SHIV KUMAR YADAV Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THE petitioners herein have preferred this petition under Section 482 Cr.P.C. for quashing the order dated 9.11.2005 whereby the cognizance of the offence has been taken in Hazaribagh Sadar P.S. Case No. 408/2000 corresponding to G.R. Case No. 2210 of 2000 by the A.C.J.M., Hazaribagh.

(2.) THE brief fact of the case is that the complainant Baban Prasad had filed a Complaint Case No. 11 of 1999 in the Court of C.J.M., Hazaribagh against the petitioners stating therein that he was the General Secretary of the Hazaribagh Khan Parishad Karamchari Sangh, Hazaribagh which was registered and recognized one. He was working under the Mines Board Hazaribagh since 1.2.1992 on regular cadre against the appointment letter. It is further alleged that the petitioner No. 1 Shiv Kumar Yadav in connivance with the petitioner No. 2 Ravindra Nath had withdrawn a sum of Rs. 37,609/ - by cheque as a regular employee though his service was neither confirmed nor he was duly appointed under the provisions of Mines Board Act and in this manner it is alleged that the petitioners committed offence punishable under Section 409 I.P.C. It is further alleged that the petitioner Shiv Kumar Yadav obtained his employment under Mines Board, Hazaribagh by forged and fabricated document but still he is working there as Assistant since 19.11.1991. The petitioner No. 2 Ravindra Nath was also an assistant in the Public Health Section of Mines Board and he was performing the work of accountant and Nazir both at a time. The appointment of Shiv Kumar Yadav petitioner No. 1 herein was challenged earlier also on the ground that he was appointed initially on the post of Assistant on daily wages on the recommendation of one P.K. Sinha, the then Superintending Engineer of the said Board and when the matter was placed before the then Deputy Commissioner, Hazaribagh who was Ex -Officio Chairman of the Mines Board, Hazaribagh, the services of Shiv Kumar Yadav was directed to be dispensed with after making payment of wages for two months out of the pocket of Mr. P.K. Sinha. However, the matter of the petitioner Shiv Kumar Yadav was considered in the Board's meeting on 6.9.91 and undue favour was given to Shiv Kumar Yadav by manipulating the minutes against the interest of Mines Board to which the complainant had raised objection and Shiv Kumar Yadav was claiming his continuance in the service of Mines Board and also claimed for the payment of Rs. 1,07,581/ - due to the Board. Payment of such claim was made by the Secretary through cheque in connivance with petitioner No. 1 Shiv Kumar Yadav and the petitioner No. 2 Ravindra Nath. The said cheque was presented before the then Chairman and after smelling a rot he did not sign the cheque and wanted to examine the relevant papers regarding payment, as a result of which, the aforesaid cheque was cancelled since the relevant papers could not be produced. Now a cheque was prepared in connivance to each other by the petitioners to a sum of Rs. 37,609/ - against false and fabricated bills which was cashed by Shiv Kumar Yadav in contravention of accounts and audit rules and it is alleged that in this manner the petitioners have committed offence under various Sections 420 of I.P.C.

(3.) LEARNED Counsel submitted that the petitioner No. 1 Shiv Kumar Yadav had received the amount to the tune of Rs. 37,609/ - as against his wages in respect of the services rendered by him to the Mines Board and therefore, the offence under Section 406 or Section 409 I.P.C. is not attracted and such payment was made under the orders of the competent authority as admitted in the Complaint Petition itself. Thus there was no entrustment of the property of the Board to the petitioners and there is no material at all on the record to infer that in prosecution of criminal conspiracy between the petitioners the amount was withdrawn. Similarly no offence is made out under Section 466, 467 and 468 I.P.C. for want of allegation that any forged document was made and accordingly also under Section 471 I.P.C. The petitioner No. 1 Shiv Kumar Yadav was employed in the Board as assistant against the valid appointment letter which was not challenged or questioned by any authority to be forged one and he is continuing in his services and in view of the fact, it is submitted, that the cognizance taken by the A.C.J.M., Hazaribagh for the offence as alleged is not maintainable which calls for interference of this Court in exercise of the jurisdiction under Section 482 Cr.P.C. As a matter of fact, the complainant Shri Baban Prasad was a driver in Mines Board working on daily wages and since he had lost his vision he was discharged from his services after he attained the age of 60 years. The present case was brought about maliciously by the complainant Baban Prasad with ulterior motive and his conduct can be revealed by Annexure -4 of the petition which is the letter No. 315 dated 12.10.2000 of the Deputy Development Commissioner - cum -Secretary, Hazaribagh Mines Board, Hazaribagh addressed to the Superintendent of Police, Hazaribagh with respect to the misconduct of the complainant Baban Prasad with the observation that the payment was made to Shiv Kumar Yadav, Petitioner No. 1 herein under his instruction towards his salary pursuant to the proper decision and therefore, the complainant Baban Prasad, a terminated employee had no locus standi to file a case against the petitioner No. 1 and it was requested for the direction of the Superintendent of Police to the Officer -in -Charge to submit final form in compliance to the direction by the learned court. But the police submitted charge -sheet against the petitioners for the offence under Sections 406, 409, 466, 467, 468, 471 read with 120B I.P.C. and accordingly the cognizance of the offence was taken by the A.C.J.M. and transferred the record to the Court of Judicial Magistrate, Hazaribagh. Summons were directed to be issued by the Court of Shri Santosh Kumar, Judicial Magistrate, Hazaribagh on 3.12.2005 in T.R.No. 1732/2005.