CRIMINAL MISCELLANEOUS No.22718 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------- Hari Lal Hazara @ Hira Lal Hazara S/O Late Bigan Hazara of Village-Purainia, P.O. Pirari, P.S. Mainatar, District- West Champaran ------------------- Petitioner Versus 1. The State of Bihar 2. Anwat Patel, Son of Late Raghuni Patel of Village-Dhankutawa, P.S. Balthar, District- West Champaran --------------- Opp.Parties. ----------- For the petitioner: S/Sri Sanjeev Kumar No.1, Shamshad Alam, Advocates For the State: Sri A.M.P.Mehta, A.P.P. For Opp.Party No.2: Dr. Gulnar Begum & Mr. Harendra Tiwary, Advocates. ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, who was at the relevant time posted as Block Development Officer,Sikta, West Champaran,while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 10.5.2000 passed by Shri A.K.Gupta, Judicial Magistrate, Bettiah in Complaint Case No.1647-C/1998, Trial No.1031 of 2000. By the said order, the learned Magistrate has taken cognizance of offences under Sections 419, 420 and 468 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 on 5.1.1999 filed a complaint vide Complaint Case No.1647C of 1998 in the Court of 2 the learned Chief Judicial Magistrate, Bettiah , West Champaran, disclosing therein that the complainant was well acquainted with the nephew ( Bhagina - Sister’s son) of the present petitioner. It was alleged that the nephew of the present petitioner took the complainant to the petitioner with an assurance that a loan for purchasing of “Horse and Tanga” under the government scheme will be provided to the complainant. Thereafter, the complainant himself went to the house of the petitioner along with the nephew of petitioner, where on several papers L.T.I. of complainant was obtained. Subsequently, as alleged, the complainant got a notice from the office of the D.D.C., Bettiah and thereafter, he came to know that a construction work of a room in Dhankutawa Middle School under Scheme of M.P. Development was going on in the name of the complainant. Thereafter, the complainant with the said notice contacted the petitioner, where his accused nephew was also present. The complainant protested and wanted to know that under what circumstances the execution of the said scheme was going on in the name of the complainant, whereas he was assured for providing loan for “Tanga and Horse”. It was alleged that subsequently the petitioner was transferred from Sikta and accused no.2, his nephew also left Sikta place along with the petitioner. It was further disclosed that in the year 1998 the complainant received on Memo No.560 dated 23.11.1998 from the office of the D.D.C., Bettiah, whereby it was intimated that under the scheme the estimated cost for construction of a room in Dhankutawa Middle School was Rs.80, 000/-, out of which an amount of Rs.76, 000/- was given to the complainant as advance till 2.1.1997. However, as per the Measurement 3 Book, work done was evaluated for Rs.63, 449/- and, as such, Rs.12, 551/- was due with the agent. It was asserted by the complainant that he never put his signature on any such paper since he was illiterate. On the aforesaid complaint, enquiry was conducted and witnesses were examined and thereafter the learned Judicial Magistrate, Sri A.K.Gupta, vide its order dated 10.5.2000 took cognizance of offences under Sections 419,420 and 468 of the Indian Penal Code ,as indicated above. 3. Aggrieved with the order dated 10.5.2000, i.e. the order of cognizance, the petitioner approached this Court by filing the present petition, which was admitted on 12.9.2001. While admitting , this Court had directed for issuance of notice to Opp.Party no.2 and in the meanwhile further proceeding in Complaint Case No.1647C /1998 pending in the court of Mr. A.K.Gupta, J.M., Bettiah , as against the petitioner shall remain stayed. The order of stay is still continuing. From the record, it appears that after admission of the present petition, Opp.Party no.2 appeared and filed a counter affidavit along with an Interlocutory Application vide I.A.No.190 of 2002 with a prayer to vacate the order of stay dated 12.9.2001 as well as for modification of the order dated 12.9.2001 in Cr.Misc.No.22718 of 2000 . The said petition was heard on 2.4.2002 and it was observed that the points taken in the interlocutory application on behalf of the Opp.Party no.2 can very well be raised at the time of hearing of main application and the interlocutory application was directed to remain pending till then. 4. Sri Sanjeev Kumar No.1, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance and 4 initiation of the entire proceeding submits that on perusal of the complaint petition and materials available on record, no case is made out against the petitioner. It was submitted that only with a view to get away from the liabilities as per the terms and conditions of the work allotted to the complainant and advance taken by him, the present complaint was filed in a designed manner by the complainant. Learned counsel for the petitioner, while arguing the case, submitted that for the said scheme in the year 1996, the District Magistrate, Bettiah had given administrative sanction of Rs.80, 000/- for construction of a room in the school in question. It was directed by the District Magistrate to get the scheme executed through selected and registered labourer. The complainant was a registered labourer vide Registration No.2547/95-96 and his bank account number was 3619 in Champaran Kshetriya Gramin Bank, Sikta. For the work in question, the complainant had also executed an agreement in presence of two witnesses and under the said scheme, the complainant was paid about Rs.71, 000/- in 11 (eleven) instalments in between 9.3.1996 to 2.1.1997. It was further submitted that all the payments were made to the complainant through account payee cheques by the Block Nazir. It was further submitted that on 28.1.1997, Opp.Party no.2 was paid an advance of Rs.5000/- by the successor of the petitioner. It is true that the work in question was allocated to the complainant while the petitioner was posted at Sikta as Block Development Officer. Learned counsel for the petitioner has also emphatically argued that before taking cognizance , learned Magistrate had not even bothered to inquire as to whether the prosecution sanction was available on record or not . It was submitted that in view of 5 peculiar facts and circumstances, the present complaint was filed by the complainant only and only with a view to get relieved from the liability of the work as well as refund of the remaining amount. Accordingly, it has been prayed to quash the order of cognizance as well as entire proceeding in Complaint Case No.1647C of 1998. 5. While vehemently opposing the prayer of the petitioner, Sri Harendra Tiwary , learned counsel appearing on behalf of Opp.Party no.2 at the very outset has argued that the complainant was an illiterate person and he was not knowing to put even his signature . He always used to put his L.T.I since he was completely illiterate person. Learned counsel for the Opp.Party no.2, while referring to several paragraphs of the counter affidavit, has argued that this petitioner was a habitual offender and he has committed fraud with several innocent people. It was submitted that since the complainant was illiterate and putting his thumb impression only, the question does not arise for relying on the agreement purported to be signed by the complainant while taking execution work of a room of the school in question. It was vehemently argued that he had never signed any document or agreed for executing the construction work of a room in the school in question. It was submitted that in the complaint petition, there was specific assertion that the petitioner and his nephew had defrauded the complainant and he obtained his L.T.I. on blank papers with an assurance to get the loan sanctioned for the purchase of “Horse and Tanga”. It was further submitted that the learned Magistrate after having fully considered the materials available on record has passed the order of cognizance and this Court may not interfere with the said order exercising power under Section 6 482 of the Code of Criminal Procedure. 6. Sri A.M.P.Mehta , learned Addl.Public Prosecutor has appeared on behalf of the State and supported the stand taken by the learned counsel appearing on behalf of Opp.Party no.2. 7. So far as the plea, which has been taken on behalf of the complainant that he was not knowing to put his signature since he was an illiterate and poor person and his thumb impression was obtained by the nephew of the petitioner, is concerned, the Court is of the opinion that this plea cannot be entertain by this Court. Moreover, regarding questioning of integrity and antecedents of the petitioner by Opp.Party no.2, this Court is not persuaded to be influenced on such plea in view of the facts and circumstances of the present case. However, the stand, which has been taken by both the parties, cannot be decided in a proceeding initiated on a complaint petition lodged by Opp.Party no.2. It was required to be thoroughly investigated. In any event, the fact remains that the work in respect of construction of a room of the school remained incomplete and payment excess to the measurement book was already made. Whether the complainant was actually not knowing to put his signature or as to whether the complainant was having any bank account or not, cannot be established easily in a complaint proceeding. All those facts are required to be thoroughly investigated by an Investigating Agency. 8. In view of the facts and circumstances of the present case as well as the dispute raised between the parties coupled with the fact of misappropriation of government fund, this Court has left with no option, but to direct for an investigation in entire episode on the basis of 7 averments made in the complaint petition as well as grounds taken in the counter affidavit filed on behalf of Opp.Party No.2. Accordingly, in view of peculiar facts and circumstances of the present case and also to unravel the entire episode, it is necessary to direct the Vigilance Investigation Bureau to institute an F.I.R. in the matter and examine the role of the petitioner as well as complainant of the present case. Since the occurrence had taken place much earlier, it would not be advisable to further delay the matter and, as such, it is directed that the Vigilance Investigation Bureau shall investigate the case and conclude the same preferably within a period of nine months from the date of receipt/production of a copy of this order. 9. Since direction has been issued to investigate the matter, it would not be appropriate to keep the proceeding in Complaint Case No.1647-C of 1998, Tr. No.1031 of 2000, pending in the court of Judicial Magistrate, Bettiah alive and same is hereby set aside and the order dated 10.5.2000 passed by Sri A.K.Gupta , Judicial Magistrate, Bettiah is also set aside. 10. The Registry of this Court is directed to hand over a copy of the petition along with counter affidavit to the Vigilance Investigation Bureau forthwith and thereafter the Vigilance Investigation Bureau is directed to register an F.I.R. within one month from the date of receipt of a copy of this order as well as copy of the petition along with counter affidavit and take steps to conclude the investigation preferably within a period of nine months. 11. Let a copy of this order be handed over to Sri Arvind Kumar, learned Special Public Prosecutor, Vigilance Investigation Bureau 8 for its communication to the Additional Director, Vigilance Investigation Bureau, Bihar, Patna. 9. With the above observation and direction, this application is disposed of. Patna High Court, Patna Dated: the 10th August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J )