Research › Search › Judgment

Jharkhand High Court · body

2007 DIGILAW 257 (JHR)

Vijay Kumar v. State Of Bihar (Now Jharkhand)

2007-04-05

AMARESHWAR SAHAY

body2007
JUDGMENT Amareshwar Sahay, J. 1. This revision application is directed against the judgment dated 20th July 1995, passed by the Sub-Divisional Judicial Magistrate, Daltonganj in G.R. Case No. 410 of 1994, whereby the learned Sub-Divisional Judicial Magistrate rejected the prayer of the petitioner for discharge for the offence under Sections 409, 420 and 120 of the Indian Penal Code. 2. The facts in short giving rise to this application are that on the report of the Mukhia Ram Pravesh Singh a joint Committee consisting of Pramukh, Panchayat Samiti, Hussainabad. Asstt. Engineer, Vijay Kumar, the petitioner, was constituted to enquire about any irregularity in the construction and payment of construction work of a well under Jawahar Rojgar Yojna. In course of enquiry, it was found actually the depth of the well was found to be 26 ft. only whereas in the measurement book, the Junior Engineer had mentioned the depth to be 30 ft. The Assistant Engineer Vijay Kumar made correction in the measurement book and by cutting and deleting 30 ft. made it as 26 ft. It is said that the petitioner did not accordingly, change the amount for the work, which was mentioned as Rs. 16,161.79 paise. On the said fact, it was alleged that by making overwriting in the measurement book, attempt was made to screen the offence. Accordingly, the FIR was lodged, which was registered under Sections 409, 420 and 120B IPC. 3. After investigation the charge-sheet was submitted and the cognizance was taken for the offence under Sections 409, 420 and 120B of the Indian Penal Code, against the accused persons including this petitioner. 4. An application under Section 239 Cr PC was filed before the trial Court for discharge. The learned trial Court by the impugned order rejected the prayer for discharge of the petitioner. Hence, this revision application. 5. Mr. Kashyap, learned Counsel appearing for the petitioner contended that when after the enquiry it was found that the actual work of well was found to have been done up to 26 ft. deep only and, therefore, this petitioner bonafidely made correction in the measurement book wherein it was wrongly mentioned that the work was done of 30 ft. 5. Mr. Kashyap, learned Counsel appearing for the petitioner contended that when after the enquiry it was found that the actual work of well was found to have been done up to 26 ft. deep only and, therefore, this petitioner bonafidely made correction in the measurement book wherein it was wrongly mentioned that the work was done of 30 ft. It has further contended that pursuant to the correction made by the petitioner in the measurement book the payment was made to the executing agent for construction of well only for the work done up to 26 ft. deep and not for 30 ft. deep as was mentioned in the said measurement book. Therefore, the question of any defalcation or of cheating did not arise. 6. From the impugned order also it appears that the learned trial Court after perusal of the case diary noticed the fact that in fact, the amount of Rs. 13859/- was paid to the executing agent for the work up to 26 ft. deep of construction of a Well and not for 30 ft. 7. In this situation, I find force in the submissions of the learned Counsel for the petitioner. When the actual work of construction of the well was done up to 26 ft. deep, and this petitioner had corrected the same and as per his correction the payment was made for the said work and not of the work, which was wrongly mentioned initially in the measurement book. 8. In this view of the matter, in my view, no sufficient evidence/materials are there to frame charge rather the charge against the petitioner appears to be groundless. Accordingly, this revision application is allowed. The impugned order dated 20th July 1995 is hereby set aside and the petitioner is discharged.