Bombay High Court
State Of Maharashtra Thr. Police ... vs Satish S/O Narayandas Laddha on 17 November, 2017
Bench: A.S. Chandurkar
revn181.06
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Criminal Revision No. 181 of 2006
State of Maharashtra,
through Police Station Officer,
Police Station Nagbhid,
Distt. Chandrapur. ..... Applicant
Org. Respdt.
Versus
Satish son of Narayandas
Laddha,
aged about 42 years,
resident of Gondia,
Sub-Divisional Engineer,
Irrigation Department,
Gondia. ..... Non-applicant
*****
Ms. Shamsi Haidar, Addl. Public Prosecutor for the Applicant-
State.
Mr. R.M. Daga, Adv., for the non-applicant.
*****
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revn181.06
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CORAM : A.S. CHANDURKAR, J.
Date : 17th November, 2017
ORAL JUDGMENT:
01. This Revision Application filed under Section 397 of the Code
of Criminal Procedure, 1973 [for short, "the Code"] takes exception to
the judgment dated 10th April, 2006 passed by the learned Second Ad
Hoc Additional Sessions Judge, Chandrapur, in Criminal Revision No.
144 of 2005 whereby the non-applicant stands discharged from the
proceedings in Regular Criminal Case No. 113 of 2004.
02. The facts, in brief, are that according to the prosecution, the
work of excavation of a tank under the Employment Guarantee
Scheme was being conducted from 3rd May, 2001 to 12th June, 2001.
Accused No.1 was working as the Sectional Engineer, while Accused
No.2 was working as a Clerk. The accused No.3 - non-applicant herein
was working as the Sub-Divisional Engineer of the Irrigation
Department. The accused nos. 1 and 2 maintained the muster roll of
labourers during the aforesaid period and by manipulating the names
of those persons who had not actually worked, an amount of
Rs.2,40,000-00 was misappropriated. Crime No. 51 of 2004 was
lodged and after completing the investigation the charge-sheet came
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to be filed. The non-applicant filed an application under Section 239 of
the Code for discharge. The learned Magistrate rejected that
application by observing that offence under Sections 409 and 468 read
with Section 34 of the Indian Penal Code [for short, "the Penal Code"]
was made out and the non-applicant was liable to be tried. This order
was challenged before the Sessions Court and by the impugned
judgment the Revision Application came to be allowed.
03. Ms. S. Haidar, learned Addl. Public Prosecutor, submitted
that considering the entire material on record, the learned Judge of the
Sessions Court was not legally justified in discharging the non-
applicant. Without verifying the actual work done, the non-applicant
along with the other accused had disbursed a sum of Rs. 2,40,000-00.
An enquiry was also held in the matter which indicated
misappropriation of said amount. The statements of witnesses also
made out a prima facie case, due to which, the non-applicant was not
entitled to be discharged. There being necessary entrustment under
Section 408 of the Penal Code, the offence was made out and the non-
applicant was, thus, liable to face the trial. It was, therefore,
submitted that the impugned judgment was liable to be set aside.
04. Shri R.M. Daga, learned counsel for the non-applicant,
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supported the impugned judgment. According to him, none of the
ingredients of Sections 408 and 468 of the Penal Code were made out
against the non-applicant. The work of preparing the muster roll was
that of accused nos. 1 and 2 and the non-applicant was not directly
concerned with the same. He was the supervising authority and there
was no entrustment of the aforesaid amount to the non-applicant for
giving rise to the offence. According to the learned counsel, even in
the Departmental Enqury, the non-applicant was exonerated. The
statements of witnesses did not connect the non-applicant with the
said offence and he could not be attributed even with negligence in the
matter. In absence of any perversity, no interference was called for.
He referred to the judgment of the Honouralbe Supreme Court in Velji
Raghavji Patel Vs. State of Maharashtra [AIR 1965 SC 1433].
05. Heard the learned counsel and perused the records of the
case.
06. As per the report lodged, the muster rolls in question were
maintained by the accused no.2 and the necessary payment to the
labourers was made by accused no.1. The role of the non-applicant -
accused no.3 was of supervising and verifying the accounts maintained
by accused nos. 1 and 2. According to the prosecution, the non-
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applicant was not supervising the work of construction of the tank on a
daily basis. After doing so, the documents were to be forwarded to the
higher authorities.
07. The learned Judge of the Sessions Court after considering
the entire material on record found that none of the muster rolls had
the signature of the non-applicant. It was then found that there was
no "entrustment" so as to result in attracting the provisions of Section
408 of the Penal Code. In absence of any material to indicate that the
amounts in question were first given to the non-applicant who then
disbursed the same, it cannot be said that there was "entrustment" of
the aforesaid amounts to the non-applicant. There is, thus, no
dominion over the amount of Rs.2,40,000-00 as regards the non-
applicant. In absence of any entrustment of the amount in question in
favour of the non-applicant, the question of forgery being committed
by the non-applicant also does not arise. The other accused are being
tried for the offence punishable under Section 468 of the Penal Code.
Simplicitor negligence in verifying the records is one thing and act of
forgery under Section 468 of the Penal Code is another matter. I,
therefore, find that the learned Judge of the Sessions Court was legally
correct in observing that the non-applicant was entitled for discharge.
I do not find any perversity in that regard. The legal position is also
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clear from the decision in Velji Raghavji Patel [supra].
08. In view of aforesaid, I do not find any merit in the Criminal
Revision Application, which is accordingly rejected.
Judge
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