Sukamal Dhondiram Sekhare vs The State Of Maharashtra And ...
2017 Latest Caselaw 2094 Bom

                                      {1}
                                                                 crwp 1222.16 f.odt

                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD

                   CRIMINAL WRIT PETITION NO. 1222 OF 2016


Sau. Sukamal Dhondiram Sakhare,
Age : 46, Occu. Agriculture,
& Member of Village Panchayat Chinchpur,
R/o Dharur, District Beed.                                  ...PETITIONER
                                                             (Ori. Accused)
       versus

1.     State of Maharashtra
       Through Police Inspector,
       Police Station : Yusuf Wadgaon,
       Tq. Kaij, Dist. Beed.

2.     Executive Engineer,
       Rural Water Supply Division,
       Zilla Parishad, Beed.

3.     M.A. Thorat,
       Sectional Engineer and
       Incharge Deputy Engineer,
       Rural Water Supply, Sub-Division,
       Zilla Parishad, Beed.

4.     Ashok Bhaskar Handibag,
       Age : Major, Occu. Country Liquor,
       (Shop) Business, R/o Chinchpur,
       Tq. Dharur, District : Beed.
                                                         ...RESPONDENTS
                                                        (Ori. Complainant)
                                     .....
Mr. V.D. Salunke, Advocate for Applicant
Mr. S.G. Karlekar, APP for Respondent-State
Mr. K.B. Jadhav, Advocate for Respondent No. 2 & 3
                                     .....

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

RESERVED ON : 24th FEBRUARY, 2017.

PRONOUNCED ON : 2nd MAY, 2017

JUDGMENT : ( Per : K.K. Sonawane, J.)

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1] The petitioner moved the present petition taking recourse to

Section 482 of the Cr.P.C. and Article 226 of the constitution of India, seeking

relief to quash and set aside the impugned FIR bearing Crime No. 142 of

2015, registered at Yusuf wadgaon Police station, District Beed for the

offence punishable under Section 409, 420, r/w. 34 of IPC against petitioner

and others for the allegations of criminal breach of trust, cheating etc. by

misappropriation of public funds.

2] It has been alleged that the Govt. of Maharashtra under the

aegis of Central Government promulgate the scheme/project known as

"Swajaldhara" to improve the ground water level and supply of water to the

rural area. Accordingly, the Govt. of Maharashtra issued the Govt. Resolution

dated 2nd April, 2004 and delineated the guidelines for management and

implementation, disbursement of funds, monitoring and supervision etc. of

the scheme. It has been contended that the scheme was made applicable to

the village Chinchpur Tq. Dharur, dist. Beed. The petitioner was the member

of the Gram Panchayat Chinchpur during the period 2008 to 2013. She was

also elected as Upa-Sarpanch of the village for the period of 2012-13.

Pursuant to the scheme/project of the Government of Maharashtra, the

Rural Water Supply and Sanitation Committee ( for short "Water supply

committee") at the village level came to be constituted and the petitioner

was nominated as a Secretary. The estimated cost of the entire project

was calculated at Rs. 37,32,450/- and it was revised to Rs. 42,76,400/-. The

concerned Department of the Rural Water Supply, Zilla Parishad, Beed had

also given technical sanction to the proposed estimated cost of the scheme.

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The funds of Rs. 40,63,104/- was made available to the Rural Water Supply

Scheme of village Chinchpur, including the Govt. contribution as well as

contribution from the public. Accordingly, the work of the proposed water

supply scheme of village Chinchpur was commenced in the year 2008 and

came to be completed around the year 2013.

In the month of December, 2012, there was fresh elections of

the Gram Panchayat of village Chinchpur and the charge of the Water Supply

Committee was given to the newly elected members of the Gram Panchayat

on 25.3.2013 by the petitioner and since then the petitioner has no concern

at all with the alleged scheme. However, on 10.12.2015, respondent No.3

Shri Thorat, Deputy Engineer, Rural Water Supply Sub-Division, Zilla Parishad

Beed approached to the police of Yusuf Wadgaon police station and filed the

impugned FIR bearing Crime No. 142 of 2015. It has been alleged that the

Rural Water Supply Scheme at village Chinchpur was sanctioned by the Govt.

of Maharashtra under the Bharat Nirman Programme. The estimated cost of

the scheme as per the technical sanction was Rs 42,76,400/-. The total

funds of Rs. 40,63,104/- was made available to the concerned scheme by

way of Govt. contribution as well as contribution from the community. After

completion of the entire scheme, only a sum of Rs. 1089/- was shown as

balance in the bank account of the scheme. The respondent No.4 Ashok

Bhaskar Handibag made allegations that there was misappropriation of public

funds while implementing the Water Supply Scheme at village Chinchpur. He

had also launched agitation and given threats of self-immolation for

initiating action against the members of the Gram Panchayat. Therefore,

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the concerned District Collector, Beed bade for requisite enquiry into the

allegations. The first informant Shri Thorat, Deputy Engineer, and his

associate Shri Salunke, Sectional Engineer of Rural Water Supply Department,

Zilla Parishad, Beed conducted the enquiry. They visited to the sites and

carried out local inspection. The first informant Shri Thorat Deputy

Engineer, forwarded the report of preliminary enquiry to the Executive

Engineer, Rural Water Supply Sub Division, Beed. Thereafter, the Executive

Engineer constituted a Committee of 4 members for fact finding enquiry into

the allegations of misappropriation of public funds. Meanwhile, the first

informant Shri Thorat was directed by the Executive Engineer, Rural Water

Supply, Zilla Parishad, Beed to lodge the FIR against the petitioner and other

office bearers of the Gram Panchayat for the allegations of criminal breach

of trust, cheating etc. It has been alleged that during the enquiry, valuation

of the work of water supply scheme was re-assessed and it was found that

the approximate valuation of the work carried out under the scheme was Rs.

29,31,033/-. However, fund of Rs. 40,63,104/- was made available, out of

which only Rs. 1089/- shown balance in the bank account. Therefore, the

office personnel of the Zilla Parishad, Beed arrived at the conclusion that

rest of the amount of Rs. 11,30,892/- was misappropriated and swindled by

the office bearers of the Rural Water Supply and Sanitation Committee of

village Chinchpur. The petitioner being secretary of the Committee was one

of the authorized person for operating the bank account of the scheme.

Therefore, the first informant Shri Thorat, Deputy Engineer, Zilla Parishad,

Beed lodged the impugned FIR against the petitioner and others, the validity,

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legality and propriety of which is agitated in the present petition.

3] Shri Salunke, learned counsel for the petitioner vehemently

submitted that the entire allegations made against the petitioner are totally

false, baseless and frivolous. The allegations made in the FIR do not prima

facie constitute any cognizable offence against the petitioner. According to

Shri Salunke, the work of water supply scheme at village Chinchpur was

commenced as per the letter dated 5.12.2008, addressed to the Deputy

Chief Executive Engineer, Zilla Parishad, Beed as well as concerned Block

Development Officer, Panchayat Samiti, Dharur. It was directed to both

these authorities to monitor and supervise the work of alleged scheme

sanctioned by the Government of Maharashtra for village Chinchpur. Shri

Salunke submitted that as per Govt. guidelines, the work of water supply

scheme was undertaken by the Gram Panchayat, Chinchpur. In view of the

progress and quality of the work carried out on behalf of Gram Panchayat

Chinchpur, the Govt. Authorities disbursed the installments of the funds

payable for the scheme in favour of the Water Supply Committee. The

assessment of the work and utilization of the funds were verified time and

again by the office personnel of the Zilla Parishad, Beed. The members of

the Competent committee visited to the site and conducted the local

inspection of the work carried out under the scheme. There were no

complaints in regard to the quality and quantity of the work of the alleged

scheme. Learned counsel Shri Salunke pointed out that pursuant to the

Government Resolution dated 2nd April, 2004, there was a District Executive

committee headed by the chief Executive Officer, Zilla Parishad, Beed. The

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concerned District Executive Committee was to supervise and monitor the

work for implementation of the scheme. It was also directed that the

concerned Technical Expert from the panel of Zilla Parishad Beed, would

visit to the proposed work of the scheme for verification about its quality

etc. and to submit report to the District Executive Committee for requisite

action. Learned counsel Shri Salunke drawn attention towards the chunk of

documents, bearing signature and acknowledgement of the office personnel

of Zilla Parishad Beed. He contended that the entire work of the scheme

was carried out under the supervision of the office personnel of Zilla

Parishad, Beed, and there was no complaint in regard to the quality of the

work or misappropriation of public funds. According to Shri Salunke, the

impugned FIR came to be filed due to political rivalry. He explained that the

respondent No.4 was having a country liquor shop in the village Chinchpur.

There were complaints against the liquor shop of respondent No.4. He is

the person of criminal antecedents. Pursuant to public outcry, the Gram

Panchayat of village Chinchpur has taken a decision to shut down the country

liquor shop of respondent No.4 Ashok Handibag and passed the resolution to

that effect in the meeting dated 15.8.2015. But, taking umbrage of the

action of Gram Panchayat against the country liquor shop of respondent

No.4 Ashok Handibag, he indulged in the activities to harass the office

bearers of the Gram Panchayat on one or other pretext. He attempted to

pressurize the officers of the Zilla Parishad for initiating action against the

Gram Panchayat Chinchpur. He also made allegations of misappropriation of

funds in the Water Supply Scheme by the office bearers of the Gram

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Panchayat Chinchpur. The respondent no.4 Ashok Handibag and his associates

launched agitation and by scaling on the mobile tower, they gave threats of

self-immolation in case no action is taken against the Gram Panchayat,

Chinchpur, for misappropriation of funds in the Water Supply Scheme.

Thereafter,the Executive Engineer, Rural Water Supply, Sub Division, Beed

has given written assurance to the respondent No.4 for requisite action into

the matter. According to Shri Salunke, the impugned FIR is a fallout of the

written assurance given to respondent No.4 Ashok Handibag. He fervidly

contended that the entire scheme was commenced in the year 2008 and

completed in the year 2013. The newly elected members of the Gram

Panchayat took over the charge of the affairs of the Water Supply Committee

in the month of March, 2013. Uptill August/September, 2013, there was no

complaint or grievance about the work of Water Supply scheme carried out

in the village. But, after the resolution of closing down the country liquor

shop of respondent No.4 in the meeting dated 15.8.2015, the entire trouble

emanated for the office bearers of the Gram Panchayat, village Chinchpur.

The impugned FIR is filed with malafide intention to harass the petitioner.

The allegations are made with ulterior motive to wreak vengeance on the

part of respondent No.4 Ashok Handibag. The allegations made in the FIR

even if considered and appreciated at their face value and accepted in its

entirety, do not prima facie constitute any offence against the petitioners.

The office personnel of the Zilla Parishad time and again visited to the site

and carried out the local inspection. After their verification, the further

installments from the contribution of Government fund were disbursed in

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favour of the scheme. In such circumstances, the allegations made at

belated stage after a colossal period since 2008 would not be taken into

consideration and deserves to be brushed aside and ignored, being made to

wreak vengeance. Therefore, the learned counsel Shri Salunke prayed to

quash and set aside the impugned FIR by exercising inherent powers under

section 482 of Cr.P.C.

4] In refutal, learned APP as well as learned counsel for

respondent Nos.2 and 3 opposed the contentions propounded on behalf of

petitioner. They submitted that the Water Supply Scheme was being

implemented under the Bharat Nirman Programme of the Central

Government. The work of the scheme was carried out from the funds made

available from the contribution of Government as well as funds collected

from the public. The total amount of Rs. 40,63,104/- was made available out

of which except balance of Rs. 1089/- in the bank account, rest of the

amount was shown spent for the implementation of the scheme. But, during

the enquiry, the office personnel of the Zilla Parishad, Beed, made

revaluation of the work carried out under the scheme and it was found that

the approximate valuation of the work of the scheme was only Rs.

29,31,033/-. Therefore, the adverse inference was drawn that the concerned

office bearers of the Water Supply Committee of Panchayat Samiti,

Chinchpur misappropriated rest of the amount of Rs. 11,30,892/-. Moreover,

the petitioner was the Secretary of the Committee and she was authorized

to operate bank account of the scheme. Therefore, learned APP and

learned counsel for respondent Nos. 2 and 3 vehemently submitted that the

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entire allegations made in the FIR, prima facie, constitute commission of

cognizable offence of criminal breach of trust and cheating by the petitioner.

Hence, it would not just and proper to invoke powers under Section 482 of

Cr.P.C. to quash and set aside the impugned FIR.

5] We have carefully considered the rival submission propounded

on behalf of both sides. We have also delved into the documents produced

on record, including the police investigation papers. The intense scrutiny of

the factual score in the light of relevant documents on record, reflects that

the argument canvassed on behalf of learned counsel Shri Salunke appears

considerable and sustainable one. There are attending circumstances on

record which impelled us to think about the agitation of respondent No.4

which culminated in filing the FIR.

6] At the threshold, we venture to deal with some of the

significant features of the scheme "Swajaldhara" implemented under the

directions of the Central Government. There was an Govt. Resolution dated

2nd April, 2004 issued by the Govt. of Maharashtra for guidelines in regard to,

the mode and manner of implementation of the scheme in rural area. The

Government Resolution dated 2nd April, 2004 adumbrates in-built mechanism

to monitor and supervise the work of the scheme to be carried out in rural

area, including the guidelines for allocation of funds, etc. There were

directions to constitute the Committees at State level, District level and

Village level, for better management and effective supervision of the work

as well as disbursement of Government funds, auditing of the accounts etc.

{10} crwp 1222.16 f.odt

There was a provision to form Core Group of professional/experts to assist

the Committee for proper implementation of the scheme. The Chief

Executive Officer as well as Executive Engineer, Rural Water Supply, Zilla

Parishad, Beed were the Chairman and Member Secretary of the District

Executive Committee comprising 15 members from various Government

departments. The District Executive Committee has a managerial and

supervisory power over the work of the scheme to be implemented in the

rural area. The District Executive Committee is also authorized to conduct

joint inspection with Village Committee and to take care about the quality

and quantity of the work carried out under the scheme. There was also

provision about auditing of the accounts of scheme from the approved

auditor. The relevant provisions of Clause VII of the Govt. Resolution dated

2nd April, 2004 is extracted as below :-

           7-       izdYikrhy ;kstukaP;k xq.koRrse/;s fu;a=.k
           v½       ftYgkifj"knsrhy ik.kh iqjoBk foHkkxkrhy ;k izdYikvarxZr xzkeiapk;rhauh

?ksrysY;k dkekaph xq.koRrk ;ksX; jkghy ;kn`"Vhus osGksosGh dkekaph rikl.kh djrhy- rlsp] ftYgk ifj"knsP;k brj rkaf=d foHkkxkaph enrgh eq[; dk;Zdkjh vf/kdkjh] ftYgk ifj"kn vko';drsuqlkj ?ksÅ 'kdrhy- c½ dkekP;k xq.koRksps fu;a=.k dj.;klkBh ftYgk dk;Zdkjh lferh rKkapk pew xBhr djsy o gk rK pew rhu efgU;krwu fdeku ,dnk dkekuk izR;{k HksVh nsbZy o v'kk dkekaP;k xq.koRrsph rikl.kh d#u vgoky ftYgk dk;Zdkjh lferh o ftYgk ifj"knsP;k tyla/kkj.k o is; ty lferh lknj djsy- d½ dkekr nks"k vk<Gwu vkY;kl v'kk nks"kkaph iwrZrk >kY;kf'kok; xzkeiapk;rhyk dke dj.;klkBh iq<hy gIrk miyC/k d#u fnyk tk.kkj ukgh ;kph tckcnkjh ftYgk dk;Zdkjh lferhph jkghy-

M½ ftYgk Lrjkojhy xq.koRrk rikl.kh f'kok; jkT; ik.kh iqjoBk o LoPNrk fe'ku Loty/kkjk ;kstus varxZr dkekaps jW.Me i/nrhus rKkaps pewekQZr

{11} crwp 1222.16 f.odt

rikl.kh djhy- ;klkBh ik.kh iqjoBk fe'ku egkjk"Vª thou izkf/kdj.k] Hkwty loZs{k.k o fodkl ;a=.kk vkf.k brj ckgsjhy ;a=.kkrhy rKkaps pew r;kj d#u R;kekQZr gh rikl.kh d#u ?ksbZy- dssanz 'kklukP;k Loty/kkjk ;kstusP;k ekxZn'kZd lwpusuwlkj o {ks= lq/kkj.kk izfdz;suqlkj ;kstukaph dkes lq# vkgsr o HkkSfrd dkekph xq.koRrk ;ksX; vkgs ;kckcrgh jkT; fe'ku dk;Zokgh djsy-

7] In such backdrop, we proceed to examine the validity and

propriety of the impugned FIR for penal action against the petitioner.

Admittedly, the scheme of Rural Water Supply known as "Swajaldhara" was

made applicable to village Chinchpur, Taluka Dharur, Dist. Beed. The work of

the scheme was undertaken by the Gram Panchayat, Chinchpur. Pursuant to

the Govt. Resolution dated 2/4/2004, the Rural Water supply and Sanitation

Committee (Water supply Committee) was constituted and the petitioner

being member of the Gram Panchayat was nominated as a Secretary of the

Water Supply committee. In order to monitor and supervise the work of

Water Supply Committee, there was District Executive Committee and the

Chief Executive Officer as well as Executive Engineer, Rural Water Supply

Division, Zilla Parishad, Beed, were the Chairman and Member Secretary,

respectively, of the Executive Committee at the District Level. The

estimated cost of the scheme approved by the authority of the Zilla

Parishad, Beed was 42,76,400/-. The work of the scheme was commenced in

the year 2008 and completed around the year 2012-13. The chunk of

documents produced on record on behalf of petitioner demonstrate that the

entire work of the scheme was carried out under the supervision of the

office personnel of Zilla Parishad Beed. We came across with one letter of

{12} crwp 1222.16 f.odt

the concerned Block Development Officer, Panchayat Samiti, Dharur dated

20/3/2014 (Exhibit I) addressed to the Executive Engineer, Rural Water

Supply Division, Zilla Parishad, Beed who was also the Member Secretary of

the District Level Committee for the scheme. In the letter, the concerned

BDO categorically stated that he conducted the inspection and it was

revealed that the funds allocated were all utilized for the work of the

scheme and there was no irregularity or misappropriation of the funds. The

concerned BDO recommended to release the last and final installment of the

Govt. fund for the scheme. We have also perused the police investigation

papers of the crime. There are documents showing the factual aspect that

office personnel of the Zilla Parishad, Beed, time and again visited and

verified the quality and quantity of the work of the scheme. We have also

perused the documents of Contingency Bill sanctioned by the concerned

Executive Engineer, Rural Water Supply, Zilla Parishad, Beed. He was also

the Member Secretary of the District Level Committee. The Executive

Engineer, Rural Water Supply, Zilla Parishad, Beed, after verification of the

reports of technical experts and his office personnel etc. as well as on his

own subjective satisfaction, accorded the sanction for final installment of

the amount payable to the scheme. It was transpired that the Executive

Engineer, allowed to pay the last installment of Rs. 14,61,326/- in favour of

the scheme from the budget available for the year 2012-13. The Executive

Engineer, while allocation of the last installment of the scheme, appended

the certificate that after personal verification he found that the

expenditure incurred for the scheme was correct and same was essential to

{13} crwp 1222.16 f.odt

be incurred for completion of the scheme. The bill was under the caption

"Contingency Expenditure Bill (Form No. 29)" and the relevant extract of the

said certificate appended under the signature and seal of the Executive

Engineer, is reproduced as below :-

"1½ eh izek.khr djrks dh] ;k fcykar vkdjysyk [kpZ iq.kZi.ks vko';d gksrk vkf.k

izR;{ki.ks dsysyk vkgs-

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dk;Zdkjh vfHk;ark xzkeh.k ik.kh iqjoBk foHkkx] ft-i- chM D:\Ganarl File\ORDER.doc

8] At this juncture, we are conscious of the fact that it would be

unjust and improper to appreciate the defence of the accused or indulge in

the enquiry to ascertain the merits of the accusations. But, the documents

produced on record on behalf of the petitioner/accused which are

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uncontroversial in nature and in case, such documents are considered and if

it is found that the accusations against the applicants are unsustainable and

improbable , in such a matter, it is incumbent and obligatory on the part of

the High Court, to appreciate these documents while exercising the powrs

under Section 482 of Cr.P.C. to meet the ends of justice and prevent abuse of

process of law. It would be profitable to take recourse of the observations of

Their Lordships of the Apex Court, in the matter of Anita Malhotra Vs.

Apparel Export Promotion Council and another, reported in (2012)1 SCC

520, in para. No. 20 of said judgment are reproduced hereinbelow :-

"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."

In view of the aforesaid observations of the Honourable Apex Court, we do

not find any impediment to appreciate the documents placed on record,

particularly, official documents of the Water Supply Scheme of the Zilla

Parishad, Beed, as well as Government notifications for the guidelines to

implement the water supply scheme in the rural area etc. Obviously, all

these documents are unquestionable and beyond suspicion or doubt.

Therefore, we venture to consider those documents for the enquiry in

respect of the merits of the accusation and its sustainability.

{15} crwp 1222.16 f.odt

9] As referred supra,after due verification and inspection by the

authority of the Zilla Parishad, Beed, the requisite installment of

Government contribution was disbursed in favour of the Village Committee

for implementation of the scheme. In all, the total sum of Rs. 40,63,104/-

was made available out of estimated cost of Rs. 42,76,400/- for the

aforesaid Water Supply Scheme of village Chinchpur. The said amount

includes both contribution of the funds by the Government and funds

collected from the public contribution. It is to be noted that there were no

complaints or grievances about the quality or quantity of the work of the

scheme uptill the month of October, 2015 nor any Government authority of

the Zilla Parishad, raised objection about the deficiency or infirmity in the

work of the scheme. The petitioner categorically stated that in the year

2012-13, there were fresh elections of the Gram Panchayat, Chinchpur and

she had handed over the charge of the Water Supply Committee to the newly

elected members of the Gram Panchayat in the month of March, 2013.

Admittedly, during the stint of the petitioner being a Secretary of the Water

Supply Scheme, there were no complaints or grievances about any

malpractices/misappropriation etc. in the work of the scheme. The authority

of the Zilla Parishad, Beed was also found satisfied about the quality and

quantity of the work carried out under the Water Supply Scheme, otherwise,

there would have no disbursement of final installment of the Govt.

contribution for the scheme. In such peculiar circumstances, the allegations

of infirmities in the work of the scheme and thereby misappropriation of

public money, after a colossal period since the year 2008, on

{16} crwp 1222.16 f.odt

commencement of the work under supervision of Zilla Parishad, Beed

appears preposterous and incomprehensible one.

10] We find some force in the submissions of the learned counsel

for petitioner that the impugned FIR is politically motivated and filed only to

wreak vengeance against the office bearers of the Gram Panchayat,

Chinchpur. The petitioner produced on record documents pertaining to the

news published in daily newspaper about the agitation launched by the

respondent No.4 Ashok Handibag, for initiating action against the Gram

Panchayat, Chinchpur, for misappropriation of funds in the Water Supply

Scheme. His complaint dated 1/10/2015 is also produced on record (Exhibit

R-1) addressed to the District Collector, Beed, in which he has insisted the

District Collector to take action on his complaint prior to 30/10/2015,

otherwise, the villagers would resort to hunger strike in front of the

Collector office, Beed. There are news paper cuttings depicting the

agitation launched by the respondent No.4 and his associates by scaling on

the mobile tower. They persuaded for penal action against the petitioner on

the allegations of misappropriation of funds in the Bharat Nirman Scheme.

There are circumstances available on record to point out that the

respondent No.4 and his associates, taking umbrage of the resolution passed

by the Gram Panchayat, dated 15.8.2015 to close down the country liquor

shop of the respondent No.4, located in the village Chinchpur, launched

agitation only with an purported motivation to harass the office bears of the

Gram Panchayat. The impugned FIR appears to be a fallout of the political

rivalry and filed only with an ulterior motive to wreak vengeance.

{17} crwp 1222.16 f.odt

11] It is the settled rule of law that jurisdiction under Section 482

of Cr.P.C. has to be exercised very sparingly and with great deal of caution.

It has been delineated that in exercise of its jurisdiction the High Court is

not to examine the matter superficially but it is essential to be seen that the

criminal proceedings are not a short-cut of other remedies available in law.

Undisputedly, the inherent powers under Section 482 of the Cr.P.C. has to be

exercised to prevent abuse of process of any court of law, or otherwise to

secure the ends of justice. In the case of State of Karnataka Vs. L.

Muniswamy, reported in 1977 Cri.L.J. 1125, the Hon'ble Supreme Court

has laid down that in the exercise of the wholesome powers under Section

482 of the Code, the High Court is entitled to quash a proceeding if it comes

to the conclusion that allowing the proceeding to continue would be an

abuse of process of the court of law or that the ends of justice require that

the proceedings are to be quashed.

12] In the matter of State of Haryana vs. Ch. Bhajanlal and

others AIR 1992 SC 604, in para.104, it has been observed as below :-

104. Speaking for the Bench, Ranganath Mishra, J. as he then was in Madhavrao Jiwaji Rao Scindia V. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 : (AIR 1988 SC 709) has expounded the law as follows : (at p.711 of AIR)

" The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a

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particular case to consider whether it is expedient and in the interest of justice is permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceedings even though it may be at a preliminary stage."

13] We would like to reiterate that apparently from the evidence

on record, an inescapable conclusion can be drawn that prior to complaint

dated 1/10/2015 filed by respondent No.4, there were no grievances about

the poor quality, use of sub-standard material, or work being in-complete

etc, but after the resolution dated 15 th August, 2015, passed by the Gram

Panchayat Chinchpur thereby closing the country liquor shop of respondent

No.4, allegations cropped up against the office bearers of the Gram

Panchayat for misappropriation of funds in the Water Supply Scheme.

14] We are at our wit's end that when the work of water supply

scheme was carried out under the supervision and inspection of the authority

of Zilla Parishad, Beed, as contemplated under the guidelines of Govt.

Resolution dated 2/4/2004, in such circumstances, how the authority of the

Zilla Parishad would itself lodge the impugned FIR against the Gram

Panchayat authority. The entire work was executed under the directions of

the office personnel of the Zilla Parishad, Beed, itself. The action of

impugned FIR appears absurd and illogical one. There was condition under

Clause 7 of the Govt. Resolution dated 2/4/2004 that no installment be

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allowed to be disbursed in case of any infirmity in the work. In the instant

case the Executive Engineer, Zilla Parishad, Beed allowed the Contingency

Bill from the budget of the year 2012-13 and disbursed the final installment

in favour of village committee. These circumstances would constrain to

conclude that all the work of scheme was carried out as per norms of the

Government and, therefore, last installment was paid for the scheme.

15] Moreover, we are at a loss to understand that for what purpose

the Executive Engineer, Rural Water Supply Division, Zilla Parishad, Beed who

was himself the Member Secretary of the District Executive Committee for

the scheme, proceeded to constitute a Committee of 4 office personnel of

the Zilla Parishad, for re-assessment of the work of the scheme. It is to be

noted that the technical sanction for estimated cost of the scheme was Rs.

42,76,400/- and after due verification and inspection of the quality and

quantity of the work carried out under the scheme, the installments of the

funds from Govt. contribution were released and disbursed in favour of the

Water Supply Committee. Under such circumstances, when the entire

documents of measurement, its valuation as well as report of Technical

Experts of the work of scheme, all were available in the office of the

Executive Engineer, Zilla Parishad, Beed, then for what reason the Executive

Engineer felt it necessary to conduct revaluation of the work of scheme.

The constitution of committee of office personnel of the Zilla Parishad once

again for enquiry into the matter, appears inexplicable and paradoxical one.

It would hard to appreciate that the valuation done in the year 2015-16 of

the work of scheme completed long back would give correct data for

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inference of misappropriation of public funds. It would cumbersome to

appreciate the enquiry report of the Zilla Parishad personnel as conclusive

proof for adverse inference against the petitioner. In such circumstances,

the allegations of misappropriation of funds against petitioners appears to

be detrimental, prejudicial causing injustice to her. Therefore, the penal

action initiated by filing the impugned FIR cannot be considered as legal,

proper and within the ambit of law. The circumstances demonstrate that the

impugned FIR came to be filed after agitation of Respondent No. 4 which

was launched with purported motivation to vent wrath. The entire attempt

of respondent No.4 is evidently to rope in all office bearers of the Gram

Panchayat, concerned with the implementation of scheme in the village

during the period 2012-13. It would be an abuse of process of law. The

documents of the Water Supply Scheme of the office of Executive Engineer,

Zilla Parishad, Beed and the resolution of Gram Panchayat to shut down the

country liquor shop of the respondent No.4 speaks volume. Therefore, there

is no impediment to draw the inference that the invoking of jurisdiction of

the criminal court in this case is an abuse of process and not permissible

under the law. The disgruntled respondent No.4 cannot be allowed to vent

his wrath by making the authority of Zilla Parishad, Beed to file impugned

FIR against the petitioner.

16] At this stage, we would like to make a reference of various

kinds of cases wherein the powers under Section 482 of Cr.P.C. and under

Article 226 of the Constitution of India are permitted to be exercised, as per

the guidelines delineated in the case of State of Haryana vs. Ch. Bhajanlal

{21} crwp 1222.16 f.odt

and others reported in AIR 1992 SC 604. Their Lordships of the Apex

Court, in para. No. 108, which read thus :-

108. In the backdrop of the interpretation

of the various relevant provisions of the Code

under Chapter XIV and of the principles of law

enunciated by this Court in a series of decisions

relating to the exercise of the extra-ordinary

power under Article 226 or the inherent powers

under Section 482 of the Code which we have

extracted and reproduced above, we give the

following categories of cases by way of

illustration wherein such power could be

exercised either to prevent abuse of the process

of any Court or otherwise to secure the ends of

justice, though it may not be possible to lay

down any precise, clearly defined and

sufficiently channelised and inflexible

guidelines or rigid formulae and to give an

exhaustive list of myriad kinds of cases wherein

such power should be exercised.

1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under

{22} crwp 1222.16 f.odt

Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

17] In the above premises, we have no hesitation to exercise the

inherent powers under Section 482 of the Cr.P.C. in favour of petitioner. We

are of the considered opinion that the impugned FIR is an abuse of process of

law as same is filed with malafide intention to harass the petitioner as well

as with ulterior motive to vent wrath owing to criminal action already

initiated against respondent No.2. It is expedient in the interest of justice

{23} crwp 1222.16 f.odt

not to allow prosecution to continue against the petitioner. There was an

in-built mechanism available for sanction & disbursement of the funds for

implementation of the scheme in the rural area. It seems that initially the

impugned FIR is filed against the office bearers of the Gram Panchayat and

technical service provider only, but, lateron, I.O. arraigned the concerned

Deputy Engineer and Sectional Engineer of the Rural Water Supply, Sub

Division, Beed as accused in this case. But, we find that the petitioner

cannot be made scapegoat for the allegation of misappropriation of funds

after a colossal period since year 2008. The penal action initiated against the

petitioner appears to be unsustainable and misconceived one. Therefore,

the impugned FIR deserves to be quashed and set aside to the extent of

petitioner in this case. In case, higher authority of the Government found

that there was some mischief played pertaining to public fund or infirmity in

the quality of the work, and the petitioner is responsible for the same, the

civil action for recovery of the amount, if any, could have been undertaken

against the delinquent petitioner. At this juncture, the circumstances on

record demonstrates that impugned penal action is not sustainable and

maintainable against the petitioner within the purview of law. Hence, we

find no impediment to allow the petition and quash and set aside the

impugned FIR to the extent of petitioner - Smt. Sukamal Dhondiram Sakhare.

We make it clear that the observations made hereinabove, are prima-facie in

nature and considered only to the extent of role of the petitioner in this

crime and confined to the present petitioner only. Needless to state that the

other co-accused in this crime are not entitled to derive any sort of benefit

{24} crwp 1222.16 f.odt

from the observations made hereinahove.

17] For the aforesaid reasons, writ petition stands allowed. Rule is

made absolute in terms of prayer clause (B). The impugned FIR is quashed

and set aside. Writ petition stands disposed of accordingly.

        [K.K.SONAWANE]                                   [S.S. SHINDE]
          JUDGE                                            JUDGE
grt/-