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2011 DIGILAW 1092 (JHR)

Tularam Nayak v. State of Jharkhand

2011-12-13

R.R.PRASAD

body2011
JUDGMENT By Court.-This writ application is directed against the order dated 30.7.2009 passed by the Sub-Divisional Judicial Magistrate, Dhanbad in connection with Baghmara (Madhuvan) P.S. Case No. 99 of 2007 (G.R. No. 1417 of 2007) whereby and whereunder an application filed for discharge under Section 239 of the Code of Criminal Procedure was rejected. 2. The facts giving rise this application are that the informant, Vijay Kumar, an employee of Maheshpur Colliery when went to G.P.F. Office, Dhanbad on 13.4.2007 to know as to how much amount is deposited in the provident fund account, he was surprised to know that the entire provident fund amount to the extent of Rs. 3,46,000/- belonging to him and also a sum of Rs. 5,57,000/- belonging to his colleague Sasank Prasad had been withdrawn by someone by showing both of them as retired. Therefore, he submitted a written report to the local police suspecting involvement of so many accused persons including the employees/officers of the C.M.P.F. Office, Bank Officials etc. On the basis of said written report, a case was registered as Baghmara (Madhuban) P.S. Case No. 99 of 2007 under Sections 409, 420, 120B of the Indian Penal Code. 3. During investigation it was detected that in similar fashion provident fund of other employees of the B.C.C.L had already been siphoned off by the accused persons. 4. In course of investigation, it transpired that some of the accused persons namely, Gangadhar Rawani, Tara Pado Mandal, Bansilal Sahu, a clerk in the provident fund section of Maheshpur Colliery and Sanjay Kumar Singh by hatching conspiracy got the applications relating to withdrawal of the amount from the G.P.F. account of Suresh Singh, the informant, Shashank Kumar, Vijay Kumar and Jodhan Mahto processed by putting forged signatures of those persons and then got it forwarded to the office of the Regional Commissioner, Coal Mines Provident Fund under forged signature of the official of the Maheshpur Colliery of Bharat Coking Coal Limited. Thereupon, Gangadhar Rawani by putting photographs over the identity card of Suresh Singh and Shashank Kumar put his signature as Suresh Singh and Shashank Kumar and got the accounts opened in the bank in the name of Suresh Singh and Shashank Kumar. Similarly, Tara Pado Mandal and Sanjay Singh by putting their photographs and signatures on the relevant documents got the accounts opened in the bank in the name of Vijay Kumar and Jodhan Mahto. Similarly, Tara Pado Mandal and Sanjay Singh by putting their photographs and signatures on the relevant documents got the accounts opened in the bank in the name of Vijay Kumar and Jodhan Mahto. Subsequently, they withdrew the amount when it was deposited in those accounts after it were sanctioned by the petitioner, being Regional Commissioner, Coal Mines Provident Fund. The modus operandi adopted by the aforesaid accused persons for drawing the money from the provident fund accounts of those persons named above fraudulently on the basis of forged documents could be detected by the Investigating Officer when identity card, accounts opening forms and the applications relating to withdrawal of the amounts were seized. During investigation the aforesaid persons made confessions before the Investigation Officer that the applications which had been forwarded by the officials of the Bharat Coking Coal Limited to the Regional Commissioner, Coal Mines Provident Fund were all forged. 5. Thereupon, charge-sheet was submitted against those four persons as well as against some of the clerks of the Coal Mines Provident Fund Office but subsequently charge-sheet was also submitted against the petitioner, upon which cognizance of the offences was taken under Sections 420, 409, 467, 468, 471 and 120B of the Indian Penal Code against all the accused persons. Thereafter at the stage of framing charge, an application was filed on behalf of the petitioner under Section 239 of the Code of Criminal Procedure for discharge of the petitioner on the ground that there has been absolutely no material showing complicity of the petitioner in the alleged offence. However, that prayer was rejected by the learned Magistrate, vide its order dated 30.7.2009 holding therein that there has been sufficient material for framing charge against the petitioner and when the said order was challenged before the learned Sessions Judge, learned Sessions Judge affirmed the order of the learned Magistrate and thereby the revision application was dismissed. 6. Being aggrieved with that, this application has been filed. 7. 6. Being aggrieved with that, this application has been filed. 7. Learned counsel appearing for the petitioner submits that from the materials collected in course of investigation, it came to light that Gangadhar Rawani, Tara Pado Mandal, Banshidhar Sah and Suresh Singh were instrumental in forging the documents relating to withdrawal of the amount from the provident fund account of Shashank Singh, Vijay Kumar and Jodhan Mahto and then got it forwarded from the office of the Bharat Coking Coal Limited to the office of the Regional Commissioner, Coal Mines Provident Fund and the petitioner acting bona fidely on those applications sanctioned the amount and sent the same to the concerned Banks from where those accused persons by opening the forged accounts in the name of Suresh Singh and Shashank Singh withdrew it and got it misappropriated, still the charge-sheet has been submitted against the petitioner, though there has been absolutely no material to show that the petitioner was ever party to the conspiracy, presumably for the reason that the petitioner being Regional Commissioner, Coal Mines Provident Fund had sanctioned the amount but that act never connects this petitioner with the accusation as the said act was done bona fidely which gets established from the fact that as soon as the petitioner came to know that by playing mischief some of the accused persons did withdraw the amount from the G.P.F. account of the colliery workers, the petitioner lodged the case which was registered as Baghmara (Madhuvari) P.S. Case No. 99 of 2007 on 10.5.2007 before this case was lodged by the informant and, therefore, the petitioner can be said to have acted in good faith in sanctioning the amount on the applications which are said to be forged and thereby he cannot be prosecuted in view of the provision as contained in Section 11A of the Coal Mines Provident Fund and Miscellaneous Provident Fund Act, 1948 stipulating therein that no suit or other legal proceeding shall lie against any person in respect of anything which has been done in good faith or intended to be done under this Act or under any scheme framed thereunder and, therefore, under this situation, the court below should have discharged the petitioner from the case as there has been absolutely no material showing complicity of the petitioner if the alleged offence but the court below refused to discharge the petitioner. Thus, in the circumstances stated above, the court below has certainly committed illegality and hence, the orders passed by the learned Magistrate and also by the revisional court are fit to be set aside. 8. Having heard counsel for the parties, it does appear that the materials collected during investigation discloses that it were Gangadhar Rawani, Tara Pado Mandal, Banshidhar Sah and some other persons, who in conspiracy with each other forged the applications/identity card for withdrawing the amount from the G.P.F. account of Suresh Singh, Shashank Kumar, Vijay Kumar Singh and Jodhan Mahto by pasting photographs of Gangadhar Rawani, Tara Pado Mandai and Sanjay Singh and then they by putting forged signatures got the applications forwarded from the office of the Bharat Coking Coal Limited to the office of Regional Commissioner, Coal Mines Provident Fund and they (Gangadhar Rawani, Tara Pado Mandal and Sanjay Singh) also opened account in the names of the persons from whose account they withdrew the money by forging their signatures when the amount on being sanctioned by the petitioner was transferred to the Bank accounts of those persons. Perhaps for the reason that the amount was sanctioned, this petitioner was made accused, though nothing is there in the entire investigation showing any act of the petitioner which can be said to have been committed in furtherance of the conspiracy hatched by the accused persons. Nothing could be pointed out on behalf of the State in this regard. 9. On perusal of the case diary, absolutely nothing seems to be there showing any act of the petitioner which can be said to be an act in furtherance of commission of offence. In absence of that, the act of sanctioning the amount even on the forged applications can be said to have been done in good faith which gets established from the fact that the petitioner as soon as came to know about the scandal relating to the forged withdrawal of the amount from the provident fund of colliery workers by some mischievous persons, information was given to the concerned police station before the instant case was lodged. 10. Under the circumstances, I do not find any material whatsoever showing complicity of the petitioner in the alleged offence and, therefore, it would be abuse of the process of law if the petitioner is allowed to be prosecuted. 11. 10. Under the circumstances, I do not find any material whatsoever showing complicity of the petitioner in the alleged offence and, therefore, it would be abuse of the process of law if the petitioner is allowed to be prosecuted. 11. Under the circumstances, the order dated 30.7.2009 passed by the Sub-Divisional Judicial Magistrate, Dhanbad in Baghmara (Madhuban) P.S. Case No. 99 of 2007 (G.R. No. 1417 of 2007) is hereby set aside. Consequently, the petitioner is discharged from the case. 12. In the result, this application is allowed.