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Madhya Pradesh High Court · body

2019 DIGILAW 775 (MP)

Sandeep Jaiswal v. State of M. P.

2019-11-07

V.P.S.CHAUHAN

body2019
ORDER : All these petitions are being decided by this common order as they are having a common dispute arising out of the order dated 17/02/2016 passed by revisional Court i.e. 1st Additional Sessions Judge, Katni in Criminal Revision No.19/2012 whereby while affirming the order dated 01/10/2011 passed by the Court of JMFC, Katni in Complaint Case No.3558/2011 thereby the trial Court has registered the complaint against each applicant for the offence punishable under Sections 418 and 465 of IPC and directed the trial Court to registered the case against each applicant for the offences punishable under Sections 120-B, 409, 420, 467, 468, 471 of IPC in addition to the offence punishable under Sections 418 and 465 of IPC. 2. The facts giving rise to all these cases, in short, are that complainant-Prem Kumar Burman, who is respondent herein, submitted a complaint under Section 200 of Cr.P.C. before the Court of JMFC alleging therein that applicant-Ramesh Singh Baghel was posted as Commissioner, Nagar Palika Nigam, Katni, applicant-Gokul Khare was posted as Dy. Commissioner, Nagar Palika Nigam, Katni,, applicant-Sandeep Jaiswal was posted as Mayor, Nagar Palika Nigam, Katni, K.L. Pandey was posted as Revenue Officer, Nagar Palika Nigam, Katni, Shivdhar Badgaiya was posted as Revenue Inspector, Nagar Palika Nigam, Katni at the relevant point of time i.e. 2006 to 2007. Municipal Corporation, Katni is calling tender every year for Dainik Bazar Bethki. In the financial year of 2004-05 the tender was accepted for the value of Rs.8,13,212/-, for the year 2005-06 of Rs.13,05,000/-, for the year 2006-07 of Rs.16,10,000/-. 3. For the financial year 2007-08 Municipal Corporation again called tender from the various persons and set the basic value of Rs.17,71,000/-. After advertising in the newspaper, Municipal Corporation, Katni received only one sealed tender from Sanjay Sarawagi and the then Dy. Commissioner Gokul Khare on the basis of one single tender without calling further tenders from other persons forgedly opened one tender which was valued of Rs.12,50,000/-and did not refer the matter to the council of Municipal Corporation constituted of the elected members of wards and not called the members for the meeting. Commissioner Gokul Khare on the basis of one single tender without calling further tenders from other persons forgedly opened one tender which was valued of Rs.12,50,000/-and did not refer the matter to the council of Municipal Corporation constituted of the elected members of wards and not called the members for the meeting. However, despite that, applicant-Shivdhar Badgaiya put a note dated 31/03/2007 that it had been decided in the meeting of the council of Municipal Corporation on 22/3/2007 that the tender should be allotted to Sanjay Sarawagi and on that note all the applicants without conducting meeting of the Council accepted the tender o Sanjay Sarawagi for the financial year 2007-08 and caused loss to the Corporation as the basic value was Rs.17,71,000/-. In the meantime, before accepting the tender, Municipal Corporation issued a receipt book to the employees of the Corporation for collecting money from the persons who took part in the Dainik Bazar Baithki. The complainant alleges therein that all the applicants conspired with each-other for providing the contract to Sanjay Sarawagi on a very low price which was very low in comparison to the contract issued for the previous year and caused loss to the Municipal Corporation and provided illegal financial benefit to Sanjay Sarawagi by allowing only one tender submitted by Sanjay Sarawagi. 4. Learned Court of JMFC after recording the evidence under Sections 200 and 202 of Cr.P.C. vide order dated 01/10/2011 registered the complaint case under Section 204 of Cr.P.C. for the offences punishable under Sections 418 and 465 of IPC and issued notice against each applicants. 5. Each applicant preferred a revision against order dt. 01/10/2011 and complainant-Prem Kumar Burman also preferred revision against that order for not registering the complaint for the offences under Sections 120-B, 420, 467, 468, 471 of IPC. Learned revisional Court registered the revision as Criminal Revision No.19/2012 and disposed of the same vide order dated 17/02/2016 thereby dismissing the revision filed by all the applicants and allowed the revision of complainant who is respondent herein and also dismissed the prayer made under Section 197 of Cr.P.C. and directed the Court of JMFC to register additional offences punishable under Sections 467, 468, 471, 409, 420 and 120-B of IPC. 6. 6. Being aggrieved by that impugned order, each applicant have filed these petitions on the ground that learned revisional Court committed an error in not considering the prayer made by the applicants. All the applicants did the work while performing official duty. They were well protected under Section 197 of Cr.P.C.. The Court of JMFC could not take cognizance without due sanction under Section 197 of Cr.P.C. There is no offence committed by any of the applicants. The revisional Court is not having any jurisdiction to direct the Court of JMFC to register the case in particular section of the offence. Revisional Court committed an error in directing the Court of JMFC for registering the case in the particular section of IPC. On the basis of evidence submitted before the Court of JMFC by the complainant, no offence is made out against the applicants, therefore, while allowing the petitions set aside the impugned order passed by the revisional Court on 17/02/2016 and also set aside the order dated 01/10/2011 thereby registered the complaint against the applicants because no ingredients of offences is made out against each applicant. 7. Having heard learned counsel for the parties. The applicants have filed copy of impugned order dated 17/02/2016 passed jointly in Criminal Revison No.19/2012, Criminal Revision No.20/2012 and Criminal Revision No.09/2012, copy of order dated 01/10/2011 passed by the Court of JMFC, Copy of complaint made by Prem Kumar Burman against all the applicants and also filed copies of statement of respondent-Prem Kumar Burman, Mathura Prasad Tiwari, Mukesh Nishad (Advocate), Jamuna Prasad (Assistant Revenue Officer, Municipal Corporation, Katni). Perused the whole documents. 8. Complainant-Prem Burman categorically stated that in the year 2004-05 a contract was given for Dainik Bazar Baithki of Rs.18,13,009/-and for the year 200506 of Rs.14,00,000/-, for the year 2006-07 of Rs.16,00,000/-. However, all the applicants conspired and accepted only one single tender for the year 200708 for the amount which was very low in comparison to the previous tenders. All the applicants neither called the meeting of the council of Corporation nor informed any member of the corporation, despite that, made a note that on 22/3/2007 the said tender was approved by the council. All the applicants neither called the meeting of the council of Corporation nor informed any member of the corporation, despite that, made a note that on 22/3/2007 the said tender was approved by the council. They prepared a forged document and issued tender on the basis of forged documents and caused financial loss to the Corporation for providing illegal benefit to the contractor -Sanjay Sarawagi on the basis of only single tender. Witness-Mathura Prasad Tiwari who was then ward member of ward Ramkrishna Paramhans, Katni, categorically stated that all the applicants neither called the meeting nor issued any notice for meeting on 22/3/2007. In the same way witness-Mukesh Nishad who is social activist submitted that he procured copies of the documents from the Municipal Corporation and found that all the applicants committed fraud and caused loss to the Municipal Corporation. 9. Another witness-Jamuna Prasad who is employee of the Municipal Corporation, Katni and worked as Assistant Revenue Officer categorically stated about conduction of tender work. This witness in para-2 categorically stated that in the year 2007-08 contract of Dainik Bazar Baithki has been issued in favour of Sanjay Sarawagi on the basis of only one offer, however, contract could not be given on the basis of one offer. The then Commissioner and Dy. Commissioner who are applicants before this Court had wrongly accepted one tender. This witness further categorically stated that on 22/3/2007 no meeting of council of Corporation had been conducted for accepting this single offer submitted by Sanjay Sarawagi in a very low rate of Rs.12,50,000/-, however, the said value had been fixed by the corporation was Rs.17,71,000/-. In spite of that, on the basis of one tender the applicants accepted the tender of Rs.12,50,000/-at a very low rate. But, this tender was not accepted till 31/03/2008 and department issued a direction to the employees of the Corporation to recover the license fee from the persons who took part in the Dainik Bazar Baithki. This witness further stated that in the note sheet dated 02/03/2007 Dy. Commissioner put a note that this matter should be informed to each ward member, but, did not issue any information and further wrongly mentioned note dated 31/3/2007 by Shivdhar Badgaiya that meeting of council held on 23/03/2007 and council approved single tender and all applicants collusively accepted tender on 09/04/2007. These all proceedings signed by Gokul Khare, Ramesh Singh and other persons. These all proceedings signed by Gokul Khare, Ramesh Singh and other persons. 10. After perusal of the record and the statement collected during enquiry under Section 202 of Cr.P.C., it is reflected that all the applicants took part in issuing a contract of Dainik Bazar Baithki for the year 2007-08. It is also reflected from the evidence that offset value was fixed by the Corporation of Rs.17,71,000/-on the basis of previous contract accepted by the Corporation. It is further reflected that only one offer was received from Sanjay Sarawagi and further tenders were not called for. It is also reflected that there was stagnation to accept one tender, except council of Corporation grants permission for that, however, no meeting of the corporation had been conducted and even no notice had been issued to the members of the Corporation and in spite of that it has been written in the note sheet that after approval of the corporation, one tender can be accepted and all the applicants who are directly or indirectly involved in the act, opened only one offer which was of very low rate i.e. Rs.12,50,000/-. All the applicants did not advise for calling further tender, however, for illegally providing the contract to Sanjay Sarawagi prepared a forged note and accepted the one offer and issued a contract in favour Sanjay Sarawagi for the year 2007-08 for the amount of Rs.12,50,000/-in place of Rs.17,71,000/-thereby causing loss to the Corporation and providing benefit to Sanjay Sarawagi. 11. Learned counsel for the applicants has placed reliance in the case of Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460 in which Hon’ble Apex Court has clearly laid down the conditions that on what basis person can be discharged under Section 227 of Cr.P.C. and also discussed the ambit and scope of Section 482 and Section 397 read with Section 401 of Cr.P.C. However, the present case is mainly based on the dispute that on the basis of complaint filed by respondent-Prem Kumar Burman, the Court of JMFC registered the complaint for the offence punishable under Sections 418 and 465 of IPC against each applicant and issued a notice under Section 204 of Cr.P.C., however, in revision, revisional Court again issued direction to registered the case in addition to the above offences for the offences punishable under Sections 120-B, 409, 420, 467, 468, 471 of IPC. 12. 12. Hon’ble Apex Court in the case of Sheila Sebastian Vs. R. Jawaharaj and another, (2018) 7 SCC 581 discussed the ingredients of the offence punishable under Sections 463, 465 and 464 of IPC and held that there is difference in making of a document than causing it to be made, on the basis of that held that one who makes forged documents can be held liable for the offence punishable under Section 464 of IPC and also held that where there exists no ambiguity, there lies no scope for interference High Court should not interfere. In that case-law learned JMFC framed charges against the accused for the offence punishable under Sections 420, 423 and 465of IPC and convicted under Section 465 of IPC and passed the sentence accordingly. Learned appellate Court dismissed the appeal upholding the order of conviction, High Court, in the revision, set aside the concurrent findings of conviction and acquitted the accused on the ground that requirement of Section 464 of IPC is not satisfied in view of what has been stated under Explanation-2 to Section 464 of IPC, in that situation, Hon’ble Apex Court not interfered in the findings of the High Court. 13. Hon’ble Apex Court in the case of Mohammed Ibrahim and others Vs. State of Bihar and another, (2009) 8 SCC 751 has held that dispute which essentially are civil in nature and filed as criminal complaints and if the averments made in the complaint are assumed to be true do not make out any offence under Sections 323, 341, 420, 467, 471 and 504 of IPC, but may technically shows the ingredients of the offence of wrongfully restraint under Section 341 and causing hurt under Section 323 of IPC, charge framed under Section 420, 467, 471 and 504 of IPC should be quashed and charges in so far as the offence under Section 323 and 341 are left undisturbed. However, in the present case, learned Court of JMFC registered complaint under Section 204 of Cr.P.C. and issued a notice for appearance of the applicants. The applicants assailed the order in these present petitions at the stage of issuing notice for appearance under Section 204 of Cr.P.C. after registering the complaint presented by respondent-Prem Kumar Burman. Section 204 of Cr.P.C. reads as under : “204. The applicants assailed the order in these present petitions at the stage of issuing notice for appearance under Section 204 of Cr.P.C. after registering the complaint presented by respondent-Prem Kumar Burman. Section 204 of Cr.P.C. reads as under : “204. Issue of process.-(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of section 87.” 14. Bare perusal of this Section, it reveals that if learned Magistrate found a sufficient ground for proceeding, the Court may take cognizance and may issue summons or warrant for calling the accused person. Word ‘sufficient ground for proceeding’ denoted that there should be some evidence of any criminal offence. At this stage, the Court is not expected to consider the defence and considering the evidence on merit as a trial. Section 244 of Cr.P.C. reads as under : “244. Evidence for prosecution.-(1) When, in any warrant-case instituted otherwise than on a police report, the accused appears or is brought before a Magistrate, the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. 15. (2) The Magistrate may, on the application of the prosecution, issue a summons to any of its witnesses directing him to attend or to produce any document or other thing. 15. On bare perusal of this section, it reveals that this section provides that when accused appeared or brought before the Magistrate, the Magistrate shall proceed to hear the prosecution case and take all such evidence as may be produced in support of the prosecution. At this stage accused is not permitted to adduce any defence evidence or defence version. He is only having right to cross-examine the person who are produced in the evidence in support of the prosecution. 16. Hon’ble Apex Court in the case of Rishipal Singh Vs. State of Uttar Pradesh and another, (2014) SCC 215 in para-10 considered the scope of Section 482 of Cr.P.C. which reads as under : “10. Before we deal with the respective contentions advanced on either side, we deem it appropriate to have a thorough look at Section 482 Cr.P.C., which reads: “482. Saving of inherent powers of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice”. A bare perusal of Section 482 Cr.P.C. makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of Court and to secure ends of justice. There are no hard-and-fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. It is no doubt true that there can be no straight jacket formula nor defined parameters to enable a Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The Courts have to be very circumspect while exercising jurisdiction under Section 482 Cr.P.C.” In this case Hon’ble Apex Court categorically held that when the prosecution, at the initial stage, is asked to be quashed, the test to be applied by the Court is as to whether uncontroverted allegations as made in the complaint prima facie establish the case, and the High Court should not convert itself into a trial and dwell into disputed question of fact. 17. Hon’ble Apex Court in the case of State of Karnataka Vs. M.Devendrappa and another, (2002) 3 SCC 89 considered the scope of Section 482 of Cr.P.C. for quashing the criminal proceeding and after reiterating the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604 in para-9 has held as under : “9. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See: The Janata Dal etc. vs. H.S. Chowdhary, Dr. Raghubir Saran vs. State of Bihar. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. [See: The Janata Dal etc. vs. H.S. Chowdhary, Dr. Raghubir Saran vs. State of Bihar. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See: Mrs. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceeding. [See: Mrs. Dhanalakshmi vs. R. Prassnna Kumar, State of Bihar vs. P.P. Sharma, Rupan Deo Bajaj vs. Kanwar Pal Singh Gill, State of Kerala vs. O.C. Kuttan, State of U.P. vs. O.P. Sharma, Rashmi Kumar vs. Mahesh Kumar Bhada, Satvinder Kaur vs. State (Govt. of NCT of Delhi) and Rajesh Bajaj vs. State NCT of Delhi).” 18. On the basis of forgoing discussions, and after perusal of evidence recorded under Sections 200 and 202 of Cr.P.C. this Court finds that there are ingredients of the offence reflected from the evidence. When there is sufficient grounds for proceeding against each applicant, learned Court of JMFC vide order dt. 01/10/2007 did not commit any error in registering the complaint under Section 204 of Cr.P.C. against each applicant and did not commit any error in issuing process for appearance of the applicants. But, learned revisional Court vide order dated 17/2/2016 by directing the Court of JMFC to register the case against all the applicants for the offence punishable under Sections 120-B, 409, 420, 467, 468, 471 of IPC in addition to the offence punishable under Sections 418 and 465 of IPC, exceeded the revisional jurisdiction. Learned trial Court already register the complaint for the offence punishable under Sections 418 and 465 of IPC and found that there is sufficient ground to proceed against the each applicant which is sufficient for registering the complaint. At the time of framing of the charge if learned trial Court finds that prima facie which ingredients of which offence is made out, then trial Court can proceed further as per law either to discharge the applicants or framed charges against the applicant or commit the case for further trial to the Sessions Court. Learned revisional Court is not expected to discuss the evidence on merit as it is not the trial Court, however, did not commit any error in not setting aside the order dated 01/10/2011 passed by the trial Court. 19. The question of bar of Section 197 of Cr.P.C. has also been raised in these petitions. All the applicants are free to raise this objection before the trial Court. 19. The question of bar of Section 197 of Cr.P.C. has also been raised in these petitions. All the applicants are free to raise this objection before the trial Court. Since this objection has not been raised by the applicants before the trial Court, this Court is not inclined to deal with this dispute first time at this stage. 20. Hon’ble Apex Court in the case of Sau. Kamal Shivaji Pokarnekar Vs. State of Maharashtra and others, AIR 2019 SC 847 in paras-6 to 9 has held as under : “6. Defences that may be available, or facts/aspects which when established during the trial, may lead to acquittal, are not grounds for quashing the complaint at the threshold. At that stage, the only question relevant is whether the averments in the complaint spell out the ingredients of a criminal offence or not. 7. Relying upon the aforementioned judgments of this Court, Mr. M. N. Rao, learned Senior Counsel appearing for the Appellant submitted that the High Court acted in excess of its jurisdiction in setting aside the order of the Trial Court by which process for summoning the accused was issued. He further submitted that the evaluation of the merits of the allegations made on either side cannot be resorted to at this stage. 8. Mr. R. Basant, learned Senior Counsel appearing for the Respondent Nos.2 to 6 and 8 to 11 submitted that a proper evaluation of the material on record would disclose that the complaint is frivolous. He submitted that the dispute is essentially of a civil nature and the ingredients of the offences that are alleged against the Respondent are not made out. By making the above statement, Mr. Basant commended to this Court that there is no warrant for interference with the judgment of the High Court. 9. Having heard the learned Senior Counsel and examined the material on record, we are of the considered view that the High Court ought not to have set aside the order passed by the Trial Court issuing summons to the Respondents. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. A perusal of the complaint discloses that prima facie, offences that are alleged against the Respondents. The correctness or otherwise of the said allegations has to be decided only in the Trial. At the initial stage of issuance of process it is not open to the Courts to stifle the proceedings by entering into the merits of the contentions made on behalf of the accused. Criminal complaints cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If the ingredients of the offence alleged against the accused are prima facie made out in the complaint, the criminal proceeding shall not be interdicted.” 21. In view of aforementioned discussions and the law laid down by Hon’ble Apex Court in the above cited case-laws, all these petitions are partly allowed only on the point of direction issued by the revisional Court in Criminal Revision No.19/2012 (Prem Burman Vs. Gokur Khare and others), hence the directions issued by the revisional Court to the trial Court for registering the offence under Sections 120-B, 409, 420, 467, 468, 471 of IPC is hereby set aside and remaining part of the order dated 17/02/2016 is hereby not interfered and the order of trial Court dated 01/10/2011 needs no interference. 22. Let copy of this order be enclosed in the record of each petition. 23. Consequently, all the interlocutory applications, if any pending, stand dismissed.