Janabai D/O Ramrao Phad vs The State Of Maharashtra
2017 Latest Caselaw 1695 Bom

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      IN  THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


               CRIMINAL APPLICATION NO.4949 OF 2016


 Balaji s/o Vishwanath Patil,
 Age-45 years, Occu:Agril.,
 R/o-Borgaon (A.K.), Tq-Loha,
 Dist-Nanded.
                                 ...APPLICANT
                      
        VERSUS             

 1) The State of Maharashtra,
    Through Police Station Officer,
    Police Station, Loha,
    Tq-Loha, Dist-Nanded,

 2) Indrajit s/o Nagorao Mogale,
    Age-57 years, Occu:Service,
    As Block Development Officer,
    Panchayat Samiti, Loha,
    R/o-Loha, Tq-Loha, Dist-Nanded,

 3) Kalyan s/o Raosaheb Gayakwad,
    Age-Major, Occu:Labour,
    R/o-Borgaon (A.K.), Tq-Loha,
    Dist-Nanded.   
                                 ...RESPONDENTS 

                      ...
    Mr. E.P. Sawant Advocate h/f. Mr. M.P. Kale
    Advocate for  Applicant.
    Mr. D.R. Kale, A.P.P. for Respondent No.1.
    Mr. R.O. Awsarmol Advocate for Respondent No.2. 
    None present for Respondent No.3.
                      ...




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        WITH

        CRIMINAL APPLICATION NO.4232 OF 2016


 Janabai d/o Ramrao Phad,
 Age-27 years, Occu:Gramsevak,
 R/o: At Post-G.P. Bharaswada,
 Tq-Loha, Dist-Nanded.
                                 ...APPLICANT
                      
        VERSUS             

 1) The State of Maharashtra,
    Through Police Station Officer,
    Police Station, Loha,
    Tq-Loha, Dist-Nanded,

 2) Shri Indrajit s/o Nagorao Mogale,
    Age-Major, Occu:Service, Working as
    Assistant Block Development Officer,
    Panchayat Samiti, Loha,
    Tq-Loha, Dist-Nanded,
    R/o-Togari, Tq-Udgir, Dist-Nanded,

 3) Kalyan s/o Raosaheb Gaikwad,
    Age-Major, Occu:Agri.,,
    R/o-Borgaon (A.K.), Tq-Loha,
    Dist-Nanded.   
                                 ...RESPONDENTS

                      ...
    Mr.P.D. Bachate Advocate for  Applicant.
    Mr.D.R. Kale, A.P.P. for Respondent No.1.
    Mr.R.O. Awsarmol Advocate for Respondent No.2. 
    None present for Respondent No.3.
                      ...


               CORAM:   S.S. SHINDE AND
                        K.K. SONAWANE, JJ.

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DATE OF RESERVING JUDGMENT : 10TH APRIL,2017.

DATE OF PRONOUNCING JUDGMENT: 13TH APRIL, 2017.

JUDGMENT [PER S.S. SHINDE, J.]:

1. Rule. Rule made returnable forthwith and

heard finally with the consent of the learned

counsel appearing for the parties.

2. Since both the Applications take

exception to the First Information Report vide

Crime No.25 of 2016 registered with Police

Station, Loha, Dist-Nanded on 20th February, 2016,

for the offence punishable under Section 420 and

409 read with 34 of the Indian Penal Code, both

the Applications are heard together and being

disposed of by this common Judgment and Order.

3. The brief facts as disclosed in the

Applications are as under:

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. It is submitted that Applicant in

Criminal Application No.4949 of 2016 was working

as Sarpanch of village Borgaon(A.K.) and had taken

various development works in the village, out of

which some work has been completed whereas some

work was incomplete. It is submitted that

Applicant in Criminal Application No.4232 of 2016

was appointed as a Gramsevak at Borgaon (A.K.) and

had taken the charge of said post on 22nd February

2012. It is further stated in Criminal Application

No.4949 of 2016 that, one Kalyan Raosaheb Gaikwad

of village Borgaon posing himself as a social

worker, had filed so many complaints for various

reasons to various authorities including private

complaint before the Judicial Magistrate, First

Class, Loha. The said complaint making allegations

against the Applicants and other thirteen persons,

was dismissed by the Judicial Magistrate, First

Class, Loha. Thereafter said Kalyan Raosaheb

Gaikwad filed complaint with the Lokayukta making

various allegations. As such the Lokayukta

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directed the Chief Executive Officer to make

enquiry. As per the directions of the Lokayukta,

the Chief Executive Officer, Zilla Parishad,

Nanded appointed the committee under the

President-ship of the Deputy District Project Co-

ordinator, Employment Guarantee Scheme, Zilla

Parishad, Nanded. The said committee after

visiting various offices, inquired about an

allegations. Out of said allegations, in some of

the allegations said Committee found prima facie

case of irregularities committed by the Sarpanch,

Gram Rojgar Sevak, Gram Sevak and Post Master.

Accordingly committee gave report that the

Sarpanch, Gram Rojgar Sevak, Gram Sevak and Post

Master have committed irregularities and

ultimately resulted in misappropriation of public

money.

. The Applicant in Criminal Application

No.4949 of 2016, has denied all the allegations

levelled against him by filing reply before the

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Lokayukta and also before the Chief Executive

Officer, Zilla Parishad, Nanded. It was contended

in the said reply that without considering the

explanation of the Applicant, only on the basis of

political pressure, Block Development Officer,

Panchayat Samiti, Loha filed complaint with Police

Station Officer, Loha alleging that during the

period from 1st April, 2012 to 31st April, 2013

names of Kalyan Gaikwad, Godavari Gaikwad, Deelip

Gaikwad, Kalpana Gaikwad are appearing in the

attendance register but they have not worked and

an amount of Rs.10,978/- as shown in the

attendance register, was misappropriated by the

then Gram Sevak, Gram Rozgar Sevak, Sarpanch in

collusion with each other. It is submitted that on

perusal of the complaint it is clear that no

specific role is attributed to the Applicants and

only vague and baseless allegations are made.

There is no prima facie evidence against the

Applicants to proceed with the complaint. Hence

the Applications are filed praying therein to

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quash and set aside the impugned First Information

Report.

4. Learned counsel appearing for the

Applicants invites our attention to the contents

of the complaint filed by the complainant Kalyan

Raosaheb Gaikwad bearing O.M.C.A. No.1 of 2014 and

order passed by the Judicial Magistrate, First

Class, Loha in the said complaint. It is submitted

that initially the complainant filed the complaint

against the Applicants before the Judicial

Magistrate, First Class (J.M.F.C.), Loha wherein

also same allegations, like in the present First

Information Report, were made against the

Applicants. There were allegations of

misappropriation of the amount in the name of

deceased persons, minors and handicapped persons.

In the said complaint, order was passed by the

J.M.F.C., Loha on 1st January, 2014 and matter was

kept for recording verification of the

complainant. Learned counsel invites our attention

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to the order passed by the J.M.F.C., Loha on 8th

June, 2015 on merits of the said complaint and

submits that when the very same allegations are

already gone into by the J.M.F.C., Loha and if

said allegations have been already considered and

the complaint is dismissed, in that case the First

Information Report is not maintainable. It is

submitted that the complainant therein failed to

establish the nexus of the Applicants with the

alleged crime. Even in that case before the

J.M.F.C., Loha, the complainant did not adduce

sufficient evidence and as a result the said

complaint was dismissed. It is submitted that

thereafter also the Lokayukta directed enquiry and

accordingly enquiry was also conducted and it is

stated in the said enquiry report that there are

certain financial irregularities and there appears

to be some truth in the complaint made by the

complainant to the Lokayukta and therefore

appropriate action needs to be taken against Gram

Sevak, Gram Rojgar Sevak and Sarpanch. It is

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submitted that an amount of Rs.10,978/- was

already deposited by the Gram Sevak. It is

submitted that if at all there is any financial

irregularities, the Department is free to take

recourse to the civil remedy or can initiate the

enquiry, however, certainly the further

investigation on the basis of the impugned First

Information Report, is not warranted.

5. Learned counsel appearing for the

Applicant in Criminal Application No.4232 of 2016

submits that for the relevant period for which

allegations of misappropriation are made or when

the payment was actually disbursed, the Applicant

therein was not working as Gram Sevak. Applicant

had taken the charge of post of Gram Sevak on 22nd

February, 2012. The period, for which there are

allegations of misappropriation, is from 4th May,

2011 to 7th June, 2011. Therefore, the learned

counsel submits that even if the allegations in

the First Information Report are taken as it is,

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no offence is made out against the Applicant.

6. Learned A.P.P. appearing for the State,

relying upon the investigation papers and the

contents of the First Information Report, submits

that prima facie alleged offences are disclosed,

therefore those needs further investigation.

7. Though Respondent No.2 was represented

through Advocate and number of opportunities were

given to him, no reply was filed by him. None

appears for Respondent No.3 and no reply was filed

on behalf of Respondent No.3.

8. We have considered the submissions of the

counsel appearing for the Applicants and also the

learned A.P.P. appearing for the State.

9. We have carefully perused the allegations

in the complaint filed by one Shri Kalyan Raosaheb

Gaikwad in the Court of J.M.F.C., Loha and the

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detail order passed by the J.M.F.C., Loha on the

said complaint on 8th June, 2015. If the averments

in the said complaint are compared vis-a-vis

allegations made in the impugned First Information

Report, it is crystal clear that similar

allegations are levelled in the First Information

Report. Learned J.M.F.C., Loha, by reasoned

order, has dismissed the complaint with

observations that the complainant therein has

failed to file evidence in support of allegations

made in the complaint that the amount is

misappropriated by the Applicants, there is no

seal of the office on the documents produced on

record and that the complainant therein did not

take steps even after filing report by the police,

and ultimately conclusion was reached by the

J.M.F.C., Loha that there is no substance to issue

process against the Applicants.

10. As already observed, in the present case

also though the role of Respondent No.2 is

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important, in as much as he has lodged the First

Information Report, however he has not given any

instructions to his Lawyer to put forth his

contention. In that view of the matter, in our

opinion, the Applicants should not face the mental

agony of facing the investigation and also the

trial when already on the same set of

allegations, the J.M.F.C., Loha has entertained

the complaint bearing O.M.C.A. No.1 of 2014 and

dismissed the same on merits. The total amount

involved is Rs.10,978/- and as contended by the

learned counsel appearing for the Applicants, the

said amount is already deposited in the Government

Treasury. As already observed, pursuant to the

directions given by the Lokayukta that there

appears to be financial irregularities, it may be

open for the Respondent Authorities to take

appropriate steps including initiating

departmental enquiry, if any, against the Gram

Sevak, Gram Rojgar Sevak and also against the

Sarpanch for recovery, if at all the said amount

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is not yet deposited.

11. In our considered view, when the

J.M.F.C., Loha, competent Court of jurisdiction,

has already entertained the complaint on the same

set of allegations and dismissed the said

complaint, it is not desirable that the Applicants

should once again face the investigation.

12. In that view of the matter the impugned

First Information Report deserves to be quashed to

the extent of present Applicants. Accordingly the

First Information Report vide Crime No.25 of 2016

registered with Police Station, Loha, Dist-Nanded

on 20th February, 2016, for the offence punishable

under Section 420 and 409 read with 34 of the

Indian Penal Code, is quashed and set aside to

the extent of present Applicants.

13. Both the Criminal Applications are

allowed and same stand disposed of accordingly.

Rule made absolute, in above terms.

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14. However, we make it clear that it will be

open for the Respondent Authorities to take all

possible steps on civil side on the basis of

enquiry report submitted on 1st January, 2016 by

the Deputy District Project Co-ordinator

(M.N.G.S.), Employment Guarantee Scheme, Zilla

Parishad, Nanded.

[K.K. SONAWANE, J.] [S.S. SHINDE, J.] asb/APR17