Dilip Kapse vs The State of Madhya Pradesh and Another

N.K. Gupta, J.—The applicant has preferred the present petition u/s 482 of the Cr. P.C. to get the proceedings of the criminal case No. 982/2007 pending before the Chief Judicial Magistrate, Harda to be quashed. The facts of the case, in short, are that, the respondent No. 2 had lodged a criminal complaint against four persons including the applicant, who at that time was working as Food Officer at Harda. Harda was affected by flood and the Government provided 1500 quintals wheat in August, 2004 to distribute such wheat amongst the flood affected persons @ 35 kgs. per family. Wheat was to be distributed at the cost, which was applicable to the BPL persons. The complainant asked about the distribution of wheat but, the applicant gave no satisfactory answer. The complainant wrote a letter dated 23.4.2005 for the enquiry relating to distribution of 1500 quintals of wheat. In continuation to his complaint, enquiry was initiated but, the accused persons threatened the witnesses and therefore, no appropriate enquiry could be done. The complainant tried to get the certified copy of various documents relating to the distribution of 1500 quintals of wheat but, he could not get any document. Misappropriation of wheat was duly published in various newspapers dated 23.3.2005. The complainant wrote a letter to the Chief Secretary to get the permission for prosecution against the applicant but, he could not get any permission. Ultimately, he had lodged a criminal complaint before the Magisterial Court.

The learned Chief Judicial Magistrate, Harda after recording the evidence of various witnesses under sections 200 and 202 of the Cr. P.C. sent the file to record room vide order dated 25.11.2006 because no sanction was received u/s 197 of the Cr. P.C. but, thereafter, vide order dated 15.6.2007, the learned Sessions Judge directed that no sanction was required for registration of the case then, vide order dated 18.6.2007, the complaint was registered for offence punishable u/s 409 of IPC against the applicant and accused No. 3 Food Inspector H.M. Khuraiyya, Harda.

I have heard the learned counsel for the parties. None appeared for the respondent No. 2 though notice of the petition was served to him. Ultimately, an SPC was issued for the date 28.11.2013 but, no Advocate appeared on behalf of the respondent No. 2 and therefore, the matter was heard finally with the pretext that the respondent No. 2 was not interested to contest the matter.

After considering the submissions made by the learned counsel for the parties, it was for this Court to consider mainly two points. Firstly, that whether there was sufficient evidence for the offence u/s 409 of IPC to be registered against the applicant and secondly, whether the prosecution sanction was required or not. Vishal Mishra (P.W. 1) was examined before the Chief Judicial Magistrate, Harda and his contention was dependent upon the suspicion. He could not show anything that the applicant committed breach of trust regarding the property entrusted to the applicant. It was admitted that 1500 quintals of wheat was provided to the applicant for distribution amongst the flood affected persons @ BPL standards. B.S. Evane (P.W. 2) who was Food Officer at Collector office, Harda has stated that the applicant vide order dated 25.8.2004 gave 500 quintals of wheat to each of the 3 societies namely Maa Sharda Prathmik Upbhandar, Khedipura, Jai Bajranj Prathmik Upbhandar, Imlipura, Manpura Jatra Padav and Maa Bhawani Prathmik Upbhandar, Bangali Colony, Harda to distribute amongst the flood affected persons for free sale to BPL persons. Ashok Dixit (P.W. 3) who was examined on behalf of Jai Bajranj Prathamik Upbhandar, gave the entire particulars of distribution of wheat amongst various flood affected persons between 26.8.2004 upto 10.9.2004 and he could sell 201 quintals of wheat to the flood affected persons. Ganeshilal Rathore (P.W. 4) was examined on behalf of Maa Bhawani Prathmik Upbhandar, Manager who distributed 519.25 quintals of wheat in between 27.8.2004 to 8.9.2004 to the flood affected persons. Similarly, Subhas Sonaniya (P.W. 5) was examined on behalf of Maa Sharda Prathmik Upbhandar, Harda, who sold 500 quintals of wheat amongst the flood affected persons in between 27.8.2004 to 15.9.2004.

After considering the evidence given by the persons who distributed the wheat from their stores as given by the applicant, it appears that the entire 1500 quintals of wheat was distributed amongst the beneficiaries. The main objection raised by the complainant before the revisionary Court and the trial Court is that it was directed that 35 kgs. of wheat per family was to be distributed and a separate register be kept for that distribution. Since wheat was not to be provided free of cost and it was to be given at the cost which was applicable for BPL persons then, it was not necessary that the beneficiaries could purchase 35 kgs of wheat at a time and therefore, if 35 kgs of wheat was not supplied at a time then, it cannot be said that it was misappropriated. The complainant moved a complaint on the basis of a news published in the newspaper without getting any document from the office of the applicant but, when the witnesses were called, they established that the wheat supplied by the Government to the applicant was given to various sub agencies for its supply to the beneficiaries. It is possible that sub agencies who obtained the wheat for distribution could have done some misappropriation but, for their act, it cannot be said that misappropriation was done by the Food Officer i.e. the applicant. After getting the wheat entrusted, he delivered the entire wheat to 3 sub agencies and therefore, he acted in an appropriate manner, so that the wheat could be distributed amongst the beneficiaries. Under such circumstances, it could not be said that prima facie an offence u/s 409 of IPC is made out against the applicant.

The learned counsel for the applicant placed his reliance on the judgment of Hon''ble the Apex Court in case of Kailash Kumar Sanwatia Vs. The State of Bihar and Another, , Hon''ble the Apex Court in that case had considered about the facts whether offence u/s 409 of IPC was not found to be constituted. In the light of law laid by Hon''ble the Apex Court in case of Kailash Kumar Sanwatia (supra), the facts of present case are considered then, it would be apparent that no offence u/s 409 of IPC is constituted against the applicant.

The complainant could not produce any witness before the Chief Judicial Magistrate, Harda who could say that his name was shown in the list of the persons to whom wheat was given and he did not receive any wheat. Under such circumstances, if there was any irregularity in the accounts kept by various sub agencies then, it cannot be said that wheat was given to those sub agencies for misappropriation. Under such circumstances, no offence u/s 409 of IPC is made out against the applicant. Complaint filed for offence punishable u/s 409 of IPC is registered against the applicant without any basis, which cannot be permitted to continue.

So far as the sanction u/s 197 of the Cr. P.C. is concerned, the learned counsel for the applicant has submitted various judgments of Hon''ble the Apex Court in cases of Parkash Singh Badal and Another Vs. State of Punjab and Others, , R. Sai Bharathi Vs. J. Jayalalitha and Others, , in which Hon''ble the Apex Court dealt with the provisions of section 19 of the Prevention of Corruption Act. In these judgments, case u/s 409 of IPC was not considered. If some properties were entrusted to a public servant then, it is not the part of his duties to misappropriate that property. If that public servant commits the offence of breach of trust then, certainly that offence is not a part of his duties and therefore, for commission of that offence, the public servant does not have any shelter u/s 197 of the Cr. P.C. Under such circumstances, the learned Sessions Judge did not commit any error in passing the order in favour of the complainant that no sanction u/s 197 of the Cr. P.C. was required.

On the basis of the aforesaid discussion, no offence u/s 409 of IPC is constituted against the applicant on the basis of the evidence adduced by the complainant and therefore, the learned Chief Judicial Magistrate has committed an error of law in registration of the complaint. It is a fit case in which the petition u/s 482 of the Cr. P.C. filed by the applicant may be accepted. Consequently, the petition is hereby accepted and the proceedings of the trial Court in criminal case No. 928/2007 are hereby quashed. The learned Chief Judicial Magistrate, Harda is directed to drop the proceedings against the applicant. However, the interim stay granted in the matter is hereby vacated. The trial Court may proceed with the case against the remaining accused persons. A copy of the order be sent to the trial Court for information and compliance.