Bombay High Court
Shyam Tagde S/O Arjunrao Tagde vs Surendra Yashwantrao Dangre on 28 November, 2017
Bench: A.S. Chandurkar
Appln2793.08n853.09n836.09.odt 1/17
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION NO.2793 OF 2008
APPLICANT: Shyam Tagde S/o Shri Arjunrao Tagde,
aged about 45 years, Occupation:
Service, Chairman, Nagpur
Improvement Trust, r/o Alankar Talkies
Saquare, Nagpur.
-VERSUS-
NON- Surendra S/o Yashwantrao Dangre,
APPLILCANT:
Aged about 46 years, Occ. Agriculturist,
Resident of 78-A Juna Bagadganj,
Gangabai Ghat Nagpur.
Shri R. B. Dhore, Advocate for the applicant.
Shri A. P. Padhye, Advocate for the respondent.
WITH
CRIMINAL APPLICATION NO.853 OF 2009
APPLICANT: Dr. Sharad S/o Ganpatrao Kinkar, Aged
about 59 years, R/o 34, Talmale Estate,
Trimurti Nagar, Ring Road, Nagpur.
-VERSUS-
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NON- 1. Surendra S/o Yashwantrao Dangre,
APPLPICANTS:
Aged about 46 years, Occ. Agriculturist,
Resident of 78/A Juna Bagadganj,
Gangabai Ghat Nagpur.
2. The State of Maharashtra through Police
Station Officer, P. S. Khapa, Taluka
Saoner, Tah: Saoner, District Nagpur.
Shri S. P. Dharmadhikari, Senior Advocate with Shri D. V.
Chauhan, Advocate for the applicant.
Shri A. P. Padhye, Advocate for the respondent.
WITH
CRIMINAL APPLICATION NO.836 OF 2009
APPLICANT: Shri Keshav S/o Ishwardas Bawankar,
Aged about 44 years, R/o Samruddhi
Sankul, Building No.A-3, Flat No.301,
Amravati Road, Nagpur.
-VERSUS-
NON- 1. Surendra S/o Yashwantrao Dangre,
APPLICANTS:
Aged about 46 years, Occ. Agriculturist,
Resident of 78/A Juna Bagadganj,
Gangabai Ghat Nagpur.
2. Police Station Officer, P. S. Khapa,
Taluka Saoner, Tah: Saoner, District
Nagpur.
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Shri S. P. Dharmadhikari, Senior Advocate with Shri D. V.
Chauhan, Advocate for the applicant.
Shri A. P. Padhye, Advocate for the respondent.
CORAM: A.S. CHANDURKAR, J.
DATE ON WHICH SUBMISSIONS WERE HEARD: 09-11-2017.
DATE ON WHICH JUDGMENT IS PRONOUNCED: 30-11-2017.
ORAL JUDGMENT :
1. Since all these criminal applications filed under
Section 482 of the Code of Criminal Procedure,1973 (for short, the
Code) raise similar challenges, they are being decided by this
common judgment.
2. The facts in brief are that it is the case of the
complainant that he is a social worker and activist. The accused
nos. 1 and 2 are alleged to have prepared a forged certificate of
rent for the purposes of claiming a higher amount of
reimbursement towards rent in respect of an Ashram School.
According to the complainant, the accused no.1 was the President
of the Society running the Ashram School while accused no.2 was
the owner of the building which was given on rent to run the said
school. As per Government Resolution dated 1-2-1999,
Appln2793.08n853.09n836.09.odt 4/17
reimbursement to the extent of 75% of the actual rent was
admissible subject to certification by the Public Works Department.
The accused no.1 had applied to the Executive Engineer of the
Public Works Department for fixing the rent of the said building.
On that basis the Executive Engineer on 31-3-2001 informed the
accused no.1 that the rent was fixed at Rs.9875/- per month.
Though the accused Nos.1 and 2 were aware that the rent of the
said building was fixed at Rs.9875/- per month, they entered into
a criminal conspiracy with the accused no.3 and other officers of
the Tribal Department for preparing a forged certificate of rent.
Accordingly, a certificate showing monthly rent of Rs.14,575/-
came to be prepared for the period from 28-1-1999 to 27-1-2002.
It is then stated that the accused Nos.1 and 2 along with the
Project Officer got the amount of reimbursement sanctioned.
Though this fact was brought to the notice of the accused no.3 no
action was taken. An enquiry was held into the matter by the
Tribal Department. The accused no.3 during that period was
transferred to another department and the charge of his post was
taken by the accused no.4. The accused no.4 also did not take
necessary steps in the matter and therefore the complainant filed
the aforesaid complaint.
3. The learned Magistrate on 6-5-2008 was pleased to
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issue process against all the accused persons for the offence
punishable under Sections 409, 420, 467, 468 and 471 of the
Indian Penal Code read with Section 34 thereof. Being aggrieved,
some of the accused persons challenged this order before the
Sessions Court. Said challenge was however not accepted. Being
aggrieved the applicants have filed the present criminal
applications.
Criminal Application No.853/2009 has been filed by
the accused no.3 who was holding the post of the Additional
Commissioner (Tribal) for the period from 3-7-2005 to 3-6-2006.
Criminal Application No.2793/2008 is filed by the accused no.4
who entered office of the Additional Commissioner (Tribal) after
the accused No.3 was transferred and Criminal Application
No.836/2009 is filed by accused No.5 who was the Project Officer
in the Tribal Department.
4. Shri S. P. Dharmadhikari, learned Senior Counsel for
the applicant in Criminal Application No.853/2009 filed on behalf
of the accused no.3 submitted that the learned Magistrate was not
justified in issuing process against the accused no.3. It was urged
that in the entire complaint, the only grievance made against the
accused no.3 was that he did not scrutinize the certificate of rent
issued by the Project Officer and blindly sanctioned the rent
Appln2793.08n853.09n836.09.odt 6/17
amount as mentioned in that document. Though a complaint was
made to the accused no.3, he did not take any steps to find the
culprits as he was also involved in the said act. It was submitted
that on reading the entire complaint, the allegations were
principally against the accused Nos.1 and 2 and the officer from
the Public Works Department - accused No.6. No prima facie case
for the offence punishable under Sections 409 and 420 of the
Penal Code was made out against the accused No.3. It was then
submitted that it was necessary for the complainant to have
obtained necessary sanction under Section 197 of the Code in view
of the fact that the act alleged was done by the accused no.3 while
discharging his official duties. In the absence of any such sanction,
the process could not have been issued.
Shri D. V. Chauhan, learned Counsel for the applicant
in Criminal Application No.836/2009 preferred by the accused
no.5 while adopting the aforesaid submissions urged that the
reimbursement in the amount of rent was prescribed under the
Government Resolution dated 1-2-1999. As per said resolution an
amount equivalent to 75% of the rent admissible was reimbursed
by way of grant. This could be done on the basis of a certificate
issued by the Public Works Department. The accused no.5 was
merely the Project Officer who had acted on the basis of the
Appln2793.08n853.09n836.09.odt 7/17
certificate issued by the Public Works Department. The learned
Counsel placed reliance on the decisions in State of H. P. vs. M. P.
Gupta (2004) 2 SCC 349 on the aspect of requirement of sanction
and also the decision of the Andhra Pradesh High Court Dr. G.
Laksbminarayaiia vs. Inspector of Police, Humayun Nagar Police
Station, Hyderabad and another (1988) 1 ALT 109 to urge that
even before ordering an enquiry under Section 156(3) of the Code,
the requirement of seeking sanction ought to have been examined.
Shri R. B. Dhore, learned Counsel appearing in
Criminal Application No.2793/2008 preferred by the accused no.4
in addition to aforesaid submissions contended that accused No.4
was transferred on the post held by the accused no.3 and he had
been impleaded only on the count that he was holding said post
when the complaint was filed. According to him, the enquiry
proceedings that were commenced by the accused no.3 were
carried forward by the accused no.4. Though the said applicant
had not approached the Sessions Court as was done by other
accused persons, that could not be a ground for not entertaining
his challenge on merits especially when no case whatsoever was
made out against him. For said purpose, the learned Counsel relied
upon the decision in Prabhu Chawla vs. State of Rajasthan and
another (2016) 16 SCC 30.
Appln2793.08n853.09n836.09.odt 8/17
5. Shri A. P. Padhye, learned Counsel for the complainant
supported the impugned order. According to him, the averments
in the complaint were sufficient warranting issuance of process.
The role played by each accused person was clearly stated and as a
prima facie case was made out against each of them, the process
was rightly issued. The same was the result of due application of
mind. It would be a matter of trial for determining whether any
offence was duly proved to have been committed. At this stage, no
interference was called for. Relying upon the decision in
Anilkumar Jinabhai Patel and others Vs. State of Maharashtra and
others 2009 (3) Mh.L.J., it was submitted that as the acts alleged
were beyond the official duty of the concerned accused, it was not
necessary to obtain sanction. The learned Counsel also placed
reliance on the decision in Soma Chakravarty v. State AIR 2007 SC
2149. It was thus submitted that the applications deserve to be
dismissed.
6. I have heard the learned Counsel for the parties at
length and I have perused the documents filed on record. Perusal
of the complaint filed by the non-applicant no.1 indicates that he
has stated that he is a social worker and intends to eradicate
corruption. The accused no.1 was the President of a Society which
was running an Ashram School in the premises owned by the
Appln2793.08n853.09n836.09.odt 9/17
accused no.2. Said premises had been taken on rent. The accused
no.1 made an application to the Executive Engineer of the Public
Works Department for fixing the rent of the building owned by the
accused no.2. By letter dated 31-3-2001, the Executive Engineer
informed the accused no.1 that the rent was fixed at Rs.9875/- per
month for the period from 28-1-1999 till 27-1-2002. However, by
entering into a criminal conspiracy with the accused no.3 and
other officers of the Tribal Development Office, a forged certificate
of rent showing the amount of Rs.14,575/- per month for said
period was prepared. The accused no.3 did not scrutinize that
document and sanctioned the amount of rent. On that basis, the
accused nos.1 and 2 obtained an amount of Rs.5,72,168/- from the
Project Officer. It is on this basis that the complaint was filed. It is
further stated that though the matter was reported to the accused
no.3 and thereafter to the accused no.4 who took charge of the
office of the accused no.3, no steps were taken by them. Though
a first information report was sought to be lodged, the police
authorities did not take any action.
Thus, from the aforesaid complaint, it can be seen
according to the complainant that the accused no.1 was the
President of the Society which was running the Ashram School and
the accused no.2 was the owner of the premises where the said
Appln2793.08n853.09n836.09.odt 10/17
School was being conducted. The grievance against the accused
nos.3, 4 and 5 is that though the matter was reported to the
accused no.3 he did not make any enquiry and sanctioned the
amount of rent blindly.
7. While it is true that in proceedings seeking quashment
the defence of the accused cannot be considered, documents which
are beyond suspicion or doubt placed on record can be looked
into. Reference in this regard can be made to the observations in
paragraph 20 of the decision in Anita Malhotra v. Apparel Export
Promotion Council and another (2012) 1 SCC 520 wherein it has
been observed thus:
"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."
8. Certain factual aspects that are evident on record may
be referred to. According to the non-applicant, the premises owned
by the non-applicant no.2 in which the Ashram School was being
conducted by the Society managed by the accused No.1 was found
Appln2793.08n853.09n836.09.odt 11/17
admissible to monthly rent of Rs.9875/-. However, this certificate
issued by the Public Works Department was manipulated and on
that basis it was sought to be shown that the monthly rent
admissible was Rs.14,575/-. On 4-12-2006 the complainant made
a complaint with the accused No.3 stating therein that there had
been misappropriation in this matter and necessary enquiry be
made. On this basis the accused no.4 called for reports and
initiated an enquiry. Said enquiry proceedings were fixed for
hearing on 12-2-2007. On 12-2-2007, none of the parties including
the complainant remained present. The next date given was
21-2-2007. Even on this day all parties including the complainant
remained absent. In those proceedings, the accused no.3 directed
recovery of excess amount of rent paid to the accused no.1 which
amount was Rs.2,07,775/-. It is also to be noted that in the year
2006 an enquiry was held as to the manner in which the Ashram
School was being run by the accused no.1. In those proceedings,
its recognization came to be cancelled. This is the material on
record with regard to proceedings that had been initiated by the
accused no.3 in his capacity as Additional Commissioner of the
Tribal Department.
9. When the complaint made before the Additional
Commissioner was pending, the complainant filed the present
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proceedings on 14-2-2007. From the array of parties it can be seen
that the applicant no.3 was the Assistant Tribal Commissioner for
the period from 3-7-2005 to 3-6-2006. The accused No.4 thereafter
replaced him on the post of Assistant Tribal Commissioner. The
accused No.5 was the Project Officer with the Tribal Department.
The learned Magistrate had called for report under Section 156(3)
of the Code on the complaint filed by the non-applicant no.1.
Perusal of that report indicates that the accused no.1 had
approached the accused no.6 who was a tracer in the Public Works
Department for increasing the amount of rent that was mentioned
in the original certificate. Said accused no.6 demanded an amount
of Rs.10,000/- from the accused no.1 for said purpose and the
accused no.1 paid the same to the accused no.6. Thereafter the
accused no.6 got prepared the said certificate. This certificate was
then placed before the accused no.3 and he sanctioned the same.
The amount was then released in favour of accused no.1. As per
said report, the accused no.3 did not verify the facts and
sanctioned the proposal.
10. From the perusal of the complaint and the statements
recorded, it can be seen that the accused nos.1 and 2 along with
the accused no.6 who was from the Public Works Department got
the certificate in question prepared. The primary allegations in the
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complaint are against the accused Nos.1, 2 and the accused Nos.6
& 7. The applicants herein are related with Tribal Department and
they were required to act on the basis of documents prepared by
the Public Works Department. It is in that background that the
challenges as sought to be raised are required to be considered.
11. Process has been issued by the learned Magistrate for
the offences punishable under Sections 409, 420, 467, 468, 471
read with Section 34 of the Penal Code. In Soma Chakravarti
(supra) the Hon'ble Supreme Court in para 6 of the decision has
observed as under:
"6. The Courts although may take a
strict view of an offence where fraud is alleged
against a public servant, but only because it is
found to have been committed, the same by itself
may not be sufficient to arrive at a conclusion
that all officers who have dealt with the files at
one point of time or the other would be taking
part in conspiracy thereof or would otherwise be
guilty for aiding and abetting the offence. It is
necessary to deal with the individual acts of
criminal misconduct for finding out a case
therefor."
The accused Nos.3 & 4 were holding the responsible
post of Assistant Tribal Commissioner at the relevant time. The
reimbursement of the amount of rent is pursuant to Government
Resolution dated 1-2-1999. As per this resolution on a certificate
being issued by the Public Works Department as to the rent of the
premises, 75% of the amount thereof would be reimbursed by way
Appln2793.08n853.09n836.09.odt 14/17
of grant. From this Government Resolution it is clear that the
certification in question is required to be done by the Public Works
Department. Said accused Nos.3 and 4 were not concerned with
the Public Works Department but were from the Tribal Department
and they had to sanction the amount of grant on the basis of
certificate issued by the Public Works Department. The grievance
of the complainant is that the accused nos.3 and 4 without
verifying the relevant facts sanctioned the amount of rent on the
basis of documents placed before them. The absence of criminality
in the allegations made against them by the complainant is
evident.
12. From the aforesaid material, it can thus be seen that in
proceedings initiated by the accused no.3 steps were taken in the
matter of recovering the excess amount of grant disbursed in
favour of the accused no.1. This was pursuant to the complaint
filed by the complainant before the accused no.3. The complainant
however did not choose to participate in those proceedings and
instead pursued the present proceedings before the learned
Magistrate. On a reading of the entire complaint along with the
report submitted under Section 156(3) of the Code, I find that the
complaint as against the accused nos.3 to 5 is liable to be quashed.
The allegation against these accused is that without verifying the
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certificate issued by the Executive Engineer Public Works
Department, the amount of rent was sanctioned resulting in loss to
the public exchequer. The report of the police indicates the
alleged acts of the accused no.1 along with accused no.6 in having
the said certificate prepared for the same to be submitted through
the accused no.5 to the accused no.3. In the light of the orders
passed in the proceedings that were conducted by the accused
No.3 for recovering amounts in question prior to the order issuing
process, continuation of the present proceedings against the
accused Nos.3 to 5 would amount to abuse of the process of law.
The ingredients of offence under Section 409 and 420 of the Penal
Code in so far as the present applicants are concerned are
conspicuously absent. The observations of the Hon'ble Supreme
Court in Soma Chakravarty (supra) as regards negligence in
verifying bills do not assist the case of the complainant as in said
case it was found that the accused therein was not assigned the
duty of signing ad hoc advertisements but only the duty of signing
bills for regular advertisements. Similarly, the decision in
Anilkumar Patel (supra) also does not assist the case of the
complainant. I therefore find that a case has been made out to
quash the complaint against the accused nos.3 to 5.
13. In any event sanction for prosecuting the accused
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Nos.3 to 5 under Section 197 of the Code was also required to be
obtained. The acceptance of the certificate of rent was in discharge
of official duties. The test that would be applicable is whether said
accused could be proceeded against on account of dereliction of
duty. If they could be so proceeded against, then a case for
obtaining sanction under Section 197 of the Code would be made
out. Considering the fact that there is no criminality made out
against the accused Nos.3 to 5 and the allegation is that they had
sanctioned the rent certificate without verifying the same, the
sanction was necessary before proceeding against them with the
complaint. On this count also, the applicants are entitled to
succeed.
14. Once it is found that a case for quashing the complaint
has been made out by the accused nos.3 and 5, the mere fact that
the accused no.4 had not approached the Sessions Court under
Section 397 of the Code loses its significance. The observations in
Prabhu Chawla (supra) permit entertainment of the application of
accused no.4. The accused no.4 stepped into office on the transfer
of the accused no.3. I, therefore, do not find any justifiable reason
for not entertaining the challenge at the behest of the accused
no.4.
15. In view of aforesaid the order issuing process against
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the accused Nos.3 to 5 by the learned Magistrate on 6-5-2008 is
set aside. The complaint case filed against the accused nos.3 to 5
stands quashed. It is clarified that the complaint shall be tried
against the other accused persons on the basis of material before
the trial Court without being influenced by any observations made
in this order. The applications are allowed in aforesaid terms.
JUDGE
/MULEY/
