Rajesh Prasad Gupta Vs the State of Assam and Anr.

Heard Mr. D. K. Baidya, learned Counsel appearing for the petitioner. Also heard Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent and Mr. D. Mahanta, learned Counsel appearing for the respondent No.2/informant.

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2. By way of this petition under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973, the petitioner is seeking quashing of the impugned order dated 10.07.2018 whereby charge under Section 417 of the Indian Penal Code (hereinafter referred to as “IPC”) was framed against the petitioner, the Charge-sheet No. 274/2014 and the proceedings thereof in connection with G.R. Case No. 1012/2013 pending in the Court of learned Additional Chief Judicial Magistrate, Goalpara.

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3. The facts of the case are that the respondent No.2/informant lodged an FIR on 26.05.2013 alleging interalia that the Lakhipur Town Committee has informed the General public, the Deputy Commissioner, Goalpara District and the Circle Officer, Lakhipur Revenue Circle that they have published the Tender Notice amounting to cost of Rs. 1415.17 lakh for four numbers of works under “NLCPR2008/2009 under Lakhipur Town Committee” in “Dainiak

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Agradoot” and in “The Assam Post” in its issue dated 19.05.2013, but however, no such tender notice from Lakhipur Town Committee was seen to be printed in the above mentioned newspapers. It is accordingly alleged that the Chairman of the Lakhipur Town Committee i.e., the petitioner in collusion with some employees of the committee without giving any notice in the aforesaid two newspapers has cheated the General public, the Deputy Commissioner, Goalpara District and the Circle Officer, Lakhipur Revenue Circle by manufacturing two tender notices. The said FIR has been registered as Lakhipur P.S. Case No. 265/2013 dated 26.05.2013 under Section 120(B)/465/468/471/420/409 of IPC. Thereafter, investigation was carried out and Charge-sheet was submitted on 22.12.2014 by Charge-sheet No. 274/2014. Upon the aforesaid Charge-sheet being submitted, the trial Court by order dated 10.07.2018 framed charge under Section 417 of IPC against the petitioner and accordingly, issued summons to all the prosecution witnesses. Situated thus, the present petition has been filed for quashing the aforesaid order dated 10.07.2018 passed by the trial Court framing charge against the petitioner.

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4. Mr. D. K. Baidya, learned Counsel for the petitioner submits that no criminality can be said to be made out in the face of the material collected by the prosecution in support of the prosecution case. He further submits that it is also apparent from the material collected by the prosecution especially the statements of the

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witnesses who are employees in the Office of the Directorate of Information and Public Relations, Dispur, Guwahati that the petitioner had forwarded the advertisement in question to be published in the newspapers. He accordingly submits that the continuation of criminal proceeding against the petitioner is totally unjustified.

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5. Per contra Mr. D. Mahanta, learned Counsel appearing for the respondent No.2/informant submits that the enquiry held by the Secretary to the Government of Assam, Urban Development Department in connection with the anomalies in Lakhipur Town Committee clearly reveals that the petitioner has committed illegalities while discharging his duties as Chairman of the Lakhipur Town Committee. He further submits that in view of the enquiry report the criminal proceedings ought not to be scuttled.

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6. I have given my prudent consideration to the arguments made by the learned Counsel for both the contending parties, and also perused the material available on record.

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7. Apt at the outset to refer to the contents of the subject FIR which reads as hereunder:

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To,

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The Officer-In-Charge Lakhipur Police Station

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Date:

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Complainant: Anisur Rahman, Son of Ajijur Rahmari, village: Ward No.II(Amulapatty) P.S:Lakhipur, Dist:Goalpara(Assam)

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Sir,

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Most respectfully it is stated that The Lakhipur Town Committee has informed the General public, the Deputy Commissioner, Goalpara District and the Circle Officer, Lakhipur Revenue Circle that they have published the Tender Notice amounting to Cost Of Rs.1415.17Lakh for four numbers of works under "NLCPR-2008/2009 under Lakhipur Town Committee" in "Dainik Agradoot" and in "The Assam Post "in its issue dated 19.05.2013.But not such Tender Notice from Lakhipur Town Committee were seen printed in the above mentioned news papers in the issue dated 19.05.2013. It is worth mentioning that the Chairman of the lakhipur Town Committee in collusion with some employees of the Committee, without giving any Notice in the aforesaid two News Papers has cheated the general Public, the Deputy Commissioner, Goalpara District and the Circle Officer, Lakhipur Revenue Circle by manufacturing two Tender Notice.It is to be mentioned herein that there arises several irregularities and corruptions in the works conducted by the lakhipur Town Committee. It is therefore prayed that your Honour will stop the Tender to be held on 28.05.13 and take necessary action. It is out simple prayer before your Honour.

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N.B:Photocopies of the two manufactured news papers sent to the Deputy Commissioner and circle officer is enclosed along with the ejahar.

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Name and address of the accused persons:

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1.Sri Rajesh Prasad Gupta, S/O: Llate Bindeswar Prasad Gupta, vill: Ward No.3,lakhipur Town, P.S:lakhipur, Dist:Ggoalpara, Assam

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2.Sri Uttam Kumar Sarkar Head Assistant, Lakhipur Town Committee, Lakhipur

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Written as per the complainant and read over accordingly Sd/-Anisur Rahman

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Signature of the complainant Sd/-A.Rahman, Lakhipur

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Received and registered Lakhipur PS case No.265/2013 dt.26.5.13 U/S 120(B)/465/468/ 471/420/409 IPC.

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8. Reading of the aforesaid FIR, it appears that the allegations against the petitioner is that the advertisement in connection with the subject tender could not be found in the two newspapers as claimed by the petitioner and in that view it is stated that the petitioner has cheated the public and the district administration. It further appears that on the basis of the aforesaid allegation, the jurisdictional Police Station registered the case under Section 120(B)/465/468/471/420/409 of IPC against the petitioner. It further appears that the Investigating Officer has recorded statement of the witnesses during investigation.

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9. Apt to refer to the statement of the complainant/respondent No.2, which reads as hereunder: -

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“My name and address are as given above. I am aged 40 years. I am a businessman. At about 10.00 AM on 24.05.2013 my friend Sanowar Hussain informed me over phone that notice inviting tender for four works for Rs. 1415.17 Lakh of NLCPR 2004-07 under LakhipurTown Committee has been published, with certain terms and conditions, in the office of the town committee and accordingly I went to the office of the town committee. When I asked Rajesh Prasad Gupta, the chairman of the town committee about the terms and conditions of the tender, he told me that the

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advertisement with the terms and condition has been published in 'Dainik Agradooť and 'The Assam Post dated 19.05.2013. Subsequently at about 8.30 AM on 25.05.13 my friends Abdul Matin, Sanowar Hussain and Muzammil Hoque gave me the copies of 'Dainik Agradoot' and 'The Assam Post published on 19.05.2013 but as the advertisement published in the newspapers and the one given by the town committee were not in conformity, on 25.05.13 the copy of Dainik Agradoot dated 19.05.13 was shown to the Deputy Commissioner, Goalpara District. The Deputy Commissioner asked for copies of both the newspaperand at 11.00 AM on 27.05.13 we gave the newspapers to him. In the meanwhile, on 25.05.13 I lodged an ejahar with Lakhipur PS with a request for an investigation in this regard. I suspect that Chairman Rajesh Prasad Gupta and Head Assistant Uttam Kumar Sarkar has intended to misappropriate the money by committing forgery/fraud.”

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10. Apt also to refer to the statement of Abdul Matin who is a friend of the complainant, which reads as hereunder: -

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“My name and address are as given above. I am aged 33 years. I am a business man. At about 11.00 AM on 28.05.13 I went to the office of Lakhipur Town Committee with regard to certain works under RTI. When I had a look on the notice board I found that there was a tender on 28.05.13. When I asked the Chairman of the Town Committee about the tender, he replied that the advertisement inviting tender was published in DainikAgradoot and The Assam post newspapers on 19.05.13. Then Agradoot and The Assam Post were not in circulation at Lakhpur locality. When I asked the Chairman of the Town Committee why the tender notice hanged in the notice board remained signed on 16.05.13 and why it remained hanged in the notice board with fresh/raw glue (not dried up), the Chairman Rajesh Gupta picked up an argument with me and told that it was

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hanged on 16.05.13. Then I asked for the copies of the newspaper in which the notice for tender to be held on 28.05.13 and under his instruction, Uttam Sarkar, the Head Assistant of the office gave me two copies of the advertisement. As a suspicion grew on me, I talked to my friends in Guwahati over phone they told me that the tender notice was not published in the Dainik Agradoot dated 19.05.13. We lodged an ejahar with the O/C, Lakhipur PS with regard to the corruption and forgery of the Chairman of Town Committee and raised the matter with the Deputy Commissioner, Goalpara. I think that he has tried to misappropriate the money by committing forgery/fraud with regard to the tender notice.”

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11. Apt also to refer to the statement of Muzamil Hussain, who is another friend of the informant, which reads as hereunder: -

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“My name and address are as given above. I am aged about 50 years. I am a businessman. At about 10.00 AM on 24.05.13 my friend Anisur Rahman informed me that an amount of Rs. 1415.17 Lakh was sanctioned for the works of four road under Lakhipur Town Committee with Rajesh Gupta as its Chairman and Uttam Sarkar as Head Assistant of the office of town committee and that the tender notice thereof was published in Dainik Agradoot dated 19.05.13 but not in any other newspaper. I immediately met my said friend and he shown me two newspapers wherein we found that there was dissimilarity in the notice inviting tender. I suspect that the Chairman has misappropriated the money by adopting forgery and deception.”

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12. Apt also to refer to the statement of Sanowar Hussain, who is a businessman, which reads as hereunder:

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“My name and address are as given above. I am a businessman. I am aged about 50 years. On 24.05.13 I came to learn from Anisur Rahman that on 19.05.13 Rajesh Gupta, the Chairman of

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Lakhipur Town Committee published notice inviting tender in only one newspaper and not in other newspapers, in a fraudulent way. When I was shown the advertisement inviting tender published in two newspaper, I found advertisement/tender notice dissimilar.”

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13. Reading of the aforesaid statements of the prosecution witnesses it appears that on 24.05.2013 one of the complainant’s friend i.e. Sanowar Hussain informed him over phone that notices inviting tender for the subject work has been published with certain terms and conditions in the Office of the Town Committee and accordingly, he went to the Office of the Town Committee, where he met the petitioner who explained him the terms and conditions of the subject tender and has also informed him that an advertisement has been published in this regard in two newspapers. It appears that, however, upon checking the two newspapers, no such advertisement was seen. In this backdrop it was alleged that the petitioner is suspected to misappropriate the money by committing forgery/fraud. It further appears from the statement of Abdul Matin that the two newspapers in question were not in circulation at Lakhipur locality. It further appears from the statement of Muzamil Hussain and Sanowar Hussain that tender notice was published in one of the newspaper as claimed by the petitioner. It further appears from the statements of Jayanta Bora, Ramesh Chandra Talukdar and Lojiet Rabha who are employees in the Office of the Directorate of Information and Public Relations, that they have received an application dated 16.05.2013 from the petitioner to

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publish advertisement inviting tender for work of Lakhipur town on 19.05.2013. It further appears that the aforesaid application was thereafter sent to the Superintendent of their Office who then forwarded the same to the Press for publication thereof.

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14. It appears from the letter dated 18.05.2013 enclosed as Annexure-2 to the petition issued by the Directorate of Information and Public Relations, Assam, Dispur, Guwahati to the Advertisment Manager, Directorate of Information and Public Relations, Assam, Dispur, Guwahati that as per request of the petitioner, he requested the three newspapers i.e. “The Assam Tribune”, “Assam Post” and “Dainik Agradoot” to publish the advertisement in one of their issue.

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15. It further appears that thereafter the Investigating Officer by Charge-sheet No. 274/2014 dated 26.05.2013 submitted charge against the petitioner under Section 468/471 of IPC. Relevant portion of the Chargesheet is extracted hereunder for ready reference: -

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“ During investigation the place of occurrence was visited, the statements of witnesses were recorded and necessary documents were seized and sent to FSL, Guwahati for examination and after examination the reports were collected. Accused Rajesh Prasad Gupta S/O late Bindeswari Prasad Gupta, R/O Lakhipur Town, Ward No.3, P.S. Lakhipur, District Goalpara, was arrested and forwarded before the Hon'ble Court. F.I.R named accused Uttam Kumar Sarkar, S/O Late Umesh Ch. Sarkar, R/O Lakhipur town, Ward No.3, P.S Lakhipur, applied for pre- arrest bail which was rejected by the Hon'ble High Court at Guwahati but

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he was not arrested in connection with the instant case as no materials was found against him. Sufficient materials have been established against the accused Rajesh Prasad Gupta from the statement of witnesses and FSL report etc. and as such a case U/S 468/471 IPC is made out. Therefore, the instant Charge-sheet under the aforesaid provisions of law against the accused Rajesh Prasad Gupta is forwarded to the Hon'ble Court for trial. It is prayed before the Hon'ble Court to discharge the accused Uttam Kumar Sarkar form the case.

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7(Seven) numbers of seizure list and 3(three)numbers of FSL reports are annexed with the Charge-sheet.”

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16. Thereafter, it appears that the trial Court by order dated 10.07.2018 framed charge against the petitioner under Section 417 of the IPC.

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17. Apt to refer to Section 415 of the IPC which reads as hereunder:-

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“ 415. Cheating - Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or 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’.”

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18. Apt also to refer to Section 417 of the IPC, which reads as hereunder: -

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“ 417. Punishment for cheating - Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.”

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19. It is settled law that the offence of cheating is established when the accused induces any person to deliver any property or to do or to omit to do something, which he would otherwise not have done or omitted. In the present case even if the material collected by the prosecution is assumed to be true in its face value before the cross-examination, the same cannot be said to have made out a case of cheating against the petitioner. That apart, there is no allegation of fraudulent inducement or deception, whatsoever, at the beginning of the transaction.

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20. Be it be mentioned that pursuant to the lodging of the said FIR, the petitioner was removed from the post of Chairman, Lakhipur Town Committee, Goalpara, which was challenged before this Court in W.P(C) No. 7177/2013, wherein this Court by judgment and order dated 25.03.2014 dismissed the said writ petition. Pertinent that before parting with the records, this Court observed as hereunder:-

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“46. Before parting with the case records, I place on record the displeasure of the Court in not taking any departmental action against the erring officials indicated in the enquiry report referred to above (para 21). It is also shocking as to how the NIT could be shown published only in one copy of the news papers so as to avoid participation in tender process and to confine the same to a few favoured ones. Direction is hereby issued to take immediate steps to unearth the racket and also to take departmental action against the erring officials.”

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21. The argument of Mr. D. Mahanta, learned Counsel for respondent No.2/informant to the effect that it has clearly come out from the enquiry that the petitioner has

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committed illegality while calling for the tender in question and therefore a criminal case is made out is totally fallacious. Before putting criminal action in motion it is imperative that the materials collected by the prosecution discloses a criminal offence otherwise it would be a sheer abuse of the Court’s process. In the present case as indicated above, it is apparent that no ingredients of cheating whatsoever can be said to be made out against the petitioner even assuming the allegation to be true in its face value.

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22. That being so, this Court is of the unhesitant view that continuation of criminal proceedings against the petitioner is absolutely unjustified and hence, the order of the Magistrate framing charge dated 10.07.2018 and the impugned Charge-sheet No. 274/2014 against the petitioner is totally illegal and erroneous. Accordingly, the order dated 10.07.2018 of the learned trial Court stands set aside and quashed.

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23. Resultantly, the proceedings in connection with G.R Case No. 1012/2013 pending in the Court of learned Additional Chief Judicial Magistrate, Goalpara stands quashed.

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24. The criminal petition is accordingly, disposed of.

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JUDGE

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Comparing Assistant

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Rajesh Prasad Gupta v. the State of Assam and Anr.

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Rajesh Prasad Gupta v. the State of Assam and Anr.

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