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1967 DIGILAW 187 (ALL)

Mansoor Ali Khan Qazmi v. State

1967-05-12

YASHODA NANDAN

body1967
ORDER Yashoda Nandan, J. - These applications in revision are directed against an order of Sri K.L. Mehra, Magistrate First Class, Etah, framing a charge against the Applicant for an offence punishable u/s 409, IPC. Revisions filed by the Applicant against the order of the learned Magistrate were dismissed by the learned Civil and Sessions Judge, Etah. 2. The relevant facts leading up to these revisions are that the Applicant Sri M.A. Khan Qizmi was during the relevant periods the Dy. Inspector of Schools, Etah and the co-accused Sri D.N. Tripathi was the Clerk, Zila Parishad, Etah. It appears that certain grants of money from the Govt, meant for the students of the areas effected by flood, for scholarships and books aid to them were encashed by Sri D.N. Tripathi in the last week of March, 1964 in Criminal Revision No. 1878 of 1965 and between July 1963 and April 1964 in Criminal Revision No. 1879 of 1965 (the total amount being Rs. 507.15 P. in Criminal Revision" No. 1878 of 1965 and Rs. 1720.50 P. in Criminal Revision No. 1879 of 1965) and the said amounts were not disbursed or explained and they were embezzled. After investigation, the police submitted charge sheets against Sri D.N. Tripathi as well as the Applicant. 3. Examined by the learned Magistrate, Sri D.N. Tripathi stated that he had encashed the said bills from the State Bank of India but he had handed over the entire amount of money to the Applicant who was the Deputy Inspector of Schools and the Applicant had implicated him only in order to save himself. 4. The learned Magistrate taking into account the statement of Sri D.N. Tripathi and other circumstances of the case took the view that there was a prima facie case against the Applicant as well and so he framed charges against the Applicant also. 5. It was contended before the learned Civil and Sessions Judge that the copies of the documents supplied to the Applicant u/s 173, Code of Criminal Procedure do not disclose a prima facie case against the Applicant and so no charge against the Applicant should have been framed. The learned Civil find Sessions Judge, took the view that in the present cases there was no dispute that the drawing authority was the Applicant and the responsibility of disbursing the amount so drawn also rested on him. The learned Civil find Sessions Judge, took the view that in the present cases there was no dispute that the drawing authority was the Applicant and the responsibility of disbursing the amount so drawn also rested on him. The learned Civil and Sessions Judge went on to hold that keeping in view all the circumstances and the statement of the co-accused D.N. Tripathi the learned Magistrate was not unjustified in coming to the conclusion that there was a prima facie case against the Applicant as well. 6. It has been contended by the learned Counsel for the Applicant tint both the courts below went wrong in taking the view that the statement made by Sri D.N. Tripathi could be taken into account for the purpose of deciding whether a prima facie case was made out against the Applicant or not. There is force in this contention. What Section 251-A, Code of Criminal Procedure contemplates being taken into account is the statement of a particular accused himself and not that pf a co-accused. In my view the statement of Sri D.N. Tripathi who claimed to have handed over the entire amount to the Applicant after having drawn it from the Bank could not be taken into consideration by the courts below for the purpose of deciding whether there was or was not ground for presuming that the accused had committed an offence triable u/Ch. XXI of the Code of Criminal Procedure. 7. I have gone through the papers furnished to the Applicant referred to in Section 173, Code of Criminal Procedure and to the statement of the Applicant. In my opinion there is no material on record which could furnish a reasonable basis or foundation for presuming that the accused has committed an offence u/s 409, IPC. The court below it appears was not justified in assuming that the Applicant was the disbursing officer of the amounts drawn by Sri D.N. Tripathi in respect of flood relief, scholarships and other grants. The statements of Ram Narain Sharma, Om Prakash Upadhya, Sub Deputy Inspector of Schools, Etah and Bhai Lal Naik, Deputy Inspector of Schools, Etah, who succeeded the Applicant, recorded by the Investigating Officer, copies of which were furnished to the Applicant, indicate that it was the duty of Sri D.N. Tripathi himself to disburse the amounts to the students concerned. The statements of Ram Narain Sharma, Om Prakash Upadhya, Sub Deputy Inspector of Schools, Etah and Bhai Lal Naik, Deputy Inspector of Schools, Etah, who succeeded the Applicant, recorded by the Investigating Officer, copies of which were furnished to the Applicant, indicate that it was the duty of Sri D.N. Tripathi himself to disburse the amounts to the students concerned. There is no material on record to suggest that the Applicant was responsible in any way for disbursing the amount of the students. 8. I have carefully gone through the material on record and in my view there was no justification for the learned Magistrate having framed charges u/s 409, IPC against the Applicant. 9. These revisions are consequently allowed and the orders of the learned Magistrate dated 30-3-1965 and that of the learned Civil and Sessions Judge Etah, dated 21-8-1965, are set aside; The interim orders passed by this Court on 11-10-1965, are vacated.