pointed out in the said report that the documents including bank draft register and the sales registers pertaining to the period from 24.1.1990 to 4.6.1993 were not produced for audit inspection. The financial irregularity pointed out in the audit report was conveyed to the superiors in office of the informant and the State Government vide its letter No. 2597 dated 21.07.1995 addressed to the Chief Conservator of Forests, State Trading, Bihar, Ranchi, had directed him to initiate proceeding against the petitioner and after obtaining legal advice of the public prosecutor, Daltonganj and under authority received from his superior in office, the informant has lodged the F.I.R. at the police station. Investigation into the case was conducted by the C.I.D. and at the conclusion of the investigation, charge sheet was submitted against the petitioner with recommendation that he should be prosecuted for the aforesaid offences. Learned Counsel explains further that it was on account of non-production of the relevant documents by the petitioner and further, on account of the time consumed in the preliminary inquiry conducted by the superiors in the office of the informant, the delay was occasioned in filling the F.I.R. Learned Counsel explains further that according to the F.I.R., petitioner had retained the demand draft registers and consumers depot files as well as release order files in his personal custody, firstly to avoid detection of the defalcation and secondly, to enable him to make interpolation in the registers.
6. The main stand of the petitioner is that the case has been filed by the informant with mala fide intention and with oblique motive by suppression of material facts, particularly the fact that the at least 10 months prior to the filing of the F.I.R., the entire amount due and payable by the consumers was realized and deposited in the Government Treasury and, therefore, it cannot be said that the petitioner had defalcated or misappropriated Government money or that he had made any dishonest and wrongful gain for himself.
7. From perusal of the contents of the F.I.R., it however appears that payments towards sale proceeds of the timber were received from the customers not only through bank drafts but were also realized by cash payments. The F.I.R. specifically alleges that the petitioner had dishonestly obtained the consumer files from two separate depots and the respective officers in-charge of the depots have claimed in their respective statements in course of investigation that on the pretext of perusing the consumer files, the petitioner had obtained the documents from them and had retained the same with him. They have also claimed that the petitioner used to realize the sale proceeds himself from the customers and used to send the delivery orders to the various sales depots. In respect of such statement, the officers had also produced photocopies of the delivery orders issued by the petitioner which also confirms that the petitioner used to realize the sale proceeds in cash from the customers. The main allegation against the petitioner is that the amounts of cash and the Bank drafts which he used to realize by way of sale proceeds from the customers, were illegally retained by him and not deposited promptly in the Government Treasury and to avoid detection of his default, he had intentionally retained the official documents after dishonestly obtaining the same from the custody of the Forester and Ranger of the concerned sale depots. Allegations in the F.I.R. indicate that when the financial irregularity was detected and repeated demands were made to deposit the bank drafts and to surrender the official documents, the petitioner strategically prepared as many as 40 numbers of bank drafts in different names and forwarded the same to the office of the informant for their adjustment in the debit balance of the customers. The fact that the bank drafts were strategically prepared on a later date, would be evident from the date of bank drafts which pertains to the year 1997 and the deposits of the bank drafts were made in the year 1997, where-after a sum of Rs. 8,19,133,48 only could be recovered, but the balance of the arrears amounting to Rs. 4,15,123,83 were not accounted for, nor could be realized. Thus, from the allegations, it stands out that the petitioner used to realize payment of the sale proceeds of timber from the customers in cash also, but the amount was not promptly deposited in the Government Treasury. It also stands out that the petitioner had obtained official documents including the registers pertaining to the sale of timber and bank draft register and had illegally retained the same with him without surrendering the documents at the time of handing over charge of his office on his transfer from the station. The contention of the learned Counsel for the petitioner that even prior to the dale of lodging of the F.I.R., the informant had received the entire amount and had suppressed this fact while lodging the F.I.R., does not appear to be correct. The allegations, until rebutted by counter evidence which may be adduced at the trial, do make out a prima facie case for the offences.
As regards the ground that cognizance of the offences could not have been taken against the petitioner without prior sanction from the competent authority, the same has been disputed by the opposite party and as such, this controversy, in itself, would constitute an issue for determination in the light of the counter submission of the opposite party that the offences allegedly committed by the petitioner, cannot be said to be acts in discharge of his official duty. It is the trial court, which could be in a better position to appreciate this ground on the basis of the evidences which may be adduced by the parties in course of trial.
8. For the reasons discussed above, I do not find any merit in this application. Accordingly, this application is dismissed at the stage of admission itself.