Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.23734 of 2010 ====================================================== Ganesh Prasad Yadav, S/o Late Paltan Prasad Yadav, Resident of Mohalla-C-16, A.G. Colony, Raja Bazar, P.S.-Shastri Nagar, Town & District-Patna. .... .... Petitioner. Versus 1. The State of Bihar through Vigilance. 2. Shri Hari Mohan Shukla, Dy. Superintendent of Police [Vigilance], 6, Circular Road, Patna. .... .... Opposite parties. ====================================================== Appearance : For the Petitioner : Mr. Pramod Kumar Singh, Advocate. Mr. S.D.Sanjay, Advocate. Mr. Gopal Prasad Gupta, Advocate For the Opposite parties : Mr. Arvind Kumar, Spl. P.P./Vigilance. ====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI C.A.V. ORDER 8. 24-02-2012 Sole petitioner, Ganesh Prasad Yadav has challenged the order dated 05.10.2009 whereby and whereunder petitioner including others has been summoned to face trial for an offence punishable under [STATUTE] . and Section 7, 8, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act in connection with Special Case No.58 of 2009 arising out of Vigilance P.S. Case No.82 of 2009 passed by Special Vigilance, I, Patna. Shorn of unnecessary details, Smt. Manju Devi made complaint before “Janta Darbar of Chief Minister” alleging inter alia that Ganesh Prasad Yadav claiming himself to be Dy.S.P. with the aid and assistance of Nagendra Thakur had deceived and cheated Rs.1,68,000/- on the pretext of providing job to her son Sudhir Kumar. During aforesaid event, a letter (subsequently found forged) was also handed over with regard to employment in the Railway department purported to be issued by Ministry of Railway, Rail Bhawan, New Delhi to inspire confidence relating to their -2- fraudulent action as genuine one. The matter was accordingly directed to be taken up for preliminary enquiry by the Vigilance on the basis of which Vigilance Case No.82 of 2009 was registered and followed with institution of Special Case No.58 of 2009 and then thereafter investigation was taken up and after completing the same, charge sheet was submitted on the basis of which vide order dated 05-10-2009 cognizance of an offence punishable under [STATUTE] . as well as Section 7, 8, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act has been taken up as well as petitioner including others has also been summoned to face trial. Simple submission whatever been raised on behalf of petitioner is that during course of investigation it has conclusively been found that petitioner is not a Dy.S.P., that means to say he is not a Public Servant and so, there is non-application of Prevention of Corruption Act, much less relating to the petitioner. Elaborating further, it has been contended with the aid of Section 7 of the Prevention of Corruption Act that as per Explanation No.1, if an accused receives gratification not being in office, then in that event he will be found to be guilty of cheating and not under Prevention of Corruption Act. So submitted that summoning of petitioner to face trial under Prevention of Corruption Act is not at all tenable. So far remaining sections of penal law is concerned, it has been contented that nowhere the complainant, Manju Devi nor her son had contended that they had or either of them had paid amount to the petitioner. So prima facie there is no material to suggest that a single farthing was paid to the petitioner. Whatever basis has been formed, that happens to be a -3- statement of co-accused Nagendra Thakur which statement is inadmissible in the eye of law. Therefore, by putting reliance upon the statement of Nagendra Thakur, co-accused, no adverse inference can be drawn up against the petitioner and consequent thereupon, summoning of petitioner appears to be non-justifiable in the eye of law. So, it has been submitted that cognizance as well as summoning of petitioner by the order impugned is bad to the extent of interest of the petitioner. So submitted that instant petition is fit to be allowed. At the other hand, the learned special P.P. for the Vigilance fairly submitted by way of counter affidavit, regarding status of the petitioner who was not at all a Public Servant but on that very pretext he cannot be exonerated because of the fact that the process of deception was finalized whereunder complainant was duped and been forced to part with Rs.1,68,000/- illegally after having assurance on the part of the petitioner to provide her son an employment posing himself to be Dy.S.P. The whole event was materialized under active involvement of Nagendra Thakur who happens to be an employee of Bihar State Electricity Board and for the present he himself to be P.A. of Joint Secretary coming within definition of Public Servant. Hence, it has been submitted that there is no force in the plea of the petitioner, consequent thereupon petition is fit to be dismissed. From the rival contention it is evident that petitioner does not happens to be a Public Servant. However, his associate Nagendra Thakur being an employee of Bihar State Electricity Board comes under such category. The offence so alleged was jointly executed. Section 10 as well as Section 12 of the Prevention of Corruption Act make abetment punishable in the eye of law. Section 10 requires abetment at the hands of Public Servant while Section 12 attracts where the abetment has been made by an individual -4- other than the public servant. Therefore, the abetment as it stands happens to be punishable at both fronts so committed either by a Public Servant or by an individual. Public Servant has been defined under clause C of Section 2. (c) “ public servant” means, - (i) any person in the service or pay of the Government or remunerated by the Government by fees or commission for the performance o

Applicable IPC Section: 468

Statute Text:
Section 468 of the Indian Penal Code. Forgery for the purpose of cheating. Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.