EMPEROR Vs. VISHNU TATYABA NAIK

JUDGEMENT

(1.) THE petitioners Vishnu Tatyaba Naik and Shridhar Raoji Patil, who were respectively Sub-Overseer of the District Local Board, Nasik, and elected member of that Board and Chairman of the Works Committee, were prosecuted before the Resident First Class Magistrate of Manmad in the Nasik District for offences of cheating and falsification of accounts and abetment thereof, punishable under Section s 420 and 477A read with Section 114 of the Indian Penal Code. THE prosecution alleged that the accused had dishonestly taken false measurements of certain work of repairs on the KherdisathaNagarsul Road in the Yeola Taluka under their charge and fraudulently obtained from the President of the District Local Board Rs. 275-7-0 by tendering a bill with the measurement sheet containing the false measurements attached to it duly signed by accused No.1 and countersigned by accused No.2.

(2.) THE accused raised a preliminary objection to the jurisdiction of the Court to try them on the ground that as the act complained of was done or purported to have been done in pursuance of the Bombay Local Boards Act or the rules under that Act for the time being in force, they were protected by the provisions of Section 136(2) of the Bombay Local Boards Act, 1923, as amended by Act XIII of 1935 and Section 197 of the Criminal Procedure Code. It was contended that as one month's previous notice in writing was not given of the intended prosecution, and that inasmuch as the act complained of was done more than three months before the date of the prosecution, the Magistrate could not proceed with the trial under the provisions of Section 136(2) of the Bombay Local Boards Act. THE objection under Section 197 of the Criminal Procedure Code related to the charge against the member of the Local Board, and it was contended that he being a statutory public servant not removeable from his office save by or with the sanction of the Local Government, the trial could proceed only upon a previous sanction of Government in regard to his official acts, and as the act complained1 of was such an act and as no sanction of Government was obtained for his prosecution, the Magistrate had no jurisdiction to try him.

(3.) THE duties of the Chairman Of the Works Committee are laid down under the rules framed by the District Local Board under the Act. THE Works Committee is appointed under the provisions of s. '38 of the Local Boards Act. THE rules provide, among other things, that the Chairman should supervise the works that may be going on, fix the order in which the works sanctioned by the Board should be carried out, demand a programme of the works exceeding Rs. 500, take measurements and, in the absence of a completion certificate, countersign the bills of the contractor and see that the payment is made without undue delay. In his case too the act of countersigning the bill in authentication of the measurement and therefore the charges made was part of the official duty of the Chairman; and, it cannot be denied that the money said to have been obtained for payment of the bill was in fact obtained upon the guarantee provided by the countersignature and the accompaniment to the bill consisting of the measurements of the actual work done, for which the bill was preferred.