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Judgment
This batch of petitions under Section 482 of Cr.P.C. emanates from order dated 15/03/2013 (Annexure P/5) by which learned trial Magistrate has
taken cognizance of offence under Sections 167, 420 and 477A of the IPC against the petitioners. Since, common question of fact and law is involved
in all these petitions, therefore, they have been heard together and are decided by this common order.
Petitioners have challenged the order of the trial Magistrate taking cognizance of offence against them in the following factual backdrop :Â
(i). Sole respondent/complainant filed a complaint under Section 200 of the Cr.P.C. against the four petitioners stating inter alia that he was appointed
in Bilaspur Division of Railways on 13/03/1965 on the post of Khalasi and thereafter, he was promoted as Fireman, Shunter and Diesel Engine Driver.
Finally, after serving for 40 years, he retired as Senior Goods Driver on 31/03/2006 and an amount of Rs. 1,97,477/Â was paid to him as Provident
Fund.
(ii) It is the case of the respondent/complainant that in the year 1965, he was alloted Provident Fund Account No. 433854A but the amount deducted
every month from his account for Provident Fund was deposited in another account bearing No. 4338546 which was alloted to one Manik Rao. When
the respondent/complainant came to know about this, he got his Provident Fund Account No. changed to 754171 in the year 1992, but the same error
started happening again and the amount deducted from his account was again being deposited to different accounts and due to that, he was only paid
Rs. 1,97,477/Â from his Provident Fund account which was Rs. 12,02,523/Â less than what he was expecting to get at the time of his retirement and
thus, the petitioners have committed the aforesaid offences.
(iii) Respondent/complainant examined himself as well as his witness Tanaji Rao on 05/10/2012 and ultimately, learned trial Magistrate took
cognizance of offence under Sections 167, 420 and 477A of the IPC against the present petitioners.
Petitioners herein have sought quashment of order taking cognizance mainly on the ground that all the four petitioners were posted as senior
officers in Railways on 06/05/2009, 06/02/2008, 10/11/2009 and 14/07/2010 respectively which is apparently after the respondent/complainant retired
from service. It is further their case that taking the allegations in the complaint at its face value, no offence under Sections 167, 420 and 477A of the
IPC is made out against them as there is no specific allegation in the complaint with regard to any personal role played or any participation in the
alleged offence by the petitioners, much less any act on their part which may attract the aforesaid offence. Admittedly, petitioners are public servants
and unless sanction is granted under Section 197 of the Cr.P.C. by the Central Government, no prosecution would lie against them as it is alleged by
the respondent/complainant that his Provident Fund account was not maintained in accordance with law and thereby, actual Provident Fund amount
which he was entitled to get was not paid to him and petitioners have committed the aforesaid offence, as such, the complaint deserves to be quashed
and moreover, no return has been filed indicating that prima facie case is made out against the petitioners herein.
Mr. Abhishek Sinha, learned counsel for the petitioners would submit that taking the complaint filed by the respondent/complainant as it is, no
offence under Sections 167, 420 and 477A of the IPC is made out against the petitioners as admittedly, they have been posted as senior officers in
Railways much after the date of retirement of respondent/complainant. No role of petitioners has been attributed in the commission of aforesaid
offence and petitioners, being public servants, for taking cognizance of the aforesaid offence against them, sanction has to be obtained from the
Central Government in view of the mandatory provisions contained under Section 197 of the Cr.P.C. which has not been done, therefore, the
complaint filed by the respondent/complainant as well as the order taking cognizance of the aforesaid offence against the petitioners be quashed in
light of the decision rendered by the Supreme Court in the matter of Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi and Ors. AIR 1976 SC 1947.
Mr. Amit Kumar and Ms. Gunjan Tiwari, learned counsel for the respondent/complainant would vehemently oppose the submission made by
learned counsel for the petitioners and submit that it is a case where the respondent/complainant was paid only Rs. 1,97,477/Â as Provident Fund after
serving for 40 years which is Rs. 12,02,523/Â less than what he was expecting to get, as such, learned trial Magistrate has rightly taken cognizance of
offence under Sections 167, 420 and 477A of the IPC against the petitioners of which no exception can be taken by them as they are responsible for
not depositing the amount of Provident Fund in the account of respondent/complainant which he is otherwise entitled to get, therefore, the present
petitions deserve to be dismissed.
I have heard learned counsel for the parties, considered their rival submissions made herein above and perused the records.
It is admitted position that respondent/complainant retired from service on 31/03/2006 as Sr. Goods Driver and on the date of his retirement, he was
paid Rs. 1,97,477/Â as Provident Fund which he accepted without any protest or demur. After almost five years, on 04/07/2011, he filed a complaint
under Section 200 of the Cr.P.C. before the trial Magistrate against the four petitioners.
It is the case of the petitioners that all four of them were posted as senior officers in Bilaspur Division of Railways on 06/05/2009, 06/02/2008,
10/11/2009 and 14/07/2011 respectively, which is much after the date on which respondent/complainant retired from service i.e. on 31/03/2006.
The complaint (Annexure P/2) filed by the respondent/complainant on 04/07/2011 would only disclose that he retired from service on 31/03/2006
and after serving for 40 years, he was paid only Rs. 1,97,477/Â as Provident Fund and was provided with only one page of his service book and he
was compelled to accept the said amount of Provident Fund. In paragraph 12 of the complaint, respondent/complainant has also stated that the amount
which was deducted every month from his account was not deposited in his Provident Fund Account and it was rather deposited into other persons
accounts which is an illegal act on the part of the petitioners due to which he only got Rs. 1,97,477/Â whereas he ought to have received total amount
of Rs. 14,00,000/Â as Provident Fund after retirement.
From the perusal of the entire complaint, it is evident that there is no such allegation that at any point of time prior to 31/03/2006, petitioners were
posted in Bilaspur Division where the respondent/complainant was posted at or that petitioners are the persons specifically responsible for deducting
the amount of Provident Fund from respondent/complainant's account and depositing into someone else's account rather than that of the
respondent/complainant's account.
Petitioners have filed the document (Annexure P/4) which is a part of Indian Railway Accounts Code clearly indicating that responsibility for the
internal check of all transactions pertaining to, and the maintenance of the accounts of the State Provident Funds to which the personnel of the railway
subscribe devolves upon the Accounts Officer. Nowhere in the complaint it has been alleged by the respondent/complainant that either of the four
petitioners, at any point of time prior to 2006, were posted in Bilaspur Division as Accounts Officer and in that capacity they are responsible for not
crediting the actual amount of Provident Fund in respondent/complainant's account. Likewise, the entire complaint only shows that the sole grievance
of respondent/complainant is that he has only been paid Rs. 1,97,477/Â which is Rs. 12,02,523/Â less than what he is actually entitled to get.
Another submission made by learned counsel for the petitioners is that since petitioners are public servants, cognizance of aforesaid offence
cannot be taken against them without the sanction from the Central Government as per the provision contained under Section 197 of the Cr.P.C., as
such, sanction under Section 197 of the Cr.P.C. was absolutely necessary before taking cognizance of offence under Sections 167, 420 and 477A of
the IPC against the petitioners as it is not a case of the respondent/complainant that the said offence was committed in their personal capacity or while
acting personally.
At this stage, it is appropriate to notice the pertinent decision rendered by the Supreme Court in this regard in Nagawwa (supra) wherein their
Lordships have laid down the considerations to be made by the Magistrate while issuing process and when the order issuing process can be set aside
which states as under :Â
“5...Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set
aside:
(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out
absolutely no case against the accused or the complaint does net disclose the essential ingredients of an offence which is alleged against the accused;
(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion
that there is sufficient ground for proceeding against the accused;
(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on
materials which are wholly irrelevant or inadmissible; and
(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority
and the like.â€
Reverting to the facts of the present petitions in light of the principle of law laid down by the Supreme Court in Nagawwa (supra), it is quite vivid
that petitioners were posted at Bilaspur Division much later than the retirement of respondent/complainant from service on 31/03/2006. There is no
allegation in the entire complaint that petitioners were either posted at Bilaspur Division prior to 31/03/2006 or at any point of time they were posted as
Accounts Officer or that they personally directed for disbursement of the said Provident Fund amount from respondent's/complainant's account and
depositing it into other Provident Fund Accounts rather than that of the respondent/complainant. Likewise, along with the complaint, no other
document has been filed by the respondent/complainant demonstrating the diversion of respondent/complainant's Provident Fund amount to the
account of one Manik Rao at the instance of the petitioners except for the statement made by Dr. D.S. Shastri, his witness, nothing has been brought
on record to show that petitioners are personally responsible for respondent/complainant not being paid the Provident Fund amount which he is
otherwise entitled to, whereas petitioners have filed the document (Annexure P/1) in all four of the petitions, which shows that petitioners were posted
at Bilaspur Division w.e.f. 06/05/2009, 06/02/2008, 10/11/2009 and 14/07/2010 respectively that evidently demonstrates that they have been posted at
Bilaspur Division much later than the retirement of respondent/complainant on 31/03/2006, as such, taking the complaint at its face value and the
statement recorded in support thereof, absolutely no prima facie case is made out against the four petitioners for taking cognizance of offence under
Sections 167, 420 and 477A of the IPC against them.
Similarly, petitioners are admittedly covered within the meaning of 'public servants' under Section 197 of the Cr.P.C., therefore, cognizance of
offences cannot be taken against them without the previous sanction of the Central Government. Even assuming that the petitioners were posted at
any particular point of time at the Bilaspur Division, it is still not the case of the respondent/complainant that petitioners, in their personal capacity,
diverted the Provident Fund of the respondent/complainant into other accounts and thereby, respondent/complainant could get only Rs. 1,97,477/Â‐
which is Rs. 12,02,523/Â less than what he is actually entitled to get, as such, it is a case where paragraph 5 (1) to (4) of the decision rendered by the
Supreme Court in Nagawwa (supra) would squarely attract.
Even otherwise, it is the case of the respondent/complainant made throughout in the complaint, that he has been paid only Rs. 1,97,477/Â as
Provident Fund which is Rs. 12,02,523/Â less than what he is actually entitled to get and it appears that on account of nonÂpayment of the Provident
Fund to the respondent/complainant which he is otherwise entitled to get, the said complaint has been filed by him. Therefore, in my considered
opinion, it is a fit case where the order impugned of the trial Magistrate taking cognizance of offence under Sections 167, 420 and 477A of the IPC
against the petitioners vide Annexure P/5 as well as the revisional order dated 07/07/2017 passed by the Additional Session Judge deserve to be and
are accordingly quashed and consequently, the complaint case bearing No. 582/2013 pending before the Court of learned Judicial Magistrate First
Class, Bilaspur hereby stands quashed. However, this will not bar the respondent/complainant to make a representation before the competent
authorities for payment of Provident Fund in discharge of his official duties which he is entitled to get (if any) and if such a representation is made, it
will be considered by the said authorities in accordance with law.
With the aforesaid observations/directions, these petitions under Section 482 of the Cr.P.C. are allowed to the extent indicated hereinÂabove. No
cost(s).