Baban S/O Sakharam Jadhao vs The State Of Maharashtra, Thr The ...
2022 Latest Caselaw 7916 Bom

                                      1                                 21 apl293.21 (J).odt


     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
              : NAGPUR BENCH : NAGPUR.


         CRIMINAL APPLICATION (APL) NO. 293 OF 2021

APPLICANT                  : Baban S/o Sakharam Jadhao,
                             Aged about 56 years, Occu. Service,
                             R/o Dwarka Building, Sawarkar Chowk,
                             Chaitanyawadi, Buldhana,
                             Tah. and Dist. Buldhana.

                                           VERSUS

NON-APPLICANTS: 1] State of Maharashtra,
                   Through the Police Station Officer,
                   Raipur Police Station, Tah. & Dist. Buldhana.

                              2] Vitthal S/o Shamrao Jadhao,
                                 Aged about 52 years, Occu. Service, Asstant
                                 Block Development Officer,
                                 Presently at Panchayat Samiti, Sindkhedraja,
                                 Tah. Sindkhedraja, Dist. Buldhana.

---------------------------------------------------------------------------------------------------
          Mr. N. B. Kalwaghe, Advocate for the applicant.
          Mr. I. J. Damle, A.P.P. for the non-applicant no.1
          Mr. G. G. Mishra, Advocate for non-applicant no.2
---------------------------------------------------------------------------------------------------

            CORAM : MANISH PITALE and G. A. SANAP, JJ.

DATE : AUGUST 17, 2022.

ORAL JUDGMENT (PER : Manish Pitale, J.)

1. Admit. Heard finally by consent of the learned counsel

appearing for the rival parties.

2 21 apl293.21 (J).odt

2. By this application, the applicant (accused no.2) is seeking

quashing of first information report and charge-sheet as against him for

the offences punishable under Sections 420, 471, 417 read with

Section 34 of the Indian Penal Code, registered vide Crime No.

60/2018 with Police Station. Raipur, Dist. Buldhana.

3. The backdrop in which the first information report dated

24.04.2018 stood registered against the accused persons is that under a

specific scheme floated by the non-applicant - State, pertaining to

grant of financial assistance for digging and construction of well in

agricultural field, the persons below poverty line and belonging to the

Scheduled Caste community were eligible. Accused no.1 claimed to be

a person satisfying the requirements of the said scheme. Accordingly,

accused no.1 submitted an application as per the format prescribed

under the scheme and claimed to be belonging to the Scheduled Caste

community and having annual income of Rs.21,000/-. The application

was made in respect of Gat Nos. 336/338 for benefit of the said

scheme. The applicant, working as Agricultural Officer, at that time

In-charge Block Development Officer, was required to scrutinize the 3 21 apl293.21 (J).odt

application, verify the truthfulness of the claim made and then forward

the application for further processing to the Scrutiny Committee,

constituted under the aforesaid scheme.

4. The accused no.1 had placed on record documents along

with the application, including 7/12 extracts, Caste Certificate and

income certificate issued by the Naib Tahsildar, showing annual

income of Rs.21,000/- from agricultural operations. On the basis of

the application and the documents filed therewith, the applicant issued

a certificate giving favourable recommendation, stating that the details

submitted on behalf of accused no.1 at point Nos.1 to 17 in the

application form upon verification, were found to be correct. On this

basis, the Scrutiny Committee further processed the application and

eventually granted benefit to accused no.1, as a consequence of which

an amount of Rs. One lakh in two equal installments was disbursed to

accused no.1 for digging and construction of well in Gat No. 336.

5. It appears that subsequently there was a complaint made

alleging that accused no.1 was not eligible for benefit under the said 4 21 apl293.21 (J).odt

scheme for the reason that he was in service as Health Assistant in the

Office of District Malaria Officer and that therefore, his income was

such that he was obviously above the poverty line. On receiving such

complaint, the applicant was called upon to verify the truthfulness of

the said complaint and an explanation was sought as to why the

applicant had given favourable recommendation insofar as the accused

no.1 was concerned. It appears that initially there was some delay on

the part of the applicant in submitting explanation, but thereafter he

did respond to the communication addressed to him. On a pointed

query made to the applicant as to whether accused no.1 was indeed

employed, the applicant appears to have made inquiries and reported

to the non-applicant no.2 that accused no.1 was indeed found to be

employed in the aforesaid position.

6. On this basis, on 09.11.2017, an explanation was sought

from the applicant as to why departmental action ought not to be taken

against him for having recommended accused no.1 for benefit of the

scheme when the said accused was not, in fact, eligible for the said

benefit. On 27.11.2017, the applicant submitted his explanation, 5 21 apl293.21 (J).odt

stating that he had relied upon income certificate issued by the Naib

Tahsildar and other documents placed along with the application,

which were found in order. It appears that thereafter, no further

departmental action was taken.

7. On 14.03.2018, a letter was addressed to non-applicant

no.2 by the Agriculture Development Officer of Zilla Parishad

Buldhana directing that the first information report should be

registered against accused no.1, in the backdrop of aforesaid events. In

pursuance thereof, the non-applicant no.2 submitted report dated

24.04.2018, resulting in registration of the aforesaid first information

report dated 24.04.2018, bearing Crime No. 60/2018 in Police Station,

Raipur, Dist. Buldhana against accused no.1 as well as the applicant

herein (accused no.2).

8. Pursuant to the registration of first information report,

investigation was undertaken and charge-sheet was eventually filed on

24.09.2018. During the course of investigation, various documents

came to the fore, including Form-16, clearly indicating that accused 6 21 apl293.21 (J).odt

no.1 was employed in the aforesaid position and that his income was

well above the poverty line. On the basis of the material that was

available pursuant to the investigation, the investigating authority

claimed that accused no.1 had duped the State exchequer and taken

financial benefit of Rs. One lakh under the scheme for which he was

not eligible and the applicant assisted him in doing so.

9. The applicant filed the present application wherein, while

issuing notice on 18.02.2021, this Court directed stay of the

proceedings of Regular Criminal Case No. 209/2018, until further

orders. Upon the respondents entering appearance and filing replies,

this application was taken up for final hearing today.

10. Mr. N.B. Kalwaghe, learned counsel appearing for the

applicant straneously submitted that even if the material on record was

taken into consideration as it is, at worst, a case of negligence could

have been alleged against the applicant, but there was no material to

indicate any active involvement of the applicant in the offences alleged

against the accused persons. It was submitted that the investigating 7 21 apl293.21 (J).odt

authority had found no material indicating either that the agricultural

field for which the benefit of the scheme did not exist or that the well

under the scheme was never dug or constructed. The only allegation

against the applicant appears to be that while verifying the application

submitted by the accused no.1, there was gross negligence on the part

of the applicant, due to which the accused no.1 was facilitated in taking

benefit of the aforesaid scheme, when he was not eligible for the same.

By referring to a number of documents on record, including the

communications exchanged between the officials of the department

and the applicant as well as non-applicant no.2, it was submitted that

departmental action sought to be initiated was also eventually not

initiated against the applicant. On instructions, it was submitted that

as on today, the applicant stood promoted to the post of District Seed

Certifying Officer. On this basis, it is submitted that the present

application deserves to be allowed and the applicant does not deserve

to face trial for the offences alleged against him.

11. On the other hand, learned Additional Public Prosecutor

appearing for the State submitted that the oral report leading to 8 21 apl293.21 (J).odt

registration of the first information report itself indicated that there was

indeed meeting of minds between the applicant and accused no.1 and

they had conspired to cause financial loss to the State Exchequer, by

accused no.1 wrongly taking benefit of the scheme. It was submitted

that the applicant / accused no.2 actively assisted accused no.1and that

there was not only gross negligence on the part of the applicant, but

there was active involvement including suppression of vital documents

and fabrication of some documents. It was submitted that the material

on record, including the statements given by the witnesses, clearly

demonstrated that the applicant could be put to trial and what was

sought to be urged before this Court was more in the nature of defence.

Consequently, it was submitted that the application deserved to be

rejected.

12. Mr. Gopal Mishra, learned counsel appearing for non-

applicant no.2 (original informant) submitted that while submitting

oral report and even in the affidavits in reply filed before this Court, it

was clearly brought to the notice of the authorities and this Court that

the applicant and non-applicant no.2 were residents of adjoining 9 21 apl293.21 (J).odt

villages and that the applicant was clearly aware of the fact that accused

no.1 was employed and that he could not claim the benefit of being a

person below poverty line. It was submitted that resistance on the part

of the applicant to cooperate with the concerned department while

enquiring into the complaint made against accused no.1 and the

documents on record indicated active involvement of the applicant in

the present case and therefore, it would not be safe at this stage itself to

give the applicant clean chit. It was submitted that the matter ought to

go to trial. It was further submitted that even if the superior authority

had directed the non-applicant no.2 to lodge first information report

only against accused no.1, the entire material was placed before the

authorities and the first information report correctly came to be

registered against the applicant as well. It was submitted that the

material on record demonstrated that the applicant deserves to face

trial.

13. We have heard learned counsel for the rival parties.

Perused the material on record.

10 21 apl293.21 (J).odt

14. Before proceeding to analyze the material on record, it

would be appropriate to refer to the offences registered against the

accused persons in the present case. The documents on record show

that along with accused no.1, the applicant is alleged to have

committed offences punishable under Sections 471, 420, 417 read with

34 of the IPC. The ingredients of the offences alleged against the

accused would necessarily include the intention to fabricate documents

and to use them as genuine. The backdrop of the aforesaid allegations

is the scheme manifested in the guidelines issued in the year 2013-14

for financial assistance to persons belonging to the Scheduled Caste

community for digging/construction of well in their agricultural fields.

The guidelines specified the eligibility of such persons, who could get

benefit of the scheme, which necessarily included the aspect of income,

indicating that those below poverty line and those belonging to such

community only would stand benefited under the scheme.

15. In order to ensure that the scheme benefits are given only

to those who are eligible, the form to be submitted in the specified

format, requires the applicant to disclose vital information, including 11 21 apl293.21 (J).odt

annual income. It was the duty of the officer in this case i.e. applicant,

to verify the contents of the application and the correctness of the

information supplied and then to place the same before the Scrutiny

Committee, which eventually passed the order granting or denying

benefit of such scheme to accused no.1.

16. In the present case, a copy of application of accused no.1

placed on record shows that it was accompanied by documents

including 7/12 extract, details of agricultural field in which the well

was proposed to be constructed and the income certificate of accused

no.1 issued by the Naib Tahsldar as well as the Caste Certificate issued

by the Sub Divisional officer. Perusal of the said documents shows that

income certificate was issued by the Naib Tahsildar showing income of

Rs.21,000/- from agricultural operations. The application of accused

no.1 indeed shows that the income of said accused was shown as

Rs.21,000/-, which did match with the income certificate issued by the

Naib Tahsildar. Upon verifying the said application and the

documents and upon alleged personal verification, the applicant

certified that the contents were true and accordingly, recommended 12 21 apl293.21 (J).odt

accused no.1 for benefit of the said scheme.

17. On this basis, the Scrutiny Committee appears to have

further scrutinized the application of accused no.1 and having found

him eligible, granted him benefit of the said scheme.

18. On the basis of the complaints that were received, the

superior officers of the department where the applicant was employed,

addressed communications to the applicant to verify as to whether

there was substance in the said complaints and as to how accused no.1

was favourably recommended. These communications include the

response from the applicant dated 11.10.2017, stating that upon

enquiry it was indeed found that accused no.1 was employed as Health

Assistant. It appears that in pursuance thereof, the Agriculture

Development Officer addressed communication dated 09.11.2017 to

the applicant threatening departmental action and seeking explanation.

On 27.11.2017, the applicant responded to the said communication

and submitted that he had certified eligibility of accused no.1 on the

basis of the documents filed along with the application form.

13 21 apl293.21 (J).odt

Thereafter, no further action at the end of the department was taken

against the accused no.1, in stead by communication dated 14.03.2018,

the Agricultural Development Officer directed the non-applicant no.2

to cause FIR to be registered only against accused no.1 for having

illegally taken benefit of the aforesaid scheme.

19. More than a month thereafter, non-applicant no.2 caused

FIR to be registered on the basis of oral report dated 24.04.2018. It is

in this report that non-applicant no.2 indicated that there was

connivance between the applicant and accused no.1, resulting in

financial loss to the State Exchequer as accused no.1 had illegally

benefited from the aforesaid scheme. As noted above, the FIR stood

registered against accused no.1 as well as the applicant.

20. Upon investigation being undertaken, various documents

came on record and statements of the witnesses were recorded. We

have perused the entire material on record in detail.

21. The question that arises for consideration is, even if the 14 21 apl293.21 (J).odt

entire material brought on record is to be taken as it is, can it be said

that the ingredients of the aforesaid offences are made out, even prima

facie, against the applicant before this Court. Insofar as failure on the

part of the applicant to properly verify the claim made by accused no.1

is concerned, at worst, it could be said to be a case of negligence against

the applicant. In fact, as noted above, the applicant was threatened by

the superior officer about departmental action and an explanation was

indeed called from the applicant. On the applicant submitting his

explanation, no further steps were taken in the matter against the

applicant departmentally. In other words, the department did not find

it appropriate even to proceed against the applicant departmentally and

his explanation was found to be satisfactory.

22. It is also a matter of record that the superior officer

specifically directed non-applicant no.2 to cause FIR to be registered

only against accused no.1 for having illegally taken benefit of the said

scheme. It would have been the different matter that upon submission

of oral report and registration of the FIR, the investigating authority,

upon investigation, had found material to indicate connivance/ 15 21 apl293.21 (J).odt

conspiracy between the applicant and accused no.1 for committing the

said offences. It appears that in the present case, the non-applicant

no.2 was more enthusiastic in ensuring that the applicant was also

roped in when criminal proceeding was initiated. The oral report

submitted on behalf of respondent no.2 alleged connivance on the part

of the applicant.

23. The investigation has brought to the fore number of

documents and statements of the witnesses. Perusal of the same would

indicate that the applicant could, at worst, be found to be careless in

performing his duty in verification of the claim made by accused no.1.

24. On a pointed query put to the learned Additional Public

Prosecutor as to what was the material indicating ingredients of the

aforesaid offences against the applicant, it was submitted that there was

a clear case of fabrication of documents in the present case. In that

regard, attention of this Court was invited to the contents of the

application form submitted by accused no.1 and the certificate giving

favourable recommendation, issued by the applicant, was also 16 21 apl293.21 (J).odt

emphasized upon. We have perused the application form and the

documents submitted therewith by the accused no.1 and the aforesaid

certificate issued by the applicant. We did not find even an iota of

material to indicate fabrication on the part of accused no.1.

25. This would take us to the allegation pertaining to cheating

alleged against the applicant and connivance on the part of the

applicant in facilitating accused no.1 in cheating the State Exehcquer.

We find that even in this regard, the learned Additional Public

Prosecutor was harping upon failure on the part of the applicant in

performing his duty, while considering the application form submitted

by the accused no.1. This again would indicate, at worst, negligence

on the part of the applicant. We were unable to reach, even a prima

facie conclusion that the applicant had actively connived or conspired

with accused no.1 in order to cause financial loss to the State

Exchequer. Emphasis placed on the documents on record along with

the statements recorded during the course of investigation, also do not

indicate such active role on the part of the applicant.

17 21 apl293.21 (J).odt

26. It is crucial that insofar as alleged negligence is concerned,

the department did not find it appropriate to proceed against the

applicant departmentally. Therefore, to allege criminal liability against

the applicant, would be stretching things too far.

27. Insofar as the contentions raised on behalf of non-

applicant no.2 are concerned, much emphasis is placed on the

insistence on the part of non-applicant no.2 that the applicant must be

presumed to be aware about employment of accused no.1 because they

allegedly reside in adjoining villages and that accused no.1 was

employed in a State enterprise in the same district. We are unable to

appreciate the aforesaid contentions raised on behalf of non-applicant

no.2 for the reason that other than such bald statements made on

affidavit on behalf of non-applicant no.2, there is nothing that has

come on record during the course of investigation to indicate any such

aspect against the applicant. It is crucial that such allegation was

neither made by the non-applicant no.2 in the oral report, leading to

registration of first information report, nor in his statements recorded

during the course of investigation.

18 21 apl293.21 (J).odt

28. This Court cannot, even at prima facie stage, presume

certain knowledge on the part of the applicant and he having

deliberately suppressed the same in order to actively assist accused no.1

in illegally taking benefit of the scheme. Foisting criminal liability and

making a person face criminal trial is a serious matter and it cannot

permitted to continue if, even a prima facie case is not made out, after

completion of the investigation and filing of the charge-sheet.

29. In the light of the material brought to our notice and the

statements of the witnesses recorded during the course of investigation,

we are of the opinion that the material falls short of indicating prima

facie case against the applicant for existence of the ingredients of the

offences alleged against him. We have not made any comment on the

nature of involvement of accused no.1 in the alleged offences and the

observations are limited to the alleged role of the applicant in the

matter.

30. In view of above, the criminal application is allowed.

Accordingly, the first information report and charge-sheet in Crime 19 21 apl293.21 (J).odt

No. 60/2018 for the offences punishable under Sections 420, 471, 417

read with Section 34 of the Indian Penal Code, registered with Police

Station, Raipur, Dist. Buldhana, are quashed and set aside, insofar as

the applicant is concerned. Consequently, Regular Criminal Case No.

209/2018, also stands quashed, insofar as the applicant is concerned.

The application stands disposed of.

                                  ( G. A. SANAP, J.)              (MANISH PITALE, J.)

                      Diwale




Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:20.08.2022
18:09