Kanchhedilal Kori vs State of Madhya Pradesh

Hon. Shri N.K. Gupta, J.—By way of present application u/s 482 of Cr.P.C., the applicant/petitioner has challenged the order dated 18.11.2009 passed by the 15th Additional Sessions Judge, Jabalpur whereby Criminal Revision No. 367/08 preferred against the order dated 1.8.2008 passed in Special Case No. 4347/07 was rejected. The order dated 1.8.2008 was also challenged by the applicant/petitioner by which his application filed u/s 197 of Cr.P.C. was dismissed. The applicant/petitioner has also prayed for quashing the proceeding of Special Case No. 4347/07 for commission of offence punishable under Sections 409 and 120-B of IPC.

Brief facts of the case are that during the period 8.10.2004 to 26.12.2005, the applicant/ petitioner was working as a Manager of the Managing Committee looking after the management of Ramlala Temple, Mehsaon. He received a sum of Rs. 11,050/-towards the security amount in auction of land of that temple. The auction took place on 14.7.2005 and the applicant/ petitioner deposited the sum on 28.12.2005. He had also deposited a sum of Rs. 8,500/-on 21.12.2005 in the Special Account No. 121 of the District Cooperative Bank Rewa. A complaint was received to the State Economic Crime Investigation Bureau, Bhopal relating to the defalcation done by the various office bearers of the Managing Committee of that particular temple. Initially the temple was managed by one Mahant Rameshwar Das and thereafter one Akhand Narayan Pandey was made Secretary to the Managing Committee. Akhand Narayan Pandey committed the crime of defalcation and breach of trust. Thereafter the present applicant/ petitioner was appointed in place of Akhand Narayan Pandey being Tahsildar Tahsil Gurh. After due investigation, challan was filed before the competent Court.

Heard the learned counsel for the parties.

Learned counsel for the applicant submits that the applicant/petitioner was a Tahsildar, Tahsil Gurh and he was given additional charge of Secretary to the Managing Committee of that temple. Previous pass books of the bank concerned were not given to the applicant/petitioner, and therefore he was not in a position to deposit the amount in the bank account of the temple. However, he himself deposited the amount within five months and it may be a temporary embezzlement in the eye of law, but it was not a crime, which may come within the purview of Section 409 of IPC. The main objection raised by learned counsel for the applicant/petitioner is that no sanction of prosecution was obtained u/s 197 of Cr.P.C. In this context, learned counsel for the applicant/ petitioner has invited attention of this Court to para 11 of the judgment of the Hon''ble Apex Court in the case of Anjani Kumar Vs. State of Bihar and Another, to show that the act must fall within the scope and range of the official duties of the public servant. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and by such a provision the complete control of the prosecution was given to the Government. If a public servant in doing his official duty acts in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. Under such circumstances, it is prayed that without the sanction u/s 197 of Cr.P.C., present case cannot be prosecuted, and therefore it is prayed that proceeding of the present trial may be quashed.

On the other hand, learned counsel for the State opposes the application. He submits that in the case of Sambhunath Mishra Vs. State of UP, 1997 (2) MPWN 131 the Hon''ble Apex Court has held that misappropriation of public property done by the public servant does not fall within the duty of the public servant. Similarly, he has also placed his reliance upon the judgment of the Hon''ble Apex Court in the case of Parkash Singh Badal and Another Vs. State of Punjab and Others, in which it is held that during the duty of the public servant if he has done some act or omission, which was not connecting with his duties, then no sanction u/s 197 of Cr.P.C. is required. Under such circumstances, it is prayed that the present application filed u/s 482 of Cr.P.C. may be dismissed.

After considering the submissions made by learned counsel for the parties and looking to the facts and circumstances of the case specially the documents produced before this Court, it appears that the learned counsel for the applicant has placed his reliance to the fact that the applicant/petitioner had deposited the amount within five months of his own, and therefore it was case of temporary embezzlement, which could be disposed off at the departmental level. Learned counsel for the applicant/petitioner has tried to convince this Court according to the principles laid down by the Hon''ble Apex Court in the case of Anjani Kumar (supra). However, in the case of Sambhunath Mishra (supra) it is specifically held by the Hon''ble Apex Court that criminal misappropriation of the property is not an act, which is in continuation of the public duty. In the present case, the applicant/ petitioner could not give any reason as to why he kept that amount for five months. It is not a case that due to non-availability of the passbooks, he could not deposit that amount. On the contrary, it is on record that due to non-availability of pass books etc. of the State Bank, Special Account No. 121 was opened in the District Cooperative Central Ltd. Bank, Collectorate Branch Rewa and that account was opened as a joint account between the Collector and Tahsildar, Gurh, therefore the applicant/ petitioner could deposit the amount in that account after getting that money from the various bidders. It is not a case of mistake. Since no reason has been shown by the applicant/petitioner as to why he kept the amount for five months, it appears that when he was exposed he deposited the money. Under such circumstances, it cannot be said that he did his act according to his public duty. On the contrary, it is apparent from the record that he committed the crime of breach of trust punishable u/s 409 of IPC. Under such circumstances, in the light of judgments of Hon''ble Apex Court in the case of Sambhunath Mishra (supra) and Prakash Singh Badal (supra) it is apparent that no prosecution sanction u/s 197 of Cr.P.C. is required in such a case. Learned trial Court and Revisionary Court have rightly rejected the application filed by the applicant. In such circumstances, there is no basis to quash the proceeding pending before the trial Court.

On the basis of aforesaid discussion, the present application filed by the applicant/petitioner u/s 482 of Cr.P.C. cannot be accepted. Consequently, it is hereby dismissed with no order as to costs.

A copy of this order be sent to the trial Court concerned for information and compliance.