HARIHAR PRASAD DUBEY Vs. TULSI DAS MUNDHRA

JUDGEMENT

(1.) In this appeal by special leave the appellant questions the correctness of an order passed by a learned Judge of the Calcutta High Court quashing a charge under Section 406 of the Indian Penal Code framed against respondents Nos. 1 and 2. The appellant who is a teacher of a school in Calcutta named Shri Balkrishna Vithal Nath Vidyalaya filed a petition of complaint On January 16, 1970 before the Additional Chief Presidency Magistrate, Calcutta, against the aforesaid respondents who happened to be the Secretary and Head Master respectively of that school, alleging misappropriation, of the provident fund money of the school. The school is recognised by the West Bengal Board of Secondary Education. Following a judicial inquiry into the allegations the Additional Chief Presidency Magistrate, Calcutta, took cognizance of the case and transferred the case to the Presidency Magistrate, 11th Court, Calcutta, for disposal. The prosecution examined 13 witnesses and proved a number of exhibits. The Presidency Magistrate on a consideration of the material before him framed the following charge against the respondents :

(2.) In our opinion neither of them was a valid ground for quashing the proceeding and the learned Judge was in error in thinking that continuance of the proceeding would be an abuse of the process of the court. The two grounds are really one - that in the absence of statutory rules there could be no offence under Section 406 of the Indian Penal Code. This Court in Jaswantrai Manilal Akhaney v. The State of Bombay, 1956 SCR 483 : (AIR 1956 SC 575) explained that :

(3.) This, in our opinion, is a correct statement of the position and we also agree with the learned Judge of the Madhya Pradesh High Court that "this is so obvious that nothing more need be said about it". We, therefore, think that the impugned order quashing the charge against the respondents is obviously wrong. The appeal is allowed, the order complained of is set aside; as this is an old case, the trial shall be expedited.