Heard learned counsel for the applicant and Sri Mohd. Nafees, learned A.G.A. for the State.
The applicant, by means of this application under Section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the proceedings of Case no. 6702 of 2008, arising out of Case Crime no. 617 of 2003, under Sections 409/420 I.P.C., P.S. Hazratganj, district- Lucknow, pending before the Chief Judicial Magistrate, Lucknow as well as charge sheet dated 25.03.2008.
According to the prosecution case, the applicant who was posted as Accountant-cum-Store Keeper at Udyog Bandhu 12 Mall Evenue, Hazratganj, Lucknow had misappropriated a sum of Rs. 3,39,812.24 (Rs. Three lacs, thirty nine thousand, eight hundred twelve and 24 paise), which he had collected / deposited / withdrawn towards EPF contribution in the EPF account of State Bank of India but failed to deposit the same. The Executive Director of Udyog Bandhu 12 Mall Evenue, Hazratganj, Lucknow, vide letter dated 8.10.2013 had directed the petitioner to deposit the embezzled amount which he had misappropriated, copy of the letter dated 08.10.2013 is on record of the case as Annexure-3. The petitioner deposited the aforesaid amount of Rs. 3,39,812.24 (Rs. Three lacs, thirty nine thousand, eight hundred twelve and 24 paise) through demand draft / Banker's cheques drawn on different dates and intimated the aforesaid fact to the Executive Director of Udyog Bandhu vide letter dated 14.06.2004, copy whereof has been annexed as Annexure-4. The Staff Officer, Udyog Bandhu vide letter dated 02.07.2004 acknowledged the receipt of letter dated 14.06.2004 and deposit of sum of Rs. 3,39,812.24 (Rs. Three lacs, thirty nine thousand, eight hundred twelve and 24 paise) by the petitioner, copy whereof has been filed as Annexure-5 to the writ petition.
From the material brought on record, it further transpires that the complainant, Smt. Sumita Rawat, In-charge, Administrative Officer, Udyog Bandhu in her statement recorded under Section 161 Cr.P.C. before the Investigating Officer on 04.08.2004 had stated that since the embezzled amount has been deposited by the applicant, the company does not propose to proceed any further against the applicant, accordingly final report was submitted in the matter. However, learned Chief Judicial Magistrate, Lucknow vide his order dated 3.5.2007 ordered further investigation during which statement of one Sri Rajeev Dikshit was recorded on 22.11.2007, in which he reiterated the same facts which had been elicited by Smt. Sumita Rawat in her statement recorded under Section 161 Cr.P.C. However, it appears that Sri Rajeev Dikshit disowned his statement recorded during further investigation and took a different stand in his second statement which was recorded during further investigation and as a result charge sheet showing commission of offences by the applicant under Section 409/420 I.P.C. was submitted against him on which the court below took cognizance and summoned the applicant. Record further shows that the applicant was subjected to departmental inquiry with regard to the same allegations on which his criminal prosecution is founded, in which he was found guilty and dismissed from service, vide order dated 31.08.2001 and a sum of Rs. 3,39,812.24 (Rs. Three lacs, thirty nine thousand, eight hundred twelve and 24 paise) was directed to be recovered from him.
Learned counsel for the applicant submitted that the applicant having deposited the entire embezzled amount, his prosecution in the present case is liable to be quashed.
Per contra, learned A.G.A. has submitted that by depositing the amount embezzled, the applicant has pleaded guilty and hence there is no justification for quashing his prosecution in the present case. He further submitted that all the grounds which have been taken in this application can be raised by him in the discharge application which he may file before the court below at the appropriate stage.
After considering the submissions made by learned counsel for the parties, I do not find it to be a fit case for quashing the applicant's prosecution at this stage, however in case the applicant moves an application for discharge before the court below along with certified copy of this order raising all the grounds which have been taken by him in this application, the court concerned shall decide the same at the appropriate state after hearing both the sides.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 11.3.2014/Faridul