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Madhya Pradesh High Court · body

2010 DIGILAW 824 (MP)

Mohanlal Banwari v. State of M. P.

2010-08-13

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2010
ORDER A. K. Shrivastava, J. -- 1. This is an application under section 482 of the Code of Criminal Procedure, 1973. The applicant is seeking quashment of the criminal proceedings filed against him before the learned Special Judge, Bhind as well as order dated 18thAugust, 2008 passed in Special Case No. 01/2008. The respondent/State submitted a charge sheet against the applicant and other co-accused persons for the offence punishable under section 402, 477, 120-B, 430 of IPC and section 13 (1) (d) and 13 (2) of the Prevention of Corruption Act, 1988. 2. The case of the prosecution in brief is that in-between Bhind and Jamshara, work contract was given to the contractor to lay down the earth work and in this work contract, watering and rolling was not included. The entire payment of the earth work was made to the contractor on 28th April, 1994. Later on, the contractor came in the office of the Chief Engineer, Public Works Department, Gwalior on 14th October, 1997 and submitted photocopies of certain documents and stated that the work of watering and rolling was also perforn1ed by him but the payment has not been made for that work to him. The Chief Engineer, Public Works Department, Gwalior vide letter dated 14th October, 1997 addressed to the Executive Engineer, Public Works Department, Bhind Division, Bhind directed to make payment of watering and rolling to the contractor. Accordingly payment was made on different dates. The case of prosecution is that despite no work of watering and rolling was done by the contractor, but, the payment was made to him for that work also and the applicant was also indulged in the activities since he gave test report of watering and rolling of the earth of the site as Laboratory Assistant. 3. On filing of the charge sheet against the accused persons including the present applicant, he has been directed to appear before the learned Special Court, hence in this matter this application under section 482 of the Cr.P.C. has been, filed for quashment of the charge sheet and with a further prayer that the impugned order dated 18th August, 2008 passed by the learned Special Judge be set aside. 4. 4. The contention of Shri Sanjay Gupta, learned counsel for the applicant is that in the entire charge sheet there is no iota of any evidence against the applicant in order to hold that he has committed any of the offences mentioned in the charge sheet. Learned counsel has invited our attention to the test report of the soil conducted by the applicant on 4th March, 1994 which is a part of the charge sheet and has further submitted that the test report to the Assistant Engineer, Public Works Department on the same date, i.e. 11th March 1994. The applicant who at the relevant point of time serving on the post of Laboratory Assistant had submitted the test report to the Assistant Engineer, Public Works Department on the same date i.e. 11th March, 1994. Learned counsel has further submitted that no where it was stated in the test report of the applicant in order to infer that he gave report of watering and rolling of the work in question. On the contrary, the test report contains only yellowish soil mixed with kankar and if that is the position, since there is no test report of the applicant that watering and rolling was made, he cannot be implicated in the present case. 5. It has also been put forth by the learned counsel for the applicant that the test report in respect of earth work was submitted by the applicant in the year 1994 and the entire payment was also made to the contractor in the year 1994. Therefore, if later on, in the year 1995, the contractor approached the Chief Engineer, Public Works Department to make payment for watering and rolling in terms of clause 29 of the work contract and an award was passed by the Chief Engineer, Public Works Department in that regard to make payment for the work of watering and rolling to the contractor, the present applicant has nothing to do with it. Hence, it has been put forth by the learned counsel that as per prosecution's own case, in pursuance of the award passed by the Chief Engineer, Public Works Department, Gwalior on 14th October, 1997, the contractor appeaed in the office of the Chief Engineer and a request was made to make payment, and accordingly, it was directed by the Chief Engineer, Public Works Department, Gwalior to the Executive Engineer, Public Works Department Bhind to make the entire payment. In this context, letter dated 14th October, 1997 issued by the office of the Chief Engineer, Public Works Department, Gwalior addressed to the Executive Engineer, Public Works Department, Bhind Division, Bhind has been filed along with charge sheet. 6. On the other hand Shri P.N. Gupta, learned Public Prosecutor has submitted that looking to the statement of N.M. Mahore, the then Executive Engineer it can be inferred that some conspiracy was made by the present applicant along with other co-accused in making payment for the work of watering and rolling to the contractor which cannot be doubted, and therefore, this application under section 482 of CrPC., be dismissed. 7. Having heard learned counsel for the parties, we are of the view that this application deserves to be allowed. 8. The applicant is serving on the post of Laboratory Assistant in the Laboratory of the Public Works Department. He tested the soil which was collected from the site on 4th March, 1994 and submitted a test report that the soil contains yellowish soil with kankar and nothing more. This test report, he signed on 11th March, 1994 and on going through the same, we find that Assistant Engineer also countersigned this report. This test report is part of the charge sheet, hence, it is clearly like a noon day that no such test report of watering and rolling was ever given by the applicant. Even if on going through the statement of N.M. Mahore, the then Executive Engineer recorded under section 161 of CrPC., placed reliance on by the Public Prosecutor, we find that nothing has been stated by this witness that the applicant ever gave any test report of watering and rolling of the earth work of the site. 9. Even if on going through the statement of N.M. Mahore, the then Executive Engineer recorded under section 161 of CrPC., placed reliance on by the Public Prosecutor, we find that nothing has been stated by this witness that the applicant ever gave any test report of watering and rolling of the earth work of the site. 9. Since there is no test report of the applicant giving a report in respect of watering and rolling, according to us, there is no material against him to prosecute in the present case. 10. Judging from all the angles the entire charge sheet, we do not find any iota of evidence against the present applicant and, therefore, no option is left except to allow this application. 11. Resultantly, this application under section 482 of CrPC is allowed and the charge sheet against the present applicant is hereby quashed. He need not be prosecuted in the present case.