Hasmukhbhai Parmabhai Sindhav vs State Of Gujarat
2023 Latest Caselaw 8132 Guj

                                                                                      NEUTRAL CITATION




         R/CR.MA/604/2021                               ORDER DATED: 08/11/2023

                                                                                       undefined




                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
                        FIR/ORDER) NO. 604 of 2021
                                  With
               R/CRIMINAL MISC.APPLICATION NO. 606 of 2021
                                  With
               R/CRIMINAL MISC.APPLICATION NO. 1732 of 2021
                                  With
               R/CRIMINAL MISC.APPLICATION NO. 1798 of 2021
==========================================================
                            HASMUKHBHAI PARMABHAI SINDHAV
                                        Versus
                                  STATE OF GUJARAT
==========================================================
Appearance:
MR PREMAL NANAVATI WITH MS AVANI V PATEL(8016) for the
Applicant(s) No. 1
MR VIRAJ B KHATANA(10416) for the Applicant(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
MR CHINTAN DAVE, APP for the Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                    Date : 08/11/2023

                                     ORAL ORDER

1. By way of these applications filed 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 FIR being C.R.No.I-63 of 2018 registered with Sami

Police Station including the chargesheet pursuant to thereto

and Special ACB Case No.4 of 2020 pending in the Court of

nd Additional Sessions Judge, Patan Camp at Radhanpur for

the offences punishable under Sections 409, 406, 465, 467,

468, 477 and 114 of the Indian Penal Code.

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

2. Heard learned advocate Mr.Premal Nanavati for

the applicants, learned APP Mr.Chintan Dave for respondent

no.1-state. Though served, none appears for respondent no.2.

3. As common question of facts and law are involved

in all these applications, at the request of learned advocates

for the parties, these applications are heard together and

disposed of by this common judgment.

4. It is averred in the applications that the impugned

FIR is lodged by the respondent no.2 who has been

authorized to lodge the complaint in respect of the alleged

irregularities committed by the accused named in the FIR

which include the present applicants, in implementing the

government scheme of constructing lavatories and on the

basis of the preliminary enquiry it is alleged that as per the

report submitted by one Special Commission in his

communication dated 15.9.2016, it is found that during the

period between 1.9.2015 and 31.8.2016 under the scheme of

Clean India Mission (Rural) in the construction of lavatories

various irregularities like payment made in respect of

lavatories which is already in existence and thus double

payment has been made, the construction of various

lavatories is not as per the specification and weak

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

construction is found and in certain cases though no lavatory

is constructed, amount has been released by various officers

viz. the other co-accused named in the FIR and thus, it is

alleged that the government is put to loss to the tune of

Rs.90,96,000/-. It is averred that it is further alleged in the

impugned FIR that in construction of lavatories in villages

Badradrada and Singotariya irregularities are found in as

many as 261 lavatories and 345 lavatories respectively in the

tabular form accountability of each respective accused have

been revealed whereas the applicants are found to have

wrongfully released the amounts and it is mentioned in

column no.12 the amount mentioned is Rs.90,96,000/- whereas

as per the available record, it is further alleged that an

amount of Rs.72,72,000/- has been misused and no record is

kept as to against which lavatory such payment has been

made; it is alleged that in respect of some record only Block

Coordinator has signed such report and thus, the procedure

prescribed for scrutinizing the record has not been properly

adhered to; that as required, the exact location, photographs

of lavatory etc. has not been mentioned and without

undergoing such exercise, the payment has been made and

thus government has been cheated and accordingly, the

accused named in the FIR who were performing duties in

their respective posts during the period from 1.9.2015 and

31.8.2016 have committed offences as alleged. Therefore, these

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

applications are filed by four accused praying to quash the

impugned FIR qua them.

5. Heard learned advocates for the parties.

5.1 Learned advocate Mr.Premal Nanavati for the

applicants submitted that the 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 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.

Hence, according to learned advocate Mr.Nanavati 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.

5.2 Learned advocate Mr.Nanavati submitted that the

applicant of Criminal Miscellaneous Application No.604 of

2021-Hasmukhbhai Parmabhai Sindhav was working as a

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

Block Coordinator of Taluka Panchayat, Sami, his services

came to be terminated as the impugned FIR came to be filed

against him; that the applicant has unblemished and clean

career all throughout as a Government Officer and has been

promoted from time to time and applicant has no criminal

antecedents; that the duty of the applicant is that once the

proposal is prepared by the Sarpanch and concerned Talati-

cum-Mantri of the respective village panchayats receives such

proposal after verifying the necessary papers has to forward

the same to the superior officer to the concerned District

Development Officer, who in turn after verifying would send

it to the government; that the government would release

grant after verifying the record and while doing so the

necessary statutory audit through reputed Chartered

Accountant and Auditors is also carried out and once the

record is scrutinized at all levels, the necessary amount will

be disbursed and ultimately when such fund is also available

to the Taluka Panchayat, the officer like the applicant would

further disburse the same in favour of the concerned Village

Panchayat and in the entire process, there is no allegation

that the applicant has misappropriated the fund for his

personal benefit or any amount has been siphoned off for his

personal use or otherwise and the entire amount has been

disbursed in favour of the concerned Taluka Panchayat

through a single cheque. He, therefore, submitted that there

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

is element of mens rea present and therefore the alleged

offences are prima facie not made out against the present

applicant. He further submitted that the statement given by

the complainant himself before the police are contrary to the

allegations levelled in the FIR. He lastly submitted that even

the TDO has given a report giving a clean chit to the

applicant and recommended that he may be taken back on

duty.

5.3 Learned advocate Mr.Nanavati submitted that the

applicant of Criminal Miscellaneous Application No.606 of

2021-Dudabhai Devabhai Vaghela was transferred on 1.9.2016

from Taluka Panchayat Sami to Taluka Panchayat Santalpur;

that the allegation against him is that he has misplaced the

records, whereas, as per the audit report of 30.6.2017, all

records were available for audit.

5.4 Learned advocate Mr.Nanavati submitted that the

applicant of Criminal Miscellaneous Application No.1732 of

2020-Nareshkumar Harshavan Jani has retired as in-charge

Taluka Development Officer in June, 2019 and the applicant

has no criminal antecedents except that the applicant is

facing similar FIR in respect of very scheme under the Clean

India Mission while he was serving as In-charge Taluka

Development Officer during the period between 2015 and

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

2016 and as in-charge Taluka Development Officer, Taluka

Sami, while disbursing some amount in the Taluka Panchayat

for which the applicant has been granted anticipatory bail

and thereafter his petition filed for quashing of the FIR

being Special Criminal Application No.6299 of 2017 was

allowed and the said impugned FIR qua the applicant was

quashed. The role of the applicant in the said FIR and the

impugned FIR is same.

5.5 Learned advocate Mr.Nanavati submitted that the

applicant of Criminal Miscellaneous Application No.1798 of

2021-Kishorbhai Ganpatbhai Shrimali has retired from service

w.e.f.30.6.2016 whereas the FIR is lodged after the retirement

of the applicant; that the applicant has no criminal

antecedents except that the applicant is facing similar FIR in

respect of very scheme under the Clean India Mission while

he was serving as Taluka Development Officer during the

period between 2015 and 2016 for which the applicant has

been granted anticipatory bail and thereafter his petition filed

for quashing of the FIR being Special Criminal Application

No.6299 of 2017 is pending before this Court.

5.6 Learned advocate for the applicants submitted that

it fact necessary statutory audit through a reputed Chartered

Accountant's Firm viz. C.P.Jain & Co., was carried out and

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

who after carrying out the audit of the account has also

certified that no audit embezzlement of misutilization of fund

was noticed and the said audit report was submitted to the

government through its audit dated 31.8.2016; therefore, the

allegations in the impugned FIR is nothing but an individual

perception of the complainant and therefore required to be

quashed and set aside.

6. Learned APP Mr.Dave for respondent-state has

vehemently opposed the application and submitted that the

applicants have connived with the beneficiaries and in fact

they have caused huge loss 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 siphon off government fund that can be

attributed to the applicants and, therefore, present

applications are required to be dismissed. He also submitted

that the FIR itself discloses an offence and, therefore, present

applications are required to be dismissed.

7. I have heard learned advocates for the respective

parties. I have also considered the fact that present

applicants were serving in different posts in Taluka

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

Panchayat. The allegations levelled in the FIR are that the

present applicants the amount was disbursed inspite of the

fact that there were various irregularities like payment made

in respect of lavatories which is already in existence and

thus doubt payment has been made, the construction of

various lavatories is not as per the specification and weak

construction is found and in certain cases, though no lavatory

is constructed, amount has been released by the accused. It

is to be considered that there is no whisper in the FIR that

the amount has been misappropriated by the applicants for

their personal benefit or any amount has been siphoned off

for their personal use. 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 Clean India Mission (Rural).

8. The provisions invoked in the impugned FIR are

as under:

"409. Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

property, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

406. Punishment for criminal breach of trust.--Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

465. Punishment for forgery.--Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

467. Forgery of valuable security, will, etc.--Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with 4 [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

468. Forgery for purpose of cheating.--Whoever commits forgery, intending that the 1 [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

477. Fraudulent cancellation, destruction, etc., of will, authority to adopt, or valuable security.-- Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or deface, or secretes or attempts to secrete any document which is or purports to be a will, or an authority to adopt a son, or any valuable security, or commits mischief in respect of such document, shall be punished with 1 [imprisonment for life], or with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

9. The FIR does not disclose any offence to attract the

provisions of the Sections invoked of 409, 406, 465, 467, 468,

477 and 114 of the Indian Penal Code and 13(1) of the

Prevention of Corruption Act. 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.

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

However, learned advocate Mr.Premal Nanavati, upon

instructions, has stated that till date no departmental

proceedings have been initiated against either of the

applicants. Mr.Nanavati states that, in fact, petitioner of

Criminal Miscellaneous Application No.1732 of 2021 and 1798

of 2021 have already retired from service and till date no

departmental proceedings are initiated against him. Moreover,

in identical facts, coordinate Bench of this Court has decided

Criminal Miscellaneous Application No.14494 of 2016 and

others decided on 14.6.2011 by quashing the proceedings.

10. In view of above, considering the fact that the authority

has not initiated any departmental proceeding against the

applicants nor the FIR discloses any offence as there are no

allegations that the applicants 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.

10. It will also be fruitful to refer to the judgment of

the Hon'ble Apex Court in the case of Mahmood Ali and

Others V/s State of U.P, and others, reported in 2023 SCC Online SC 950, paragraphs 13 and 14 of which reads as under:

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

"13. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and,

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.

14. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:--

"5. ...Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings : (AIR p. 869, para 6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death....."

(Emphasis supplied)

NEUTRAL CITATION

R/CR.MA/604/2021 ORDER DATED: 08/11/2023

undefined

11. In the result, present applications are allowed. The FIR

being C.R.No.I-63 of 2018 registered with Sami Police Station

along with all consequential proceedings arising out of the

said FIR is quashed and set aside qua present applicants.

Direct service is permitted.

(SANDEEP N. BHATT,J) SRILATHA