MEHAR CHAND YADAV Vs. GURDAS RAM

JUDGEMENT

(1.) IN the year 1971 for providing relief to the refugees pouring in INdia from East Pakistan, the INternational Committee of the Red Cross and the League of Red Cross Society sent huge quantities of milk powder, blanket, medicines, transport vehicles etc. The distribution was entrusted to the INdian Red Cross Society. It is alleged that a good quantity of the articles worth several crores found its way to the market. IN August -September 1972 Smt. Fernandes then an Assistant Secretary in the Red Cross circulated her notes about the irregularities in handling accounts and disposal of the aid. The Press also made similar allegations. The matter was enquired by the C.B.I. and in November 1972 it reported no misappropriation. But the matter was raised again in 1977 and in May 1978, Mr. M. G. Pimputkar, the then Central Vigilance Commissioner was asked by the Prime Minister to enquire into the matter, though not in his official capacity. He gave a report which indicated that a large scale misappropriation and falsification of accounts had taken place. He reported that the irregularities in accounts can easily be laid at the door of the petty officials but the total responsibility cannot but be of the senior executives. He pointed his accusing finger at the man on spot Shri Ajit Bhowmick, at Calcutta and at the Secretary General at the head office and then at the auditors Mis. Bhattacharya and Co. Some charge sheets were also served on the officers. A special committee was then appointed on 17.2.1979 at Calcutta by the Red Cross Society to look into the allegations made in the report of Mr. M. G. Pimputkar. The special committee made a report that: the relief operations did not reveal any misappropriation of any articles belonging to the Society. But Mehar Chand who became a member of the Society in 1980 is not happy with what had happened and filed a complaint under Section 408/477 -AT 120B INdian Penal Code in the court of the Metropolitan Magistrate on 18th December, 1980 against five persons. Accused No. 1 Gurdas Ram and accused No. 2 Ajit Bhowmick were posted in Calcutta in the capacity as Assistant Director (Relief) and Director Relief Operations respectively. They were responsible for receipt, storage and distribution of the relief articles. Both the said two accused and accused No. 3 Maj. General S. S. Maitra now Vice -Chairman of the Red Cross Society, accused No. 4 M M. Tewari, an employee in the Red Cross Society and accused No. 5 D. K. Chaudhry, Staff Officer (Relief) were responsible to maintain true and proper accounts about receipt and distribution of these articles. Accused Nos. 1,2 and 3 were having absolute control and dominion over all the articles, their distribution and maintenance of accounts. Accused No. 1 who was receiving the stocks was required to maintain record in the shape of ledger, stock books etc. Accused No. 2 was in charge of field operations connected with receipt, distribution and utilisation of Red Cross supplies. He got fictitious records prepared. Accused No. 3 while working as Secretary General at the headquarters at New Delhi was required to keep an over all control over the huge quantities received at Calcutta. During this entire period accused Nos. 1, 2, 4 and 5 remained at Calcutta at the Operational Headquarters set up at the place. After the end of the relief operations in May 1972, it was discovered that all the articles received were not fully utilised, large quantities remained unutilised and the articles which were sent for distribution were not accounted for in the books of account and records maintained at the Operational Headquarters. No receipts were available. The audited statement of accounts dated 23rd May, 1972 showed that accused Nos. 1 to 5 have dishonestly showed distribution by introducing false transport bills. As a matter of fact, quantities more than covered by the bills had been received and have been misappropriated. The accused recorded fake and fictitious entries in master ledger maintained for recording receipt of the article specially blankets and milk powder. Accused No. 1 while posted as Assistant Director in the Operational Camps at Calcutta, and number of godowns and warehouses in his charge. He colluded with private transport agencies and diverted relief material to godowns of transport contractors for misappropriation. This he did in agreement with accused Nos. 2 to 5. There are serious discrepancies between the stock figures in the master ledger and the figures as reconciled by the representatives of the INdian Red Cross Society, as well as the Swedish Red Cross. The headquarters of the INdian Red Cross Society are situated in Delhi. The act of criminal conspiracy initially started at New Delhi between the accused Nos. 1 to 5 and so the Metropolitan Magistrate, Delhi had the necessary jurisdiction. This is the complaint in brief. Meanwhile the charge -sheets against the officers Were withdrawn and the Society in its minutes of 17.2.1981 recorded its full satisfaction with magnificent manner in which the relief operations were conducted and that all the officers deserved all appreciations. The learned Metropolitan Magistrate by his order dated 3 1.3.1981 however, summoned the accused persons under Section 409/477 -A read with Section 120 -B INdian Penal Code. A revision was taken against this order which was dismissed by this Court on August 7, 1981. The accused filed Special Leave Petition in the Supreme Court but later on withdrew the same. The Supreme Court however allowed them a liberty to move the Magistrate with an application under Section 24 (2) of Criminal Procedure Code. On an application moved by the complainant on 8.10.1982 the learned Magistrate appointed an Advocate as Local Commissioner to go to the premises of the I.N.S.I. INdian Red Cross Society and seal certain documents. On October 18, 1982 the accused filed an application seeking their discharge under Section 245(2) Criminal Procedure code. On 28.2.1983 the complainant moved an application seeking permission of the court to examine the documents seized by the local commissioner. This application was dismissed by the learned Metropolitan Magistrate. A revision was taken against this order and Honble Mr. Justice G. C. Jam by his order dated 18.5.1983 dismissed the revision petition. He however directed that before proceeding to decide the application under Section 245(2) the learned Metropolitan Magistrate would first decide whether the documents annexed with the petition were admissible in evidence without proof and could be taken into consideration for the purpose of deciding the said application. It was urged before the learned Metropolitan Magistrate that the evidence adduced by the complainant is hearsay. No documentary evidence was produced before him. It was also not known how the accused falsified the accounts. The accused had filed several annexures of documents showing that the INdian Red Cross Society did not consider it fit to take any action against the accused. Another contention raised before the learned Metropolitan Magistrate was that the court bad no jurisdiction to try the case. The learned Metropolitan -Magistrate held that by hag the jurisdiction because the Special Committee set up at Calcutta was responsible to the INdian Red Cross Society whose headquarters are situated in Delhi and the accounts were to be rendered by the accused at Delhi and as such the Court had jurisdiction under Section 181(4) Criminal Procedure Code to take congnizance of the case. It was also urged before the learned Metropolitan that the application cannot be made at this stage but he rejected the argument because the accused are entitled to be discharged at any stage if the charge is groundless. The learned Metropolitan Magistrate also held that the complainant should have placed on record the documents to show as to what quantities of relief material were entrusted to the accused and what quantities of the relief material were misappropriated by them. The report of Mr. Pimputkar was not to be taken into account because it was not made by him in his official capacity. It was a waste paper. The complainant produced before him the charge -sheets served by the Society on all the accused except accused No. 4 in connection with misappropriation committed at Calcutta but these charges were later on withdrawn. The Statement of Mrs. Laila Fernandeze (P.W. 2) was disbelieved because she referred only to the record of Mr. Pimputkar. The evidence of Mr. P. Bhatia (P.W. 3) Deputy Secretary of the INdian Red Cross Society was also discarded because he had no documentary evidence to support his allegations. Same was the case with Mr. B.N. Ojha (P.W. 4). Manu Bhai Bhiwani (P.W. 5) was a social worker. His evidence was also very vague. IN these circumstances the learned Magistrate thought that the complaint is based upon mere hearsay and not on personal knowledge and he discharged the accused. Hence the present petition.

(2.) ON this petion, I issued show cause notice and arguments were partly heard on 30 -11 - 1983. The case came to be adjourned to 11 -1 -1984,20 -2 -1984 and to 23.2 -1984 when no one appeared on behalf of the petitioner. I heard the counsel for the accused and found no merit in the petition and dismissed the same. Obviously there was no merit in the petition, thereafter the petitioner moved an application for restoration of the revision petition but finding that since the order was made on merits and was not made simply on default, a review application has been filed. Dr. Singhvi contended that even if the order of dismissal of the revision petition was held to be made in default this High Court has no power either to restore the petition or to review its own order under Section 482 Criminal Procedure Code. I think Dr. Singhvi is correct. Mr. P.N. Lekhis contention was that it was a matter of public importance and the court should not shut out the enquiry and look into the allegations which are of great magnitude and even the Indian Red Cross Society should not stand on technicalities and this court should set aside its order and hear the revision petition again. In State of Orissa v. Ram Chander Agarwala etc and Smt. Sooraj Devi v. Pyare Lal and another it was held that the High Court cannot review or revise its own judgment even under Section. 482 Criminal Procedure Code except to correct a clerical or arithmetical error. The apart I do not quite see how the ends of justice would be secured if this complaint is allowed to go on. The matter was of 1971 -1972 and we are in 1984. There is no prima facie proof regarding any misappropriation by the accused. Not to maintain such vast accounts does not necessarily in itself lead to the inference that the accused had misappropriated the articles of relief. There was supervisory negligence but that alone is not sufficient to hold the accused guilty of the charges. The Society had found no mens rea in what is alleged to have been done. The accused can be proceeded against only in specific instances and - not on mere suspicion. No public purpose will be served by recalling my order of dismissal of the revision petition. 1. Accordingly I reject Criminal Misc. 484/84 and Criminal Review Application No. 981/84. Petition dismissed.