IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39599 of 2007 JAI PRAKASH ROY SON OF LATE GENA LAL ROY RESIDENT OF MOHALLA RAJIV NAGAR,P.S.PATLIPUTRA, DISTRICT PATNA, THE THEN BLOCK DEVELOPMENT OFFICER, BARARI,DISTRICT KATIHAR VERSUS 1. THE STATE OF BIHAR 2(i) ROSHAN JAHAN WIFE OF LATE MD.YUSUF 2(ii) MD.SHABBIR ALAM 2(iii)MD.SHAMSHER ALAM 2(iv) MD.NOOR ALAM 2(v) MD.FAKHRE ALAM 2(ii) TO 2(v) ARE SONS OF LATE MD.YUSUF, ALL ARE RESIDENTS OF VILLAGE BALUGANJ, P.S.BALRAMPUR,DISTRICT KATIHAR 2(vi) AFSANA DAUGHTER OF LATE MD.YUSUF AND WIFE OF MD.JAHID, RESIDENT OF VILLAGE KOCHRA GOPALPUR,P.S. KARANDIGHI, DISTRICT UTTAR DINAJPUR 2(vii)UMMATI BEGUM DAUGHTER OF LATE MD.YUSUF AND WIFE OF ABDUL MANNAN,RESIDENT OF VILLAGE DHANHARA,P.S.BARHAMPUR,DISTRICT KATIHR ----- For the petitioner : Mr. Chitranjan Sinha,Sr.Advocate For the State : Mr. Ajay Kumar No.1, Addl.P.P. For Opposite Party : Mr. Md.Helal Ahmad, Advocate Nos. 2(i)to 2(vii) ----- 11/ 22.03.2010 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing for substituted heirs of opposite party no.2. This application under Section 482 of the Code of Criminal Procedure has been filed by the petitioner for quashing the order dated 05.06.2007 passed by Sri S.P.Mishra, Judicial Magistrate, Ist Class, Katihar in G.R.Case No. 331 of 1989 whereby the petition filed by the petitioner under Section 239 of the Code of Criminal Procedure has been rejected. A complaint case was filed by Panchayat 2 Sewak, opposite party no.2 Md.Yusuf, now dead and his heirs have been substituted as opposite party nos. 2(i) to 2(vii), who at that time was attached to Barari Block in the district of Katihar, vide Complaint Case No. 718 of 1988 before Chief Judicial Magistrate, Katihar for offences under Sections 418, 420 and 406 of the Indian Penal Code against the petitioner. The said complaint petition on being referred to police resulted in Barari P.S.Case No. 27 of 1989 on 20.02.1989. The matter was investigated into. The complainant was attached to Barari Block as Panchayat Sewak from 1983 to 1987. He was executing agent of the several schemes under N.R.E.P. and different sum of amount was allotted and the schemes were to be completed within the stipulated period. The complainant used to raise the amount from Nazir and the Bank through vouchers and cheques on the orders of the accused. As per allegation, money was withdrawn by the complainant but it was used and kept by the accused (petitioner) saying that the money will be given to him from time to time as and when it is required. 3 Assertion of the complainant is that he being subordinate to the petitioner, on assurance, went on carrying out the work with the money what the petitioner paid to him. The complainant completed some of the schemes and remaining could not be completed due to withholding of amount by the petitioner. The complainant was advised to carry out other schemes and small amount was given with promise to adjust the amount of the previous schemes to the new schemes. In the meanwhile, the petitioner transferred to another Block. Thereafter the complainant moved the authorities who directed him to go to court. The complainant could not complete the work due to non-payment of money and materials. Within the period 1986-87, Scheme no.1/86-87 was carried out by the complainant and he was paid Rs.50,700/- in cash and kind and rest amount Rs.30,000/- in cash was kept by the accused- petitioner on 27.02.1987. Similarly under Scheme No. 27/86-87, Rs.21,030/- was withdrawn but the complainant was paid only Rs.16,030/- and rest Rs.5,000/- was kept by the petitioner and under Scheme No. 32/86-87, Rs.42,5000/- was 4 withdrawn but petitioner was paid Rs.37,5000/- and rest amount Rs.15,000/- was kept by the petitioner. According to allegation, the petitioner misappropriated a sum of Rs.50000/-. After completion of investigation, chargesheet has been submitted under Sections 418,420 and 406 of the Indian Penal Code and the cognizance was taken under the aforesaid sections by the learned Magistrate. Submission of the learned counsel for the petitioner is that the procedure for execution of scheme is fixed. The estimate is prepared which is given Technical sanction by the Executive Engineer and after administrative approval given by the D.M./D.D.C., these are being sent to the Block. At Block level, the Panchayat Sewaks or other government employees are made executing agent. An agreement to execute the scheme is submitted and thereafter an application for advance of money for execution of schemes is made and then the executing agent received the amount of advance from the Nazir and the Bank in terms of the agreement. From the terms of agreement it is apparent that in case of non-completion of 5 work, the advance taken by the executing agent was to be recoverable from him and he was to be prosecuted under the Code of Criminal procedure. Further submission of the learned counsel for the petitioner is that the complainant, being afraid of initiation of departmental and criminal proceedings against him by the orders of the District Magistrate, resorted to the complaint case by fabricating a false story of entrustment of amount to be kept by the Block Development Officer (petitioner) which was received by the complainant from the Bank and the Treasury. The petitioner himself had issued notice dated 18.07.1987 and 30.10.1987 to the complainant to deposit the amount which was taken as advance for Scheme No.1/86-87. The District Magistrate ordered for starting departmental proceeding as well as the criminal prosecution against the complainant. For Scheme No. 27/86-87, the petitioner had directed for issuance of notice on the complainant for depositing the advance amount taken by him vide order dated 07.03.1987 and notice was sent to the complainant. In this 6 case, the District Magistrate ordered for issuance of departmental proceeding as well as criminal prosecution against the complainant. Similar actions were taken in respect of Scheme No. 32/86-87 by the petitioner and the District Magistrate. It has also been argued that in the entire exercise of advancing money to the executing agent, the petitioner had no occasion to even touch a single paise. No entrustment of money was ever made to the petitioner because no such occasion had arisen and once there was no entrustment, then the entire prosecution against the petitioner fails. The complainant has filed the complaint case after seven months of transfer of the petitioner from the said Block, after four months of his handing over the charge and after one and half years from the date of occurrence. Lastly, it was submitted by the learned counsel for the petitioner that the fact itself of the case shows that the prosecution of the petitioner is mala fide because there was no entrustment at all. As such in exercise of power under Section 239 of the Code of Criminal 7 Procedure to discharge the petitioner, it was incumbent upon the court to exercise the jurisdiction properly but it has failed to exercise it and in a mechanical manner, the order was passed rejecting the application of the petitioner under Section 239 of the Code of Criminal Procedure. It was also wrong mentioning of fact by the learned Magistrate that the work was not completed by the petitioner, rather it was for the complainant to complete the work and the learned Magistrate has not understood the procedure of work because the Block Development Officer (the petitioner) was at any stage not associated with the execution of work of the executing agent namely, the complainant. The allegation is with regard to misappropriation of Rs.50,000/- but only Rs.35,000/- was advanced to the complainant between the alleged period. So, the case becomes apparent false. Learned counsel appearing for the State has produced the case diary but he is not in a position to oppose the submissions of the learned counsel for the petitioner that the complainant was to be prosecuted both 8 departmentally and under the Code of Criminal procedure for embezzlement and non-performance of the works. It appears that the complainant has misused the privilege granted to him in adopting the procedure and filing the complaint. After analyzing the entire materials on record and in the facts and circumstances of the case, I am of the view that the learned Magistrate has committed error in passing the impugned order and accordingly, it is held that the order dated 05.06.2007 is illegal and is set aside. Accordingly, the entire proceeding of Barari P.S.Case No. 27 of 1989 (G.R.No. 331 of 1989) is quashed. In the result, this application is allowed. Tahir/- ( Shyam Kishore Sharma, J.)