Jharkhand High Court
Gopal Krishna Kunwar vs The State Of Jharkhand Through ... on 16 June, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Rev. No. 756 of 2022
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Gopal Krishna Kunwar ... .... Petitioner
Versus
The State of Jharkhand through Anti-Corruption Bureau .... Opp. Party
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mr. Rahul Kumar, Advocate
For the State : Ms. Priya Shrestha, S.P.P.
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C.A.V. ON 17.05.2023 PRONOUNCED ON 16 /06/2023
1. The instant revision petition has been filed for quashing the order
dated 31.05.2022 passed in Vigilance Case No. 44 of 2013 (Vigilance P.S. Case
No. 41 of 2013) whereby and whereunder, the petition for discharge filed by the
petitioner has been rejected and prima facie case is found to be made out under
Sections 420, 465, 467, 468, 471, 477A, 406, 409, 120 B of IPC and U/s 13(2)
r/w Section 13(1)(c) (d) of the Prevention of Corruption Act,1988 (PC Act).
2. It is submitted by learned counsel for the petitioner that the petitioner
was posted as Block Development Officer-cum-In-charge Circle Officer at
Barkagaon from 22.10.2009 to 22.03.2011.
3. The list of the beneficiaries under the crops insurance scheme is
prepared by the President, Primary Agricultural Credit Cooperative Society
(PACS) and then it is finalized by the Block Cooperative Extension Officer and
recommendation is placed before the Block Development Officer. After his
posting, the list of the beneficiaries, duly recommended by the Block Co-
operative Extension Officer, was placed for his approval in October, 2009 and
the same was approved by him. It was, accordingly, placed before the District
Co-operative Officer, and the payment was released by the petitioner in favour
of the beneficiaries.
4. It is submitted that being his first posting as Block Development
Officer, he endorsed the list of beneficiaries placed before him by the Block
Cooperative Extension Officer. This was done on the basis of the
recommendation and no criminality was involved. There was no guilty intent on
his part, will be apparent from the fact that in the departmental proceeding, the
petitioner was held not responsible for any financial irregularities, however, he
was found guilty for dereliction of duty. This was a case of error of judgement
on his part to have accepted the recommendation and his dereliction of duty was
on account of first posting as Block Development Officer as held in the
Departmental Proceeding.
5. To sum up, there are four sets of allegations made in the FIR with
regard to the entire process with which the Credit Insurance Scheme in PACS at
Gondalpura was executed.
The First allegation was regarding collection of Rs.110/- per acre
instead of Rs.99/- per acre from the farmers for their crop insurance.
With regard to this part, there was no allegation against the petitioner
as he was not posted when the said collections were made.
The second allegation was with regard the list of beneficiaries who
were paid the amount under the Crop Insurance Scheme which was prepared by
the President, PACS in September, 2009 before the petitioner took charge of his
office on 22.10.2009. He was not involved in the process of election of PACS
members and President which was held from November, 2011 onwards. By that
time, he had been transferred with effect from 22.03.2011. The allegation
pertaining to petitioner is that the list of beneficiaries prepared by the Chairman,
PACS and verified by Block Co-operative Extension Officer was endorsed and
recommended by this petitioner to the District Co-operative Officer.
With regard to this charge, it is submitted that he was not a beneficiary
and he did not derive any wrongful advantage by the said act of endorsement.
The final approving authority was the District Co-operative Officer and the
recommending authorities were the President, PACS and the Block Co-operative
Extension Officer. The payment of the insurance amount was released in favour
of beneficiaries after transfer of the petitioner. He has been dragged into the case
only because he had endorsed the list of beneficiaries as prepared by the
President and recommended by the Block Co-operative Extension Officer.
6. It is submitted that the departmental proceeding was initiated against
the petitioner and in the departmental proceeding in which the petitioner was
indicted for dereliction of duty, but as per the final findings recorded in Para-
"Ch", it was held that no financial irregularity was committed by him. After the
proceeding, suspension was revoked and it was observed in the order that it was
his first posting and his plea of being not a beneficiary, was accepted.
7. In the departmental proceeding, a finding was recorded that the wrong
list of beneficiaries was prepared by the President, PACS (Umesh Kumar Yadav
and the then Block Co-operative Extension Officer (Yogendra Poddar) and the
then District Co-operative Officer, Shri Ravi Shankar Pandey was also indicted
and recovery of 10% from the Pension was ordered.
8. The charges imputed in the departmental proceeding and in the FIR are
one and the same. In view of part exoneration in the departmental proceeding
with respect to the charges of financial irregularity, it is submitted that the
prosecution is liable to be quashed in view of the ratio decided by Hon'ble
Supreme Court in Ashoo Surendranath Tewari v. CBI, (2020) 9 SCC 636
8. A number of judgments have held that the standard of proof in a
departmental proceeding, being based on preponderance of probability
is somewhat lower than the standard of proof in a criminal proceeding
where the case has to be proved beyond reasonable doubt.
9. It is further submitted that mere codal violations will not be sufficient
for invoking criminal prosecution in view of the ratio decided by the Hon'ble
Supreme Court reported in C. Chenga Reddy v. State of A.P., (1996) 10 SCC
193.
10. Learned counsel for the Vigilance has opposed the petition. It is
submitted that the pleas that have been raised, lie in the realm of defence that the
petitioner is at liberty to take during trial and cannot be considered at this stage.
The test to be applied at this stage is whether the charges are groundless to
entitle the petitioner to the relief claimed. Petitioner was the Block Development
Officer and had vetted the recommendation of the Block Cooperative Extension
Officer and, therefore, cannot escape criminal liability for distribution of benefits
to the persons not really entitled to it.
11. There cannot be two views regarding the legal proposition that at the
stage of framing of charge the scope of judicial scrutiny is a limited one and the
probative value of the evidence on record is not to be looked. There is however a
difference between an allegation and the materials on the basis of which it is
made. A bald allegation will not be sufficient and cannot be said to be the ground
for putting a person on trial. There should be some material which if adduced
into evidence at the stage of trial, will be sufficient to convict the accused.
12. The matter for consideration in the instant case is whether a prima
facie case is made out on the basis of the materials on record?
13. It is not in dispute that the list of beneficiaries was drawn by the
President of PACS and it was recommended by the Block Co-operative
Extension Officer and finally approved by the District Cooperative Extension
Officer. The specific role attributed to this petitioner is that he had endorsed the
recommendation as submitted by the Block Co-operative Extension Officer.
Although the petitioner was indicted in the departmental proceeding, but there
were two important observations made. First was that he was not guilty of any
financial irregularity and second the dereliction of duty was on account of his
first posting.
14. In order to make out an offence of cheating or breach of trust there
need to be some material disclosing dishonest intention on the part of the
accused. In the absence of such an intention an officer may be administratively
liable for dereliction of duty but cannot be prosecuted in a criminal trial. Further,
Section 464 defines a false document. The two elements which impress upon a
document the character of a false document is that it must be a document
dishonestly or fraudulently made and it should have been made with the
intention of causing a belief that it was made or executed by the authority of
person who did not make or execute it and with the knowledge that it was not so
made or executed. Similarly, to constitute criminal misconduct under Section 13
of the PC Act, there should be a dishonest or fraudulent intention to
misappropriate or convert to his own use any property entrusted to him or to
have intentionally enriched himself by any of such act. Intention being a state of
mind is to be gathered by the manifested acts of a person.
15. In the present case as discussed above the departmental proceeding
has exonerated the petitioner of the charges of financial irregularity and
observed that the dereliction of duty was on account of his first posting as Block
Development Officer. Exoneration of an officer in a departmental proceeding
may not in all cases ipso facto result in dropping the criminal proceeding against
him. Application of ratio decidendi relied upon on behalf of the petitioner on
this point shall depend upon the facts and circumstance of each case. If there are
clinching and convincing evidence of one's criminal liability then he may not be
exonerated in a criminal case, perforce his exoneration in a departmental
proceeding. In the present case however, considering the limited role of this
petitioner and drought of evidence except the endorsement on the list of
beneficiaries, the findings of the departmental proceeding will have a direct
bearing showing absence of dishonest intention on his part in the offence. It has
been held in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16
SCC 547 that By and large however if two views are equally possible and the
Judge is satisfied that the evidence produced before him while giving rise to
some suspicion but not grave suspicion against the accused, he will be fully
within his right to discharge the accused.
Under the circumstance and for the reasons discussed above, this Court
is of the view that there is no ground for presuming that the accused committed
the offence in the absence of material disclosing dishonest intention.
The impugned order is accordingly set aside.
This Criminal Revision is allowed.
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated 16th June, 2023,
AFR/ AKT/Sandeep
