{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2023 OF 2010 WITH CRIMINAL APPLICATION NO.2034 OF 2010 WITH CRIMINAL APPLICATION NO.2139 OF 2010 XXX­­­XXX CRIMINAL APPLICATION NO.2023 OF 2010 Prabhakar s/o Namdeo Bondar Age­38 years, Occ­Gramsevak Ratnapur (under suspension) Tq­Kallamb Dist­Osmanabad APPLICANT VERSUS The State of Maharashtra Through Police Station Incharge Yermala, Tq­Kalamb, Dist­Osmanabad RESPONDENT ....... Mr. V.D.Sapkal, Advocate for the applicant Mr. S.G.Nandedkar, APP for respondent State ....... WITH CRIMINAL APPLICATION NO.2034 OF 2010 Shivkant s/o Haribhau Bangar Age­41 years, Occ­Agri {2} R/o Ratnapur, Tq­Kallamb Dist­Osmanabad APPLICANT VERSUS 1. The State of Maharashtra Through Police Station Yermala, Tq­Kalamb, Dist­Osmanabad 2. The Superintendent of Police Osmanabad, Dist­Osmanabad RESPONDENTS ....... Mr. S.J.Salunke,, Advocate for the applicant Mr. S.G.Nandedkar, APP for respondent State ....... WITH CRIMINAL APPLICATION NO.2139 OF 2010 Sunil s/o Sarjerao Shelar Sarjerao s/o Sopan Shelar (Name inFIR) Age­38 years, Occ­Gramsevak (Suspended) R/o Kategaon, Tq­Barshi Dist­Solapur APPLICANT VERSUS 1. The State of Maharashtra 2. The Superintendent of Police Osmanabad, Dist­Osmanabad RESPONDENTS ....... Mrs. S.S.Jadhav, Advocate for the applicant Mr. S.G.Nandedkar, APP for respondent State ....... {3} [CORAM : A.V.POTDAR, J.] DATE: 15th July 2010 PER COURT: 1. By these three criminal applications, two Gram Sevaks, who are presently under suspension and one Sarpanch, who were concerned with implementation of Employment Guarantee Scheme for Ratnapur village, have approached this Court for anticipatory bail in the event of their arrest in connection with CR No.40/2010 registered with Yermala police station for an offence punishable u/s 409, 465, 467, 468, 470, 471 and 420 of the Indian Penal Code. 2. It appears that all the applicants are protected by way of interim anticipatory bail by this Court. 3. Previously, directions were given to the learned APP to obtain instructions as to whether actual physical verification was carried out by the Block Development Officer concerned before approving and forwarding bills submitted by the applicants to Tahsildar, who in turn forwarded the same to Post Master for disbursement of payment and whether any document is prepared in respect of physical verification. After the instructions are received by learned APP, this application is heard finally. {4} 4. As all these applications arise out of the same crime, they are being disposed of by this common order. 5. Perusal of the compliant discloses that the period of alleged misappropriation is from 20th July 2008 to 18th August 2009. It is alleged that the misappropriation is done by the applicants while implementation of the scheme styled as “Employment Guarantee Scheme”, introduced by the Central Government but has to be implemented by the State Government. The controlling authority for the implementation of the said scheme is the District Collector, in this case, Collector, Osmanabad. It is alleged that initially the village, where the said scheme is implemented, was within the jurisdiction of Vashi taluka, however subsequently, after bifurcation, the same came within the jurisdiction of Kallamb taluka. From the documents on record it appears that the Collector, Osmanabad had appointed Technospurt as an agency to carry out the work under the said scheme. As per the terms of the agreement which was executed between the Collector, Osmanabad and Technospurt, technical service provider, the work was to be carried out by the technical service provider i.e. Technospurt and the role of the present applicants, being Gram Sevaks and Sarpach, was to provide assistance in carrying out the work under the said scheme, whenever required by the service provider. It appears that one post was also created and one person came to be appointed as assistant to Gram Sevak, by the Gram Sabha for assistance in the said work. {5} Under the scheme after schedule work is over, it has to be verified by Block Development Officer, Kallamb. Admittedly, the payment for work, which was carried out, was disbursed only after physical verification by the BDO concerned. From the papers of investigation it appears that the schedule work was carried out for which payment was disbursed after physical verification by the BDO and thereafter only the bills were forwarded to Tahsildar with request to release the payment to be deposited in the Post Office. Thus, it is clear that the concerned BDO has to physically verify the work, then to approve the bills and then to forward the same to Tahsildar for disbursement. Admittedly, there is no complaint on record of any labour in respect of non receipt of labour charges. 6. In this background the allegations in the complaint need to be considered. It is alleged that an amount of Rs. 42,99,278/­ has been misappropriated by the applicants by joining hands. On specific query as to whether any record is available in respect of physical verification by the BDO concerned to which learned APP has answered that there is no such record available with him indicating that actual physical verification was done by the BDO. Apart from the present complaint, one more complaint was filed by a local resident on 18th March 2009 and on the basis of the said compliant, inquiry was conducted by the BDO, Kallamb in respect of the allegations. Report prepared by the BDO, Kallamb in respect of the complaint by local resident shows that the allegations in the said complaint are baseless, without any {6} substance and the work is carried out as per the documents provided to his office. It is to be noted that on perusal of the entire record and even as per the scheme, the primary responsibility in respect of the said scheme and disbursement of the payment, is of the BDO, as he is required to verify the work actually carried out under the said scheme and then only to approve the bills and thereafter to request for disbursement of the payment. It appears that though the BDO, in the inquiry conducted pursuant to a complaint by local resident, has exonerated all the applicants, as according to him, the work is carried out as per schedule yet one fails to understand that then why the present complaint is filed thereafter by the Assistance Project Officer alleging misappropriation against the present applicants only exempting the Collector, Chief Executive Officer and the Block Development Officer, who are actually responsible for implementation of the work under the said scheme and for disbursement of the payment after verification of the work. Thus, it is clear that without the blessings of Collector, Chief Executive Officer and the Block Development Officer, the bills of the said work could not have been sanctioned. The BDO has stated that he has approved the bills only after physical verification of the work carried out under the said scheme and hence false implication of the applicants cannot be ruled out and therefore, custodial interrogation of the present applicants is not necessary. 7. In the result, all the three applications are allowed. {7} The interim protection granted in favour of all the applicants is extended till filing of the charge sheet. The applicants are directed to attend the concerned police station as and when required by the concerned IO on written intimation well in advance. 8. The investigating agency is hereby directed to interrogate the Block Development Officer, Kallamb, Chief Executive Officer, Osmanabad and the District Collector, Osmanabad, concerned, and then if necessary array them as accused in this offence and start further proceedings. All the applications stand disposed of accordingly. [A.V.POTDAR, J.] drp/B10/criapln2023­10