Kishorsingh Kisansingh Chungde vs State Of Mha. Thr. Pso City Kotwali ...
2022 Latest Caselaw 11590 Bom

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

             CRIMINAL APPLICATION (APL) NO. 31/2022

          Kishorsingh Kisansingh Chungde,
          aged 58 years, Occ. Government Auditor
          R/o. Rajputpura, Akola,
          Tq. & Dist. Akola.
                                                   ... APPLICANT

                               VERSUS
     1.   State of Maharashtra,
          through PSO, City Kotwali,
          Akola, Tq. & Dist. Akola.

     2.   Narayandas Amarchand Malu,
          Aged 49 years, Occ. Business,
          R/o. Toshniwal Layout, Akola,
          Tq. & Dist. Akola.
          (Deleted as per Court's Order
          Dt. 25.03.2022.)
                                           ... NON-APPLICANTS
_____________________________________________________________
       Mr. A.S. Mardikar, Sr. Advocate with Ms. A. Kshirsagar,
       Advocate for applicant.
       Mrs. M. Deshmukh, APP for non-applicant No. 1/State.
______________________________________________________________

     CORAM                                : VINAY JOSHI, J.
     RESERVING THE JUDGMENT ON            : 16/09/2022
     PRONOUNCING THE JUDGMENT ON          : 15/11/2022.

JUDGMENT :

Heard.

2. Admit.

3. This is an application under Section 482 of the Code of

Criminal Procedure ('Code') seeking discharge. The applicant (accused

No.13) has initially applied to the learned Magistrate for discharge vide

Exh. 141, however, the said application was rejected vide order dated

15.04.2017. Being aggrieved, the applicant has filed criminal revision

No. 133/2017. However, it was dismissed vide order dated 06.11.2019,

which is impugned herein.

4. The applicant is a Government Auditor. He has been

arraigned as accused No. 13 in Crime No. 21/2011 registered for the

offence punishable under Sections 406, 409, 420, 120-B, 166, 167, 217

and 218 read with Section 34 of the Indian Penal Code. The

prosecution was initiated at the instance of report lodged by one of the

depositor.

5. It is the prosecution case that the the Divisional Joint

Registrar (Audit) directed the applicant to conduct audit of the affairs

of the Brijlal Biyani Cooperative Credit Society, Akola ('Society) for the

period from 01.04.2007 to 31.03.2009. Accordingly, the applicant has

carried audit and submitted audit note on 03.06.2010. The applicant

has also submitted special audit report to the Deputy Registrar,

Cooperative Societies, Akola pointing the irregularities and

discrepancies noted in the audit. The applicant sought opinion from

the District Government Pleader for lodgment of report to which he has

been informed vide Communication dated 01.11.2010 to lodge the

Police Report. The applicant has received a rectification report dated

05.01.2011 from the Co-operative Society informing that they have

rectified the discrepancies and recovered the major amount as well as

the disbursed to the members.

6. In the light of said communication, the applicant again

sought opinion of the District Government Pleader about lodging of the

Police Report, on which, vide communication dated 08.02.2011, it was

informed by the District Government Pleader that if the audit objections

are complied, then there is no question of lodging of the Police Report.

In such a background at the instance of report lodged by one of the

Depositor crime was registered against the Officer-bearers of the

Society who are arraigned as accused Nos. 1 to 12, besides that the

applicant Government Auditor was also arraigned as accused No.

13 alleging that he has helped the co-accused by non-filing of the Police

Report. Principally, the applicant has been made accused on the charge

of criminal conspiracy punishable under Section 120-B of the Indian

Penal Code.

7. The learned counsel appearing for the applicant while

claiming discharge submitted that the applicant has acted in his official

capacity and therefore, for want of sanction to prosecute in terms of

Section 197 of the Code, the prosecution is not tenable against him. It

is submitted that since the District Government Pleader vide

communication dated 08.02.2011 has informed that there is no

necessity to file report, therefore, it cannot be be presumed that the

applicant has assisted the members in deceitful manner. Moreover, it is

argued that since the crime has been registered at the instance of the

one of the Depositor, the prosecution is not maintainable in terms of

Section 81(5B) of the Maharashtra Co-operative Societies Act.

8. The State resisted the application vide reply-affidavit dated

17.02.2022. Besides admitted facts, it is stated that the applicant has

not taken action against the co-accused, therefore, he has connived for

commission of offence. It is stated that the applicant has intentionally

not taken action and therefore, sanction for prosecution is not required.

According to the State, there is sufficient material to frame charge and

therefore Courts below have rightly declined to discharge the applicant.

9. Most of the facts are not in dispute. The applicant is a

Government Auditor who has been directed to conduct the audit of

concerned Society for the aforementioned period. The applicant has

issued audit note on 03.06.2010. It is not in dispute that initially the

District Government Pleader has opined to lodge criminal complaint,

however, after rectification report opined by communication dated

08.02.2011 that if the objections are complied then there is no

necessity to lodge report. The only charge against the applicant is of

not lodging the Police Report against the Society's Directors and Office-

bearers on the basis of irregularities and deficiencies found in the audit

report.

10. Both the Courts below have held that the applicant has

supported co-accused in their illegal activities by not filing the Police

Report and therefore, the said cannot be termed to be within the

discharge of his official duty. The learned Senior Counsel appearing for

the applicant has seriously criticized the said reason by stating that the

act of filing of the Police Report on the basis of audit report or its

omissions is part of discharge of official duty and therefore, sanction for

prosecution in terms of Section 197 of the Code is prerequisite. In this

regard he relied on the decision of the Supreme Court in case of Indra

Devi Vs. State of Rajasthan and others with another connected matter,

(2021) 8 SCC 768, wherein it has been ruled that the previous

sanction for prosecution of the public servant is necessary whether the

act or omission for which the accused is charged, has a reasonable

nexus with discharge of official duty. The very purpose of Section 197

of the Code is to protect officer from unnecessary harassment when the

act or omission is committed in discharge of official duty. The act of

filing a Police Report is certainly a part of official duty of the

Government Auditor. Needless to say that the term act includes

"omission". There is no justification in saying that the alleged omission

the on part of the applicant cannot be a part of his official duty.

Therefore, the prosecution against the applicant on said sole count is

not maintainable.

11. While resisting the point of sanction, the learned APP relied

on the decision of the Supreme Court in case of Om Kumar Dhankar

Vs. State of Haryana and another, (2012) 11 SCC 252. In the said case,

it has been observed that the offence of cheating and forgery by their

very nature can be regarded as having been committed by the public

servant while acting or purporting to act in discharge of official duty.

The said ratio would not apply to the facts of this case since the

applicant is charged for assisting co-accused in non-filing of criminal

complaint. On the same point, the prosecution further relied on the

decision of this Court in case of Narhari Sambhajirao Phatale Vs.

Waman Sambhaji Dukar, 1967, Mh.L.J. 1988 . The case pertains to the

officers of Co-operative Society relating of offence under Section 146 to

148 of the Maharashtra Co-operative Societies Act, therefore being

different facts, the said decision would not assist the State in any

manner.

12. While denying the allegation of conspiracy, it has been

argued that the applicant has throughout acted bonafidely. The learned

Senior Counsel appearing for the applicant has submitted that the audit

was fairly conducted, in which the irregularities have been pointed

out. The applicant sought opinion of the District Government Pleader

who initially opined to file report, however, after rectification report

vide communication dated 08.02.2011 has opined that there is no

necessity to lodge the Police Report. Pertinent to note that the

applicant has immediately brought the said fact to the notice of Deputy

Registrar, Co-operative Society as well as Divisional Joint Registrar

about the said opinion.

13. Pertinent to note that first provision to Section 81(5B) of

the Maharashtra Co-operative Societies Act, casts an obligation on the

audit or to obtain written permission of the Registrar to file First

Information Report, in case, during audit the concerned were found

guilty for the offence relating to accounts. The said proviso was added

in the statute by way of amendment of the year 2013, however audit

note was of the year 2010 and thus, at that time, there is no statutory

obligation. The State is unable to show the contrary. Besides that,

perusal of entire charge-sheet, nowhere indicates material to construe

that the applicant has acted in connivance with the Society's members

in the deceitful fraudulent activities. It is well settled that at the time

of framing charge, it is permissible to sift the available material to

limited extent to find out whether the case is made out to proceed

further. The reply is totally silent to satisfy regarding existence of

material even to make out a case of strong suspicion about commission

of offence. Thus, the prosecution is not tenable for want of statutory

sanction as well as in absence of sufficient material. The continuation

of prosecution amounts to abuse of the process of Court.

14. In view of above, I hold that both Courts' below erred in

rejecting discharge application. The application is allowed. Impugned

order dated 06.11.209 passed in Criminal Revision No. 133/2017 is

hereby quashed and set aside. The applicant is discharged from all

levelled charges connecting to RCC No. 26/2013.

15. Application stands disposed of in above terms.

(VINAY JOSHI, J.) Gohane

Digitally signed by JITENDRA JITENDRA BHARAT BHARAT GOHANE GOHANE Date:

2022.11.15 15:46:43 +0530