Allowed

Kishorbhai Ganpatbhai Shrimali v. State of Gujarat

Gujarat HC1 Dec 2021CR.MA/4839/2019

Case brief

AI extract

What is this about?

This High Court order quashes an FIR alleging offences under IPC Sections 409, 465, 467, 477A, and 114 against a Taluka Development Officer and a Senior Clerk. The court held that the procedural scheme involved the District Development Officer as the key scrutiny authority, and there was no evidence of misappropriation or direct mens rea by the accused, who lacked dominion over the funds.

What did the court decide?

Impugned FIR C.R. No. I - 52 of 2016 and consequential proceedings qua the petitioners were quashed and set aside. Rule made absolute.

Kishorbhai Ganpatbhai Shrimali Vs State of Gujarat — Cheque Dishonour | Gujarat HC (2021)

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R/CR.MA/4839/2019 ORDER DATED: 01/12/2021

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL MISC.APPLICATION NO. 4839 of 2019 With

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R/SPECIAL CRIMINAL APPLICATION NO. 3107 of 2017

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KISHORBHAI GANPATBHAI SHRIMALI

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Versus

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STATE OF GUJARAT

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Appearance:

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MR PREMAL NANAVATI, SENIOR ADVOCATE WITH MS KAVITA B GAJJAR(5621) for the Applicant(s) No. 1

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MR HS MUNSHAW(495) WITH MR DEVANG BHATT for the Respondent(s) No. 2

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MR PRANAV TRIVEDI, ADDL. PUBLIC PROSECUTOR(2) for the Respondent(s) No. 1

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CORAM: HONOURABLE MS. JUSTICE GITA GOPI

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Date : 01/12/2021

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ORAL ORDER

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Both the petitioners are arraigned as accused in the impugned FIR bearing C.R. No. I - 52 of 2016 dated 08.09.2016 registered with Sami Police Station, Patan, for the offences punishable under Sections 409, 465, 467, 477A and 114 of the Indian Penal Code and both the petitioners have prayed for quashing the same under Section 482 of the Code of Criminal Procedure.

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It is alleged in the FIR that Swachchh Bharat Mission (Scheme) came to be introduced and implemented by the State of Gujarat since the year 2014. Under the scheme it was

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R/CR.MA/4839/2019 ORDER DATED: 01/12/2021

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decided to give monetary help by way of grant to the Gram Panchayat. It is submitted that as per the scheme the Gram Panchayat has to pass resolution including the area in which the money is required and thereafter the same is to be submitted to the Deputy Taluka Officer. It is submitted that the Deputy Taluka Officer and Extension Officer has to verify all the records, and after detailed verification, the said record is required to be forwarded to the Taluka Development Officer (for short “TDO”), who, in turn, forward all the documents and records to the District Development Officer (for short “DDO”) alongwith proposal (Darkhast) for grant of the amount as stated by the Gram Panchayat in the resolution.

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2.1 Thereafter the DDO is required to re-verify all the details, and after endorsing the same, the DDO will submit the proposal to the Secretary, State Government, for sanctioning the amount of grant. The Secretary, State Government, is the only sanctioning authority of the grant. It is stated by the petitioners that the DDO is duty bound to re-verify all the details and the correctness of amount which is decided by way of resolution passed and the Government authority has power to sanction the amount. In view of this fact, both the petitioners i.e. TDO of Sami Taluka, and the senior clerk of

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R/CR.MA/4839/2019 ORDER DATED: 01/12/2021

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Taluka Panchayat Officer have no role to play in whole of the process.

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2.2 The allegation against the petitioners are of creating false and forged documents and of having forwarded the same to the higher authority but the petitioners denies the same by stating that it is completely misconceived and false apparently looking to the procedure laid down as stated above. The petitioners states that, as per the scheme, the records are required to be prepared by Gram Panchayat and the Deputy Taluka Development Department has to verify the records and resolution and thereafter the same was forwarded to the TDO, who is the petitioner of Criminal Misc. Application No. 4839 of 2019. The petitioner states that the FIR reveals that the amount of grant is already deposited in the bank account of Gram Panchayat and it is not the case of the complainant that the money has been siphoned off by the petitioners or the same was recovered from the bank account of the petitioners.

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2.3 The petitioner of Special Criminal Application No. 3107 of 2017 states that he was posted as Senior Clerk with Sami Taluka Panchayat, and at the relevant time a scheme floated by the Government of Gujarat i.e. “Swachchh Gam and

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R/CR.MA/4839/2019 ORDER DATED: 01/12/2021

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Swachchh Gram Yojna” was in operation, and under the said scheme announced by the Government during the period 2014-2015, a promotional grant was offered to the Village Panchayats situated in the State of Gujarat, and for the said purpose, village panchayats for the purpose of disbursement of the amount by sanctioning the grant announced under the said scheme, the petitioner states that the proposal is prepared by Gram Panchayat Committee consisting of four members : (1) Representative from Director of District Village Development Agency, (2) Representative appointed by the Principal District Health Officer, (3) Representative appointed by District Social Welfare Officer and (4) Deputy District Development Officer (Panchayat). The petitioner states that the committee consisting of these four members would prescribe broad guidelines and would instruct the concerned TDO to get the proposal prepared from concerned Village Panchayat, and accordingly the Village Panchayat would prepare the proposal and send it the same to the TDO, who, in turn, after examining the same, would forward to the concerned DDO. Ultimately after due scrutiny, the amount mentioned in the proposal, if found appropriate, will be disbursed in favour of the concerned Village Panchayat to be utilised for the implementation of the above-referred scheme. The petitioner sates that during the

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entire exercise the only role which the petitioner has to play is of collecting various data, and in the entire procedure prescribed, all the amount through transfer is issued in the account of Village Panchayat and no amount would come in the hands of the petitioner as a Senior Clerk for any withdrawal or disbursement.

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2.4 The petitioner submits that the proposal was prepared and sent to the concerned authority and the composite document including the letter dated 01.02.2016 addressed to the Development Commissioner by the DDO and letter dated 30.01.2016 in respect of the various Panchayats situated within the limits of Banaskantha District fortify the fact of the procedure and ultimately he stated that the grant has been sanctioned and the amount has been distributed amongst different Village Panchayats under the said scheme and the concerned TDO has issued order on 04.04.2016 directing different Village Panchayats prescribing the manner in which the amount towards the said grant is to be utilized.

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2.5 The petitioner states that he has rendered his service at different places for approximately seven months and he was posted to serve as senior clerk at Village Shankeshvar for the

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period between 09.02.2015 to 19.08.2015 and he remained at the same place until one Mr. P.D. Rathod was appointed and replaced him at that relevant time, and thus, he submits that at the relevant time he remained away from village Sami. It is his case that when the proposal was forwarded by the TDO, he did not have any worksheet number, which, according to him, makes it clear that the proposal has never been placed before him while he was holding the charge as senior clerk.

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Mr. Premal Nanavati, learned Senior Advocate alongwith Ms. Kavita Gajjar, learned advocate for the petitioners submits that both the petitioners are the relevant time had no role to play; the petitioner as TDO had only forwarded the proposal towards the resolution forwarded to him. Mr. Nanavati, learned Senior Advocate for the petitioners states that, as per the observations in the departmental inquiry, the petitionerTDO had taken the charge only prior to 5 to 6 days while sending the proposal, and therefore, during the departmental inquiry no liability was found. He further states that the process itself suggest that the Committee consisting of these four members would prescribe broad guidelines and would instruct the concerned TDO to get the proposal prepared from concerned village panchayat, and accordingly, the Village

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Panchayat would prepare the proposal and send it the same to the TDO, who, in turn, would after examining the same, would forward to the concerned DDO. Ultimately after due scrutiny, the amount mentioned in the proposal, if found appropriate, will be disbursed in favour of the concerned Village Panchayat to be utilised for the implementation of the above-referred scheme. Mr. Nanavati, learned Senior Advocate states that during the entire exercise the only role which the petitioner as Senior Clerk has to play is to collect various data, and in the entire procedure prescribed, all the amount through transfer is issued in the account of Village Panchayat and no amount would come in the hands of the petitioner as a Senior Clerk for any withdrawal or disbursement, the proposal is to be reviewed by DDO, and only if the said proposal is found appropriate then he will forward the same to the Secretary, State Government.

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3.1 Learned Senior Advocate for the petitioner submits that

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the only allegation against the accused was of exaggerating the amount of proposal and the same have been alleged to be false and created by bogus record and further allegation is that false proposal has been forwarded to cheat the government, but Mr. Nanavati states that it is highly

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improbable to consider such allegation as the proposal was forwarded in consultation with the committee of the Village Panchayat which consists of four members and taking into consideration the whole procedure adopted, learned Senior Advocate for the petitioners submit that the TDO is only the functionary in between Village Panchayat and DDO and the TDO has only moved the resolution to the DDO, who, in turn, forward the same to the Secretary, State Government.

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Mr. Devang Bhatt, learned advocate with Mr. H.S. Munshaw, learned advocate appearing for the respondent, after relying on the affidavit of Haribhai Hirabhai Prajapati – respondent No.2 herein states that the In-charge TDO, Sami Taluka Panchayat, District Patan, was authorised to file the complaint by DDO and would state that several financial irregularities committed by the petitioners came to light on complaint of President, Sami Taluka Panchayat, dated 25.04.2016 addressed to DDO, Patan District Panchayat, and therefore, the DDO, Patan District Panchayat had instructed the Deputy DDO to look into the complaints of financial irregularities and corruption, and submit a report through the letter dated 15.06.2016. Mr. Devang Bhatt, learned advocate submits that thereupon the Deputy DDO, Patan District

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Panchayat, thoroughly looked into the matter and submitted a report dated 19.07.2016 to the DDO, Patan District Panchayat, and after considering the seriousness of the record disclosing financial irregularities, the DDO, Patan District Panchayat had decided to file a criminal complaint against the accused and thereupon addressed a letter dated 08.09.2016 to the Incharge TDO, Sami Taluka Panchayat, to lodge a complaint.

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4.1 Mr. Devang Bhatt, learned advocate for the respondent submits that the petitioner of Criminal Misc. Application No. 4839 of 2019 was holding the post of TDO, Sami Taluka Panchayat, and was directly concerned with the administration of Sami Taluka Panchayat as its administrative head and further dealing with the higher authorities it is clear that the allegations made by him are baseless and he is trying to detach himself from the proceedings. Mr. Devang Bhatt, learned advocate further submits that mere withdrawal of a departmental chargesheet vide order dated 09.08.2021 by the competent authority does not absolve him from the criminal liability as he was the administrative head of the Taluka Panchayat at the relevant point of time.

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4.2 Mr. Devang Bhatt, learned advocate while addressing the

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matter in Special Criminal Application No. 3107 of 2017 has placed reliance on the affidavit of Haribhai Hirabhai Prajapati – respondent No.2 herein produced on record submits that the petitioner was coped up with additional duty pursuant to the order passed by TDO, Sami Taluka Panchayat. Mr. Bhatt, learned advocate submits that though the FIR qua Nareshkumar H. Jani came to be quashed by an order dated 28.01.2019 passed in Special Criminal Application No. 6299 of 2017 that itself would not absolve both the petitioners from the charges levelled against them.

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Mr. Pranav Trivedi, learned APP relying on the report of the Police Inspector, Sami Police Station, dated 01.12.2021 contends that the allegations are of misappropriating the amount of Rs.1,77,96,757/- from the total amount of Rs.1,91,39,322/- and submits that primarily the present petitioners would be liable. He further submits that proposal of about 50 villages was made for Sami Taluka and the present petitioners were responsible for the payment and were liable to pay the amount of Rs.13,42,670/- to different Gram Panchayats, but, they had shown negligence, and without examining the record and on the basis of false record with the ulterior motive had created the record and received the grant.

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R/CR.MA/4839/2019 ORDER DATED: 01/12/2021

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The whole of the procedure is an undisputed fact that the Panchayat Committee would formulate the resolution under the scheme. The said committee consists of four members, and during the course of preparing the resolution, the senior clerk would be required to bring various data for formulation of the resolution, and after the detailed verification, the said record is to be forwarded to the Taluka Development Officer, who, in turn, forward all the documents and records to the District Development Officer alongwith proposal (darkhast) for grant of the amount as stated by the Gram Panchayat in the resolution. Thereafter the DDO is required to re-verify all the details, and after endorsing the same, the DDO would submit the proposal to the Secretary for sanctioning the amount of grant and ultimately the Secretary of the State Government will sanction the grant, and on sanctioning of the grant, the amount would be sent in the bank account of concerned Village Panchayat. The allegation against the petitioners is of creating false records and sending false, forged and fabricated records and sending false proposal and thereby the allegation is made of cheating in connivance for the amount to the extent of Rs.1,77,96,757/-. The process shows that the amount would not come in the bank account of the petitioners

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but the amount would get disburse in the concerned panchayats and there is no allegation of misappropriation of money. It is required to be noted that whether the proposal was with the exaggerated amount had fallen for scrutiny at the level of DDO; it was the duty of the DDO to have comparative examination of such figure prior to sending the same for sanction of the grant from the State Government. There would not be any direct involvement of the petitioners of both the matters. Practically their duty would be to forward the resolution of Village Panchayat in the form of proposal to the DDO. No offence under Section 409 of Indian Penal Code would be found since there is no entrustment of the property to the present petitioners and they were not given any dominion over property in the capacity of a public servant. The amount had gone into the bank account of concerned Gram Panchayat; nor there can be any case of forgery of the document since the resolution was prepared through the Committee of Village Panchayat; it consists of four members; necessary assistance would be taken fortifying the record. It appears from the record that on 29.01.2016 meeting of implementation Committee was held at the office of DDO, Patan, which consists of (1) Representative from Director of District Village Development Agency, (2) Representative

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appointed by the Principal District Health Officer, (3) Representative appointed by District Social Welfare Officer and (4) Deputy District Development Officer (Panchayat) and thereby on the resolution and proposal, final order was passed. The proposal was placed before this Committee of about 9 Talukas and Taluka Sami is noted at Serial No.6. This Committee had an opportunity to verify the records and compare the proposal of all other Talukas and it was on the wisdom of this Committee the proposal was approved. The DDO and Deputy DDO had all opportunities to reject the proposal to have send it back if the amount so found was exaggerated which could be easily detected by comparing the proposal of different Talukas. This Court does not find any illegality, irregularity or any mens rea from the side of the petitioners in forwarding the proposal, and collecting relevant datas.

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In this view of the matter and in view of the aforesaid analysis, the impugned FIR deserves to be quashed and set aside. The further continuation of the criminal proceedings in relation to the impugned FIR against the original accused would be unnecessary harassment to the petitioners and would amount to abuse of process of law and court and hence, to

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secure the ends of justice, the impugned FIR is required to be quashed in exercise of power under Section 482 of the Code of Criminal Procedure, 1974.

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For the reasons stated hereinabove, the present petitions are allowed. The impugned FIR being C.R. No. I - 52 of 2016 registered with Sami Police Station, District Patan, as well as other consequential proceedings arising out of the aforesaid FIR qua the petitioners are hereby quashed and set aside. Rule is made absolute to the aforesaid extent. Direct service is permitted.

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(GITA GOPI,J)

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A.M.A. SAIYED

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Kishorbhai Ganpatbhai Shrimali v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Kishorbhai Ganpatbhai Shrimali v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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