GANAPATI DNYANU PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS revision application is preferred by the petitioner-accused against the order dated 20-9-1988, passed by the learned Judicial Magistrate, First Class, Kagal, convicting the petitioner-accused for the offence punishable under section 408 of I. P. C. and sentencing him to suffer R. I. for 2 months and to pay a fine of Rs. 500/- in default to suffer further R. I. for 1 month. The said order was challenged in appeal being Criminal Appeal No. 200 of 1988 in the Court of learned Third Addl. Sessions Judge, Kolhapur and the said appeal also came to be dismissed by the order dated 14-11-1990 of learned Addl. Sessions Judge, Kolhapur. Hence this revision application.

(2.) THE prosecution case in brief is that, the petitioner-accused was serving as Head Secretary of Kalbadevi Vikas Seva Sanstha Ltd. during the period 1-7-1975 and 31-7-75 i. e. one month. It is alleged that in the Audit Report dated 28-5-1977, it was found that a sum of Rs. 6,759. 65 ps. was shown in the name of Rice Mill Division by the present petitioner-accused No. 1. Thereafter, in the month of September, 1978, a complaint was filed. The investigation was carried out and the charge-sheet was filed firstly on 21-8-1981 for misappropriation of a sum of Rs. 11,652. 41 ps. under section 408 I. P. C. and the application (Exh. 46) was filed by the A. P. P. for amendment of charge and to add one more accused as accused No. 2. That application came to be rejected (Exh. 46) on 22-12-1987 and the charge was dropped. Thereafter, it reveals that on 1-2-1988, second time charge was framed against accused Nos. 1 and 2 for misappropriation of a sum of Rs. 6,759. 65 ps. Thus, it reveals that the alleged misappropriation during the period between 1-7-1975 and 31-7-1975 alleged to have been reported in the Audit memo of 28-5-1977 and the complaint was lodged against two accused i. e. the present petitioner and the Manager of Kalbadevi Vikas Seva Sanstha Ltd. , i. e. accused No. 2. However, accused No. 2 has been acquitted by the trial Court and the petitioner-accused No. 1 came to be convicted and sentenced.

(3.) HEARD the learned Counsel Ms. Dandekar for the petitioner. It has been submitted that the petitioner was holding the charge of Head Secretary of Kalbadevi Vikas Seva Sanstha Ltd. of two sections, only for one month i. e. between 1-7-1975 and 31-7-1975 and thereafter, accused No. 2 has taken the charge of Rice Mill Section. It has been submitted that no misappropriation has been held to be proved by the prosecution, as alleged in the charge-sheet. The charge itself was defective, vague and has no basis for framing the same. The learned Counsel has also contended that there is a considerable delay in lodging the complaint. Further, it has been contended that there is a considerable gap between lodging the complaint and filing the charge-sheet in the Court. It has been submitted that there is further delay of about 7 years and during that period, three times charge-sheet has been framed. The learned Counsel submitted that without going into the merits of this case, and the latches in delay, the petitioner-accused has been highly prejudiced, jeopardised his defence and it has vitiated the prosecution itself. On merits, the learned Counsel has submitted that there is no such misappropriation. The alleged shortage of amount was already paid before the audit objection raised and there is no charge of temporary misappropriation. Therefore, the charge is not proved and the petitioner is entitled for acquittal.