{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2448 OF 2010 Motilal s/o Ramdas Ghyar & Another APPLICANTS VERSUS The State of Maharashtra & Another RESPONDENTS ....... Mr. S.B.Yawalkar, Advocate for the applicants Mr. D.V.Tele, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 19th July 2010 PER COURT: 1. By the present criminal application, the applicants, who are President and Secretary of “Hariyali Panlot Development Programme” at Mal Dabhadi, Tq-Jamner, Dist-Jalgaon, have prayed to release them on anticipatory bail in the event of their arrest in connection with CR No.56/2010 registered with Jamner Police Station, Dist-Jalgaon for an offence punishable u/s 420, 408, 409 r/w 34 of the Indian Penal Code. {2} 2. It appears that the applicants are protected by this Court by way of interim protection granted on 30.06.2010. 3. It appears that as the papers of investigation were not made available to the learned APP, the matter was required to be adjourned on 9th July 2010 and hence a show cause notice was issued to the Police Inspector, Jamner as well as to the Superintendent of Police, Jalgaon. Today, both the officers are present in the Court and they have also tendered respective affidavits. The affidavits are taken on record. 4. Heard learned counsel for the applicants and learned APP. Perused the papers of the investigation. 5. It appears that the said offence is registered on the complaint of Agricultural Officer, Panchayat Samiti, Jamner in respect of alleged misappropriation of funds while implementing “Hariyali Panlot Development Programme” at Maldabhadi. Admittedly, after the applicants took charge of the said work, they started implementation of the scheme and the work was to be carried out at three different levels. Firstly, to prepare Nala Bunding in agricultural lands, then work of soil conservation was to be carried out and ultimately, work of plantation of trees, by digging ditches in the area was to be carried out. According to learned counsel for the applicants, as per the record maintained by {3} the applicants, by maintaining measurement book, form No.15 and vouchers, Rs.3,27,000/- were spent for the work of Nala Bunding, Rs.2,26,047/- were spent on the work of soil conservation and Rs. 38,020/- were spent for tree plantation. Thus, according to learned counsel for applicants, total expenditure of Rs.5,91,061/- was incurred on the said scheme during the period April 2008 to June 2008 against the sanctioned amount of Rs.7,09,000/-. It is also contended that the balance amount was found in the account of the said scheme and hence the applicants may not be held responsible for any misappropriation and therefore, it is prayed to confirm the anticipatory bail in favour of the applicants. 6. Learned APP, on the basis of the papers of investigation, opposed the application and requested that the interim protection granted in favour of the applicants be vacated by dismissing the present application. 7. Perusal of the papers of investigation indicate that due to the complaint received from the villagers, initially, a committee of Sub-Divisional Agriculture Officer, Pachora, Technical Officer, Pachora, Taluka Agriculture Officer, Jamner, Deputy Engineer, District Rural Development Scheme, Jalgaon and Secretary / Representative of society, Chalisgaon, was appointed to verify the site, in presence of the applicants on 24th September 2008. During the said verification, it was noticed that so far as the work of Nala Bunding is concerned, as per the record, work at the length of {4} 12275 cubic meters is shown whereas the actual verification shown that the work of 6873 meters is carried out only, thus, there was deficiency of 4051 cubic meters work, which costs Rs. 1,19,642/-. It appears that vouchers are shown about purchase of 93 pipes worth Rs.74,400/-, however during the physical verification only 10 pipes were found at the spot and 83 pipes were not found for which it is stated that they are stolen, however, no complaint of theft is registered. So far as the work of soil conservation is concerned, the amount to the tune of Rs.47/- is shown as deficit, however the same is a meager amount and need not be considered seriously. So far as the work of digging of ditches is concerned it is contended that total 10,000/- ditches were dug with the help of 600 labours and it cost Rs.3,12,020/- however on physical verification it revealed that not much work was carried out on this count. It appears that again a committee of four officers visited the site on 6th march 2010 and certain deficiencies are noticed by the said committee in the work carried out by the applicants while implementing the said scheme, which are also mentioned in the FIR. 8. It appears that in the FIR it is mentioned that pipes were not found at the site of work of Nala Bunding as well as the earlier report show that 10 pipes were found while 83 were missing / stolen, for which no compliant is lodged, which amounts to deficiency. According to learned counsel for the applicants, in the verification report of 2008 it is stated that certain ditches were {5} found, which do not find place in the latest report and hence there is discrepancy in two reports and hence benefit be given to the applicants. 9. Papers of investigation discloses about the discrepancy in measurement in respect of Nala Bunding of 4051 cubic meters, however, whether the benefit of said discrepancy would be given to the applicants or not will be decided at the time of trial. The papers of investigation also disclose that 93 pipes worth Rs.74,400/- were purchased for the work of Nala Bunding, however at the time of physical verification only 10 pipes were found. No doubt, there is variance to the effect that 10 pipes are not mentioned in the report, however fact remains that if 83 pipes which were stolen then the natural conduct was to lodge a report to the police, and hence this creates doubt about the veracity of the applicants. Another aspect in respect of non mentioning of ditches while the same were noticed at the earlier physical verification, which is not sufficient to hold that the amount spent by the applicants is accounted for by them. If the public funds are utilized by the applicants, as it is evident that an amount of Rs.5,91,067/- was withdrawn by them, they are under obligation to submit the account for the said amount. From the papers of the investigation, it is clear that the account of the amount spent by the applicants is not properly and satisfactorily furnished. If it is so, to ascertain the truth behind utilization of the public funds, custodial interrogation of the applicants is must. In the result, the application, which is sans {6} merits, stands rejected. Interim protection granted to the applicants stands vacated. 10. Pursuant to the show cause notice issued to the Superintendent of Police, Jalgaon and Police Inspector, Jamner police station, they have submitted respective affidavits and have also tendered unconditional apology for the inconvenience caused to the Court. Even the Superintendent of Police, Jalgaon has assured that stringent action would be taken against the errant officers, who are responsible for miscommunication and consequent inconvenience of the Court. In the premise, the explanation offered by the police officers along with the unconditional apology is accepted. Consequently, the show cause notice issued to these police officers, stands discharged. [A.V.POTDAR, J.] drp/B10/criapln2448-10