NEUTRAL CITATION
R/CR.MA/604/2021 ORDER DATED: 08/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 604 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 606 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 1732 of 2021
With
R/CRIMINAL MISC.APPLICATION NO. 1798 of 2021
==========================================================
HASMUKHBHAI PARMABHAI SINDHAV
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR PREMAL NANAVATI WITH MS AVANI V PATEL(8016) for the
Applicant(s) No. 1
MR VIRAJ B KHATANA(10416) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 08/11/2023
ORAL ORDER
1. By way of these applications filed under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short), the applicants have prayed for quashing and setting aside the FIR being C.R.No.I-63 of 2018 registered with Sami Police Station including the chargesheet pursuant to thereto and Special ACB Case No.4 of 2020 pending in the Court of 2 nd Additional Sessions Judge, Patan Camp at Radhanpur for the offences punishable under Sections 409, 406, 465, 467, 468, 477 and 114 of the Indian Penal Code. Page 1 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023
NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined
2. Heard learned advocate Mr.Premal Nanavati for the applicants, learned APP Mr.Chintan Dave for respondent no.1-state. Though served, none appears for respondent no.2.
3. As common question of facts and law are involved in all these applications, at the request of learned advocates for the parties, these applications are heard together and disposed of by this common judgment.
4. It is averred in the applications that the impugned FIR is lodged by the respondent no.2 who has been authorized to lodge the complaint in respect of the alleged irregularities committed by the accused named in the FIR which include the present applicants, in implementing the government scheme of constructing lavatories and on the basis of the preliminary enquiry it is alleged that as per the report submitted by one Special Commission in his communication dated 15.9.2016, it is found that during the period between 1.9.2015 and 31.8.2016 under the scheme of Clean India Mission (Rural) in the construction of lavatories various irregularities like payment made in respect of lavatories which is already in existence and thus double payment has been made, the construction of various lavatories is not as per the specification and weak Page 2 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined construction is found and in certain cases though no lavatory is constructed, amount has been released by various officers viz. the other co-accused named in the FIR and thus, it is alleged that the government is put to loss to the tune of Rs.90,96,000/-. It is averred that it is further alleged in the impugned FIR that in construction of lavatories in villages Badradrada and Singotariya irregularities are found in as many as 261 lavatories and 345 lavatories respectively in the tabular form accountability of each respective accused have been revealed whereas the applicants are found to have wrongfully released the amounts and it is mentioned in column no.12 the amount mentioned is Rs.90,96,000/- whereas as per the available record, it is further alleged that an amount of Rs.72,72,000/- has been misused and no record is kept as to against which lavatory such payment has been made; it is alleged that in respect of some record only Block Coordinator has signed such report and thus, the procedure prescribed for scrutinizing the record has not been properly adhered to; that as required, the exact location, photographs of lavatory etc. has not been mentioned and without undergoing such exercise, the payment has been made and thus government has been cheated and accordingly, the accused named in the FIR who were performing duties in their respective posts during the period from 1.9.2015 and 31.8.2016 have committed offences as alleged. Therefore, these Page 3 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined applications are filed by four accused praying to quash the impugned FIR qua them.
5. Heard learned advocates for the parties. 5.1 Learned advocate Mr.Premal Nanavati for the applicants submitted that the applicants had performed the duty with utmost sincerity and diligence. Further, it was submitted that at the most even from the plain reading of the FIR, it can be said that the present applicants have committed misconduct for which no disciplinary inquiry was conducted nor any show cause notice was issued against the present applicants. In the FIR, there is no allegation that the present applicants have siphoned off government funds, nor it is stated in the FIR that such amount of government benefits had gone to the accounts of present applicants. Hence, according to learned advocate Mr.Nanavati at the most this can be said to be the negligence on the part of the applicants as the element of showing any criminal intention is missing as per plain reading of FIR itself and, therefore, it is required to be quashed and set aside. 5.2 Learned advocate Mr.Nanavati submitted that the applicant of Criminal Miscellaneous Application No.604 of 2021-Hasmukhbhai Parmabhai Sindhav was working as a Page 4 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined Block Coordinator of Taluka Panchayat, Sami, his services came to be terminated as the impugned FIR came to be filed against him; that the applicant has unblemished and clean career all throughout as a Government Officer and has been promoted from time to time and applicant has no criminal antecedents; that the duty of the applicant is that once the proposal is prepared by the Sarpanch and concerned Talati- cum-Mantri of the respective village panchayats receives such proposal after verifying the necessary papers has to forward the same to the superior officer to the concerned District Development Officer, who in turn after verifying would send it to the government; that the government would release grant after verifying the record and while doing so the necessary statutory audit through reputed Chartered Accountant and Auditors is also carried out and once the record is scrutinized at all levels, the necessary amount will be disbursed and ultimately when such fund is also available to the Taluka Panchayat, the officer like the applicant would further disburse the same in favour of the concerned Village Panchayat and in the entire process, there is no allegation that the applicant has misappropriated the fund for his personal benefit or any amount has been siphoned off for his personal use or otherwise and the entire amount has been disbursed in favour of the concerned Taluka Panchayat through a single cheque. He, therefore, submitted that there Page 5 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined is element of mens rea present and therefore the alleged offences are prima facie not made out against the present applicant. He further submitted that the statement given by the complainant himself before the police are contrary to the allegations levelled in the FIR. He lastly submitted that even the TDO has given a report giving a clean chit to the applicant and recommended that he may be taken back on duty.
5.3 Learned advocate Mr.Nanavati submitted that the applicant of Criminal Miscellaneous Application No.606 of 2021-Dudabhai Devabhai Vaghela was transferred on 1.9.2016 from Taluka Panchayat Sami to Taluka Panchayat Santalpur; that the allegation against him is that he has misplaced the records, whereas, as per the audit report of 30.6.2017, all records were available for audit.
5.4 Learned advocate Mr.Nanavati submitted that the applicant of Criminal Miscellaneous Application No.1732 of 2020-Nareshkumar Harshavan Jani has retired as in-charge Taluka Development Officer in June, 2019 and the applicant has no criminal antecedents except that the applicant is facing similar FIR in respect of very scheme under the Clean India Mission while he was serving as In-charge Taluka Development Officer during the period between 2015 and Page 6 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined 2016 and as in-charge Taluka Development Officer, Taluka Sami, while disbursing some amount in the Taluka Panchayat for which the applicant has been granted anticipatory bail and thereafter his petition filed for quashing of the FIR being Special Criminal Application No.6299 of 2017 was allowed and the said impugned FIR qua the applicant was quashed. The role of the applicant in the said FIR and the impugned FIR is same.
5.5 Learned advocate Mr.Nanavati submitted that the applicant of Criminal Miscellaneous Application No.1798 of 2021-Kishorbhai Ganpatbhai Shrimali has retired from service w.e.f.30.6.2016 whereas the FIR is lodged after the retirement of the applicant; that the applicant has no criminal antecedents except that the applicant is facing similar FIR in respect of very scheme under the Clean India Mission while he was serving as Taluka Development Officer during the period between 2015 and 2016 for which the applicant has been granted anticipatory bail and thereafter his petition filed for quashing of the FIR being Special Criminal Application No.6299 of 2017 is pending before this Court. 5.6 Learned advocate for the applicants submitted that it fact necessary statutory audit through a reputed Chartered Accountant's Firm viz. C.P.Jain & Co., was carried out and Page 7 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined who after carrying out the audit of the account has also certified that no audit embezzlement of misutilization of fund was noticed and the said audit report was submitted to the government through its audit dated 31.8.2016; therefore, the allegations in the impugned FIR is nothing but an individual perception of the complainant and therefore required to be quashed and set aside.
6. Learned APP Mr.Dave for respondent-state has vehemently opposed the application and submitted that the applicants have connived with the beneficiaries and in fact they have caused huge loss to the government public exchequer. He submitted that without the aid and abettment of the present applicants, the beneficiaries who were not entitled to incentives as per Government scheme, could not have availed benefits and, therefore, there is a clear criminal intention to siphon off government fund that can be attributed to the applicants and, therefore, present applications are required to be dismissed. He also submitted that the FIR itself discloses an offence and, therefore, present applications are required to be dismissed.
7. I have heard learned advocates for the respective parties. I have also considered the fact that present applicants were serving in different posts in Taluka Page 8 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined Panchayat. The allegations levelled in the FIR are that the present applicants the amount was disbursed inspite of the fact that there were various irregularities like payment made in respect of lavatories which is already in existence and thus doubt payment has been made, the construction of various lavatories is not as per the specification and weak construction is found and in certain cases, though no lavatory is constructed, amount has been released by the accused. It is to be considered that there is no whisper in the FIR that the amount has been misappropriated by the applicants for their personal benefit or any amount has been siphoned off for their personal use. There are no allegations that the present applicants have cheated the public exchequer or that they have siphoned off the amount and they are the beneficiaries of the amount, which was disbursed amongst the beneficiaries of the Clean India Mission (Rural).
8. The provisions invoked in the impugned FIR are as under:
"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 Page 9 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined property, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
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.
465. Punishment for forgery.--Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
467. Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 4 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Page 10 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023
NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined
468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the 1 [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
477. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable security.-- Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or deface, or secretes or attempts to secrete any document which is or purports to be a will, or an authority to adopt a son, or any valuable security, or commits mischief in respect of such document, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
9. The FIR does not disclose any offence to attract the provisions of the Sections invoked of 409, 406, 465, 467, 468, 477 and 114 of the Indian Penal Code and 13(1) of the Prevention of Corruption Act. At the most, it can be said to be negligence while performing duties which would require the State Authority to initiate departmental proceedings against the present petitioners for alleged misconduct. Page 11 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023
NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined However, learned advocate Mr.Premal Nanavati, upon instructions, has stated that till date no departmental proceedings have been initiated against either of the applicants. Mr.Nanavati states that, in fact, petitioner of Criminal Miscellaneous Application No.1732 of 2021 and 1798 of 2021 have already retired from service and till date no departmental proceedings are initiated against him. Moreover, in identical facts, coordinate Bench of this Court has decided Criminal Miscellaneous Application No.14494 of 2016 and others decided on 14.6.2011 by quashing the proceedings.
10. In view of above, considering the fact that the authority has not initiated any departmental proceeding against the applicants nor the FIR discloses any offence as there are no allegations that the applicants have siphoned off the amount and the allegations are in respect of negligence while performing duty, which would not warrant any criminal complaint and hence the FIR in question is required to be quashed and set aside.
10. It will also be fruitful to refer to the judgment of the Hon'ble Apex Court in the case of Mahmood Ali and Others V/s State of U.P, and others, reported in 2023 SCC Online SC 950, paragraphs 13 and 14 of which reads as under:
Page 12 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023
NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined "13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, Page 13 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.
14. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:--
"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has Page 14 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
Page 15 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023
NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....." (Emphasis supplied) Page 16 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023 NEUTRAL CITATION R/CR.MA/604/2021 ORDER DATED: 08/11/2023 undefined
11. In the result, present applications are allowed. The FIR being C.R.No.I-63 of 2018 registered with Sami Police Station along with all consequential proceedings arising out of the said FIR is quashed and set aside qua present applicants. Direct service is permitted.
(SANDEEP N. BHATT,J) SRILATHA Page 17 of 17 Downloaded on : Wed Nov 08 20:54:51 IST 2023