Allahabad High Court
Digvijay Nath Tewari vs State Of U.P. And 3 Others on 12 February, 2020
Author: Rajul Bhargava
Bench: Rajul Bhargava
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 66 Case :- APPLICATION U/S 482 Cr.P.C. No. - 3781 of 2020 Applicant :- Digvijay Nath Tewari Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Pradeep Kumar Upadhyay,Pradeep Kumar Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav Hon'ble Rajul Bhargava,J.
1. Heard Sri Pradeep Kumar Upadhyay, learned Senior Advocate assisted by Sri Pradeep Kumar, learned counsel for the applicant and Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel for Central Bureau of Investigation and learned A.G.A. for the State.
2. The present application under Section 482 Cr.P.C has been filed with the prayer to quash the order dated 15.07.2019 passed by learned Special Judge, CBI, Court No. 6, Lucknow as well as the entire proceedings of Criminal Case No. 220 of 2017 (CBI Vs. Digvijay Nath Tiwari & others), under Section 120-B read with Sections 420, 468 & 471 I.P.C. and Sections 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988, pending before the court of Special Judge, CBI, Court No. 6, Lucknow.
3. From the record, it appears that initially the applicant had approached this Court by means of Criminal Misc. Application (U/s 482 Cr.P.C.) No. 6141 of 2019 (Digvijay Nath Tiwari Vs. State of U.P. and Others) assailing the Charge-sheet as well as the entire criminal proceedings. The said application under Section 482 was disposed of vide order dated 15.02.2019 by this Court granting liberty to the applicant to move discharge application before the concerned court below and to furnish personal bond in view of Section 88 of Cr.P.C. The concerned court below was also directed to dispose of the said discharge application within two months, if filed.
4. In pursuance of the aforesaid order, the applicant moved an application for discharge on which the impugned order has been passed. Feeling aggrieved with the order rejecting his application for discharge, the instant application under Section 482 has been filed by the applicant stating that the impugned order deserves to be set-aside being perverse and contrary to the law settled in this regard.
5. In brief, the facts of the case are that an order dated 31.01.2014 was passed by this Court in Writ Petition (Misc. Bench) No. 12802 of 2011 whereby a writ in the nature of mandamus was issued directing the CBI to investigate the abuse and misappropriation of fund as well as the abuse of power under the Mahatma Gandhi National Rural Guarantee Scheme with regard to seven districts of State of U.P. namely Balrampur, Gonda, Mahoba, Sonbhadra, Sant Kabir Nagar, Mirzapur and Khushi Nagar in the years 2007 to 2010 with appropriate action and prosecution in accordance with law.
6. That under the said scheme one project namely Kharanja Construction Baurvyas Main Road to Harraiya Siwan via Makrahi in Block Santha, Sant Kabir Nagar was in progress and on 28.08.2008, the applicant got the additional charge of BDO for Block Santha, who thereafter was accountable and responsible for the sanction of funds for the said project.
7. The Charge-sheet has been filed against the present applicant and other accused persons, which has a clear mention that the investigation has revealed that in the aforesaid project, the applicant in connivance with the other accused persons have abused their official position and cheated the Government by misappropriating the funds, preparing forged documents, using forged documents as genuine thereby causing wrongful loss to Government to the tune of Rs.1,50,000/- and corresponding gain to themselves.
8. Learned counsel for the applicant contended that there is no sufficient or reliable evidence on record against the applicant to even form prima facie case or even raise grave suspicion, as such the order impugned whereby the discharge application of the applicant was rejected by the concerned court below should be set-aside and the entire proceedings of the trial should be quashed. He further submitted that the concerned I.O. has not fairly and improperly conducted the investigation and an incorrect and misconceived inferences has been drawn.
9. Learned counsel for the applicant further submitted that he had sanctioned the payment on the demand of Work-Incharge and only after the approval of concerned Junior Engineer. He further submitted that after the posting of successive BDO, one new file of the project in question was prepared by forging the signature of applicant for preparing duplicate forged papers for the said project. He further submitted that the applicant has already been exonerated from any liability in the departmental proceedings initiated against him. He further submitted that the applicant has been charge-sheeted illegally and against the material and evidences of on record.
10. I have perused the materials and documents on record. Heard the arguments of learned counsel for the applicant, learned A.G.A for O.P. No. 1 and learned counsels for O.P. No. 2, 3, and 4.
11. From the perusal, it is clear that allegations against the applicant are substantiated by the evidence forming prima facie case against the applicant to proceed with the case. The Charge-sheet has a clear mention that during the investigation it was found that in the matter of construction of aforesaid project, an undated and unsigned Demand Letter purportedly submitted by Prem Chandra Yadav, Gram Panchayat Adhikari vide which it was requested to release an amount of Rs.1,50,000/- for pruchasing of materials. Later, Prem Chandra Yadav stated that the said Demand Letter was never issued by him and that it is a forged document. On the said demand letter, Ganga Prasad Srivastav, JE, recommended for payment of Rs.1,51,050/- The Applicant, the then BDO, approved the payment of Rs.1,50,000/- and a cheque for the said amount was issued favoring "Jai Samay Maa Brick Field" against the Bill dated 27.02.2009 raised by the said "Jai Samay Maa Brick Field" towards the purchase of materials. The said Demand Letter and Bill dated 27.02.2009 were found to be a forged documents which were prepared by the Vijay Kumar Srivastav, Accountant, Santha Block. The report of CFSL confimred that the handwriting on the Demand Letter and Bill dt.27.02.2009 belongs to Vijay Kumar Srivastav.
12. The investigation further revealed that neither there was any muster roll on record on the basis of which the payment of Rs.1,50,000/- was approved nor any payment was ever made to any labour, as such it was found that no work was executed and the applicant in connivance with the other accused persons through illegal acts and conducts have caused wrongful loss to Government to the tune of Rs.1,50,000/- and corresponding gain to themselves.
13. In the case of Onkar Nath Mishra and others Vs. State of NCT of Delhi and Another (2008) 2 SCC 561, the Hon'ble Supreme Court in paragraph 11 of the Judgment held as under: -
"It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
Moreover, in the case of Rajbir Singh Vs. State of U.P. & others 2006 (55) 308 SC, the Hon'ble Supreme Court held that the charges can be framed if the grave suspicious circumstances exits.
14. The another point of consideration which arises during framing of Charges is that whether the Trail Court can at the time of framing of charges consider the evidence or material filed by the accused. The position on this point has been settled by the Hon'ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi (2005) 1 SCC 568, wherein the Hon'ble Supreme Court in paragraph 18 of the Judgment, held that:-
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It is only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression "hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
Further in the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC, the Hon'ble Supreme Court in paragraph 24 of the Judgment held that: -
"At the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other."
15. In view of the settled position of law, I am not inclined to accept the submissions of learned counsel for the applicant. In the present case in hand, there are sufficient grounds to draw a presumption that the applicant has committed the offence.
16. In view of the above, I find no illegality or perversity of law or fact in the impugned order dated 15.07.2019 passed by the concerned court below and the same is hereby upheld. Thus, the prayer for quashing the order impunged is hereby refused.
17. However, it is directed that if the applicant appears and surrenders before the court below within four weeks from today and applies for bail, his prayer for bail shall be considered and decided in accordance with law.
18. For a period of four weeks from today, no coercive action shall be taken against the applicant. However, in case, the applicant does not appear before the Court below within the aforesaid period, coercive action shall be taken against him.
19. With the aforesaid observations/directions, the present application U/s 482 Cr.P.C. is finally disposed of.
Order Date :- 12.2.2020 Vikas