Bipin Manilal Modh vs State Of Gujarat
2022 Latest Caselaw 5133 Guj

     R/CR.MA/14494/2016                             JUDGMENT DATED: 14/06/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/CRIMINAL MISC.APPLICATION NO. 14494 of 2016

                                  With
               R/CRIMINAL MISC.APPLICATION NO. 12693 of 2016

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI               Sd/-

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1      Whether Reporters of Local Papers may be allowed                NO
       to see the judgment ?

2      To be referred to the Reporter or not ?                         NO

3      Whether their Lordships wish to see the fair copy               NO
       of the judgment ?

4      Whether this case involves a substantial question               NO
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                              BIPIN MANILAL MODH
                                     Versus
                          STATE OF GUJARAT & 1 other(s)
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Appearance:
MR UI VYAS(1000) for the Applicant(s) No. 1
MR. KARAN U VYAS(6992) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
MS MAITHILI MEHTA APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                Date : 14/06/2022

                                ORAL JUDGMENT

1. Learned advocate Mr.Uday Vyas has tendered draft amendment, which is granted. Necessary amendment be carried out forthwith.

R/CR.MA/14494/2016 JUDGMENT DATED: 14/06/2022

2. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 ('Cr.P.C.', for short), the applicants have prayed for quashing and setting aside the First Information Report being I - C.R.No. 25 of 2016 registered with Gir-Gadhada Police station for offences punishable under Sections 465, 471 and 477A of the Indian Penal Code.

3.1 Heard learned advocate Mr.Uday Vyas for learned advocate Mr.Karan Vyas for the applicant, learned Additional Public Prosecutor Ms.Maithili Mehta for respondent - State and learned advocate Mr.Samarth Amin for learned advocate Mr.Samarth Amin for learned Mr.G.M.Amin for Respondent No.2 - original complainant.

3.2 Since there are two petitions being Criminal Miscellaneous Application No.14494 of 2016 and Criminal Miscellaneous Application No.12693 of 2016 having almost identical set of facts, for the purpose of this group of petitions, facts are taken from Criminal Miscellaneous Application No.14494 of 2016.

3.3 Rule. Learned Additional Public Prosecutor Ms.Maithili Mehta waives service of notice of Rule and on behalf of respondent - State and learned advocate Mr.Samarth Amin for learned advocate Mr.G.M.Amin waives service of notice of Rule on behalf of Respondent No.2 - original complainant.

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4.1 The applicant of Criminal Miscellaneous Application No.14494 of 2016 viz. Bipinbhai Manilal Modh was serving as Taluka Development Officer, Una whereas applicant of Criminal Miscellaneous Application No.12693 of 2016 viz. Bhavin Rajnikant Jani was serving as Senior Assistant in Una Taluka Panchayat, which was later on converted in Girgadhada Taluka. An First Information Report ('FIR', for short) being I-C.R.No.25 of 2016 came to be registered against six persons including the present applicants alleging that while sanctioning the amount under the scheme of giving incentives to the persons constructing toilets, the present applicants did not verify the documents of the beneficiaries and despite the forms were without date and incomplete, they sanctioned and extended an amount of Rs.10,000/- to 35 different beneficiaries under the scheme of the Government and thereby they have caused financial loss of Rs.3,50,000/- to the public exchequer and as such they have committed offences as alleged. According to the FIR, an offence was committed in the year 2014 for which FIR was registered on 25.05.2016.

4.2 Learned advocate Mr.Vyas for the applicants submitted that present applicants had performed the duty with utmost sincerity and diligence. Further, it was submitted that at the most even from the plain reading of the FIR, it can be said that the present applicants have committed misconduct for which no disciplinary inquiry was conducted nor any show cause notice was issued

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against the present applicants. In the FIR, there is no allegation that the present applicants have siphoned off government funds, nor it is stated in the FIR that such amount of government benefits had gone to the accounts of present applicants. In fact FIR itself suggests that incentive amount of Rs.10,000/- which was to be paid to the beneficiaries had gone to the account of beneficiaries only. Hence, according to learned advocate Mr.Vyas at the most this can be said to be the negligence on the part of the applicants as the element of showing any criminal intention is missing as per plain reading of FIR itself and, therefore, it is required to be quashed and set aside.

4.3 Learned advocate Mr.Vyas further submitted that under similar set of facts, coordinate Bench of this Court vide order dtd.01.12.2021 passed in Criminal Miscellaneous Application No.4839 of 2019 with Special Criminal Application No.3107 of 2017 quashed and set aside the complaint registered against the officers who were also performing their duties in Swachchha Bharat Mission. Learned advocate Mr.Vyas submitted that considering the fact that in that case also the allegations levelled against the accused persons, who were officers of Panchayat, were of similar nature and the coordinate Bench, after hearing both the sides, ultimately quashed and set aside the impugned FIR.

5. Learned advocate Mr.Samarth Amin for Respondent No.2 Panchayat vehemently opposed the petition and

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submitted that the petitioners have connived with the beneficiaries and in fact they have caused loss of an amount of Rs.3,50,000/- to the government public exchequer. He submitted that without the aid and abettment of the present applicants, the beneficiaries who were not entitled to incentives as per Government scheme, could not have availed benefits and, therefore, there is a clear criminal intention to shiphon off government fund that can be attributed to the applicants and, therefore, present applications are required to be dismissed.

6. Learned Additional Public Prosecutor Ms.Maithilil Mehta also submitted that the FIR itself discloses an offence and, therefore, present applications are required to be dismissed.

7.1 I have heard learned advocates for the respective parties. I have also considered the fact that present applicants were serving as Taluka Development Officer and Senior Assistant of Taluka Panchayat. The allegations levelled in the FIR are that the present applicants did not verify the documents and though the applications were incomplete and without dates, the certificates etc. also were not verified properly and despite all these shortcomings they sanctioned the amount of incentives and deposited in the account of beneficiaries, which were 35 in numbers and thereby caused total financial loss of Rs.3,50,000/- to the public exchequer.

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7.2 This Court has considered the fact that the FIR does not speak about the fact that the amount of incentive under the Swachchha Bharat Mission had gone to the accounts of the present applicants. There are no allegations that the present applicants have cheated the public exchequer or that they have siphoned off the amount and they are the beneficiaries of the amount, which was disbursed amongst the beneficiaries of the Swachchha Bharat Mission. This Court has also considered the order dated 01.12.2021 passed in case of Kishorbhai Ganpatbhai Shrimali vs. State of Gujarat in Criminal Miscellaneous Application No.4839 of 2019 and allied matter wherein also the allegations of similar nature were alleged against the petitioners of that petition.

7.3 This Court has also considered that coordinate Bench, while allowing the aforesaid petition, has observed in paras:6 to 8 as under:

"6. The whole of the procedure is an undisputed fact that the Panchayat Committee would formulate the resolution under the scheme.

The said committee consists of four members, and during the course of preparing the resolution, the senior clerk would be required to bring various data for formulation of the resolution, and after the detailed verification, the said record is to be forwarded to the Taluka Development Officer, who, in turn, forward all the documents and records to the District Development Officer alongwith proposal

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(darkhast) for grant of the amount as stated by the Gram Panchayat in the resolution. Thereafter the DDO is required to re-verify all the details, and after endorsing the same, the DDO would submit the proposal to the Secretary for sanctioning the amount of grant and ultimately the Secretary of the State Government will sanction the grant, and on sanctioning of the grant, the amount would be sent in the bank account of concerned Village Panchayat. The allegation against the petitioners is of creating false records and sending false, forged and fabricated records and sending false proposal and thereby the allegation is made of cheating in connivance for the amount to the extent of Rs.1,77,96,757/-. The process shows that the amount would not come in the bank account of the petitioners but the amount would get disburse in the concerned panchayats and there is no allegation of misappropriation of money. It is required to be noted that whether the proposal was with the exaggerated amount had fallen for scrutiny at the level of DDO; it was the duty of the DDO to have comparative examination of such figure prior to sending the same for sanction of the grant from the State Government. There would not be any direct involvement of the petitioners of both the matters. Practically their duty would be to forward the resolution of Village Panchayat in the form of proposal to the DDO. No offence under Section 409 of Indian Penal Code would be found since there is no entrustment of the property to the present petitioners and they were not given any dominion over property in the capacity of a public servant. The amount had gone into the bank account of concerned Gram Panchayat; nor there can be any case of forgery of the document since the resolution was prepared through the Committee of Village Panchayat; it consists of four members; necessary assistance would be taken fortifying the record. It appears from the record that on 29.01.2016

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meeting of implementation Committee was held at the office of DDO, Patan, which consists of (1) Representative from Director of District Village Development Agency, (2) Representative appointed by the Principal District Health Officer, (3) Representative appointed by District Social Welfare Officer and (4) Deputy District Development Officer (Panchayat) and thereby on the resolution and proposal, final order was passed. The proposal was placed before this Committee of about 9 Talukas and Taluka Sami is noted at Serial No.6. This Committee had an opportunity to verify the records and compare the proposal of all other Talukas and it was on the wisdom of this Committee the proposal was approved. The DDO and Deputy DDO had all opportunities to reject the proposal to have send it back if the amount so found was exaggerated which could be easily detected by comparing the proposal of different Talukas. This Court does not find any illegality, irregularity or any mens rea from the side of the petitioners in forwarding the proposal, and collecting relevant datas.

7. In this view of the matter and in view of the aforesaid analysis, the impugned FIR deserves to be quashed and set aside. The further continuation of the criminal proceedings in relation to the impugned FIR against the original accused would be unnecessary harassment to the petitioners and would amount to abuse of process of law and court and hence, to secure the ends of justice, the impugned FIR is required to be quashed in exercise of power under Section 482 of the Code of Criminal Procedure, 1974.

8. For the reasons stated hereinabove, the present petitions are allowed. The impugned FIR being C.R. No. I - 52 of 2016 registered with Sami Police Station, District Patan, as well as other consequential proceedings arising out of the aforesaid FIR qua the petitioners are hereby

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quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted."

7.4 It is noteworthy that in that petition, the amount involved was much higher i.e. Rs.1, 77, 96, 757/- than the amount involved in this petition . Further, the FIR does not disclose any offence. At the most it can be said to be negligence while performing duties which would require the State Authority to initiate departmental proceedings against the present petitioners for alleged misconduct. However, learned advocate Mr.Vyas, upon instructions, has stated that till date no departmental proceedings have been initiated against either of the petitioners. Mr.Vyas states that, in fact, petitioner of Criminal Miscellaneous Application No.14494 of 2016 viz. Bipinbhai Modh has already been superannuated from the service before two years and till date no departmental proceedings are initiated against him.

7.5 In view of above, considering the fact that the authority has not initiated any departmental proceeding against the petitioners nor the FIR discloses any offence as there are no allegations that the petitioners have siphoned off the amount and the allegations are in respect of negligence while performing duty, which would not warrant any criminal complaint and hence the FIR in question is required to be quashed and set aside.

8. In the result, present applications are allowed. The FIR being I - C.R.No. 25 of 2016 registered with Gir-

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Gadhada Police station for offences punishable under Sections 465, 471 and 477A of the Indian Penal Code against the present applicants is hereby quashed and set aside along with all consequential proceedings arise out of the said FIR qua present applicants. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.

(NIRZAR S. DESAI,J) MISHRA AMIT V.