Roshan Lal Tiwari Vs. State of Rajasthan - Court Judgment

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penal code - cheating & corruption--ta & da drawn by app--order sheets in cases showing absence of app--held, an inference can be strengthened but it would be too much to launch prosecution--every error or commission or omission of civil servant cannot be treated as an offence in criminal law.;merely on the basis of the order sheets showing the absence of the app in the cases, where was supposed to be present on that date, for which he issued a tour programme and for which some amount was drawn by him as ta & da it would be too much to lunch a criminal case, that he did not perform journey at all, although in a given case such inference may be strengthened if proved by other evidence.;every error or commission and even negligence, racklessness inefficiency of a citizen or a civil servant which may result in departmental proceedings and departmental action, cannot be treated as offence in criminal law.;appeal accepted - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 1. an unusual interesting case of the prosecutor becoming the accused, for cheating and corruption offence, the total amount analysed being rs. 14. to me it appears that as usual the traveling allowances bill and the daily allowance attached to it of government officers who are required to per form tour duties, mostly as in the present case two camp courts were not attended and for which amount has been drawn which are based of the tour programme of the officer himself and then in good faith those bills are prepared and verified and encashed normally. 17. the statistical data skeleton of which i have reproduced above, the facts and circumstances, nature of duties, assignment the over all sum of the entire four cases, clearly goes to show that a microscopic of not telescopic probe into the bills and their comparison with the order sheets revealed a lapse of rs. whatever little knowledge of law one may possess, even by stretch of imagination this cannot be treated as a charge of cheating or corruption, i am convinced that inspite of the best intention which the complainant may have and for which i am not expressing any opinion because the present one is not a stage of trial and the complainant has been deprived to say in the matter i feel that the dragging of this prosecuting would be perpetuating gross injustice on the petitioner, as it would be flogging a dead horse. i am convinced that the efforts of the prosecution to succeed in such frivolous cases cannot be better described as an attempt to built a bridge on a sand due: with criminal intention after getting thousands of rupees in all as mentioned above every year and that too by assistant prosecutor who is well versed with the various criminal complications and facets and liability and otherwise of such a foolish act, is no assume wholly against commonsense.g.m. lodha, j.1. an unusual interesting case of the prosecutor becoming the accused, for cheating and corruption offence, the total amount analysed being rs. 33.50 has come to lime light in the criminal revision petitions filed under section 397, cr.p.c. by petitioner roshan lal. the amount of rs. 33.50 again is spread over in two years 1978 and 1979 as it is alleged that on 9-1-1978 the petitioner drew travelling allowance of rs. 6.00 as rickshaw charges and rs. 8.00 as daily allowances. on 12-4-1979 travelling allowances drawn is rs. 8.00 with rs. 11.00 as daily allowances and; this makes the total amount of rs. 33.50.2. surprisingly enough this corruption and cheating as alleged by the prosecution was detected and discovered in the year 1981 when first information report was lodged, by one shyam lal, reader of the court in which the accused was assistant public prosecutor. investigation followed. the modus operand of the investigation was search and research of the order sheets in which the assistant public prosecutor was absent and then the bills of the travelling allowances and the daily allowances from 1978 to 1981.3. the detective agency could find out ultimately that where as rs. 33.50 was actually obtained by the petitioner as daily allowances and travelling allowances without attending the court on the date for which it was drawn. yet other bills amounting to rs. 111.52 of 1978 and 1979 and 1980 and for rs. 180/- of 1979 were submitted for, without attending the court at the camp courts, these bills were not paid. for rs. 76/- it was not drawn by the accused. the amount of rs. 111.52 was still in the process of preaudit checking and, therefore, it was not paid4. on the above bedrock the state government granted sanction for prosecution in one half page detailed order dated 17-6-1982 which reads as under, resulting in 4 separate challan.dzekad&i;% a24a x`g&10@76&ikvz;&1@6@64&66 t;iqj] fnukad 17 twu] 1982vfhk;kstu & lohd`rjkt; ljdkj ds /;ku es ;g ik;k x;k fd jh ';keyky jhmj u;kf;d eftlvsv izfke oxz jsyos dksvz t;iqj us ,d f'kdk;r fo:) jh jks'ku yky frokjh lgk;d yksd vfhk;kstd f}rh; js.kh u;kf;d eftlvsv jsyos dksvz t;iqj dks] fd mdr u;k;ky; ds dsei dksvk es fcuk ;k=k fd;s qthz ;k=k fcy cukdj izlrqr dj fn;s a o jde mbk yh ftl ij hkz'vkpkj fujks/kd fohkkx }kjk rf;ks dk lr;kiu fd;k tkdj izdj.k la[;k 14@81 vurzxr /kkjk 420 n-la-o 5 amha 2 hkz'vkpkj fujks/kd vf/kfu;e es iathc) fd;k x;k a ;g fd hkz'vkpkj fujks/kd fohkkx }kjk iathd`r izdj.k la[;k 14@81 fo:) jh jks'ku yky frokjh dk vuos'k.k djus ij ;g ik;k x;k fd jh jks'ku frokjh us fnukad 9&1&78] 20&5&78] 19&8&78] 11&1&79] 12&1&79] 31&1&79] 12&4&79] 5&11&79] 8&11&79] 21&1&80 o 23&1&80 dks fcuk ;k=k hkrrk fcy qthz cuk;s gsa;g fd mdr jh jsk'ku yky frokjh us vuqpnsn o of.kzr frffk;ks ds qthz ;k=k fcy cukdj izlrqr fd;s vksj mues ls fnuakd 9&1&78 ds 14-50 issls ,oa fnukad 12&4&79 ds 19-00 :i;s dqy 33-50 isls dk hkqxrku izkir dj fy;k a fnukad 5&11&79] 8&11&79] 21&1&80 o 23&1-80 ds fcyks dk hkqxrku 76@& :i;s mugs mh-mh-,l-,p- 542379 fnukad 30&3&81 ds }kjk ftyk/kh'k >q>quwa ds ek/;e us hkstk x;k ij fcuk hkqxrku jkf'k okil vk xbz a fnukad 20&5&78] 19&8&78] 1&11&79] 12&1&79 o 31&1&79 dh dqy jde 111-52 isls dk fcy vu; fcyks ds lkfk izks&vkfmv; es gksus ls mugs mudk hkqxrku ugh feyk a;g fd hkz'vkpkj fujks/kd fohkkx }kjk jh jks'ku yky frokjh }kjk jkt; ljdkj dks /kks[kk nsdj o vius in dk nq:ik;ksx dj vijkf/kd mipkj djds /kkjk 420 ,oa 420@511 hkkjrh; n.m+ lafgrk /kkjk 511 mh 2 ,oa /kkjk 5 3, hkz'vkpkj fujks/kd vf/kfu;e dk vijk/k fd;k tkuk iw.kzr;k fl) ik;k x;k a;g fd hkz'vkpkj fujks/kd fohkkx }kjk izlrqr vuqla/kku i=koyh ,oa lqlaxr izys[kks o lkexzh dk jkt; ljdkj }kjk /;ku iwozd voyksdu fd;k x;k vuqla/kku] ,df=r lk{;] lqlaxr izys[kks ,oa lkexzh ds vk/kkj ij jkt; ljdkj iw.zkr;k larq'v gs fd jh jks'kuyky frokjh lgk;d yksd vfhk;kstd f}rh; jsyos dksvz t;iqj us /kkjk 420 ,oa 420@511 hkkjrh; n.m+ lafgrk o /kkjk 51 mh2 ,oa /kkjk 53, hkz'vkpkj fujks/kd vf/kfu;e ds v/khu vijk/k fd;k gsavr% vc jkt; ljdkj /kkjk 196 n.m+ izfdz;k lafgrk /kkjk 61 hkz'vkpkj fujks/kd vf/kfu;e }kjk iznrr vf/kdkjks ds iz;ksx es jh jks'ku yky frokjh lgk;d yksd vfhk;kstd f}rh; ds fo:) /kkjk 420 ,oa 420@51 hkkjrh; n.m lafgrk 51 mh2 o /kkjk 53, hkz'vkpkj fujks/kd vf/kfu;e ,oa mijksdr rf;ks d vk/kkj ij tks hkh vijk/k curs gs ds v/khu l{ke u;k;ky; es eqdnek pyk;s tkus dh vfhk;kstu eatwjh ,rn~ }kjk iznku djrh gs a 5. the prosecution case is that on the dates mentioned above in the above sanction, the magistrate court was held at camp, out side jaipur as it was a railway camp court and the accused who was assistant public prosecutor attached to the court was supposed to go and attend the court but without attending the court he submitted the bills, for travelling allowances considering of hire charges of rickshaw and tonga etc. being attached to railway magistrate he was not allowed railway fare but for those days he was also charged da. in all these amounts even if they would have been paid, was rs., 221.02 out of which rs. 33.50 was drawn and the balance remained undrawn.6. after hearing the petitioner shri roshan lal in person and mr. r.s. surana, mr. hanuman cboudhari, advocates for him and mr. s.b. mathur. public prosecutor assisted by mr. purohit, i may first point out some salient features of the case which will have great bearing in this judgment, as they have emerged during the arguments:(i) all the amounts which have been either paid or claimed but not paid are very petty amounts and they have been verified and certified either by the agency of the prosecution, incharge of the office in which the petitioner was functioning or railway magistrate in whose court be was attached;(ii) these verifications have been not explained so far as the assistant public prosecutor incharge is concerned. he has not been examined. the railway magistrate in his statement recorded under section 161, cr.p.c. has mentioned that the verifications were done, on the basis of the tour programme and the diaries of the tour programme which he inspected and which were shown to him. the relevant para of shri bhagwati's statement regarding the verifications of the ta bills reads as under:jh jks'ku yky frokjh ,-ih-ih- f}rh; dk ;k=k hkrrk fcy ekg tuojh 1978] ekg ebz 78 o ekg vxlr 78 ds voyksdu us ftues vfure nks fcyks dh qksvks lvsv izfr;ka miyc/k gsa ftuls li'v gs fd budh ;k=k esjs }kjk lr;kfir dh xbz gs rfkk esjs glrk{kj gsa ;g lr;kiu esus jh frokjh ds gkftjh jkftlvjh es n'kzk;s x;s o vafdr vwj ds vk/kkj ij fd;k fkk d;ksfd esjs lkeus jh frokjh us mijksdr vh-,-fcyl ,oa gkftjh jftlvj is'k fd;s fks blfy, ;k=k lr;kfir dj nh fkh osls lkjh i=koyh;ka dh vknsf'kdk;s ns[kdj ;k=k hkrrk fcy lr;kfir djuk drbz lehko ugh gs d;ksfd ,d fnu es fu;r i=koyh;ka fhkuu fhkuu rkjh[kks es lfkfxr dj nh tkrh gssa dqn i=koyh;ka cs[ky gks tkrh gsa dqn vihy es pyh tkrh gsa o dqn fhkuu rkjh[k is'kh;ks es yxh gksrh gsa vr% bu i=koyh;ks dks fudyokdj ;k=k fcy lr;kfir djuk drbz lehko ugh gs osls ,-ih-ih- f}rh; ;k=k fcy lr;kfir djus dk vfkz esjk ugh gsa d;ksfd og esjs v/khu gh dk;zjr ugh fkk a esus rks ,d fnu xqm+&qsfk; es osjhqkbz fd;k fkk a(iii) mr. mathur, learned public prosecutor has after reply to the question and queries but by the court has submitted that apart from the evidence of the order sheets in which app has been shown absent and which have been proved by the railway magistrate, his reader and mr. dube har prasad, there is no tota of evidence that shri roshan lal either did not travel or that he was not in the town or city where the camp court were held or he did not hire tonga or rickshaw; and(iv) that before this criminal complaint was lodged there has been fun between the reader of the court and the petitioner. that the petitioner was prosecuted on the basis of the fir lodged by the reader of the court and not the director of the prosecutor who was head of the department.7. though during the arguments shri roshan lal has devoted more time on his grievance against the state machinery and the magistrate concerned alleging lock of bonafide. i am of the opinion that these allegations cannot be accepted. unless a through enquiry is conducted in the presence of the persons against whom allegations are made. making of these allegation cannot be noticed by this court and can never be adjudicated upon.8. if the petitioner was keen, serious about these allegations of mala fide he should have faced the trial lead the evidence, cross examined shri verma and magistrate shri mahesh bhagwati and ors. and then argued the case but it is obvious that these allegations have been made half heartedly at this stage. without courage of conviction for getting them adjudicated in the trial. i would therefore mention them nor adjudicate them.9. all that can be said is that the allegations of mala fide made by shri roshan lal against the complainant and the witnesses including reader shri verma and shri mahesh bhagwati, magistrate concerned, and then director of prosecution shri mandhana etc. are not supported by any they are too vague, sweeping and general to be considered much less accepted and are therefore, rejected.10. i would now examine whether prayer for quashing these proceedings should be accepted as the prosecution in this case is wholly misconceived and in the net analysis it would result in prosecution as argued by the petitioner.11. the claim of daily allowances the travelling allowances for use of rickshaw or some other vehicle and that too for petty amount of rs. 33.50 spread over in two years wherein the total amount drawn must be in hundreds or thousands, whether prima facie contains a criminal intention or has got mens rea, is the main question. it has been rightly pointed out by the petitioner that a petty amount as mentioned above which have been withdrawn is one item out several in a bill. the bill of january 1978 itself contains about 26 items and total amount is rs. 188.50 out of which the objectionable item for which payment has been made is rs. 8.50 and 5.00 is for camp court at bandi kui.12. now obviously if in a month there are 13 trips having 26 entries and in the whole of the year there is on item which means out of about 250 items there is one item of which travelling allowances and daily allowance has been taken without exact preciseness about the attendance can it be said that there was criminal intention, even if it is assumed that the court was not attended on that particular date and may be that he might have gone or not gone to that place?13. in each year there may be about more that 100 items of such t.a. and d.a. and the amount may be in thousand. that being so it is impossible to conceive that the petitioner would deliberately with criminal intention about obtain a petty amount of rs. 14.50 in 1978 (9-1-1978) & 19 rupees in 1979 (12-4-1979) and thus from 1978 till 1981 when the fir was lodged criminal modus operand of assistant public prosecutor who was supposed to deal with criminal law would result in depriving the state of rs. 33.50 in all.14. to me it appears that as usual the traveling allowances bill and the daily allowance attached to it of government officers who are required to per form tour duties, mostly as in the present case two camp courts were not attended and for which amount has been drawn which are based of the tour programme of the officer himself and then in good faith those bills are prepared and verified and encashed normally. remote chances of some lapse due to lack of exactitude and carelessness of even racklessness or loss of memory which happens, when possession and some programmes out of them are not attended on account of unforeseen circumstances, although they are in scheduled, always remains.15. the railway magistrate usually holds camp out side the city as would be obvious from the bill of jan, 1978 when atleast for more than 15 days camps were held out side jaipur, at phulera, bandikui sikar, alwar etc. in the month of january 1978, the stay at jaipur was not more then 10 days in all. similar is the case always because the railway magistrate mostly remains in the railways for checking and then holds camp courts at other places which are railway junctions or other wise important such being hazardous duty of the railway magistrate and several others who are mostly on wheels in the railway, slight lapse of 1,2 or 3 claims lacking exactitude cannot be treated as having criminality or mens rea to defraud the exchequer.16. if i may analyse the four cases put up before the net result would be that out of the total amount of about 15 to 20 thousands which the petitioner must be receiving in a year by way of salary, allowances including t.a. and d.a. etc. and thus in 3 years out of about 50 thousand which be must have received under various heads of salary allowance by his committing this offence he enriched himself of rs. 33.50 that too in two parts as mentioned above and he wanted further enrich himself by other amounts which also taken together would not cross rs. 300/- even.17. the statistical data skeleton of which i have reproduced above, the facts and circumstances, nature of duties, assignment the over all sum of the entire four cases, clearly goes to show that a microscopic of not telescopic probe into the bills and their comparison with the order sheets revealed a lapse of rs. 33.50/- if at all it happened which the public exchequer had paid to the petitioner for da and ta during the period of more than three years.18. to term it as deliberate intentioned voluntary act of cheating corruption is impossible by any standard of commonsense. whatever little knowledge of law one may possess, even by stretch of imagination this cannot be treated as a charge of cheating or corruption, i am convinced that inspite of the best intention which the complainant may have and for which i am not expressing any opinion because the present one is not a stage of trial and the complainant has been deprived to say in the matter i feel that the dragging of this prosecuting would be perpetuating gross injustice on the petitioner, as it would be flogging a dead horse. i am convinced that the efforts of the prosecution to succeed in such frivolous cases cannot be better described as an attempt to built a bridge on a sand due: without there being a drop of water, muchless river or canal.19. it was in such similar circumstances that the hon'ble supreme court in a.k. bose v. state of bihar : 1974crilj1026 emphasised the importance of mens rea in offence of section 142 and held as under:it could not be said that the requisite mens rea had been established against the accused. at the highest it was a case of an error of judgment or breach of performance of duty which per se, could not be equated with dishonest intention which was. one of the essential ingredients of the offence of cheating under section 142.20. the hon'ble supreme court was dealing with a case of accountant and bill clerk in which conviction was affirmed by the high court. the accountant in that case paid fictitious pay bills without checking, but the apex court found 'mens rea' missing and held it a case of 'no offence.'21. in h.n. dube v. state of rajasthan 1988 cr. l.r (raj.) 475 the agent of state bank of bikaner and jaipur along with others were prosecuted and this court observed as under;if there was any breach of the departmental instructions of the rules in this behalf or if the petitioner committed an error of judgment in discounting the aforesaid usance bills, it cannot be presumed that he was actuated by any criminal intention for causing loss to the bank, or extending under pecuniary advantage to the other three co-accused. there is no evidence on record to show that only these three co-accused were given such facilities & similar facilities, were not extended to other account-holders, or the persons of the town.22. in my considered opinion whatever i have said in tej singh v. state of rajasthan 1979 rlw 37 and mahendra singh v. state of rajasthan 1982 rlw 400 fully applies in the present case.23. i the present case i am convinced that merely on the basis of the order sheets showing the absence of the a.p.p. in the cases, where was supposed to be present on that date for which he issued a tour programme and for which some amount was drawn by him as t.a. & d.a. it would be too much to launch a criminal case that he did not perform journey all at although in a given case such in inference may be strengthened if proved by other evidence even on the assumption that such an inference can be drawn even in the absence of any other positive documentary, oral evidence then also i am convinced that facts and circumstances read as a whole are speaking and patent to show that the amount and the nature of the alleged enrichment is ridiculously negligible. to hold that in the bill of a year an amount of rs. 6.00 would be drawn as a travelling allowance, with criminal intention and rs. 8.50/- d.a. with criminal intention after getting thousands of rupees in all as mentioned above every year and that too by assistant prosecutor who is well versed with the various criminal complications and facets and liability and otherwise of such a foolish act, is no assume wholly against commonsense.24. i am therefore, convinced that this is one of those cases where this court should in the interest of justice and to avoid avoidable litigation which is likely to cost very high both to the accused and the state in terms of money, time and also reputation, i must exercise my powers of revision and quash all the proceedings in all the four cases pending against the petitioner roshan lal.25. consequently all the four revision petitions are accepted and the proceedings in all the four cases are quashed; 26. before parting with this judgment i must mention that it is unfortunate that the investigating agency has launched these four prosecutions. the prosecution agency and the police agency must realise that every error or commission or commission and even negligence, racklessness inefficiency of a citizen or a civil servant which may result in departmental proceedings and departmental action cannot be treated as offence in criminal law. a clear line must be drawn between those commission and commissions which are intentionally having mens rea, deliberate, will full voluntarily for committing some offence as against those commission and commissions which are based on either in exactitude or error of judgment rashness in working or care or procedural inefficiency and which patently lacks criminal intention.27. the present one may be a case of second category, where the department may take any departmental proceedings. if so advised for the alleged commission or commissions but the prosecution agency should keep its hand off, from prosecution.28. since i have quashed all the proceedings bail bonds taken from the accused for presence in the trial court, are discharged.