revn181.06
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Revision No. 181 of 2006
State of Maharashtra,
through Police Station Officer,
Police Station Nagbhid,
Distt. Chandrapur. ..... Applicant
Org. Respdt.
Versus
Satish son of Narayandas
Laddha,
aged about 42 years,
resident of Gondia,
Sub-Divisional Engineer,
Irrigation Department,
Gondia. ..... Non-applicant
*****
Ms. Shamsi Haidar, Addl. Public Prosecutor for the Applicant-
State.
Mr. R.M. Daga, Adv., for the non-applicant.
*****
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revn181.06
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CORAM : A.S. CHANDURKAR, J.
Date : 17th November, 2017 ORAL JUDGMENT:
01. This Revision Application filed under Section 397 of the Code of Criminal Procedure, 1973 [for short, "the Code"] takes exception to the judgment dated 10th April, 2006 passed by the learned Second Ad Hoc Additional Sessions Judge, Chandrapur, in Criminal Revision No. 144 of 2005 whereby the non-applicant stands discharged from the proceedings in Regular Criminal Case No. 113 of 2004.
02. The facts, in brief, are that according to the prosecution, the work of excavation of a tank under the Employment Guarantee Scheme was being conducted from 3rd May, 2001 to 12th June, 2001. Accused No.1 was working as the Sectional Engineer, while Accused No.2 was working as a Clerk. The accused No.3 - non-applicant herein was working as the Sub-Divisional Engineer of the Irrigation Department. The accused nos. 1 and 2 maintained the muster roll of labourers during the aforesaid period and by manipulating the names of those persons who had not actually worked, an amount of Rs.2,40,000-00 was misappropriated. Crime No. 51 of 2004 was lodged and after completing the investigation the charge-sheet came ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:23:37 ::: revn181.06 3 to be filed. The non-applicant filed an application under Section 239 of the Code for discharge. The learned Magistrate rejected that application by observing that offence under Sections 409 and 468 read with Section 34 of the Indian Penal Code [for short, "the Penal Code"] was made out and the non-applicant was liable to be tried. This order was challenged before the Sessions Court and by the impugned judgment the Revision Application came to be allowed.
03. Ms. S. Haidar, learned Addl. Public Prosecutor, submitted that considering the entire material on record, the learned Judge of the Sessions Court was not legally justified in discharging the non- applicant. Without verifying the actual work done, the non-applicant along with the other accused had disbursed a sum of Rs. 2,40,000-00. An enquiry was also held in the matter which indicated misappropriation of said amount. The statements of witnesses also made out a prima facie case, due to which, the non-applicant was not entitled to be discharged. There being necessary entrustment under Section 408 of the Penal Code, the offence was made out and the non- applicant was, thus, liable to face the trial. It was, therefore, submitted that the impugned judgment was liable to be set aside.
04. Shri R.M. Daga, learned counsel for the non-applicant, ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:23:37 ::: revn181.06 4 supported the impugned judgment. According to him, none of the ingredients of Sections 408 and 468 of the Penal Code were made out against the non-applicant. The work of preparing the muster roll was that of accused nos. 1 and 2 and the non-applicant was not directly concerned with the same. He was the supervising authority and there was no entrustment of the aforesaid amount to the non-applicant for giving rise to the offence. According to the learned counsel, even in the Departmental Enqury, the non-applicant was exonerated. The statements of witnesses did not connect the non-applicant with the said offence and he could not be attributed even with negligence in the matter. In absence of any perversity, no interference was called for. He referred to the judgment of the Honouralbe Supreme Court in Velji Raghavji Patel Vs. State of Maharashtra [AIR 1965 SC 1433].
05. Heard the learned counsel and perused the records of the case.
06. As per the report lodged, the muster rolls in question were maintained by the accused no.2 and the necessary payment to the labourers was made by accused no.1. The role of the non-applicant - accused no.3 was of supervising and verifying the accounts maintained by accused nos. 1 and 2. According to the prosecution, the non- ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:23:37 :::
revn181.06 5 applicant was not supervising the work of construction of the tank on a daily basis. After doing so, the documents were to be forwarded to the higher authorities.
07. The learned Judge of the Sessions Court after considering the entire material on record found that none of the muster rolls had the signature of the non-applicant. It was then found that there was no "entrustment" so as to result in attracting the provisions of Section 408 of the Penal Code. In absence of any material to indicate that the amounts in question were first given to the non-applicant who then disbursed the same, it cannot be said that there was "entrustment" of the aforesaid amounts to the non-applicant. There is, thus, no dominion over the amount of Rs.2,40,000-00 as regards the non- applicant. In absence of any entrustment of the amount in question in favour of the non-applicant, the question of forgery being committed by the non-applicant also does not arise. The other accused are being tried for the offence punishable under Section 468 of the Penal Code. Simplicitor negligence in verifying the records is one thing and act of forgery under Section 468 of the Penal Code is another matter. I, therefore, find that the learned Judge of the Sessions Court was legally correct in observing that the non-applicant was entitled for discharge. I do not find any perversity in that regard. The legal position is also ::: Uploaded on - 23/11/2017 ::: Downloaded on - 24/11/2017 13:23:37 ::: revn181.06 6 clear from the decision in Velji Raghavji Patel [supra].
08. In view of aforesaid, I do not find any merit in the Criminal Revision Application, which is accordingly rejected.
Judge
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