Sachidanand Prasad vs The State Of Jharkhand

The present Cr.M.P has been preferred for quashing the order dated 29.09.2022 taking cognizance of the alleged offences and the order dated 28.01.2023 issuing summons against the petitioner passed by the learned C.J.M, Seraikella in connection with Seraikella P.S. Case No. 34 of 2018, corresponding to G.R. Case No. 288 of 2018, registered under Sections 409, 420, 467, 468, 471/34 of I.P.C. and under Prevention of Corruption Act, 2018 on the ground that he has been exonerated from all the charges vide order dated 16.02.2019 passed in Surcharge Case No. 10 of 2016 by the Joint Registrar, Co-opertive Societies, South Chotanagpur Division, Ranchi.

The prosecution case, in short, as per the written report of the informant, namely, Sri Krishna Bhagat, the then District Co-operative Officer, Seraikella-Kharswan, is that an audit was conducted by Sri Shiv Shankar Mishra, the then Sr. Audit Officer, Seraikella-Kharsawan in Kolabira LAMPS Ltd. for the audit years 2009-10 to 2014-15. In the audit report submitted by him, embezzlement and misuse to the tune of Rs. 2,06,32,286=70 (two crore six lakh thirty-two thousand two hundred eighty-six rupees and seventy paisa only) was found in the said LAMPS. On the basis of audit report, an enquiry was conducted by a joint team constituted in the said matter comprising of District Co-operative Officer, District Agriculture Officer and District Audit Officer, who submitted the enquiry report dated 03.01.2018 confirming embezzlement and misuse of the said amount in the Kolabira LAMPS.

It was further stated in the written report that on the basis of enquiry report, the Deputy Commissioner, Seraikella-Kharsawan directed the informant to file an F.I.R against the erring officers/employees, who were found involved in embezzlement and misuse of the said amount in the Kolabira LAMPS. Moreover, the names of four persons including the petitioner and one Rice Mill i.e. Shree Balaji Rice Mill, Gamharia were mentioned therein separately along with the amount recoverable from them and as per the given details, an amount of Rs.2,20,672/- was said to be recoverable from the petitioner.

Learned counsel for the petitioner submits that in the audit report submitted by Sri Shiv Shankar Mishra, Sr. Audit Officer, Co-operative Societies, Seraikella-Kharsawan vide letter No. 41/Chatra dated 12-11-2016, three allegations were levelled against the petitioner; first, he withdrew Rs.30,000/-from the savings bank account of the society, but no entry was made regarding the same in the cash register; second, an amount of Rs.41,500/- obtained from the sale of earlier stock was not deposited in the account of said society and the same was transferred in his own account and third, during his tenure, he withdrew an amount of Rs.42,057.00 through cheque from the savings account of the society and prepared draft of the said amount in the name of IFFCO, however, neither entry regarding purchase and sale of fertilizers was mentioned in the cash register nor the amount obtained from sale was deposited in the savings account of the society. For the said allegations, surcharge proposal under Section 40 of the Jharkhand Co-operative Societies Act, 1935 was produced against the petitioner and other accused persons in the Court of the Joint Registrar, Co-operative Societies, South Chotanagpur Division, Ranchi for recovery of the alleged misappropriated amount, which was accepted for hearing.

It is further contended that on the basis of audit report of Sr. Audit Officer, Co-operative Societies, Seraikella-Kharsawan, Surcharge Case No. 10 of 2016 was instituted in the Court of the Joint Registrar, Co-operative Societies, South Chotanagpur Division, Ranchi against six accused persons including the petitioner and vide order dated 16-02-2019, the said Court exonerated the petitioner from all the charges dropping the said surcharge case produced by the Sr. Audit Officer against him.

It is also submitted that in the order dated 16-02-2019 passed in Surcharge Case No. 10 of 2016, it has been clearly held that details of all the required transactions were entered in page Nos. 59 & 60 of the cash register. Thus, all the three allegations levelled against the petitioner were found not true and he was exonerated.

It is argued that the alleged offences against the petitioner was pertaining to the financial years 2009-10 & 2010-11 for which the audit report was submitted by the Sr. Audit Officer, Co-operative Societies, Seraikella-Kharsawan on 12.11.2016, however, the F.I.R was lodged on 21.03.2018. As such, the same was lodged after an inordinate delay, which has not been properly explained in the F.I.R.

It is also contended that earlier the petitioner had filed Cr.M.P. No. 4107 of 2019 seeking quashing of the F.I.R, which was disposed of by a Bench of this Court vide order dated 02.03.2020 giving liberty to him to approach the Investigating Officer and produce the relevant documents. Thereafter, the petitioner approached the I.O. of the case with all documents. Despite that the original Charge Sheet No. 109/22 dated 29.09.2022 and the supplementary Charge Sheet No. 06/2023 dated 28.01.2023 were submitted against him.

It is further submitted that the petitioner has retired from service and his department has issued 'No Objection Certificate' stating that there is no dues pending against him.

It is urged that since the petitioner was not found to have defalcated any money in Surcharge Case No. 10 of 2016 and he was exonerated from all the charges, the criminal proceeding against him is nothing, but a misuse of the process of law.

It is also contended that the F.I.R has maliciously been instituted against the petitioner with ulterior motive and the same does not prima-facie constitute any offence against him. On bare perusal of the cognizance order, it would be evident that the Court below has mechanically passed the said order without considering any material evidence.

It is further submitted that the petitioner has been dragged in the present case on false allegation and if the order taking cognizance is allowed to be continued, the petitioner shall suffer irreparable loss and injury.

Per contra, learned Spl. P.P. appearing on behalf of the opposite party-State submits that different paragraphs of the case diary would suggest that the witnesses examined during investigation, have corroborated the allegations levelled against the petitioner.

It is further submitted that the learned C.J.M has found sufficient materials on record to proceed further against the accused persons including the petitioner and vide order dated 28.01.2023, has issued summons against them.

According to learned Spl. P.P., it is well settled law that the High Court while exercising its inherent power under Section 482 of the Cr.P.C (now Section 528 of the BNSS), should not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not. The High Court being the highest Court of State should normally refrain from giving a prima-facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude which cannot be seen in their true perspective without sufficient material.

It is also submitted that the criminal proceedings and disciplinary proceedings can be launched simultaneously and as such exoneration in disciplinary proceedings (in this matter-a surcharge case) by itself is not a ground for quashing of criminal proceedings. The standard of proof required to establish the guilt in a departmental proceeding is quite different from that required in a criminal proceeding. The departmental proceedings or for that matter, criminal cases have to be decided only on the basis of evidence adduced therein.

It is further argued that the truthfulness of the evidence produced in a criminal case can be judged only after adducing the evidence and the criminal case cannot be rejected on the basis of the evidence produced in a departmental proceeding or on the report of an inquiry officer based on those evidences. Therefore, exoneration in a departmental proceeding ipso facto would not result into the quashing of the criminal prosecution.

It is also contended that to seek interference under Section 482 of the Cr.P.C (now Section 528 of the BNSS), three conditions have to be fulfilled- (i) the alleged injustice should be of a grave nature, and not of a trivial character;

it is palpable and clear rather than doubtful, and (iii) there exists no other provision of law by which the party aggrieved could have sought relief. However, none of the said conditions is fulfilled in the present case.

Heard learned counsel for the parties and perused the relevant materials available on record.

The petitioner has sought quashing of the order dated 29.09.2022 taking cognizance of the alleged offences as well as the order dated 28.01.2023 issuing summons against him passed by the learned C.J.M., Seraikella in connection with Seraikella P.S. Case No. 34/2018, corresponding to G.R. Case No. 288 of 2018, registered under Sections 409, 420, 467, 468, 471/34 of I.P.C. and under the Prevention of Corruption Act 2018.

The learned counsel for the petitioner primarily argues that for the same charges, Surcharge Case No. 10 of 2016 was initiated against the petitioner and in the said proceeding, he has been exonerated from all the charges vide order dated 16-02-2019 passed by the Court of the Joint Registrar, Co-operative Societies, South Chotanagpur Division, Ranchi observing that details of all the required transactions were entered in the relevant pages of the cash book. Thus, continuation of the present criminal proceeding would be an abuse of the process of law.

To appreciate the said contention of learned counsel for the petitioner, I have perused the FIR as well as the allegations levelled against the petitioner in Surcharge Case No. 10 of 2016. On comparative perusal, it emerges that the charges levelled against the petitioner both in the criminal as well as the departmental proceedings were similar. In both the proceedings, three allegations were levelled against the petitioner, which are mentioned as under for the convenience of reference:-

In the case of Radheshyam Kejriwal Vs. State of W.B. reported in (2011) 3 SCC 581, the Hon’ble Supreme Court has held that the finding in an adjudication proceeding in favour of a person facing trial for identical violation, will depend upon the nature of such finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue. However, in case of exoneration on merits where the allegation is found to be not sustainable at all and the person is held innocent, the criminal prosecution on the same set of facts and circumstances, cannot be allowed to continue. The underlying principle is that the standard of proof required to establish the guilt in criminal cases is far higher than in departmental proceedings.

It has further been held that the yardstick would be to judge as to whether the allegation in the adjudication proceeding as well as the proceeding for prosecution is identical and the exoneration of the person concerned in the adjudication proceeding is on merits. In case, it is found on merit in the adjudication proceedings that there is no contravention of the provisions of the Act, the criminal trial of the person concerned shall be an abuse of the process of the Court.

The aforesaid judgment was also relied upon by the Hon’ble Supreme Court in the case of Ashoo Surendranath Tewari Vs. Deputy Superintendent of Police, EOW, CBI & Anr. reported in (2020) 9 SCC 636 and the appellant of the said case was discharged from the offences under the Penal Code by observing that in view of the detailed CVC order dated 22-12-2011, the chances of conviction in a criminal trial involving the same facts appeared to be bleak.

In the case of P.S. Rajya Vs. State of Bihar reported in (1996) 9 SCC 1, the charge against the appellant was of acquisition of assets disproportionate to the income. The appellant was exonerated in the departmental proceeding in the light of the report of the Central Vigilance Commissioner, which was concurred by the Union Public Service Commission. The criminal case was also lodged for the same charge. The appellant filed application under Section 482 Cr.P.C for quashing of the order taking cognizance. The High Court dismissed the said petition by holding that the issue raised in the said petition can be looked into at the final stage and the same cannot be raised at the preliminary stage. In appeal before the Hon’ble Supreme Court, Their Lordships held that if the charges, which are identical, could not be established in the departmental proceedings, there is no occasion to further proceed against the accused in the criminal proceeding where the standard of proof required to establish the guilt is far higher than the standard of proof required to establish the guilt in the departmental proceedings.

In the case of Lokesh Kumar Jain Vs. State of Rajasthan reported in (2013) 11 SCC 130, the Hon’ble Supreme Court while applying the ratio laid down in the case of P.S Rajya (Supra.), held that as the appellant had already been exonerated in the departmental proceedings for identical charges, keeping the case pending against him for investigation, was unwarranted and the FIR deserved to be quashed.

Thus, it is no more res integra that if the charges in the criminal as well as departmental/administrative proceeding are same and if the order of exoneration of the delinquent employee is passed in the departmental/administrative proceeding on merit, then continuation of the criminal proceeding will be an abuse of the process of Court and as such the same is liable to be quashed. The underlying principle is that the standard of proof required to establish the guilt in a criminal proceeding is far higher than the standard of proof required to establish the guilt in a departmental proceeding.

In the instant case, the charges levelled against the petitioner, both in the surcharge case registered in the Court of the Joint Registrar, Co-operative Societies, South Chotanagpur Division, Ranchi and in the criminal proceeding were the same. The Court of Joint Registrar, after taking into consideration the evidences produced before him, explicitly held that the entries relating to withdrawal of the amount as well as the sale and purchase of fertilizers were already made in different pages of the cash register. Having recorded the said factual finding, the Joint Registrar exonerated the petitioner from the charges levelled against him. Thus, the exoneration of the petitioner in Surcharge Case No. 10 of 2016 was certainly on merit.

In support of the finding recorded by the Joint Registrar in the order dated 16.02.2019 passed in Surcharge Case No. 10 of 2016, the petitioner has annexed the relevant pages of the cash register along with the supplementary affidavit dated 06.01.2026. Learned counsel appearing on behalf of the State, though submits before this Court that the departmental proceeding and criminal proceeding can run simultaneously, however, fails to controvert the said entries made in the cash register. The cash register is an important document to prove the charges levelled against the petitioner in the criminal trial. However, in the impugned order dated 28.01.2023, the learned Trial Court has also not given any finding with respect to the said entries made in the cash register. It is a well settled law that once the infrastructure collapses, the superstructure is bound to collapse as one cannot have a building without the plinth. Thus, I am of the considered view that the continuance of the criminal proceeding against the petitioner will be an abuse of the process of Court.

For the reasons as aforesaid, the order dated 29.09.2022 taking cognizance of the alleged offences and the order dated 28.01.2023 issuing summons against the petitioner passed by the learned C.J.M, Seraikella in connection with Seraikella P.S Case No. 34 of 2018, corresponding to G.R Case No. 288 of 2018 are hereby quashed.

The present Cr.M.P is accordingly allowed.

Consequently, pending interlocutory applications, if any, also stand disposed of.