BISHUNDEO PRASAD VIDYARTHI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the prosecution of the petitioner on the basis of Complaint Case No. 265(C)/96/Tr.No. 541/96 as also the order dated 4.12.1996 passed by Shri Pandey Janardan Prasad, Judicial Magistrate, Barh, whereby and whereunder summons were issued against the petitioner for his prosecution under Sections 406 and 407 of the Indian Penal Code.

(2.) FROM the petition, it appears that opposite party No. 2, Shri Raghuvansh Prasad Singh being the President of the Teachers Association of Ram Lakhan Singh Yadav College, Bakhtiyarpur had filed a complaint petition on 26.8.1996 against the petitioner making out various allegations against him. In brief the allegations are that the petitioner in the capacity of the Principal of the said College was the custodian of its accounts as also the drawing and disbursing authority of the teaching and non -teaching employees of the said College. In June 1996, the petitioner received the salary of the staff of the College for the month of May 1996 but the same was not released in their favour. Moreover, the petitioner did not deposit the provident fund deduction of the teaching staff of the College since January 1996 to May 1996 in their respective accounts. He only deposited the provident fund deduction of the teaching staff of the College for the month of May 1996 only and thereby he misappropriated the provident fund deduction from January 1996 to April 1996. The salary of the staff of the College for the month - of June 1996 received by the petitioner was kept by him till second week of July 1996. The salary for the month of June 1996 was also not disbursed to them causing starvation to the teaching employees of the College. In June 1996, a huge amount was collected from the students which was to be deposited daily in the Bank accounts of the College but the Principal (petitioner) in connivance with the bursar and the accountant had misappropriated the same. The accounts of the College are not being maintained properly and a huge amount of D.A. and PF. of the staff of the College was misappropriated by the petitioner. On these grounds amongst others a complaint petition for the offences under Section 406 read with Section 408 of the Indian Penal Code was filed by opposite party No. 2 against the petitioner. On the receipt of this complaint, opposite Party No. 2 was examined on solemn affirmation and the learned Acting Additional Chief Judicial Magistrate transferred the case under Section 192(1) of the Code in the Court of Shri Pandey Janardan Prasad, Judicial Magistrate. The learned Judicial Magistrate after holding an enquiry and examining the witnesses by the impugned order dated 4.12.1996 ordered for issuance of the processes against the petitioner for his appearance to face the trial under Sections 406 and 409 of the Indian Penal Code. This order has been challengedin the present petition.

(3.) THE petitioner has further contended that he joined as a Principal of the College on 21.4.1994. At that time though the salary of the month of February 1994 was paid to the staff of the College, the provident fund and provident fund loan though deducted from the salary and for the last 56 months were not credited against the respective accounts of the staff by the predecessor in office of the petitioner. After assuming of the charge of the post of the Principal, this petitioner tried to regularise the payment of salary etc. from January 1994. to September 1994. So far as the D.A. and PF. are concerned, they have been credited for the period from June 1994 to September 1994. From the date of joining of the petitioner as Principal the up -to -date salary till May 1996 has been paid to the teaching and non -teaching staff of the College. So far as the salary for the month of June 1996 to the teaching staff is concerned, the same could not be paid for want of sufficient fund. Similarly for the same reason the P.F., P.F. loan amount, D.A., etc. have also not been credited to the accounts of the staff of this College for different periods. Though a sum of Rs. 7.10 lakhs per month is required for the payment of salary to the staff of the College but only 70% of the same is being received from the University as a result of which payment of the salary, provident fund, etc. is bound to fall in arrears. In Magadh University, there is centralised payment system, according to which the Principal and bursars of all the constituent Colleges are required to prepare salary bills inclusive of P.F., P.F. loan and D.A. on P.F. and submit the same to the University which is passed by the Finance Officer and the Registrar of the Magadh University and thereafter 70% of the same is sent to the office of the Principal. In each constituent College, there is Bank account (in the name of Magadh University Fund Account). The amount received by way of salary from the University is sent to the aforesaid Magadh University Fund Account which is operated jointly by the Finance Officer and the Registrar of the Magadh University along with the Principal of the College. Even for the payment of the salary of the individual teaching and non -teaching staff of the College the cheques are issued under the signatures of the Registrar and the Finance Officer of Magadh University and countersigned by the Principal. From the aforesaid facts, it would appear that in the matter of payment of salary, deduction of P.F., P.F. loan, D.A. on P.F. are concerned, the petitioner has no hand in the same and he has to function simply as post office in between the University and the employees of the College. Whatever amount is received from internal sources of the College is also credited to the accounts of the college and, therefore, there could be no question of any temporary embezzlement of any such amount. On these grounds, it has been contended that the allegation against the petitioner are mala fide and no case of criminal breach of trust could be made out against him.