Rajendra vs The State Of Madhya Pradesh
2023 Latest Caselaw 3033 MP

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                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                               AT INDORE
                                                           CRA No. 258 of 2023
                                                   (RAJENDRA Vs THE STATE OF MADHYA PRADESH)



                           Dated : 20-02-2023

                                  Shri Ajay Bagadia, learned Senior Advocate along with Shri Rishi

                           Shrivastava,, learned counsel for the appellant.

                                  Ms. Mamta Shandilya, learned G.A. for the respondent/State.

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Heard on the question of admission.

Admit.

Also heard on I.A. No.618/2023, which is FIRST application under Section 389(1) of Code of Criminal Procedure, 1973 for suspension of remaining jail sentence and grant of bail filed on behalf of appellant - Rajendra.

The appellant has been convicted under Section 420/120-B of IPC and sentenced to undergo 7 year's R.I. with fine of Rs.5,000/-, Section 409/120-B IPC and sentenced to undergo 7 year's R.I. with fine of Rs.5,000/- and Section 13(1)(C) of Prevention of Corruption Act, 1988 and sentenced to undergo 4 year's R.I. with fine of Rs.2,000/- with default stipulation.

As per prosecution story, vide letter dated 12.04.2013, Collector Barwani has directed PW/2 to conduct an inquiry in respect of various works completed under the "MNREGA" Scheme in all the Gram

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 21-02-2023 18:47:19

Panchayats within the Janpad Panchayat, Niwali, District Barwani where the valuation was more than Rs.3,00,000/-. Thereafter different teams were constituted to inquire in respect of 405 work completed from the year 2010-11 to 2012-13. PW/2 conducted an inquiry and submitted a report to the Superintendent Engineer P.H.E. and on the basis of the said report FIR was registered against 16 accused under Section 420, 409, 467, 468 and 120-B of the Indian Penal Code, 1860 and Section 13(1)(C) of P.C. Act, 1988 at Crime No.24/2013. All the accused persons were put to trial and the charges were framed that being a public servant posted in the Janpad Panchayat, Niwali they have embezzled the amount of Rs.6,29,24,075/- in respect of the work completed in the year 2010, 2011 and 2013. They denied the charges and pleaded for trial. Prosecution examined 15 witnesses and exhibited 264 documentary evidence and after appreciating the evidence came on record vide judgment dated 14.12.2022 these appellants have been acquitted under Section 467/120-B and 468/120-B and out of 16 accused persons, 12 have been convicted (four died during the pendency of the trial) hence, this appeal before the Court.

Learned Senior counsel for the appellant submits that entire conviction is based upon the inquiry report submitted by the PW/2, the Investigating Officer did not conduct any investigation independently which he has admitted in his cross-examination. The PW/2 and other witnesses who were the part of the inquiry team have also admitted that they conducted the inspection in absence of these appellants, therefore, the entire conviction is based on the report obtained behind the back of the appellant. It is further submitted the report could have been used for departmental inquiry under service under law but so far as the culpability

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 21-02-2023 18:47:19

is concerned, the burden remains always on the prosecution to investigate the matter independently and established the charges. Both the Investigating Officers did not even visited the spot where all these works were completed long back. Now the Sarpanch and Secretary of all the Gram Panchayat were made accused in this Court. It is further submitted that all these appellants were on bail during the trial and some of them were granted anticipatory bail by this Court, they never misused the liberty of it or ever tried to interfere with the witnesses. This appeal is of 2022 and it will take time to come up for hearing.

Learned Govt. Advocate opposes the aforesaid prayer by submitting that the entire report was supplied to the appellant along with the charge- sheet and they had an opportunity to cross-examine the witnesses who prepared the report but nothing came out in their favour in it hence, the trial Court has wrongly convicted the appellant.

Considering the facts and circumstances of the case and arguments advanced by learned counsel for the parties but without commenting on the merit of the case, I am of the considered opinion that the application for suspension of custodial sentence moved on behalf of the appellant deserves to be allowed.

Accordingly, I.A. No. 618/2023, is allowed and it is directed that subject to depositing fine amount and on furnishing personal bond by the appellant - Rajendra in the sum of Rs.50,000/- (Rupees Fifty Thousands Only) with one solvent surety in the like amount to the satisfaction of the learned trial Court and on deposit of fine amount (if not already deposited), the execution of custodial part of the jail sentence shall remain suspended, till the final disposal of this appeal. The appellant after being enlarged on

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 21-02-2023 18:47:19

bail, shall mark his presence before the Registry of this Court on 12/09/2023 and on all such subsequent dates as may be fixed by the Registry of this Court in this regard.

List for final hearing in due course.

Certified copy, as per rules.

(VIVEK RUSIA) JUDGE Divyansh

Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 21-02-2023 18:47:19