D.G.R.PATNAIK, J. - (1.) PETITIONER has prayed for quashing the entire criminal proceeding, which was initiated on the basis of the case registered at Latehar Police Station, vide Latehar P.S. Case No. 66 of 1998 corresponding to G.R. No. 194 of 1998 presently pending in the court of Chief Judicial Magistrate, Latehar. The F.I.R. was lodged on 26.7.1998 and the case was registered for the offences under sections 420,409,467,468 and 471 IPC.
(2.) TWO main grounds have been advanced in support of the prayer. The first ground is that none of the offences for which the case was registered, is made out against the petitioner even on a bare reading of the allegations in the F.I.R. and the second ground is that the informant has suppressed material facts knowingly and intentionally with mala fide intention to cause undue harassment to the petitioner. A third ground, which has also been advanced, is that the order of cognizance is totally bad in law, as because no prior sanction for prosecuting the petitioner for the alleged offences was obtained from the competent authority. Pacts of the case in brief is that during the period between 1990 -1993 petitioner was posted as a Divisional Forest Officer at the State Trading Division -II Latehar and during his tenure in office, he had defalcated a sum of Rs. 12,33,995.02 in between 2.1.1990 to 28.12.1993 by issuing 57 permits for supply of timber to various purchasers and consumers and from whom, he had realized money by way of cash and Bank drafts against sale proceeds of the limber, but he did not deposit the money in the Government Treasury. It is further alleged that in order to evade detection, petitioner had illegally retained the records including the bank draft register and the consumer files and even after his transfer from station, petitioner continued to retain the same refusing to surrender the same when demanded by the informant at the time of the petitioner's transfer from the station and even thereafter. The consumer's files were dishonestly obtained from the concerned Foresters in charge of the forest depots and retained by him with intent to manipulate the entries therein. The case was initially investigated by the police of Latehar Police Station and later, investigation was taken up by the State Vigilance Department and yet later, the investigation was entrusted to the C.I.D., who after concluding the investigation, had submitted charge sheet on 30.6.2005 recommending trial of the petitioner for the aforesaid offences and on the basis of the charge sheet, learned court below proceeded to take cognizance of the offences vide its order dated 18,08.2005.
(3.) ELABORATING grounds advanced, Shri A.K. Sahani, learned Counsel for the petitioner, submits that even according to the allegations in the F.I.R., admittedly the petitioner had demitted his office at Latehar in the month of December 1993, where -after he had joined another place of posting and had continued to discharge his duties without any blemish and yet, during the entire period of more than five years prior to the lodging of the F.I.R., no illegality or defalcation of any amount on the part of the petitioner was ever found in course of the annual audits of the Accounts. Learned Counsel explains further that the payment towards the cost of timber made by the individual purchasers was made by way of bank draft drawn in favour of the specific forest division and not in the name of divisional forest officer and such drafts could not therefore, be encashed by any means by the petitioner even in his capacity as the D.F.O., since the drafts have to be deposited in the Government Treasury and the money can be withdrawn only by the order of the Government Treasury. Learned Counsel explains that even if, as alleged, the petitioner had retained the bank drafts without promptly depositing the same in the Government Treasury, it in itself, does not constitute any offence whatsoever since the petitioner did not, and in fact, could not withdraw any such amount for deriving any gain for himself. Learned Counsel explains further that in absence of any allegation that any sale register or any entry relating to sale transaction of timber in such registers or any bank draft was tampered or forged, none of the offences for which the case has been registered, is maintainable. Referring to the supplementary affidavit filed on behalf of the petitioner, learned Counsel submits that the informant has intentionally and deliberately suppressed certain material facts which otherwise would have established the innocence of the petitioner. Learned Counsel explains that though in the F.I.R., informant has alleged that it was a case of defalcation and misappropriation of a sum of Rs. 12,33,995.02, but it has also been found that a sum of Rs. 8,19,133.45 was already received by the informant much prior to the date of lodging of the F.I.R. Learned Counsel explains further that though, timbers were supplied to the various purchasers during the petitioner's tenure in office, but the total sum of Rs. 12,33,995.02 could not be recovered from the consumers prior to the transfer of the petitioner from the station. The amount was however recovered and received subsequently by the informant who had succeeded the petitioner in office and this fact has been acknowledged by the informant himself vide his letter no. 1033 dated 26,8,1997 and another letter no. 1152 dated 28.9.1997 which were issued by the informant along with the detailed chart showing receipt of the total amount till 26.8.1997, that is, about 10 months prior to the filing of the first information report. Learned Counsel submits that the aforesaid facts clearly demonstrate that the petitioner had neither received any amount, nor had any occasion to defalcate any amount. The case has been instituted by the informant apparently on the directions of his superior in office and on the sole ground that the petitioner had retained the relevant documents with him and had demitted his office without handing over the relevant documents. The informant has merely suspected that the documents were obtained from the sales depots by the petitioner and were intentionally retained by him for the purpose of manipulating the records and to evade detection. Learned Counsel explains that such suspicion is without any basis and in fact, it is false to claim that the petitioner had retained any documents with him since it could be only on the basis of the registers and the relevant documents that the informant could have assessed the total amount due and realizable from the various consumers. Learned Counsel argues next that the petitioner being an officer of the Indian Forest Service and is removable from the office only by the Central Government, sanction for the petitioner's prosecution for the aforesaid offences under sec. 197 Cr. PC should have been taken from the Central Government only. The claim of the informant that sanction was obtained from the State Government, is void and not applicable to the petitioner. Learned Counsel explains that the allegations against the petitioner are that he had defalcated the money while in discharge of his official duty. The order of cognizance for the offences, as taken by the learned court blow without proper sanction, as required under Sec. 197 Cr. PC, is, according to the learned Counsel for the petitioner, bad in law.;