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2007 DIGILAW 835 (JHR)

Baleshwar Paswan v. The State Of Jharkhand

2007-11-02

D.G.R.PATNAIK

body2007
ORDER D.G.R. Patnaik, J. 1. The instant application has been filed by the petitioner, Baleshwar Paswan for quashing the impugned order of cognizance dated 24.10.2002, and the entire criminal proceedings initiated, pursuant to the aforesaid order of cognizance vide G.R. Case No. 1022 of 1996, corresponding to Bokaro (Chas) P.S. Case No. 187 of 1996 for the offences under Sections 406, 409, 467, 468, 471 and 120B of the Indian Penal Code, presently pending in the court of the learned Chief Judicial Magistrate, Bokaro. 2. The impugned order of cognizance and continuation of the proceedings against him has been challenged by the petitioner on the ground that the order was passed without application of judicial mind and continuation of the proceedings against him is an abuse of the process of the court. 3. The case was originally registered at the Chas Police Station on the basis of an F.I.R. lodged by the petitioner himself against the proprietor of one Shaw Cement Agency. It was alleged in the F.I.R. that the proprietor of the Shaw Cement Agency had failed to supply 20 Metric Tonnes of 10 MM TOR-Rods, despite having received a sum of Rs. 2,80,000/-, being the price of the materials already paid to him as back in the year 1995-1996. A copy of the written instructions of the Superintending Engineer, National Highway Circle, Dhanbad and that of the Executive Engineer, National Highway Division No. 2 and that of the Junior Engineer, was attached to the F.I.R. It was explained in the F.I.R. that in the year 1990-1994, the Ministry of Surface and Transport, Government of India, had sanctioned the estimate for widening and strengthening and construction of minor bridges on the National Highway No. 23, Chas-Ramgarh Section and for the execution of the work, cement and Tor Rods of different sizes was to be obtained by the Department. Quotations was invited and the quotation of M/s. Shaw Cement Agency, Bye-pass, Road, Chas was approved by the Superintending Engineer, National Highway Circle, Dhanbad on 20.02.1996 and the supply of the TOR-Rods was to be made by the dealer till 31.03.1996. On submission of the proforma invoice by the aforesaid supplier on 20.02.1996 and 26.02.1996, the Junior Engineer made an entry in the Measurement Book and submitted a verification Report on the basis of verification of the materials in the Godown of the supplier. On submission of the proforma invoice by the aforesaid supplier on 20.02.1996 and 26.02.1996, the Junior Engineer made an entry in the Measurement Book and submitted a verification Report on the basis of verification of the materials in the Godown of the supplier. Counter signature of the petitioner was obtained on the Report. The first Bill dated 20.02.1996 for a sum of Rs. 1,98,260/-, was sanctioned for payment by the Executive Engineer on 29.02.1996 against which the supplier had supplied the Steel Rods. Further sanction for payment of the Bill amount of Rs. 4,76,000/- was also made by the Executive Engineer on 14.03.1996 and the entire amount was paid to the supplier by the Office of the Executive Engineer, through Cheques, but though the payment was received, the supplier had made a part-supply of the Steel Rods and had failed to supply 20 MT of TOR Rods of 110 MM dia-meters, worth Rs. 2,84,000/-. The matter was reported by the Junior Engineer in the month of July, 1996 to the Executive Engineer, National Highway, Junior Division, Dhanbad and the same was conveyed to the Superintending Engineer, National Highway Circle, Dhanbad, who in his turn directed the Executive Engineer to institute a case against the supplier. The Executive Engineer instructed the petitioner to institute the case against the supplier and in compliance with the direction, the petitioner obtained a Report from the Junior Engineer on 18.08.1996 and lodged the F.I.R. at the Chas Police Station on 19.08.1996 against the proprietor of M/s. Shaw Cement Agency. 4. The case was investigated by the Police, who eventually submitted chargesheet on 25.02.1997 against the proprietor and representative of M/s. Shaw Cement Agency, namely, Pradeep Shaw and Manoj Shaw, though the investigation against the other co-accused persons had continued. A supplementary chargesheet was filed on 31.03.2001 by the Police against three more persons, including the present petitioner, though he was the informant of the case and on the basis of the chargesheet, the learned Chief Judicial Magistrate, Bokaro proceeded to take cognizance for the offences under Sections 406, 409, 468, 471 and 120B of the Indian Penal Code against the petitioners and the other co-accused persons. 5. Mr. 5. Mr. Nawal Kishore Prasad, learned Counsel appearing for the petitioner has challenged the impugned order of cognizance, primarily on the ground that the same was passed by the learned Magistrate, without application of judicial mind and without going through the Police Report in proper perspective. Learned Counsel explains that the petitioner was the informant, who had lodged the First Information Report against the supplier on the directions of the Executive Engineer, National Highway Division No. 2, Dhanbad and though the petitioner was the Assistant Engineer in the Department, yet he had no role to play either in inviting the Tenders for the supply of Cement and Steel Rods or in the process of scrutiny of Tenders and decision taken for awarding the work to any particular supplier, nor was he responsible either to receive the materials from the supplier or to store and utilize the same in the execution of the Road Construction Work and this fact has been amply demonstrated in course of the entire investigation into the case by the Police. Learned Counsel explains further that the investigation made by the Investigating officer and supervised by the then Superintendent of Police, purports to have revealed that the then Executive Engineer, Superintending Engineer and the Junior Engineer and the supplier, in conspiracy with each other had defalcated the Government money and such a conspiracy was evident from the procedure adopted by the aforesaid officials in awarding the contract to the supplier against full advance payment even without supply of the materials being made by the supplier. However, in absence of any involvement on the part of the petitioner in the process of awarding the contract to the supplier, there was nothing to connect the petitioner in the alleged offences. Learned Counsel explains further that the only circumstance, sought to be projected against the petitioner is that the petitioner had failed to produce the Measurement Book and other concerned Registers in response to the Demand made by the Investigating Officer and upon such failure, the Senior Police Officer, namely, the Superintendent of Police, who had supervised the investigation, had presumed that the petitioner was also involved in the alleged conspiracy. Learned Counsel adds that in absence of any specific and cogent evidence to suggest even remotely about the involvement of the petitioner in the alleged offences, the continuation of the criminal proceedings against the petitioner is an abuse of the process of law. Learned Counsel adds further that in the same case, the petitioner was called upon by the Additional Public Prosecutor vide his letter dated 28.08.1996 to give evidence on behalf of the prosecution and to appear before the court on 12.09.2003. Referring to a copy of the aforesaid letter (Annexure-5), learned Counsel argues that on the one hand, chargesheet was submitted against the petitioner as an accused and cognizance of the offences was taken by the court below against the petitioner, yet in the same case, the petitioner was called upon to adduce evidence as a witness and this is sufficient indication to suggest that the petitioner was in fact a witness to the prosecutions case and could not be arrayed as an accused. Learned Counsel submits further that on similar directions of the Superior authorities the petitioner had lodged another F.I.R. on the same date i.e. on 28.08.1996 at the Chas Police Station, which was registered as Chas Police Station Case No. 186 of 1996 and the investigation was supervised by the Senior Police Officials and chargesheet was submitted against the accused persons of that case, and although the contents of the First Information Report in respect of the other case was similar and identical in nature as that of the present case, the petitioners involvement in the offence was not found by the Police in that case. 6. It may be mentioned here that when this case was taken up for hearing at the initial stage, this Court had directed the learned Counsel for the State to seek instructions and to file a counter affidavit, stating specifically as to what evidence has been collected against the petitioner during investigation so as to connect the petitioner with the alleged offences of the instant case and the further proceedings against the petitioner in the instant case was stayed. In compliance with the aforesaid direction, a counter affidavit was filed on behalf of the State through the Superintendent of Police, Bokaro on 09.12.2004 and it was sought to be explained therein that the complicity of the petitioner and the other accused persons had transpired during the course of the investigation and, therefore, the petitioner was also cited as an accused in the aforesaid case in the chargesheet by the Investigating officer. It was also sought to be explained that the order to the supplier was for supply of 44 Metric Tonnes of TOR-Rods against which the supplier had supplied only 24 MT, which was received by the Junior Engineer in installments till 25.04.1996. Yet in violation of the directions given by the Superintending Engineer, dated 22.02.1996, payment of price for the entire 44 MT was made to the supplier through Bank drafts, although such payment was supposed to be made only after ensuring that the supply of the entire quantity of materials was received. It was also detected that wrong entries were made in the Measurement Book and the Godown Register and such wrong entries were dishonestly represented by the Junior Engineer to be correct. It was also detected that even otherwise, payment of the price of the Steel Rods, which were supplied, ought to have been made to Pradeep Shaw, who was the proprietor of the firm but the payment was received by the accused, Manoj Shaw. At Para 8 of the counter affidavit, it has been stated that the chargesheet against the petitioner was submitted on 31.03.2001, because in course of investigation, the petitioner did not make himself available for enquiry/interrogation as demanded by the Investigating officer. 7. Learned Counsel for the State argues that from the supervision note recorded by the Superintendent of Police, relating to the Investigation, it has been categorically stated that the petitioner being the Assistant Engineer was aware of the entire dishonest dealings of his superiors in office and yet the petitioner had allowed the excess payments to be made to the supplier without actual supply of the materials and, therefore, the petitioners involvement in the conspiracy is clearly inferred. 8. 8. From the facts and circumstances discussed above, it transpires that the F.I.R. was registered on the basis of the First Information Report, submitted by the petitioner against the supplier for the non-supply of the materials, despite the supplier having received full payment of the price of the materials. Investigation into the case had revealed that on the basis of a false verification report submitted by the Junior Engineer, Krishna Deo Prasad and accepted by the Superintending Engineer, the Superintending Engineer and the Executive Engineer had sanctioned payment of the entire amount to the supplier, though the supplier had not actually supplied the full quantity of the materials indented for. It was also detected that false entries were made in the concerned Measurement Book and the Godown Register to suggest that the materials were received and the Junior Engineer had dishonestly represented the entries to be correct. The Investigating Officer has drawn his conclusions from the aforesaid facts and circumstances that the Officers namely, the Superintending Engineer, Executive Engineer and the Junior Engineer were involved in a conspiracy with the supplier and in furtherance of the conspiracy, substantial amount of Government money was defalcated. 9. From the counter affidavit, submitted by the Superintendent of Police, the adverse inference against the petitioner has been drawn on the basis of the alleged conduct of the petitioner, namely, his failure to respond to the call of the Investigating officer for enquiry/interrogation and the purported fact that the petitioner being the Assistant Engineer employed in the same office, was presumably aware of the dishonest dealings and yet had not prevented the payment of money being made to the supplier in violation of the Rules. Neither the Supervision Note of the Superintendent of Police, nor the materials collected in the case diary, alleges that the petitioner had any role to play either in the process of awarding the contract job to the supplier or in receiving the materials from the supplier or in making the entries in the Measurement Book or the Godown Register. In fact no specific role has been attributed to the petitioner in the alleged conspiracy and yet adverse inference against him has been drawn merely on the basis of the fact that he happens to be the Assistant Engineer and that he had failed to respond to the call of the Investigating officer for interrogation. In fact no specific role has been attributed to the petitioner in the alleged conspiracy and yet adverse inference against him has been drawn merely on the basis of the fact that he happens to be the Assistant Engineer and that he had failed to respond to the call of the Investigating officer for interrogation. Interestingly, the petitioner has claimed that on allegations of similar and identical nature, the petitioner had lodged another First Information Report for the same offences, which was registered at the Police Station vide Chas P.S. Case No. 186 of 1996 but though chargesheet was submitted against the other accused persons, the petitioner was cited as a witness for the prosecution in the aforesaid case. This fact has not been denied or controverted by the State in the counter affidavit submitted through the Superintendent of Police. 10. It is apparent from the above facts and circumstances that chargesheet against the petitioner was submitted in the instant case only on the basis of presumptions without there being any cogent and reliable materials to suggest his involvement in the alleged conspiracy. 11. From the perusal of the impugned order of cognizance, it appears that the learned court below had merely accepted the recommendations contained in the chargesheet for putting the petitioner also alongwith other accused persons on trial for the offences for which cognizance was taken. Learned court below has apparently not perused the case diary and the materials submitted by the Investigating Officer to assess to whether any offence is made out against the present petitioner, which can warrant issuance of process against the petitioner for putting him on trial. In this view of the matter, the order of the learned court below issuing process against the petitioner and directing him to face trial in the aforesaid case is perverse in law and without application of judicial mind. 12. For the reasons discussed above, I find merit in this application. Accordingly, the same is allowed. The entire proceedings against the petitioner pending in the court of the Chief Judicial Magistrate, Bokaro vide G.R. Case No. 1022 of 1996 arising out of Chas P.S. Case No. 187 of 1996 is hereby quashed.