Shri Ramesh Kisanrao Kothale vs State Of Maharashtra Through ...
2007 Latest Caselaw 933 Bom

JUDGMENT

S.R. Dongaonkar, J.

1. Heard Shri Shelat, advocate for the applicant and Shri Dhote, A.P.P. for the respondent.

This is an application under Section 482 of Cr.P.C. read with Articles 226 and 227 of the Constitution of India. The criminal proceedings in Criminal Case No.72/2005 are pending in the court of Judicial Magistrate 10th Court Nagpur against applicant. Said proceedings have been commenced on the report of one Rajendra Gayadin Gangotri, through P.S.I. Lade of Police Station Hingna. The offences alleged against the applicant are under Section 420 read with Section 34 of I.P.C. The other accused seems to be one Baburao Dahat prosecuted under said proceedings. It may be stated that it is the case of the prosecution that this accused has misrepresented and cheated the government to secure grants for the school managed by him. The mention of details of the allegations of the prosecution is not necessary. Suffice it to say that on the complaint, the investigation was carried out and after due investigation, the said charge sheet was submitted.

2. It is the case of the applicant that the Education Department had raised objections to the some of the appointments in the school of the applicant, so also there was excess collection of examination fees etc. It was also a case that stock register when inspected on 31.3.2001 showed 180 desk and benches, but on inspection some desk and benches were found less, so there was breach of rules. Accordingly, it was alleged that the applicant had received the salary and other grants towards rent of building etc. on producing false documents and by making misrepresentation to the state and by cheating. It needs to be mentioned that one Rajendra Gangotri had filed Criminal Writ Petition No.616/2004 in this Court seeking directions against the concerned authorities for registering the offence against the applicant and for investigation of various acts alleged to have been committed by him by misusing the government grants. The Division Bench of this Court had passed an order to dispose of the said writ petition on the submissions of learned Assistant Government Pleader that the matter was investigated by the police and after completion of investigation the charge sheet was already filed before the competent criminal court against respondent no. 8 and 9 on 29.5.2005. The applicant is seeking quashing of this charge sheet and proceedings, in this petition.

3. Learned Counsel for the applicant Shri Shelat has submitted that all the deficiencies in the school of the applicant were complied with in view of rules under Secondary School Code. He was penalized for all these irregularities. The matter is quite old and 13 years have been passed since then. When the applicant is penalised for the irregularities committed in the school as provided under the rules of Secondary School Code and there is no financial loss to the government and everything has been recovered with penalty, offence of cheating should be deemed to have been compounded. He has also submitted that there is necessity of culpability in the mind of the complainant and then only the prosecution case will stand. He has relied on the observations of the Apex Court in 2003 Cri.L.J. 3041 [Hira Lal Hari Lal Bhagwati v. C.B.I. New Delhi] wherein it was held that the offence of cheating was not established when the alleged accused had no fraudulent or dishonest intention and the matter has been compromised between the department with the aid of necessary rules. He has also relied on the observations of the Apex court in [Suresh v. Mahadevappa Shivappa Danannava and Anr.] to contend that when the dispute between the parties is of civil nature and does not prima faice disclose the commission of alleged offence under Section 420 of I.P.C. the complaint has to be dismissed, so also it can be dismissed on the ground of laches or inordinate delay on the part of the complainant. He has further relied on the decision of the Apex Court in ( [K.C. Builders and Anr. v. Assistant Commissioner of Income Tax] to submit that there should be an existence of fraudulent intention at the time of making promise or misrepresentation itself. Mere failure of the accused to keep up the promise is not sufficient to prove the existence of such intention right from the beginning. In short it is the submission of the learned Counsel that the matter has been settled by the Education Department in respect of the irregularities in the school of the applicant and when penalty as per rules of Secondary School Code , has been imposed by the authorities who were competent to impose the penalty, in compliance with the rules, the prosecution can not survive. Further the applicant had no dishonest intention or element of cheating while securing the grants from the government and therefore, the report and the criminal proceedings initiated on the basis of the said report i.e. impugned charge sheet is not sustainable at law and it is liable to be quashed and set aside.

4. While resisting the contentions of learned Counsel for applicant, learned A.P.P. Shri Dhote has submitted that the prosecution of applicant is maintainable as the offence is under Section 420 I.P.C. The case against the applicant is for his dishonest intention and cheating to the government at the threshold while securing grants etc. According to him, here the education department is not the complainant. It is the state who has found applicant liable for the offence under Section 420 of the I.P.C. and therefore, charge sheet was submitted against him. He has further submitted that there were appointments in the school of the applicant which were deemed as NIYAM BAHYA NIYUKTYA (illegal) and for that he is liable in criminal law as by the illegal appointments he has secured grants from the government. He has also pointed out that the applicant is liable for conducting fresh examination in respect of certain students which was not permissible under the rules. Further he has also recovered more examination fees than what was stipulated. Again in his school, dead stock, i.e. furniture was found less than what was expected to be. He is also alleged to have recovered more reimbursement for rent from the government by producing false documents and therefore, according to him, the charge sheet in the instant case cannot be quashed. He has also submitted that the case against the applicant is not merely of civil liability. On the contrary, it is of securing grants from the government by misrepresentation i.e. showing appointments of the eligible teachers though they are not and also by producing bogus rent receipts. It is also his submission that the Education Department cannot compound the offences committed by the applicant. Only civil liabilities can be compromised on payment of necessary penalty and if there is some dishonest intention, the offences would be made out and because of this the charge sheet has been instituted against the applicant and as the same is substantiated by the material on record, the proceedings against the applicant can not be quashed.

5. In order to appreciate the rival contentions of the learned Counsel, it is necessary to peruse the charge sheet. In the charge sheet, it is alleged that the accused -applicant and one another had furnished false documents, regarding the appointments of the teachers as well as rent of the building and thereby there was mis-representation and cheating to the government as on that basis, grants were obtained. Further it is alleged that some of the students though had failed, on their reexamination they were declared pass, so also, the grants were recovered more than what was due towards the examination fees as well as for the dead stock like desk -benches. It is also stated that the cogent evidence is available for proving these allegations.

6. As contended by the learned Counsel for the applicant, in view of 2003 Cr.L.J. 3041 [Hira Lal Hari Lal Bhagwati v. C.B.I., New Delhi] and [K.C. Buliders and Anr. v. Assistant Commissioner of Income Tax, when the offences are allowed to be compounded and no prosecution can be lodged, once the matter has been settled by the concerned department. Since criminal liability stood compounded on settlement with respect to the civil issues , F.I.R. was erroneous and unwarranted and therefore, continuation of the proceedings would tantamount to double jeopardy. The accused cannot be required to undergo agony of criminal trial.

7. Ex-facie in this case, it appears that the Education Department has recovered the amount paid as the grants to the school of the applicant in respect of the subjects mentioned above which was not due with penalty. Therefore, it may appear that the offences have been compounded by the Education Department and as contended it was a civil liability of the applicant -school to reimburse the excess grants received by him and his school. However, it is pertinent to note that in the present case the contention appears to be that the applicant has furnished false documents to secure such grants. Therefore, in my opinion, even if the Education Department has recovered penalty for excess receipt of grants, still if the applicant has received the grants on furnishing false documents, it can be proved at the time of trial, criminal liability of the applicant can not be diluted.

8. In [Suresh v. Mahadevappa Shivappa Danannava and Anr.] the Apex Court had considered the delay in lodging the complaint and dispute being of civil nature. However, in that case, there was absence of ingredients of the alleged offence of cheating. Here the allegation against the applicant is that he had furnished false documents to get grants. If this is so, it appears to be fraudulent and dishonest intention on the part of the applicant to get these grants though not entitled and therefore, it can not be said that merely because the applicant has re-couped the excess grants with penalty, he had no fraudulent intention or dishonest intention while claiming those grants. In my opinion, delay in lodging the charge sheet which in this case appears to be only after the matter was considered by the Division Bench of this Court, can not lead to the quashing of the same.

9. It is necessary to note that I am sitting as Single Judge of this Court. The relevant order of the Division Bench of this Court dated 24.10.2005 reads thus:

In the present criminal writ petition which is in the nature of Public Interest Litigation, the direction is sought against respondents No.1 to 5 to investigate in respect of illegalities committed by respondents No. 8 and 9 in claiming grants in running the school namely Vikas Vidyalaya.

Learned Assistant Government Pleader states that the matter was investigated by the police and after completion of investigation, the charge sheet is already filed before the competent criminal court against respondents No. 8 and 9 on 29.5.2005.

In the backdrop of above referred facts, the cause of action involved in the petition and direction sought do not survive hence the petition is disposed of.

10. It is further necessary to note the prayers in the said criminal writ petition which read thus:

Prayer: It is, therefore, prayed that this Hon'ble Court be pleased to by way of writ, order or direction thereby to:

(a) Direct the respondent Nos. 1 to 5 to investigate regarding illegalities committed by the respondent Nos. 8 and 9 in claiming grants in running the school namely Vikas Vidyalaya;

(b) Stay the directions issued by the respondent No.6 against the respondent No.2 thereby restraining respondent No.2 from initiating any criminal action against the respondent No.8 and 9;

(c) Further direct the respondent Nos.1 to 5 to investigate various cases of mis-appropriation of school grants paid by the Education Department in number of other societies as stated by the petitioners in their representation dated 21/4/2994;

(d) Direct the respondent no.2 to take disciplinary action against the respondent No.7 for not complying its direction dated 5.8.2003;

(e) allow the petition with heavy cost;

(f) Grant any other relief which this Hon'ble Court deems fit and expedient in the facts and circumstances of the case.

11. It would be thus seen that the prayers were to prosecute the applicant by taking action against them after making investigation of various cases of misappropriation of the school grants paid by the Education Department. The Division Bench was satisfied that there was sufficient compliance as the charge sheet was instituted against the applicant. The applicant could have raised all contentions raised now, before the Division Bench to contend that no offence was made out against him either because there was no dishonest intention or element of cheating or because the offence is compounded by department or the allegations are of civil nature. On hearing the parties, relevant order was passed. Therefore, in my opinion, by the instant proceedings before the Single Bench, the order of the Division Bench cannot be impliedly made nullified by ordering quashing of the charge sheet and proceedings.

12. In these circumstances, I find that this petition has no merits and the same is liable to be dismissed, however, granting liberty to the applicant to move the trial court for appropriate reliefs, if necessary.

13. It is made clear that the above observations shall not any way influence the trial Court while deciding the matter on merits.