Dismissed

Rajeshwar Pd Munshi v. The State Of Jharkhand

Jharkhand HC10 Aug 2018A.B.A./7178/2017

Case brief

AI extract

What is this about?

Single common order disposing of four anticipatory bail applications arising from the same FIR regarding alleged misappropriation of funds under MNREGA and other schemes. The court rejected the petitions, refusing bail.

What did the court decide?

Prayer for anticipatory bail to all four petitioners was rejected.

What the court decided

Rajeshwar Pd Munshi Vs The State Of… — Contract and Commercial Disputes | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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A.B. A. No. 7178 of 2017

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Rajeshwar Pd. Munshi		……Petitioner
The State of Jharkhand	Versus …… With A.B. A. No. 333 of 2018	Opposite Party
Amresh Kumar Dubey	Versus	……Petitioner
The State of Jharkhand	With A.B. A. No. 939 of 2018	……Opposite Party
Radha Ballav Sahay	Versus	……Petitioner
The State of Jharkhand	With A.B. A. No.98 of 2018	……Opposite Party
Anil Kumar	Versus	……Petitioner
The State of Jharkhand		……Opposite	Party

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---------

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CORAM: HON'BLE MR. JUSTICE ANANT BIJAY SINGH

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For the Petitioners: Mr. Rajesh Kumar Mahtha, Advocate

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(in A.B.A. No. 7178 of 2017) Mr. Amritansh Vats, Advocate (in A.B.A. No. 333 of 2018) Mr. Suraj Singh, Advocate (in A.B.A. No. 939 of 2018) Mr. Anjani Kumar, Advocate (in A.B.A. No. 98 of 2018) For the State : A.P.P.

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C.A.V on: 07/08/2018 Pronounced on: 10/08/2018

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Since, all the four anticipatory bail applications arise out of one and the same case, hence they are taken up together and disposed of by common order.

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The petitioners are apprehending their arrest in connection Baghmara P.S. Case No. 53 of 2017, corresponding to G.R. No. 3762 of 2017 for the offence under sections 419, 420, 467, 468, 471, 406, 409 &120B of the Indian Penal Code.

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The case of prospection, in short, is that the instant case has been lodged by the informant Anant Kumar Block Development Officer, Baghmara on the basis of written direction of Deputy Commissioner, Dhanbad vide letter no. 12771 dated 6.10. 2017. Vide letter no. 473 dated 11.09.2017 of Joint Secretary, Rural Development Department, Jharkhand and letter bearing no. 2544 dated 12.09.2017 receiving certain complaints relating to various projects of Daludih Panchayat under Baghmara Block

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and accordingly, a team comprising of various officers and engineers had gone to the various projects of Daludih Panchayat and after inspection I discrepancies and irregularities in the work of the projects as contained in letter no. 1230 dated 26.09.2017 of Addl. Collector was found The inspecting team found that in many projects shown complete in MIS payment have been made and some partial payments were also made in with regard to certain projects which were shown on progress but on spot verification some projects shown to be complete in MIS were detected as non existent and no any work was done. It is further alleged that Rajeshwar Pd. Munshi (petitioner in A.B.A. No.7178 of 2017) being a registered supplier of Panchayat has lifted Rs, 10,00,000/- fake supply for Wari compost under MANREGA scheme during the period of 11.06.2017 to 30.06.2017. The petitioner-Rajeshwar Pd. Munshi withdrew Panchayat Rs, 61,21,746/- for supply of materials under MNREGA but the materials have not been supplied. During, inspection it was found despite allotment of money in several schemes, the materials have not been supplied. During, inspection it was also found that M.V. Book Muster Roll are not available on record and local Mukhia had given statement that digital signature was used by the petitioner-Rajeshwar Pd. Munshi. Thus, Sabita Devi-Mukhia of Daludih Panchyat, Radha Ballav Sahay, Panchayat Secretary (petitioner in A.B.A. No. 939 of 2018), Amresh Kumar, Ex-Rozgar Sevak(petitioner in A.B.A. No. 333 of 2017) Anil Kumar-Rozgar Sevak (petitioner in A.B.A. No. 98 of 2018), Rajeshwar Pd. Munshi, material Supplier( petitioner in A.B.A. No. 7178 of 2017) and other accused persons after making conspiracy defalcated the government money. On the basis of these and other allegations, the instant case has been lodged.

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A.B.A. No. 7178 of 2017

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Learned counsel for the petitioner while pressing the anticipatory bail application has submitted that petitioner is innocent and he has committed no offence as alleged in the F.I.R. Further, it has been submitted that petitioner is a registered supplier of the materials and has nothing to do with the completion of

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the work or its procedure and formalities. Learned counsel for the petitioner has further submitted :

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That it is further pertinent to mention here that the inspection report vide letter no. 1230 dated 26.09.2017 of the A.D.M (L & O) has dealt with several projects under the MNREGA Schemes, the payments against the work under the 14^th financial bills, P.M, Rojgar Awas, the written statement of Mukhiya beneficiaries and other accused persons and the Inspecting Team in its report mentions about perusal of various records of project work and M.B. being completed by the Engineers for the work done including the muster rolls, but the vouches were said to be non-available although the First Information Report, speaks of non-availability of records, M.B, vouchers, bills etc.

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That it is humbly submitted herein that different projects of the Daludih Panchayat as referred in the inspection report have been fully completed and in some cases of projects work, the works were in progress, but the inspection report, nowhere points out as to which works remained in incomplete or nonexistent as has been alleged against the petitioner.

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That the inspection report categorically also states about the supplies made by the petitioner for the projects undertaken in the Daludih Panchayat, but nowhere it has been alleged that the petitioner has supplied to any non-existing projects and thereby withdrawing money fraudulently for those projects.

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That is further humbly submitted herein that the inspection report has simply stated that the work was not done in accordance with guidelines, rules and procedures and thus no question of misappropriation of money of the projects by any persons carrying out the work is made out. Moreover, the petitioner was only a supplier of the various ;projects and had nothing to do with the completion of the said works or its specifications.

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That the joint inspection report has referred to the supplies of materials

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by the petitioner at different places of the projects and the work done with the said materials by the authorized person of the Panchayat and thus the charge as against the petitioner fails completely of heavy fraudulently withdrawn the money and its non-supplied to the different Panchayat projects.

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That it is pertinent to mention here that the Inspecting Team has nowhere stated or brought on record or inspected any work order given to the petitioner and has whimsically made allegations against him of heavy misappropriated the huge amounts belonging to the Government.

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That the allegations of misappropriating the funds of SC/ST beneficiaries money using the POS machine in his house is palpably false as the petitioner is neither any officer or elected or appointed person of Daludih Panchayat under the Baghmara Block, but is only a registered supplier of the materials needed by the panchayat. As far as using the POS machine for drawing payments of the beneficiaries is concerned, it is highly unbelievable and unreliable as the Inspecting Team has found no proof of POS machine being utilized by the petitioner in his house, more so, when it is well known that these machines can only be used by password which remains with the BDO of the Block and thus the misuse of it cannot be made as has been alleged against the petitioner. It is further pertinent to mention here that the funds of the beneficiaries have returned to their accounts even before the lodging of this First Information Report and the same has been found to be true by the Inspecting Team and hence no misappropriation has been made by the petitioner.

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That as the POS machines can only be operated on having the password from the BDO of the Block and the signature of the Mukhiya , Secretary of the Panchayat and the thumb impression of the beneficiaries, so the allegations of the petitioner having misappropriated the funds of the beneficiaries using POS machines cannot be meted as against the petitioner.

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Further, it has been submitted by the counsel for the petitioner that in terms of order dated 26.06.2018, the petitioner has appeared by the I.O and his statement his been recorded, petitioner has co-operated in the investigation, so considering the aforesaid facts, the petitioner deserves the privilege of anticipatory bail.

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A.B.A. No.333 of 2018

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Learned counsel for the petitioner while pressing the anticipatory bail application has submitted :

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That the petitioner is innocent and has committed no offence as alleged and has been falsely implicated in the instant case though he had no concern with the same. It is humbly stated that the petitioner has just been made the scapegoat to divert the attention from main culprits and wrongdoers..

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That the petitioner joined service in the department of welfare, Government of Jharkhand and since his joining has worked satisfactorily and to the satisfaction of his superiors. The petitioner has no criminal antecedents nor had any enquiry/disciplinary proceedings ever held or contemplated against him.

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That the petitioner is about 48 years and has a long service career ahead of him. He is at present holding the post of Rozgar Sevak (employment worker) and the duties assigned to him are very menial. Mainly, the duties as are generally carried out by a junior assistant, ie, running errands, depositing money in banks, withdrawing money as per cheques issued. The petitioner is neither the drawing or dispersing officer nor he is in any way connected with the allotment work under the MNREGA Schemes and the Prime Minister’s Resident Scheme (Pradhan Mantri Awas Yojna) or any other Scheme of the government.

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That petitioner humbly states that generally and in the instant case, in particular it is the Mukhia who is the overall in-charge or execution of the scheme along with the secretary of the Panchayat. The assistant engineer is the overall in-

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charge of the scheme of the government and the junior engineers maintain the records and keep an eye on the day to day progress of the scheme and as per their duties have to maintain the measurement book and other documents in the relation to the scheme.

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That as per the allegations made in the FIR the concerned Mukhiya namely, Sabita Devi had delegated her powers inclusive of the use of her digital signature to the materials supplier, one Rajeshwar Prasad Munishi who is aid to the main persons involved in the offence and the persons who has made unlawful gain, cheating, forgery and other similar oflences and the petitioner has merely been made an accused as he was also at one point of time working in the said Panchayat, through he had handed over charge of all the registers, documents and furniture as allotted to him, to his successor one Anil Kumar on 05.04.2017 itself in presence of the Block Development Officer, Baghmara and Mukhia as he had been transferred from his post and had been posted out..

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That the petitioner humbly stated that the supposed enquiry done by the Additional Collector (Law and Order), Dhanbad along with other officials and engineers was said to have been done on 12.09.2017, ie after over 5 months and the report submitted only on 26.09.2017, i.e about 5 months and 19 days after the petitioner had handed over the charge as Employment Worker.

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That it may not be out of place that the original report dated 26.09.2017 does not form part of the F.IR and as per the information gathered by the petitioner through his learned advocate who appeared before the learned District Judge, Dhanbad, who had an occasion of going through the case diary did not find the same in the case diary either.

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That it is an admitted fact that the enquiry in question was carried out behind the back of the petitioner and he had only been asked once to subit his representation if any after the conclusion of the enquiry on 23.09.2017 as per the

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dictat of the investigating officer of which he has a copy which he is annexing for the kind consideration of this Hon’ble Court.

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That the petitioner however, clearly stated that the muster roll was not signed by him and he was only designated to do bank work as per the direction Rajeshwar Prasad Munshi, otherwise he would be dismissed from service, and he had given due information about the same to the Block Development Officer, who reiterated the same.

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That the petitioner came to know the locals and the villagers that they had made complaints against the Mukhia Sabita Devi, since she refused to even give them an audience when they wanted to appraise her of the fact that they were being exploited by the materials supplier. It was further stated by them that all this has happened because the supplier , Rajeshwar Pd. Munshi had invested a lot of money in the election of the accused Mukhia and had helped her in campaigning etc and in return she had authorized him to use her digital signature by means of which authorization he was operating the bank accounts which were co-signed by the Panchayat Secretary and that no development work under the MNREGA, the Prime Minister’s Awas Yojna or toilets under Swachch Bharat Mission were done and only part works in some areas had been done though after the matter was highlighted by the Media, some money was said to have been returned by the accused supplier.

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That it may not be out of place to mention that co-accused Pappu Mandal , who was holding the post of Junior Engineer, MNREGA, operating in Gram Panchayat, Daludih, Baghmara Block, by the learned Additional Sessions Judge-XI, Dhanbad vide A.B.P. No. 2296 of 2017 vide order dated 02.01.2018.

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That is relevant to state that a seizure was made on 07.10.2017 in connection with the instant case at the Panchayat Office, Daludih, where a letter written by the Mukhia being a certificate dated 05.04.2017 stating that the

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petitioner had handed over all documents and registers to his successor Anil Kumar when he was relieved on 05.04.2017 as also the certificate cum proof showing handing over of the charge and accepting the same by the petitioner’s successor namely, Anil Kumar being a photocopy of the same.

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That the petitioner humbly states that even the executive engineer has supported the facts as stated herein above and has clearly stated that the Mukhiya and the supplier had given fruit to all the irregularities as has also been stated by other witnesses namely, Narender Prasad Sharma, Chandrajeet Singh, in-charge District Panchayatraj Officer, who formed part of the inspection team apart from other officials whose names are noted in the case diary.

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A.B.A. No. 939 of 2018

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Learned counsel for the petitioner while pressing the anticipatory bail application has submitted :

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That the petitioner has been falsely implicated in the present case with an oblique motive and only on the basis of false and concocted story and without any evidence admissible in law.

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That the petitioner states that the entire prosecution version is false and fabricated and the petitioner has no concern with the alleged occurrence.

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That the petitioner stated that the petitioner is a Panchayat Secretary of Daludih Panchayat since long and nothing has been found against the petitioner.

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That the petitioner states that the petitioner is honestly and faithfully under the control of the Block Development Officer.

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That the petitioner states that the petitioner is simply a record keeper and he is under the full control of Mukhiya of said Panchayat.

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That the petitioner states that there is no involvement of the petitioner in any Yojna Project of Daludih Panchayat.

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That the petitioner states that the inspection report vide letter no. 1230 dated 26.09.2017 of the Additional District Magistrate (Law and Order) has dealt with several projects under MNREGA, the payments against the work under 14^th Financial bills, P.M, Rozgar Awas, the written statement of Mukhiya, beneficiaries and other accused persons. The report of measurement of various projects have also been annexed with the report and payment made against the projects.

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That the petitioner states that the said inspection report mentions about the perusal of various records of the project work and measurement book being completed by the engineers for the work done, including the muster roll, but the vouchers said to be non-viable although the first information report speaks about non-availability of measurement book, vouchers bills etc and not only vouchers.

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That the petitioner states that different projects of Daludih panchayat, as referred in the report, have been shown complete and in some case, projects works were in progress.

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That the petitioner states that the payments have not been made to many unauthorized person. There was nothing on record to suggest that the machine was given to the petitioner or used by him. Moreover, the machine can be used only after inserting password for drawing money and password is kept in the office of the Block Development Officer and it is not released even if digital signature ahs been retained in the office f the Block Development Officer, which is evident from Letter No. 2049/CS dated 29.11.2016.

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That the petitioner states that the Block Development Officer was

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arrested on 19.09.2017, whereas the present case was instituted on 06.10.2017. Therefore, the enti5re case against the petitioner proves deliberate and fale implication of the petitioner in the present case.

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That the petitioner states that the petitioner has retained the money of beneficiaries.

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A.B.A. No.98 of 2018

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Learned counsel for the petitioner while pressing the anticipatory bail application has submitted :

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That the petitioner is is absolutely innocent and has committed no offence as alleged rather he has been falsely implicated in the present case.

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That it is stated that admittedly, the petitioner is a Rojgar Sevak and his duty is of supervision of the execution of the work. In the instant case the petitioner had joined the said place of posting only in June, 2017 and thereafter for the work of Compost and cattle shed related projects, Rs. 10.00 lacs was given in advance for procurement of materials to Sri Rajeshwar Kumar Munshi by the then Mukhia and Panchayat Sevak, but no material was supplied and, therefore, the question of commencement of execution of the work did not arise.

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That it is stated that the fund is transferred to the supplier only through Joint Digital signature of the Panchayat Sevak and the Mukhia via FTO the petitioner being the Rojgar Sevak has no role in the same.

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That it is stated that admittedly Sri Rajeshwar Kumar Munshi is the ExMukhia who got himself registered as a supplier and withdrew huge money and it

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also appears from the F.I.R that subsequently, when the news was false in the newspapers relating to such defalcation , the money was returned by him.

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That it is stated that the petitioner is in employment since 2008 and has no criminal antecedent.

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That it is stated that as the wife of petitioner was seriously ill and immediately after transfer of the petitioner to Daludih Panchayat the wife of the petitioner had to be taken to New Delhi for treatment the petitioner could not join Daludih panchayat and therefore, he cannot be held responsible.

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That it is stated that the Rojgar Sevak has no financial power nor there is any allegation of involvement of the petitioner in withdrawal of the money as an advance for procurement of material by other co-accused Sri Rajeshwar Kumar Munshi.

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That it is stated that the Mukhia of the Panchyat is whole and sole responsible to execute the Central Government and State Government plans and there is specific allegation against representative of the Mukhia namely, Sri Rajeshwar Kr. Munshi.

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That it is stated that in the enqury report there is no allegation whatsoever against the petitioner.

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That is stated that enquiry report of Additional District Magistrate (Law & Order) dated 26.09.2017 vide letter no. 230 submitted to Deputy Commissioner, Dhanbad wherein also there is no specific allegation against the petitioner for committing any alleged offences.

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That it is stated that only on the basis of transfer letter of the petitioner to Daludih Panchayat as Rojgar Sevak, his name has been inserted without his joining till date in the said post.

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That is it stated that the petitioner is a law abiding citizen having no criminal antecedent and if taken in custody, he shall suffer irreparably and shall

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be subjected to undue hardship.

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On the other hand learned A.P.P while opposing the prayer for anticipatory bail of the petitioners, has produced the case diary.

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It appears that a High Power Team was constituted under the Chairmanship of Additional Collector, Law and Order, Dhanbad and statement of the petitioners has been recorded.

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Statement of Anil Kumar (petitioner in A.B.A. No. 98 of 2018) has been recorded who has stated that from the month of May, 2017 he is posted in Daludih Panchayat on 23.09.2017 the said panchayat was inspected by the aforesaid team. This petitioner has stated that when the goat shed was sanctioned at that time, he had gone to Delhi for treatment of his wife and with regard to illegality in construction of Dobha, he has no knowledge and muster roll has not been signed by him.

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Radha Ballav Sahay-Panchayat Secretary (petitioner in A.B.a. No. 939 of 2018) has stated that digital signature is kept in Baghmara Panchayat and he has no knowledge about MNREGA and all the works under 14^th Finance scheme has been executed by Rajeshwar Pd. Munshi (petitioner in A.B.A. No. 7178 of 2017) and muster roll has also been generated by Rajeshwar Pd. Munshi and the digital signature was kept in block on the direction of Block Development Officer.

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Amresh Kr. Dubey (petitioner in A.B.A. No. 333 of 2018) has stated that he is posted as Rozgar Sevak in Panchayat Daludih for the last two years. He has stated that the Muster roll of MNREGA was generated without the signature of

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Rozgar Sevak from the month of January, 2017 and when it was complained to the B.D.O, he was threatened for removal from service and he was told to work with Rajeshwar Pd. Munshi.

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Kistu Murmu who is beneficiary under Pradhanmantri Awas Yojna, he has stated that Rajesh Mukhia took his thumb impression and withdrew money.

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In para 2 of the case diary, re-statement of the informant-Anant Kumar has been recorded who has supported the case of prosecution.

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In para 14 I.O has recorded that he has visited the MNREGA office and collected the documents relating to the different schemes awarded to beneficiaries namely, Mukesh Kumar, Bhukhal Murmu, Rakesh Kumar Baski, Nishant Kumar Baski and Chandmuni Devi.

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In para 19, I.O has recorded that he has visited the office of Daludih Panchayat and contacted with Panchayat Secretary, Shankar Tiwari who produced some documents regarding charge taken by the Rozgar Sevak- Anil Kumar from ex-Rozgar Sevak Amresh Kr. Dubey, thereafter the documents was seized and seizure list was prepared.

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In para 28 I.O has recorded the statement of witness Harendra Mishra,Executive Engineer, Water and Sanitation Department, Dhanbad who has supported the case of prosecution and has stated that huge amount has been withdrawn in connection with different schemes and disclosed the name of these petitioners.

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Similar is the statement of witness Narendra Prasad Sharma who is Executive Engineer N.R.E.P, Dhanbad in para 29 of the case diary who has supported the case of prosecution.

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In para 91 of the case diary, I.O has recorded the statement of Sonaram Murmu who is the beneficiary, who has stated that compost pit was allotted in her name under MNREGA Scheme but the same has not been constructed and the

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amount which has been allotted, has been withdrawn by Mukhia Sabita Devi, Panchayat Secretary-Radha Ballav Sahay, Supplier-Rajeshwar Munshi and Rozgar Sevak.

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Similar is the statement of Bhukhal Murmu in para 92 of the case diary, Panu Tuddu in para 93 of the case diary, Murti Devi in para 94 of the case diary and all these witnesses have supported the case of prosecution.

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In para 99 of the case diary, I.O has recorded the statement of Rajeshwar Prasad Munshi (petitioner in A.B.A. No. 7178 of 2017) who has denied the allegation levelled against him and on demand by the I.O, he has not produced the documents/vouchers with regard to supply of materials and no satisfactory reply has been given.

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Taking all these facts and circumstances of the case and also considering the facts that the allegation against the petitioners is serious in nature, statements of the petitioners are exculpatory, investigation is still going on, I am not inclined to grant anticipatory bail to the petitioners. Accordingly, their prayer for anticipatory bail is hereby rejected.

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Satyarthi/-

Rajeshwar Pd Munshi v. The State Of Jharkhand

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Rajeshwar Pd Munshi v. The State Of Jharkhand

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