VINAI KRISHNA GAUR Vs. STATE OF U P

JUDGEMENT

(1.) THIS application has been filed under Section 482 Cr. P. C. for quashing the proceedings in Criminal Case No. 1082 of 2001 under Section 409, 420, IPC, p. S. Cantt, District Allahabad, pending in the Court of 5th A. C. J. M. , Allahabad along with charge sheet dated 21-12-2000 arising out of the crime No. 126 of 2000.

(2.) BRIEF facts of the case are that opposite party No. 2 Sri T. M. Khan. O. S. D, litigation, High Court, Allahabad, filed a first information report on 28-6-2000 in which it has been alleged that accused applicant was posted as Cashier/section Officer and incharge, of the Oath Commissioner's Coupons /hereinafter referred as Coupons)and defalcated large amount of money to the tune of Rs. 7,87,266. 00 from employees welfare fund. In this connections a complaint was made by Sri D. P. N. Tripatht the then Vice president of High Court Ministerial Officers association, Allahabad on 9-3-1999 to the registrar alleging that the accused had defalcated a large amount of money from the employees welfare fund. According to this report limited number of Oath Commissioners both officials as well as Advocates were appointed every year for swearing affidavits filed in the writ petitions in this Court and for that purpose prescribed fee was charged by them. In order to have check upon the oath Commissioners and with a view to have proper maintenance of account the system of coupons was introduced. The notional price of one coupon was fixed at 0. 01 paisa being printing charge and the Oath Commissioners were required to pay in cash this amount in the cash section at the time of purchasing coupons. Fee for Oath Commissioner as was to be charged for one affidavit was also fixed from time to time. The amount so deposited was to be shared amongst the oath Commissioner both Advocates as well as employees. This scheme was introduced by order dated 22-2-1990 and at that time the applicant was already working as Cashier/accountant w. e. f. 1. 11. 1988. He continued to work there till his suspension on 18-5-1999. During this period, applicant was exclusively incharge of the work of coupons. The entire daily sale money of coupons was required to be deposited by Sri Gaur regularly in the relevant account No. CA-II/96 high Court Oath Commissioner's Account which was opened with effect from 16-3-1990. But the applicant admittedly did not deposit the sale amount regularly. He deposited lump sum amount of Rs. Three Lacs during six days from 30th November 1998 to 5th December, 1998. The work of deposit and withdrawal from this account was exclusively performed by the applicant. However he opened another account No. 57 w. e. f. 12-11-1991 himself. This account was meant for depositing the shares of the employees welfare fund. The work of deposit in this account was also exclusively performed by the applicant himself. Sri Diwakar mishra, the then Joint registrar (Account)gave the report that the applicant had de falcated a sum of Rs. 7,87,266. 00 Sri diwakar Mishra submitted three reports dated 14-5-1999, 10-8-1999 and 12. 3. 1999 which were shown to the applicant during his statement in the department enquiry and the accused applicant admitted the correctness of the report and even admitted his accountability for shortfall and prayed for some time to deposit the money in installments. It shows that he was exclusively incharge of the work and was prima facie responsible for embezzlement of money held in trust. In accordance with basic fundamentals of account rules, he was supposed to deposit the daily sale money of coupons in the relevant account CA-II/96 High Court Oath commissioner's Accounts. The Registrars showed that he did not deposit the sale money regularly but kept it with him as long as he desired. After investigation, charge sheet dated 21-12-2000 was submitted and learned Magistrate took cognizance. Feeling aggrieved this application has been filed.

(3.) CASE of applicant is that he was posted as Section Officer/cashier in High Court, allahabad on the gazetted post and he was a public servant at the alleged time of defalcation. According to applicant no sanction for prosecution has been taken under Section 197 (1)Cr. P. C. and therefore no prosecution could be initiated against him and the entire proceedings are illegal and against the mandatory provisions of Section 197 (1)Cr. P. C. He joined the post of Cashier cum accountant in the High Court on 1-8-1988 and later on he was promoted as Section officer on 18-11-1993 and since then he had been performing with utmost devotion and sincerity and there was no complaint against him. The entire account of sale of coupons, distribution of shares in employee welfare fund as well as High Court Bar Association welfare Fund along with distribution of shares was maintained regularly and the accounts were regularly checked and verified by Joint Registrar Accounts. Account no. C. A.-II/96 was opened in the name of high Court Oath Commissioner's Account for depositing amount of sale of coupons and the amount was deposited from time to time as per instructions of drawing and disbursing officer. Accounts were also regularly submitted to the Higher Officers including the Deputy Registrar and Joint Registrar accounts. Money for the share distribution and other distribution in the welfare fund was also distributed with the approval of the higher authorities. It was given to the Oath commissioner's both officials and non officials through cheque and he never withdrew any penny. The money of the sale of coupons was not regularly deposited in the said account No. C. A.-II/96 as there were no instructions of the higher authorities including the Joint Registrar/deputy Registrar (A)and the same was also not in practice. The money of sale of coupons was deposited at the instructions of Joint Registrar/deputy registrar Accounts, who were the chief drawing and disbursing officer and the applicant was bound to follow their instructions. It was customary in the cash section that day to day money of sale of coupons was not deposited in the Bank account No. C. A.-II/96. At number of times higher authorities also directed for cash payment to officials and non officials. This was also reason for accumulation of the sale proceeds of the coupons in the cash chest. The entire account was verified by Joint Registrar/deputy Registrar (Account) day to day. The cash chest was also operated jointly by the applicant and the drawing and disbursing officer and the master key of the cash chest was with d. D. O. who was incharge of the cash section. The money kept in the cash chest was operated jointly and he was not authorised to operate the cash chest alone. On 24-11-1998, the Registrar General along with d. D. O. verified and checked the Oath commissioner's Account along with other high Court Account and nothing was found short. In view of the heavy load of work Sri r. P. Patel of cash section was also ordered to assist him and was given the charge to maintain the Oath Commissioner's fund along with Joint Registrar Account. The applicant was retired from the cash account of Oath Commissioner's fund. In the First information Report, as well as the fact finding enquiry report, it has been wrongly alleged that he was performing his duty in maintaining the cash account in respect of oath Commissioner's Fund. It was exclusive responsibility of Sri R. P. Patel as well as Sri Diwakar Mishra to maintain the said account. The cash chest key was taken by sri Diwakar Mishra. The applicant being an old patient of abdominal disease fell ill in the month of December 1998 but any how he performed his duty during illness. But when he became seriously ill he proceeded on leave w. e. f. 3-1-1999 and the key of the cash chest was with Sri Diwakar Mishra who had grudge against him for several years and taking advantage of his absence played a game with him in collusion with Sri D. P. N. Tripathi who made the complaint against him on 9-3-1999. In his absence the money that was in the chest and under the full control of Joint Registrar (Account) Sri Diwakar mishra was embezzled by him in collusion with his associates. His medical leave was rejected and he was suspended on 18-5-1999. During the period of his illness he came to know about misappropriation and he submitted his joining. He also came to know about complaint made by Sri D. P. N. Tripathi. The enquiry was conducted by the officer under the control of the Registrar general and on that basis charge sheet was submitted. Allegations made against him are false and fabricated. He was compelled under the phobia of the then Registrar General to put his signatures on the false statements prepared by the Enquiry Officer. The statements which are part of the enquiry report are not his statements but are manufactured statements. In the circumstances prayer has been made for quashing the charge sheet and the proceedings.