Gopal Verma vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding including the order taking cognizance dated 04.09.2020 passed by the learned Judicial Magistrate 1st Class, Pakur in connection with G.R. Case No. 761 of 2011 arising out of Pakur (Town) P.S. Case No. 299 of 2011 whereby and where under, the learned Judicial Magistrate 1st Class, Pakur has taken cognizance for the offences punishable under Sections 406, 409, 420, 353 and 34 of Indian Penal Code and charges have also been framed for the said offences but no witness has been examined, as submitted by the learned counsel for the petitioners.

The allegation against the petitioners is that the petitioners being associated with M/s. E. Meditek (TPA) Service Limited were entrusted with the work of preparing smart cards to be distributed to the beneficiaries inter alia for the health insurance up to the extent of Rs.30,000/- per person through such cards. The allegation against the petitioners is that the though the petitioners were to prepare and distribute 88,381 such smart cards but they took photographs of 48,499 persons but prepared smart cards of only 36,766 persons but did not distribute all of them and dishonestly retained smart cards with them in which recharge of Rs.30,000/- of the government money was made fraudulently.

After completion of investigation, police found that the allegation against the petitioners including the petitioner no.4 and 5 who were not named in the FIR having committed the offences punishable under Sections 406, 409, 353, 420 and 34 of Indian Penal Code and submitted charge sheet against the petitioners and basing upon the same, the learned Judicial Magistrate 1st Class, Pakur has taken cognizance of the said offences.

It is submitted by the learned counsel for the petitioners by relying upon the judgment of Hon’ble Supreme Court of India in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation reported in (2015) 4 SCC 609 that in paragraph no. 44 therein, it has been held by the Hon’ble Supreme Court of India that when the company is the offender, vicarious liability of the directors cannot be imputed automatically, in the absence of any statutory provision to this effect. It is next submitted by the learned counsel for the petitioners by relying upon the judgment of Hon’ble Supreme Court of India in the case of Ravindranatha Bajpe vs. Mangalore Special Economics Zone Limited & Ors. reported in (2022) 15 SCC 430 wherein in paragraph no. 9, it has been held by the Hon’ble Supreme Court of India that merely because the accused persons of that case are chairman, managing director, executive director, deputy general manager, planner & executor automatically they cannot be held vicariously liable unless there are specific allegation and averments against them with respect to their individual role.

It is next submitted by the learned counsel for the petitioners that the allegation against the petitioners are false and though the contract was given to the E. Meditek company by Oriental Insurance Company but neither the Oriental Insurance Company nor E. Meditek company have been made accused in this case. It is further submitted by the learned counsel for the petitioners that the even if the entire allegation made against the petitioners are considered to be true in their entirety, still none of the offences in respect of which the learned Judicial Magistrate 1st Class, Pakur has taken cognizance is made out against the petitioners. Hence, it is submitted that the prayer as made by the petitioner in this criminal miscellaneous petition be allowed.

Learned Special Public Prosecutor on the other hand opposes the prayer as made by the petitioner in this criminal miscellaneous petition and submits that the facts of this case are entirely different from the fact of Sunil Bharti Mittal vs. Central Bureau of Investigation (supra) in the sense that in this case the petitioners have not been found having committed the offence in respect of which police has submitted charge sheet against them merely because they are associated with E. Meditek (TPA) Services Limited rather during the investigation of the case, police found serious allegation against them of having committed embezzlement of government money relating to recharge of smart cards of Rs.30,000/-per cards of government money even though the said cards is not distributed to the beneficiaries and were retained by the petitioners in furtherance of their common intention, illegally and they have also committed criminal breach of trust by dishonestly misappropriating huge amount of government money by ensuring fraudulent recharge of the cards which instead of being distributed by them to the beneficiaries were dishonestly retained by them. It is next submitted by learned Spl. P.P. that the facts of this case are different from the facts of Ravindranatha Bajpe vs. Mangalore Special Economics Zone Limited & Ors. (supra) because that was a complaint case and herein in this case as categorically mentioned by the learned Judicial Magistrate 1st Class, Pakur in the paragraphs of the case diary in which the statement of the witnesses recorded by the I.O. of the case appears and the witnesses have named the petitioners to be the persons who committed the offences which were found to be true against them by the I.O. of the case. It is lastly submitted by learned Spl. P.P. that besides illegally recharging Rs.30,000/- per card of the cards which were not distributed to the beneficiaries, Rs.30/- were also collected by the accused persons from each of the beneficiaries illegally and the petitioners also embezzled public money which were provided to them for the purpose of distribution of angan badi sevika. Therefore, it is submitted that at this nascent stage quashing of the entire criminal proceeding relating to serious offences of embezzlement of huge amount of government money ought not to be allowed. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after going through the materials in the record, this Court is of the considered view that unlike the judgments relied upon by the learned counsel for the petitioners as already referred to above in this case, the company has not been made accused so far because the police during the investigation of the case apparently did not find any involvement of the company as such in commission of the offences but there is direct and specific allegation against the petitioners themselves, in their individual capacity having committed the offences alleged and the same was found to be true by the police and the offences are serious offence of embezzlement of government money by recharging smart cards to the extent of recharging Rs.30,000/- per cards of several thousand cards which were illegally retained by the petitioners in furtherance of their common intention instead of distributing the same to the beneficiaries.

Under such circumstances, this Court is of the considered view that the ratio of the judgments relied upon by the learned counsel for the petitioners is not applicable to the facts of this case; as unlike that case, in this case, the learned Judicial Magistrate 1st Class, Pakur has taken cognizance of the offences consequent upon the submission of the charge sheet against the petitioners after the police collected sufficient evidence against them, as mentioned in the different paragraphs of the case dairy which was also being referred to in the order of the learned Judicial Magistrate 1st Class, Pakur; therefore this Court is of the considered view that this is not a fit case where the entire criminal proceeding including the order taking cognizance dated 04.09.2020 passed by the learned Judicial Magistrate 1st Class, Pakur in connection with G.R. Case No. 761 of 2011 arising out of Pakur (Town) P.S. Case No. 299 of 2011 be quashed and set aside.

Accordingly, this criminal miscellaneous petition being without any merit is dismissed.