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2016 DIGILAW 1915 (HP)

Amar Nath v. State of HP

2016-09-07

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. By way of this petition, the petitioner has challenged the order passed by the Court of learned Judicial Magistrate 1st Class, Court No.II, Ghumarwin, Distt. Bilaspur in C.R. No. 6/1 of 2011 dated 6.7.2015 vide which order, learned Court below while rejecting the objections of the present petitioner has accepted the cancellation report qua FIR No. 95 of 2010 lodged at Police Station Talai, Tehsil Ghumarwin, Distt. Bilaspur. 2. Facts as can be deciphered from the order passed by the Court of learned JMIC Court No.II, Ghumarwin, Distt. Bilaspur are that on 21.9.2010 a complaint was filed in the Court of learned JMIC, Court No.1, Ghumarwin by Amar Nath (i.e. the present petitioner) and one Mehar Chand alleging offences punishable under Sections 120-B, 420, 409, 466 read with Section 34 IPC against Deena Nath, President, Om Prakash, Vice- President, Hukam Chand, Ward Member of Ward No.1, Rattan Lal Secretary, and Vijay Kumar, Junior Engineer-cum-Technical Assistant of Gram Panchayat, Naghiar on the ground that the complainants were permanent residents of Gram Panchayat, Naghiar and they are beneficiaries of different development schemes executed by said Panchayat by spending public funds. 3. As per the complainants, a resolution was passed by Gram Panchayat, Naghiar to construct a “BOWRI” in Ward No.1 for which an amount of Rs. 68,000/- was sanctioned by BDO, Jhandutta on 8.12.2008. The said amount was embezzled and misappropriated by the accused by preparing false details of expenditure having incurred on the construction of Bowri, whereas no such Bowri was constructed. 4. The complaint so filed before the learned JMIC, Court No.1, Ghumarwin was forwarded to SHO, Police Station, Talai for registration of FIR and investigation in accordance with law under Section 156(3) of Cr.P.C. On these basis FIR No. 95 of 2010 was registered and investigation was carried out. 5. Investigation revealed that there was a Nallah called ‘Nalli’ in village Banal, Gram Panchayat Naghiar, water of which was used by the residents of Harijan Colony of village Banal. The source of said Nallah of villages Banal and Chambeh was in district Hamirpur. The water of said source was only used by the residents of village Banal because habitation of village Chambeh was about 2 kilometer away from the said source. The source of said Nallah of villages Banal and Chambeh was in district Hamirpur. The water of said source was only used by the residents of village Banal because habitation of village Chambeh was about 2 kilometer away from the said source. Gram Panchayat, Naghiar obtained No Objection Certificate from Gram Panchayat, Giaragran of district Hamirpur for construction of Bowri on said water source and later on an estimate of Rs. 80,000/- was sent to BDO, Jhandutta who sanctioned Rs. 68,000/- for the construction of said Bowri under MNREGA. 6. Thereafter, Bowri was constructed on the spot and as per tatima and report issued by the local patwari in the course of investigation, the said disputed Bowri was found to have been constructed 35 karam inside the boundary of village Chambeh, district Hamirpur which was abutting to village Banal, Gram Panchayat, Naghiar, Distt. Bilaspur. Investigation also revealed that residents of village Banal used the water of disputed Bowri for ages and there was no other water source in village Banal where ‘step-well’ could be constructed. Investigation also revealed that residents of village Banal were the direct beneficiaries of the said Bowri, whereas residents of village Chambeh District Hamirpur never used the water of the said Bowri. Accordingly, on these bases cancellation report was filed as no forgery, embezzlement or cheating was found to have been committed by the accused persons. 7. The objections preferred by the complainant against the cancellation report were also sent for further investigation to SHO, Police Station, Talai by the learned Court below vide order dated 19.9.2012 and further investigation also revealed that no offence was made out against the accused. Learned Court below on the basis of material produced before it accepted the cancellation report and rejected the objections which were filed to the same by the complainant’s therein. 8. While accepting the cancellation report learned Trial Court held that a reasonable explanation had been furnished by the concerned parties that the source of water from which water flows into Nallah leading to village Banal falls in village Chambeh as such the Bowri was required to be constructed there. 8. While accepting the cancellation report learned Trial Court held that a reasonable explanation had been furnished by the concerned parties that the source of water from which water flows into Nallah leading to village Banal falls in village Chambeh as such the Bowri was required to be constructed there. It was further held by the learned Trial Court that the complainant had not denied the fact that the water of disputed Bowri which was constructed by utilizing the funds sanctioned by BDO, Jhandutta was being used by the residents of Harijan Colony of village Banal and not by the residents of village Chambeh of district Hamirpur. Learned Trial Court also held that it was also not the allegation of the complainant that the entire amount sanctioned for the construction of the Bowri was not so spent by the accused persons. On these basis learned Trial Court held that it could not be said that the accused persons had committed criminal breach of trust or embezzlement/dishonest misappropriation of public funds. On these bases, learned Court below held that no offence was made out against the accused and on these bases it accepted the cancellation report. 9. I have heard learned counsel for the parties and have also perused the record produced on record by the petitioner. 10. It is evident from the order passed by the learned Court below that after being satisfied about the averments which were made in the cancellation report, the same was accepted by the learned Court below. The reasoning which has been given by the learned Court below for accepting cancellation report is self speaking and learned counsel for the petitioner could not point out as to what was the jurisdictional error committed by the learned Court below while accepting the cancellation report. Order so passed by the learned Court below is both reasoned order as well as speaking order. It has duly justified as to why it was accepting the cancellation report. It is a matter of record that objections filed by the complainant against the cancellation report were also got investigated by the learned Court below and after being satisfied from the investigation reports that there was no merit in the objections, the same were rejected whereas the cancellation report was accepted. 11. The present petitioner apparently seems to be a busy body. 11. The present petitioner apparently seems to be a busy body. Filing of the initial complaint before the learned Court below which resulted in the registration of the FIR as well as filing of the present revision petition against the order of cancellation of FIR is nothing but an act of abuse of the process of law. The doors of justice are always open for one and all, however, the first and foremost requirement which a person who approaches the Court of Law has to satisfy is that the process of law should not be abused to harass the others. However, filing of the present revision petition, against the order passed by the learned Court below vide which cancellation report with regard to FIR No. 95 of 2010 has been accepted is nothing but abuse of the process of law. It is apparent that the complaint as well as present revision petition was filed with the ulterior motive of harassing the private respondents who were either elected members of Gram Panchayat or public servants. Therefore, while upholding order dated 6.7.2015 passed by the Court of Learned JMIC, Court No.2, Ghumarwin, Distt. Bilaspur in C.R. No. 6/1 of 2011, the present revision petition is dismissed with costs quantified at Rs. 10,000/- which shall be disbursed proportionately to the private respondents. Petitioner shall deposit the cost within a period of one month from today in the Registry of this Court and for this limited purpose the case shall be listed on 20.10.2016.