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Madhya Pradesh High Court · body

2018 DIGILAW 503 (MP)

KALICHARAN GAUTAM v. STATE OF M. P.

2018-05-16

ANAND PATHAK

body2018
JUDGMENT : 1. Shri Prashant Sharma and Shri Nirmal Sharma, learned counsel for the petitioner. Shri B. M. Patel, learned GA for the respondent No. 1/State. Ms. Sarita Tiwari, learned counsel for respondent No. 2/complainant. Present petition under section 482 of Criminal Procedure Code has been preferred by the petitioner for quashment of FIR registered vide crime No. 131/2016 by PS Chhinore, District Gwalior for offence under sections 409, 419, 420,467, 468, 471 and 34 of Indian Penal Code. 2. It is the case of the petitioner that an FIR dated 24-8-2016 was registered against the petitioner along with other accused persons for the offence referred above while he was posted as Manager in Primary Agricultural Society, Urva. After registration of FIR matter was inquired by Sub Divisional Officer (Police) Dabra, who submitted his report in which it is indicated that from year 1999 to 2004, petitioner was posted as Manager of aforesaid society and thereafter he was not posted at Urva. Complainant was posted from year 2005 to 2010 as Manager in the said society and it is the allegation of the petitioner that to conceal his own act, FIR has been registered against the petitioner to save the real culprits. 3. The allegations are in relation to loan given to 36 agriculturists during the period 2008-2009 when the petitioner was allegedly Manager of the said society. Petitioner made representation also to the SP, Gwalior in this regard showing his innocence but same has not been taken into consideration, therefore, this petition has been preferred. 4. According to learned counsel for the petitioner in the judgment rendered by Honble Apex Court in the case of Lalita Kumari vs. Government of U.P. and ors. reported in (2014) 2 SCC 1 guidelines have been provided in respect of cases involving commercial offence/corruption cases. Following the said guidelines, preliminary enquiry ought to have been made by the investigating authority, absence of which vitiates the investigation. Petitioner also relied upon the decision rendered by Apex Court in the matter of State of Haryana vs. Bhajan Lal, AIR 1992 SC 604 and submits that no case against the petitioner is made out and FIR has been registered with undue haste. When the enquiry has been conducted by the Sub Divisional Officer (Police) then closure report must have been filed by the respondent No. 1. 5. When the enquiry has been conducted by the Sub Divisional Officer (Police) then closure report must have been filed by the respondent No. 1. 5. Learned counsel for the State opposed the prayer made by the petitioner and reply was filed. In the reply, it has been specifically mentioned that during investigation, it was found that petitioner was working as Manager of aforesaid society between the period 2007 to 2011. A letter dated 4-7-2016, written by Chief Executive Officer, District Central Co-operative Bank, Gwalior reveals that the petitioner was working as Manager of the Society at the relevant point of time and under his patronage, documents were forged and amount was withdrawn. It is further referred that resolution Nos. 24, 37, 47 and 78 were passed during the tenure of the petitioner and they were forged by the petitioner. Unless the petitioner is arrested and investigation is properly made, truth would not come to the fore. Therefore, his presence is required in the matter. Additional reply was also field by State in which para 4 categorically indicates that petitioner was working as Manger of the Society at the relevant point of time in between year 2007 to 2011. Other paragraphs also indicate that petitioner worked as Manager of the aforesaid society and he issued release order in respect of several fertilizer bills. Notice under section 91 of Criminal Procedure Code dated 16-3-2018 was issued to the petitioner for taking the original fertilizer bills and release order. Investigation is going on. He prayed for dismissal of the petition. 6. Mrs. Tiwari, learned counsel for respondent No. 2/complainant vehemently opposed the prayer of the petitioner and submits that the petitioner has embezzled amount worth crores of rupees. Between years 2007 to 2011, petitioner was instrumental in release of loan amount to the tune of Rs. 5.5 crores to some 800 farmers, who were neither the members of Society nor they have any agricultural land in the jurisdiction of the society. She referred letter dated 31-8-2015, written by the then Society Manager to Deputy Commissioner, Co-operative Societies, District Gwalior about forged documents and embezzlement of money at the instance of petitioner. Learned counsel also referred the proceedings dated 21-2-2018 conducted in the office of Dy. Commissioner, Co-operative Societies, Gwalior in which matter was discussed at length. She referred letter dated 31-8-2015, written by the then Society Manager to Deputy Commissioner, Co-operative Societies, District Gwalior about forged documents and embezzlement of money at the instance of petitioner. Learned counsel also referred the proceedings dated 21-2-2018 conducted in the office of Dy. Commissioner, Co-operative Societies, Gwalior in which matter was discussed at length. From the copy of proceedings filed as Annexure R/5 dated 3-3-2018, she contends that how the District Co-operative Central Bank has given false information to the police officer that petitioner was not working as Society Manager at the relevant point of time. In Paragraph No. 22, the Committee decided to take action against the Establishment In-charge of District Co-operative Central Bank and against the Cadre Officer of Primary Agricultural Society, Urva for giving false information. It is further submitted that petitioner has embezzled crores of rupees of poor farmers and society, therefore, no leniency can be shown in the case of petitioner, he should be thoroughly investigated and arrested for the offence levelled against him. 7. Heard learned counsel for the parties at length and perused the documents brought on record by respective parties. 8. The case in hand is a case where petitioner as Society Manager of Primary Agricultural Society, Urva has allegedly embezzled crores of rupees by forging release orders and by misusing his authority as Society Manager. Investigation is underway. Earlier Sub Divisional Officer (Police), Dabra has conducted an enquiry. It appears from the record that correct information was not provided to said authority, therefore, authority came to the conclusion about the alleged posting of petitioner at some other place. But the perusal of report submitted by Sub Divisional Officer (Police), Dabra itself, it is revealed that petitioner was posted as Society Manager between period 2007 to 2011 and enquiry report virtually implicate the petitioner. Reply as well as additional reply filed by respondent/State categorically indicate that during the tenure of petitioner as Society Manager, he misused his authority and created forged bills and release order. Para 4 of the additional reply, reads in following terms : 9. A perusal of said paragraph as well as other pleadings of reply/additional reply indicate that petitioner at the relevant point of time was working as Society Manger of Primary Agricultural Society, Urva when the alleged fraud/misconduct was committed. Para 4 of the additional reply, reads in following terms : 9. A perusal of said paragraph as well as other pleadings of reply/additional reply indicate that petitioner at the relevant point of time was working as Society Manger of Primary Agricultural Society, Urva when the alleged fraud/misconduct was committed. Responsibility and role of petitioner cannot be out-rightly rejected at the instance of submissions of the petitioner. Truth would unfold during investigation. 10. Respondent No. 2 also vehemently opposed the prayer and submitted various documents including the proceedings dated 3-3-2018 released by the office of Deputy Commissioner, Co-operative Society vide Annexure R/5. Said document reveals that how District Co-operative Central Bank tried to save the petitioner by providing wrong information. The District Co-operative Central Bank has furnished false information to save the petitioner, is a misconduct or not, is to be considered by the appropriate authority while proceeding against the erring bank employees and its office bearers but the said false information provided by the District Co-operative Central Bank cannot be a ground for quashment of FIR registered against the petitioner. 11. Honble Apex Court in the matter of Taramani Parakh vs. State of M. P. and others, 2015 3 Cr.L.J. (SC) 2031 wherein it has been held that continuation of prosecution is rule and quashment whereof under section 482 of Criminal Procedure Code is exception. Here the uncontroverted allegations made from the record of the case and the documents submitted therewith cannot categorically establish innocence of the petitioners prima facie. 12. Case in hand involves disputed questions of facts which required to be investigated by the appropriate investigating agency and same cannot be decided under section 482 of Criminal Procedure Code The judgment relied upon by learned counsel for the petitioner in the matter of Lalita Kumari (supra) regarding preliminary enquiry is of no help to the petitioner because it is not a case of financial dispute only, it is a case falling under the provisions of Indian Penal Code; wherein, serious allegations of embezzlement of public funds and cheating are involved, which are required to be looked into by the respondent. 13. Petition sans merits, is therefore, dismissed.