Bombay High Court
Shri S P Bodkhe And Others vs The State Of Maharashtra And Anr on 4 May, 2017
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 791 OF 2016
1. Shri. S.P. Bodkhe
Age : 40 years, Occu. Service
2. Mango Ramu Salunkhe
Gramsevak,
Age : 55 years, occu. Service,
3. Ushabai Balasaheb Parkhad,
Sarpanch
Age : 55 years, occu. Agri.,
4. Balasaheb Laxman Parkhad,
Rural Water Supply Committee,
President
Age : 60 years, Occu. Agri.,
5. Suresh Laxman Parkhad,
Rural Water Supply Committee,
Secretary,
Age : 52 years, Occu. Agri.,
6. Ukhardu Tukaram Borse,
Rural Water Supply Committee,
Secretary,
Age : 61 years, occu. Agri.,
7. Dipak Ukhardu Maware,
Technical Advisor,
Age : 38 years, Occu. Business,
8. Baburao Tukaram Kachate
Rural Water Supply Committee,
Member,
Age : 55 years, Occu. Agri.
9. Narayan Shankar Kirote
Rural Water Supply Committee,
Member,
Age : 40 years, Occu. Agri.
10. Tulshiram Sukadeo Gavhale,
Rural Water Supply Committee,
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Member,
Age : 50 years, Occu. Agri.,
11. Anil Ramdas Padhar,
Rural Water Supply Committee,
Member,
Age : 47 years, Occu. Agri.,
12. Baliram Shivram Kharate
Rural Water Supply Committee,
Member,
Age : 60 years, Occu. Agri.,
13. Narayan Sampat Jangle
Rural Water Supply Committee,
Member,
Age : 35 years, Occu. Agri.,
14. Rajendra Laxman Kapase
Rural Water Supply Committee,
Member,
Age : 45 years, Occu. Agri.,
15. Gajanan Damu Nanote
Rural Water Supply Committee,
Member,
Age : 40 years, Occu. Agri.,
16. Bajirao Tryambak Ghyar,
Rural Water Supply Committee,
Member,
Age : 52 years, Occu. Agri.,
17. Pandhari Tryambak Patil
Rural Water Supply Committee,
Member,
Age : 60 years, Occu. Agri.,
18. Devidas Dashrath Patil
Rural Water Supply Committee,
Member,
Age : 71 years, Occu. Agri.,
19. Ganesh Totaram Umbarkar
Rural Water Supply Committee,
Member,
Age : 60 years, Occu. Agri.,
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20. Smt. Nandabai Vasanta Kapase,
Rural Water Supply Committee,
Member,
Age : 50 years, Occu. Household
21. Vasanta Tryambak Sapkale
Rural Water Supply Committee,
Member,
Age : 42 years, Occu. Business,
22. Yuvraj Kisan Palve
Age : 45 years, Occu. Labour,
23. Samadhan Damu Nanote
Age : 47 years, Occu. Labour,
24. A.N. Patil,
Age : 55 years, Occu. Service,
Sub Divisional Officer,
Rural Water Supply,
Sub Division, Z.P. Jalgaon.
25. S.B. Tayade,
Age : 53 years, Occu. Service Sectional Engineer
Rural Water Supply,
Sub-Division, Z.P. Jalgaon.
R/o Plot No. 28, Ompark, Bhusawal
Tq. Bhusawal, Dist. Jalgaon
Petitioner No. 1 to 23
R/o Maldabhadi, Tq. Jamner,
Dist. Jalgaon.
Petitioner No. 24 & 25
R/o Rural Water Supply,
Sub Division, Z.P. Jalgaon. ....PETITIONERS
VERSUS
1. The State of Maharashtra,
Through Jamner Police Station,
Tq. Jamner, Dist. Jalgaon.
2. Sanjay Prakashchand Jain Munot,
Age : 41 years, Occu. Agri. & Business,
R/o Maldabhadi, Tq. Jamner,
Dist. Jalgaon. ...RESPONDENTS
.....
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Mr. K.D. Bade Patil, Advocate for Applicant
Mr. A.B. Girase, PP for Respondent-State
Mr. Sandeep Mundhe, Advocate for Respondent No. 2
.....
CORAM : S.S. SHINDE AND
K.K. SONAWANE, JJ.
RESERVED ON : 26th APRIL, 2017.
PRONOUNCED ON : 4th MAY, 2017
ORAL JUDGMENT :- [ Per: K.K. Sonawane, J.]
1] Rule. Rule made returnable forthwith. Heard finally, with consent
of the parties.
2] This petition is filed under section 482 of the Code of Criminal
Procedure (for short "Cr.P.C.) read with Article 226 of the Constitution of
India with following prayer:
"(B). To quash and set aside the order passed by the Ld.
Judicial Magistrate First Class, Jamner, Dist. Jalgaon in
Misc. Criminal application No. 148/2016 dated 7.6.2016
u/sec.156(3) of Cr.P.C. And also quash and set aside the
F.I.R. Bearing No. 83/2016 registered at Jamner Police
Station dated 13.6.2016 against the petitioners."
3] The learned counsel appearing for the petitioners vehemently
submitted that the Government of Maharashtra promulgated the
scheme/project known as "Swajal Dhara" for supply of water to the rural
area. The scheme was made applicable to the village Maldabhadi Tq.
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Jamner, District Jalgaon under Bharat Nirman programme of
Government of India. The estimated cost of the scheme was at Rs.
24,87,592/-. The concerned authority of Zilla Parishad, Jalgaon
accorded technical sanction on 14-12-2006 to the estimated cost of
Water Supply Scheme. However, the estimated cost of scheme was
revised up to Rs. 28,48,400/-. There was a Committee constituted,
namely "Rural Water Supply and Sanitation committee" (for short "Water
supply Committee"). The petitioners No. 1 and 2 were the Gramsevak of
Village Panchayat, Maldabhadi Tq. Jamner, Dist. Jalgaon whereas
petitioners No. 24 and 25 are the employees of Zilla Parishad Jalgaon.
Petitioners No. 22 & 23 are the labourers. Rest of the petitioners were
the officer bearers of the Water Supply Committee during the relevant
period.
4] The Water Supply Committee received the funds from the
contribution of Government for implementation of the Water Supply
Scheme as under :-
Date Amount
26-03-2007 7,83,592/-
19-07-2007 2,23,883/-
19-06-2009 9,95,038/-
07-02-2015 4,82,747/-
--------------------
Total 24,85,260/-
Accordingly, Water Supply Committee received total sum of Rs.
24,85,260/- for implementation of water supply scheme in the village
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Maldabhadi. The learned counsel for the petitioners submitted that
Respondent No. 2-Sanjay Prakashchand Jain Munot and one Mr.Damu
Bhikaji Malkhede were the Chairman and Secretary of the Committee
during the period 2008 to 2013. The installment of Rs. 9,41,778/- came
to be deposited on 17-06-2009 in the bank account of the Committee.
Respondent No. 2-Sanjay Munot being Chairman and Mr. Malkhede, being
Secretary of the Water Supply Committee withdrawn the amount of
Rs.2,80,656/- from the bank account. But, they completed the work of
the scheme only to the extent of amount of Rs. 1,28,651/-. The
concerned Block Development Officer (for short "BDO") and Deputy
Engineer carried out the inspection of the work and they found that
respondent No. 2 Shri. Sanjay Munot (Jain), Chairman and Mr Malkhede,
Secretary of the Committee, committed fraud and misappropriation of
the funds. Therefore, the criminal proceedings bearing Crime No.
57/2010 was lodged against them on 21/3/2010 for the offence under
sections 420, 408, read with section 34 of the Indian Penal Code (for
short "IPC"). The Sub-Divisional Officer, Rural Water Supply, Sub-
Division, Zilla Parishad, Jalgaon Shri. Rajendra Mandore preferred to file
First Information Report (for short "FIR") for penal action against
respondent No. 2 and another.
5] The learned counsel for petitioners submitted that, in the year
2013 the 'Rural Water Supply and Sanitation Committee' was
reconstituted and Petitioner No. 4-Balasaheb Laxman Parkhad and
Petitioner No. 6-Ukhardu Tukaram Borse were nominated as Chairman
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and Secretary of the Committee. There were certain irregularities and
deficiencies in the work. Thereafter, concerned Committee as per the
directions of Chief Executive Officer, Zilla Parishad Jalgaon complied
with all infirmities in the work. Therefore, the permission was granted
to the Committee of the petitioners to operate the bank account to carry
out and finalize the further work of the scheme. The letter of Executive
Engineer, Rural Water Scheme Zilla Parishad Jalgaon dated 19-11-2014 is
produced on record (Exhibit A-4).
6] According to learned counsel for the petitioners, there was no
misappropriation of funds committed by the petitioners. The enquiry was
carried out by the authority of Zilla Parishad, Jalgaon. The audit was also
conducted from the Government approved Auditor. There were no
allegations against the petitioner. But, Respondent No. 2-Sanjay Munot
(Jain) taking umbrage of lodging FIR against him, filed the false and
frivolous complaint before the Judicial Magistrate, First Class, Jamner.
7] The learned counsel also harped on the contentions that the
learned Magistrate did not apply his mind nor he verified the gravity of
the allegations and mechanically passed the impugned order which is
bad-in-law. Moreover, the learned Magistrate overlooked the
requirement of prior sanction under section 197 of Cr.P.C. against the
petitioners, who are Government Servants. The learned counsel fervidly
submitted that the impugned FIR is politically motivated and filed with
an ill intention to harass the petitioners. It is an abuse of process of law.
There was no compliance under section 154(1) and 154(3) of the Cr.P.C.
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nor the complainant has appended his affidavit with the complaint.
Therefore, the impugned criminal proceeding initiated against the
petitioners deserves to be quash and set aside. The learned counsel in
support of his argument relied upon the expositions of law in the case of
State of Maharashtra Versus Shashikant s/o Eknath Shinde 1, D.T.
Virupakshappa Versus C. Subhash 2, Anil Kumar and ors Versus M.K.
Aiyappa and anr.3 and Priyanka Shrivastava and another Vs. State of
Uttar Pradesh and others4, Eventually, learned counsel for petitioners
fervidly contended that the petition be allowed and impugned order of
learned Magistrate under section 156 (3) of Cr.P.C. and consequent
proceeding of Crime No. 83 of 2016 registered at Jamner Police station
be quashed and set aside.
8] Per contra, learned Public Prosecutor Mr. Girase for respondent
No. 1 - State vehemently submitted that the contentions put forth on
behalf of petitioners are incorrect, baseless and not considerable at all.
He contends that technical sanction for the estimated costs of the
scheme was accorded for Rs.24,87,592/- on 14-12-2006, but the scheme
was not implemented within prescribed period and thereafter revised
estimate of the proposed scheme to the tune of Rs. 28,48,400/- got
sanctioned from the concerned Zilla Parishad authority. According to
learned PP, in case of increase of amount in the revised estimate, more
than 15% of the total amount, a proposal was required to be referred to
1 2013 ALL.MR (Cri.) 3060
2 AIR 2015 SC 2022
3 (2013) 10 SCC 705
4 (2015) 6 SCC 287
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the Government for Technical sanction as per Government Resolution
dated 22-05-2008. In this case, the Committee of the petitioners itself
forwarded revised estimate and get it sanctioned from the Zilla Parishad
Authority by submitting forged documents. He further alleged that in the
month of December, 2002, in all 106 villagers of Maldabhadi on their own
volition contributed amount of Rs.2,80,000/- for the Water Supply
Scheme and deposited the same in the Bank account of Committee. But,
the Committee of the petitioners had withdrawn the amount under
pretext that it was deposited as an advance amount in the Bank and
thereby misappropriated the funds. The contribution of funds by the
community were not applicable to the present scheme as per
Government Resolution dated 09-07-2007. This amount ought to have
been returned to the villagers, who have contributed the same. But, the
petitioners in spite of refund of the amount to the villagers
misappropriated the same. According to learned PP, the petitioners also
indulged in the cash transaction for purchase of articles valued more
than Rs. 1000/-, which are not permissible as per the rules. He explained
that amount of Rs. 60,000/- was paid to one Mr. Prakash Parkahd, who
was not registered Contractor - Engineer. Moreover, the amount of Rs.
82,621/- was paid by cash to one Mr. Deepak Manware towards
supervision charges. The learned PP raised doubt about the genuineness
of the audit report as the record for the year 2009-2010, was not made
available to the Auditor and despite the same the earlier transaction of
the period 2009-2010 were shown audited in the audit report. There were
transactions in the name of President and Secretary of the Committee
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without any approval in the meeting of Gram Sabha. There are
overwriting on the vouchers, bills for purchase of material to the Water
Supply Scheme. There was also enquiry conducted by SDO of Zilla
Parishad and it was transpired that President and Secretary as well as
members of the Water Supply Committee, committed misappropriation of
the huge funds of the Government by preparing forged and fabricated
record. The learned PP explain the circumstances in detail and submitted
that the allegations nurtured against the petitioners are serious in
nature. The circumstances prima facie demonstrate that the cognizable
offences have been committed by the petitioners. Therefore, he prayed
to dismiss the petition.
9] The learned counsel appearing for respondent No. 2 also raised
objection to the contentions propounded on behalf of petitioners. He
stepped into the shoe of learned PP appearing for respondent No. 1, for
the allegations of mischief played on behalf of petitioners and
misappropriation of funds. He submitted that the audit of the account of
Water Supply Scheme was carried out by the Finance Department, Zilla
Parishad, Jalgaon. But, it was improper and imperfect one. The Auditor
did not scrutinized each and every transaction of the scheme minutely.
The expenses shown are incorrect and against the rule. The expenses
were shown incurred without any necessity. The quality of the work of
the scheme was also poor and substandard materials were used for the
scheme. There were complaints about quality and quantity of the work of
scheme. Therefore, in the year 2009-2010 Committee came to be
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constituted for enquiry into the allegation. The report of the Committee
itself would indicate that the expenses of Rs.9,24,172/- incurred were all
incorrect, illegally and without any work. The amount was withdrawn
from the bank accounts without any permission from the Gram Sabha.
10] The learned counsel Mr. Munde submits that the cash book and the
proceedings for the year 2009-2010 were not made available and
therefore audit of there relevant period could not be carried out. In the
circumstances, the Audit Report in regard to transaction of this period
deserves to be discarded. There were directions of the CEO of Zilla
Parishad, Jalgaon for registration of Crime in case the irregularities are
found in the affairs of the Committee as per Government Circular dated
06-12-2007. But, no any penal action was initiated against the petitioners
by the concerned BDO,Panchayat Samiti, Jamner. It has been submitted
that villagers and respondent No. 2 also filed representation to the
Government of Maharashtra for enquiry about illegal activities and
misappropriation by the petitioners. Thereafter, enquiry was directed to
be conducted for verification of the allegations made on behalf of
respondent No. 2 and others. The concerned Minister also issued
directions for the requisite enquiry into the allegations, but no any action
was initiated against the petitioners by the concerned authority of the
Zilla Parishad, Jalaon.
11] According to learned counsel Mr. Munde, actual work of the
scheme was valued at Rs. 19,17,004/-. But, the amount disbursed for the
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scheme was to the tune of Rs. 25,51,123/-. Therefore, inference can be
drawn that amount of Rs. 9,12,119/- from the public funds made
available for the scheme were misappropriated and swindled by the
petitioners. The learned counsel for respondent No. 2 submitted that
petitioners No. 22 and 23 are the labours and more than amount of Rs.
55,000/-cash was paid to them without any reasonable cause. The
amount spent for the scheme by the petitioners was without following
procedural formalities and against the Rule. The learned counsel for
respondent No. 2 asserted that all the petitioners in collusion with each
others indulged in illegal activities and misappropriated the public funds,
while implementing Water Supply Scheme at village Maldabhadi. The
allegations in the FIR prima facie constitute cognizable offence against
them. According to him, the learned Magistrate has correctly applied his
mind and passed the impugned order for investigation under section
156(3) of the Cr.P.C., which is just, proper and legal one. Therefore, he
prayed not to nod in favour of petitioners and dismiss the petition.
12] We have given anxious consideration to the submissions canvassed
on behalf of both sides. We have also delved into the relevant documents
produced on record. At this juncture, it is to be noted that there are
circumstances, which are not put into controversy on behalf of both
sides. It is an admitted fact that petitioner No. 4- Balasaheb Parkhad
and petitioner No. 5 Suresh Parkhad were the President and Secretary of
the Water Supply Committee for the year 2003-2008 and, thereafter,
respondent No. 2 - Sanjay Prakashchand (Jain) Munot and one Mr. Damu
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Bhikaji Malkhede were nominated as President and Secretary of the Rural
Water Supply and Sanitary Committee of village Maldabhadi for the
period April-2008 to January-2013. Thereafter, once again petitioner No.
4- Balasaheb Parkhad and one Mr. Yuvraj Kapase were appointed as
President and Secretary of the Committee for further period since
January- 2013 till April-2014 and thereafter also petitioner No. 4-
Balasaheb Parkhad was the President of the Committee up-till March,
2015 with Secretary Petitioner No. 6 - Mr. Ukhardu Tukaram Borse.
13] It is an admitted fact that respondent No. 2 - Sanjay Munot
preferred the private complaint bearing Miscellaneous Criminal
Application No. 148 of 2016 seeking investigation under section 156(3) of
the Cr.P.C. for the allegations of misappropriation of funds, forgery,
cheating etc. against the petitioners. The learned Magistrate appreciated
the circumstances and directed the Police of Jamner Police Station,
District Jalgaon for investigation of the allegations under section 156(3)
of the Cr.P.C. vide order dated 7th June, 2016. Pursuant to the directions
of the learned Magistrate, the Police of Jamner Police Station registered
the impugned FIR bearing Crime No. 83 of 2016 for the offence
punishable under sections 408, 409, 420, 437, 464, 465, 468, 471, 477
read with section 34 of the IPC and set the penal law in motion.
14] Being aggrieved with the impugned order dated 7 th June, 2016 ,
directing investigation under section 156(3) of Cr.P.C. and consequently
registration of FIR bearing Crime No. 83 of 2016, the petitioners
approached to this Court seeking relief to quash and set aside the
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impugned FIR by exercising inherent powers under section 482 of the IPC
read with section 226 of the Constitution of India.
15] At the inception, it has been contended on behalf of petitioners
that impugned FIR is totally false, baseless and filed only with ulterior
motive to wreak vengeance. There were no misappropriation or forgery
committed on the part of petitioners. In contrast, respondent No. 2 and
his associate were President and Secretary of the Water Supply
Committee of village Maladabhadi during the relevant period since April-
2008 to January, 2013. There were allegations that, the amount of
public fund worth Rs. 9,41,778/- came to be deposited in the bank
account of Water Supply Committee on 17-06-2009. However, respondent
No. 2 and the Secretary in connivance with each other withdrawn the
amount of Rs. 2,80,656/- from the bank account under the pretext of
work of Water Supply Scheme. But, after complaint, an enquiry was
conducted and it was revealed that the Committee has completed the
work only at the valuation of Rs.1,28,651/- and rest of the amount came
to be misappropriated. Therefore, the concerned BDO, Panchayat Samiti,
Jamner, after directions from higher authority filed FIR bearing Criminal
Miscellaneous Application No. 57 of 2010 to the Police Station, Jamner
under section 408, 420 read with section 34 of the IPC against respondent
No. 2. Taking umbrage of criminal proceeding respondent No. 2 initiated
the present false and frivolous proceedings against the petitioners.
16] Admittedly, there are counter allegations against each other on
behalf of petitioners and respondent No. 2 for misappropriation of public
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funds made available for implementation of Water Supply Scheme in the
village Maldabhadi Tahsil Jamner. According to respondent No. 2, during
the period 2013-2014 and 2014-2015 petitioners indulged in illegal
activities of cash transaction, forgery etc. and misappropriated public
funds to the tune of 15,17,619/- made available for the Water Supply
Scheme.
17] Taking into consideration the nature of allegations, we find it just
and proper to cause enquiry to ascertain genuineness and veracity of the
accusation of forgery, misappropriation, cheating etc. made against the
petitioners and for that purpose it would be essential to consider and
appreciate relevant documents pertaining to the Water Supply Scheme
produced on record. We are cautious that it would be improper and
impermissible to appreciate defence of the petitioners / accused or
embark into judicial enquiry to ascertain merits of the accusation. But,
the documents uncontroversial in nature produced on record on behalf of
petitioners/accused, if considered and in case it is found that the
accusation against accused are unsustainable and improbable, in such
peculiar circumstances, it is incumbent to appreciate these documents
while exercising powers under section 482 of the Cr.P.C., to meet the
ends of justice and to prevent abuse of process of law. It would
profitable to take recourse of the observations of Their Lordships of Apex
Court in the matter of Anita Malhotra Vs. Apparel Export Promotion
Council and another5, in paragraph No. 20 of said Judgment it has been
observed as below:
5 (2012)1SCC 520
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"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 aforesaid guidelines delineated by 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, Jalgaon to find out the crux of the matter.
18] It is worth to mention that tenure of earlier water supply
committee of the petitioner No.4 was since 26.1.2003 to 31.3.2008. The
respondent No.2 made the allegations that the petitioner Nos. 4 and 5
withdrawn an amount of Rs. 2,80,000/- collected from the villagers being
their contribution in the scheme. The said withdrawal was without any
intimation to other members of the Committee and without any record
but the amount was withdrawn with malafide intention to commit
mischief of fraud. In order to ascertain the veracity of these allegations,
we have verified the additional affidavit filed on behalf of petitioner. It
has been asserted that as per the requirement, the amount of
Rs.2,80,000/- were contributed by the villagers for implementation of
the scheme. Thereafter, the proposal was forwarded by the Gram
Panchayat to the concerned authority, but it was not approved and,
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therefore, the Committee came to be dissolved. However, prior to
dissolution of the earlier committee in the year 2005, the said amount
was withdrawn and refunded to the respective villagers who have
contributed the same for the implementation of the scheme. The
petitioners placed on record the Audit Report of the accounts of Water
Supply Committee for the year ending 31.3.2006. In the Audit Report, it
has been categorically mentioned that the books of accounts were kept
and maintained in proper manner. The expenditure incurred were
sanctioned by the Gram Sabha as well as approved by the concerned
authority. The concerned auditor has certified that the entire
transaction occurred in the year 2005-06 were as per the prescribed rules
It is to be noted that the concerned auditor did not raise the objections
about the withdrawal of fund of public contribution by the petitioners'
committee during the relevant period.
19] Moreover, the respondent No.2 had taken over the charge of
the committee being President since the year 2008, but, during his stint
also he did not ventilate the grievances for withdrawal of the amount of
public contribution on the part of the petitioners. But, after efflux of
colossal period the respondent No.2 cast the allegations of
misappropriation of funds by the petitioners on withdrawal of amount of
public contribution. Therefore, belated objections in the year 2015-2016
on the part of respondent No.2 created suspicion about the veracity and
genuineness of the allegations against the petitioners. In contrast, the
relevant documents on record adumbrates that the transactions during
the relevant period were valid as per rules.
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20] The respondent No.2 also assailed that petitioners during
the period 2013 to 2015 misused the funds of the scheme and without any
quality and quantity of work, incurred the expenses with ill-intention to
misappropriate the same. The petitioners in connivance with each other,
indulged in the illegal activities of fraud and cheating etc. There were
several irregularities and illegalities committed by the petitioners.
According to respondent No.2, several complaints were made to the
concerned authority but they did not take cognizance of the same nor
any action was initiated against the petitioners. Eventually, the
respondent No.2 approached to the learned Magistrate and filed present
private complaint for penal action against the petitioners.
21] We have ventured to go through all the relevant documents
produced on record which are uncontroversial in nature. It seems that
after the criminal proceedings initiated against the respondent No.2, by
the authority of Zilla Parishad, vide FIR bearing Crime NO. 57 of 2010 in
the Month of March, 2010, one, Shri Ramdas Dayaram Patil, filed the
complaint to the District collector, Jalgaon in the public meeting on
6.9.2010. He ventilated the grievances about the illegality and
misappropriation of public fund while implementation of the scheme of
Water Supply Scheme in village Maldabhadi. The District Collector, bade
the Chief Executive Officer, Zilla Parishad, Jalgaon to conduct the
enquiry. Accordingly, the inspection squad was constituted, comprising
Deputy Engineer, Assistant Executive Engineer, Sectional Engineer etc.
They all visited to the site of the Water Supply Scheme and carried out
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the inspection. Thereafter, the Inspection Squad forwarded its report to
the Chief Executive Officer, Zilla Parishad, Jalgaon. But, the opportunity
of hearing was not given to the petitioners and,therefore, they preferred
Writ Petition No. 460 of 2011, before this court to redress their
grievances. Thereafter, as per the directions of this Court, the petitioner
No.4 Shri Parkhad,was given an opportunity of hearing before the
concerned Chief Executive Officer, for the charges pitted against him.
The petitioner No.4 explained all the circumstances and produced the
relevant documents. After appreciating the relevant documents
produced on record, the concerned Chief Executive Officer, rescinded
and revoked the earlier allegations made against the petitioners and
granted permission to continue the work by operating the bank account.
The relevant order of the CEO, Zilla Parishad, Jalgaon, dated 11.8.2014,
is produced on record for perusal. The documents of Laboratory Testing
Report of water, Report of Geological survey, Report of Audit of the
Account, which were conducted by the panel Auditor of CAG, of
Government of Maharashtra, for the entire period and documents of
measurement book of the work of scheme and its valuation reports are
all placed on record. These documents demonstrate that the entire
affairs of the Water Supply Committee were checked and verified time
and again by the authority of the concerned Department. The
petitioners were allowed to continue the work of Water Supply Scheme.
There were no accusations of misappropriation of funds revealed during
the course of enquiry and verification of the documents by the concerned
authorities. It is true that there were some directions issued by the CEO,
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as per the order dated 11.8.2014, for compliance of some deficiencies in
the work of the scheme. But, the relevant letter correspondence indicate
that the Committee of the petitioners also complied with all the
infirmities and, thereafter, the petitioners were allowed to operate the
bank account and proceeded further for completion of the work of the
scheme. The grievance of the respondent No.2 and his associates Shri
Ramdas Dayaram Patil were already verified, scrutinized and checked on
multiple occasions by the concerned authority of the Government of
Maharashtra. The complaints filed on behalf of respondent No.2 and his
associate Shri Ramdas Patil were dealt with by the Government
Authorities. But, all the allegations were turned down for want of
circumstances adverse in nature against the petitioners. There was also
an attempt of hunger strike by the disgruntle Mr. Ramdas Patil, the
associate of the respondent No.2.
22] However, pursuant to continuous insistence on the part of
respondent No.2, once again the show cause notices were issued on
15.1.2016 to 4 members of the Water Supply Committee. The petitioners
gave reply to the show cause notices but the decision on those notices
are yet awaited. Meanwhile, the respondent NO.2 preferred the present
private complaint under section 200 of Cr.P.C. before the learned JMFC,
Jamner, pursuant to which the impugned FIR came to be registered
against the petitioners, which is the subject matter of the present
petition.
23] In view of the aforesaid chequered history of the progress of
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work of the Water Supply Scheme implemented in village Maldabhadi, it
would visualize that after the FIR bearing Crime No. 57 of 2010 against
the respondent No.2 filed in the year 2010, there were complaints
emanated against the petitioners on the part of respondent No.2 and his
associate Mr. Ramdas Patil. The attending circumstances would show
that the duo did not succeed in their attempt till the year 2016. There
were multiple inquiries pertaining to the allegations of irregularities and
illegalities into the quality and quantity of the work of the scheme as
well as misappropriation of funds. But, even after due enquiry and audit
of accounts by the Government authorities, no infirmities or irregularities
were discovered to show complicity of petitioners for the allegations
against them. Admittedly the work of the scheme during the period
2013-15 was carried out under the supervision and inspection of the
authority of the Government of Maharashtra. It is also essential to
appreciate that the work of the Water Supply Scheme was re-started on
the backdrop of illegal activities and fraud as well as misappropriation of
public fund on the part of respondent No.2. Therefore, the superior
officers of the Zilla Parishad, Jalgaon, must have been vigilant and taken
care for completion of rest of the work of the scheme without any
irregularity and illegality. It was an obligation of these officers to take
every precaution for maintaining the quality and quantity of the work of
scheme as prescribed under the norms and rules. In such circumstances,
it is preposterous to appreciate that there would have been any
misappropriation of fund by the petitioners during their tenure since
2013 to 2015. It is also incomprehensible to consider that the office
22 791.16 crwp
personnel of the Zilla Parishad, Jalgaon would indulge in such illegal
activities of misappropriation of funds, as alleged by the respondent
No.2. We find force in the contentions put forth on behalf of the
petitioners that the impugned FIR is the fallout of revengeful attitude
and demeanour of the respondent No.2 and his associate Ramdas Patil. It
is an abuse of process of law. It appears that the respondent No.2
attempted to utilize the jurisdiction of the Court of Magistrate for his
oblique purpose to wreak vengeance. The respondent No.2 is also facing
criming proceedings for the same allegations initiated at the instance of
authority of the Zilla Parishad, Jalgaon and it is alleged that taking
umbrage of the same, he filed the false and frivolous complaint against
the petitioners. Obviously, such kind of abuse of process of law would
not be at all sustainable and maintainable one.
24] 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
23 791.16 crwp
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.
25] 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 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."
26] The Honourable Apex Court, in the case of G. Sagar Suri
and another vs. State of U.P. And others, (2000)2 SCC 636, in para. 8
has held as under :-
"8. Jurisdiction under Section 482 of the Code has
to be exercised with a great care. In exercise of its
24 791.16 crwp
jurisdiction High court is not to examine the matter
superficially. It is to be seen if a matter, which is
essentially of civil nature, has been given a cloak of
criminal offence. Criminal proceedings are not a
short cut of other remedies available in law. Before
issuing process a criminal Court has to exercise a
great deal of caution. For the accused it is a serious
matter. This Court has laid certain principles on the
basis of which High Court is to exercise its
jurisdiction under Section 482 of the Code.
Jurisdiction under this Section has to be exercised to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice."
27] In the instant case, the factual score referred (supra)
categorically demonstrate that the petitioners were related with the
Water Supply Committee during the period 2003 to 2008 and thereafter,
2013 to 2015. The allegations nurtured on behalf of the respondent No.2
Sanjay Jain Munot and his associate Ramdas Patil, all were considered by
the authority of the Govt. of Maharashtra time and again. There were
requisite enquiries conducted to test the veracity of the allegations
nurtured against the petitioners. The audit of the accounts were also
carried out by the Government approved auditors. The report of the
Geological Survey department, and allied institution also verified the
quantity and quality of the work of the scheme during the relevant
period. In such circumstances, the inescapable conclusion/inference can
be drawn that prior to lodging the FIR against the respondent No.2,
there were no complaints of misappropriation of public fund of the
scheme in the year 2006 nor there were any objections about the cash
transactions or purchase of material or expenses incurred for the scheme
etc. uptil September, 2010. All the allegations were cropped up
25 791.16 crwp
thereafter on lodging the FIR bearing Crime No.57 of 2010 against the
respondent No.2, in the month of March, 2010. Therefore, we are of the
considered opinion that the impugned FIR registered for the penal action
against the petitioners is an abuse of process of law. The allegations
that the respondent No.2 filed the impugned FIR against the petitioners
with purported motivation to vent his wrath, appears just, proper and
considerable one. The attempt of the respondent No.2 is evidently to
rope in all the officials who are concerned with the Water Supply Scheme
during the period 2013 to 2015. In such circumstances, we have no
hesitation to arrive at the conclusion that the impugned FIR is an abuse
of process of law, filed with an ill-intention to harass the petitioners .
Therefore, the respondent No.2 can not be allowed to wreak vengeance
by utilizing the short cut remedy of lodging the FIR against the
petitioners. Hence, there is no impediment to quash and set aside the
impugned FIR by exercising the inherent jurisdiction under Section 482 of
Cr.P.C. and Article 226 of the Constitution of India. In the case of State
of Haryaba vs. Ch. Bhajanlal,(Supra) the Hon'ble Apex Court delinated
that if the criminal proceeding is initiated with oblique motive, it should
be quashed in the interest of justice. Taking recourse of these
guidelines, we do not find any impediment to exercise powers under
Section 482 of the Cr.P.C. in favour of petitioners.
28] The another legal objection raised on behalf of petitioners
is in regard to non compliance of the provisions of Sections 154(1) and
154(3) of Cr.P.C. prior to avail the remedy under section 156(3) of
26 791.16 crwp
Cr.P.C. It has also been brought to the notice of this Court that the
complainant/respondent No.2 did not append his affidavit duly sworn,
accompanied with his complaint instituted before the Magistrate. The
non compliance of these mandatory legal provisions found detrimental to
the impugned criminal proceeding initiated against the petitioners. It
has also been alleged that the impugned order of the learned Magistrate
under Section 156(3) of Cr.P.C. came to be passed without application of
judicious mind. The learned Magistrate did not appreciate the
circumstances on record in proper manner and mechanically passed the
impugned order for investigation under Section 156(3) of Cr.P.C.
29] The intense scrutiny of the attending circumstances on
record reflects that the arguments canvassed on behalf of petitioners
appear sustainable and considerable one. In the matter of Priyanka
Shrivastava Vs. State of Uttar Pradesh reported in (2015)
6 SCC 287, Their Lordships observed in para. Nos. 26 and 27, as
follows:-
"26. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind. A court of
law is involved. It is not the police taking steps at the stage of
Section 154 of the code. A litigant at his own whim cannot
invoke the authority of the Magistrate. A principled and really
grieved citizen with clean hands must have free access to
invoke the said power. It protects the citizens but when pervert
litigations takes this route to harass their fellows citizens,
efforts are to be made to scuttle and curb the same.
27. In our considered opinion, a stage has come in this
country where Section 156(3) Cr.P.C. Applications are to be
27 791.16 crwp
supported by an affidavit duly sworn by the applicant who
seeks the invocation of the jurisdiction of the Magistrate. That
apart, in an appropriate case, the learned Magistrate would be
well advised to verify the truth and also can verify the veracity
of the allegations. This affidavit can make the applicant more
responsible. We are compelled to say so as such kind of
applications are being filed in a routine manner without taking
any responsibility whatsoever only to harass certain persons.
That apart, it becomes more disturbing and alarming when one
tries to pick up people who are passing orders under a
statutory provision which can be challenged under the
framework of said Act or under Article 226 of the Constitution
of India. But it cannot be done to take undue advantage in a
criminal court as if somebody is determined to settle the
scores. We have already indicated that there has to be prior
applications under Section 154(1) and 154(3) while filing a
petition under Section 156(3). Both the aspects should be
clearly spelt out in the application and necessary documents to
that effect shall be filed. The warrant for giving a direction that
an the application under section 156(3) be supported by an
affidavit so that the person making the application should be
conscious and also endeavour to see that no false affidavit is
made. It is because once an affidavit is found to be false, he
will be liable for prosecution in accordance with law. This will
deter him to casually invoke the authority of the Magistrate
under Section 156(3). That apart, we have already stated that
the veracity of the same can also be verified by the learned
Magistrate, regard being had to the nature of allegations of the
case. We are compelled to say so as a number of cases
pertaining to fiscal sphere, matrimonial dispute/family disputes,
commercial offences, medical negligence cases, corruption
cases and the cases where there is abnormal delay/laches in
initiating criminal prosecution, as are illustrated in Lalita Kumari
are being filed. That apart, the learned Magistrate would also
be aware of the delay in lodging of the FIR."
28 791.16 crwp
30] The Division Bench of this Court at Nagpur in the case of
State of Maharashtra vs. Shashikant Eknath Shinde (2013) All MR
(Cri.) 3060, dealt with the legal issue relating to the application of mind
by the Magistrate while passing the order under Section 156(3) of Cr.P.C.
It has been held in para. 28,29 and 30 as under :
28. It can, thus, be seen that the Apex Court in
unequivocal terms has held that where a
jurisdiction is exercised on a complaint petition
filed under Section 156(3) or Section 200 of the Code
of Criminal Procedure, the Magistrate is required to
apply his mind.
29. The Apex Court in the said case has referred to its
earlier observations made in the case of Pepsi Foods
Ltd. And another vs. Special Judicial Magistrate and
others, reported in (1998) 5 SCC 749),[1998 ALL MR
(Cri.) 144 (S.C.)] which reads thus:
"Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the complainant
has to bring only two witnesses to support his
allegations in the complaint to have the criminal law
set into motion. The order of the Magistrate
summoning the accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of
allegations made in the complaint and the evidence
both oral and documentary in support thereof and
would that be sufficient for the complainant to succeed
in bringing charge home to the accused. It is not that
the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
the accused. The magistrate has to carefully scrutinize
29 791.16 crwp
the evidence brought on record and may even himself
put questions to the complainant and his witnesses to
elicit answers to find out the truthfulness of the
allegations or otherwise and then examine if any
offence is prima facie committed by all or any of the
accused.
30. In view of the aforesaid Judgments of the Apex
Court, it can, thus, clearly be seen that when the
Magistrate passes order directing investigation under
Section 156 (3) of .Cr.P.C, it is necessary that, prior to
doing so, he should apply his mind to the case before
him. Least that is expected of the Magistrate, is to
verify from the averments of the complaint as to
whether the ingredients to constitute the offence/s
complained of have been made out or not. As such the
order under Section 156(3) of Cr.P.C., should depict
the application of mind. No doubt the Magistrate is not
expected to give elaborate Judgment at that stage.
However, the least expected is that the order should
depict application of mind and as to how the complaint
discloses the ingredients to constitute the offence
complained of."
31] In the light of the aforesaid principles of law, it is
mandatory for the learned Magistrate to apply his mind to the allegations
made in the complaint and only when the allegations nurtured on behalf
of complainant make out the ingredients to constitute a cognizable
offence,then only the learned Magistrate can pass order of investigation
under Section 156(3) of the Cr.P.C.
30 791.16 crwp
32] In the instant case, we find that there was no compliance of
mandatory provisions of Section 154(1) and 154(3) of Cr.P.C. No doubt,
there was a cursory remark by the learned Magistrate that, "the record
also reflects that the complainant approached, the concerned police
other authorities as well as the Superintendent of Police, Jalgaon, but till
date no action has been taken against the accused". However, there are
no documents produced on record except the averments in the
complaint/application about the mandatory compliance of Section 154(1)
and 154(3) of Cr.P.C. These legal infirmities in the impugned order
passed by the learned Magistrate definitely deserve to be considered in
favour of petitioners. There was also no affidavit duly sworn by the
complainant appended with the complaint/application to initiate penal
action against the petitioners. All these circumstances are sufficient to
draw inference that the learned Magistrate did not apply his judicious
mind and mechanically passed the impugned order. He did not
appreciate the nature and gravity of the allegations, even though, he had
observed that there were no specific sections of IPC mentioned in the
complaint. In such circumstances, we do not find any impediment to
draw the inference that the learned Magistrate ventured to deal with the
complaint/application of respondent No.2 in a very casual manner
ignoring the compliance of mandatory provisions of law. On this legal
aspect also, the impugned FIR deserves to be quashed and set aside,
which was registered pursuant to the order passed by the learned
Magistrate without jurisdiction.
31 791.16 crwp
33] In the above premises, we are of the considered opinion
that the impugned order of the learned Magistrate under Section 156(3)
of Cr.P.C. and consequent proceeding of registration of Crime bearing
No. I-83 of 2016, appears not sustainable and maintainable within the
purview of law. In contrast, the circumstances adumbrates that the
impugned criminal proceedings came to be initiated against the
petitioners with malafide intention to wreak vengeance. Therefore, the
allegations that the impugned FIR is an abuse of process of law, found
reasonable and proper. It is expedient in the interest of justice not to
allow the prosecution to continue against the petitioners at the behest of
respondent No.2. Therefore, the impugned order of the learned
Magistrate directing investigation under Section 156(3) of Cr.P.C. and
consequent proceeding of registration of FIR deserves to be quashed and
set aside. Hence, we do not find any impediment to allow the petition.
34] As referred supra, show cause notices were issued to 4
members of the Water Supply Committee on 15.1.2016 and the
concerned 4 members have also given reply to the show cause notices,
but the decision on those notices are yet to be awaited. Needless to
state that the Government authority will be at liberty to proceed further
for appropriate decision on the said show cause notices issued to 4
members of the Water Supply Committee for taking them to the logical
end. While taking decision in regard to those show cause notices, the
authority shall not be influenced by the findings expressed hereinabove.
32 791.16 crwp
34] In the light of aforesaid observations, the 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, J.] [S.S. SHINDE, J.]
grt/-
