Ashok Kumar Chouhan vs State Of Madhya Pradesh

Virender Singh J.:-

The petitioner has approached this court for quashing the FIR bearing Crime Number 20/2010 under Sections 420, 467, 468, of IPC and 13(1)(d),

r/w 13(2) of the Prevention of Corruption Act, 1988 (for short the Act, 1988) registered at Police Station Neemuch Cantt., District Neemuch and

charge-sheet filed and all proceedings of Special S.T. No.03/14 pending before Special Judge (P.C. Act), Neemuch alongwith the order of Special

Judge dated 22.07.2017 whereby the learned judge has rejected the plea of the petitioner for quashing the proceedings pending against the petitioner.

Facts relevant to the present controversy in short are that the petitioner who is a public servant was posted as Chief Executive Officer (CEO) of

Jila Punchayat, Neemuch from August, 2007 to June, 2009. One Govardhan Pandya filed a complaint against him making allegation that he spent more

money released for implementation of the “Mukhyamantri Majdoor Surksha Yojana, 2007†(hereinafter referred to as the 'Scheme') which came

into effect from 11.10.2007, in the administrative head to get the stationary printed from a particular press against the direction of the government not

to spend more than 4% of the money released for the scheme and thus, caused loss to the public exchequer to the tune of Rs. 4,95,950/- and

misappropriated public money by forging and fabricating false documents and also by abusing his authority as a public servant.

The Police Station- Neemuch Cantt. registered Crime No.20/10 under sections 420, 467, 468, IPC and 13(1)(d) r/w S. 13(2) of the Prevention of

Corruption Act, 1988 against the petitioner and the then account officer of Jila Punchayat, Neemuch Mr. P.C. Ghavri on 10.01.2010. After the

investigation, the police concluded that there was a direction issued by the administrative department of the 'Scheme' i.e. Social Justice and Disable

Persons Welfare Department, Government of M.P. that the administrative expenses of the 'Scheme' shall not be more than 4% of the funds allotted

for the 'Scheme', while the petitioner and the co-accused (P.C. Ghavri), spent Rs.5,30,400/-out of Rs.8,61,311/- only for printing stationery, which

comes about 61% of the amount allotted for the 'Scheme'. 4% of Rs.8,61,311/- comes to Rs.34,450/- against which Rs.5,30,400/- were spent in the

administrative head and in this way, the petitioner and co-accused caused loss to the public exchequer by abusing their authority and by forging false

documents.

Both the parties; the petitioner and the prosecution; have vehemently argued to support their case. We have considered rival contentions and also

perused the record.

The law is well settled as to what are the powers or limitations of this Court while dealing with the petitions for quashment of criminal proceedings.

The power under Section 482 of Cr.P.C. is extra ordinary in nature and it is settled proposition of law that this power has to be exercised sparingly

and with great care and caution only to give effect to an order under the Code or to prevent abuse of process of the Court or to otherwise secure the

ends of justice and only in the cases where attaining facts and circumstances satisfy that possibilities of miscarriage of justice will arise in case of non-

use of power. In quashing the proceeding, the High Court has to see whether the allegations made in the complaint, if proved, make out a prima facie

offence. In that case only the Court should be permitted to proceed with the trial to establish the liability. At this stage sifting or weighing of the

evidence is neither permitted nor expected. While considering the petition under Section 482 of Cr.P.C., the Courts have to be strictly confined to the

scope and ambit of the provision.

A question as to whether quashing of the FIR filed against the respondent - Bhajan Lal for the offences under Sections 161 and 165, IPC and

Section 5(2) of the Prevention of Corruption Act was proper and legal, came up for consideration before the Hon’ble Supreme Court in State of

Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 (1992 AIR SCW 237 : AIR 1992 SC 604). Reversing the order passed by the High Court, the Apex

Court explained the circumstances under which such power could be exercised. it was explained that such power could be exercised where the

allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just

conclusion that there is sufficient ground for proceeding against the accused. It is observed in para 102 as under:

In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated

by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of

the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could

be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down

any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad kinds of cases

wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety

do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence,

justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section

155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the

commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted

by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever

reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is

instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing

efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for

wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

This propositions of law has later been reiterated in Mahesh Chaudhary v. State of Rajasthan (2009) 4 SCC 443), Shakson Belthissor v. State of

Kerala and Anr, AIR 2010 SC (Supp) 864 and Mosiruddin Munshi v. Md. Siraj AIR 2014 SC 3352 and in many other cases.

It is held in Krishnanan Vs. Krishnaveni (1997 AIR SCW 950 : AIR 1997 SC 987) that when the High Court on examination of the record finds

that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is

failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is the duty of the High Court to have it corrected at the

inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High

Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power. It may be exercised

sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.

The general principle of criminal jurisprudence is that element of mens rea and intention must accompany the culpable act or conduct of the

accused. Criminal or dishonest intention or corrupt mind is prerequisite to constitute any offence under the Act, 1988. The Hon'ble Supreme Court

discussed in C. K. Jaffer Sharief v. State AIR 2013 Supreme Court 48 that:

A fundamental principle of criminal jurisprudence with regard to the liability of an accused which may have application to the present case is to be

found in the work ""Criminal Law"" by K.D. Gaur. The relevant passage from the above work may be extracted below:

Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin

maxim, actus non facit reum, nisi mens sit rea. It signifies that their can be no crime without a guilty mind. To make a person criminally accountable it

must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally

blameworthy attitude of mind. Thus, there are two components of every crime, a physical element and a mental element, usually called actus reus and

mens rea respectively.

It has already been noticed that the appellant besides working as the Minister of Railways was the Head of the two Public Sector Undertakings in

question at the relevant time. It also appears from the materials on record that the four persons while in London had assisted the appellant in

performing certain tasks connected with the discharge of duties as a Minister. It is difficult to visualise as to how in the light of the above facts,

demonstrated by the materials revealed in the course of investigation, the appellant can be construed to have adopted corrupt or illegal means or to

have abused his position as a public servant to obtain any valuable thing or pecuniary advantage either for himself or for any of the aforesaid four

persons. If the statements of the witnesses examined under Section 161 show that the aforesaid four persons had performed certain tasks to assist the

Minister in the discharge of his public duties, however insignificant such tasks may have been, no question of obtaining any pecuniary advantage by

any corrupt or illegal means or by abuse of the position of the appellant as a public servant can arise. As a Minister it was for the appellant to decide

on the number and identity of the officials and supporting staff who should accompany him to London if it was anticipated that he would be required to

perform his official duties while in London. If in the process, the Rules or Norms applicable were violated or the decision taken shows an extravagant

display of redundance it is the conduct and action of the appellant which may have been improper or contrary to departmental norms. But to say that

the same was actuated by a dishonest intention to obtain an undue pecuniary advantage will not be correct. That dishonest intention is the gist of the

offence under section 13(1)(d) is implicit in the words used i.e. corrupt or illegal means and abuse of position as a public servant. A similar view has

also been expressed by this Court in M. Narayanan Nambiar v. State of Kerala1while (1963) Supp (2) SCR 724 : (AIR 1963 SC 1116) considering

the provisions of section 5 of Act of 1947. If the totality of the materials on record indicates the above position, we do not find any reason to allow the

prosecution to continue against the appellant. Such continuance, in our view, would be an abuse of the process of court and therefore it will be the

plain duty of the court to interdict the same.â€​

Coming back to the case in hand, in the present matter two distinct sets of allegations have been made by the prosecution. First; Cheating

alongwith fabrication of forged document and Second; Abuse of authority of public office of the Chief Executive Officer (CEO), Jila Panchayat,

Neemuch.

So far as first allegation is concerned, we are of the firm view that the prosecution has miserably failed to point out any document which is forged

by the petitioner or to produce any evidence to show that any fraud was committed by the petitioner in this case. Absolute lack of evidence regarding

malafide intention (intention to cause damage or injury to the public or to any person or dishonest or fraudulent intention as defined in Section 463 &

464 of IPC) further buttress our conclusion.

In the present case, the prosecution has collected guide line of the scheme, order placed by the petitioner to print the requisite forms and

stationery, bills submitted by the printing press, note-sheets of the department regarding payment of bills and the payments made by the department

etc. But creation or existence of all these documents either admitted or not disputed by the petitioner. This is not the case of the prosecution that the

petitioner made or altered or has signed, sealed or executed these documents or part thereof with intent that it be believed to be made, signed, sealed,

executed or transmitted by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed or executed.

Therefore, charges under Sections 467 or 468 of the IPC hold no ground.

Cheating punishable under Section 420 of the IPC is defined in Section 415 of IPC, which reads thus:-

Cheating.â€"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person,

or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not

do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation

or property, is said to “cheatâ€​.

Explanation.â€"A dishonest concealment of facts is a deception within the meaning of this section.

None of the element necessary to constitute the offence as defined in Section 415 of IPC is available on record. Nothing is there to show that the

petitioner has cheated any person as defined in Section 415 of IPC. Thus, allegation regarding Section 420 of the IPC also has no force in the present

matter.

There is no dispute that there was a direction in vision document of the 'Scheme' that 4% of the amount allocated for implementation of the

'Scheme' can be spent in administrative heads, but nothing is there to show as to what does it mean. No document is on record to show as to what

was the amount allocated for this 'Scheme', so that 4% of that amount be calculated for such purpose. The Guide line is also not clear on the point as

to whether this 4% should be the amount of each installment released for the 'Scheme' or of the total amount allocated for the 'Scheme'. In that

condition, it cannot be interpreted as 4% of the amount of each installment released by the Government for implementation of the 'Scheme' to charge

the petitioner.

It is not disputed by the prosecution that prior to implementation of the 'Scheme' there was no data available with the Government about numbers

of the agricultural labourer covered under the 'Scheme'. It is also not disputed by the prosecution that the Collector, District Neemuch issued Letter

No.1632-1633/ SC-2-07/Neemuch dated 07.11.2007 estimating and suggesting that expected numbers of beneficiaries of this scheme may be 75,000

to 1,00,000/-. Taking note of this suggestion, the petitioner ordered to print necessary stationery like applications forms, registration cards and photo

identity cards in the numbers commensurate to the suggestion of the Collector i.e. 75,000 each and also 250 registers for maintaining the record of

registration. It is pertinent to note that there were three Janpad Panchayats i.e. Neemuch, Manasa and Jawad under the jurisdiction of Jila Panchayat,

Neemuch and for each block 25,000 forms were got printed by the petitioner. Keeping in view the suggestion of the collector, this cannot be said

disproportionate or unwarranted in number.

The State Government had issued directions to the Jila Panchayats to be ready with all paraphernalia for effective implementation of the 'Scheme'.

All Janpad Panchayats were directed by the Government to place their requirement of stationery under the 'Scheme' before the Jila Panchayat. In

such conditions, it was necessary for the petitioner to be ready to meet all the exigencies so that no hindrance would be caused in implementation of

ambitious 'Scheme' of the Government meant for welfare of the downtrodden.

The fact that the printing press before whom the order was placed by the petitioner is established and being operated with the assistance and help

of Social Justice and Disable Persons Welfare Department, Government of M.P. and a direction was issued by the Commissioner vide Letter No.710

dated 12.01.2005 (Annexure P/9) to place such order to that press only. The petitioner has followed that direction. Thus, all money had gone from one

Government department to another as per the direction of the Government through a proper, valid and known channel and there is least possibility of

pilferage of this money or under hand dealing between the parties. Even otherwise, no document is produced by the prosecution to prove or

demonstrate or to even assume that the petitioner obtained any gratification or undue advantage from the impugned transaction with the printing press

for himself or for any other person.

According to the complainant itself, about 16,000 beneficiaries were registered for extending benefits of the 'Scheme'. If we calculate the

stationery required for all these 16,000 people, the approximate expenditure at the rate of the printing given by the concerned printing press as there is

no allegation that those rates were not proper, the total expenditure comes to Rs.56,640/- while 4% of the total amount released for the scheme till

date of the complaint Rs.8,61,311/- comes to Rs.34,452/- which means that in any case, this expenditure required to be done on the stationery could

not have been limited to the limit settled by the guideline. Thus there was an inherent contradiction in the guide line of the 'Scheme' and the petitioner

cannot be faulted or cannot be held liable for that.

There is no dispute that as per requirement placed by the Janpad panchayats, requisite stationery was supplied to them. There is also no dispute

that remaining stationery is still lying with the Jila Panchayat. Therefore, there appears no embezzlement on this count also.

Thus, all the documents produced by the prosecution are not able to show that by alleged expenditure, the petitioner obtained any undue advantage

or pecuniary benefit for himself or for any other person by abusing his official authority or he dishonestly or fraudulently misappropriated any property

entrusted to him. The decision taken by the petitioner may be wrong but that was an administrative decision, which may be a ground for departmental

action but that cannot be made basis for any criminal action particularly in the absence of any criminal intention or criminal mind behind the alleged

action. In the given fact and attaining circumstances, offence under the Act, 1988 more particularly the offence under Section 13(1)(d) of the Act is

not made out. Therefore, continuance of the prosecution is nothing but abuse of process of law and we find ourselves duty bound to quash such type

of prosecution which is manifestly abuse of process of law.

In view of the aforesaid, we do not find it necessary to consider other grounds raised by the petitioner like malice or ill-intention of the complainant

or one of his colleague Mr. Hemant Kumar Dilliwal against whom he had taken stern administrative action or the discrepancies regarding registration

of the offence by the Police Station- Neemuch Cantt. or registration of two FIR for the same crime.

Keeping in view the settled proposition of law and the evidence available on record, we are of the considered opinion that the allegations made

against the petitioner are baseless on the face of it. The case of the petitioner categorically falls under the circumstances; which are deliberated by

Hon’ble the Supreme Court in Bhajan Lal case (supra) under which exercise of extraordinary powers provided under section 482 Cr.P.C. is held

justified. Facts leading to charges are not proved and the element of mens rea and intention is totally lacking. In absence of any element of

“cheating†or ""forgery"" or ""making of false document"" and also looking to the relevant provisions of the Act, 1988 no case is made out on the

basis of the documents produced by the prosecution itself to justify the criminal action taken against the petitioner. The allegations made in the FIR

against the petitioner are absurd and inherently improbable. If the prosecution is permitted to be continued, grave miscarriage of justice would ensue. It

is, therefore, to meet the ends of justice or to prevent abuse of the process of law; we hereby allow the petition and quash the FIR bearing Crime

Number 20/2010 under sections 420, 467, 468 of the IPC and 13(1)(d), r/w. 13(2) of the Prevention of Corruption Act, 1988 registered at Police

Station Neemuch Cantt., District Neemuch against the petitioner and all subsequent proceedings taken or pending before Special Judge (Prevention of

Corruption Act), Neemuch of Special S.T. No.03/14 as well as the order dated 22.07.2017 passed by the Special Judge (Prevention of Corruption

Act), Neemuch qua the petitioner.