High Court
Facts
(1) appln-2234-2021.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2234 OF 2021Nandaji S/o Tulshiram Tekade,Age:- 69 years, Occu:- Retired,R/o:- Chandak Layout, Chikhli Road,Buldhana, Dist. Buldana...ApplicantVersus1.The State of Maharashtra,Through Police Inspector,City Police Station, Nandurbar,Tq. and Dist. Nandurbar.2.Mr. Sopan Santosh Sambare,Age:- 36 years, Occu:- Service,R/o:- C/o:- K. S. Devre, Pramod Nagar,Near Nirmala Convent, Gangapur Road,Nashik, Dist. Nashik,Mob. No.9422946392..Respondents …Mr. P. D. Bachate and Mr. A. D. Khot, Advocates for the Applicant.Mr. A. M. Phule, APP for Respondent No.1.Mr. P. P. Kothari, Advocate for Respondent No.2. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ. DATED : 07th OCTOBER, 2024.ORDER (Per S. G. Chapalgaonkar, J):-1.The applicant has approached this Court under Section 482of the Criminal Procedure Code thereby praying to quash and setaside FIR in Crime No.27/2020 registered with City Police Station,Nandurbar for offences punishable under Sections 420, 406, 409r/w 34 of the Indian Penal Code as well as consequential criminalproceeding in R.C.C. No.215/2021 pending before learned JudicialMagistrate First Class, Nandurbar. (2) appln-2234-2021.odt2.The respondent no.2 herein lodged report with City PoliceStation, Nandurbar alleging that he is serving as RegionalManager with Maharashtra State Co-operative TribalDevelopment Corporation Limited (for short ‘Corporation’), who isresponsible for implementation of the Government scheme fordistribution of diesel pumps and gas stoves (braziers) for tribalagriculturists and beneficiaries. The FIR states that during theperiod from 2004 to 2009 enquiry in respect of misappropriationand fraud in implementation of the scheme at the hands of officersof the department and contractors was contemplated. A PublicInterest Litigation No.153/2012 was filed before this Court seekingdirection to cause enquiry into the allegations. Consequently,enquiry was caused by the Committee headed by Justice M. G.Gaikwad (Retired). The Committee submitted report, wherein, it isrevealed that during the period from 2004-2005 to 2008-2009 theresponsibility for implementation of the scheme was on officersnamely Mr. Gokul Ratan Bagul, Sambhajirao Kolpe and transportcontractor M/s. Akashdeep Vidyut Kamgar Sahakari Sanstha,Nandurbar. Total 11354 oil pumps were purchased and remittedfor distribution to the office of Nandurbar. However, total 5982 oilpumps have been subjected to misappropriation and officers Mr.Gokul Ratan Bagul and Mr. Sambhajirao Kolpe were heldresponsible for misappropriation of amount of Rs.10,57,99,896/-.Similarly, transport contractor M/s. Akashdeep Society through (3) appln-2234-2021.odtMr. Arun Shivlal Kokani, Mr. Girish Udesing Pardeshi were foundresponsible for misappropriation worth Rs.1,52,03,348/-. As such,amount of Rs.12,10,03,244/- has been misappropriated out schemefor distribution of oil pumps.3.The FIR further alleges that another scheme for distributionof gas units was implemented through Regional Office atNandurbar during the period from 2006-2007 to 2008-2009 forbenefit of tribal. The Regional Manager Mr. Sambhajirao Kolpeand Gokul R. Bagul were jointly responsible for implementation ofscheme. Total 23477 gas units were purchased and made availablefor distribution. As per documents, 17889 gas units are shown tohave been distributed. However, on scrutiny of record by theCommittee, particulars in respect of 14630 gas units could not belocated. No accounts in respect of 2900 gas units were madeavailable. As such, total amount of Rs.77,72,000/- towards cost ofgas units and amount of Rs.6,25,000/- towards transportation i.e.total 83,97,000/- has been misappropriated by then RegionalManager Mr. Sambhajirao Kolpe and President and Vice Presidentof M/s. Akashdeep Society, Nandurbar. Consequently, total loss ofRs.12,94,00,244/- has been caused to the Government and amounthas been misappropriated by the accused persons. Consequently,Crime No.27/2020 dated 22.01.2020 has been registered againstMr. Gokul R. Bagul, Sambhajirao Kolpe and President and Vice (4) appln-2234-2021.odtPresident of M/s. Akashdeep Society. In pursuance of aforesaidcrime investigation progressed. 4.On 16.06.2020, respondent no.2 communicated InvestigatingOfficer to add applicant as accused in aforesaid crime. On17.06.2020, the Investigating Officer called information as regardsto the role of the applicant in commission of offence and finally filedcharge-sheet before Judicial Magistrate First Class at Nandurbarin R.C.C. No.215/2021 against in all 8 accused persons includingapplicant.5.Mr. Bachate, learned Advocate appearing for the applicantvehemently submits that applicant served as Regional Manager atNandurbar during the period from 01.07.2009 to 02.07.2009,17.07.2009 to 01.07.2010 and 07.07.2010 to 31.12.2010. He retiredfrom service in the month of April 2011 on attaining age ofsuperannuation. During the tenure of applicant as RegionalManager, he took serious steps against accused Mr. Gokul R. Baguland Chairman of M/s. Akashdeep Society. The applicant informedManaging Director of the Corporation regarding irregularities indistribution of diesel pumps vide his communication dated22.12.2009. Similarly, on 30.01.2010 the applicant had called uponexplanation from officers and contractor as regards to the deficit ofoil pumps and records. In pursuance of communication made bythe applicant, the Managing Director had called explanation from (5) appln-2234-2021.odtMr. G. R. Bagul. The applicant has also reported about improperdistribution of oil pumps during the period from 2008-2010 andalso issued notice to Chairman of M/s. Akashdeep Society with copyto Mr. V. S. Kolekar and Mr. G. R. Bagul calling upon theirexplanation as regards to the serious irregularities. The applicanthas also initiated enquiry against them. On 03.09.2010 theapplicant informed Managing Director of Corporation as regards tothe double distribution of pumps to 32 beneficiaries. The applicanthimself was a witness before Enquiry Committee headed by JusticeM. G. Gaikwad (Retired). There are observations in the report asregards to the action and concrete steps taken by the applicantagainst Mr. G. R. Bagul and Chairman of M/s. Akashdeep Society. 6.Mr. Bachate would further point out that another one manCommittee, appointed for scrutinizing enquiry report, recordsobservations as regards to the misconduct on the part of Mr. G. R.Bagul and Mr. Sambhajirao Kolpe. Consequently, FIR wasdirected to be lodged against them alongwith Chairman of M/s.Akashdeep Society. However, only on subsequent representationmade by respondent no.2, applicant has been implicated as anaccused in Crime No.27/2020.7.Mr. Bachate would further submit that contents of the FIRand charge-sheet on its face value do not make out any offence (6) appln-2234-2021.odtagainst the applicant. The applicant has honestly discharged hisduties and infact instrumental to unearth fraud at the hands ofother accused persons. Mr. Bachate would further point out thatalthough departmental proceeding was initiated against applicant,it has been closed stating that issue is subject matter of criminalproceeding. In view of the aforesaid background, Mr. Bachatewould urge to quash the FIR and consequential criminalproceeding against the applicant by invoking inherent powers ofthis Court.8.Per contra, Mr. Phule, learned APP appearing for therespondent-State and Mr. Kothari, learned Advocate appearing forrespondent no.2 vehemently opposed application contending thatapplicant was Regional Manager during the period ofmisappropriation and he is also responsible for loss to theGovernment and misappropriation of the amount, which wasmeant for benefit of tribal community.9.Having considered submissions advanced and after goingthrough the FIR and charge-sheet, it can be gathered thatrespondent no.2 lodged report in pursuance of authorization givento him by the Corporation as regards to the misappropriation andfraud in the implementation of the Government scheme during theperiod from 2004 to 2009. The FIR is mainly based on findings (7) appln-2234-2021.odtrecorded by Enquiry Committee appointed by the State ofMaharashtra. The committee recorded findings in the report thatRegional Manager Mr. Sambhajirao Kolpe and Director of M/s.Akashdeep Society have misappropriated amount ofRs.12,94,00,244/- during implementation of scheme for distributionof diesel pumps and gas units to the tribal community. Thereading of the FIR would show that no role is attributed againstthe applicant in commission of offence. The Enquiry report,particularly in paragraph nos.4.57 and 6.5 records findings asregards to the action taken by applicant against erring officers andcontractor in the matter of illegality in implementation of scheme.Even, the communication issued by the office of Corporation forregistration of offence in pursuance report submitted by JusticeGaikwad Committee specifically suggests for registration of theoffence against Mr. G. R. Bagul and Mr. Sambhajirao Kolpe.Apparently, applicant has been examined as witness before theCommittee and he has given important input to unearth illegalityand misappropriation in implementation of scheme. It is clearthat, initially applicant was not cited as accused in the FIR and itis only on the basis of communication dated 16.06.2020 made byrespondent no.2, applicant has been implicated as an accused.10.It is pertinent to note here that Investigating Officer hasmade correspondence to Managing Director of the Corporation as
Legal Reasoning
(8) appln-2234-2021.odtwell as Regional Manager to explain role of the applicant incommission of offence. However, reply by corporation nowhereexplains actual role of the applicant except statement thatapplicant was Regional Manager for relevant period.11.On perusal of the charge-sheet, it can be observed thatomnibus allegation is employed against applicant that he wasRegional Manager at Nandurbar during implementation of thescheme and during that period he failed to discharge his duties inaccordance with law or he was negligent in scrutinizing recordsubmitted by contractor and officers before releasing bills.However, to substantiate aforesaid stipulations, there is absolutelyno material in the charge-sheet. The report of the EnquiryCommittee under Chairmanship of Justice M. G. Gaikwad(Retired), nowhere records adverse findings as regards to theworking of the applicant. Even, one man committee, whoscrutinized report is silent as regards to the role of the applicant.Further communication made by the office of the Corporationtowards registration of offence nowhere stipulates accusationagainst application. On other hand, it can be gathered thatapplicant has taken several steps to check illegality inimplementation of the scheme. Infact, he appears to be importantwitness, who has thrown light on illegality in implementation ofscheme. Prima facie, it appears that his statement before Enquiry (9) appln-2234-2021.odtCommittee supported by other material is basis of finding recordedby the Committee. We find substance in contentions of Mr.Bachate that applicant has been added as accused withoutverification of relevant facts and material. 12.The charge-sheet depicts that entire case of prosecutionis based on findings recorded by Enquiry Committee. However,report of Committee nowhere blames applicant for commission ofoffence. The departmental enquiry against applicant has beendropped stating that matter is subjudice before the Court inpending criminal proceeding. In this background, we find that inabsence of any material to constitute ingredients of Sections 405and 415 of the Indian Penal Code, it would be unjust to permitcriminal prosecution against applicant, who has been retired fromservice in the year 2011. Pertinently, name of the applicant isincorporated in the charge-sheet even without recordingsupplementary statement of the informant or collection of pin pointmaterial to bring home guilt against him. We find that contents ofcharge sheet are bereft to bring home complicity of applicant incommission of offence. Consequently, we proceed to pass followingorder:ORDERa.Criminal Application is allowed. (10) appln-2234-2021.odtb.The FIR in Crime No.27/2020 registered with City PoliceStation, Nandurbar for offences punishable under Sections 420,406, 409 r/w 34 of the Indian Penal Code as well as consequentialcriminal proceeding in R.C.C. No.215/2021 pending before learnedJudicial Magistrate First Class, Nandurbar, is hereby quashed andset aside to the extent of applicant.c.Criminal Application is disposed of. (S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/November-2024