IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.35456 of 2010 In the matter of an application under Section 482 of the Code of Criminal Procedure. ************ SRIDHAR PRASAD, S/o Sri Ram Vilash, R/o Village-Kandh Bhagwanpur, P.S.-Panapur, District-Saran at Chapra. Versus THE STATE OF BIHAR THROUGH THE CBI. *********** For the Petitioner : Mr. D.N. Singh, Adv. For the C.B.I. : Mr. Bipin Kumar Sinha, Adv. ********** P R E S E NT THE HON’BLE JUSTICE SMT. ANJANA PRAKASH ************* Anjana Prakash, J. 1. The petitioner has prayed for quashing of the order dated 01.07.2010 passed by the Special Judge, CBI, North Bihar, Patna in Special Case No. 8/97/RC Case No. 21(A)/97 by which he has refused to discharge the petitioner. 2. The case of the prosecution is that in the financial year 1993 to 1995-96 three supply orders of bulk bitumen for RCD, Siwan had been issued by the Engineer-in-Chief cum Additional Special Secretary, RCD, Bihar. The three were numbered as Supply Order No. 6946 dated 18.11.1993 for 9 Metric Tonnes, Supply Order No. 4809 dated 23.07.1995 for 500 Metric Tonnes and Supply Order No. 4199 dated 17.08.1995 for 400 Metric Tonnes. The petitioner happened to be the Executive Engineer at Siwan between 18.07.1995 to 2 29.04.1996. He was not named in the First Information Report. Subsequently three charge- sheets were submitted in the case. In the first charge-sheet numbered as 02/2003 seven persons (excluding petitioner) were sent up for trial. This was with regard to Supply Order No. 6946 dated 23.10.2003. The second charge-sheet and third charge-sheet both numbered as charge-sheet No. 01/2005 were submitted on 19.01.2005 with regard to Supply Orders No. 4809 and 4199 in which the petitioner was sent up alongwith other co-accused persons. 3. The charge-sheet with regard to Supply Order No. 4809 contains the following allegations:- (i) “Later on, vide letter dated 21-7-95, Sh. Shreedhar Prasad, XEN, RCD, Kishanganj asked the HPCL for release of 50 MT (10%) of bulk bitumen in excess against this Supply Order and Delivery Order as fresh allotment order.” The further allegation against him in the charge-sheet is (ii) “Further, Sh. Shreedhar Prasad while functioning as Executive Engineer, RCD, Siwan signed on the three CRCs (Consignee Receipt Certificates) viz. 5333, 5347 and 5356 and 3 countersigned on as many DGS&D Invoices falsely acknowledging the receipt of 42.640 MT bulk bitumen without verifying the same. The bulk bitumen has been falsely shown to have been received by Sh. V.S. Choudhary and Sh. Devanand Upadhyay on three different dates and has also been falsely entered in the stock accounts in order to show its subsequent use.” Whereas charge-sheet pertaining to Supply Order No. 4199 contained the following passing reference to the petitioner as mentioned below:- “Investigation revealed that the Exe. Engg. Sh. Shreedhar Prasad, authorised the transporter, M/s Tirupati Transport Agency or its representative to lift the material from BPCL, Barauni Despatch Unit.” In addition, to what has been stated in the charge-sheets, learned counsel for the CBI submits, that during investigation it transpired that the petitioner had also signed on a CRC accompanied with Invoice No. 004118 pertaining to Supply Order No. 4199 (E) even though there were overwritings and disparity in the amount of bitumen received. 4. Learned counsel for the petitioner submits that even though there is an allegation against the petitioner that he had issued a Supply 4 Order 10% in excess of the earlier order but the allegation is baseless since it was well within his power to do so as per the official communication dated 30.03.1982 that the Executive Engineer was empowered to order 10% of bulk bitumen in excess to the earlier order whereas the Superintending Engineer and the Engineer In-chief were given more powers in this regard. 5. As for the next allegation that the petitioner had counter-signed CRCs without verifying the receipt of the same is also baseless since petitioner, as Executive Engineer, no doubt, was required to generally ensure proper management of the works within his Division but it did not mean that any procedural lapse committed in the same would make him, as the Divisional Head, criminally liable, in absence of any material that he was in conspiracy with the other co-accused persons in defalcating the Bulk Bitumen. After all, there is a difference between illegality and irregularity. 6. Whereas the charge with regard to Supply Order No. 4199 (E) that despite over- writings by his Subordinate Officer in the Invoice No. 004118 he had signed on the CRC the 5 submission is that even though there may have been over-writings in the column “Received the product mentioned herein in good condition” but if it is compared with the column of product quantity and the unit price it would be concluded that it is in conformity and, therefore, the over-writings may be to just check the clerical error that had occurred. Further submission is that the petitioner did not sign on the invoice which contained the over- writings, but had signed on the accompanying CRC which mentions both in digits as well as in figures, the corrected figure which had been mentioned in the disputed invoice. 7. It has also been submitted that records of the case show that the petitioner had counter- singed on at least 29 CRCs but there is an allegation only with regard to four of them during his brief tenure of nine months. In continuation, he submits that even though now the CBI has raised an issue about over writings in invoice No. 004118 pertaining to Supply Order No. 4199(E) but fact remains that in the charge-sheet pertaining to the said supply order none of the officers who had infact signed in token of receipt of the bitumen concerned namely Abdul Bari and Jawahar Lal 6 Singh had been sent up for trial and, therefore, to segregate the petitioner and make him into a separate category by holding him criminally liable for counter-signing the accompanying document while letting off those who had indulged in the over- writings is unjust. 8. The counsel for the petitioner places reliance on (2009) 8 SCC 617 and stresses on paragraphs 34, 47, 52 and 54. The further reliance is on a decision reported in AIR 2007 Page 2149. 9. On the other hand learned counsel for the CBI has placed reliance on AIR 2001 (1) SC 369, AIR 2001 (4) SC 333, AIR 2008(2) SC 561, AIR 2008(4) SC 471 and AIR 2005 (2) SC 600 on the broad proposition of law with regard to limitation imposed on the Courts at the stage of framing of charge. 10. It is indeed correct that at the stage of framing of charge a roving or fishing inquiry can not be conducted by the Courts nor can it hold a mini trial but in my opinion the Criminal Courts cannot abdicate its responsibility of going into the basic question as to whether there is any prima facie material to put an accused on trial on this pretext. 11. In this background if I proceed to 7 examine the materials against the petitioner, I find that allegations that emerge against him is (i) as a Senior Officer he had counter-signed on the CRCs in token of receipt of bitumen (ii) had placed orders for 10% in excess to the earlier order for Bulk Bitumen (iii) had signed on a CRC which was accompanied with an Invoice containing over- writings. 12. To consider as to whether the first allegation has any substance one needs to be satisfied that it was the specific duty of the petitioner to personally verify the receipt of the bulk bitumen. As per the PWD Code it was undoubtedly the Junior Engineer and the Assistant Engineer who were Officers In-charge and Store Manager. Keeping in mind the complex work of the Govt. machinery I am of the view that it would be difficult for any official to perform his duty or sign on any file which routinely comes before him if there is a constant threat of being implicated in a criminal case if he deals with the same. Here I am reminded of a decision of the Hon’ble Supreme Court reported in AIR 2007 Page 2149 paragraph 6 wherein it very aptly says the following:- “6. The Courts although may 8 take a strict view of an offence where fraud is alleged against a public servant, but only because it is found to have been committed, the same by itself may not be sufficient to arrive at a conclusion that all officers who have dealt with the files at one point of time or the other would be taking part in conspiracy thereof or would otherwise be guilty for aiding and abetting the offence. It is necessary to deal with the individual acts of criminal misconduct for finding out a case therefore.” It is probably for this reason that the Legislature in its wisdom had incorporated Section 114(e) of Evidence Act:- “114. Court may presume existence of certain facts---The Court may presume existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume---- (e) that judicial and official acts have been regularly performed;” In my opinion, in every circumstance, this presumption would continue to operate in favour of an official till such time as it is dislodged satisfactorily by the prosecution by bringing on record such material which would suggest that the accused had not performed his duty “regularly”. In the present case since there is no material to suggest that the petitioner was to physically verify 9 the receipt of each consignment of bitumen and only then was to sign the CRC, and, he had failed to do so he should get the protection of Section 114(e) of Evidence Act and he should not be put on trial merely because the scope of discharge is limited. 13. Further, the allegation that the petitioner ordered 10 % in excess of bulk bitumen is also baseless because firstly it was well within his powers to do so and therefore it would not make him criminally liable and secondly there is no allegation that the same was not supplied and was part of the defalcated bitumen. 14. On going through the documents with regard to Invoice No. 004118 and on specific query to the CBI as to whether the corrected amount of bitumen mentioned in the invoice was in accordance with the cost mentioned therein, the reply was to the affirmative and, therefore, to prosecute the petitioner only for counter-signing on a document which was accompanied with another, containing over-writings, would be unfair and against the interest of justice. Moreso, because petitioner was neither the author of the over- writings nor had signed on the invoice containing the same. 10 15. In view of the above discussions, the application is allowed and the order dated 01.07.2010 passed by the Special Judge, CBI, North Bihar, Patna in Special Case No. 8/97 RC Case No. 21(A)/97 so far as it relates to the petitioner is, hereby, set aside. Patna High Court, Patna, Dated, the 20th April, 2011. AFR/Vikash/- (Anjana Prakash, J.)