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2019 DIGILAW 137 (MP)

Rajya Arthik Apradh Prakosth v. S. C. Dekate

2019-02-11

SANJAY YADAV, VIVEK AGARWAL

body2019
ORDER Agarwal, J.--1. This application under section 378(3) of Code of Criminal Procedure has been filed by the State Economic Offence Wings being aggrieved by the judgment dated 16.1.2016 passed by the Court of Special Judge (Prevention of Corruption Act, 1988), Morena in Special Sessions Case No. 15/2012, whereby respondent No. 1- S.C. Dekate has been acquitted of the charges under section 13(1)(c) read with section 13 (2) of the Prevention of Corruption Act, 1988 so also section 420, 120B of IPC, whereas respondent No. 2 Hari Singh Sikarwar has been acquitted from the charges under section 13(1) (c) read with section 13(2) of the Prevention of Corruption Act, 1988 and section 406 and 420 of IPC. 2. Learned counsel for the applicant submits that case of the prosecution is that Commissioner, Handlooms and Handicrafts M.P. Bhopal vide letter dated 5.4.1997 asked the head quarters of the Bureau to conduct a detailed inquiry in the functioning of Weavers Cooperative Societies of the Morena District, which were nine in numbers. It was alleged that between 1990-91 to 1993-94, respondent No. 1- S.C. Dekate had made certain recommendations in regard to sanction of loan and subsidy, which were accepted by the Joint Director, Handloom Bhopal but such nine societies were found to be non-functional at their actual place and therefore, allegation was that with respondent No. 2, who was the then President of Parvati Kaleen Bunkar Sahkari Samiti Maryadit, Sihori, Shri S.C. Dekate, who was posted as Assistant Director Handloom, Morena made unlawful gain for themselves and had committed several irregularities. 3. It is submitted that the learned Special Judge without appreciating the material on record has recorded a finding of acquittal against the respondents No. 1 and 2. It is also pointed out that learned Special Judge has overlooked the evidence of Shri M.L. Verma (PW17), who was posted as Joint Director, Handloom on 12.4.1996 and had found in his inquiry that there were some irregularities but such evidence of M.L. Verma (PW17) and that of Pramod Gupta (PW12), who was posted as Deputy Auditor in the Office of Assistant Registrar, Audit Cooperative Societies, Morena and evidence of Jagdish Yadav (PW14), who had conducted some inquiry alongwith Shri N.K. Upadhyay (PW9) has not been taken into consideration and arbitrarily order of acquittal has been passed. 4. 4. After hearing the arguments and going through the record, it is apparent that applicant is seeking leave on the basis of evidence of M.L. Verma (PW17), Pramod Gupta (PW12), Jagdis Yadav (PW14) and N.K. Upadhyay (PW9). 5. It has come on record that Shri M.L.Verma (PW17) had visited the concerned place where Cooperative Societies were functional but had not found any office of the society and Shri Verma was accompanied by Shri S.K. Tiwari. Shri M.L.Verma (PW17) has admitted that he had not conducted any detailed inquiry and had only conducted a preliminary inquiry. He also admitted that he had not conducted any inquiry under the provisions of Cooperative Societies Act and admitted that in Ex.P-42 there is no mention of the fact that who were the Presidents and Secretaries of such societies. However, he admitted that such societies were registered and such papers of registration are available in the office of District Deputy Registrar. He also admitted that he had not visited the office of Deputy Registrar to look into the documents of registration of the society. He also admitted that he could not recall that during inquiry he had visited which of villages (as narrated in para 12 of the impugned judgment). Similarly, Shri S.K. Tiwari has admitted that Shri M.L. Verma had stopped only at one place at village Sihori and had talk to some people but had not gone to see looms or to visit the office of the societies. He had not even met the Sarpanch and had given his report, whereas the area of jurisdiction of Parvati Kaleen Bunkar Sahkari Samiti Maryadit, Sihori is complete tahsil of Joura. 6. Similarly, Pramod Gupta (PW12) admitted in para 3 of his cross-examination that he had conducted audit of the society on the basis of the documents in the office of the society at village Sihori, Tahsil Joura and as per the record society had not received any grants prior to year 1991-92. Therefore, Pramod Gupta (PW12) has admitted about existence of the society and its office, inasmuch he had conducted audit in the office of such society. 7. Therefore, Pramod Gupta (PW12) has admitted about existence of the society and its office, inasmuch he had conducted audit in the office of such society. 7. Similarly, Jagdish Yadav (PW14) has admitted in his cross-examination that he was posted as LDC from 12.8.1989 to 9.4.1992 and he was dispatching all the correspondence through post on the given addresses of the societies including Parvati Bunkar Sahkari Samiti Sihori and the documents, which were allegedly seized before him except one letter No. 7087, are not before him. He also admitted that the society had gone into liquidation in the year 1997 and the list of the members of the society was made available to the concerned senior officers from time to time. He further admitted that the Ex.P-37 was prepared at one place and village Sihori was never visited while preparing report Ex.P-37. Ex.P-37 is a Bhoutik Satyapan Panchnama and he was not knowing four persons out of the five Panch, who have signed on such physical verification panchnama. He further admitted that Ex.P-38 was not written in front of him. He also admitted that if there are dues on society then after yearly audit notices are issued to such societies for recovery and still when recovery is not made then RRC is issued through Tahsildar and Parvati Bunkar Sahkari Samiti, Sihori had purchased land in the year 1995 and after 1994 no loan or subsidy was extended to such society. He also admitted in para 17 of his cross-examination that in the year 2001 at the time of physical verification, he had not taken liquidator of the society alongwith him though liquidator was appointed in the year 1997 and after appointment of the liquidator President of the society becomes inconsequential. 8. N.K. Upadhyay (PW9 ) in his cross-examination admitted that he had gone to Sihori to look into the records of the society but its President Hari Singh Sikarwar was not available, therefore, he did not ask for the record and had not given any notice to Hari Singh Sikarwar. He admitted that he was not having address of Morena, therefore, he had not seized the records. 9. He admitted that he was not having address of Morena, therefore, he had not seized the records. 9. Thus, it is apparent from the testimony of the star witnesses of the prosecution that they had carried out all the proceedings sitting within their comfort zone and had not made any efforts to contact such persons, who were necessary to contact and had conducted proceedings in a very casual manner. Once society had gone into liquidation at the time of the inquiry, then not taking statements of the liquidator or not seeking records of the society from the liquidator and the fact that society had gone into liquidation in the year 1997 proves that society existed and was not a non-existing society, thus belying the allegations made against the society and therefore, trial Court has rightly appreciated the evidence, which has come on record and now for the failure of the prosecution to conduct its case properly and for their own weakness they cannot take advantage and seek leave to appeal against the order of acquittal as there is no cogent evidence on record to derive finding other than what has been arrived at by the learned Special Judge. Therefore, leave to appeal fails and is dismissed.