Madhavrao Jiwajirao Scindia and others v. SambhajiraoChandrojirao Angre and others
Legal Reasoning
cwp-1388.246absolve the petitioner from any liability and therefore, let thepetitioner face the trial.7.At the outset, we would like to say that in the three JudgeBench decision, in Madhavrao Jiwajirao Scindia and others vs.Sambhajirao Chandrojirao Angre and others (supra), it has beenobserved by the Hon’ble Supreme Court that when a prosecutionat the initial stage is asked to be quashed, the test to be appliedby the Court is as to whether the uncontroverted allegations asmade prima facie establish the offence. Here, in the presentcase, we are not at the initial stage. Entire investigation is over.In that case itself, it is observed by the Hon’ble Apex Court that,though a case of breach of trust may be both a civil wrong and acriminal offence but there would be certain situations where itwould predominantly be a civil wrong and may or may notamount to a criminal offence. Now, as regards the present caseis concerned, there is evidence in the nature of the inquiry reportwhich was based on voluminous documents including the qualityof the work done and the escalation in the price. Further, theconcerned Court, at the time of framing charge, would certainlyconsider, out of the offences which have been quoted by police,which offences are transpiring. In respect of other citations are cwp-1388.247concerned, we are guided, as to under which situation this Courtcan exercise its powers under Section 482 of the Code ofCriminal Procedure. Here, we cannot say that the facts in the FIRand the material that has been collected in the charge-sheetdisclose civil dispute only. When it is said that false documentshave been created, then certainly it is not a civil dispute.8.In Sanjay S/o Laxman Kholapurkar vs. State of Maharashtra andothers (Criminal Application (Apl) No.221 of 2020 and other companionmatters) decided by the Division Bench of this Court, Bench at Nagpur(supra), the facts were totally different. There the variousofficers who were working in the Irrigation Department (WaterResources Department) of Government of Maharashtra had facedthe departmental inquiry and the applicants therein wereexonerated and therefore, taking into consideration the decisionin Ashoo Surendranath Tewari vs. CBI, (2020) 9 SCC 636, the FIR and thecharge-sheet was quashed and set aside. Here, in the presentpetition, the petitioner has not been absolved. 9.In the recent Judgment of the Hon’ble Apex Court inShaileshbhan Ranchhodbhai Patel and another vs. State of Gujarat and others(supra), it has been reiterated that even after charge-sheetunder Section 173(2) of the Code of Criminal Procedure is filed, cwp-1388.248still the High Court can exercise its powers under Section 482 ofthe Code of Criminal Procedure, if it comes to the conclusion thatcontinuation of the proceedings arising out of such FIR would bean abuse of the process of law. However, we would haveconsidered the said situation if the petitioner would have shownthat material in the charge-sheet is not sufficient to attract anyof the offences. 10.as aforesaid, there is material against the petitioner andtherefore, we do not find this to be a fit case where we canexercise our inherent powers under Section 482 of the Code ofCriminal Procedure.11.The Writ Petition stands dismissed. [ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/SEP24.
Arguments
cwp-1388.241 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO.1388 OF 2024Ganesh S/o Sadashiv Rajgire,Age-38 years, Occu:at presentWorking as Executive Engineer,in the Divisional Office of M.S.R.T.C., Aurangabad ...PETITIONER VERSUS 1) The State of Maharashtra, Through the Senior Inspector of Police, City Police station, Osmanabad,2) Deepak S/o Sakharam Jadhav, Age-33 years, Occu:Service as Security & Vigilance Officer, M.S.R.T.C., Osmanabad. ...RESPONDENTS ... Mr. Balaji Bapurao Yenge Advocate for Petitioner. Ms. R.P. Gour, A.P.P. for Respondent No.1-State. ... CORAM: SMT. VIBHA KANKANWADI AND ABHAY S. WAGHWASE, JJ.DATE OF RESERVING ORDER : 27th AUGUST 2024DATE OF PRONOUNCING ORDER : 20th SEPTEMBER 2024 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.By this Petition, the petitioner is invoking the constitutional cwp-1388.242powers of this Court under Article 226 and 227 of theConstitution of India read with inherent powers under Section482 of the Code of Criminal Procedure, for quashing and settingaside the First Information Report (in short “the FIR”) bearingCrime No.345 of 2019 dated 8th December 2019 registered withOsmanabad City Police Station, District-Osmanabad for theoffence punishable under Sections 406, 409, 420, 465, 471 readwith Section 34 of the Indian Penal Code and charge-sheetNo.159 of 2020 dated 22nd December 2020 pending before thelearned Chief Judicial Magistrate, Osmanabad. 2.Petitioner is serving as executive engineer in the divisionaloffice of the Maharashtra State Road Transport Corporation (forshort “the M.S.R.T.C.”), Aurangabad. He is accused No.1.3.Heard learned Advocate Mr. Yenge appearing for thepetitioner and learned APP Ms. Gour appearing for respondentNo.1 – State.4.Learned Advocate for the petitioner is relying on thefollowing citations:-(1) Madhavrao Jiwajirao Scindia and others vs. SambhajiraoChandrojirao Angre and others, (1998) 1 S.C.C. 692, cwp-1388.243(2) Rajiv Thapar and others vs. Madan Lal Kapoor, (2013) 3SCC 330,(3) Shankar namdeo Gaikwad vs. State of Maharashtra andanother, (2021) 4 Bom CR (Cri) 72,(4) State of Haryana and others vs. Bjajan Lal and others,1992 Supp(1) SCC 335(5) International Advanced Research Centre For PowderMetallurgy and New Materials (ARCI) and others vs. NimraCerglass Technics (P) Ltd. and another, (Criminal AppealNo.2128 of 2011) decided by the Hon’ble Apex Court on 22ndSeptember 2015,(6) Uma Shankar Gopalika vs. State of Bihar and another,(2005) 10 SCC 336,(7) Shaileshbhan Ranchhodbhai Patel and another vs. Stateof Gujarat and others (Criminal Appeal No.1884 of 2013)decided by the Hon’ble Apex Court on 28th August 2024,(8) M. Cheluviah vs. Smt. Amruthamma, 2004 SCC OnLineKar 580,(9) Lalit Chaturvedi and others vs. State of Uttar Pradesh andanother, 2024 SCC OnLine SC 171,(10) Sanjay S/o Laxman Kholapurkar vs. State ofMaharashtra and others (Criminal Application (Apl) No.221 of2020 and other companion matters), decided on 22nd July2024 by the Division Bench of this Court, Bench at Nagpur(to which one of the Member of this Division Bench i.e. Smt.Justice Vibha Kankanwadi, is a party). 5.Learned Advocate for the petitioner submits that theallegations in the FIR are in respect of various works done fromSeptember 2017 to March 2019, however the FIR has beenlodged belatedly i.e. on 8th December 2019. In fact the petitionerwas transferred to Amravati by order dated 5th October 2018. In cwp-1388.244fact inquiry was made and report was submitted. In the reportsubmitted by the Depot Manager, allegations are made onlyagainst one Mr. Pawar. It is stated that the present petitionerhad misused the powers of his post and he resubmitted theworks with escalation of the expenditure and without giving thework to the labour cooperative institution, got it completed fromprivate contractor. He had issued false completion certificatewhen the work was of substandard and incomplete. It was statedthat the petitioner by conspiring with other accused,misappropriated an amount of Rs.19,82,730/-. In fact thepresent petitioner had deposited an amount of Rs.10,00,000/- atthe time of anticipatory bail before this Court and it was as perorder dated 4th August 2020. The investigating officer ought tohave considered the functions and duties of junior engineer anddeputy engineer. The petitioner was only supervising the workThe work was actually got done by junior engineers and even themeasurement book has been prepared by them. By order dated16th November 2019 the committee was appointed to inquire intothe allegations. However, actually no inquiry was held anddirectly the FIR has been registered. In the audit conductedevery year, there were no allegations of misappropriation againstthe petitioner. The petitioner, in the capacity of executive cwp-1388.245engineer, at the relevant time, was authorized only to takeinspection of 10% work done as per the norms of the M.S.R.T.C.There were no signatures of the petitioner on the final bills andall the payments were made by R.T.G.S. Even the investigationconducted by the investigating officer would disclose that allwork was done. Under such circumstance, it would be unjust toask the petitioner to face the trial. 6.Per contra, the learned APP strongly objection the petition.He submits that the FIR has not been directly registered but itwas after the report that was submitted by the Inquiry andSecurity Branch, Osmanabad. The charge-sheet has been filedand it specifically states that during the tenure of petitioner fromSeptember 2017 to August 2018, in all eight works were shownto be completed, however, those were of sub-standard qualityand were incomplete. Voluminous record has been seized. Notehas also been taken in the charge-sheet that in Bail ApplicationNos.35 of 2020 and 36 of 2020 filed in this Court, the applicantstherein, that means the present petitioner and co-accused havedeposited Rs.10,00,000/- each i.e. in all Rs.20,00,000/-.Therefore, every note of the subsequent events has been takenby the investigating officer. Deposit of the amount will not