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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION NO.2793 OF 2008
APPLICANT: Shyam Tagde S/o Shri Arjunrao Tagde,
aged about 45 years, Occupation:
Service, Chairman, Nagpur
Improvement Trust, r/o Alankar Talkies
Saquare, Nagpur.
-VERSUS-
NON- Surendra S/o Yashwantrao Dangre,
APPLILCANT:
Aged about 46 years, Occ. Agriculturist,
Resident of 78-A Juna Bagadganj,
Gangabai Ghat Nagpur.
Shri R. B. Dhore, Advocate for the applicant.
Shri A. P. Padhye, Advocate for the respondent.
WITH
CRIMINAL APPLICATION NO.853 OF 2009
APPLICANT: Dr. Sharad S/o Ganpatrao Kinkar, Aged
about 59 years, R/o 34, Talmale Estate,
Trimurti Nagar, Ring Road, Nagpur.
-VERSUS-
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NON- 1. Surendra S/o Yashwantrao Dangre,
APPLPICANTS:
Aged about 46 years, Occ. Agriculturist,
Resident of 78/A Juna Bagadganj,
Gangabai Ghat Nagpur.
2. The State of Maharashtra through Police
Station Officer, P. S. Khapa, Taluka
Saoner, Tah: Saoner, District Nagpur.
Shri S. P. Dharmadhikari, Senior Advocate with Shri D. V.
Chauhan, Advocate for the applicant.
Shri A. P. Padhye, Advocate for the respondent.
WITH
CRIMINAL APPLICATION NO.836 OF 2009
APPLICANT: Shri Keshav S/o Ishwardas Bawankar,
Aged about 44 years, R/o Samruddhi
Sankul, Building No.A-3, Flat No.301,
Amravati Road, Nagpur.
-VERSUS-
NON- 1. Surendra S/o Yashwantrao Dangre,
APPLICANTS:
Aged about 46 years, Occ. Agriculturist,
Resident of 78/A Juna Bagadganj,
Gangabai Ghat Nagpur.
2. Police Station Officer, P. S. Khapa,
Taluka Saoner, Tah: Saoner, District
Nagpur.
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Shri S. P. Dharmadhikari, Senior Advocate with Shri D. V.
Chauhan, Advocate for the applicant.
Shri A. P. Padhye, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 09-11-2017. DATE ON WHICH JUDGMENT IS PRONOUNCED: 30-11-2017. ORAL JUDGMENT :
1. Since all these criminal applications filed under Section 482 of the Code of Criminal Procedure,1973 (for short, the Code) raise similar challenges, they are being decided by this common judgment.
2. The facts in brief are that it is the case of the complainant that he is a social worker and activist. The accused nos. 1 and 2 are alleged to have prepared a forged certificate of rent for the purposes of claiming a higher amount of reimbursement towards rent in respect of an Ashram School. According to the complainant, the accused no.1 was the President of the Society running the Ashram School while accused no.2 was the owner of the building which was given on rent to run the said school. As per Government Resolution dated 1-2-1999, ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:19 ::: Appln2793.08n853.09n836.09.odt 4/17 reimbursement to the extent of 75% of the actual rent was admissible subject to certification by the Public Works Department. The accused no.1 had applied to the Executive Engineer of the Public Works Department for fixing the rent of the said building. On that basis the Executive Engineer on 31-3-2001 informed the accused no.1 that the rent was fixed at Rs.9875/- per month. Though the accused Nos.1 and 2 were aware that the rent of the said building was fixed at Rs.9875/- per month, they entered into a criminal conspiracy with the accused no.3 and other officers of the Tribal Department for preparing a forged certificate of rent. Accordingly, a certificate showing monthly rent of Rs.14,575/- came to be prepared for the period from 28-1-1999 to 27-1-2002. It is then stated that the accused Nos.1 and 2 along with the Project Officer got the amount of reimbursement sanctioned. Though this fact was brought to the notice of the accused no.3 no action was taken. An enquiry was held into the matter by the Tribal Department. The accused no.3 during that period was transferred to another department and the charge of his post was taken by the accused no.4. The accused no.4 also did not take necessary steps in the matter and therefore the complainant filed the aforesaid complaint.
3. The learned Magistrate on 6-5-2008 was pleased to ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:19 ::: Appln2793.08n853.09n836.09.odt 5/17 issue process against all the accused persons for the offence punishable under Sections 409, 420, 467, 468 and 471 of the Indian Penal Code read with Section 34 thereof. Being aggrieved, some of the accused persons challenged this order before the Sessions Court. Said challenge was however not accepted. Being aggrieved the applicants have filed the present criminal applications.
Criminal Application No.853/2009 has been filed by the accused no.3 who was holding the post of the Additional Commissioner (Tribal) for the period from 3-7-2005 to 3-6-2006. Criminal Application No.2793/2008 is filed by the accused no.4 who entered office of the Additional Commissioner (Tribal) after the accused No.3 was transferred and Criminal Application No.836/2009 is filed by accused No.5 who was the Project Officer in the Tribal Department.
4. Shri S. P. Dharmadhikari, learned Senior Counsel for the applicant in Criminal Application No.853/2009 filed on behalf of the accused no.3 submitted that the learned Magistrate was not justified in issuing process against the accused no.3. It was urged that in the entire complaint, the only grievance made against the accused no.3 was that he did not scrutinize the certificate of rent issued by the Project Officer and blindly sanctioned the rent ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:19 ::: Appln2793.08n853.09n836.09.odt 6/17 amount as mentioned in that document. Though a complaint was made to the accused no.3, he did not take any steps to find the culprits as he was also involved in the said act. It was submitted that on reading the entire complaint, the allegations were principally against the accused Nos.1 and 2 and the officer from the Public Works Department - accused No.6. No prima facie case for the offence punishable under Sections 409 and 420 of the Penal Code was made out against the accused No.3. It was then submitted that it was necessary for the complainant to have obtained necessary sanction under Section 197 of the Code in view of the fact that the act alleged was done by the accused no.3 while discharging his official duties. In the absence of any such sanction, the process could not have been issued.
Shri D. V. Chauhan, learned Counsel for the applicant in Criminal Application No.836/2009 preferred by the accused no.5 while adopting the aforesaid submissions urged that the reimbursement in the amount of rent was prescribed under the Government Resolution dated 1-2-1999. As per said resolution an amount equivalent to 75% of the rent admissible was reimbursed by way of grant. This could be done on the basis of a certificate issued by the Public Works Department. The accused no.5 was merely the Project Officer who had acted on the basis of the ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:19 ::: Appln2793.08n853.09n836.09.odt 7/17 certificate issued by the Public Works Department. The learned Counsel placed reliance on the decisions in State of H. P. vs. M. P. Gupta (2004) 2 SCC 349 on the aspect of requirement of sanction and also the decision of the Andhra Pradesh High Court Dr. G. Laksbminarayaiia vs. Inspector of Police, Humayun Nagar Police Station, Hyderabad and another (1988) 1 ALT 109 to urge that even before ordering an enquiry under Section 156(3) of the Code, the requirement of seeking sanction ought to have been examined.
Shri R. B. Dhore, learned Counsel appearing in Criminal Application No.2793/2008 preferred by the accused no.4 in addition to aforesaid submissions contended that accused No.4 was transferred on the post held by the accused no.3 and he had been impleaded only on the count that he was holding said post when the complaint was filed. According to him, the enquiry proceedings that were commenced by the accused no.3 were carried forward by the accused no.4. Though the said applicant had not approached the Sessions Court as was done by other accused persons, that could not be a ground for not entertaining his challenge on merits especially when no case whatsoever was made out against him. For said purpose, the learned Counsel relied upon the decision in Prabhu Chawla vs. State of Rajasthan and another (2016) 16 SCC 30.
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5. Shri A. P. Padhye, learned Counsel for the complainant supported the impugned order. According to him, the averments in the complaint were sufficient warranting issuance of process. The role played by each accused person was clearly stated and as a prima facie case was made out against each of them, the process was rightly issued. The same was the result of due application of mind. It would be a matter of trial for determining whether any offence was duly proved to have been committed. At this stage, no interference was called for. Relying upon the decision in Anilkumar Jinabhai Patel and others Vs. State of Maharashtra and others 2009 (3) Mh.L.J., it was submitted that as the acts alleged were beyond the official duty of the concerned accused, it was not necessary to obtain sanction. The learned Counsel also placed reliance on the decision in Soma Chakravarty v. State AIR 2007 SC 2149. It was thus submitted that the applications deserve to be dismissed.
6. I have heard the learned Counsel for the parties at length and I have perused the documents filed on record. Perusal of the complaint filed by the non-applicant no.1 indicates that he has stated that he is a social worker and intends to eradicate corruption. The accused no.1 was the President of a Society which was running an Ashram School in the premises owned by the ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 9/17 accused no.2. Said premises had been taken on rent. The accused no.1 made an application to the Executive Engineer of the Public Works Department for fixing the rent of the building owned by the accused no.2. By letter dated 31-3-2001, the Executive Engineer informed the accused no.1 that the rent was fixed at Rs.9875/- per month for the period from 28-1-1999 till 27-1-2002. However, by entering into a criminal conspiracy with the accused no.3 and other officers of the Tribal Development Office, a forged certificate of rent showing the amount of Rs.14,575/- per month for said period was prepared. The accused no.3 did not scrutinize that document and sanctioned the amount of rent. On that basis, the accused nos.1 and 2 obtained an amount of Rs.5,72,168/- from the Project Officer. It is on this basis that the complaint was filed. It is further stated that though the matter was reported to the accused no.3 and thereafter to the accused no.4 who took charge of the office of the accused no.3, no steps were taken by them. Though a first information report was sought to be lodged, the police authorities did not take any action.
Thus, from the aforesaid complaint, it can be seen according to the complainant that the accused no.1 was the President of the Society which was running the Ashram School and the accused no.2 was the owner of the premises where the said ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 10/17 School was being conducted. The grievance against the accused nos.3, 4 and 5 is that though the matter was reported to the accused no.3 he did not make any enquiry and sanctioned the amount of rent blindly.
7. While it is true that in proceedings seeking quashment the defence of the accused cannot be considered, documents which are beyond suspicion or doubt placed on record can be looked into. Reference in this regard can be made to the observations in paragraph 20 of the decision in Anita Malhotra v. Apparel Export Promotion Council and another (2012) 1 SCC 520 wherein it has been observed thus:
"20. As rightly stated so, though it is not proper for the High Court to consider the defence of the accused or conduct a roving enquiry in respect of merits of the accusation, but if on the face of the document which is beyond suspicion or doubt, placed by the accused and if it is considered that the accusation against her cannot stand, in such a matter, in order to prevent injustice or abuse of process, it is incumbent on the High Court to look into those document/documents which have a bearing on the matter even at the initial stage and grant relief to the person concerned by exercising jurisdiction under Section 482 of the Code."
8. Certain factual aspects that are evident on record may be referred to. According to the non-applicant, the premises owned by the non-applicant no.2 in which the Ashram School was being conducted by the Society managed by the accused No.1 was found ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 11/17 admissible to monthly rent of Rs.9875/-. However, this certificate issued by the Public Works Department was manipulated and on that basis it was sought to be shown that the monthly rent admissible was Rs.14,575/-. On 4-12-2006 the complainant made a complaint with the accused No.3 stating therein that there had been misappropriation in this matter and necessary enquiry be made. On this basis the accused no.4 called for reports and initiated an enquiry. Said enquiry proceedings were fixed for hearing on 12-2-2007. On 12-2-2007, none of the parties including the complainant remained present. The next date given was 21-2-2007. Even on this day all parties including the complainant remained absent. In those proceedings, the accused no.3 directed recovery of excess amount of rent paid to the accused no.1 which amount was Rs.2,07,775/-. It is also to be noted that in the year 2006 an enquiry was held as to the manner in which the Ashram School was being run by the accused no.1. In those proceedings, its recognization came to be cancelled. This is the material on record with regard to proceedings that had been initiated by the accused no.3 in his capacity as Additional Commissioner of the Tribal Department.
9. When the complaint made before the Additional Commissioner was pending, the complainant filed the present ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 12/17 proceedings on 14-2-2007. From the array of parties it can be seen that the applicant no.3 was the Assistant Tribal Commissioner for the period from 3-7-2005 to 3-6-2006. The accused No.4 thereafter replaced him on the post of Assistant Tribal Commissioner. The accused No.5 was the Project Officer with the Tribal Department. The learned Magistrate had called for report under Section 156(3) of the Code on the complaint filed by the non-applicant no.1. Perusal of that report indicates that the accused no.1 had approached the accused no.6 who was a tracer in the Public Works Department for increasing the amount of rent that was mentioned in the original certificate. Said accused no.6 demanded an amount of Rs.10,000/- from the accused no.1 for said purpose and the accused no.1 paid the same to the accused no.6. Thereafter the accused no.6 got prepared the said certificate. This certificate was then placed before the accused no.3 and he sanctioned the same. The amount was then released in favour of accused no.1. As per said report, the accused no.3 did not verify the facts and sanctioned the proposal.
10. From the perusal of the complaint and the statements recorded, it can be seen that the accused nos.1 and 2 along with the accused no.6 who was from the Public Works Department got the certificate in question prepared. The primary allegations in the ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 13/17 complaint are against the accused Nos.1, 2 and the accused Nos.6 & 7. The applicants herein are related with Tribal Department and they were required to act on the basis of documents prepared by the Public Works Department. It is in that background that the challenges as sought to be raised are required to be considered.
11. Process has been issued by the learned Magistrate for the offences punishable under Sections 409, 420, 467, 468, 471 read with Section 34 of the Penal Code. In Soma Chakravarti (supra) the Hon'ble Supreme Court in para 6 of the decision has observed as under:
"6. The Courts although may take a strict view of an offence where fraud is alleged against a public servant, but only because it is found to have been committed, the same by itself may not be sufficient to arrive at a conclusion that all officers who have dealt with the files at one point of time or the other would be taking part in conspiracy thereof or would otherwise be guilty for aiding and abetting the offence. It is necessary to deal with the individual acts of criminal misconduct for finding out a case therefor."
The accused Nos.3 & 4 were holding the responsible post of Assistant Tribal Commissioner at the relevant time. The reimbursement of the amount of rent is pursuant to Government Resolution dated 1-2-1999. As per this resolution on a certificate being issued by the Public Works Department as to the rent of the premises, 75% of the amount thereof would be reimbursed by way ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 14/17 of grant. From this Government Resolution it is clear that the certification in question is required to be done by the Public Works Department. Said accused Nos.3 and 4 were not concerned with the Public Works Department but were from the Tribal Department and they had to sanction the amount of grant on the basis of certificate issued by the Public Works Department. The grievance of the complainant is that the accused nos.3 and 4 without verifying the relevant facts sanctioned the amount of rent on the basis of documents placed before them. The absence of criminality in the allegations made against them by the complainant is evident.
12. From the aforesaid material, it can thus be seen that in proceedings initiated by the accused no.3 steps were taken in the matter of recovering the excess amount of grant disbursed in favour of the accused no.1. This was pursuant to the complaint filed by the complainant before the accused no.3. The complainant however did not choose to participate in those proceedings and instead pursued the present proceedings before the learned Magistrate. On a reading of the entire complaint along with the report submitted under Section 156(3) of the Code, I find that the complaint as against the accused nos.3 to 5 is liable to be quashed. The allegation against these accused is that without verifying the ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 15/17 certificate issued by the Executive Engineer Public Works Department, the amount of rent was sanctioned resulting in loss to the public exchequer. The report of the police indicates the alleged acts of the accused no.1 along with accused no.6 in having the said certificate prepared for the same to be submitted through the accused no.5 to the accused no.3. In the light of the orders passed in the proceedings that were conducted by the accused No.3 for recovering amounts in question prior to the order issuing process, continuation of the present proceedings against the accused Nos.3 to 5 would amount to abuse of the process of law. The ingredients of offence under Section 409 and 420 of the Penal Code in so far as the present applicants are concerned are conspicuously absent. The observations of the Hon'ble Supreme Court in Soma Chakravarty (supra) as regards negligence in verifying bills do not assist the case of the complainant as in said case it was found that the accused therein was not assigned the duty of signing ad hoc advertisements but only the duty of signing bills for regular advertisements. Similarly, the decision in Anilkumar Patel (supra) also does not assist the case of the complainant. I therefore find that a case has been made out to quash the complaint against the accused nos.3 to 5.
13. In any event sanction for prosecuting the accused ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 16/17 Nos.3 to 5 under Section 197 of the Code was also required to be obtained. The acceptance of the certificate of rent was in discharge of official duties. The test that would be applicable is whether said accused could be proceeded against on account of dereliction of duty. If they could be so proceeded against, then a case for obtaining sanction under Section 197 of the Code would be made out. Considering the fact that there is no criminality made out against the accused Nos.3 to 5 and the allegation is that they had sanctioned the rent certificate without verifying the same, the sanction was necessary before proceeding against them with the complaint. On this count also, the applicants are entitled to succeed.
14. Once it is found that a case for quashing the complaint has been made out by the accused nos.3 and 5, the mere fact that the accused no.4 had not approached the Sessions Court under Section 397 of the Code loses its significance. The observations in Prabhu Chawla (supra) permit entertainment of the application of accused no.4. The accused no.4 stepped into office on the transfer of the accused no.3. I, therefore, do not find any justifiable reason for not entertaining the challenge at the behest of the accused no.4.
15. In view of aforesaid the order issuing process against ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 ::: Appln2793.08n853.09n836.09.odt 17/17 the accused Nos.3 to 5 by the learned Magistrate on 6-5-2008 is set aside. The complaint case filed against the accused nos.3 to 5 stands quashed. It is clarified that the complaint shall be tried against the other accused persons on the basis of material before the trial Court without being influenced by any observations made in this order. The applications are allowed in aforesaid terms.
JUDGE /MULEY/ ::: Uploaded on - 08/12/2017 ::: Downloaded on - 11/12/2017 23:38:20 :::