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Madhya Pradesh High Court · body

2015 DIGILAW 618 (MP)

Om Prakash Bhargava v. State of M. P.

2015-06-16

SUSHIL KUMAR GUPTA

body2015
ORDER 1. This petition has been preferred by the petitioner under section 482 of Code of Criminal Procedure, 1973 for quashing the FIR registered at Crime No.646/2013 under section 409 of Indian Penal Code (in short “the Penal Code”) at Police Station Padav, District Gwalior and also for quashing the criminal proceedings in Criminal Case No.7590/2014 pending before Additional Chief Judicial Magistrate, Gwalior. 2. Brief facts of the case are that on 7.12.2013 one Rakesh Kumar Gupta, present Executive Engineer has filed a complaint at police station against the petitioner and others alleging therein that vide letter No.2531 dated 27.12.2007 of General Manager, Madhya Pradesh Pashu Dhan Evam Kukut Vikas Nigam an amount of Rs.22,63,000/- through Bank Draft dated 9.1.2008 has been received by the Executive Engineer, Public Works Department Division No.1 from which Shri O.P. Bhargava the then Executive Engineer had made the payment of Rs.20,14,000/- under the head of AR/SR, and therefore, Shri O.P. Bhargava has committed grave irregularity in making the payment and in reference to the letter No.F 58/16/13/19/Yo/6606 Bhopal dated 4.12.2013 the works mentioned in the letter No.5494/SAC/12-13 dated 28.7.2012 which are ten in number, the abovesaid amount has been unauthorizedly spent and therefore, the enquiry about the truthfulness of spending the amount be conducted. On the basis of that complaint, the FIR has been registered against the petitioner and investigation was started. After completion of investigation the charge-sheet has been filed under section 409 of the Penal Code and the learned Additional Chief Judicial Magistrate has taken cognizance against the petitioner under section 409 of the Penal Code. 3. Learned counsel for the petitioner submits that looking to the evidence available on record no offence under section 409 of the Penal Code is made out against the petitioner. It is submitted that during pendency of the case the investigation has been made on the amount spent on the 10 works mentioned and enquiry has also been conducted about the truthfulness and authenticity of the works mentioned in the bill and ultimately found that no irregularity has been committed. Learned counsel for the petitioner further submits that during investigation no evidence has been produced which proved that the petitioner has taken any commission for the aforesaid works. Learned counsel for the petitioner further submits that during investigation no evidence has been produced which proved that the petitioner has taken any commission for the aforesaid works. It is further submitted by the learned counsel for the petitioner that prosecution has submitted the work order and the bill and there was no mistake of petitioner has been seen that the work were done on higher rates. He further submitted that the petitioner has not committed any offence under section 409 of the Penal Code. On these grounds, learned counsel for the petitioner prays for quashing the FIR registered against him and the consequential proceedings pending before the Additional Chief Judicial Magistrate in Criminal Case No.7590/2014. 4. On the other hand, learned Public Prosecutor for respondent/State has submitted that there is prima facie evidence available on record for framing the charge under section 409 of the Penal Code against the petitioner. He further submitted that petitioner dishonestly misappropriated the Government money (property) which was entrusted to him. It is also submitted that petitioner has spent Rs.20.14 lacs of AR/SR head in another head and committed gross irregularity which comes under the definition of criminal breach of trust. In such a way learned Public Prosecutor for the respondent/State opposed the submission advanced by the learned counsel for the petitioner and prays for dismissal of the petition. 5. Having heard the learned counsel for the parties and perused the entire record. 6. Before coming to the factual aspect of the case, it would be proper to reproduced the relevant provisions of the Penal Code of criminal breach of trust which reads as under : “405. Criminal breach of trust. -- Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust”. 409. Criminal Breach of Trust by Public Servant or by banker, merchant or agent. 409. Criminal Breach of Trust by Public Servant or by banker, merchant or agent. -- Whoever, being in any manner entrusted with property, or with any dominion over of his business as a banker, merchant, factor, broker, attorney or agent, commit criminal breach of trust in respect of that property, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine.” 7. From the bare perusal of the aforesaid section 409 of the Penal Code, it is clear that for constituting an offence of criminal breach of trust by a public servant, the following ingredients must be satisfied : (i) person should be a public servant; (ii) entrusted with the property or with any dominion over the property in his capacity of public servant; (iii) In respect of that property commits criminal breach of trust; means dishonestly misappropriates or converts to his own use that property. 8. Now ‘dishonestly’ has defined in section 24 of the Penal Code, connotes the doing of anything with the intention of causing wrongful gain to one person or wrongful loss to another person and section 25 of the Penal Code defines “fraudulently” which connotes a person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. 9. Now I come to the factual aspect of this case. It is undisputed that at the time of committing of the alleged offence petitioner was posted as Executive Engineer of PWD. As per the allegation of the prosecution it is also undisputed that petitioner has made payment of Rs.20.14 lacs of AR/SR Head in another Head 8443 and committed irregularity. On the basis of written report of Rakesh Kumar Gupta, the then Executive Engineer of PWD, Division No.1, Gwalior, FIR has been registered against the petitioner under section 409 of the Penal Code. 10. Learned counsel for the petitioner submitted that for the sake of arguments it is entirely admitted that petitioner has made payment of Rs.20.14 lacs of one head to another head even then he has not committed any criminal breach of trust as defined aforesaid in section 405 of the Penal Code. 10. Learned counsel for the petitioner submitted that for the sake of arguments it is entirely admitted that petitioner has made payment of Rs.20.14 lacs of one head to another head even then he has not committed any criminal breach of trust as defined aforesaid in section 405 of the Penal Code. He further submitted that there was no dishonestly intention and fraudulent act committed or available with regard to the using of the aforesaid money from one head to another head. He further submitted that there is no mens rea available in this case and mens rea is a main ingredient for committing criminal breach of trust. It is also submitted that for registration of the offence under section 409 of the Penal Code ingredients of the offence of criminal breach of trial are not available. In this case neither in FIR nor in the statement of the complainant and other witnesses it is stated that petitioner has dishonestly misappropriated or converting for his own use the money/property which was entrusted to him. 11. The Hon’ble apex Court in the case of Sardar Singh v. State of Haryana [1976 Legal Eagles (SC) 410], has held that constituting the offence under section 409 of the Penal Code there should be dishonest misappropriation or converting for one’s own use or dishonest use or disposal of entrusted property over which the accused had dominion. 12. In view of the aforesaid discussion, it is crystal clear that when the FIR was lodged on dated 7.12.2013 against the petitioner he has not misused or dishonestly misappropriated Rs.20.14 lacs which was entrusted to him. So far as the framing of the charges, the Hon’ble apex Court in the case of State of M.P. v. S.B. Johari and others, reported in 2000(1) JLJ 142 = 2000(3) MPHT 164 , has been held that : “At the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed in the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case, there would be no sufficient ground for proceeding with the trial.” 13. In the matter of Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya and others, etc., reported in (1990)4 SCC 76 , the Hon’ble apex Court has held that : “At the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged. The Court may peruse the records for the limited purpose, but it is not required to marshal it with a view to decide the reliability thereof.” 14. In view of aforesaid detailed discussion and in the facts and circumstances of the case for the foregoing reasons I am of the considered opinion that there is no prima facie evidence available against the petitioner for proceeding under section 409 of the Penal Code. Therefore, where the ingredients of offence under sections 405 and 409 of the Penal Code is not available the FIR registered against the petitioner under section 409 of the Penal Code at Police Station Padav, District Gwalior and the criminal proceedings pending in Criminal Case No.7590/2014 against the petitioner cannot be sustained and same are hereby set aside and petitioner is discharged from the offence punishable under section 409 of IPC. Accordingly, the petition is allowed as aforesaid. Copy of the order be sent to the Court concerned for necessary compliance. .............