NATHA SHANKAR KUTHARWADE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The important question about the scope of Government of Maharashtra Circular issued in Rural Development Department being No. VPF 1575/3275/XXIII, dated 6th May, 1976 has been raised in this application. Whereas according to the learned advocate for the petitioner, the scope of this Circular is not limited to specific amounts of misappropriation, the learned Additional Public Prosecutor has contended that the scope of this Circular is confined only to misappropriation of small amounts and offences of technical nature.

(2.) The peculiar facts of the prosecution case have given rise to this controversy. The respondent Naib Tahsildar, Newasa lodged a complaint dated 30th August, 1988 in relation to misappropriation of Rs. 45,269-05 Ps. by the present petitioner-Natha Shankar Kutharwade, working as Talathi of Khedle Permanand and Shiregaon villages. He had collected Rs. 36,894-55 Ps. as Education Cess and Employment Guarantee Scheme Tax between 26-5-1987 to 15-5-1988. Those amounts were collected from Permanand Khedle village under various receipts. Further he collected Rs. 8,374-50Ps. under the same heads from village Shiregaon between 29-12-1987 to 25-1-1988. He misappropriated these amounts which came to light and for which the necessary books were examined on 2-7-1988 and 3-7-1988. The notice in this regard was issued on 5-7-1988 and the same was received by the petitioner on 6- 7-1988 and it is claimed by the petitioner that he deposited the entire amount above mentioned on 7-7-1988 under various Challans. Despite this fact the prosecution was lodged against him under section 409, Indian Penal Code being Criminal Case No. 184/1990 in the Court of Chief Judicial Magistrate. Ahmednagar. Before the learned trial Judge, the petitioner made an application dated 12-3-1990 praying for dismissal of the case on the ground that the petitioner had deposited the amount in less than 15 days of the notice about misappropriation and this act on the part of the petitioner was in complete compliance with the conditions laid down in the Circular. He, therefore, prayed to the Court that the prosecution should be withdrawn in terms of Clause (a) of Part 2 of the above Circular. The learned Judge, by his order dated 23-3-1990. was pleased to reject that request and the present situation is that the prosecution is pending against the petitioner.

(3.) The petitioner has, therefore, preferred this application inter alia contending that it was the bounden duty of the prosecution to have withdrawn the prosecution in terms of the above Circular and despite this, the same has not been done and this Court should, therefore, quash the prosecution. Reliance is placed on the judgment of this Court reported in 1983(2) Bom.C.R. 424 : 1982 Mh.L.J. 559 : 1982 Mah.L.R. 405 in the case of (Dagadu Shamrao Deshmukh v. State of Maharashtra)1. Help is also sought from the judgment of this Court in (State of Maharashtra v. Narharrao)2, Cri.A. No. 76/1983, 27-6-1988.