The basic acts emerging against the
Applicants giving rise to the F.I.R. are quoted
herein before. If these acts are put in coupling
with offences slapped against them, we find, there
was no criminal propensity on the part of the
Applicants to commit the offence of deception,
cheating, misappropriation or forging of
documents.
It may be, with overall other works of
the Applicants at the Municipal Council they could
be lamppost of corruption, however that will not
grapple as a brazen cause to thrash the Applicants
with illegalities in present case. If the
resolution that has been taken is an emergent
resolution, to be in violation of guidelines of
Government of Maharashtra, the procedure
contemplated under Section 44 or 96 of Municipal
Act, will have its recourse against Applicant No.1
as a President of Municipal Council. However,
incurring disqualification is altogether different
situation than fixing a liability under the banner
of criminal prosecution. Section 96 of Maharashtra
Municipal Act speaks of liability for loss or
damage to Municipal Council. Reading the F.I.R. or
the action contemplated by the learned Collector,
Municipal Council, Kinwat.
there is primarily no loss or damage caused to
It is apparent, Respondent Nos. 2 and 3
are political rivals of Applicant No.1. They were
party to the resolutions, as referred to earlier,
however had the audacity to approach the learned
Collector to spike resolution and forwarding it to
appropriate authorities.
BENCH AT AURANGABAD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPLICATION NO.1308 OF 2011
Dr. Kewalkumar Vyankatrao Nemmaniwar,
VERSUS
The State of Maharashtra,
CORAM: K.U. CHANDIWAL AND
A.I.S. CHEEMA, JJ.
DATE : 9TH OCTOBER, 2013
Citation; 2014 ALLMR(cri) 2453 Bom
Applicants, then President of Municipal Council,
Kinwat and Chief Executive Officer, respectively,
seek quashment of F.I.R. vide Crime No.3005 of
2011, dated 11th March 2011, registered at Police
Station, Kinwat, for the offences punishable under
Sections 420, 409, 468, 201 read with 34 of the
Indian Penal Code, 1860 (for short 'I.P.C.").
.
Respondent Nos.2 and 3 were also members
of said Municipal Council, at the relevant time.
3.
A resolution was passed in Municipal
Council, Kinwat on 4th January 2010, and approved
for expenditure of Rs.80,00,000/ (Rupees Eighty
Lakh) to provide High Mask System for street light
arrangements. Applicant No.1 asserts that he was
not party to said resolution but it was Respondent
Nos.2 and 3 who attended Meeting. For such
purposes, our attention is drawn to Page No.23 of
the Petition, primarily showing that Applicant
No.1 did not attend the said meeting.
Estimation, expenditure bills were
4.
prepared by the technical staff of Municipal
Council, Kinwat, which had been approved by
Superintending Engineer, Aurangabad Region,
Aurangabad. Tenders were invited on 14th August
2010 and the lowest tender was approved. This was
also attended to in a meeting dated 31st August
2010, of the Municipal Council, by Respondent
Nos.2 and 3. Applicant No.2, pursuant to such
resolution, issued work order to a firm Nanded
Electrical Engineering, Nanded. It was not acted
upon nor it was given effect to. The learned
Collector, Nanded directed not to release the
bills, vide order dated 29th October 2010. It was
also informed by learned Collector to invite
tenders afresh. Consequently in two newspapers,
tenders were again invited on 9th February 2011.
However, by exercising powers under Section 308 of
the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965 (for
short "Municipal Act"), learned Collector directed
the Sub Divisional Officer, Kinwat to register an
offence against the Applicants, concerned Members
and employees of the Municipal Council, under
Act, by communication dated 23rd February 2011. He
felt the Resolution to purchase High Mask Lights
was beyond powers of Applicants.
Sections 44 and 96 of the Maharashtra Municipal
5.
Learned counsel says, the Applicants have
power to approve estimate and incur expenditure
under Section 101 of the Act in discharge of
duties cast under Section 49 of the Municipal Act.
Mr. Talekar, learned counsel for the Applicants
says, entire scenario of the matter/meetings
referred to above, has been eloquently attended to
by Respondent Nos.2 and 3. Applicant No.1 was not
a party to approve the resolution dated 4th
January 2010. There was no wrongful loss caused
to Municipal Council or there was no
misappropriation. He deals with provisions of
Sections 44 and 96 of the Municipal Act and
explain the same.
6.
Mr. Adwant, learned counsel for
Respondent Nos. 2 and 3 says, doctrine of public
trust is involved. Postulation of obligation under
the statute were required to be discharged which
Applicants have failed and premium should not be
extended to wrongdoer for unlawful activities.
Learned counsel, for his support, has read
affidavit in reply of Respondent Nos.2 and 3 and
also of the State/investigator. He referred to the
Judgments reported in 2012(3) S.C.C. Page No.1,
2012 (10) S.C.C. Page No.1 and 2013(1) S.C.C. Page
No.544, without copies of reported Judgments or
citations, however explained the theme flowing
from those pronouncements.
Section 23 of the I.P.C. deals with
7.
"wrongful gain" and also "wrongful loss". Section
24 of I.P.C. deals with "dishonestly". Section 25
of I.P.C. speaks of "fraudulently". Wrongful gain
is gain by unlawful means of property to which the
person gaining is not legally entitled. Wrongful
loss is the loss by unlawful means of property to
which the person losing it is legally entitled.
Dishonestly means anything done with the intention
of causing wrongful gain to one person or wrongful
loss to another person. These definitions play
pivotal role to appreciate conduct of Applicants.
8.
The prosecution slapped against the
Applicants is for infraction of provisions of
Sections 420, 409, 468, 201 read with 34 of I.P.C.
For attracting Section 420, let us see definition
of "cheating" in Section 415, which reads and
proceeds in two parts. First part deals in
deceiving any person fraudulently or dishonestly
inducing the person so deceived to deliver any
property to any person. Later part deals with, to
consent that any person shall retain any property
or intentionally inducing the person so deceived
to do or omit to do anything. Explanation
provides, a dishonest concealment of facts is a
deception within the meaning of this section.
9.
Section 409 of I.P.C. deals with criminal
breach of trust by public servant, or by banker,
merchant or agent. It says, whoever, being in any
manner entrusted with property, or with any
dominion over property in his capacity of a public
servant, commits criminal breach of trust in
respect of that property and it provides
punishment.
Section 405 of I.P.C. deals with criminal
10.
breach of trust. It also postulate, entrustment
with property, or with any dominion over property
and dishonestly misappropriation of that property
to his own use. Section 468 of I.P.C. deals with
forgery for purpose of cheating. In short,
preparing documents for such purposes. Section 201
of I.P.C. puts in its bracket, causing
disappearance of evidence of offence or giving
false information to screen offender. For such
purposes there should be knowledge or a reason to
believe that an offence has been committed, such
person caused any evidence of the commission of
that offence to disappear with the intention of
screening the offender.
11.
The basic acts emerging against the
Applicants giving rise to the F.I.R. are quoted
herein before. If these acts are put in coupling
with offences slapped against them, we find, there
was no criminal propensity on the part of the
Applicants to commit the offence of deception,
cheating, misappropriation or forging of
documents.
12.
It may be, with overall other works of
the Applicants at the Municipal Council they could
be lamppost of corruption, however that will not
grapple as a brazen cause to thrash the Applicants
with illegalities in present case. If the
resolution that has been taken is an emergent
resolution, to be in violation of guidelines of
Government of Maharashtra, the procedure
contemplated under Section 44 or 96 of Municipal
Act, will have its recourse against Applicant No.1
as a President of Municipal Council. However,
incurring disqualification is altogether different
situation than fixing a liability under the banner
of criminal prosecution. Section 96 of Maharashtra
Municipal Act speaks of liability for loss or
damage to Municipal Council. Reading the F.I.R. or
the action contemplated by the learned Collector,
Municipal Council, Kinwat.
13.
there is primarily no loss or damage caused to
It is apparent, Respondent Nos. 2 and 3
are political rivals of Applicant No.1. They were
party to the resolutions, as referred to earlier,
however had the audacity to approach the learned
Collector to spike resolution and forwarding it to
appropriate authorities.
14.
Conspectus of above facts illustrates,
the prosecution is indeed persecution, calls for
aside. Criminal Application allowed.
Rule made absolute in above terms.
interference. It is accordingly quashed and set
[A.I.S. CHEEMA, J.] [K.U. CHANDIWAL, J.]
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