Mirza Yusuf Baig vs State

R.B. Naik, J.—The petitioner/accused 2 is convicted for an offence punishable u/s 420 read with Section 34 of the Indian Penal Code, 1860 and is sentenced to simple imprisonment for a period of two months and to pay a fine of Rs. 250/- in default to suffer simple imprisonment for a period of 15 days. He is further convicted for an offence punishable u/s 468 read with Section 34 of the IPC and sentenced to undergo simple imprisonment for two months and pay a fine of Rs. 250/- in default to undergo simple imprisonment for 15 days. The sentences were ordered to run concurrently by judgment dated 26-3-2002 passed by the Additional Judicial Magistrate First Class, Humnabad in C.C. No. 759 of 1998. The said order of conviction and sentence is confirmed by the Presiding Officer, Fast Track Court II, Bidar by judgment dated 4-10-2005 in Cri. A. No. 21 of 2002.

It is the case of the prosecution that the petitioner/accused was working as a Block Development Officer in Humnabad between the period from 12-6-2001 to 18-7-1992. During the year 1991 the Central Government floated a scheme known as Million Well-Scheme, accused 1-Jhula Bhai W/o Somala resident of Bhandrapur applied for the relief under the scheme and under the scheme a sum of Rs. 12,500/- was to be sanctioned to the deserving applicants at various stages and in seven installments. Deceased accused 3 was working as Junior Engineer in the Block Development Officer. Accused 1 after making an application the said application was scrutinised by the committee and the benefit of the scheme was directed to be extended to accused 1. The agreement was entered into by accused 1 with the Block Development Officer as at Ex. P. 19. It is to be noted at this stage itself that a person availing the benefit of the scheme if were not to implement or carry out the purpose of the scheme, was liable to pay back money received under the scheme. The work of digging a well in the land belonging to accused 1 was taken up. Further, there was no progress in the implementation of the work. At the time of inspection, pit hardly measuring 2'' x 10'' depth was found in the landed property of accused 1. A mahazar Ex. P. 2 came to be drawn. In the meanwhile reports were furnished by accused 3-BDO stating that there was progress in the digging of the well and the reports were relayed upon by accused 2. On the basis of the report furnished by accused 3 the accused petitioner certified that the amounts could be released and on the basis of the certification the entire amount in 7 stages came to be released in favour of accused 1. Thereby accused 1 totally withdrew a sum of Rs. 12,500/- which she was entitled to under the said scheme.

During inspection since the well was not to be found dug a complaint came to be filed arraying Jhula Bhai as accused 1, Mirza Yusuf Baig as accused 2, and Vishwanath as accused 3 for offences punishable under Sections 420, 468 read with Section 34 of the IPC. The Trial Court as well as the First Appellate Court held all the three accused guilty of offence as stated above and has imposed sentence as stated. Challenging the said order of conviction and sentence accused 1 and 2 preferred appeals. The appeal preferred by accused 2 was dismissed. Likewise the appeal of accused 1 was also dismissed. As accused 3 died the proceedings against him got abated. Challenging the order passed in the appeal, this revision petition is filed by petitioner-accused 2.

P.Ws. 1 to 13 were examined in support of the prosecution case. Exs. P. 1 to P. 51 were got marked. The defence of the accused is one of total denial.

I have heard the learned Counsel for the petitioner and the State Public Prosecutor.

It is contended by the learned Counsel for the petitioner that the entire material of prosecution filed in the form of challan though did not disclose offence u/s 420, the Trial Court fell in error and framed a charge for an offence punishable u/s 420 of the IPC. He also submitted that Section 468 did not get attracted in the instant case. The third limb of the argument of the learned Counsel for the petitioner was that the allegations reveal that the offence as alleged to have been committed were during the course of duty. The petitioner in the instant case is BDO and public servant, the prosecution has filed charge-sheet without prior sanction as provided u/s 197 of the Code of Criminal Procedure, 1973.

Per contra, learned State Public Prosecutor submitted that the petitioner/accused being a Block Development Officer, his job and duty as per the circular was to ascertain the stage wise progress of the work carried on for digging of the well and then thereafter to certify the next payment and the certificates issued by the petitioner herein on 11-6-1991, 18-9-1991, 15-3-1991, 24-4-1992, 8-7-1992 and 21-7-1992. Exs. P. 5 to P. 11 would all go to establish that he has certified stating that he has inspected the spot. On careful scrutiny of the certificates, it is found that he has certified the quantities of the measurements on the dates referred above. The specific word used under certification are "certified that measurements were taken by me and measurements were checked by me on various dates as referred above" and that he found the same to be correct and the work is satisfactory executed.

Learned Counsel for the accused points out that this certification is based upon the report furnished by the Junior Engineer in Block Development Authority Office who is accused 3. A Block Development Officer is not supposed to go and make spot inspection of every well dug. He has to necessarily rely upon the reports furnished by Sub-Ordinate Officer like Junior Engineer and also the contractors concerned. The wordings in the certificate would clearly establish that he has certified the reports furnished by the Junior Engineer. The first column of the certification indicates that the measurements were taken by the officer-in-charge of the work. Thereafter the Memorandum of Payment column is filled up and the bill is passed by the petitioner/accused herein. It is quite common that the higher officers do not personally go and inspect the spot unless and until it is found to be specifically necessary to make the inspection. Here in the instant case an agreement is also taken from accused 1 whereunder accused 1 has agreed that if in the event of failure of doing work the money received will be reimbursed. The said agreement is at Ex. P. 19. On the basis of the sanction made by the Committee sanctioning an amount of Rs. 12,500/- which was supposed to be paid in seven installments, an agreement has been entered into.

Learned Counsel for the petitioner submits that since these events go to establish that at the initial stage, there was no inducement on the part of the petitioner or any other accused nor they have received any person fraudulently or dishonestly to deliver any property, the action of the petitioner/accused does not fall within the definitions of Section 415 of the IPC. However, a reading of Section 415 of the IPC for cheating which reads as follows.:

Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

It clearly indicates that the result and consequence of a person having been cheated would also bring the action of the accused person within the ambit of cheating. It is not necessary that at the initial stage itself there should be element of cheating. Though every breach of contract may not amount to cheating, but in a given case if it is established that a person is cheated, the action of the accused person that he intended to deceive his action was fraudulent at the initial stage itself can be presumed.

Here in the instant case it was accused 1 who made an application for sanction of the loan amount. The Committee has sanctioned the loan amount thereafter accused 1 executed an agreement agreeing for the terms of the sanction. The work is taken up and the same is supervised from time to time by accused 3. Accused 3 and the Contractor have submitted progress reports. The petitioner being a Block Development Officer, on the basis of the reports furnished by the contractor and accused 3 has certified that he has scrutinised and verified the reports with regard to the measurements and progress of work. There is nothing on record to show that the petitioner has personally visited the spot and made his report. His reports are based on material produced by accused 3, as such the finding of the Trial Court as well the First Appellate Court that the accused petitioner has created a false report, does not hold good since the said reports are not on the personal inspection of petitioner-accused 2, as such the conviction of the petitioner for the offence punishable u/s 468 is liable to be set aside.

However, as regards the conviction u/s 420 of the IPC as observed above, it was the committee, which has sanctioned the loan amount. Ex. P. 19-agreement is executed by accused 1 and based upon the reports of accused 3, it is certified by the petitioner as Block Development Officer that there was a progress in digging of the well.

There is no material on record to establish that the petitioner accused has connived with accused 3 for preparation of false reports. So in the instant case even if the consequence of such reports has resulted in cheating, it cannot be presumed, in the instant case, it was accused 2 who had connived in the commission of the offence punishable u/s 420 of the IPC. The material on record may utmost make out case for the said offence against accused 3 and accused 1 but not against accused 2. It is reported that accused 3 is no more. The proceedings against him are already abated.

As far as accused 1 is concerned, she appears to be rustic villager who has made an application for sanction of loan. She appears to be ignorant and innocent of the further transaction relating to the release of the loan amount. Though no revision petition is filed by her, she too is entitled for the benefit of doubt regards her involvement in the commission of the offences alleged and an order of acquittal. Hence I pass the following:

Revision petition is allowed. Not only the petitioner/accused but also accused 1 are acquitted of the charges leveled against them. The order of conviction and sentence as against accused 1 and 2 are set aside. The bail bonds executed by accused 1 and 2 shall stand dissolved. The fine amount if any, paid by the accused 1 and 2 shall be refunded to them.