Is it misapproriation of Govt. money under section 13 (1) (c
A.Mohamed Thaheer
(Querist) 21 April 2009
This query is : Resolved
Examine the following case for opinion.
"A" & "B" is Govt. Department and Quasi-Government organisation respectively.
One A/C machine was borrowed from the "B" Department officially on loan basis for office use in "A" Department.
While the machine was in use, it had undergone major repair.
The estimated cost for repairing was around Rs.11,255/-.
The matter was intimated to the "B" Department orally for carrying out the repairs. But,there was no response.
Then, "A" Department had carried out the repairing works at the cost of the "A" Department with the approval of the Superior Officer.
The amount was settled in full Through the Government Treasuries to the firm directly through DEMAND DRAFT.
But, after knowing that the repairs were carried out by the "A" Department, "B" Department has also paid the same amount to the directly through demand draft for which "A" Department had no knowledge.
While the Vigilance officials were conducting inquiries about some allegations in the "A" Department, the firm who got the second payment from the "B" Department" has returned the money through cheque, and this amount was also recieved back by the "B" Department without any objection and settled the matter.
In the mean time, the Vigilance officials had filed one FIR stating that double payment were made for a single repair, thereby, the officials of the "A" Department had misappropriated the said amount in collusion and charge sheeted for the offence under section 13(1)(c) of the Prevention of Corruption Act, 1988, read with section 34 IPC.
Please, read the case very carefully and decide whether any ingredient of the offence of misappropriation is made out in the above relevant section.
If no, what legal action could be taken against the police officials.
At present, the high court has stayed the proceedings in the lower court, as there is no primaficie case is made out in the charge. Govt. has not filed counter so far.
Please discuss and come to the forum for further clarification, if any needed.
tarun goyal
(Expert) 24 April 2009
from the query, one aspect is clear that the bill paid was not fake. it was actully paid. when coming to the knowledge of double payment and that too from different departments. the money can not be said to be appropriatd.it would have been so only if the double payment would have been made by the same department. furhtermore, first, a preliminary enquiry should have been made inthe matter. secondly, it is not the police who initiated the action suo motu. it was the Vig. Bureau who lodged the FIR. so no action against the police.in nut shell it is not a case of misappropriation.
A.Mohamed Thaheer
(Querist) 25 April 2009
Dear friend,
You have analysed the case properly.
But, one aspect you are clear which I am clarifying to you as follows.
It is only the Vigilance Department who conducted the preliminary inquiry and reported as a case of misappropriation proved and informed to the concerned Department. In turn, the FIR was filed by the concerned Department without conducting departmental inquiry in the first instant and failed to verify the facts.
The FIR was filed with the same vigilance department and this department itself is
DECLARED AS POLICE DEPARTMENT WITH POWERS TO INVESTIGATE FURTHER INVESTIGATION, AND THEY HAVE ONLY FILED THE CHARGED IN TH COURT FOR ACTION, AND THAT TOO WITHOUT PROPER SANCTION FOR PROSECUTION FROM THE DISCIPLINARY AUTHORITY AS REQUIRED UNDER SECTION 19 (1) OF THE Prevention of corruption act,1988.
Now,you give your opinion what action could be taken against the police officer who has filed a case of malicious prosecution, thereby, I denied retiral benefits for the past 6 years incurring a loss of nearly 10 lakhs.
A.Mohamed Thaheer
(Querist) 25 April 2009
correction: one aspect is not clear, but i have wrongly recorded as cleared in the beginning of the sentence.
tarun goyal
(Expert) 25 April 2009
i think there is some missing link which u are not able to clear. though ur vigilance departmnet is invested with power to investigate, but the proper procedure has not been followed i.e when the chargesheet has been filed with the court, the proper procedure was to obtain sanction from the proper authority for prosecution. as per ur query, the hon'ble High Court has stayed the proceedings in the lower court and the department has not filed any counter. from the facts, it is very clear that the department is biased.secondly, my advise is that althogh u have suffered a lot, but wait and try to see the outcome of the court's order. because, if u take some premature action against vigilance men, they will try to spoil your case. furhter, please let me know, was there any parallel departmental proceedings. if so, has those been completed or are in progress pending outcome from the court order. if u don't hesitate , may contact tkg1968@rediffmail.com. don't lose heart, every problem has solution.
A.Mohamed Thaheer
(Querist) 25 April 2009
Thank you very much for the sportive courage you given and for making immediate response.
I want one clarification on the following point:
At what stage the sanction for prosecution has to be obtained by the police officias, before filing charge sheet in the court?
Is it before starting the investigating process? (or)
In the middle of the investigation process and before coming to the conclusion by vigilance police themselves about the factual position?
(or) AFTER COMPLETION OF THE INVESTIGATION (OR) AFTER FILING CHARGE SHEET ON WHICH THE MAGISTRATE HAD ALREADY TAKEN COGNIZANCE OF THE OFFENCE WITHOUT APPLICATION OF MIND. I.E. GETTING A VALID SANCTION FOR PROSECUTION.
But one thing is the fact that my department itself is biased against me, because my head was my junior who got promotion on reservation quota, even though there were lot of complaints against him which I was exposing it then and there openly.
tarun goyal
(Expert) 01 May 2009
i am sorry dear, icould not reply you in time. now point wise reply
1. the sanction of prosecution has to be taken after investigation is complete and the investigation agency thinks that the matter is to be prosectuted in the court of law, then it applies for sanction of prosecution from appropriate authority.rest of the proceedings take place for framing charges by the magistrate. also dont get confused in the chargesheet file by the investigating agency and charge framed by the magistrate. chargesheet filed by the agaency is basicaly report and ti has nothing to do with charges framed by the court. as advised by me earlier, it is clear that there is something fishy. so keep watch on developments. don't be panicky as you have already suffered a lot. secondly, forget about taking any action against the vigialnce officiial as they are immune to such proceedings unless our judiciary has intention to punish them for their fraudulent and malicious acts.
with best wishes. keep in touch.
