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Rajasthan High Court · body

2012 DIGILAW 2077 (RAJ)

Dinesh Chandra Sharma v. State of Rajasthan

2012-10-04

SANDEEP MEHTA

body2012
JUDGMENT 1. - Heard learned counsel for the parties. 2. The instant misc. petition has been preferred by the petitioner seeking quashing of F.I.R. No. 266/2007 registered against him at A.C.B., Jaipur for the offences under Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act and Sections 467, 468, 471 and 120B I.P.C. qua him and against the order dated 27.1.2012 granting sanction for prosecuting the petitioner. 3. Succinctly stated the facts necessary for the disposal of the instant misc. petition are that one Giriraj Joshi, Advocate (since deceased) submitted a complaint to the Collector, Chittorgarh regarding certain irregularities being committed in the execution of the construction work carried out under the Integrated Development Programme of Small and Medium Town Scheme (IDSMT Scheme) in Pratapgarh Municipal area. It was alledged that the work order was given on tender amount to the contractor despite the fact that (i) tender amount was 47.11% below the Building Schedule Rate (BSR), (ii) leveling and filling of the construction work was not proper; and (iii) Rs. 4,48,104/- was paid in excess to the contractor and thereby the Municipal Board was put to loss. The complaint thus, filed was registered by the A.C.B., Jaipur as F.I.R. No. 266/2007. The petitioner has been arrayed as an accused in this case as being Executive Officer, Municipal Board, Pratapgarh. 4. When the matter came up for grant of sanction to prosecute the petitioner, the petitioner represented his case to the D.O.P. The contention of the petitioner was that he had no part to play in the work order because the work order was granted by the predecessor in office of the petitioner. The running bills were prepared by the Junior Engineer and approved by the Executive Engineer and thereafter, were presented before the petitioner for sanction as being Executive Officer. It was contended that when the petitioner came to know that the work order has been given at the tender amount instead of lesser rate without negotiations, the petitioner upon being presented with the running bills directed reduction of 47.11% amount from the same. So far as the aspect of levelling and filling work was concerned, the contention of the petitioner before the sanctioning authority was that the said job was of the technical officers and the petitioner being the Executive Officer of the Municipality had no part to play in the technical evaluation. So far as the aspect of levelling and filling work was concerned, the contention of the petitioner before the sanctioning authority was that the said job was of the technical officers and the petitioner being the Executive Officer of the Municipality had no part to play in the technical evaluation. As regards the allegation of excess payment of amount of Rs. 4,48,104/- was concerned, the contention of the petitioner was that the Municipal Board vide resolution dated 19.5.2005 approved the work done by the contractor in excess of the tender and, therefore, the payment of the work done in excess was made to the contractor. It was further submitted that the final bill of the contractor was still pending and, therefore, the allegation that the excess payment has been made to the contractor was baseless. 5. Despite all these facts, the competent authority granted sanction to prosecute the petitioner vide order dated 27.1.2012. Therefore, the petitioner has approached this Court by way of the instant misc. petition seeking quashing of the F.I.R. impugned qua the petitioner and the order dated 27.1.2012 granting sanction. 6. Learned counsel for the petitioner contended that in this case, there is no material on the record to prosecute the petitioner in relation to the allegations which have been set out in the F.I.R. It is submitted that the alleged irregularity in the grant of work order was of the year 2002 whereas the petitioner joined as Executive Officer subsequently. As regards the excess payment of the amount (47.11%), it is submitted that whatever running bills were received, an amount to the tune of 47.11% was deducted on the directions of the petitioner from the same before making the payment of the bills. As regards the allegations regarding levelling and filling are concerned, it is submitted that the job of supervision/assessment of levelling and filling was that of technical officers and the petitioner could not be held responsible for the same. Thus, it was prayed that the instant misc. petition deserves to be accepted and the F.I.R. and all subsequent proceedings qua the petitioner deserved to be quashed. 7. Learned Public Prosecutor vehemently opposed the arguments advanced on behalf of the petitioner and submitted that the sanction to prosecute the petitioner had already been accorded and, therefore, no interference was called for in the impugned F.I.R. and the sanction order. 7. Learned Public Prosecutor vehemently opposed the arguments advanced on behalf of the petitioner and submitted that the sanction to prosecute the petitioner had already been accorded and, therefore, no interference was called for in the impugned F.I.R. and the sanction order. It was submitted that the petitioner would be at liberty to raise his submissions before the Court concerned at the time of framing of charges. He thus submitted that the instant misc. petition was not fit to be accepted. 8. Upon a consideration of the arguments advanced at the bar and after going through the sanction as well as other material available on the record, it is apparent that the sanctioning authority itself in the concluding portion of the sanction order has noticed as below : " vUos"k.k vf/kdkjh }kjk v0la0 266@2007 esa izLrqr vfHkys[k] vkjksih ls izkIr fyf[kr vH;kosnuksa ij iw.kZ lko/kkuh iwoZd fopkj djus ij ;g Li"V gksrk gS fd vkjksih Jh fnus'k pan 'kekZ ij eq[; vkjksi vf/kd Hkqxrku djus dk gS] tcfd Jh fnus'k pan 'kekZ }kjk lM+dksa ds jfuax fcy esa ls Vs.Mj jkf'k 47-11 izfr'kr fcyksa ch,lvkj de djds Hkqxrku fd;s x;s FksA vHkh Hkh Bsdsnkj ds Qkbuy fcy ,oa ,l0Mh0 jkf'k dk Hkqxrku uxj ikfydk izrkix<+ esa cdk;k gSA Jh fnus'k pUn 'kekZ vf/k'kk"kh vf/kdkjh dh tkudkjh esa Fkk fd dk;kZns'k 47-11 izfr'kr fcyksa dk fn;k tkuk pkfg;s Fkk] tcfd dk;kZns'k iwoZ vf/k'kk"kh vf/kdkjh Jh xksfoUn jke HkV~V o Jh 'kadjyky jksgykuk dfu"B vfHk;Urk }kjk tkjh fd;s x;sA Jh xksfoUn jke HkV~V lsokfuo'Rr gks pqds gS o Jh 'kadjyky jksgykuk dks lsok ls i'Fkd fd;k tk pqdk gS] }kjk tk pqdk gS] }kjk rdehuk vuqlkj vkns'k fn;s x;sA blls jkf'k :0 4]48]104@& dh jktdh; gkfu dkfjr gqbZA mfpr ;g jgrk fd tkudkjh esa vkus ij Jh 'kekZ 47-11 izfr'kr de nj ij Hkqxrku djus ds ctk; =qfViw.kZ dk;kZns'k fujLrhdj.k dh dk;Zokgh djrs tks muds }kjk ugha dh xbZA " 9. A bare reading of the conclusion of the sanctioning authority reveals that the sanctioning authority has itself observed that the petitioner reduced the amount of 47.11% from the bills as per the B.S.R. and that the final bill and the security deposit of the contractor was still secure with in the Municipality. A bare reading of the conclusion of the sanctioning authority reveals that the sanctioning authority has itself observed that the petitioner reduced the amount of 47.11% from the bills as per the B.S.R. and that the final bill and the security deposit of the contractor was still secure with in the Municipality. Despite this, the sanctioning authority has accorded sanction to prosecute the petitioner holding that he should have taken steps for scrapping the work order rather than deducting 47.11% of the bill amount. 10. As has been observed above and as is evident from the admitted facts that the petitioner was not even posted as Executive Officer when the work order was given. Therefore, there was no occasion whatsoever for the prosecution of the petitioner in this case as regards the allegation of grant of work order is concerned. In regards to the second allegation regarding excess payment of Rs. 4,48,104/-, the sanctioning authority has held that because of the award of work order beyond the estimate, a loss of Rs. 4,48,104/-, was caused to the Municipality. Simultaneously, the sanctioning authority observed that it would have been better for the petitioner to have cancelled the work order instead of reducing 47.11% from the bills. Suffice it to say that the conclusion appears to be absurd. The work order had already been awarded much before the petitioner joined the office and the work was executed and the petitioner was simply presented with the job of sanctioning the bills. The petitioner admittedly took the best possible action for preventing the loss to the municipality by reducing 47.11% of the bill amount. Therefore, the conclusion of the sanctioning authority that the petitioner deliberately acted in order to cause loss to the municipality, is absolutely without basis and conjectural. The sanctioning authority itself has observed that the final bill and the security deposit of the contractor were still pending. Therefore, there is no question of any loss being accrued to the municipality because the dues, if any, of the municipality can very well be recovered from the final bill and/or the security deposit. 11. The upshot of the above discussion and the conclusion of this Court is that the petitioner's prosecution in this case is absolutely unwarranted and amounts to an abuse of process of Court. 12. Resultantly, the instant misc. 11. The upshot of the above discussion and the conclusion of this Court is that the petitioner's prosecution in this case is absolutely unwarranted and amounts to an abuse of process of Court. 12. Resultantly, the instant misc. petition succeeds and the F.I.R. No. 266/2007 registered at A.C.B., Jaipur against the petitioner and all subsequent proceedings thereupon qua the petitioner are hereby quashed. However, the prosecution other accused shall continue as per law.Stay petition also stands disposed of.Petition allowed. *******