Manindra Nath Biswas v. The State Of Bihar

Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 Darbhanga (hereinafter to be referred to „AIR‟) on two dates amounting to a sum of Rs. 3,19,794/- . On enquiry, it was found that those bills presented by several accused employees were fake and bogus. The employees who raised the claim on the strength of those medical bills had never actually fallen sick and undergone any medical treatment. The cash memo/medical certificate(s) etc. attached to the medical claims/bills were also false and bogus. The three medical shops from where the invoices were issued were non existent. Accordingly, an FIR was drawn under section 120, 420,467,468 and 471 of the Indian Penal Code and relevant provision of the Prevention of Corruption Act, 1988. The investigation was carried out and on conclusion thereof charge sheet was submitted on 30.7.2002 (Annexure-2) and cognizance of the offence was taken. The case was posted for framing of charge when diverse application(s) were filed seeking discharge which were considered and rejected leading to the present case. Heard Mr. A.K. Thakur, learned counsel for the petitioner and Mr. Bipin Kumar Sinha for the CBI. Learned counsel for the petitioner submits that the petitioner, being the Drawing and Disbursing Officer (DDO), discharged his official function in accordance with his 3 Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 competence, both administrative and financial, and as such he cannot be hauled up for having conspired with other accuseds (the actual beneficiaries). The order rejecting his application is, therefore, bad in law. There is no violation of any guideline/rules. He relied in this regard on a judgment of the apex Court in the case of CBI Vs. K. Narayana Rao (2012 (7) Supreme 33). Combating the aforesaid arguments, learned counsel for the CBI submits that the petitioner is accused of criminal conspiracy. There is allegation in the FIR (Annexure-1) that in siphoning of government fund in the shape of sanction and payment of reimbursement bills on two dates i.e. 26.03.1991 and

27.03.1991 the petitioner had connived with the beneficiaries. The charge sheet (Annexure-2) specifically alleges that in course of investigation it was found that the officials of the AIR including the petitioner even knowing well that bills were bogus dishonestly and fraudulently passed those bills causing undue loss to the government and thereby undue gains to them. In a matter like this (offence of conspiracy) the charge can be proved by either direct or circumstantial evidence. The substantive evidence to prove the charge would be adduced at the trial and as such considering the materials on record no case for interference with the order impugned is made out. The order passed by the learned 4 Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 court below is sustainable in law. He relied in this regard in the case of Mohan Singh vs. State of Bihar (2011 (4) PLJR (SC) 287). There is agreement at Bar that the impugned order was passed in exercise of jurisdiction conferred on the court under section 239 of the Code of Criminal Procedure (for short „the Code‟)which reads thus:- “239. When accused shall be discharged. - If upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate, thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.” If upon consideration the court is not inclined to discharge the accused then it has to proceed with framing of charge under section 240(1) of the Code which reads as under:- “240. Framing of Charge. - (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to 5 Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.” On a careful reading of those two provisions it manifests that if the charge appears to be groundless the court is required to discharge the accused recording reasons therefor. However, if upon consideration the Magistrate finds that there is ground for presuming that that the accused had committed the offence, he shall frame the charge and proceed to try the accused(s). The petitioner was Drawing and Disbursing Officer of AIR. On two dates 12 numbers of medical bills claiming reimbursement were presented and passed. All those bills/cash memos were found bogus medical bills inasmuch as the claimants thereof had actually never fallen sick and undergone any medical treatment and purchased any medicines from three medical shops which again were found non existent. In CBI vs. K. Narayana Rao (supra) the respondent was an advocate retained by Vijaya Bank. The official of the bank along with the respondent were made accused under diverse sectionsof the Penal Code including 120B IPC for abusing their official position and for having conspired with private individuals for 6 Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 defrauding the bank by sanctioning and disbursement of housing loan causing wrongful loss of 1.27 crores to the bank. The respondent being the legal practitioner and a panel advocate for the bank was not made accused in the FIR. However, after completion of investigation he was also sent up for trial alleging therein that he gave false legal opinion. At the stage of framing of charge the respondent prayed for his discharge which was considered and rejected. Aggrieved thereby, the respondent filed a proceeding in the High Court under section 482 of the Code. The High Court quashed the proceeding insofar as the said respondent was concerned. The CBI approached the Supreme Court thereagainst. The Apex Court took note of the particular facts of the case and found that the respondent being the retained counsel of the bank gave improper and/or wrong legal advice. Mere negligence unaccompanied by any moral delinquency on the part of the legal practitioner in exercise of his profession would not amount to professional misconduct. Except the aforesaid nothing was found on record displaying an active participant in plan to defraud the bank. The apex Court observed as under at para 27 of the report (page 48 of the report) “27. However, it is beyond doubt that a lawyer owes an “unremitting loyalty” to the interests of the client and it is the lawyer‟s 7 Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 responsibility to act in a manner that would best advance the interest of the client. Merely because his opinion may not be acceptable, he cannot be mulcted with criminal prosecution, particularly, in the absence of tangible evidence that he associated with other conspirators. At the most, he may be liable for gross negligence or professional misconduct if it is established by acceptable evidence and cannot be charged for the offence under Sections 420 and 109 of IPC along with other conspirators without proper and acceptable link between them. It is further made clear that if there is a link or evidence to connect him with the other conspirators for causing loss to the institution, undoubtedly, the prosecuting authorities are entitled to proceed under criminal prosecution. Such tangible materials are lacking in the case of the respondent herein.” In Mohan Singh (supra) while dealing with the penal provisions under section 120B of the IPC the Apex Court referred with approval the earlier view taken in the case of Mohd. Khalid vs. State of West Bengal [(2002) 7 SCC 334] to hold as a proposition of law that offence of conspiracy can be proved by either direct or circumstantial evidence. The lack of direct 8 Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 evidence relating to conspiracy has no consequence. Adverting to the facts of the present case, it is seen that on two dates all the medical bills supported by bills issued by three non existent medical shops were passed and payment was inasmuch as the employees claiming the medical reimbursement had never fallen sick and undergone medical treatment. A strong suspicion, therefore, is raised against the official(s) posted at the said station of the AIR including the petitioner who was then functioning as the Drawing and Disbursing Officer. Facts noticed hereinabove reflecting from the materials on record put together may or may not constitute the offence of criminal conspiracy. These circumstances, however, in the light of evidence/materials produced at the trial, need to be considered. Mr. Thakur drawing attention of the court to the penultimate paragraph of the order submits that there is inbuilt contradiction. In the opening line the court held that there is no strong suspicion and yet the petition was rejected. Mr. Sinha learned counsel for the CBI, on the other hand, submitted that those observations be considered in the context it was made. On bare perusal of the proceeding/ observation(s) of the court it would appear that there is clerical 9 Patna High Court Cr.Misc. No.2121 of 2013 (6) dt.02-05-2013 mistake therein. In place of „no strong suspicion‟ in the opening line of that paragraph it should be read as „a strong suspicion‟. I agree with the submission of the learned counsel for the CBI. In the light of the discussions made hereinabove, this Court finds no reason to interfere with the impugned order dated

24.9.2012 and quash the proceeding at its threshold. As a note of caution, this Court may observe that the opinion/observation made hereinabove are for the purpose of disposal of the present case and the invocation of the jurisdiction of this Court under section 482 of the Code. The trial court should not, therefore, be prejudiced in any manner by observation(s). The application is dismissed. (Kishore Kumar Mandal, J) HR/-