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Judgment
This is a petition u/s. 378(3) of the Cr.P.C. seeking leave to appeal against judgment and order dated 3.11.2018 passed by the learned Special
Judge, Prevention of Corruption Act, 1988, Ujjain in Special Case No.12/2017, whereby acquittal has been recorded in favour of respondent for
offences u/s. 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and Section 120-B of the IPC.
The admitted facts of the case are as under :
(i) The respondent was Surpanch of Gram Panchayat Ringniya for the period from 11.2.2005 to 10.2.2010 and one Smt. Ushabai was Surpanch of the
same Gram Panchayat for the period from 3.3.2010 to 31.3.2010. Bherulal Malviya was Secretary of the said Gram Panchayat at the relevant point of
time and he used to keep the record of the Panchayat. Bherulal Malviya died on 12.1.2007. The prosecution filed the challan against the respondent
and Late Bherulal Malviya and summons were issued to them. The summon sent to Bherulal Malviya was received back with the note that he has
expired on 12.1.2017, therefore, the prosecution dropped the case against him.
(ii) As per prosecution story, the SPE Lokayukta, Ujjain received the discrete information that the respondent being Surpanch and Bherulal Malviya
being the Selcretary of Gram Panchayat by way of criminal conspiracy misused their post by preparing forged bills and vouchers of the cement
concrete work in the year 2007-2008 and 2008-2009 and withdrawn the amount but utilised for their personal work which resultantly caused financial
losses to the Government. The aforesaid complaint was registered as a Primary Enquiry Case No.92/2013 on 23.12.2013 and the same was handed
over to Basant Shrivastava, Inspector for submitting preliminary enquiry report. Basant Shrivastava conducted the investigation and submitted the
report to the SP with the opinion that the respondent and the Secretary by way of criminal conspiracy from 2007 to 2010 got sanctioned the funds
under various Govt. schemes, but did not implement the work and withdrew the amount from bank based on forged bills and vouchers for their
personal use and apart from it, there is a possibility of involvement of other public servants, therefore, prima facie they have committed an offence u/s.
13(1)(d) and 13(2) of the Prevention of Corruption Act and u/s. 120-B of the IPC. The then SP Lokayukt, Ujjain accepted the report and granted
permission for registration of FIR against both of them. Inspector Dineshchandra Patel registered the FIR under Crime No.536/2013 against the
respondent and Secretary in Police Station SPE on 31.12.2013. The investigation was initially conducted by Dineshchandra Patel and Basant
Shrivastava but final report was submitted by Inspector Kamal Nigwal on 15.5.2017 that the respondent and the Secretary of Gram Panchayat did not
prepare the budget of Gram Panchayat for the year 2007-2008 and 2008-2009 and the expenditure made without preparation of budget comes under
the category of financial irregularity. The respondent being a Surpanch has not verified the cash transaction under Rule 22 of Gram Panchayat
Account Rules, 1999 (hereinafter referred to as “Rules of 1999†for short). The Surpanch and Secretary by misusing their posts have made cash
payment although the payment of more than Rs.1,500/- was to be made by way of cheque and the payment of more than Rs.10,000/- was to be made
by way of crossed cheque. Thus, they have violated Rule 39 of Rules of 1999. They have made extra expenditure of Rs.8,950/-, 23,158 and 4,200/-.
They have made payment to labour @ Rs.100/- per day in place of Rs.91/- per day. Proper receives were not taken as per Rules of 1999. No
technical sanction and administrative sanction was produced for construction work done in the Gram Panchayat and resultantly, they caused financial
loss to the Government.
(iii) After filing of the challan, summons were issued to the respondent and Secretary. As stated above, the Secretary died on 12.1.2017, therefore,
charges u/s. 13(1)(d) and 13(2) of Prevention of Corruption Act and u/s. 120-B of I.P.C. were framed only against the present respondent. The
prosecution examined Inspector Basant Shrivastava as P.W.1; Jagdish Malviya, Secretary as P.W.2; Anil Shrivastava, Dy. Accountant as D.W.3;
Hiralal Trivedi as P.W.4; Devesh Tiwari, S.D.O. As P.W.5; Jaideep Lashkari, Assistant Manager, SBI as P.W.6; Mangilal Rathore as P.W.7; and
Mohanlal Swarnakar, CEO as P.W.8 and got exhibited 41 documents as Ex. P/1 to P/41. The respondent appeared and pleaded not guilty and
submitted that he has been falsely implicated because of the political rivalries. In his defence, he got exhibited 13 documents as Ex. D/1 to D/13.
(iv) After appreciating the evidence came on record, learned Special Judge has recorded the finding that Late Bherulal Malviya, the Secretary of the
Gram Panchayat was responsible for maintaining the record of the Gram Panchayat, but the Inspector Basant Shrivastava did not seize the cash-book,
voucher-book, audit register, register of sale and purchase, etc. He has not produced any original record before the Court in absence of original
record, the prosecution has failed to prove that the accused has made the forged bills and vouchers for withdrawal of the amount from the bank for his
personal use and caused the financial loss to the Government. In absence of seizure of the aforesaid documents and only on the basis of audit report,
the accused cannot be convicted, therefore, the prosecution has failed to prove beyond reasonable doubt that the accused along with co-accused
Bherulal Malviya (since dead) has committed criminal conspiracy for the period from 2007-2008 to 2008-2009 being public servants and misused their
posts and the Panchayat funds, hence acquitted the respondent vide judgment dated 3.11.2018.
(v) Being aggrieved by the aforesaid judgment, the applicant, SPE Lokayukta, Ujjain has filed present application seeking leave to file criminal appeal.
Shri Vaibhav Jain, learned counsel appearing for the applicant, has submitted that the learned Special Judge has held that Bherulal Malviya being
the Secretary of the Gram Panchayat has committed all the financial irregularities and the respondent being Surpanch was responsible to supervise the
functioning of the Gram Panchayat. The Panchayat funds can be withdrawn only with the joint signatures of Surpanch and the Secretary, therefore, it
is not possible that the Secretary could have committed all the financial irregularities alone and without the criminal conspiracy with the Surpanch. The
matter was twice enquired by the CEO and thereafter by the Audit Department and various financial irregularities were found. The amount was
withdrawn, but the same was not utilised for the construction work and forged bills and vouchers were prepared and the amount was withdrawn by
the respondent and the Secretary, therefore, there was a criminal conspiracy between the respondent and the Secretary. Once the finding has been
recorded against the Secretary in respect of financial irregularities, the respondent being a Surpanch ought to have been convicted for the criminal
conspiracy u/s. 120-B of the IPC. In support of his contention, he has place reliance over the judgment of Bombay High Court in the case of
Pradumna Shriniwas Auradkar V/s. State of Maharashtra : 1981Cri.L.J. 1873 in which it has been held that A & B made a conspiracy. A has been
acquitted on technical ground, but it cannot be said that B has to be acquitted ipso facto. Since the Secretary has died after filing of the challan,
therefore, he could not be prosecuted, but the respondent against whom the charge of conspiracy has been established by the prosecution by cogent
evidence, hence he ought to have been convicted. Learned Special Judge has wrongly observed serious lapses on the Investigating officer Basant
Shrivastava whereas he seized all the documents pertaining to the audit report, inspect, etc. The original documents were considered while submitting
the audit report, therefore, there was no need to produce the same before the Court. Hence it is a fit case for grant of leave to filing an appeal.
I have heard the learned counsel for the applicant and perused the record.
The SPE Lokayukt received the information that in the year 2007-2008 and 2008-2009, the respondent along with Secretary have misappropriated
the funds of Gram Panchayat and withdrawn Rs.1,01600/- by way of forged bills and vouchers and did not utilise the same for construction work
under various schemes. The complaint was handed over to Basant Shrivastava (P.W.1) for preliminary investigation. He conducted the preliminary
investigation and submitted his report on 27.12.2013 (Ex. P//4). According to him, he visited the Gram Panchayat Ringniya and recorded the
statements of the witnesses and obtained the information about the schemes sanctioned from 2007 to 2009 and collected the documents. In the
preliminary investigation, he found that the CEO had already conducted the enquiry and submitted the report to the SDO and found Surpanch and
Secretary negligent in respect of construction cement concrete work. Under 12th Finance Commission, the permission was granted on 21.11.2007 and
10.4.2008, but the same was not available in the Panchayat Office. The Sub Engineer has failed to point out the place of work which established that
the work was not done, hence it is established that the Government money has been misappropriated. Thereafter he collected the report from the
Assistant Director, Local Fund & Audit, Ujjain in respect of audit and accounts of the year 2007 to 2010 of Janpad Panchayat Khachrod and as per
the audit report, various objections are there from Page 6 to Page 37. Therefore, on the basis of report of the CEO and the Audit Department he
found that the Surpanch and Secretary have committed financial irregularities and misappropriated the funds. His entire preliminary report was based
on aforesaid two reports but same was not based on his independent verification of the documents and the spot. His report was blindly accepted by
the S.P. and while granting the approval for registration of the FIR. After registration of FIR, the investigation was handed over to Basant Shrivastava
again and finally report was only submitted by Inspector Kamal Nigwal. This time also he did not conduct any investgigation but converted his
preliminary report into final report u/s. 173 of Cr.P.C. Basant Shrivastava entered into the witness box as P.W.1 and he has admitted his signatures
over the preliminary report submitted to the S.P. Since he was on leave, therefore, the FIR was registered by Dineshchandra Patel on the basis of
preliminary report. He has also admitted that the S.P. handed over the case to him for investigation vide Ex. P/11. In his further deposition he has
stated that he has obtained copy of the report given by the CEO and Audit Department and also recorded the statement u/s. 161 of Cr.P.C. and after
completing the investigation he handed over the case-diary to Kamal Nigwal on 18.9.2015. In Para 17 of his deposition, he has stated that the Sub
Engineer, RES, Khachrod in his statement has disclosed that in 12th Finance Commission, amount of Rs.1,01,600/- was sanctioned for the year 2007-
2008 and amount of Rs.1,02,329/-was sanctioned for the year 2009-2009 and the same was withdrawn by the Surpanch and the Secretary without any
administrative sanction and he visited the spot and Surpanch and Secretary failed to verify the same work and no measurement and valuation was
done. Therefore, it is clear that he has only recorded the statement of the witness, but he himself did not visit the spot to check whether the work has
actually been done or not. He has made the following admissions in his cross-examination, which is a serious lapse on his part :
(a) Despite complaint against the respondent and Secretary about withdrawal of Government money and utilisation of the same for their personal use,
he has not taken warrant to search their house;
(b) He has not prepared the Panchnama of the spot in presence of local villagers or Sub Engineer;
(c) Page 126 (Ex. P/5) and Page 127 (Ex. P/6) are certificates about the completion of work of cement concrete in the Gram Panchayat;
(d) During investigation he DID not give any notice to the respondent and Secretary, he never met the respondent personally and conducted the
enquiry but enquiry was got done by the CEO of Janpad Panchayat.
(e) He did not personally visit to check the handpump cleaning work;
(f) During investigation he has not investigated about the income and expenditure of Gram Panchayat;
(g) That he has not seized the original record from the Secretary, he has not made any interrogation with the Secretary about the original documents
during investigation.
From the above, it is clear that Inspector Basant Shrivastava did not personally conduct any investigation, interrogation, did not seize documents and
submitted his preliminary report as well as final report. He has based his opinion only on the enquiry conducted by the CEO and the Audit Department
and prosecuted the respondent and the Secretary of the Gram Panchayat.
Anil Shrivastava (P.W.3) has admitted in his cross-examination that the documents are maintained by the Secretary and if he does not produce any
document, then the Surpanch cannot do anything. He has also admitted that as per audit report (Ex. P/32 to P/36) there is no mention that the
Surpanch has withdrawn the amount more than the entitlement. P.W.5 - Devesh Tiwari, SDO has turned hostile because he has failed to disclose the
amounts sanctioned to the Gram Panchayat for construction work. P.W.8 - Mohanlal Swarnakar, CEO has admitted that all the documents related to
Panchayat remains into possession of the Secretary and he has not brought the original documents in the Court. As per Ex. D/9, in the month of
December, 2010 to January, 2011, the cement concrete work was completed. He has also admitted that the payment of work is always made after
the verification by the concerned Engineer. He has not made any communication for production of documents with respondent, Surpanch and all the
documents were produced by the office of Secretary.
Therefore, in view of the aforesaid evidence, learned Special Judge has rightly held that the prosecution has failed to prove the charges of
misappropriation and misuse of funds against the respondent and the Secretary. The Investigating Officer has not conducted the investigation properly.
He has neither seized the original record nor produced the same before the Court. He has not visited the spot and submitted the final report only on
the basis of report of CEO and the Audit Department on administrative side. Learned Special Judge has also not found any criminal conspiracy and
discharged the respondent u/s. 120-B of IPC. Hence it is not a fit case for grant of leave to file an appeal.
Since last one year, this Court is hearing the appeals against conviction as well as applications for grant of leave to file appeal against acquittal. In
almost 4 to 5 cases, learned Special Judge has found lapses on the part of Inspector Basant Shrivastava while conducting the investigation. In some
cases, serious strictures have been passed against him. This requires serious consideration by the competent authority to examine whether
continuation of Basant Shrivastava in the Lokayukta Establishment is desirable. The SPE Lokayukta, Bhopal is directed to collect all the cases in
which Basant Shrivastava has conducted investigation or he was associated with investigation for some time and appeared as witness in which the
Court has found lapses on his part as an Investigating Officer. After collecting all the material, same be sent to the Lokayukta for information and
necessary action.
With the aforesaid, this M.Cr.C. stands dismissed.