Kamakhya Narain Singh v. Ram Lakhan Singh — 1969 DIGILAW 123 (PAT)

JUDGMENT : G.N. Prasad, J. 1. This application is directed against an ORDER :dated the 16th December, 1968, whereby by the Sub-divisional Magistrate of Patna has taken cognizance of offences under Sections 403, 406 and 409 of the Indian Penal Code, appearing to have been committed by the petitioner, upon a complaint of the opposite party no. 1. 2. In substance, the case sought to be made out by the complainant is that the petitioner in the capacity of being a Minister of the Government of Bihar, holding the portfolios of the departments of Public works, Mines and Geology took an advance of a sum of Rs. 22,800/-from the Government in ORDER :to meet the costs of a projected tour to the United States of America. This advance was taken by the petitioner on the 23rd November, 1967. The proposed tour did not, however, materialise and, therefore, under the relevant rules governing such advances, the petitioner was bound to refund the entire money to the Government immediately. The petitioner did not, however, refund the money and, therefore, on the 7th March, 1968, the Secretary of the Finance Department, Government of Bihar, addressed a communication to the petitioner to make the refund. Even then the petitioner did not refund the money, and on the other hand, he wrote a letter to the Finance Secretary dated the 3rd May, 1968, in which he indicated that the Government owed to him money on account of various charges, such as telephone charges, electricity charges, travelling allowance and house rent allowance, in regard to which a provisional accounting had been done and it was found that the Government was liable to pay to him a sum of Rs. 20,365.18, which had, therefore, been adjusted against the said sum of Rs. 22,800/-. With regard to the balance of Rs.2,434.82, it was stated that the petitioner was retaining them for the purpose of payment of further telephonic bills in due course, and if after all such adjustments, he would have any further claim against the Government, then it would be made subsequently. 22,800/-. With regard to the balance of Rs.2,434.82, it was stated that the petitioner was retaining them for the purpose of payment of further telephonic bills in due course, and if after all such adjustments, he would have any further claim against the Government, then it would be made subsequently. According to the complainant, the petitioner was not entitled to make any adjustment in the aforesaid manner, and since he did not refund the money to the Government in accordance with the rues governing such advances, he had committed offences of criminal misappropriation and criminal breach of trust punishable under Sections 403, 406 and 409, Indian Penal Code. 3. The complaint which was filed on the 11th September, 1968 was referred to a Magistrate of the First Class for inquiry under Section 202, Code of Criminal Procedure. The Enquiring Magistrate reported that a prima fade case had been disclosed and upon a perusal of the inquiry report, the learned Sub-divisional Magistrate recorded the impugned ORDER :. 4. The contention of Mr. B. K. Banerji appearing on behalf of the petitioner is that the ORDER :of the learned Sub-divisional Magistrate is erroneous since it proceeds upon a wrong assumption that in his letter of the 7th March, 1968, a photo-stat copy of which forms a part of the petition of complaint, the Finance Secretary had asked for a refund of the money. The fact is that he had merely requested the petitioner to arrange for adjustment of the said advance of Rs. 22,800/- at an early date. Mr. Banerji contends that in view of the Finance Secretary's letter in question, there can be no scope for thinking that the petitioner had retained the money, or that he was actuated with any dishonest intention. In this connection Mr. Banerji points out that the Finance Department never raised any objection to the adjustment of the money in the manner indicated by the petitioner in his letter of the 3rd May, 1968. He has referred to certain further communications which indicate that the money was allowed to be adjusted as indicated by the petitioner and, ultimately, it was found that after such adjustment, the petitioner had still to receive a sum of Rs. 305-50 (Sic) from the government. 5. He has referred to certain further communications which indicate that the money was allowed to be adjusted as indicated by the petitioner and, ultimately, it was found that after such adjustment, the petitioner had still to receive a sum of Rs. 305-50 (Sic) from the government. 5. In ORDER :to appreciate the true import of the Finance Secretary's letter dated the 7th March, 1968, it is necessary to refer to certain provisions of the Bihar Ministers. Conveyance and Traveling Allowances Rules, 1953, framed by the State Government under the Bihar 'Ministers' Salaries and Allowances Act, Bihar Act 16 of 1953, Rule 17 provides : “An advance may be made to a Minister when he is proceeding on long and expensive tours or on a journey outside India. The advance may be made at the discretion of the State Government to an amount sufficient to cover his personal travelling Expenses, subject to adjustment on completion of his tour in such manner as the State Government may, in each case by ORDER :determine. An advance shall not be granted as a matter of course, but only on occasions when the cost of travelling is so heavy as to be a serious tax on the Minister's private resources." “Advance” has been defined in Sub. rule (i) of Rule 3 as "a repayable advance made to Minister on account of travelling or daily allowance, but des not include any advance on account of conveyance allowance”. Sub-rule (iv) of Rule 3 lays down: "travelling allowance” means an allowance granted to a Minister to cover the expenses which he incurs in travelling in the interest of the public service and includes daily allowance." In view of these rules, it is abundantly clear that the sum of Rs. 22,800/-which had been advanced to the petitioner was earmarked for a specific purpose, namely, to cover his expenses of the projected tour outside India. It was a repayable advance and subject to adjustment on completion of the projected tour in such manner as the State Government might by ORDER :determine. Admittedly the petitioners projected tour to the United States of America did not materialise and the petitioner had become liable to refund the money to the Government. But the State Government did not ask for any cash refund, and the letter of the Finance Secretary dated the 7th March, 1968, the petitioner was called upon to make adjustment. Admittedly the petitioners projected tour to the United States of America did not materialise and the petitioner had become liable to refund the money to the Government. But the State Government did not ask for any cash refund, and the letter of the Finance Secretary dated the 7th March, 1968, the petitioner was called upon to make adjustment. The manner in which the State Government wanted the adjustment to be made had to be indicated under Rule 17. But the State Government did not determine in what manner the adjustment had to be made. It is true that Rule 17 contemplates adjustment of the advance on completion of the foreign tour, and in terms it does not apply to a case where the projected tour had not materialised. But there is no specific rule to govern a case where the contemplated tour for which the advance had been taken does not meterialise. Therefore, in the present case, it might have been open to the State Government to call upon the petitioner to refund the entire amount as soon as the petitioner intimated to the Government that his tour to the United States of America had not materialised. But no such ORDER :was passed by the State Government in this particular case. The State Government seems to have proceeded upon the footing that the advance was to be adjusted in some manner similar to that contemplated by Rule 17. Even then the manner in which the adjustment was to be made was not determined by the State Government. If under these circumstances, the petitioner sought to make the adjustment in his own way, it is difficult to think that the petitioner was actuated with any dishonest intention in the matter, particularly when there is nothing on the record to show that the State Government had disapproved of the manner in which the petitioner had adjusted the advance. 6. The petitioner has brought on the record certain communications which passed between him and the Government in this connection. One such communication is a letter which the Finance Secretary addressed to the petitioner on the 21st January 1969, when by the petitioner was informed that “Your entire claim will be settled in the aforesaid manner and adjusted against the advance of Rs. One such communication is a letter which the Finance Secretary addressed to the petitioner on the 21st January 1969, when by the petitioner was informed that “Your entire claim will be settled in the aforesaid manner and adjusted against the advance of Rs. 22,800/- drawn by you on 23rd November, 1967......If after final adjustment any amount becomes payable to you, the same will be paid to you in due course. If on the other hand any amount becomes payable by you, Government trusts that you will make the payment quickly". There is also an affidavit on behalf of the State of Bihar which has been brought on the record of this case, the second paragraph of which reads: "That the Raja of Ramgarh, Shri Kamakhya Narain Singh had taken an advance of Rs. 22,800/- from the Government of Bihar for a projected tour which, however, did not materialise. This amount was in due course adjusted against the amount which the Slate Government owed to the Raja Bahadur and on such adjustment, the State Government has now to pay a sum of Rs. 305.60 to the Raja Bahadur" 7. I should make it clear that I am aware that these subsequent material cannot normally be referred to for the purpose of judging the validity or otherwise of the impugned ORDER :. But I have referred to them for the limited purpose of indicating what the Finance Secretary meant by his letter dated the 7th March, 1968, when he used the word "adjustment" in relation to the impugned advance. It is abundantly clear that the State Government wanted adjustment in some form and did not necessarily insist upon cash refund, even though it may have been competent to ask for such cash refund. 8. Learned counsel for the complainant drew my attention to charge no. H/18 which has been submitted against the petitioner to a Commission known as the Mudholkar Commission constituted under the Commissions of Inquiries Act, and a copy of which is Annexure "A" to the present application. There it has been said, inter alia: "The tour did not, however, materialise, On 24th January, 1968, Raja Bahadur Kamakhya Narain Singh returned the file with a note that no further action was necessary in the matter. He did not, however, refund the travelling allowance advance drawn by him. He is still retaining the amount with him. There it has been said, inter alia: "The tour did not, however, materialise, On 24th January, 1968, Raja Bahadur Kamakhya Narain Singh returned the file with a note that no further action was necessary in the matter. He did not, however, refund the travelling allowance advance drawn by him. He is still retaining the amount with him. The moment the tour was cancelled or at least as soon as he laid down office, he should have refunded this amount. By retaining this amount in an irregular manner, Raja Bahadur Kamakhya Narain Singh has committed temporary misappropriation of Government funds to the extent of Rs. 22,800." This charge was published in the Bihar Gazette (Extraordinary) on the 12th March, 1968, that is to say, only five days after the Finance Secretary's letter dated the 7th March, 1968, to which I have referred to above. But it is quite clear that the notification of a charge like this cannot take the place of an ORDER :of the State Government envisaged in Rule 17 determining the manner in which the adjustment of the advance made to the petitioner bad to be made. 9. Learned counsel for the complainant contends that since the advance mace to the petitioner was a repayable advance, as indicated in Sub-rule (1) of Rule 3, the letter of the Finance Secretary dated the 7th March, 1968, ought to be interpreted as asking for cash refund of the money upon the failure of the projected foreign tour of the petitioner. This argument ignores the provisions of Rule 17 which clearly lays down that in each case it will be for the State Government to determine by a specific ORDER :in what manner the advance is desired to be adjusted. The Finance Secretary's letter dated the 7th March, 1968, was silent on this matter and, therefore, an inference of dishonest intent cannot be drawn against the petitioner if be proceeded to make the adjustment in his own way. It is significant to note that even after the petitioner had addressed the letter dated the 3rd May, 1968, to the Finance Secretary, he was not informed that he had to make a cash refund under any ORDER :of the State Government. It is significant to note that even after the petitioner had addressed the letter dated the 3rd May, 1968, to the Finance Secretary, he was not informed that he had to make a cash refund under any ORDER :of the State Government. I am, therefore, unable to accept the contention of the learned counsel for the complainant that in his letter dated the 7th March, 1968, the Finance Secretary had asked for a cash refund of the money from the petitioner. 10. Learned counsel for the complainant has urged that at this stage this Court ought not to look into the communications of the 7th March, 1968, and the 3rd May, 1968, or come to any conclusion on their basis, but should merely see whether the allegation made in the petition of complaint, as they stand, disclose any criminal offence or not. But I find on a perusal of the petition of complaint that these two communications have been made the very basis of the accusation made against the petitioner. In Paragraph 5 of the petition of complaint, the case sought to be put forward by the complaint is that on the 7th March, 1968, the Finance Secretary had written to the petitioner to refund the said amount of Rs. 22,800/-, and in Paragraph 6 it has been stated: "That on 3.5.1968 the accused, instead of returning the amount to the Government, illegally mis-appropriated it by adjusting it on the ground that Government owed a sum of Rs. 20,365.18 to him," In fact, a photo-stat copy of the letter dated the 3rd May, 1968 has been annexed as Annexure "1" and forms part of the petition of complaint. It seems to me, therefore, that it is open to this Court to look into both these communications for the purpose of deciding whether the allegations contained in the petition of complaint do or do not disclose a criminal offence. And since I have come to the conclusion that the materials on the record give no indication of criminal intent on the part of the petitioner, I must hold that the petition of complaint does not disclose any criminal offence to justify the petitioner being put on trial. 11. For the foregoing reason, this application succeeds and must be allowed. And since I have come to the conclusion that the materials on the record give no indication of criminal intent on the part of the petitioner, I must hold that the petition of complaint does not disclose any criminal offence to justify the petitioner being put on trial. 11. For the foregoing reason, this application succeeds and must be allowed. The ORDER :of the Sub-divisional Magistrate dated the 16th December, 1968, is set aside and the proceeding taken against the petitioner is quashed. Application allowed.