Kalika Singh vs The State of Bihar

Mridula Mishra, J.—Heard the counsel for the petitioner and the counsel appearing for the Vigilance. Petitioner is a Central Government Employee in T.C.I.L. under the Ministry of Communication and at present Joint General Manager posted at Ahmedabad. During the period, 1987 to 2001, he was posted at Patna as Principal, Indira Gandhi Electronics Training Centre. On 20.8.2002, Vigilance P.S. Case No. 7 of 2002 was registered by Sri Shiv Kumar Jha, Deputy Superintendent of Police-cum-Officer-in-Charge, Vigilance Police Station, Patna on the basis of written report of the same day made by Sri Indra Nand Mishra, Deputy Superintendent of Police (Cabinet) Vigilance Department, Patna.

The prosecution case disclosed in the First Information Report is that Sri Ashok Kumar Singh, I.A.S., Managing Director, Bihar State Financial Corporation set up two institutions, namely, "SAMBEDNA AND GREEN EARTH INDIA" with the help of his close persons. He misused his position as Public Servant for his personal benefits and obtained donation from several loanees and entrepreneurs of Bihar State Financial Corporation. He indulged in forgery and destroyed the evidence. In the F.I.R. several persons have been named including the petitioner. Counsel for the petitioner submits that on perusal of the details in the F.I.R. in nutshell allegations levelled against the petitioner is that accounts of income and expenditure was not maintained and the donations received from the various industrialists were spent not for meeting the object of organization but as per wish of the members. Second allegation is that in conspiracy with the main accused, Ashok Kumar Singh, he tampered the records to show that Ranvijay Kumar was the President of the two organizations, namely, "SAMVEDNA AND GREEN EARTH" from very inception. Third allegation against the petitioner appears to the effect that he conspired with Ashok Kumar Singh who alongwith persons close to him has floated two organizations and misused his official position to receive the donation from the industrialists connected with Bihar State Financial Corporation. Last allegation is that the petitioner did not cooperate with the investigating agency as he did not appear for interrogation in March, 2002.

Contention of the counsel for the petitioner is that from perusal of the F.I.R, as well as the charge-sheet it is apparent that Ashok Kumar Singh is in the centre of all allegations and he misused his official power and position for collecting funds in the name of two organizations. So far the petitioner is concerned, he has not committed any offence for which he can be implicated in the case. His implication is purely on extraneous considerations. Two non-governmental organizations, "SAMVEDNA AND GREEN EARTH INDIA" were started in the year, 1994 by Ashok Kumar Singh, I.A.S. The purpose of the organization SAMVEDNA was basically to provide relief to the 1989 Bhagalpur Riots victim and to undertake social work and service for the poor, needy and down trodden as well as provide legal aid to them. The aim of "GREEN EARTH INDIA" was environmental improvement and conservation of natural resources which also involved plantation and extension of greenery. Initially, Ashok Kumar Singh himself was the President of these two organizations and the Secretaries were Devendra Kumar Singh and Mr. Srawan Kumar, advocate. On 3rd March, 1996, petitioner joined "SAMVEDNA" as Secretary after being convinced by Ashok Kumar Singh that it is a charitable organization working for welfare and rehabilitation of 1989 Bhagalpur Riots as well as for the humanity in general. Mr. Ashok Kumar Singh persuaded and convinced the petitioner that he just wanted that some good people should lend their names to the organization so that these organizations will have goodwill among the people. Petitioner joined as honorary Secretary of "SAMVEDNA" for the purposes of good cause. The organization was funded by charities and donations from individuals and not a single paise of monetary assistance was ever sought or received from any Government body either in cash or in kind. In the year, 1995, Ashok Kumar Singh resigned as the President of "SAMVEDNA" and Mr. Ranvijay Kumar was elected in his place. In the year, 1996 the then Secretary, "SAMVEDNA" Mr. Devendra Kumar Singh resigned and the petitioner was elected as new Secretary. On 3.3.1996, the petitioner joined as honorary Secretary and continued up to 31.7.2001. So far the allegation of non-production of account is concerned, the maintenance of accounts was the function of the treasurer. It was not possible for the petitioner to give accounts of receipt and disbursement on the relevant date as by that time, the petitioner was transferred and posted in the border area of Rajasthan. During the period of petitioner''s Secretaryship, whatever donations were received, those were invested in mutual fund and bonds in the name of organization, and this also has been found during the preliminary inquiry of the Vigilance Department. No evidence has been collected showing misappropriation of money by this petitioner or any other members. Money was never invested in any private accounts. It was not used for personal expenses rather the donations were invested to create a corpus so that projects on large scale may be taken up in future. It has been submitted that prima facie, no case is made out under the offences alleged against the petitioner as no evidence has been collected to indicate that being a Government servant, he misused funds of the organization. Further submission is that so far the contribution part is concerned, there is no evidence that the organization received any Government aid or contribution. It was all private individuals who contributed and donated for these two organizations. These contributors have never complained regarding the misuse or defalcation of their contributed money.

Petitioner''s case is that from a careful perusal of the F.I.R. and the evidence collected during investigation as well as from the charge-sheet, neither any offence under Indian Penal Code or under Prevention of Corruption Act is made out. The Special Judge, Vigilance has mechanically taken cognizance against the petitioner.

Statement made by the complainant/informant'' in the F.I.R. is that all accused have committed the offence u/ss. 465, 466 of the Indian Penal Code. If a joint act of forgery is alleged in that case unless evidence showing specific role played by individual accused in making or manufacturing of the document in question is collected, they cannot be prosecuted for collective liability. So far the petitioner is concerned, there is no allegation of either making or manufacturing of any forged documents as such, no offence u/ss. 465 & 466 of the Indian Penal Code is prima facie made out.

Similarly, there is no act of inducement is alleged against the petitioner in any manner. No person has delivered any property to him. There is no allegation in the present case either of inducement to deliver any property against the petitioner or against any other member of the society except against Mr. Ashok Kumar Singh, I.A.S. who was the President of "SAMVEDNA" in the year, 1995. There is allegation against him that he obtained donations/funds from industrialists, he was in a position to provide pecuniary advantage to such industrialists who contributed or donated in the fund of organizations. Since the allegation of deception. and thereby inducing anyone to deliver any property is not against the petitioner, there is no dishonest intention to do any such act as alleged against the petitioner, no offence u/s 420 of the Indian Penal Code is made out.

Counsel for the petitioner submits that for making out an offence u/s 471 IPC, there must be evidence showing fraudulent or dishonest use of forged document as genuine, having full knowledge of the same. In the F.I.R, there is no such allegation that petitioner has knowingly used any forged document as genuine. He never signed any such document prior to his joining in March, 1996 or after his resignation in August, 2001.

Section 477A of the Indian Penal Code relates to falsification of accounts. In order to bring home the offence u/s 477A I.P.C, the prosecution has to establish: (i) that at the relevant time, the accused was a clerk, officer or servant, (ii) that acting in that capacity, he destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or accounts which belonged to or is in possession of his employer or has been received by him for and on behalf of his employer, etc. (iii) that he did so willfully and with intent to defraud. There is neither any such allegation nor any evidence. The petitioner, in no manner, comes within the ambit of Section 477A of the IPC. There was no employer in the present case and an honorary Secretary of a society does not come within the mischief of this Section. Further, it has been submitted that so far the offence u/s 109 of the IPC is concerned, it is not made out against the petitioner in absence of any material to show that there was an instigation by the petitioner or there was any intention either in aiding or in commission of the offence.

Another contention is that in the present case, the allegation of conspiracy u/s 120B of the IPC has been fastened although there is no prima facie materials to proceed against the petitioner on false allegations of conspiracy. The offence u/s 201 of the IPC has also been alleged against all the accused but so far the petitioner is concerned, there is prima facie no ingredient for making out an offence u/s 201 IPC. An accused can be said to have committed an offence u/s 201 of the IPC only when the accused knows and had reason to believe that such an offence had been committed. He has caused evidence to disappear with the intention of screening the offender from legal punishment. The word "causing disappearance" implies some active exertion by the accused in that direction and not a mere passive acquiescence or neglect. There is nothing to show that there are ingredients for making out an offence against the petitioner u/s 201 of the IPC.

Further contention is that one of the offence alleged in the F.I.R. is u/s 13(1)(d) of the Prevention of Corruption Act. To attract the provisions of Section 13(1)(d) of the Prevention of Corruption Act is concerned, there must be some evidence to show that the public servant by corrupt or illegal means has obtained for himself or for any other person any valuable thing or pecuniary advantage or by abusing his position as a public servant, obtained for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant, obtained for any person any valuable thing or pecuniary advantage without any public interest. There must be evidence on record that the accused has obtained for himself or for any other person valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as public servant. In the entire prosecution story, there is no such allegation or evidence to show that the petitioner has abused his position as a public servant for obtaining either for himself or for any other person any valuable thing or pecuniary advantage. Entire investigation revolves around Ashok Kumar Singh but so far the petitioner is concerned, only reason for his false implication is that he was an old acquaintance of Ashok Kumar Singh which is apparent from the chargesheet. Counsel for the petitioner has also submitted that in a similar situation, the order taking cognizance against Ranvijay Kumar who was the President of both the organizations, namely, "SAMVEDNA" and "GREEN EARTH INDIA" has been quashed by order dated 21.6.2006 passed in Cr. Misc. No. 37242 of 2005.

Counsel appearing for the Vigilance has submitted that there are specific allegations against the petitioner showing that he was the part of conspiracy. He was the Secretary of organization "SAMVEDNA" in the initial stage, but by committing forgery and interpolation in the records, name of Ranvijay Kumar was entered in the records. This was done by the petitioner in conspiracy with Ashok Kumar Singh. This is admitted by the petitioner that since 1996 to 2001, he was the Secretary of "SAMVEDNA". During this period, all monetary transactions were done by him. He has signed the cheques, all documents and when the case was instituted, he resigned. On repeated request and information of the Vigilance, he never turned up for cooperating in investigation. This shows the guilty mind of the petitioner. He could have produced documents and papers in support of his claim before the Vigilance authorities that he always worked for achieving those pious objects and goals for which two organizations were founded. During investigation, it was found that instead of using the donations and contributions, received from the industrialists and loanees, for rehabilitation and help of riot victims of Bhagalpur, they were invested in fixed deposits and in other forms of investments. This indicated that these two organizations were created with only goal to collect money by illegal means. Petitioner was connected with the institution prior to its" registration. In the garb of public interest, interest of accused was to multiply the money and misuse it for personal benefit of the members of organizations. The petitioner had been part of conspiracy as he helped Ashok Kumar Singh in misusing of those contributions which were obtained by Ashok Kumar Singh for his benefits as well as other members of the organizations after including the industrialists and loanees. In this way, there are sufficient evidence to prosecute the petitioner u/ss. 201, 120B of the IPC and other offences mentioned in the F.I.R. It has also been submitted that the petitioner cannot take the advantage of the order passed in favour of Ranvijay Kumar in Cr. Misc. No. 37242 of 2005 as only ground for quashing the cognizance in that case was that there was no sanction of the competent authority for his prosecution which is mandatory u/s 19 of Prevention of Corruption Act. The Order passed in the case of Ranvijay Kumar has no application in the case of petitioner. There is proper sanction, accorded by competent authority for prosecution of the petitioner.

I find substance in the submission of the counsel appearing for Vigilance. The prosecution against Ranvijay Kumar was not quashed on merit rather it was quashed because there was no proper sanction accorded by the competent authority for his prosecution. That ground is not available to the petitioner. So far the submissions of the petitioner''s counsel that no prima facie case either under the IPC or u/s Prevention of Corruption Act is made out against him is concerned, has no substance. From the allegation in the F.I.R., evidence collected during investigation and materials in charge-sheet, it is apparent that there was meeting of mind and consultation in between petitioner and Ashok Kumar Singh, prior to creation and registration of those two organizations. Records of the constitution of organizations were forged and interpolated. Name of petitioner and Ashok Kumar Singh were deliberately with dishonest intention, were disappeared. They were original President and Secretary but name of Ranvijay Kumar and Shravan Kumar was included, erasing name of petitioner and Ashok Kumar Singh from records. Petitioner''s case is that he came in contact of this organization since 1996 but that is not corroborated from the F.I.R. and charge-sheet.

This is not the stage when evidence of accused can be considered like a trial court. It cannot be adjudged at this stage. Petitioner may raise such points at an appropriate stage. Accordingly, this application is dismissed.