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Madhya Pradesh High Court · body

2008 DIGILAW 320 (MP)

Prahladsingh v. State of M. P.

2008-02-27

S.R.WAGHMARE

body2008
ORDER 1. This revision filed under section 397 of the CrPC impugns order dated 15.10.2003 passed by the 7th Additional Sessions Judge, Indore in Criminal Appeal No.301l07 upholding the judgment of the trial Court and convicting the accused for the offence under section' 409 of the IPC and sentencing him to rigorous imprisonment for one year with fine of Rs.1,500/-, in case of default, the accused was to undergo an additional rigorous imprisonment for two months. 2. The brief facts of the case as alleged by the prosecution are that the accused Prahlad was a Sarpanch in Gram Panchayat, Chittoda and working in his official capacity as a public official was awarded certain funds for completion or execution of certain works in the village like well excavation at Ralamandal and Chittoda and for repairing the well and the school building at village Gunawat. The Block Development Officer, Sanver was sent proposals of the expenses involved and the said sums of money were allotted vide Ex.P-1, P-2 and P-3 works contract executed and the Block Development Officer, Sanver handed over the money to the accused. One of the main conditions of the agreement was that in case of any violation of the conditions like not completing the work as alleged would incur the penalty of recovery of the sum as per its revenue dues and recovery made by the issuance of RRC and the other important fact was that work was to be executed within the limited period specified. More importantly, the contract also stated that the sum of money was to be used only for the purpose of the works allotted and not for anything else, otherwise, the official would be responsible for misappropriation. Unfortunately, the accused could not complete the contract either of the excavation or of the repairing and was charged with misappropriation pf Rs.20,742/-. The accused was also served notice for the recovery of the same by the State Government and was also apprised by the BDO to complete the work within time and on failure, return the aforesaid sum of money. Being negligent/indifferent to reply to the notice, he neither completed the work nor returned the amount and FIR was lodged vide Ex.P-20 and the offence under section 409 was registered against the accused. Being negligent/indifferent to reply to the notice, he neither completed the work nor returned the amount and FIR was lodged vide Ex.P-20 and the offence under section 409 was registered against the accused. Ex.P-1, P-2 and P-3 along with cash book, the register and the other documents pertaining to the said transaction were seized by the police and the sub-engineer was directed to file the report of the said work, which is available as Ex.P-11. After investigation was completed, the charge-sheet was filed before the Court. The accused abjured his guilt. His statements were recorded under section 313 of the CrPC wherein he admitted that he had received the various amounts as paid to him from time to time by the Block Development Officer, Sanver in his capacity as a Sarpanch of village Panchayat, Chittoda. However, he stated that he was falsely implicated in the matter and examined one Kanaiyalal DW1 and Shivgir DW2. The trial Court on considering the evidence convicted the accused as herein above stated and the appellate Court upheld the same. Hence, the present revision. 3. The main submission of learned counsel for the petitioner is that as required to proceed against the public officer, the respondent had failed to seek permission under section 197 of the CrPC (which requires that sanction of the State Government is required if he is to be proceeded, against) for any offence alleged to have been committed by him, while acting or purporting to act in the discharge of his official duties and the second question raised by him was that since the dispute involved was of a civil nature, it was not necessary to convert the civil dispute into a criminal case since he was not involved in any criminal offence as such. 4. Learned counsel for the petitioner urged that since the valuation report Ex.P-14 was doubtful, the loss had not been computed by the respondent; moreover, there was no dishonest intention on the part of the accused to misappropriate the amount as alleged and hence both the Courts below had failed to take into consideration that there was no mensrea regarding the funds allotted. Funds had been properly utilized for the works allotted vide Ex.P-1, P-2 and P-3 and the receipts were duly filed as Ex.P6 and P-7 collectively. Funds had been properly utilized for the works allotted vide Ex.P-1, P-2 and P-3 and the receipts were duly filed as Ex.P6 and P-7 collectively. Moreover, learned counsel for the petitioner stated that PW9 Suraj Rokde, the Additional Collector, in his defence stated that the cash book and audit account were properly maintained and have been duly signed by the Panchayat Inspector, whereas PW2 Tarachand has stated that the entry dated 30.3.1980 in the balance book indicated that the cash, wheat and reminder of the amount of Rs.10,83156 were available in the account of the Bank with the Gram Panchayat during his tenure as Panchayat Secretary. Moreover, this witness has also admitted that the length of the excavation had to be extended due to the obstruction of the huge boulders and required more funds at the time of the excavation. Moreover, the rising cost of the material also was likely to create extra burden which was not taken into account. 5. Learned counsel for the petitioner stated that the petitioner had diligently carried out his part of the contract but had faced several difficulties and the valuation report Ex.P-14 clearly indicated the same that the sum of amount allotted were grossly inadequate to the amount of expenses incurred and hence it could not be held that the petitioner was guilty of misappropriation of the funds. 6. In fact, pointing to the testimony of defence witness DW2 Shivgir, learned counsel stated that in fact the villagers had pooled in a sum of their money to get the work completed for the school building at Chittoda and in this light, the findings of the both the Courts below were contrary to provisions of law and it could not be held that there was misappropriation and DW1 Kanhaiyalal has stated that all the funds were utilized towards the contract. The criminal liability being very strict, both the Courts ought to have considered that non-completion of the work would not give rise to criminal liability, since there was no misappropriation as such for offence under section 409 of the IPC. 7. The criminal liability being very strict, both the Courts ought to have considered that non-completion of the work would not give rise to criminal liability, since there was no misappropriation as such for offence under section 409 of the IPC. 7. Learned counsel for the respondent-State, on the other hand, has argued that the judgment of the trial Court was in accordance with law and needed no interference, since the accused had been charged under section 409 of the IPC which states that when the public officer is entrusted with property or with any dominion over the property and misappropriates the same, he would be punished with imprisonment which may extend to ten years imprisonment with fine, then under the circumstances, the work contract awarded to the petitioner clearly in no uncertain terms stated in clause 13 that in case of non completion of the works or violation of any conditions, the amount paid to the allottee would be recoverable as loss of land revenue and also the same would be adjusted towards other amounts that were payable or recoverable from the allottee. And since the petitioner accused had failed to respond to the notice by the Block Development Officer and failed to even reply to the notices, the respondent State had been constrained to file criminal case, after a proper valuation report was prepared vide Ex.P-14. Learned counsel for the respondent State emphasized that misappropriation under section 409 of the IPC was not necessarily misappropriating the finds allotted. It also had to be considered in juxta-position with the losses caused to the State Government by non-completion of the work and unnecessary expenses involved. The Court below had properly observed that public money could not be allowed to be frittered away in this fashion and the accused had to be made liable for his sheer negligence and the State had incurred a loss due to non-execution of the work; moreover, the petitioner had not refunded the money in accordance with contract, learned counsel prayed for dismissal of the revision. 8. 8. On considering the above submissions and record and the impugned judgment answering the first question regarding the consent having not been obtained from the State Government to prosecute the accused for an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, I find that that much water has flown under the bridge. Placing my reliance on the case of Prakash Singh Badal and another v. State of Punjab and others [ (2007)1 SCC 1 ], judgment of the apex Court whereby the Court relying on the well known case of R.S. Nayak v. A.R. Antulay [(1998)2 SCC 183], had held that the proceedings would not be vitiated on account of non-compliance of section 197 of the CrPC when there are grave charges of corruption and misappropriation involved. A catena of the cases Mohd. Hadi Raja v. State of Bihar and another [ (1998)5 SCC 91 ], and State Prevention and Control of Pullution Board v. Berhampur Municipality and another [ 1992 CrLJ 2909 ], could be cited to establish the same. Thus, under the circumstances, it cannot be held that the proceedings against the accused were vitiated merely on the ground of non-compliance of section 197 of the CrPC since petitioner himself has admitted to having signed the documents of the work contract, receipts of having received the money from the Block Development Officer and the valuation report Ex.P-14 clearly indicate the loss has occasioned to the State. 9. On the part of the petitioner, defence was whether the liability which arises could be termed as a civil liability since there was no actual misappropriation of the funds as alleged by the prosecution and learned counsel placed his reliance on the judgment of Supreme Court Bal Kishan Das v. P.C. Nayar [ AIR 1991 SC 1531 ], whereby the apex Court had held that when there was arbitration agreement between the petitioner and the respondent and that ingredients of section 406 of the IPC had not been made out, the dispute was purely civil in nature and quashed the proceedings initiated by the Chief Judicial Magistrate. Also relying on M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. and others [ AIR 2006 SC 2780 ], learned counsel stated that the apex Court had deprecated the tendency to convert the purely civil dispute into criminal cases. Also relying on M/s. Indian Oil Corporation v. M/s. NEPC India Ltd. and others [ AIR 2006 SC 2780 ], learned counsel stated that the apex Court had deprecated the tendency to convert the purely civil dispute into criminal cases. The apex Court had observed that "there is also an impression that if a person could somewhat be entangled in a criminal prosecution, there is likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged". I find the first case of Bal Kishan Das (supra), is tangentially off the point because the matter pertains to arbitration whereas in the second case of M/s. Indian Oil Corporation (supra), the apex Court has in no uncertain terms stated that entrustment of property as according to section 405 of the IPC requires that voluntary handing over property or goods and such property was dishonestly disposed of in violation of law. The property in respect of which criminal breach of trust can be committed must necessarily be the property of some person other than the accused or the beneficial interest in or ownership of it must be in other person and the offender must hold such property in trust for such other person or for his benefit and the case pertains to hypothecation of goods by way of security to cover up credit facility and the said goods had been disposed of. The observations of the apex Court were on a wide spectrum regarding filing of the criminal cases in business circle while in the instant case, matter pertains to agreements Ex.P-1, P-2 and P-3, which were contractual in nature although between State Government and Sarpanch, a public officer in course of his duty was required to complete certain works allotted to him and the funds were allocated for the completion of the said works. Petitioner had neither completed the work nor refunded the money as required under the contract, then the Block Development Officer had filed a criminal complaint relating to the same vide FIR Ex.P-20. The appellate Court had also properly considered the charge which itself stated that the accused petitioner has been charged under section 409 of the IPC. Petitioner had neither completed the work nor refunded the money as required under the contract, then the Block Development Officer had filed a criminal complaint relating to the same vide FIR Ex.P-20. The appellate Court had also properly considered the charge which itself stated that the accused petitioner has been charged under section 409 of the IPC. Moreover, from the testimony of Tarachand, the agreement has been proved, the receipts Ex.P-5 and P4 have also been acknowledged and have been made and he has also stated that Rs.8,000/- were paid to the accused for completion of work at Ralamandal vide Ex.P-4. For deepening of the well at Ralamandal, Rs.4,000/- had been paid vide Ex.P-5. Receipt had been obtained from the accused. Similarly, from the testimony of Pradip Ghatewale PW7 who was sub-engineer in the Janpad, Sanver has filed the valuation report stating that out of expenses of Rs.7,500/-, only work of Rs.5,500/- had been completed whereas Rs.2,000/- remained outstanding against the petitioner and he had prepared the Ex.P-11 for recovery. PW9 Suraj Rokde who was Block Development Officer has also drawn up the total amount allotted. He stated that for the excavation at Ralamandal regarding the well, Rs.8,000/- had been paid to the petitioner for excavation at Chittoda, Rs.9,500/- had been paid for repairing the well and deepening the same at Ralamandal, Rs.3,000/- had been paid for the excavation at Gunawat, Rs.5,000/- had been paid for repairing of the school building at Gunawat. Rs.20,000/- had been paid on the last date i.e. 30.3.1.979. A total amount of Rs.37 ,900/- had been allocated and the works that were required to be completed were initially time bound and required the entire work to have been completed within one year and the same was not done by the accused. The notices were issued vide Ex.P-16, P-17, P-18 and P-19 despite which the accused had not heeded to the same. 10. Considering the record, I find that the petitioner accused has ignored the notices and failed to even avail of the opportunity to seek extension of time for completing the said contract. Having also admitted to have put his signature on the documents, there is no getting away from the fact that petitioner was guilty of charge under section 409 of the IPC. Having also admitted to have put his signature on the documents, there is no getting away from the fact that petitioner was guilty of charge under section 409 of the IPC. Section 409 of the IPC requires that breach of trust must be by a public servant in the course of his duties or in his capacity as a public servant. The conduct of the accused is of prime importance in such case and does not necessarily involve misappropriation as alleged by the learned counsel for the petitioner. The very fact is that there has been breach of trust regarding funds allocated for a public work entrusted to him, which would be the crucial test. Having admittedly executed the contract as well as receiving the money, it is clear as day light that he had failed to complete the said work within the prescribed time and the State had to incur losses then the conviction of the accused under section 409 of the IPC is a natural consequence. I do not find any infirmity in the judgment of both the Courts below; minimum sentence has been imposed. I concur with the findings and uphold the same. 11. This revision is dismissed as sans merit. The petitioner accused is on bail, his bail and surety bonds are hereby cancelled and he shall surrender himself before the trial Court on or before 17th of March, 2007 to undergo remaining part of the sentence.