JUDGMENT Amar Saran, J.
1. Heard learned counsel for the applicant and the learned A.G.A. for the State of U.P.
2. The applicant was Principal of Adarsh Junior High School, Jagannathpur, Gopiganj, Sant Ravidas Nagar (Bhadohi). An F.I.R. was lodged against the applicant and others on 23.9.2000. The allegations were that as per the report of the District Social Welfare Officer, Sant Ravidas Nagar. Bhadohi. There were irregularities in the distribution of scholarship amounts to the eligible students and on an inspection of Adarsh Junior High School, Jagnnathpur, it is found that instead of Rs. 480/- to each of the Scheduled Castes children of classes 6 to 8, they were only given an amount of Rs. 450/- and there by Rs. 30/- was deducted and misappropriated by the applicant (Principal) and other concerned persons. The charge sheet was submitted after investigation conducted in pursuance of the aforesaid report. The F.I.R., charge sheet and criminal proceedings against the applicant are being sought to be quashed by this application.
3. It is argued that the applicant was not responsible for disbursement of the amount, but it was the Gram Pradhan and the Panchayat Vikas Adhikari, who could be held liable for the embezzlement, if any. In this connection, the learned counsel for the applicant has drawn my attention to the letter of the District Basic Shiksha Adhikari Annexure 11, which mentions that the amount is disbursed with the joint signatures of Gram Panchayat Vikas Adhikari and Gram Pradhan and scholarship amount is placed in the "Village Nidhi Account" by the District Social Welfare Officer and this was the allegation of the District Basic Shisha Adhikari. Likewise he has drawn ray attention to the letter of the Gram Panchayat Vikas Adhikari to the Principal that ho had received the amount and the list may be made available to him for distribution of the scholarships. It has been held by (he Apex Court in State of Bihar and Anr. v. P.P. Sharma, IAS and Anr. reported in 1992 Supp. (1) SCC 222 that defence documents, which are not even part of the record of the prosecution, cannot be considered by the High Court in an application under Section 482 Cr. P. C. The same view was affirmed by the Apex Court in State of Orissa v. Debandra Nath Padhi , where the Court specifically held that defence material cannot be considered even at the stage of charge, but can only be seen when the defence evidence is adduced and only the documents submitted by the Investigating Agency are to be taken into account. The Apex Court in Debandra Nath Padhi case (supra) specifically overruled the earlier decision of the Apex Court in Satish Mehra v. Delhi Administration , which took a contrary view.
4. Learned counsel for the applicant has not been able to show any decision, which states that the view taken in Debendra Nath Padhi's case (supra) is not good law. Learned counsel for the applicant also tried to contend that the ingredients of Section 409 IPC are not disclosed. The expression of the Section 409 IPC have been widely couched and refer to actual entrustment or dominion over property in capacity as a public servant. Therefore, under this Section, dominion over property suffices and actual custody of property alone need not been established. Moreover, it may be seen during the trial whether the applicant had effective control and. dominion over the property, which was misappropriated as mentioned in the F.I.R. This aspect cannot be investigated in proceedings under Section 482 Cr. P. C.
5. In this view of the matter, I find no illegality in the charge sheet submitted against the applicant under Section 409 IPC and accordingly, this application for quashing the criminal proceedings against the applicant is rejected. However, if the applicant appears within a month and applies for bail before the court concerned in Criminal Case No. 628 of 2002 State of U.P. v. Jyoti Prakash Tripathi, under Section 409 IPC pending before the A.C.J.M. Bhadohi, Gopiganj, Sant Ravidas Nagar, the same shall be disposed of in accordance with the Full Bench decision of this Court in Smt. Amarawati and Anr. v. State of U.P. reported in 2004 CBC 705.
6. The application is dismissed.
7. Interim order dated 21.5.2002 is vacated.