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2017 DIGILAW 1437 (ORI)

Daitari Swain v. State of Orissa

2017-12-11

B.K.NAYAK

body2017
ORDER 11.12.2017. Heard learned Counsel for the petitioner and the learned Additional Standing Counsel. The petitioner prays for quashing the proceeding in G.R. Case No.517 of 2011 of the Court of the learned JMFC, Khariar qua the petitioner. The G.R. case arose out of Khariar P.S. Case No.222 of 2011 registered under Section 406, IPC on the basis of FIR lodged by the District Project Coordinator, SSA, Nuapada. It is alleged in the FIR that as per report of the technical consultant of Khariar Block, Sri Madhab Bag, Ex. Chairman of the village Education Committee (VEC),Chanabeda SS of Khariar Block misappropriated Government money amounting to Rs.2,45,009/- (Rupees two lakh forty five thousand nine) which was placed at his disposal of casting of roof Slab of NUPS building at Chanabeda SS,. Along with the FIR the money receipt granted by the said Madhab Bag with his signature on 01.10.2010 was also submitted before the Police. It was also alleged in the FIR that the VEC Chairman, Madhab Bag violated the terms and conditions of the agreement made with the DPC on 18.08.2009. On investigation the Police submitted charge-sheet against the Ex-Chairman of the VEC, namely, Madhab Bag and also against the petitioner, who is the Head Sevak of the Sevashram, stating that both the accused persons have withdrawn the amount of Rs.2,45,009/- (Rupees two lakh forty-five thousand nine) which was misappropriated by both of them in violation of the agreement made with the DPC, Nuapada. So both are liable under Section 406/405/418/34, IPC. It appears that charge-sheet submitted against Madhab Bagh was only under Section 406, IPC and against the petitioner was under Section 409/418/34, IPC. It is submitted by the learned Counsel for the petitioner that in view of the office order of the Collector-cum-Chairman, SSA, Nuapada dated 21.08.2010 that the Headmaster as the Secretary of the Village Education Committee (VEC), shall monitor the work of Chairman of the Village Education Committee for completion of the civil work and he should not act as a Contractor himself and get involved in the construction work. It is also stipulated in the order that no withdrawal of money from the bank by the concerned Headmaster and VEC Chairman be entertained without the resolution duly passed and signed by all the Committee Members present on the date of resolution. It is also stipulated in the order that no withdrawal of money from the bank by the concerned Headmaster and VEC Chairman be entertained without the resolution duly passed and signed by all the Committee Members present on the date of resolution. It is also stipulated that cash withdrawn shall be kept with the VEC and the Chairman shall be responsible for payment of labours and purchase of materials for construction. It transpires from the letters filed by the learned Counsel for the petitioner and from the Case Diary that the construction work of the School building had progressed up to roof level but the roof had not been laid. In the meantime the term of the VEC came to an end but the co-accused, Madhab Bag filed a writ petition bearing No.W.P. (C) No.17574 of 2009 praying for declaration that the tenure of the VEC of which he was the Chairman has not been over. During the pendency of the writ petition money being required for the purpose of casting of the roof of the building, the VEC wrote a letter to the District Welfare Officer, Nuapada for permitting the VEC to withdraw the money for completion of the construction work. Thereupon by letter dated 27.08.2010. the DPC wrote to the District Welfare Officer, Nuapada to permit the VEC to take up the building construction work immediately by following the norms and procedure in view of the urgent need of class rooms in the School. A resolution of the VEC dated 11.09.2010 was also passed in the meeting which was attended by the District Project Coordinator (DPC) and the technical advisor, who approved withdrawal of the money and proceeding with the work. As per procedure the money is kept in a joint account of the Headmaster/Head Savak and the Chairman of the VEC. Accordingly both the accused persons withdrew the Rs.2,50,000/- (Rupees two lakh fifty thousand) and as per the instruction of the Collector as referred to above, the money was handed over to the co-accused, Madhab Bag, Chairman of the VEC, for the purpose of expenditure and accordingly Madhab Bag has already submitted a receipt dated 01.10.2010. It is alleged in the FIR that the said amount has been misappropriated by Madhab Bag. It is alleged in the FIR that the said amount has been misappropriated by Madhab Bag. Learned Counsel for the State submits that since both the accused persons jointly exercised an agreement with undertaking that in case of misappropriation both will be jointly held liable, even if the money has been misappropriated by Madhab Bag, the petitioner can still be held liable. It is trite that criminal liability cannot be fastened merely by consent or agreement on a person who has committed no offence. From the description of the facts and the materials as seen above, it is clear that on the permission of the District Project Coordinator money was withdrawn from the joint account and undisputedly the entire money was handed over to the co-accused, Madhab Bag, the Chairman of the VEC, who has granted receipt therefor. Even though the present petitioner, who is the joint account holder, withdrew money from the joint account, he has not retained any part of the withdrawn money. Money being handed over to the co-accused Madhab Bag it is for him to account for the same alone. Therefore, by no stretch of imagination it can be said that the petitioner has committed the offences of criminal breach of trust and cheating. In the aforesaid analysis, this Court holds that the petitioner cannot be held criminally liable for the offence and accordingly the G.R. Case qua the petitioner is quashed. The case shall continue only against the co-accused, Madhab Bag. Accordingly the WPCRL is disposed of. WPCRL disposed of.