Research › Search › Judgment

Jharkhand High Court · body

2015 DIGILAW 1105 (JHR)

Gurudayal Singh Bhatia v. State of Jharkhand

2015-09-15

H.C.MISHRA

body2015
JUDGMENT : As both these applications arise out of the same case, they are taken together and are being disposed of by this common order. 2. Heard learned counsels for the petitioners, learned counsels for the State as also learned counsel for the O.P. No. 2. 3. The petitioners in both these cases have prayed for quashing the entire criminal proceedings against them, including the FIR, in Bistupur P.S. Case No. 95 of 2008 corresponding to G.R. No. 832 of 2008, which was instituted for the alleged offences under Sections 406, 409, 120-B / 34 of the Indian Penal Code. 4. The petitioner in Cr.M.P. No. 575 of 2008, Gurudayal Singh Bhatia is an allottee of a piece of land within the premises of Jamshedpur Co-operative Stores Limited, Jamshedpur, (herein after referred to as J.C.S.), upon which, a sweet shop namely, New Chhapan Bhog is being run by the said petitioner, whereas the petitioner in Cr.M.P. No. 837 of 2008, Pradeep Kumar Sah was the then Executive Officer of the J.C.S., Jamshedpur, and it is alleged in the FIR that both these petitioners entered into a criminal conspiracy and in collusion and connivance with each other, a fresh agreement dated 5.5.2005 was executed by petitioner Pradeep Kumar Sah, in favour of petitioner Gurudayal Singh Bhatia, causing wrongful loss to J.C.S., Jamshedpur, and corresponding wrongful gain to the accused persons. 5. The FIR shows that initially one Late M.S. Bhatia was permitted to occupy a piece of land measuring an area of 150 sq. ft. as a licensee within the campus of J.C.S., Jamshedpur, for running a sweetmeat Shop by putting a temporary construction thereon, on the basis of an agreement dated 8.4.1998 and after expiration of said agreement, the second agreement dated 21.1.2002 was executed for another five years, enhancing the area to 400 sq. feet, with the approval of the Deputy Commissioner-cum-Administrator of the J.C.S. Limited, Jamshedpur. It was subsequently, found that petitioner Gurudayal Singh Bhatia was in illegal occupation of 517 sq. ft. of excess land of J.C.S., Jamshedpur, and accordingly, the Deputy Commissioner-cum-Administrator by his order dated 10.1.2005 directed him to deposit the commission at the rate of Rs. 15/-per sq. ft. for the excess area of 517 sq. ft., amounting to Rs. It was subsequently, found that petitioner Gurudayal Singh Bhatia was in illegal occupation of 517 sq. ft. of excess land of J.C.S., Jamshedpur, and accordingly, the Deputy Commissioner-cum-Administrator by his order dated 10.1.2005 directed him to deposit the commission at the rate of Rs. 15/-per sq. ft. for the excess area of 517 sq. ft., amounting to Rs. 2,79,180/-and also to deposit the amount of yearly enhancement of the license fee at the rate of 3% per annum on the actual commission for 400 sq. ft. It was also directed that after clearing all the payments, a fresh agreement at the rate of Rs. 15 per sq. ft., was to be entered into between the parties within seven days after removal of the excess area of 517 sq. ft., occupied by the petitioner Gurudayal Singh Bhatia. It is also alleged in the FIR that in order to frustrate the order of the Deputy Commissioner-cum-Administrator, the petitioner Gurudayal Singh Bhatia, in collusion with the then Executive Officer of J.C.S., Jamshedpur, namely, Pradeep Kumar Sah, entered into a fresh agreement dated 5.5.2002, in order to put the J.C.S., Jamshedpur to unlawful loss. The then executive officer of the J.C.S., Jamshedpur was required to get the agreement approved by the Deputy Commissioner-cum-Administrator before entering into the agreement with the petitioner Gurudayal Singh Bhatia, but it is alleged that without complying with this requirement, the then Executive Officer, Pradeep Kumar Sah, under a conspiracy to misappropriate the funds and obtain illegal gains out of it, executed the fresh agreement dated 5.5.2005. With these allegations, the FIR was lodged, on the basis of which, Bistupur P.S. Case No. 95 of 2008 corresponding to G.R. No. 832 of 2008 was instituted for the offence under Sections 406, 409, 120-B / 34 of the Indian Penal Code, and investigation was taken up. It is an admitted fact that after investigation, the charge sheet has been submitted by the police and cognizance for the offence under Sections 406, 409, 120-B / 34 of the Indian Penal Code has also been taken against the petitioners. However, in terms of orders dated 9.5.2008 and 27.6.2011, passed in both these cases, the proceeding in the Court below was stayed by this Court, while issuing the notice to the O.P. No. 2, who has appeared and filed his counter affidavit. 6. However, in terms of orders dated 9.5.2008 and 27.6.2011, passed in both these cases, the proceeding in the Court below was stayed by this Court, while issuing the notice to the O.P. No. 2, who has appeared and filed his counter affidavit. 6. Learned counsels for the petitioners have submitted that the FIR has been lodged against the petitioners by the successor in office of the petitioner Pradeep Kumar Sah with absolutely false and malicious allegations. It is submitted by learned counsel for the petitioners that upon being found that the petitioner Gurudayal Singh Bhatia was occupying 917 sq. ft. of the land at the place of 400 sq. ft., a show cause notice was issued to the petitioner Gurudayal Singh Bhatia, which was replied and the matter was considered by the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur, and a detailed order was passed on 10.1.2005, which has been brought on record in both these cases, which shows that the Deputy Commissioner-cum-Administrator of the J.C.S., Jamshedpur had found that though the earlier agreement dated 21.1.2002 was executed for the period of five years, but the license fee was required to be renewed every year at the rate of 3% of annual commission. A report of the Circle Officer, Jamshedpur was also obtained, who had fixed the monthly commission of Rs. 6,000/-per month for 400 sq. ft. of land, which was actually allotted to the petitioner Gurudayal Singh Bhatia. The said report of the Circle Officer, Jamshedpur, was accepted by the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur and accordingly, the commission for the excess portion of 517 sq. ft. was also calculated at that rate and the petitioner Gurudayal Singh Bhatia was directed to make the payment of Rs. 2,79,180/-within a period of one week and he was also directed to make the payment of yearly enhancement at the rate of 3% for 400 sq. ft. of land, and it was directed that after the aforesaid payments, a fresh agreement was to be executed with the petitioner Gurudayal Singh Bhatia at the new rate of Rs. 15/-per sq. ft. within a period of seven days after the petitioner vacated the excess land measuring the area of 517 sq. ft. ft. of land, and it was directed that after the aforesaid payments, a fresh agreement was to be executed with the petitioner Gurudayal Singh Bhatia at the new rate of Rs. 15/-per sq. ft. within a period of seven days after the petitioner vacated the excess land measuring the area of 517 sq. ft. It was further directed in the said order that if those payments were not made within the prescribed period, the agreement with the petitioner Gurudayal Singh Bhatia would be cancelled and the allocation of the land shall be made to another interested person. 7. It is submitted by the learned counsel for the petitioner Gurudayal Singh Bhatia that pursuant to the order passed by the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur, the required payments were made by the petitioner and a fresh agreement was entered into between the parties on 5th of May, 2005. In support of his contention, the petitioner in Cr.M.P. No. 575 of 2008 has brought on record, as Annexure-3, a letter dated 12.2.2008 written by him to the Executive Officer, J.C.S., Jamshedpur, informing the Executive Officer, J.C.S., Jamshedpur that in compliance of the order dated 10.1.2005, passed by the Deputy Commissioner-cum-Administrator, he had deposited Rs. 2,79,180/-by cheque No. 0803959 dated 16.1.2015 and he had also deposited another cheque No. 0803961 dated 14.1.2005 for Rs. 5,200/-, which related to the arrears of the yearly enhancement of the license fee, and it was requested to issue the receipts for the same and thereafter the subsequent agreement dated 5.5.2005 was entered into between the parties. This petitioner has also brought on record the earlier agreement dated 21st January, 2002, as Annexure-2 and the subsequent agreement dated 5th May, 2005 as Annexure-4. It is thus, submitted that since in response to the order dated 10.1.2005 passed by the Deputy Commissioner-cum-Administrator, the entire payment was made by the petitioner Gurudayal Singh Bhatia, no criminal offence can be said to be made out against him. 8. Learned counsel for the petitioner Pradeep Kumar Sah, in Cr.M.P. No. 837 of 2008, has submitted that no offence can be said to be made out against the petitioner Pradeep Kumar Sah, as he had only obeyed the order dated 10.1.2015, passed by the Deputy Commissioner-Administrator, J.C.S., Jamshedpur. 8. Learned counsel for the petitioner Pradeep Kumar Sah, in Cr.M.P. No. 837 of 2008, has submitted that no offence can be said to be made out against the petitioner Pradeep Kumar Sah, as he had only obeyed the order dated 10.1.2015, passed by the Deputy Commissioner-Administrator, J.C.S., Jamshedpur. It is also submitted by learned counsel for this petitioner that a departmental proceeding was also initiated against this petitioner, in which he was exonerated, and the finding of the Enquiry Officer dated 24.8.2010 in the disciplinary proceeding has been brought on record as Annexure-5, to the supplementary affidavit. Learned counsel for the petitioner has submitted that since the agreement by this petitioner was entered into with Gurudayal Singh Bhatia in compliance of the order of Deputy Commissioner-cum-Administrator, no offence can be said to be made out against him and the petitioner was also exonerated in the departmental enquiry. 9. In this connection, learned counsel for petitioner Pradeep Kumar Sah has placed reliance upon a decision of the Apex Court in G.L. Didwania and Anr. Vs. Income Tax Officer and Anr., reported in (1995) Supp (2) SCC 724, wherein where the Assessing authority of the Income Tax Department had initiated prosecution against the assessee with the allegation that he had made false statement with respect of his income and that fining of the Assessing authority has been set aside by the Income Tax Appellate Tribunal and in appeal, the Hon’ble Supreme Court has held that no criminal proceeding can be sustained against the petitioner on the basis of the finding of the Assessing authority. Placing reliance on this decision, learned counsel has submitted that since the petitioner Pradeep Kumar Sah has already been exonerated in the departmental proceeding, no offence can be said to be made out against him and accordingly, the entire criminal proceeding is fit to be quashed. 10. Placing reliance on this decision, learned counsel has submitted that since the petitioner Pradeep Kumar Sah has already been exonerated in the departmental proceeding, no offence can be said to be made out against him and accordingly, the entire criminal proceeding is fit to be quashed. 10. Learned counsel for the State as also learned counsel for the O.P. No. 2 on the other hand have opposed the prayer and have submitted that on the basis of the allegations against the petitioners, that by entering into the criminal conspiracy and in collusion and connivance with each other, a fresh agreement dated 5.5.2005 was executed by the petitioner Pradeep Kumar Sah, the then Executive Officer of the J.C.S., Jamshedpur, in favour of petitioner Gurudayal Singh Bhatia, the offence is clearly made out, and no case is made out for quashing the criminal proceeding against the petitioners at this stage. 11. As regards the petitioner Gurudayal Singh Bhatia, learned counsel for the O.P. No. 2, has pointed out that the letter dated 12.2.2008 as contained in Annexure-3, was written with false statements by this petitioner, showing that the payment of enhanced amount of Rs. 5,200/-was made by him through cheque No. 0803961. It is submitted by learned counsel for the O.P. No. 2 that this amount was never deposited in the A/C of J.C.S., Jamshedpur, and this is the false statement in the letter, which is also evident from the fact that the payment of Rs. 2,79,180/-was made by the Cheque No. 0803959, which was issued on subsequent date, i.e., on 16.1.2005, whereas the payment of Rs. 5,200/-has been shown to be made by a subsequent cheque No. 0803961 which was issued on a previous date, i.e., on 14.1.2015, which normally is not done. Learned counsel for the O.P. No. 2 has also brought on record by way of counter affidavit, one letter dated 2.5.2005, issued by the petitioner Gurudayal Singh Bhatia to the Executive Officer, J.C.S., Jamshedpur, in which there was a request for executing a fresh agreement in his favour. In the said letter there is only mention about the payment of Rs. 2,79,180/-by the petitioner Gurudayal Singh Bhatia and there is no mention about the payment of Rs. 5,200/-as claimed in his earlier letter dated 12.2.2008. It is however an admitted fact that this amount has not yet been credited to the account of J.C.S., Jamshedpur. In the said letter there is only mention about the payment of Rs. 2,79,180/-by the petitioner Gurudayal Singh Bhatia and there is no mention about the payment of Rs. 5,200/-as claimed in his earlier letter dated 12.2.2008. It is however an admitted fact that this amount has not yet been credited to the account of J.C.S., Jamshedpur. It is the specific case of the O.P. No. 2 that the payment was not made within the period of seven days and no agreement was further executed within the said period, as directed by order dated 10.1.2005 passed by the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur. The petitioner Gurudayal Singh Bhatia entered into a criminal conspiracy with the then Executive Officer, J.C.S., Jamshedpur and fresh agreement was executed his in favour, putting J.C.S., Jamshedpur to unlawful loss and corresponding wrongful gain to the accused persons. It is further submitted by learned counsel for the O.P. No. 2, and it is not controverted by learned counsel for the petitioner that the period of the subsequent agreement dated 5th of May, 2005 has also expired in the year 2010 itself, but the petitioner Gurudayal Singh Bhatia is still continuing in the possession of the land. It is only submitted by learned counsel for the petitioner that the petitioner is making regular payment to J.C.S., Jamshedpur in terms of the order of the Deputy Commissioner-cum-Administrator, but it is an admitted fact that no further agreement was executed in favour of the petitioner Gurudayal Singh Bhatia. 12. As regards the petitioner Pradeep Kumar Sah, it is submitted by learned counsel for the O.P. No. 2 that exoneration of this petitioner in the departmental proceeding was based on the false explanations made by him, as is evident from the record itself, and in that view of the matter, it cannot be said that no offence can be said to be made out against the petitioner, only because he has been exonerated in the departmental proceeding. In this connection learned counsel has pointed out from the Enquiry Report dated 24.8.2010 as contained in Annexure-5, to the supplementary affidavit in Cr.M.P. No. 837 of 2008, which shows that the petitioner Pradeep Kumar Sah had given an explanation before the Enquiry Officer that he had executed the agreement in favour of the petitioner Gurudayal Singh Bhatia in compliance of the order dated 10.1.2005, passed by the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur, within the time allowed in the order and after the entire payment was made by Gurudayal Singh Bhatia. The petitioner had also given the explanation, that there was no occasion for obtaining any fresh approval from the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur for entering into the agreement. Both these explanations of the petitioner Pradeep Kumar Sah were against the record, inasmuch as the subsequent agreement was not executed within the time prescribed, rather it was executed after more than four months. The explanation that no approval of the Administrator was required before entering into an agreement between the parties is also against the record. In this connection the agreement dated 21.1.2002, which is on record, clearly reads as follows:- “5. Whereas the matter was discussed in detail with the 2nd Party by the Executive Officer of Jamshedpur Co-operative Stores Limited, with prior appraisal of facts to the Deputy Commissioner-cum-Administrator and on his consent the letter of allotment is issued with effect from 9th April, 2001 for further period of five years. The letter of allotment is Appendix ‘A’ to this in witness whereof the parties hereof execute this agreement on this the 21st of January, 2002 at Jamshedpur.” 13. It is submitted that the aforesaid statement in the agreement clearly shows that the earlier agreement, which was entered into between the parties, was with the prior appraisal of facts to the Deputy Commissioner-cum-Administrator and after his consent, the letter of allotment was issued. There is no such statement in the subsequent agreement dated 5th of May, 2005. As such, it is apparent from the record that on the basis of false explanations of the petitioner, the departmental enquiry ended in favour of the petitioner Pradeep Kumar Sah. 14. It is further submitted that it is well settled principle of law that in a criminal case charge has to be proved by proof beyond reasonable doubt, while in departmental proceeding, the standard of proof is mere preponderance of probabilities. 14. It is further submitted that it is well settled principle of law that in a criminal case charge has to be proved by proof beyond reasonable doubt, while in departmental proceeding, the standard of proof is mere preponderance of probabilities. In this connection, learned counsel has placed reliance upon the decision of the Hon'ble Supreme Court of India in South Bengal State Transport Corpn. Vs. Sapan Kumar Mitra and Ors., reported in 2006 (2) SCC 584 , wherein where, it has been held as follows:- “10. ---------------in a criminal case charge has to be proved by proof beyond reasonable doubt while in departmental proceeding the standard of proof for proving the charge is mere preponderance of probabilities. ---------------. " 15. Placing reliance on this decision, learned counsel has submitted that in view of direct allegation against the petitioner Pradeep Kumar Sah of entering into a criminal conspiracy and also in connivance with the petitioner Gurudayal Singh Bhatia to have illegally executed the agreement with him for a further period of five years, causing unlawful loss to the J.C.S., Jamshedpur and also causing corresponding wrongful gain to the petitioners, it cannot be a case of quashing the criminal proceeding at this stage. 16. Having heard counsels for both the sides and upon going through the record, I find that there is specific allegation against both the petitioners to have entered into a criminal conspiracy and connivance, as a result of which, fresh agreement dated 5.5.2005 was entered into between both the petitioners disobeying the order dated 10.1.2005 passed by the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur. In the said order, it was clearly directed that the petitioner Gurudayal Singh Bhatia shall make the payment of Rs. 2,79,180/-for his illegal occupation of 517 sq. ft. and he shall also make the payment of the yearly enhancement of the license fee the rate of 3% per year within a period of seven days. It was further directed that within the period of seven days from the date of payment made by the petitioner and vacating the excess area by the petitioner Gurudayal Singh Bhatia, fresh agreement would be executed in favour of the petitioner. It was further directed that within the period of seven days from the date of payment made by the petitioner and vacating the excess area by the petitioner Gurudayal Singh Bhatia, fresh agreement would be executed in favour of the petitioner. Had all these conditions were fulfilled and the agreement had been executed by the petitioner Pradeep Kumar Sah in favour of the petitioner Gurudayal Singh Bhatia, there was no question of any criminal proceeding against the parties, but the fact of this case reveals otherwise. Only the payment of Rs. 2,799,180/-was made by the petitioner and no payment of the yearly enhancement of the license fee the rate of 3% per year was made by the petitioner Gurudayal Singh Bhatia, as per the order dated 10.1.2005, and accordingly, no agreement could be legally entered into between the parties. After more than four months, the petitioner Gurudayal Singh Bhatia wrote the letter to the Executive Officer for execution of the fresh agreement in his favour, as contained in Annexure-A to the counter affidavit, which clearly shows that the petitioner Gurudayal Singh Bhatia had only stated about the payment made by him of Rs. 2,79,180/-and there is no mention about the deposit regarding the second part of the order dated 10.1.2005, but in spite of this, the petitioner Pradeep Kumar Sah entered into the agreement with the petitioner Gurudayal Singh Batia on 5th of May, 2005 and accordingly, the conduct of the petitioner Pradeep Kumar Sah, the then Executive Officer is also not above board, in execution of the agreement. He had also given the false explanation in the departmental proceeding against him that all the amount as directed by the Deputy Commissioner-cum-Administrator, J.C.S., Jamshedpur, had been deposited within time and thereafter the agreement was executed within time. He had also stated in his explanation in the departmental proceeding that there was no requirement of obtaining the approval of the Deputy Commissioner-Cum-Administrator, J.C.S., Jamshedpur, and all these statements are against the record and palpably false. This conduct of the petitioner Pradeep Kumar Sah shows that his conduct was not at all above board, and in that view of the matter whether he had entered into criminal conspiracy with the petitioner Gurudayal Singh Batia for entering into the subsequent agreement, or not, is a question of fact, which can only be decided during the trial. 17. This conduct of the petitioner Pradeep Kumar Sah shows that his conduct was not at all above board, and in that view of the matter whether he had entered into criminal conspiracy with the petitioner Gurudayal Singh Batia for entering into the subsequent agreement, or not, is a question of fact, which can only be decided during the trial. 17. In my considered view, in the backdrop of the allegations against both the petitioners that they had entered into criminal conspiracy and connivance amongst themselves, and thereby caused wrongful loss to the J.C.S., Jamshedpur and corresponding wrongful gain to themselves, there cannot be any interference in the criminal proceeding against them at this stage. 18. In view of the aforementioned discussions, I do not find any merit in both these applications and the same, are accordingly, dismissed. The aforesaid Interlocutory application also stands disposed of.