STATE OF MAHARASHTRA Vs. RATIRAM KARUJI RANE

JUDGEMENT

(1.) THE respondent-accused during the period from 11. 1. 1983 to 18. 7. 1983 was working as Extra Departmental Sub Post Master at Gothangaon. He was charged for the offence punishable under Section 409 of Indian Penal Code for having committed criminal breach of trust in respect of total amount of Rs. 3,645. The prosecution, to substantiate the charge, had examined about 10 witnesses and had also produced necessary documents. The learned trial Judge relying on a decision in Dagadu Shamrao Deshmukh v. State of Maharashtra1, recorded a finding of acquittal observing that the accused deposited the entire amount as involved on 12. 9. 1983. As such, the learned trial Judge observed that in view of the Authority cited, the accused was not liable to be prosecuted. The approach of the learned trial Judge is erroneous. The Circular in question has no general applicability. The same was issued as regards persons doing a particular job, namely collection of Tagai loans. Even otherwise, the Circular could not have applicability to the persons in the employment of Union Government. Even accepting the Circular as it is, the Prosecutor was not competent to apply under Section 321 of Criminal Procedure Code without obtaining prior permission of the Union Government. The learned trial Judge has not adverted to this aspect and reached to an erroneous conclusion. Moreover, having once prosecuted an employee for the offence punishable under Section 409 of Indian Penal Code, it was obligatory for the learned trial Judge to record a finding of either acquittal or conviction. The impugned ORDER, therefore, cannot be sustained. The learned trial Judge has also not adverted to the evidence, oral and documentary, as adduced by the prosecution. The matter, therefore, needs to be remanded.

(2.) SHRI Samarth, the learned Counsel appearing for the respondent-accused tried to urge that the evidence as adduced is not sufficient to substantiate the charge and the finding of acquittal can also be maintained on merits after appreciating the evidence. We gave anxious thought over the matter. Since the aspect of merit has not been considered and the learned trial Judge has not adverted to this aspect while granting acquittal, it would not be expedient to scrutinise the evidence for the first time in this appeal against acquittal. Considering the circumstances and in fitness of things, we feel the matter needs to be remanded.

(3.) IN the result, the appeal is partly allowed. The Impugned ORDER and finding of acquittal for the offence punishable under Section 409 of Indian Penal Code is hereby set aside. The case is remanded back to the Chief Judicial Magistrate, Bhandara to deal, in accordance with law after granting necessary opportunity to the parties. The accused-respondent is on bail. He is continued, however, on furnishing fresh bond before the Chief Judicial Magistrate, Bhandara. Appeal allowed.