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2004 DIGILAW 456 (GAU)

Abedur Rahman v. Hasibuddin Barbhuiya

2004-08-04

I.A.ANSARI

body2004
JUDGMENT I.A. Ansari, J. 1. Heard Mr. GC Phukan, learned counsel for the accused - petitioner, and Mr. FH Laskar, learned Addl. Public Prosecutor, appearing for the State respondent. None has appeared on behalf of the complainment-opposite party. 2. The complainant-opposite party instituted Corporation No. 2139/2000, in the Court of SDJM, Cachar, Silchar, his case being, in brief, thus: The complainant's father, late Mahibur Rahman, was a Class II contractor under the office of the Executive Engineer, PWD (Roads) Construction Division, Karimganj, and he was allotted certain works as mentioned in the complaint. On 15.12.1998, the father of the complainant died and son after his death, the complainant, his brothers and sister lodged a claim before the Executive Engineer concerned payment of the unpaid dues of late Mahibur Rahman in respect of the said contract work, but no payment was made and in the meanwhile, before the claim was lodged, the accused Nos. 1 and 2, namely, Minora Begum Laskar and Abdul Munnaf Choudhary, who are not petitioners in the present revisions,, claimed that the father of the complainant had executed a power of attorney in favour of the accused No. 1 and submitted the same to the office of the Executive Engineer and obtained payment of a sum of Rs. 9,97,700/-. The complainant and his family members were, however, unaware of the payments received by the accused Nos.1 and 2. When the repeated demands for payment raised by the complainant and his family members failed, they issued a notice, Under Section 80 of CPC, to the State of Assam and others claiming payment of Rs. 9,97,700/-. When the claim was so lodged by the complainant and his family members, the accused No. 3, who is, now petitioner No. 1 in the present petition, requested the complainant to enter into an agreement for receiving some payments towards the said dues and when the complainant and his family members declined the offer, a sum of Rs. 2,35,000/- was paid, in cash, by the accused persons at the residence of accused No. 4 (i.e. the petitioner No. 2 in the present revision) but since thereafter, no payment has been made to the complainant and/or his family members. The entire amount of Rs. 9,97,700/- aforementioned was withdrawn collusively by all the accused persons named in the said complaint including the present petitioner Nos. 3 and 4. 3. The entire amount of Rs. 9,97,700/- aforementioned was withdrawn collusively by all the accused persons named in the said complaint including the present petitioner Nos. 3 and 4. 3. On lodging the complaint aforementioned, learned SDJM (Sadar) Silchar recorded the statement of the complainant and, then, held an enquiry in terms of Section 202 of Cr.P.C. and, on conclusion of the enquiry, passed an order, on 28.1.2002, taking cognizance of offences Under Sections120B/409/468/471/109 IPC against all the accused and directing issuance of summons to them accordingly. 4. The accused-petitioners, who are/were officials of the PWD, at the relevant time, have, now, approached this Court with the help of the present application made Under Section 482 Cr.P.C. read with Article 226/227 of the Constitution of India impugned the order, dated 28.01.2002 aforementioned, as illegal and seeking quashing of the entire complaint. 5. It is trite that when a complaint discloses commission of offence, such a complaint cannot be quashed. The contents of the complaint, in question, disclosed commission of offences Under Sections 120B/409/468/471/109 IPC by the present petitioners and two others (i.e. accused Nos. 1 and 2, who are not petitioners in the present case). This apart, the statements recorded by the learned Court below of the complainant and his witnesses also disclose involvement of the accused petitioners in the offences as alleged by the complainant. 6. In view of the above, it cannot be said that there was no materials for the learned Court below to take cognizance of the offences aforementioned against the present petitioners. 7. It is, however, agitated on behalf of the petitioners, that the acts alleged to have been committed by them were done in discharge of the official duties and, hence, the complaint is not maintainable, for, no sanction for prosecution of the petitioners has been obtained in terms of the Section 197Cr.P.C. While dealing with this aspect of the matter, suffices it to mention here that making of a forged document or utilisation of a forged document knowing the same to be forged and/or commission of the offence of cheating do not form part of a public servant's duty. Hence, the provisions of Section 197 Cr.P.C. are not applicable to the facts of the present case. 8. Considering, therefore, the matter in its entirety, this Court finds no reason to interfere with the impugned order and/or with further proceedings of Complaint Case aforementioned. 9. Hence, the provisions of Section 197 Cr.P.C. are not applicable to the facts of the present case. 8. Considering, therefore, the matter in its entirety, this Court finds no reason to interfere with the impugned order and/or with further proceedings of Complaint Case aforementioned. 9. In the result and for the reasons discussed above, this revision fails and the same is dismissed. 10. Send back the LCR along with a copy of this judgment and order. Revision dismissed