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2015 Supreme(MP) 582
MADHYA PRADESH HIGH COURT
Sushil Kumar Gupta, J.
Om Prakash Bhargava v. State of M.P.
Miscellaneous Criminal Case No.5707 of 2014 (Gwalior);
Decided on 16.6.2015.
Sanjay Gupta for petitioner;
M. Bharadwaj, Public Prosecutor for respondent/State.
Headnote:Criminal P.C., 1973 -- S.482 -- Penal Code, 1860 -- Ss.409 and 405 -- application for quashing FIR -- alleged misappropriation of money -- when FIR was lodged against petitioner -- he has not misused or dishonestly misappropriated money -- which was entrusted to him -- no prima facie evidence available against petitioner for proceeding under section 409 of Penal Code -- ingredients of offence not available -- criminal proceedings cannot be sustained -- FIR and proceedings thereof set aside -- petitioner discharged -- petition allowed.
Held : In view of aforesaid detailed discussion and in the facts and circumstances of the case for the foregoing reasons I am of the considered opinion that there is no prima facie evidence available against the petitioner for proceeding under section 409 of the Penal Code. Therefore, where the ingredients of offence under sections 405 and 409 of the Penal Code is not available the FIR registered against the petitioner under section 409 of the Penal Code at Police Station Padav, District Gwalior and the criminal proceedings pending in Criminal Case No.7590/2014 against the petitioner cannot be sustained and same are hereby set aside. 2000(1) JLJ 142, (1990)4 SCC 76 and 1976 Legal Eagles (SC) 410 referred to.
naM izfØ;k lafgrk] 1973 && /kkjk 482 && naM lafgrk] 1860 && /kkjk 409 rFkk 405 && izFke bfÙkyk fjiksVZ vfHk[kafMr djus gsrq vkosnu && /ku dk vfHkdfFkr xcu && tc izFke bfÙkyk fjiksVZ ;kph ds fo#) nkf[ky dh xbZ && mlus /ku dk nq#i;ksx ;k csbZekuhiwoZd xcu ugha fd;k && tks mls lkSaik x;k && naM lafgrk dh /kkjk 409 ds v/khu dk;Zokgh ds fy, ;kph ds fo#) dksbZ izFken`"V~;k lk{; miyC/k ugha && vijk/k ds la?kVd miyC/k ugha && nkafMd dk;Zokfg;k¡ dk;e ugha j[kh tk ldrh && izFke bfÙkyk fjiksVZ rFkk mldh dk;Zokfg;k¡ vikLr dh xbZa && ;kph mUeksfpr fd;k x;k && ;kfpdk eatwjA
vfHkfu/kkZfjr % mi;qZDr foLr`r ppkZ dks /;ku esa j[krs gq, rFkk ekeys ds rF;ksa rFkk ifjfLFkfr;ksa esa iwoZxkeh dkj.kksa ls esjh lqfopkfjr jk; gS fd naM lafgrk dh èkkjk 409 ds v/khu dk;Zokgh ds fy, ;kph ds fo#) dksbZ izFken`"V~;k lk{; miyC/k ugha gS] blfy, tc naM lafgrk dh /kkjk 405 rFkk 409 ds v/khu vijkèk ds la?kVd miyC/k ugha gSa] ;kph ds fo#) naM lafgrk dh /kkjk 409 ds v/khu iqfyl Fkkuk iM+ko ftyk Xokfy;j esa ntZ izFke bfÙkyk fjiksVZ rFkk vkijkf/kd ekeys Øekad 7590@2014 esa ;kph ds fo#) dk;Zokfg;k¡ dk;e ugha j[kh tk ldrh rFkk bls ,rn~}kjk vikLr fd;k tkrk gSA 2000¼1½ ts,yts 142] ¼1990½ 4 ,l lh lh 76 rFkk 1976 yhxy bZxYl ¼,l lh½ 410 fufnZ"VA
1. This petition has been preferred by the petitioner under section 482 of Code of Criminal Procedure, 1973 for quashing the FIR registered at Crime No.646/2013 under section 409 of Indian Penal Code (in short “the Penal Code”) at Police Station Padav, District Gwalior and also for quashing the criminal proceedings in Criminal Case No.7590/2014 pending before Additional Chief Judicial Magistrate, Gwalior.
2. Brief facts of the case are that on 7.12.2013 one Rakesh Kumar Gupta, present Executive Engineer has filed a complaint at police station against the petitioner and others alleging therein that vide letter No.2531 dated 27.12.2007 of General Manager, Madhya Pradesh Pashu Dhan Evam Kukut Vikas Nigam an amount of Rs.22,63,000/- through Bank Draft dated 9.1.2008 has been received by the Executive Engineer, Public Works Department Division No.1 from which Shri O.P. Bhargava the then Executive Engineer had made the payment of Rs.20,14,000/- under the head of AR/SR, and therefore, Shri O.P. Bhargava has committed grave irregularity in making the payment and in reference to the letter No.F 58/16/13/19/Yo/6606 Bhopal dated 4.12.2013 the works mentioned in the letter No.5494/SAC/12-13 dated 28.7.2012 which are ten in number, the abovesaid amount has been unauthorizedly spent and therefore, the enquiry about the truthfulness of spending the amount be conducted. On the basis of that complaint, the FIR has been registered against the petitioner and investigation was started. After completion of investigation the charge-sheet has been filed under section 409 of the Penal Code and the learned Additional Chief Judicial Magistrate has taken cognizance against the petitioner under section 409 of the Penal Code.
3. Learned counsel for the petitioner submits that looking to the evidence available on record no offence under section 409 of the Penal Code is made out against the petitioner. It is submitted that during pendency of the case the investigation has been made on the amount spent on the 10 works mentioned and enquiry has also been conducted about the truthfulness and authenticity of the works mentioned in the bill and ultimately found that no irregularity has been committed. Learned counsel for the petitioner further submits that during investigation no evidence has been produced which proved that the petitioner has taken any commission for the aforesaid works. It is further submitted by the learned counsel for the petitioner that prosecution has submitted the work order and the bill and there was no mistake of petitioner has been seen that the work were done on higher rates. He further submitted that the petitioner has not committed any offence under section 409 of the Penal Code. On these grounds, learned counsel for the petitioner prays for quashing the FIR registered against him and the consequential proceedings pending before the Additional Chief Judicial Magistrate in Criminal Case No.7590/2014.
4. On the other hand, learned Public Prosecutor for respondent/State has submitted that there is prima facie evidence available on record for framing the charge under section 409 of the Penal Code against the petitioner. He further submitted that petitioner dishonestly misappropriated the Government money (property) which was entrusted to him. It is also submitted that petitioner has spent Rs.20.14 lacs of AR/SR head in another head and committed gross irregularity which comes under the definition of criminal breach of trust. In such a way learned Public Prosecutor for the respondent/State opposed the submission advanced by the learned counsel for the petitioner and prays for dismissal of the petition.
5. Having heard the learned counsel for the parties and perused the entire record.
6. Before coming to the factual aspect of the case, it would be proper to reproduced the relevant provisions of the Penal Code of criminal breach of trust which reads as under :
“405. Criminal breach of trust. -- Whoever, being in any manner entrusted with pro
