Gujarat High Court
Virendrasinh Jambha Rahol vs State Of Gujarat on 30 April, 2024
NEUTRAL CITATION
R/SCR.A/1279/2024 ORDER DATED: 30/04/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 1279 of 2024
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VIRENDRASINH JAMBHA RAHOL & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR ANAND M RANPARA(10976) for the Applicant(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 30/04/2024
ORAL ORDER
Registry to accept vakalatnama of learned advocate Mr. C.P. Champaneri, who has instructions to appear for respondent No.2 - original complainant.
[1.0] RULE. Learned APP Ms. Divyangna Jhala and learned advocate Mr. C.P. Champaneri waive service of notice of Rule for respondent Nos.1 and 2 respectively. With the consent of learned advocates appearing for respective parties, present petition is taken up for final hearing today.
PRELUDE:-
[2.0] By way of present petition under Articles 14, 21 and 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the petitioners have prayed to quash and set aside the FIR being I-CR No.79 of 2015 registered with Tarapur Police Station, District Anand for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, 114 and 120(B) of the Indian Penal Code, 1860 (for short Page 1 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined "IPC") as well as the consequential proceedings in form of supplementary charge-sheet numbered as Criminal Case No.300 of 2017 pending in the Court of learned Judicial Magistrate, First Class, Tarapur, District Anand.
FACTUAL MATRIX:-
[3.0] A complaint being I-CR No.79 of 2015 came to be registered by respondent No.2 with Tarapur Police Station, District Anand for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, 114 and 120(B) of the IPC against 12 accused persons. Then, supplementary charge-sheet came to be filed against present petitioners alleging that while respondent No.2 was working as Vice Chairman, Agriculture Produce Market Committee, Tarapur (for short "APMC"), at that time, he noticed some irregularities in the administration of APMC and Directors / Members of APMC including the Chairman were indulged in illegal activities and they have committed many irregularities in connivance and collusion of each other in aid of Secretary of APMC and during their tenure, they have conspired with each other and misappropriated the grant sanctioned by the Government under various benevolent schemes viz. RKVY Scheme and Kalp Vruksha Yojana and thereby they have committed criminal breach of trust and cheating. Hence, he approached to the District Registrar, Anand and Director, APMC, State of Gujarat, Gandhinagar. Considering various allegations leveled in the application in detail, inquiry came to be conducted through authorized officer of Director, APMC, State of Gujarat and then report came to be submitted by the government Officer, District Registrar and pursuant to the said report, it was found that the accused persons have committed various Page 2 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined illegalities and they have siphoned the amount which was sanctioned for the welfare of agriculturists and development of Marketing Committee like (i) Rs.2,65,94,953 for RCC road and auction platform; (ii) Rs.38,86,628 for 11 godown; (iii) Rs.6,65,637 for entry gate; (iv) Rs.12,96,230 for repairing and renovation of building and (iv) Rs.13,96,233 for office building and extension. Proposal came to be forwarded to the government and under the Nationalized Godown Scheme, 100% government aid (subsidy) and for other works 50% government aid (subsidy) received by the APMC. Then, without following the guidelines issued by government and without floating any tender, though accused were not approved contractor, they have got sanctioned tender in their favor and by sub-letting the said work they have siphoned the government funds into their personal bank accounts and then without completion of work they have forged the work completion certificate and by using as genuine, the said work completion certificate they have misappropriated the government aid (subsidy amount) in collusion and connivance of accused persons to the tune of Rs.61,04,067. In this regard, complaint came to be filed based on the report submitted qua alleged inquiry the government officers viz. District Registrar and Deputy Director of APMC and Director, APMC and State Marketing Board, Gandhinagar both are cited as witness and except respondent No.2, 23 witnesses have been cited as witness by the prosecution.
[3.1] The offence is registered on 05.10.2015 and after investigation, charge-sheet is filed which is pending for adjudication before the Court of learned JMFC, Tarapur and present quashing petition on the ground of settlement is filed on Page 3 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined 24.01.2024 after a passage of almost 9 years.
SUBMISSIONS OF PETITIONERS:-
[4.0] Learned advocate for the petitioners has submitted that settlement took place between the parties and in this regard respondent No.2 appeared and he has filed an affidavit dated 22.01.2024, which is produced with the petition at Annexure-G. In the said affidavit respondent No.2 has stated that he has no objection if the proceedings are quashed and set aside qua the present petitioners as the coordinate Bench in the proceedings of Criminal Misc. Application No.23160 of 2022 has quashed the proceedings against other co-accused based on consent and hence, he has requested to allow the present petition and quash and set aside the impugned proceedings qua the present petitioners.
SUBMISSIONS OF APP FOR RESPONDENT NO.1 - STATE:-
[5.0] Learned APP has vehemently opposed the present petition and submitted that the offence is against the State and therefore, discretion cannot be exercised in the present case and that too on the ground of consent. Therefore, she has requested to dismiss the present petition.
SUBMISSIONS OF RESPONDENT NO.2 - ORI. COMPLAINANT:-
[6.0] Learned advocate for respondent No.2 has submitted that settlement has taken place between the parties pursuant to which proceedings qua other co-accused have been quashed by the coordinate Bench of this Court in the proceedings of CR.MA Page 4 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined No.23160/2022 and as the complaint was lodged by respondent No.2 in his personal capacity as a whistle-blower, respondent No.2 has no objection if the present proceedings qua present petitioners are quashed and set aside.
ANALYSIS:-
[7.0] I have given thoughtful consideration to the arguments canvassed by learned advocate appearing for respective parties.
[7.1] Going through the record, it reveals that in the present case, petitioners are facing charges for the offence punishable under Sections 406, 409, 420, 465, 467, 468, 471, 114 and 120(B) of the IPC. Though the petitioners were not entitled, they have got the contract in their favor and have used their personal bank accounts by submitting false and fabricated work completion certificate to the Market Yard alongwith the bill and they have received the amount towards bill and government aid in personal bank account thereby they have committed embezzlement of an amount of Rs.61,04,067 of the market yard as well as the amount received from the government towards subsidy and they have used the said funds for their personal use.
[7.2] In the aforesaid background, for more than one reason as under, this Court is not inclined to entertain the present consent quashing petition based on settlement.
(i) Present petition is filed on the ground of settlement and compromise and as the complaint was filed by respondent No.2 as Ex-Vice Chairman in the year 2015 qua alleged Page 5 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined irregularity and embezzlement of government subsidy and APMC fund.
(ii) It is needless to say that APMC is a local body under Section 10(2) of the Gujarat Agricultural Produce Markets Act, 1963 (for short "APMC Act, 1963"), which reads as under:
"10. Incorporation of market committee.- (1) Every market committee shall be a body corporate by such name as the Director may specify by notification in the Official Gazette. It shall have perpetual succession and a common seal, may sue and be sued in its corporate name and shall be competent to acquire, hold, lease, sell or otherwise transfer property, to raise loans upon the security of its property in the manner and subject to the limits and other requirements including guarantees prescribed by rules, and to contract and to do all other things necessary for the purposes for which it is established.
(2) A market committee shall be deemed to be a local authority within the meaning of clause (26) of Section 3 of [the Gujarat General Clauses Act, 1904](Bombay I of 1904).
[Provided that no immovable property the value of which exceeds the prescribed limits shall be acquired or disposed of by the Market Committee without the prior permission of the Director:
Provided further that the Director may, for the reasons to be recorded in writing, revoke such permission before the completion of the acquisition or execution of the deed, as the case maybe:
Provided also that market committee may, with the prior approval of the Director and after obtaining valuation certificate from the officer prescribed, enter into agreement with the owner of any land or building and purchase such land or building.]"Page 6 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024
NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined
(iii) The constitution and management of Market Committee is also under the control and supervision of the State Government as provided under the APMC Act, 1963 and the Gujarat Agricultural Produce Markets Rules, 1965 (for short "APMC Rules, 1965").
(iv) Herein, while respondent No.2 was Vice Chairman, he submitted an application in detail and pursuant to the said application, inquiry was conducted by the Authority and then it was found that, misappropriation being made and hence, complaint came to be filed and thereby after setting into motion the criminal machinery, respondent No.2 has nothing to do as he has acted only as a whistle-
blower.
(v) After lodgment of the complaint, investigation was carried out based on the report submitted by the government officers. They are also cited as witness. After collecting sufficient material and evidence, charge-sheet came to be filed for the offence punishable under Sections 406, 409, 420, 465, 467, 468, 471, 114 and 120(B) of the IPC.
(vi) Respondent No.2 acted as a whistle-blower as at the relevant point of time, he was Vice Chairman and in the capacity of Vice Chairman he has submitted the application in the capacity of Director of APMC in the year 2014-15, pointing out the irregularities committed by the Page 7 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined erstwhile members of the APMC, as he was elected as Vice Chairman as no action taken on his application, respondent No.2 had appoached this Court by way of Special Criminal Application and pursuant to order passed by this Court, offenec was registered.
(vii) As respondent No.2, he has not filed any application in his private or personal capacity but as a Vice Chairman of the APMC.
(viii) The offence was registered qua alleged irregularity by the erstwhile members of the APMC which is a local body and having a distinct identity as per section 10 of the APMC Act, 1963. Respondent No.2 is having no authority to enter into compromise in his personal capacity as the offence is also not registered in his personal capacity.
(ix) Offence is not private or personal in nature but against the State.
(x) To settle the said dispute, no any authorization by competent authority or approval of Director, who is defined under Section 2(vi) of the APMC Act, 1963 as "Director" means the Director of Agricultural Marketing and Rural Finance, Gujarat State, has been obtained and without the approval of the Director / government or competent authority, respondent No.2 has given the consent to quash and set aside the proceeding which is in Page 8 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined his personal capacity which is unauthorized and bad in the eyes of law as he is having no locus and legal sanctity.
Hence, present petition cannot be considered based on consent of respondent No.2.
[8.0] It is pertinent to note that after filing application for the alleged irregularities, the investigation and inquiry was conducted by the Director, who is cited as a witness as he is having the general control under chapter VIII of the APMC Act, 1963. The inquiry came to be conducted as the Director and State Government is having the powers to call for the proceedings under Sections 47 and 48 and to pass appropriate order thereon and pursuant to that, after conducting the inquiry, impugned complaint is being lodged. Sections 44 and 50 of the APMC Act, 1963 read as under:
"44. Power to hold inquiry.- (1) The Director may of his own motion, himself or by an officer authorised by him, inspect or cause to be inspected the accounts of a market committee or hold an inquiry into the affairs of a market committee.
(2) When the affairs of a market committee are inquired into, all members, officers and servants of the committee shall furnish such information and produce such documents in their possession, relating to the affairs of the committee, as the Director or the officer may require.
(3) The Director and the officer shall have the power to summon and enforce the attendance of members and officers of the market committee and to compel them to give evidence and to produce documents by the same means and as far as possible in the same manner as is provided in the case of a Civil Court by the Code of civil Procedure, 1908 (V of 1908).Page 9 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024
NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined (4) The Director or, as the case may be, the officer may require the market committee either as a result of the inquiry or otherwise to do a thing or to abstain from doing a thing which the Director or the officer considers necessary for the purposes of this Act, and to send a written reply to him within a reasonable time stating whether the aforesaid requisition is complied and in case it is not complied, stating its reason for not complying with the requisition.
x x x
50. Members to be held responsible for misapplied funds.- Every member of the market committee shall be personally liable for any misapplication of its moneys to which he shall have been a party, or which shall have occurred through, or been facilitated by, gross neglect of his duty as a member, and may be sued for recovery of the moneys so misapplied as if such moneys had been the property of the State Government:"
Herein, allegation of facilitating misappropriation of funds and negligence are leveled in the complaint.
[8.1] In view of the above, it cannot be said that the respondent No.2 has filed the complaint in his personal capacity as, in the capacity of Vice Chairman he has initiated the proceeding and even today, as to whether he is in any manner connected with the APMC or is under the supervision and control of the State as a local body, which has given authorization to settle the said dispute to respondent No.2 or not? In absence of said evidence or valid sanction or authorization, respondent No.2 is not having any authority to enter into settlement and in view of the above, merely because the coordinate Bench of this Court quashed the proceeding qua other accused in the proceedings of Criminal Misc. Application No.23160/2022 based on the ground of Page 10 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined consent, which is not a precedent to quash and set aside the proceedings qua the present petitioners is not a valid and legal ground.
[9.0] So far as administration of APMC is concerned, under Section 57 of the APMC Act, 1963, the office bearers of market committee shall be deemed to be public servants and they have committed the offence in collusion and connivance of each other and they have siphoned and misappropriated the amount of government aid (grant) which under the benevolent government schemes was meant for development of APMC and for welfare of farmers. APMC is a statutory body established by the State to regulate the trade and marketing of agricultural produce to eliminate the exploitation of farmers by the intermediaries and APMC works as an arm of State and hence, APMC is declared as a local body under the control and supervision of State including budgetary provisions, allocation of funds and statutory restrictions are also made under the APMC Act, 1963 and the APMC Rules, 1965 as APMC is a State instrumentality. Even, under the APMC Act, 1963 also, the Director has the only limited power to settle the dispute as defined under Section 59(2)(iv) of the APMC Act, 1963, which provides facilities for the settlement of any dispute between a buyer and seller of agriculture produce. The said provision reads as under:
"59. Rules.- (1) The State Government may, by notification in the Official Gazette, make rules, either generally or specially for any market area or market areas for the purposes of carrying out the provisions of this Act.Page 11 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024
NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined (2) In particular and without prejudice to the generality of the foregoing provision, such rules may provide for or regulate-
(iv) the provision of facilities for the settlement of any dispute between a buyer and seller of agricultural produce or their agents including disputes regarding the quality or weight of the article, the allowances for wrappings, containers, dirt or impurities or deductions for any cause;"
Except the disputes regarding the quality or weight of the article etc., no any powers are bestowed upon any member of the Committee except valid sanction and authorization. Hence, the affidavit filed by respondent No.2 affirming that he has filed the complaint in his personal capacity and he has no objection if said proceeding qua present petitioners is quashed and set aside cannot be accepted. In view of the above, no case is made out to quash and set aside the proceedings qua the present petitioners on the ground of consent as the respondent No.2 is not having any authority to give such consent.
[9.1] Now, returning back to the facts of the case, as discussed hereinabove, while exercising the powers under Section 482 of the CrPC, Court has to exercise power in accordance with the guideline engrafted in such power viz. (i) to secure the ends of justice and (ii) to prevent abuse of the process of any court and while exercising such power the Court has to form an opinion on either of the aforesaid two objectives.
[10.0] Even otherwise considering the nature of allegation, even on merits, no case is made out to quash and set aside the impugned proceedings as pursuant to the report submitted by the government officers, as discussed above, irregularities were Page 12 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined noticed, complaint came to be lodged qua siphoning and misappropriation of the government funds and said government officers are also cited as witnesses and amount of grant / subsidy is transferred directly in the personal accounts of the petitioners and they have received undue advantage and hence, prima facie involvement is found. Further, the case herein, is based on documentary evidence and there is no possibility of hostility of any witness as two witnesses are government servants and in their official capacity they have conducted the inquiry.
[10.1] As discussed above, present is a case where government money and fund has been misappropriated and hence, offence under section 409 of the IPC is committed. After passage of almost 9 years, quashing petition being filed due to misappropriation of funds of local body and accused have used the said funds for their personal use. Except offence under Section 406 of the IPC, no any offence is compoundable under Section 320 of the CrPC. In view of the above reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Gian Singh vs. State of Punjab and Another reported in (2012)10 SCC 303, wherein it has been observed as under:
"In what cases power to quash the criminal proceeding or complaint or FIR may be exercised in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R may be Page 13 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences."
While exercising the powers of quashing the Court has to consider the timing of the settlement. As discussed above, offence alleged against the present petitioners is under Sections 406, 409, 420, 465, 467, 468, 471, 114 and 120(B) of the IPC and thereafter without any authorization settlement is placed on record by unauthorized person and even otherwise timing is not proper as after after considerable time gap and passage of 9 years when the trial is under progress and recording of evidence is going on and present petition is filed. In this regard, reference is required to be made to the decision of the Hon'ble Supreme Court in the case of Narinder Singh & Ors. vs. State of Punjab reported in (2014)6 SCC 466, wherein, in paragraph Nos.27, 29.3, 29.5 and 29.7 the Hon'ble Supreme Court has held as follows:
"27. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the Page 14 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined proceedings/investigation. Of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173,Cr.P.C. is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 IPC has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet.
29.3 Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.Page 15 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024
NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined 29.5 While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.
29.7 While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."
The case on hand does not satisfy any of the parameters to exercise the power under Section 482 of the CrPC and petitioners cannot claim quashing of the impugned proceeding as Page 16 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined a matter of right.
[10.2] Going through the allegations leveled against the petitioners and the Directors as they are public servants elements of the offence of criminal breach of trust are prima facie made out as the Directors in collusion and in connivance have siphoned away the amount of local body, whose administration and management is under the control of State Government under section 10(2) of the APMC Act, 1963, they are duty bound to follow the rules and regulations of the government. In order to prove the offence under Section 409 of the IPC, following definitions under the IPC are required to be considered.
"405. Criminal breach of trust.- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust".
406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
409. Criminal breach of trust by public servant, or by banker, merchant or agent.- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, Page 17 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
In order to prove the offence of criminal breach of trust which attracts the provision of Section 409 IPC, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a dealer of fair price shop, dishonestly misappropriates the property, commits criminal breach of trust in respect of that property. In other words, in order to sustain conviction under Section 409 IPC, two ingredients are to be proved, namely, i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and ii) the accused has committed criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405 IPC. The basic requirement to bring home the accusations under Section 405 are the requirements to prove conjointly i) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it.
In light of the above, perusing the charge-sheet papers and inquiry report and the allegations leveled in the complaint, prima facie offence is made out against the present petitioners.
[11.0] So far as submission on behalf of the petitioners that coordinate Bench of this Court has quashed the proceedings qua co-accused and therefore, present petition also deserves to be allowed is concerned, learned APP has submitted that the proceedings qua co-accused came to be quashed on the ground of consent of respondent No.2 by the coordinate Bench. As Page 18 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined discussed above, State / Director has not granted any approval or consent for quashing of the proceedings qua the present petitioners. As discussed above, san authorization and de hors any statutory frame work and approval or authority, respondent No.2 has given the consent which is bad in the eyes of law as discussed above. Hence, present petition cannot be construed as consent quashing petition and hence, argument canvassed by learned advocate for the petitioners is not accepted as the prima facie offence is made out.
[11.1] The amount of government subsidy being siphoned and alleged offences except under Section 406 of the IPC are non-compoundable as per section 320 of the CrPC and even compounding of the offence under Section 406 of the IPC is concerned, it is permissible only by a person who is the owner of property in respect of which his breach of trust is committed. Herein, no any breach of trust of committed qua property of respondent No.2 as regards his personal property or amount is committed by the present petitioners - accused and on that count also, respondent No.2 having no any authority to give any consent. Merely because he has put the criminal machinery in motion, respondent No.2 is neither owner nor under the domain of funds of agriculture produce market committee or government grant / subsidy and hence, consent of respondent No.2 is totally irrelevant. Hence, argument canvassed by learned advocate for respondent No.2 as regards quashment of proceeding qua co-accused by the coordinate Bench would not avail any assistance to the present petitioner in the facts of the present case. Even, this is not a case wherein the petitioners - accused have made good to compensate or paid the amount Page 19 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024 NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined which they have received in their account or misappropriated due to which loss is caused to the APMC or the government.
[12.0] Herein, in the case on hand, APMC is a local body and misappropriation of funds and embezzlement of government grant is committed, which is public money and which is siphoned away in the personal accounts of the petitioners. Pointing out such irregularity in the capacity of Vice Chairman, respondent No.2 has filed the application and after conducting the inquiry by the government authority submitted the report and then complaint came to be registered after the order passed by this Court in Special Criminal Application. After investigation and collecting evidence, charge-sheet came to be filed and when trial has progressed, after a delay of almost 9 years, present consent quashing is filed. As discussed in earlier part, as consent is not valid and without authorization, respondent No.2 has given consent to quash and set aside the proceeding which is bad in the eyes of law and merely because the coordinate Bench has quashed and set aside the proceeding qua co-accused on the basis of consent, is not a valid ground to entertain the present consent quashing petition. Even, this Court is fully conscious about judicial discipline. However, the coordinate Bench has not laid down any law and merely based on consent the proceeding qua co-accused being quashed. It is needless to say that each criminal case is required to be decided on its own merits and facts. Keeping in mind the case on hand, as the alleged offences are non-compoundable and pertaining to misappropriation of public money, oral order passed by the coordinate Bench would not avail any assistance to the present petitioners.
Page 20 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024NEUTRAL CITATION R/SCR.A/1279/2024 ORDER DATED: 30/04/2024 undefined [13.0] In view of above conspectus, present quashing petition on the ground of settlement as well as on merits stands dismissed. However, learned Judicial Magistrate, First Class, Tarapur, District Anand is directed to expedite the trial of Criminal Case No.300 of 2017, as the matter is old one, on its own merits without being influenced by any of the observations made in this order. Rule is hereby discharged.
(HASMUKH D. SUTHAR, J.) Ajay Page 21 of 21 Downloaded on : Fri May 03 21:40:26 IST 2024