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2016 Supreme(Jhk) 805
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Ravi Nath Verma, J.
Vivekanand Choudhary @ Viveka Nand Choudhary Son of Late Yamuna Choudhary - Appellant
Versus
State of Jharkhand through Central Bureau of Investigation - Respondent
Criminal Appeal (S.J.) No. 289 of 2016
Decided On : 25-04-2016
For the Appellant : M/s. Pandey Neeraj Rai, Rohit Ranjan Singh.
For the C.B.I. : Mr. K.P. Deo.
Mere retention of government funds after the cancellation of schemes, without evidence of embezzlement or misappropriation, may not constitute criminal liability under the relevant sections of the IPC and the Prevention of Corruption Act.
Headnote:
Bail - Corruption - IPC, 1860, Section 409, 120-B; Prevention of Corruption Act, 1988, Section 13(2), 13(1)(d)
Fact of the Case:
The appellant was convicted under Section 409 read with Section 120-B of the IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act for retaining government funds after the cancellation of schemes. The appellant sought bail, arguing that the charges did not include embezzlement or misappropriation of funds and that the money was returned immediately after the demand by the authority.
Finding of the Court:
The court found that retaining the funds after the cancellation of the schemes did not amount to embezzlement or misappropriation. It noted that the funds were returned within a short period and that some work was done under the schemes. Considering the nature of the case and the fact that most of the convicts had retired, the court granted bail to the appellant.
Issues: The main issue was whether retaining government funds after the cancellation of schemes constituted embezzlement or misappropriation.
Ratio Decidendi: The court held that mere retention of funds after the cancellation of schemes, especially when the funds were returned within a short period and some work was done, did not amount to embezzlement or misappropriation.
Final Decision: The court granted bail to the appellant, considering the nature of the case and the fact that most of the convicts had retired.
Ravi Nath Verma, J.
While admitting this appeal for final hearing, lower court record was called for and it was observed that the prayer for bail of the appellant shall be considered after receipt of the L.C.R. Since the L.C.R. has been received, learned counsel appearing for the appellant prays for grant of bail to the appellant.
2. Heard learned counsel appearing for the appellant as well as the learned counsel representing the C.B.I.
3. Before considering the prayer for grant of bail, it is necessary to give brief facts of the prosecution case:
On the basis of information received through reliable source, R.C. Case No. 24(A)/1995(Pat.) was instituted at the instance of C.B.I. with the allegation that one of the accused Ram Ayodhya Sah while working as Executive Engineer, Works Division-I, REO, Ranchi entered into criminal conspiracy with this appellant and other accused persons namely Rajiv Ranjan Prasad, Devendra Prasad Singh and Surendra Prasad-the three S.D.O.-cum-Assistant Engineers, Arvind Prasad, Ashok Kumar, Kumar Vijay Shankar, Binod Kumar Mandal, Abhay Kumar Sinha, Binod Prasad and Kaushal Kumar Prasad-all Junior Engineers posted at different places during the year 1994 and cheated the Government of India as well as the State of Bihar to the tune of Rs. 100.70 lakhs being the amount allotted under Jawahar Rojgar Yojna for the district Ranchi for execution of 17 old and 51 new schemes in proportion of 80% by Government of India and 20% by State of Bihar towards construction and repairs of different roads. The said amount of Rs. 100.70 lakhs was released/allotted by the D.R.D.A. Ranchi to R.E.O. Works Division, Ranchi during the period May-June, 1994 but the said Ram Ayodhya Sah kept the said amount in a new account opened in the joint name of the designation of Executive Engineer and Divisional Accounts Officer and subsequently withdrew the amount through cheques and distributed to the Junior Engineers in the form of cash violating the rules and prescribed procedure. The Deputy Development Commissioner demanded a progress report of the Schemes, then the said Executive Engineer Ram Ayodhya Sah under the joint signature with Assistant Engineers submitted the progress report regarding 45 schemes only and huge amounts were shown to be spent by giving advances for Grade-I and Morum works besides completion of construction of wing wall, Guard wall and repair of pot holes and also on purchase of bitumen but the progress report submitted by the accused persons was found to be false. Thereafter, by order dated 28.08.1994, all the schemes were cancelled except three schemes and R.E.O., Ranchi was directed to return the money advanced to them against the cancelled schemes but only Rs. 55.75 lakhs were returned to the D.R.D.A. in nine instalments.
4. Mr. Niraj, learned counsel appearing for the appellant submitted that though the appellant has been convicted under Section 409 read with Section 120-B of the I.P.C. and also under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act but the charges framed by the court below were relating to retaining of the entrusted/allotted money even after cancellation of the scheme and no charge was farmed for embezzlement or misappropriation of fund. The mere retaining of the amount for few days or as alleged for approximately two months, would not amount to embezzlement or misappropriation as defined under Section 409 of the I.P.C. or within the purview of Section 13(1)(d) of the Prevention of Corruption Act. As such, the conviction and finding of guilt for retaining part of money is bad in law as the said alleged misappropriated amount was returned immediately after the demand made by the authority. It was also submitted that the finding of the court below regarding the violation of financial norms or rules is misconceived and mere violation of such Rules may at best be a wrong or mere irregularity but cannot be a criminal offence. In support of his submission, lea
