Research › Search › Judgment

Jharkhand High Court · body

2023 DIGILAW 692 (JHR)

Gouri Shankar Sah v. State of Jharkhand

2023-05-12

GAUTAM KUMAR CHOUDHARY

body2023
JUDGMENT : GAUTAM KUMAR CHOUDHARY, J. 1. Both the aforesaid Criminal Revision applications arise out of the same criminal case and have been preferred on identical grounds and similar legal issues are involved, therefore have been heard together and shall be disposed of by common order. 2. Cr. Revision No. 1051 of 2018 is filed against the order dated 28.06.2018 passed by learned Special Judge, ACB, Dumka in Misc. Crl. Application No. 208 of 2018 arising out of Vigilance Case No. 07 of 2003 in Ranchi Vigilance P.S. Case No. 06 of 2003 registered under Sections 420, 467, 468, 471, 120B, 109, 201, 424 and 477A IPC and Section 13(2) read with Section 13(1)(d) of the P.C. Act, whereby and whereunder, application preferred by the petitioner under Section 239 Cr.P.C. for discharge has been rejected. The petitioners further pray to challenge the order dated 04.08.2018 passed by learned Special Judge, ACB, Dumka whereby and whereunder charge has been framed under Section 468 read with Sections 120B, 420 of the IPC and under Section 13(2) read with Section 13(1)(d) of the P.C. Act. 3. Cr. Revision No. 1052 of 2018 has been filed against the order dated 28.06.2018 passed by learned Special Judge, ACB, Dumka in Misc. Crl. Application No. 210 of 2018 arising out of Vigilance Case No. 07 of 2003 registered under Sections 420, 467, 468, 471, 120, 109, 201, 424 and 477A IPC and Section 13(2) read with Section 13(1)(d) of the P.C. Act, whereby and whereunder, application preferred by the petitioners for discharge under Section 239 Cr.P.C. has been rejected. The petitioners further prays to challenge the order dated 04.08.2018 passed by learned Special Judge, ACB, Dumka whereby and whereunder charge has been framed under Section 468 read with Sections 120B, 420 of the IPC and under Section 13(2) read with Section 13(1)(d) of the P.C. Act against the petitioners. 4. Petitioners are the beneficiaries retired teachers/headmasters, and the allegation is that they had withdrawn higher pension on enhanced scale, in collusion with co-accused, District Superintendent of Police, Pakur. This was done by manipulating and preparing wrong and ante-dated selection grade without any endorsement of Establishment Committee. 5. 4. Petitioners are the beneficiaries retired teachers/headmasters, and the allegation is that they had withdrawn higher pension on enhanced scale, in collusion with co-accused, District Superintendent of Police, Pakur. This was done by manipulating and preparing wrong and ante-dated selection grade without any endorsement of Establishment Committee. 5. This matter came into light on the letter of the General Secretary, District Primary Education Association, Pakur and the Police case was registered under the orders of this Court passed in W.P. (PIL) No. 2435 of 2001 against the then District Superintendent of Education and 25 others. 6. It is submitted by learned counsel on behalf of the petitioners that dishonest intention which is sin-qua-non to make out an offence of fraud or forgery has not been disclosed in the FIR. The petitioners are Teachers/Headmaster and excess payment was made pursuant to the order of the D.S.E. 7. It is further submitted that in the Writ Petition being W.P. (S) No. 1481 of 2003 with W.P. (S) No. 3045 of 2003 with W.P. (S) No. 3668 of 2003 and W.P. (S) No. 4782 of 2003, the Co-ordinate Bench of this Court vide order dated 22.01.2009 quashed the Letter issued vide Memo No. 252 dated 27.08.1998 issued by the District Superintendent of Education, Pakur by which the petitioners were given enhanced Scale. The Court observed as follows “The fact remains that in the instant case the alleged excess amount has been paid not because of any misrepresentation or fraud on the part of the petitioners instead the payment was being made bona-fide pursuant to orders passed from time ti time by the Court as well as by the authorities.” The order of recovery of excess payment was set aside. 8. Quashing petition has been opposed by learned counsel appearing on behalf of A.C.B. Ms. Priya Shrestha. It is submitted that the petitioners are the beneficiaries and excess payment was made to them and also they were given promotion which was found to be later on illegal. It is submitted that with respect to the observation by this Court in W.P. (S) No. 1481 of 2003 and other such cases that the said petition was filed against the order for recovery of excess amount paid to the petitioners in which order of recovery was set aside. 9. It is submitted that with respect to the observation by this Court in W.P. (S) No. 1481 of 2003 and other such cases that the said petition was filed against the order for recovery of excess amount paid to the petitioners in which order of recovery was set aside. 9. The matter regarding criminal liability was not before that Court and no documents regarding F.I.R. charge sheet were placed, therefore, the findings recorded in that case, shall not be binding in the present case. 10. As per the prosecution case disclosed in the F.I.R. the then District Superintendent of Education under a criminal conspiracy with the beneficiary teachers and the staffs of the office of the D.S.E. granted financial benefits to the petitioners and others by way of excess payment on their salary and pension amount by giving them promotion even after the date of retirement. The excess payment to the tune of Rs. 2,59,680/- was detected in the audit leading to the institution of the present case. After investigation, charge sheet has been submitted and cognizance has been taken. 11. Matter for consideration is whether payment of excess salary/pension without anything more, can entail criminal? 12. There is no material to show that the petitioners had connived with the authorities to get the benefits in pay on the basis of enhanced scale. After excess payment was detected by order dated 27.08.1998 (Annexure-2), order for recovery of the excess amount was set aside by this Court in W.P. (S) No. 1481 of 2003 wherein it was held that there was no misrepresentation or fraud on the part of these petitioners. Merely being beneficiaries in case of excess payment of salary/pension without anything more to show that he/she was responsible for fraud or misrepresentation in deriving the said benefit, will not entail criminal liability. The prosecution is not sustainable for the reasons discussed above. 13. The impugned order is set aside. 14. Both criminal revision petitions are allowed. 15. Pending I.A. if any, stands disposed of.