Madhya Pradesh High Court
Dilip Singh Gurjar vs The State Of Madhya Pradesh on 21 November, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-GWL:20420
1 MCRC-29417-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF NOVEMBER, 2024
MISC. CRIMINAL CASE No. 29417 of 2023
DILIP SINGH GURJAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Krishna Kartikey Sharma - Advocate for the applicant.
Shri Naval Kishor Gupta- Public Prosecutor for the State.
ORDER
This application under Section 482 of Cr.P.C. has been filed for quashment
of FIR in Crime No.262/2017 registered at Police Station Gohad, District Bhind
for offence under Section 420, 409 of IPC.
The prosecution in short is that an amount of Rs.22,63,009/- was
withdrawn without constructing Panchayat building and various RCC roads. The
applicant is the Panchayat Secretary.
It is submitted by counsel for applicant that out of the total amount of
Rs.22,63,009/-, the Sarpanch has already deposited an amount of Rs.14,00,000/-
and so far as the remaining amount is concerned, the payment was stopped,
although bills were cleared.
By referring to order dated 06/10/2018 passed by the then CEO, Jila
Panchayat, Bhind who is an IAS Officer, it is submitted that since, the entire
amount of Rs.22,63,009/- was adjusted, therefore, the suspension of applicant was
revoked, by specifically holding that in view of the statement of co-accused
Signature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 23-11-2024
11:46:05 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:20420
2 MCRC-29417-2023
Smt.Ramshri Sarpanch, Gram Panchayat Kalyanpura, applicant has no criminal
liability. It is further submitted that in M.P. Panchayat Raj Avam Gram Swaraj
Adhiniyam, 1993 (in short, Adhiniyam, 1993), there is a provision for recovery of
amount of Gram Panchayat, which can be done after exercising the power under
Sections 89 and 92 of Adhiniyam, 1993. Therefore, it is submitted that lodging of
FIR is bad in such a situation. However, it is fairly conceded that applicant is still
absconding and his 6th application for anticipatory bail was withdrawn today
itself in MCRC No.38792/2024.
Per contra , application is vehemently opposed by counsel for State. It is
submitted that Rs.22,63,009/- were withdraw by showing that a Panchayat
Bhawan and RCC roads have been constructed but in fact nothing done was on
the ground. It is submitted that so far as the revocation of suspension order is
concerned, it has no bearing on the criminal case. Even otherwise, the CEO, Jila
Panchayat, Bhind was wrong in relying upon the statement of co-accused to hold
that applicant is not guilty.
Furthermore, the amount is withdrawn with joint signatures of Sarpanch
and Secretary. Since, the applicant was working as Secretary of Gram Panchayat,
therefore, it was his duty to ensure that the amount is withdrawn only after the
work is actually carried out. It is further submitted that for release of amount, a
measurement book has to be prepared, quality of work has to be tested and only
then the final bill/running bill can be submitted. It is submitted that once the work
was not carried out at all, therefore, there was no question of submission of any
running bill or final bill and thus, if the applicant had processed the bills and
ultimately, permitted the withdrawal of the amount without execution of work,
then it cannot be said that applicant was not guilty. Thus, it is submitted that
CEO, Jila Panchayat Bhind has revoked the suspension order in ignorance of law
Signature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 23-11-2024
11:46:05 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:20420
3 MCRC-29417-2023
as well as the procedure for sanctioning the bills.
Heard the learned counsel for the parties.
The primary contention of counsel for applicant is that since, the loss
caused to the Gram Panchayat can be recovered by exercising power under
Sections 89 and 92 of Adhiniyam 1993, therefore, resort to criminal proceedings
is bad in law and thus, it is submitted that FIR in question has to be quashed.
The aforesaid submission made by counsel for applicant is misconceived
and is liable to be rejected.
The Supreme Court in the case of State of M.P. Vs. Rameshwar and others
reported in (2009) 11 SCC 424 has held as under :-
“48. Mr. Tankha’s submissions, which were echoed by Mr. Jain,
that the M.P. Co-operative Societies Act, 1960 was a complete
Code in itself and the remedy of the prosecuting agency lay not
under the criminal process but within the ambit of Sections 74 to
76 thereof, cannot also be accepted, in view of the fact that there is
no bar under the M.P. Co-operative Societies Act, 1960, to take
resort to the provisions of the general criminal law, particularly
when charges under the Prevention of Corruption Act, 1988, are
involved.”
Recently, the Supreme Court in the case of Dharnraj and Ashawani Vs.
Amarhjeetsingh Mohindersingh Basi and Others reported in 2023 SCC OnLine
SC 991 has held as under:-
“27. Exclusion by necessary implication can be inferred from the
language and the intent of a statute.18 In Jeewan Kumar Raut (supra),
this Court looked at the words of the statute as well as the overall
scheme of investigation under the CrPC to infer that Section 22 of the
TOHO Act bars the applicability of Section 167(2) of the CrPC bySignature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 23-11-2024
11:46:05 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:20420
4 MCRC-29417-2023
necessary implication. In the present case, the 1960 Act casts a
positive obligation on the auditor or the Registrar to file an FIR when
they discover a financial irregularity in a co-operative society. Section
81(5B) demands accountability and vigilance from the auditor and the
Registrar in performance of their public duty. Moreover, a plain
reading of the said provision does not lead to the conclusion that the
legislature intends to debar any person other than the auditor or the
Registrar from registering an FIR. Section 81(5B) cannot be
interpreted to mean that any other person who comes to know about
the financial irregularity on the basis of the audit report is debarred
from reporting the irregularity to the police. In the absence of any
specific provision or necessary intendment, such an inference will be
against the interests of the society. The interests of the society will be
safeguarded if financial irregularities in co-operative banks are
reported to the police, who can subsequently take effective actions to
investigate crimes and protect the commercial interests of the members
of the society. In view of the above discussion, it is not possible for us
to infer that Section 81(5B) of the 1960 Act bars by necessary
implication any person other than an auditor or the Registrar from
setting the criminal law into motion.”
Thus, it is clear that in absence of any provision thereby barring the
provisions of IPC, it cannot be said that merely because there is a provision of
recovery of civil liability, a person cannot be prosecuted for his criminal act.
So far as the revocation of suspension of applicant is concerned, the reason
for revocation of suspension are really shocking. Although, this Court would not
have taken note of reasons assigned by CEO, Jila Panchayat Bhind for revoking
the suspension order but it was constantly relied upon by counsel for applicant
thereby compelling this Court to go through the reasons for revocation of
suspension.
The order dated 06/10/2018 passed by CEO, Jila Panchayat Bhind who is
Signature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 23-11-2024
11:46:05 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:20420
5 MCRC-29417-2023
an IAS Officer reads as under:-
“सरपंच ाम पंचायत क याणपुरा जनपद पंचायत गोहद ने ाम पंचायत
क याण पुरा के से ल बक ऑफ इ डया शाखा गोहद के एकल खाता
मांक 1873264269 म अिधरो पत रािश के व रािश 14.00 लाख (चौदह
लाख मा ) जमा कर द गयी है तथा क . . 93/2017-18 अ-89 (19) म
स पूण त यो के आधार पर अिभकिथत रािश 22.63 लाख का समायोजन हो
जाने के आधार पर तथा ीमती राम ी सरपंच ाम पंचायत क याण पुरा के
ारा भी पु कये जाने से क सिचव का कोई दोष नह है ।
अतः वचारण उपरांत आस न वधानसभा िनवाचन 2018 म कमचा रय
क आव यकता को यान म रखते हुए ी दलीप िसंह गुजर िनलं बत सिचव
ाम पंचायत क याणपुरा को िनलंबन से बहाल कर ाम पंचायत
िनवरॉल म पद थ कया जाता है । िनलंबन अविध के व व एवं व ीय
अिधकार का िनराकरण म. . पंचायत राज एवं ाम वराज अिधिनयम
1993 क धारा 9 2 के तहत संचािलत करण मे िनराकरण के प ात गुण
दोषो के आधार पर कया जावेगा।”
From this order, it is clear that an amount of Rs.14,00,000/- was deposited
by Sarpanch of Gram Panchayat, Kalyanpura and according to the CEO, Jila
Panchayat Bhind, since, the entire amount of Rs.22,63,009/- was already adjusted
and in view of the statement of Sarpanch of Gram Panchayat Kalyanpura, it was
observed that applicant is not guilty. How such finding can be given by CEO who
is an IAS Officer is beyond understanding ? It appears that CEO, Jila Panchayat
Bhind gave a complete go by to the procedure for withdrawal of the amount.
The CEO Jila Panchayat, Bhind also passed the order in complete
ignorance of law that even a temporary embezzlement is an offence. Thus, it
appears that even CEO, Jila Panchayat, Bhind who is an IAS Officer is not well
conversant with law and unfortunately, he is holding a senior post being an IAS
Officer.
Since, Anoop Kumar Singh, who was holding the post of CEO Jila
Signature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 23-11-2024
11:46:05 AM
NEUTRAL CITATION NO. 2024:MPHC-GWL:20420
6 MCRC-29417-2023
Panchayat, Bhind is not a party to this application, therefore, this Court is
refraining itself from making any further comments on the conduct of Shri Anoop
Kumar Singh.
Be that it may be.
The procedure for withdrawal of amount is that after the work is carried
out, the sub-engineer has to prepare the measurement book and after quality
check, if it is certified that work has been actually carried out in accordance with
specifications then, bills are processed. This is to be done by Secretary. When
there was no building, no road at all, then how and under what circumstances
Secretary processed the bills ? Furthermore, the cheques are always issued with
the joint signatures of Secretary and Sarpanch. Thus, it is clear that the applicant
is a king pin in the entire episode and thus, it cannot be said that he has not
committed any offence even if, the entire allegations are accepted on their face
value.
Considering the totality of the facts and circumstances of the case, this
Court is of considered opinion that no case is made out warranting interference.
The application fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
PjS/-
Signature Not Verified
Signed by: PRINCEE
BARAIYA
Signing time: 23-11-2024
11:46:05 AM