- (1.) THIS Criminal Revision application is directed against the order impugned dated 19.9.2008 passed by the Chief Judicial Magistrate, Lohardaga in G.R.No. 347 of 2007 arising out of Lohardaga P.S. case No. 102 of 2007 for the alleged offence under sections 409/420/120B of the Indian Penal Code by which petition filed on behalf of the petitioner Ajay Kumar Upadhyay under section 239 of the Code of Criminal Procedure for his discharge was rejected.
(2.) THE prosecution story in short was that the Superintendent of Lohardaga Mandal Jail presented a written report before the Lohardaga police alleging inter alia that there was leakage of water in female ward from the roof and also seepage from the walls which rendered the female ward not fit for accommodation. He further added in the complain that sometime plaster chips used to fall from the roof causing injury to the minor children living with their mothers in the prison. As there was no alternative ward to accommodate the female prisoners with their children and that they were facing acute hardship adversely affecting their health. A sum of Rs. 5,00,000.00 and 99,950.00 were made available to the Executive Engineer, Building Division, for repair work of different wards and in spite of so -called repair, seepage from the roof of the female wards could not be cured. Pursuant to the direction, made by the District and Sessions Judge and the Deputy Commissioner, Lohardaga , a case was instituted against the Executive Engineer, Building Division, Lohardaga, contractors and the petitioner who is the Accounts Officer in the Building Construction Division, Lohardaga, Learned counsel appearing for the petitioner submitted that the FIR was instituted under misconception of fact and without going through the actual documents. The petitioner, who is admittedly permanent employee in the office of the Accountant General, Jharkhand which is the Central Government Organization, at the relevant time was deputed in the Building Division, Lohardaga as a Divisional Accounts Officer. The building division is divided into two wings viz Engineering wing which used to supervise the construction work, verify the field work and then issue certificates whereas another wing is the Accounts Division whose duty is to make arithmetical calculation, tally the rate with the bills and prepare the memo of payment on the basis of the certification done by the Engineering wing. The petitioner being the Divisional Accounts Officer in the construction Division, his job was totally confined to see the office work and examine and maintain the accounts as per financial rules. It is further stated that after completion of the construction work, the Junior Engineer of the Building Division used to verify the spot and ascertain the measurement and after examining the quality done by the contractors he used to give certification in the measurement book. After making spot verification, Executive Engineer used to verify the bills and measurement books and only after certification of the Executive Engineer the bills come to the Accounts section where bills are verified in the light of the agreement and thereafter memo of payment used to be prepared after calculation and then it is being sent to the Executive Engineer who makes payment order by signing on the cheques. Learned counsel finally submitted that the construction or repairing work is purely a field work, used to be undertaken by the Technical officer and the petitioner being the Accounts Officer has got absolutely no role to play in this matter. The learned Chief Judicial Magistrate, Lohardaga dismissed the petition filed on behalf of the petitioner under section 239 of the Code of Criminal Procedure by ignoring these aspects and also by observing that it is apparent from the case diary that "wrongly withdrawal and hasty withdrawal of the fund was made by the Executive Engineer and contractor and the accused being the Accounts Officer cannot escape liability totally".
(3.) FINALLY , the learned counsel submitted that in the given situation no offence much less under sections 409/ 420/120B of the Indian Penal Code is made out against the petitioner in which cognizance of the offence was taken.;