RUP BIHARI SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Two quashing applications were filed, one challenging the order of cognizance dated 11.8.2008 being Cr. Misc. No. 48470 of 2008 and the other being Cr. Misc. No. 37761 of 2009 challenging the order dated 21.3.2009, passed by the Subdivisional Judicial Magistrate, Masaurhi in Masaurhi P.S. Case No. 9 of 2008 refusing to discharge the petitioner for offences under Section 406 and 420 of the Indian Penal Code. The application filed earlier for quashing the cognizance order was withdrawn by the petitioner since the questions and points involved were all raised in the application for quashing of the order of discharge.

(2.) The facts are that there is a college known as D.N. College, Masaurhi (Patna)(hereinafter referred to as 'the College') which is a private institution and is affiliated with the Magadh University, Bodh Gaya. The College was established on 26.6.1979 and the petitioner was the founder Secretary of the College. By a notification issued through memo No. 55/GIIIB dated 30.9.2004 by the Magadh University, the petitioner was declared/elected the Donor Member of the Governing Body of the College. Clause 3(1) of Chapter-XIII of Magadh University Statute defines the terms of office of the members of the Governing Body other than the teacher member and University representative for a period of three years from the date of election, nomination or co-option, as the case may be and also includes a further period not exceeding three months that may elapse between the expiry of their terms and the next election, nomination or co-option. The Clause further provides that the terms of office of the University representative and teacher member shall for a period of one academic session. It is the case of the petitioner that he was elected/declared Donor Member on 10.10.2004. His term expired on 30.9.2007. Hence in between 1.10.2007 to 31.12.2007 as per the Statute, the petitioner was the Secretary of the College and was authorized to look after the accounts of the college. By notification dated 11.10.2007, the Vice-chancellor of the Magadh University under Section 60 of the Bihar University Act and under Chapter-XIII(1) of the Magadh University Statute appointed Smt. Poonam Devi as the public representative, Prof. Ram Lakhan Prasad as the University representative and Dr. Birendra Kumar as teacher's representative of the Governing Body.

(3.) On 7.1.2008 Smt. Poonam Devi opposite party No. 2 filed a complaint on the basis of which Masaurhi P.S. Case No. 9 of 2008 was registered. The allegations in the First Information Report are that when she saw the saving account Nos. 3942 and 21495 of the College, she found that from the said saving accounts in between 1.10.2007 to 31.12.2007 about Rs. 7,11,000/- had been illegally withdrawal by the petitioner and the said amount had been embezzled. It is said that the petitioner has falsely shown himself to be the Secretary of the College. The case was investigated and final form was submitted on 20.4.2008 indicating that the case is false. Thereafter a protest petition was filed on behalf of opposite party No. 2 and the Court proceeded in the matter and took cognizance as stated by order dated 11.8.2008.