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Madhya Pradesh High Court · body

2005 DIGILAW 1285 (MP)

STATE OF MADHYA PRADESH v. HAJARI LAL BHATT

2005-12-15

RAKESH SAKSENA

body2005
Judgment ( 1. ) THE State has filed this revision against the common order dated 18-12-1990 passed by the Sessions Judge, Panna disposing of Criminal Revisions no. 78/1990,83/1990,84/1990 and 86/1990 whereby the Sessions Judge allowed the revisions and quashed the order dated 30-7-1990 passed by the learned judicial Magistrate First Class, Panna, framing the charges against the accused persons under Sections 409, 418 and 418 read with Section 120-B of IPC In criminal Case No. 272 of 1988. ( 2. ) IN short the facts of the case are that on receipt of a complaint from the Divisional Superintendent of Education, Rewa, on 13-4-1969, Police kotwali, Panna, registered Crime No. 38 of 1969. At the relevant time i. e. , in the financial year of 1968-69 accused Hajari Lal was the District Education Officer, panna, Ramashanker Rajput Store Keeper, Devi Prasad Yadav Accountant and chandrika Prasad Tiwari Upper Division Clerk in the office of District education Officer, Panna. Accused Ismail was Proprietor of M/s Buddh Ismail, ajaygarh, G. P. Shukla Proprietor of M/s Education Traders, Satna, Vijay kumar Shukla Proprietor of Vijay Education Corporation, Agra and gopikrishna Gupta was the Proprietor of M/s Gupta Stores, Rewa. On investigation it was found that Divisional Superintendent of Education, Rewa division, had allotted a sum of Rs. 27,500/- to the District Education Officer hajari Lal Bhatt for the purchase of maps and charts for the schools in the financial year 1968-69 whereas he had purchased the maps and charts of the value of Rs. 5,63,304. 80 paise and other articles of Rs. 28,898/- during that year. Hajari Lal had purchased the aforesaid articles from M/s Educational Traders, satna, to the tune of Rs. 1,26,557. 15 paise, from M/s Kunjbihari Rammanohar panna of Rs. 2,50,064. 90 paise, from M/s Vijay Educational Corporation, Agra, of Rs. 88,816. 90 paise, from M/s Gupta Stores, Rewa, of Rs. 57,440. 85 paise and from M/s Buddh Ismail, Ajaygarh, of Rs. 40,425/ -. District Education Officer was entitled to purchase urgently needed articles only up to value of Rs. 1,000/-under the rules provided in M. P. Financial Code. It is alleged that accused Hajari lal obtained the bills for the purchased articles by splitting them under the value of Rs. 1,000/- each with the connivance of the supplier firms and passed the bills for the payment. 1,000/-under the rules provided in M. P. Financial Code. It is alleged that accused Hajari lal obtained the bills for the purchased articles by splitting them under the value of Rs. 1,000/- each with the connivance of the supplier firms and passed the bills for the payment. It is alleged that departmental registers and records were not properly maintained and there was shortage of stock. It is also alleged that the purchases were made without sanction, in contravention of the rules applicable to the department and more goods then ordered were obtained from the suppliers. No proper procedure was followed and the articles were purchased on higher price than their actual market value. ( 3. ) AFTER completion of the investigation, police filed the charge sheet in the Court of Special Judge, Panna, under Sections 409,420,477-A and 120-B of IPC and Section 5 (1) (d) read with Section 5 (2) of the Prevention of corruption Act, 1947, on which Special Case No. 1 of 1976 was registered. The learned Special Judge by his order dated 7-8-1979 held that prima facie no offence under the provisions of Prevention of Corruption Act was made out, however, there was a prima facie case under Section 418 read with Section 120-B of IPC against the accused Hajarilal, Devi Prasad and Chandrika Prasad and under Sections 409 and 418 read with Section 120-B of IPC against the accused ramashanker Rajput and under Sections 418 read with Section 109 of IPC in alternative read with Section 120-B of IPC against accused Ismail, G. P. Shukla, vijay Kumar Shukla and Gopikrishna. The learned Special Judge accordingly remitted the case to the Court of Judicial Magistrate First Class, Panna, for the trial. Aggrieved by the order of framing charges, accused persons preferred revisions before the High Court, which were disposed of by the common order passed on 4-4-1980 in Cr. Revision No. 494 of 1979, holding that the Special judge had acted in excess of his jurisdiction in framing the charges under the provisions of Penal Code and remitting the case to Magistrate for the trial. It was held that the proper course for the learned Special Judge was to return the challan papers to the Police concerned, who may be free to present the same under the relevant provisions of law before the Magistrate having jurisdiction. ( 4. It was held that the proper course for the learned Special Judge was to return the challan papers to the Police concerned, who may be free to present the same under the relevant provisions of law before the Magistrate having jurisdiction. ( 4. ) THE State of Madhya Pradesh had also preferred a revision against the aforesaid order, before the High Court, however, the same was dismissed. ( 5. ) THE police then filed the charge sheet on 29-6-1987, in the Court of chief Judicial Magistrate, Panna, which was transferred to the Court of Judicial magistrate First Class as Criminal Case No. 272 of 1988. The learned magistrate, by the impugned order dated 30-7-1990 framed the charges against the accused persons Hajarilal Bhatt under Sections 409,418 and 418 read with section 120-B of IPC and against the other accused under Section 418 read with section 109 and 120-B of IPC. ( 6. ) ACCUSED persons, being aggrieved by the impugned order of framing charges against them by the Magistrate filed revisions before the Court of Session, on the ground that the framing of charges against them was illegal, perverse and it occasioned failure of justice. The learned Sessions Judge while disposing of all the aforesaid revisions by common order dated 18-12-1990, in criminal Revision No. 78 of 1990, held that there was absolutely no evidence on record that the accused Hajarilal Bhatt was prima- facie guilty of commission of offence under Section 409 of the IPC, as it was the prosecutions own case that by virtue of his post as District Education Officer he could spend sums of moneys to the extent of Rs. 1,000/- at any time for departmental needs and that as the bills of suppliers were passed by Panna Treasury without any objection and there was no objection of the Accountant General of Madhya Pradesh also. The learned Sessions Judge held that the District Education Officer could have spent large sums of money, within the authorised authority of spending rs. 1,000/- at any time for departmental needs and that as the bills of suppliers were passed by Panna Treasury without any objection and there was no objection of the Accountant General of Madhya Pradesh also. The learned Sessions Judge held that the District Education Officer could have spent large sums of money, within the authorised authority of spending rs. 1,000/- at any one time/there were hundreds of Primary, Middle and High schools and other educational institutions in the district, within his jurisdiction, each having demands of its own in the financial year 1968-69, therefore, in the absence of any evidence that any public money was actually misappropriated by the applicant, he could not have been charged under Section 409 of the Indian penal Code and hence, quashed the aforesaid charge with respect to accused Hajarilal. ( 7. ) AS far as the question of charge under Section 418 of IPC is concerned, the learned Sessions Judge held that since the aforesaid offence was punishable with imprisonment of either a description for a term which may extend up to 3 years or with fine or with both, in the absence of offence under section 409 of IPC, the cognizance for the said offence in view of the provision under Section 468 (2) (c) of the Cr. P. C. could have been taken if the charge sheet would have been filed against the accused in the appropriate Criminal court within three years of the date of the commission of the offence or from the first day on which the offence came to the knowledge of the aggrieved person or the Police Officer, therefore, the cognizance for the aforesaid offence was barred by limitation. The learned Sessions Judge also observed that "there were about 116 prosecution witnesses and voluminous documentary evidence which would ensure that the trial would run for years to years in the trial Court against the accused, whose probable end could not be foreseen at this stage. This was a great tragedy, apparently a gross travesty of justice and infliction of great harassment on the accused putting them to understandable heavy amounts of money for their defence and mental torture, without they being even remotely found guilty and the presumption of innocence operating in their favour till found guilty beyond a reasonable doubt in due process of law. Courts of law could not function as road rollers, crushing the accused under the wheels of indefinite or gross delay during trial. " ( 8. ) AGGRIEVED by the impugned order of discharge of the accused persons, the State has come up before this Court in revision. Learned Counsel for the State contended that there is abundant evidence to show that prima-facie offence under Section 409 of IPC was made out against the accused Hajari Lal bhatt. He submitted that in view of the limitations imposed upon him by the rule 108 of the M. P. Financial Code (Vol. 1), he was not entitled to spend government money over and above his powers. In order to circumvent and defeat the object and purpose of the rules, he deliberately with malafide intention spent Rs. 5,63,304, in connivance with the suppliers by obtaining and paying huge number of splitted bills under the value of Rs. 1,000/- each. Even on the same day a large number of hills were issued by the suppliers which were accepted and passed by the District Education Officer. He submitted that in contravention of the rules, maps and charts in large number were purchased without there being any evidence of their necessity and that too over and above the market value, the registers and the stocks of the purchases were not properly maintained and the stock was not verified. He submitted that there was enough material on record to constitute prima-facie charge for the offence under section 409 of IPC against the accused Hajarilal Bhatt. He further submitted that all the accused persons entered into conspiracy and dishonestly caused loss and damage to government by their acts, as such prima-facie offence under section 418 of IPC was also made out. He submitted that in view of the provisions of sub-section (3) of Section 468 of Cr. P. C. the cognizance cannot be held to be time barred as prima-facie offence under Section 409 of IPC which is punishable with imprisonment for life is made out against the accused Hajarilal bhatt and both the offences have to be tried together. ( 9. P. C. the cognizance cannot be held to be time barred as prima-facie offence under Section 409 of IPC which is punishable with imprisonment for life is made out against the accused Hajarilal bhatt and both the offences have to be tried together. ( 9. ) LEARNED Counsel for the respondents vehemently opposed the submissions made by the learned Counsel for the State and submitted that there was no prima-facie evidence constituting the ingredients of the offence under section 409 of IPC against the accused Hajarilal Bhatt as he had passed the bills and made expenditure only within his limits and that the Treasury or Accountant generals Office had never taken any objection for the course of conduct adopted by him. He further submitted that as the charge under Section 409 was not made out against the accused Hajarilal Bhatt, no cognizance for the offence under Section 418 can be taken against the respondents. ( 10. ) I have heard the learned Counsel of both the sides at length and perused the evidence and the material on record minutely. Law for framing charges against the accused in a case is well settled. The Magistrate has to consider the question as to framing of charge on a general consideration of the material placed before him by the Investigating Police Officer. The standard test, proof and judgment which is to be applied in finally finding the accused guilty or otherwise is not exactly to be applied at the stage of framing charge. In supdt. and Remembrancer of Legal Affairs Vs. Anil Kumar Bhunja ( AIR 1980 SC 52 ), it has been observed that at this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence. ( 11. ) ON perusal of the record and the material adduced by the prosecution with the charge sheet it is apparent that respondent Hajarilal Bhatt as District Education Officer had been allotted only a sum of Rs. 27,500/- for the purchase of maps and charts in the financial year of 1968-69, but he had purchased the maps and charts of the value of Rs. 5,63,304. 80 paise and other articles of Rs. 27,500/- for the purchase of maps and charts in the financial year of 1968-69, but he had purchased the maps and charts of the value of Rs. 5,63,304. 80 paise and other articles of Rs. 28,989/- from the suppliers (accused ). Though, Hajarilal in case of urgent need was entitled to purchase the articles only up to the value of rs. 1,000/-, on his own authority, yet he purchased articles in huge quantity and obtained the bills from the suppliers in break-up under the value of Rs. 1,000/-each. Along with the letter No. 154 dated 30-4-1975, written by Additional director, Public Education, M. P. , the extract of Rule 108 of M. P. Financial code (Vol. 1) has been produced in the case, which provides about contract contingencies as follows:- "108. When under any special order of competent authority a lump sum is placed annually at the disposal of a distributing officer for expenditure on specified items of contingencies without further restrictions, the officer incurring expenditure against the lump sum allotment should be held entirely responsible for the regularity of such expenditure, and for any expenditure in excess of such allotment until the excess is sanctioned by competent authority. " ( 12. ) ON perusal of huge number of contract contingent expenditure bills and the receipts of suppliers, it is manifestly clear that in order to circumvent and frustrate the provisions made by the rules, the accused had splitted the bills under the value of Rs. 1,000/ -. This conduct of accused Hajarilal clearly smacks of his dishonest intention. There is prima facie material to show that he had spent the Government money entrusted to him fraudulently and in violation of the direction of law prescribing the mode of expenditure and caused damage to the Government Exchequer. Thus, prima facie the ingredients constituting the charge for the offences punishable under sections 409 and 418 of IPC are clearly made out against the accused Hajarilal and there being prima facie evidence about the connivance and conspiracy against the other accused persons, the charge under Section 418 read with Section 120-B of IPC is also made out against them. In State of Bihar Vs. In State of Bihar Vs. Ramesh Singh ( AIR 1977 SC 2018 ) the Apex court laid down that:- "at the beginning and initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. The judge is not obliged, at that stage of the trial to consider in any detail and weight in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or Section 228. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take place to proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. " ( 13. ) IN Union of India Vs. Prafulla Kumar Samal ( AIR 1979 SC 366 ), the apex Court reiterated that the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. Where the materials placed before the Court disclose grave suspicion against the accused, which has not been properly explained, the Court will be fully justified in framing the charge and proceeding with the trail. It has further been observed that it does not mean that the judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. ( 14. It has further been observed that it does not mean that the judge should make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. ( 14. ) THE facts and circumstances emanating from the material on record, when examined in the light of principles of law enunciated by the Apex court, make it abundantly clear that there is prima facie material to make out the charge for the offence under Sections 409 and 418 of IPC against the accused hajarilal. The reasoning advanced by the Sessions Judge for discharging the accused that no objection was taken by the Treasury Officer or the Accountant general, is not legally sound. Merely on the conduct of accused being not objected by the aforesaid authority, it cannot be held that no offence was committed, if from the facts on record the charge for the offence is otherwise found constituted. It is also pertinent to note that merely on the ground of delay in the investigation and the trial, the charge for a serious offence otherwise made out, cannot be quashed. ( 15. ) SINCE, the charge for the offence under Section 409 and 418 of IPC against the respondent Hajarilal Bhatt and charges under Section 418 read with section 120-B and 109 of IPC prima- facie made out against the other respondents, have to be tried together, the period of limitation in relation to all the aforesaid offences shall be determined with reference to the offence under section 409 of IPC which is punishable with more severe punishment i. e. with the imprisonment for life. Since no limitation is provided under the law for taking cognizance of an offence punishable with imprisonment of life, the cognizance for the offences under Section 418,418 read with Section 120-B and 109 of IPC cannot held to be barred in view of the provisions of sub-section (3)of Section 468 of Cr. P. C. ( 16. ) IN view of the above discussion, I am of the opinion that the impugned order passed by the Sessions Judge quashing the charges against the respondents and setting aside the order of framing charge by the Judicial magistrate First Class, Panna, deserves to be set aside and is hereby set aside and the order dated 30-7-1990 passed by the Learned Magistrate in Criminal Case no. 272/88 framing the charges against the respondents is restored. ( 17. ) ACCORDINGLY, the revision is allowed. ( 18. ) OFFICE is directed to send back the record of the Trial Court immediately. Since the case is as old as of the year 1969, the learned Magistrate is expected to make all the endeavours to dispose of the trial as expeditiously as possible. Criminal Revision allowed.