K. Jayaraj v. State rep. by Central Bureau of investigation/spe, Hyderabad
2004-09-28
C.Y.SOMAYAJULU
body2004
DigiLaw.ai
C. Y. SOMAYAJULU, J. ( 1 ) SINCE common questions of fact and law arise in all these petitions, they are being disposed of by a common order. ( 2 ) ALLEGING that the petitioner while working as Foreman, Cantonment Board (the Board), in connivance with A-2, made A-2 to start a fictitious automobile workshop in the name of m/s. Choudhary Bros, and brought into existence of fake bills and withdrew huge amounts from the Board by playing fraud, without actually effecting repairs to the vehicles belonging to the Board or purchasing the spare parts for the vehicles of the Board and thus committed offences punishable under Sections 120-B, 428, (?) 468 and 471 IPC and Section 13 (2) read with section 13 (1) (d) of the Prevention of corruption Act, 1988 (the Act), the Inspector of Police, Special Police Establishment filed charge-sheets against the petitioner and A-2 for each year in which the offence was committed. These petitions are filed to quash the charge-sheets against the petitioners. ( 3 ) THE first contention of the learned counsel for petitioner is the fact that petitioner and A-2 only are charge-sheeted leaving the higher officials of the Board, who also are named in the Flr, shows that, petitioner, who is only a Foreman in the Board, is targeted, for some reasons and hence is an abuse of process of law, more so, because, as per section 30 of the Cantonments Accounts code the Officer making payment only is personally responsible for the bills passed by him, and since reasons for not charge- sheeting the Officers who passed the bills are not explained. His second contention is that since the investigation was conducted by the Sub-Inspector of Police, but not by the inspector of Police, and since no sanction of the Central Government, as required under section 19 of the Act, is obtained, the procecution against the petitioner is liable to be quashed, by strongly relying on para 136 of State of Haryana v. Bajan Lal, at pages 004 to 635.
( 4 ) THE contention of the learned Standing counsel for C. B. I, is that since the investigation revealed that petitioner and a-2 brought into existence fake bills and documents to show that repairs were effected to the vehicles of the Board, though no repairs were effected and bills showing purchase of spare parts were brought into existence, without actually purchasing the spare parts, petitioner and A-2 are charge-sheeted and the fact that the superior officers of the petitioner, who passed the bills produced by the petitioner, are not made the accused, by itseif, is not a ground to quash the charge- sheets against the petitioner and since there is a specific mention about the Sub-Inspector of Police taking up investigation after obtaining sanction from the Magistrate and since the charge-sheets were filed in pursuance of the sanction accorded by the Board, there are no grounds to quash the proceedings against the petitioner. ( 5 ) SECTION 30 of the Cantonments accounts Code, strongly relied on by the learned counsel for the petitioner, reads as under;30. Payment of bills: (1) Every item of expenditure shall be entered in a bill in the form prescribed by this Code. Bills and other vouchers presented for payment shall be examined by the executive Officer or other Officer appointed by the Cantonment Board in this behalf, and, if the claim is admissible, the authority good, the signature true and in order, and the receipt a legal quittance, he shall make an orderto pay on the bill and sign it. The officer making a payment order shall be personally responsible that the bill is complete and affords sufficient information as to the nature of the payment, and that the payee actually receives the sum passed. A close and carefulreading of the above section of the cantonments Accounts Code, shows that the duly cast on the Executive officer or the other Officer appointed by the board is to see thai the claim made is "admissible, the authority good, the signature true and in order and the receipt a legal quittance" and then only he should pass the bill. The personal responsibility envisaged by the said section is with regard to the bill being complete and its affording sufficient information regarding the nature of payment and the payee actually receiving the amount of the bill passed by him.
The personal responsibility envisaged by the said section is with regard to the bill being complete and its affording sufficient information regarding the nature of payment and the payee actually receiving the amount of the bill passed by him. A plain reading of the said Section shows that, either the executive Officer or the Officer appointed by the Board is not made personally responsible for the genuineness of the bill that is being passed by him, provided he is satisfied that the claim is admissible, authority good, the signature true and in order and the receipt a legal quittance. When an employee, who is concerned with the expenditure, certifies about the bill being genuine, it would be a good authority for passing the bill. ( 6 ) SINCE the case of the prosecution is that the petitioner and A-2, who floated a fictitious shop, brought into existence some bills without actually effecting repairs to the vehicles belonging to the Board, and without actually supplying spare parts and obtained orders for payment, and enriched themselves it is a case of collusion between petitioner and A-2. If the bill passing Officer relies on the certification by the foreman and passes the bill, it is in accordance with Section 30 of cantonment Accounts Code extracted above. If some bill passing officer took more care than that is required by the above quoted section 30 of the Cantonment Accounts Code and took upon himself the duty to verify if the bills produced before him with certification by the concerned employee, which can be relied on by him for passing the bill, are true or not and did not pass the bills after finding them to be not genuine, that circumstance cannot be made a ground for exonerating the person who had certified the bills as genuine, knowing them as not genuine, merely because such bills were accepted and passed by the earlier bill passing authorities, by accepting the certification of the concerned employee of the Board. So the fact that the persons who worked as Executive Officers, who passed the bills on the certification made by the petitioner, are not made accused along with the petitioner, and A-2, by itself, is not and can noi be a ground for quashing the charge- sheets against the petitioner.
So the fact that the persons who worked as Executive Officers, who passed the bills on the certification made by the petitioner, are not made accused along with the petitioner, and A-2, by itself, is not and can noi be a ground for quashing the charge- sheets against the petitioner. If the prosecution is able to establish that petitioner committed the offences alleged against him, mere non-inclusion of the officers who passed the bills as co-accused, would not absolve the petitioner of his liability for the offences committed by him. ( 7 ) THE allegations In the charge-sheets are that the petitioner and A-2, In collusion with each other, brought into existence fake bills and had withdrawn money of the Board on the basis of those fake bills. As per the ratio in Bajanlal s case (1 supra) strongly relied by the learned counsel for the petitioner, if the allegations in the charge-sheet, when taken to be true, prima facie disclose commission of a cognizable offence, question of quashing the charge-sheet does not arise. Therefore, merely because, the persons who passed bills are not make accused, the proceedings against the petitioner cannot be quashed and so I am unable to agree with the contention of the learned counsel for the petitioner that the proceedings against the petitioner cannot be are an abuse of process of Law. ( 8 ) RELYING on T. T. Antony v. State of kerala and Kainya and Associates Pvt. Ltd. v. Avanti Kopp Electricals Private Ltd. , the learned counsel for petitioner contended that since five F. I. Rs. are registered in respect of the same offence, the proceedings against the petitioner are liable to be quashed. I find no force in the said contention, because the case of the prosecution is that petitioner and a-2 indulged themselves in the acts of fraud for several years. Since Section 219 Cr. P. C. lays down that offences of the same kind committed within the space of twelve months can only be tried in one trial, police registering firs for frauds committed every year and their filing charge-sheets for each year fraud etc. , separately, cannot be said to be improper. ( 9 ) THE next contention relates to the investigation being conducted by an Officer of the rank of Sub-Inspector of Police being improper.
, separately, cannot be said to be improper. ( 9 ) THE next contention relates to the investigation being conducted by an Officer of the rank of Sub-Inspector of Police being improper. As per Section 17 (a) of the Act, no police officer below the rank of Inspector of police, of Delhi Special Police Establishment, shall investigate an offence punishable under the Act without the order of a Metropolitan magistrate or a Magistrate of First Class, which impliedly means that an Officer below the rank of Inspector of Police can, with the prior permission of the Metropolitan magistrate or Magistrate of First Class, conduct the investigation and arrest the accused without the warrant. There is a specific averment in all the charge-sheets that the Sub-Inspector of Police, C. B. I. , hyderabad was accorded permission by the court for conducting the investigation. The charge-sheets were in fact filed by the inspector of Police. So it cannot be said that the investigation conducted by the Sub- inspector of Police, with the permission of the Magistrate, is not in accordance with section 17 of the Act. ( 10 ) THE other contention relates to lack of sanction as contemplated by Section 19 of the Act. That the Board is the appointing authority of the petitioner is not denied or disputed. The allegations in the charge-sheets show that the Board, being competent authority to remove the petitioner from the service, passed a resolution authorizing the executive Officer to issue orders of sanction to prosecute the petitioner under section 19 (1) (c) of the Act. As per section 19 (1) (c) of the Act, the Competent authority to sanction prosecution is the authority who has got the power to remove the person accused of the offence from service. Since in a petition under Section 482 of Cr. R. C. , to quash proceedings, this Court should take the averments in the charge- sheet as true, in view of the above statement in the charge-sheets it has to be taken that the competent authority sanctioned prosecution of the petitioner. ( 11 ) THEREFORE, I find no merits in these petitions and accordingly, all the Criminal petitions are dismissed.