Sunday, 3 August 2014

When offence for cheating against municipal officers can be quashed?



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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