HARI NILKANTHA PATVARDHAN Vs. MAHADEO VINAYAK SATHE

JUDGEMENT

(1.) This Revision Application raises an important question of law, viz., whether the Magistrate has got power to discharge the accused under secticn 249 of the Code Criminal Procedure in default of appearance of the complainant or of the witnesses, who were examined prior to the framing of the charge and whose presence was required for the purpose of cross-examination.

(2.) The complainant is a teacher in Vidya Mandir Prashala, Miraj. He filed a complaint against the petitioner under section 408 of the Indian.Penal Codtj on the allegation that between 30-6-1963 and 19-8-1963, the petitioner misappropriated the amount of Rs. 292.50, which was alleged to have been entrusted to the Petitioner. According to the complainant, the accused was the pead Master in a school called Vidya Mandir Prashala, in the year 196263. The said amount of Rs. 292-50 was received by the Prashala from the N.C. C. Office for the clothes of A.C.C. students. It is alleged that this amount was received by the Petitioner on 30-3-1963 being the Head Master. On 11-6-1963, the Petitioner resigned from service. It was noticed that the said amount of Rs. 292.50 was not entered in the Books of Account of the Prashala. It is, therefore, alleged that the said amount was misappropriated by the Petitioner. It is stated in the complaint that in August, 1963, the Petitioner was serving in Jubilee Girls English School at Miraj and the said amount was received by the Head Master of the school from the Petitioner and it was sent to N.C.C. Office. It is on these facts that the accused was charged under section 408 of the Indian Penal Code for having misapproprated the amount. The complaint was filed on 6th July 1974, i.e., about 11 years after the commission of the offence although the amount was repaid as stated in the complaint in 1963.

(3.) On this complaint, summons was ordered to be issued and the complaint was tried as a warrant case and on behalf of the complainant witnesses Mahadeo Vinayak Sathe and Dattatraya Toro were examined. Thereafter on 22-6-1976, the learned Magistrate framed a charge against the Petitioner under section 409 of the Indian Penal Code, which is at Exhibit 37.