V.S. Kshetriya vs Pradeepdhar <BR> Tejbali Singh Parihar Vs Pradipdhar Dwivedi

Hon. Shri N.K. Gupta, J.—This order shall govern the disposal of above mentioned two applications, as common question of fact and law are involved in these applications.

The applicants have preferred the present applications u/s 482 of Cr.P.C. for quashing the proceedings of the complaint case No.260/2003 registered by JMFC Sidhi (thereafter case was transferred to another Magistrate and it was registered as a criminal case No.668/2008 before the JMFC Shri R.S. Madia) for commission of offence punishable under Sections 166, 167, 468 and 420 of IPC. The applicants have also challenged the order dated 6.5.2008 passed by the JMFC Sidhi (Shri Kalicharan) and the order dated 15.12.2008 passed by the JMFC Sidhi (Shri R.S. Madia) by which the complaint was registered and arrest warrants were issued against the applicants.

Brief facts of the case are that the respondent filed a complaint before the CJM Sidhi that in March and April 1995, the complainant-respondent was directed to supply murram and gitti by his tractor. He worked there with his tractor for 5 1/2 days. His work was supervised by the applicants from time to time. Accused No.3 Angad Prasad was Sub Engineer of that scheme whereas accused No.4 B.P. Singh was Time Keeper. After a long period no payment was made to the respondent, and therefore he enquired the matter and he found that his payment was already shown to be made. The respondent had given an application to the accused No.4, who was Executive Engineer in the matter but no payment was made to the respondent. On 13.11.1996 again an application was submitted by the respondent, then accused No.4 had directed that he would take personal interest and his matter would be disposed off. The respondent tried for his payment in the year 1998 & 1999, but he could not get anything. He could receive a copy of muster role and thereafter he was surprised to peruse that copy of muster role that his name was mentioned in that muster role and it was shown that he received the money by putting his thumb impression on the muster role. He thought that cheating and forgery has been done by the applicants and other co-accused persons, therefore a complaint was filed. After examination of various witnesses under Sections 200 and 202 of Cr.P.C., learned JMFC registered the complaint for charges of offence punishable under Sections 166, 167, 468 and 420 of IPC against the applicants and other accused persons vide order dated 6.5.2008 and thereafter on 15.12.2008 arrest warrants were issued against the applicants.

Heard the learned counsel for the parties.

Learned counsel for the applicants submits that applicant Tejbali Singh was Assistant Engineer, Chitrangi, whereas applicant V.S. Kshetriya was Sub Engineer, Chitrangi. If entire documents and statements of various witnesses under Sections 200 and 202 of Cr.P.C. are perused, then there is no evidence to show that the respondent plied his tractor for work of that road. It is nowhere established by the respondent that who prepared the muster role. If muster role is perused, then it would be clear that payment was made in that muster role to the labours, who worked as a labour in that work. The muster role does not relate with the payment of overt-act as shown by the respondent in his complaint. Secondly, it is nowhere established that who prepared the muster role. It was for the complainant to show the muster role of payment or any duty certificate that he plied his tractor and with the help of such tractor he transported murram and gitti for 5 1/2 days.

In the muster role it is shown that each labour was paid a sum of Rs.222=60 paise. It was impossible that a person who transported murram and gitti by a tractor could be paid with a routine labour charges. There is no allegation of the respondent that he worked as a labour in that scheme. By perusal of the documents and statements of various witnesses under Sections 200 and 202 of Cr.P.C., no offence is made out against the applicants and the complaint is registered without any basis. Therefore, it is prayed that the complaint may be quashed. Learned counsel for the applicants further submits that it is a matter of civil nature and no complaint case could be registered.

On the other hand, learned counsel for the respondent submits that the respondent supplied murram and gitti by transportation with his tractor for 5 1/2 days, but no payment was made to him. The respondent tried to get his payment for three years. He contacted the higher officers including the present applicants but he could not get the payment. He got the copy of muster role by which it would be clear that the respondent was an literate person who has passed the Higher Secondary Examination and his name was shown as labour and payment was also shown with the help of a thumb impression, and therefore an appropriate case has been registered against the applicants by the trial Court. Therefore, it is prayed that the present applications filed u/s 482 of Cr.P.C. may be dismissed.

The complainant-respondent could not establish that muster role was prepared by the applicants. It is to be prepared by the Time Keeper by making attendance of various labours, therefore if any payment is made to the labours on the basis of that muster role, then it cannot be said that any forgery was done by the applicants. Similarly, if any muster role is shown by the sub ordinates and payment is granted by the applicants even, then by grant of that payment, it cannot be said that they used a forged document or they had any knowledge of that forgery, and therefore by such muster role in which the name of the respondent and his payment was shown, it cannot be presumed that it was forged by the applicants or it was used by the applicants with knowledge that it was forged, and therefore prima facie no offence u/s 468 or 471 of IPC is made out against the applicants. Secondly, the respondent has not filed any document to show that his services were taken for transportation of murram and gitti for 5 1/2 days. He has not mentioned specifically in his statement that who directed him to do that work. In his statement he addressed that some Sub Engineer directed and thereafter no payment was made, but he did not say even the name of that Sub Engineer. Under such circumstances, it cannot be said that the applicants directed the respondent to do that work. On the contrary, there is no evidence to show that the respondent supplied murram and gitti by transportation through his tractor. In the statement given by the respondent u/s 200 of Cr.P.C. he did not mention the name of any accused relating to any overt-act of the forgery.

Under such circumstances, where the lowest officers were responsible for preparation of the muster role and payment to the various labours, it cannot be said that the applicants had disobeyed the directions of the law or they prepared incorrect document to cause injury to the respondent. Therefore, no offence u/s 166 or 167 of IPC is made out against the applicants. Similarly, the respondent could not establish in his complaint that he provided his tractor and his services for supply of murram and gitti, and therefore if no payment is made to him, then it cannot be said that applicants have done any cheating to the respondent.

In a department which was related to the irrigation, if someone has provided his services for supply of murram and gitti, then he should have obtained its certificate from the concerned officers who had asked for such duties or he should have received the payment on the very same day. Further the entire matter is of civil nature. The incident took place in March 1995 whereas the respondent has submitted his complaint on 23.3.2001 after six years of the incident. Looking to the delay caused by the respondent in filing of the complaint, it appears that it is not a case which appears to be genuine.

If entire evidence and statement of the respondent u/s 200 of Cr.P.C. are considered, then he did not lodge the offence by name, and therefore it is nowhere apparent that by basis of such complaint, a conclusion can be drawn that offence is committed by the applicants. The case of the applicants comes within the purview of Clause 05 as laid down by the Hon''ble Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, Under such circumstances, it is a fit case in which inherent jurisdiction of this Court u/s 482 of Cr.P.C. may be invoked.

Consequently, both the applications filed u/s 482 of Cr.P.C. are hereby allowed and the Complaint Case No.668/2008 registered against the applicants and pending before the JMFC Sidhi (Shri R.S. Madia) is hereby quashed upto the extent of the present applicants.

A copy of this order be sent to concerned JMFC Sidhi with a direction that proceeding against the present applicants may be dropped.