Full Judgment Text
1 58-CriA-2444-06-I
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
58 CRIMINAL APPLICATION NO. 2444 OF 2006
Nitin Ramesh Khairnar,
Age: 32 years, Occ. Service,
R/o: Station Road, Bhandarkar Compound,
Amalner, Dist. Jalgaon … APPLICANT
VERSUS
1. The State of Maharashtra
2. The Chief Officer,
Municipal Council,
Amalner, Dist. Jalgaon ...RESPONDENTS
….
Mr. B.R. Warma, Advocate for the applicant (Absent)
Mr. S.N. Kendre, APP for respondent No. 1
Mr. A.S. Golekgaonkar, Advocate for respondent No. 2 (Absent)
…..
CORAM : K.K. SONAWANE, J.
th
DATED : 25 MARCH, 2019
JUDGMENT :-
When the matter is called out, no one else appeared on behalf of
applicant and respondent No. 2 - Chief Officer, Municipal Council,
Amalner. Learned APP for respondent No. 1 is present. It is to be
noted that the present application is pending since year 2006 for the
relief against the impugned order passed by the learned Judicial
Magistrate, First Class, Amalner, below Exhibit-37 in RCC No. 18 of
2003. In view of seniority of the matter, I find it justifiable to proceed
further to adjudicate the present application on merit in absence of
applicant and respondent No. 2. Therefore, with able assistance of
learned APP I proceeded further to explore the circumstances for
decision of present application on merit. The present application is filed
seeking relief as under:-
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“(A) To quash and set-aside the order dt.
20.7.2006 passed by the learned J.M.F.C. Amalner
below Exh.37in R.C.C. No. 18/2003 and grant
permission for withdrawal of prosecution as prayed
in application below Exh.37.
(B) To quash and set aside the entire proceeding
of R.C.C. No. 18/2003 registered on the basis of
chargesheet no. 5/2003 filed by respondent no.1
before the learned J.M.F.C. Amalner.”
2. Learned APP for respondent No. 1 submits that the impugned
order passed by learned trial Court, below Exhibit-37 appears to be
just, proper and reasonable. The benefit of the Government Circular
referred in the Judgment of this Court in the case of Dagadu
Shamrao Deshmukh Vs. State of Maharashtra reported in
1983(2)Bom.C.R. 424 cannot be made applicable to the applicant, to
allow the prosecution for withdrawal of Criminal Proceedings filed
against the applicant. The learned APP explained the circumstances in
detail and submits that there is no substance in the present application,
and supported the impugned order passed by the learned trial Court.
3. Admittedly, the applicant-Nitin Khairnar and others were
charge-sheeted for the offence punishable under Sections 408, 420,
464, 468, 471 and 477 read with section 34 of the Indian Penal Code.
Pending the trial, the learned APP ventured to file application below
Exhibit-37 for withdrawal of the prosecution against the present
applicant by invoking remedy under Section 321 of the Code of
Criminal Procedure.
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4. It has been alleged that the amount of misappropriation worth
Rs. 1,75,516.85 paise were already deposited by accused -applicant
Nitin Khairnar, therefore, there was no financial loss to the Municipal
Council, Amalner nor any financial loss to the public exchequer.
th
Therefore, resorting to Government Circular dated 30 November,
1978 issued by General Administration Department, Government of
th
Maharashtra as well as Government Circular dated 6 May, 1976
referred in the case of Dagadu Shamrao Deshmukh Vs. State of
Maharashtra (Supra), prosecution be allowed to withdraw the
proceeding against applicant. The learned prosecutor also raised issue
of prosecution sanction under Section 79(1) of the Maharashtra
Municipal Act, and therefore, he preferred the application (Exhibit-37)
seeking permission to withdraw the proceedings filed against the
present applicant.
5. The learned trial Court to ascertain applicability of the
Government Circular referred in the case of Dagadu Shamrao
Deshmukh Vs. State of Maharashtra (Supra) called upon the Chief
Officer, Municipal Council to submit the relevant document of payment
of misappropriated amount, its detail as well as audit report etc. The
learned trial Court observed that applicant deposited the amount of
misappropriation on 03-07-2002 i.e. after efflux of 30 days stipulated
period, reckoned from the date when the department gets knowledge
of the said defalcation or misappropriation of funds. The Civic Authority
came to know about mischief on 18-05-2002. The Government Circular
made it clear that if amount of misappropriation is deposited within a
month from the date of notice of mischief of misappropriation, an
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offence of criminal breach of trust is to be condoned. At this juncture,
it is profitable to make reference of observations made by this Court in
paragraph No. 8 of the aforesaid judgment in the case of Dagadu
Shamrao Deshmukh reported in 1983(2) Bom.C.R. 424, as
follows:-
“8. The only portion of the Circular which is relevant for the
purpose of this petition is Clause 'A' of para 2 of the same.
Said Clause (a) of para 2 runs as follows :-
“Where the amounts misappropriated have been
fully recovered or paid by the delinquents within
one month from the date of misappropriation
being noticed no prosecution should be launched
and cases of this category already in the Court
should be withdrawn. However, this will not
preclude the action against the Sarpanch/Upa
Sarpanch or a member under section 39 of the
Bombay Village Panchayats Act, 1958.”
It is unnecessary to paraphrase the above clause. It is
enough to state that it reflects an unequivocal policy decision
of the Government not to lodge prosecution against the
delinquent employee if he has fully repaid the amount
misappropriated within one month from the date when the
misappropriation is noticed. Evidently, the word “noticed” in
the above clause (a) means nothing else but the position that
the accused would not be proceeded against in a Criminal
Court if he repays the amount within one month from the
date when the department gets knowledge of the said
misappropriation. The word ”noticed” does not and cannot
mean that the responsibility of the delinquent employees
starts only from the date he receives notice from the
department to pay the amount. There is no reason
whatsoever why such duty should be cast upon the
Government to give a notice to the delinquent employee to
pay the amount which he should not have, in the first place,
misappropriated at all. It is further clear that if the
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delinquent employee repays the amount to the Government
within one month from the date when he gets knowledge
that the entire game was over and that the factum of the
misappropriation made by him had come to the knowledge of
the Department, he gets a locus penitentiae by virtue of the
clear policy decision contained in said clause (a).”
6. In the matter-in-hand, the defalcation was noticed on
18-05-2002 whereas applicant deposited the amount of
misappropriation on 03-07-2002 i.e. after expiry of one month period
stipulated under the aforesaid Government Circular. The learned trial
Court has correctly appreciated the factual aspect and arrived at the
conclusion that in case benefit of aforesaid circular is extended to the
applicant and the prosecution was allowed to withdraw the criminal
proceeding filed against the present applicant on technical ground, it
may result in cynical disregard of law which would have it's impact on
the society at large and people may loose faith from judicial system. I
find that the findings expressed by the learned trial Court appears just,
proper and reasonable one. The application submitted by the learned
APP for withdrawal of criminal proceeding pending before the learned
trial Court on technical ground deserves to be dismissed being devoid
of merit.
7. The learned trial Court also refused to allow the learned
prosecutor for withdrawal of proceeding on the another ground of lack
of prosecution sanction as contemplated under section 79(1) of the
Maharashtra Municipal Council Act. It is to be noted that the learned
trial Court has correctly dealt with the matter and observed that the
issue of prosecution sanction by the Competent Authority in this case
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would be an matter for consideration at appropriate stage but certainly
not at the initial stage of the prosecution. Moreover concerned Chief
Officer of respondent No. 2 filed affidavit-in-reply in this matter. In
paragraph No. 5, the concerned Chief Officer ventures to make
averments as follows:
“5. The deponent submits that, in present case, the
Chief Officer himself has approached the investigating
machinery i.e Police, on the basis of audit report. The
audit report is received on 27/06/2002. On receipt of
said report an enquiry was done and the letter by Chief
Officer, AMC, was issued to the Investigating authority.
Thereafter, in accordance with the process started, one
Mr. Rohidas Mali, had filed a complaint on 2/6/2002.
The offence is registered under Section 408 of IPC
against the accused persons with the police station.
Hence, Mr. Ramdas Mali had filed complaint on the say
of CO. Even under the provisions of Audit Act, the
Auditor as well as Chief Officer have been empowered
to file a complaint. In such circumstances, the ground
raised by applicant about sanction prior to filing of a
complaint is unsustainable. Moreover, Court below has
directed the Chief Officer to file his report prior to
passing of the order below Exh.37 in RCC No. 18/2003.
There, it has been observed that, at first instance, CO
himself has approached to the Investigating Authority,
by issuing letter. This itself shows that, there is
sanction and hence, the ground raised is not
sustainable.”
8. I find that discretion exercised by the learned trial Court was
within the purview of law. There is no infirmity or illegality in the
impugned order passed by the learned trial Court. The issue of
prosecution sanction raised on behalf of learned prosecutor for
withdrawal of the matter would definitely the matter of evidence. It is
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preposterous to allow the prosecution to withdraw the proceeding at
the initial stage on the issue of prosecution sanction without giving
opportunity to the concerned authority. It is also significant to take
into consideration that respondent No. 2 Civic Authority, who lodged
the FIR for penal action against applicant and others did not agree with
the action of learned prosecutor for withdrawal of the proceedings by
extending benefit of Government Circular on the ground of making
payment of entire amount misappropriated by him. The interference in
the impugned order passed by the learned Judicial Magistrate, First
Class, below Exhibit-37 at the behest of applicant, is totally
unwarranted. The application being devoid of merit, deserves to be
dismissed. Accordingly, application stands dismissed. No order as to
costs.
9. It is worth to mention that, the matter is pending since 2006,
the learned trial Court is hereby directed to give top priority for its
adjudication on merit as expeditiously at the earliest and preferably
within a period of eight months from the date of receipt of writ of this
order.
10. Accordingly, application stands disposal of in above terms. Rule
is discharged.
Sd/-
[ K. K. SONAWANE ]
JUDGE
MTK.
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