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Madhya Pradesh High Court · body

2009 DIGILAW 855 (MP)

R. C. Sharma v. State of M. P.

2009-07-23

B.M.GUPTA, S.S.DWIVEDI

body2009
ORDER Dwivedi, J. -- 1. Applicant has filed this petition under section 482 of CrPC for quashment of the criminal proceedings filed by State Economic Offence Investigation Bureau, Bhopal against the applicant for the offence punishable under section 420, 477, 120B, 430 of IPC and 13(1)(d) and 13(2) of Prevention of Corruption Act (hereinafter referred to as "the P.C. Act" for brevity) which is registered as special case No.lI08 before the Special Judge, Bhind. 2. Brief facts of the case are that in the year 1993 the applicant at the relevant time was posted as Executive Engineer in the Public Works Department (PWD), Bhind, during that period, a tender was issued for earth work of village Jamsara and tender of co-accused Veer Singh Tomar had been accepted and he had also completed earth work in the year 1994 and payment was also made by the department to him on 2804.1994. Thereafter, it is alleged that the concerning contractor Veer Singh Tomar had filed an application in the office of Chief Engineer (North) PWD, Gwalior that at the time of earth work of village Jamsara road no payment of watering and rolling work has been made to him in spite of his repeated prayer by the Executive Engineer, Bhind. On this application, as per the condition of the agreement, the dispute of work and payment had been considered and decided by Chief Engineer (North) PWD, Gwalior and by letter No.401/Claim/1/95/13177 dated 14.10.1997 Chief Engineer, Gwalior instructed the Executive Engineer, Bhind to make payment to the contractor Veer Singh Tomar for the work of watering and rolling in the concerning road. In compliance of the aforesaid order passed by the Chief Engineel, Gwalior, the Executive Engineer, Bhind had made part payment to the contractor Veer Singh Tomar. This payment had been made by Executive Engineer in the year 1997, at that time, the applicant-accused was not working at Bhind and he was posted as Executive Engineer in Chhatarpur. He had not made aforesaid payment to the contractor Veer Singh Tomar. This payment had been made by Executive Engineer in the year 1997, at that time, the applicant-accused was not working at Bhind and he was posted as Executive Engineer in Chhatarpur. He had not made aforesaid payment to the contractor Veer Singh Tomar. Subsequently, a complaint had been lodged by some unknown persons to the Economic Offence Bureau in the year 2002 for the false payment to the contractor, on which basis, relevant inquiry was conducted by the competent investigating officer and found that this payment was made by the then Executive Engineer A.K. Saxena and K.K. Samaria and the payment was made on the report submitted by Assistant Engineer, R.K. Verma and Sub-Engineer, Pradeep Sharma who had made entry in work book about verification of watering and rolling work done by the contractor Veer Singh Tomar. On investigation, investigating officer also found that at one point of time the present applicant during his posting at Chhatarpur had also made recommendation for the payment to the contractor Veer Singh Tomar for the work of watering and rolling in Jamsara. After preliminary inquiry, case has been registered against ten accused persons including the present applicant R.C. Sharma and after investigation, chargesheet under sections 420, 467, 477 and 120B of IPC and 13(1)(d) and 13(2) of P.C. Act has been filed before the Special Judge, Bhind. Aggrieved by the registration of the aforesaid offence and filing of the charge-sheet, applicant came up before this Court for quashment of proceedings by this petition under section 482 of CrPC. 3. Having heard learned counsel for the applicant as well as Government Advocate for the State and perused the record. 4. It is submitted on behalf of the applicant that admittedly when the applicant was posted as Executive Engineer, Bhind he had called a tender only for earth work of village Jamsara and for that work payment had been made during his tenure. At that time, contractor had not claimed any payment for watering and rolling work on the aforesaid road. Thereafter, he was transferred to Gwalior and thereafter to Chhatarpur as Executive Engineer. Thereafter, contractor made his claim for payment of watering and rolling work for which no claim had been made before the applicant when he was working as Executive Engineer at Bhind. Thereafter, he was transferred to Gwalior and thereafter to Chhatarpur as Executive Engineer. Thereafter, contractor made his claim for payment of watering and rolling work for which no claim had been made before the applicant when he was working as Executive Engineer at Bhind. The investigating officer has also not seized any letter sent by this applicant, on which basis, this can be found proved that at any point of time the present applicant while working as Executive Engineer in Chhatarpur had made recommendation for payment to the contractor Veer Singh Tomar as has been pointed out in the charge-sheet by the investigating officer at page 3 of the charge-sheet and if no such documentary evidence is available on record then only on the basis of oral statement of some witnesses that applicant had also recommended for the payment to the contractor cannot be relied upon and on which basis the applicant cannot be found involved in any conspiracy or cheating for the false payment to the contractor concerned. It is also apparent that contractor raised a dispute with regard to the payment of the work which he had done in Jamsara road. As per the condition of the clause 29 of the Contract, if any dispute arose with regard to the payment of any work done by the contractor then the dispute would be considered by the competent authority, the Superintending Engineer. After consideration of the entire record, the Superintending Engineer by letter dated 14.10.1997 ordered for payment of amount to the concerning contractor Veer Singh Tomar and if that being so, the applicant cannot be held liable for any false payment to the contractor which has been ordered as per clause 29 of the Contract of Arbitration clause as per the direction and order passed by the Chief Engineer. In such circumstances, learned counsel for the applicant stressed upon the fact that on perusal of the entire paper submitted with the charge-sheet, no prima facie case is made out against the applicant for trial under sections 420, 467, 477 and 120B of IPC and 13(1)(d) and 13(2) of the P.C. Act and hence prayed for quashment of criminal proceedings to the extent of present applicant under the inherent powers conferred under section 482 of CrPC to this Court. 5. 5. Learned Government Advocate appearing for the State opposed the petition and submits that on perusal of entire statement submitted with the charge-sheet and the statement given by Dharam Singh Tomar wherein he stated that applicant during posting at Chhatarpur had also recommended for the payment of contractor Veer Singh Tomar. The involvement of the applicant is prima facie proved and no grounds are available for quashment of proceedings initiated against the applicant, hence prayed for dismissal of the petition. 6. On perusal of detailed report submitted with the charge-sheet by the investigating officer only allegation found against the applicant is that applicant R.C. Sharma during posting at Chhatarpur had also recommended for payment to the contractor Veer Singh Tomar about his watering and rolling work at Jamsara road concerned. Learned Government Advocate is not able to point out any such letter written by present applicant RC. Sharma for any recommendation for the payment of contractor that has not been seized by the investigating officer during investigation and if that being so, no written document is available on record on which basis this can be inferred that at any point of time the applicant during posting as Executive Engineer in Chhatarpur had recommended for payment of the contractor Veer Singh for work which he had not done at Jamsara road. 7. Similarly, on perusal of detailed investigation report which is submitted with the charge-sheet it is apparent that this payment has been made by successor of the applicant namely KK Samaria who had made payment as per direction given by Superintending Engineer vide letter dated 14.10.1997 and on verification report, of the work submitted by Assistant Engineer RK. Verma and Sub-Engineer Pradeep Sharma. In these circumstances also, the investigating officer had also come to the conclusion that payment had been made subsequently in the year 2000 by KK Samaria the then Executive Engineer, Bhind and not by the present applicant R.C. Sharma. 8. On perusal of original contract in between the Executive Engineer and the contractor concerned, the most material is Clause 29 of the contract which is read here as under: "Clause 29. Arbitration Clause. 8. On perusal of original contract in between the Executive Engineer and the contractor concerned, the most material is Clause 29 of the contract which is read here as under: "Clause 29. Arbitration Clause. -- Exceptas otherwise provided in this contract all questions dispute relative the meaning of the specification designs drawings and instructions here in before mentioned and as to thing whatsoever in any way arising out of relating to the contract designs drawing specification estimates concerning the work or the execution of failure to executive the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred as Superintending Engineer shall give his written instruction and or decision within a period of 60 days of such request this period can be extended by mutual consent of the parties. Upon receipt of written instruction or decision the parties shall promptly proceed without delay to comply such instructions decision if the Superintending Engineer fails to give his instructions in written within a period of 60 days or mutually agreed time after being requested if the parties are aggrieved against the decisions of the S.P. parties may within 30 days after prefer an appeal to the Chief Engineer who shall afford an opportunity to the parties of being heard and to offer evidence in support of his appeal the Chief Engineer will give his decision within 90 days. If any party is not satisfied with the decision of the Chief Engineer he can refer such disputes for arbitration by an arbitration board to be constituted by the State Government which shall consist of three members of whom one shall be chosen from among the officer belonging to the department not below the rank of S.E. one retired Chief Engineer of any technical department and one serving officer not below the rank of S.E. to another technical department. The following are also the terms of this contract namely: (A) No person other than the aforesaid arbitration board constituted by the Government (to handle cases of all technical department) shall act as arbitration and if for any reason that is not possible the matter shall not be referred to arbitration at all. The following are also the terms of this contract namely: (A) No person other than the aforesaid arbitration board constituted by the Government (to handle cases of all technical department) shall act as arbitration and if for any reason that is not possible the matter shall not be referred to arbitration at all. (B) The State Government may at any time effect any charge in the personal of the board and the new members or members appointed to the arbitration board shall be entitled to proceed with the reference from the state at which it was left by his or their predecessors. (C) The party invoking arbitration shall satisfy the dispute or dispute to be referred to arbitration under this clause together with the amount or amount claimed in respect of each such disputes. (D) Where the party invoking arbitration is the contractor no reference for arbitration shall be maintainable unless the contractor furnishes a security deposit as determined according to the table given below arid the sum so deposited shall on the determination of arbitration proceedings be adjusted against the cost if any awarded by the board against the party and the balance remaining after such adjustment or in the absence of the such cost being awarded the whole of the sum shall be refunded to him within one month from the date of the award. (E) ...... (F) ...... (G) ......" 9. On perusal of aforesaid clause 29 of the contract it is apparent that if any dispute arose in between the contractor and department, it would be resolved by the Superintending Engineer and as stated hereinabove the Superintending Engineer after consideration of entire record by letter dated 14.10.1997 came to the conclusion that contractor Veer Singh Tomar is entitled to get payment for watering and rolling work concerned. In this case also, the applicant is not having any role for making this order for payment of the contractor concerned and on this basis also, the applicant cannot be held liable for any false payment to the contractor Veer Singh Tomar for watering and rolling work if it is not found to be done on spot concerned. 10. In this case also, the applicant is not having any role for making this order for payment of the contractor concerned and on this basis also, the applicant cannot be held liable for any false payment to the contractor Veer Singh Tomar for watering and rolling work if it is not found to be done on spot concerned. 10. Learned Government Advocate drew our attention on the oral statement of Dharam Singh Tomar which is Assistant Grade 3 in the PWD office at Bhind wherein he orally stated that the present applicant had also recommended for payment of the concerning contractor but no such letter alleged to be written by the present applicant has been produced by this witness to the investigating officer and in such circumstances, only on the basis of this oral statement that applicant had also recommended for payment cannot be found base for prosecution against the applicant; as per clause 29 the competent authority came to the conclusion for payment of the amount to the contractor. 11. Same is the statement of S.S. Trivedi, another Assistant Grade 3 in the office of Executive Engineer, PWD, Gwalior that a recommendation note had also been made by the present applicant R.C. Sharma but no such recommendation is found on record which is made by the present applicant and signed by him, also. 12. Most material thing is that payment has been made in the year 2000 when the applicant was not working as Executive Engineer, Bhind. He has nothing to do with regard to the aforesaid payment. He has also not called any tender for watering and rolling working for the concerning road. Therefore, it is bounden duty of the then Executive Engineer K.K. Samaria before whom actual payment had been made to verify personally as to whether any work of watering and rolling had been done by the contractor or not. In such circumstances also, no case is made out for prosecution of the applicant. 13. Thus, in our considered opinion, no prima facie evidence is available against the applicant on which basis the applicant can be prosecuted for the aforesaid offence and can be held guilty for the aforesaid offence. 14. In such circumstances also, no case is made out for prosecution of the applicant. 13. Thus, in our considered opinion, no prima facie evidence is available against the applicant on which basis the applicant can be prosecuted for the aforesaid offence and can be held guilty for the aforesaid offence. 14. For consideration of a petition filed under section 482 of CrPC, the Hon'ble Apex Court laid down certain principles in the leading case reported in State of Haryana v. Bhajanlal [ AIR 1992 SC 604 = 1992 Supp.(1) SCC 335], wherein held here as under: "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised : (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar en grafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacioJ,.1s redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with a ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 15. On consideration of aforesaid principles laid down by the apex Court, at the cost of repetition it is apparent that in the FIR registered against the applicant only allegation is that he has made certain recommendations for payment of money of the work alleged to be done by the contractor Veer Singh Tomar for which no documentary evidence is available on record. Similarly, payment has been made not by the applicant-accused but by his successor K.K. Samaria and he is also having jurisdiction to verify the fact as to whether the alleged work of watering and rolling has been done by the contractor or not and he is also having jurisdiction not to follow the recommendation made by the applicant. The payment has been made by K.K. Samaria and not by the present applicant-accused. At the time of payment, the applicant-accused was working as Executive Engineer in Chhatarpur and he is not having any duty or intention to make any false payment to the contractor. 16. The payment has been made by K.K. Samaria and not by the present applicant-accused. At the time of payment, the applicant-accused was working as Executive Engineer in Chhatarpur and he is not having any duty or intention to make any false payment to the contractor. 16. Thus, in view of aforesaid facts, in our considered opinion, the applicant's case comes within the purview of Clause 3as narrated in the aforesaid judgment of Bhajanlal (supra), wherein if uncontroverted allegation in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the applicant. In such circumstances, continuation of criminal proceeding against the applicant will cause failure bf justice and also abuse of process of law and no purpose will be served by continuation of such proceedings against the applicant. 17. Same principle has also been laid down by the apex Court in; Mahindra and Mahindra Financial Services Limited and another v. Rajiv Dubey [ (2009)1 SCC 706 ], wherein case registered under sections 406 and 420 of IPC against the applicant is found to be baseless and ordered for quashment of criminal proceeding in view of principle laid down in Bhajanlal (supra). 18. In view of aforesaid facts and case law on the point, we are of the considered opinion that continuation of criminal proceedings against the applicant will cause injustice and also amount to abuse of process of law, and no fruitful purpose will be served by continuation of such proceedings against the applicant. 19. Resultantly, petition filed by the applicant under section 482 of CrPC is allowed and criminal proceedings filed only to the extent of the present applicant is hereby quashed.