N.V.ANJARIA,J. - (1.) With the request and consent of learned advocates appearing for the parties, the application is taken up for final consideration today.
(2.) It is in connection with First Information Report bearing Crime Register No.I-121 of 2016 registered on 22nd November, 2016 with Jasdan Police Station, Rajkot Rural, that the applicant-accused has presented this learned Additional Public Prosecutor under section 438 of the Code of Criminal Procedure, 1973. The offences which are alleged in the F.I.R. in question are those punishable under Sections 406, 409, 420, 467, 468, 471, 474, 477A and 114 of the Indian Penal Code, 1860.
(3.) Applicant herein is the President of Shree Arya Seva Sangh Trust. The First Information Report named 13 accused, of whom 12 were the Non-Governmental Organisations (NGOs)-the Trusts. Accused No.13 was the third party inspection agency-the Regional Director of All India Institute of Local Self-Government. The allegations in the First Information Report pertain to irregularities in the construction of toilets which was undertaken under a Scheme of the State Government called Swachh Bharat Abhiyan for the purpose of families who did not have the toilets in their houses. According to the F.I.R. under the Scheme of the State Government, contract was given by Jasdan Nagarpalika to the named NGOs to erect the toilets under the contract at the different places in Jasdan Nagarpalika area. The entire F.I.R. was based on an inquiry report dated 16th October, 2016 of the Deputy Collector. The inquiry was undertaken upon the complaints received about commission of irregularities. 3. 1 It was stated in the F.I.R. that as per the record of the Jasdan Nagarpalika, during the year 2013-14 and 2014-15, payment was made to 3151 beneficiaries in respect of constructions of toilets, out of which 768 toilets were fully constructed whereas 335 were found to be incomplete. The F.I.R. noted the contents of the inquiry report of the Deputy Collector as to the number of beneficiaries found, the beneficiaries who did receive the assistance or though the amount was paid, the construction of toilet was carried out and also such beneficiaries whose names were repeated or duplicated. For each toilet, assistance of Rs. 08,000/- was to be given. 3. 2 In order to comprehend the role of the accused persons and other involved, the State Government Scheme under which the construction of the toilets were undertaken, deserves to be looked into with relevance. The project was entrusted to the bodies of local self-government-in the instant case it was Jasdan Municipality-as per Resolution dated 12th April, 2012 in which the Non-Governmental Organisations were involved. The Resolutions dated 24th August, 2013 read with 21st October, 2013 which are on record and the contents of which are in dispute, reflects the procedure. 3. 3 Under the Scheme operated according to the above referred policy Resolutions, the procedure and steps were envisaged were inter alia that it was for the Municipality concerned to select an NGO to be the agency. The NGOs were to be those identified by Gujarat Municipal Finance Board or may be one selected by the Municipality concerned. As per the procedure in the Resolution dated 24th October, 2008 and 12th April, 2012, the Chief Officer and the other municipal servants after undertaking inspection were required to prepare list of beneficiaries. They would also obtain in writing the consent letters from the beneficiaries which details were required to be submitted to the District Urban Development Agency who would finalise and finally approve the same. After the NGO concerned completing the construction under the contract, the Chief Officer would certify about the construction. Upon this report is submitted in respect of construction, 90% of the bill amount would be disbursed to the NGO concerned. The next step was to undertake third party inspection and upon their certification and approval, 10% amount would be disbursed. The All India Institute of Local Self Government was the third party inspecting organisation. A double-check mechanism was evolve by carrying out inspection by the Municipal Officers and by the third party inspecting agency. 3. 4 According to the case of this applicant, the applicant-NGO constructed 282 units, which work was verified by the Chief Officer, President and Technical Supervisor of the Nagarpalika. Thereafter 90% amount was paid and the bill was also raised for the very amount in respect of same number of toilets. It was stated that remaining 10% amount is yet to be paid and that the third party inspection was also completed. The applicant deposited back amount of Rs. 40,000/- on 11th October, 2016 before notice. The F.I.R. in question was filed on 22nd November, 2016 alleging the offences under Sections 406, 409, 420, 467, 468, 471, 474, 477A read with Section 114 of the Indian Penal Code, 1860. ;