JUDGMENT 1. 1. An unusual interesting case of the prosecutor becoming the accused, for cheating and corruption offence, the total amount analysed being Rs. 33.50/- has come to lime light in the criminal revision petitions filed under Section 397 Cr.P.C. by petitioner Roshan Lal, The amount of Rs. 33.50/- again is spread over in two years 1978 and 1979 as it is alleged that on 9-1-1978 the petitioner drew travelling allowance of Rs. 6/-as rickshaw charges and Rs. 8/- as daily allowances. On 12-4-1979 travelling allowance drawn is Rs. 8/- with Rs. 11.50 as daily allowances and this makes the total amount of Rs. 33.50/-. 2. Surprisingly enough this corruption and cheating as alleged by the prosecution was detected and discovered in the year 1981 when First Information Report was lodged, by one Shyam Lal Reader of the court in which the accused was the Assistant Public Prosecutor. Investigation followed. The modu soperandi of the investigation was search and research of the order sheets in which the Assistant Public Prosecutor was absent and then the bills of the travelling allowances and the daily allowances from 1978 to 1981. 3. The detective agency could find out ultimately that where as Rs. 33.50/- was actually obtained by the petitioner as daily allowance and travelling allowances without attending the court on the date for which it was drawn. Yet other bills amounting to Rs. 111.52 of 1978 and 1979 and 1980 and for Rs. 180/- of 1979 were submitted for, without attending the court at the Camp courts. These bills were not paid. For Rs. 76/- it was not drawn by the accused. The amount of Rs. 111.52/- was still in the process of preaudit checking and therefore, was not paid. 4. On the above bedrock the State Government granted sanction for prosecution in one and half page detailed order dated 17-6-1982 which reads as under, resulting in 4 separate challans:X X X X X X X 5. The prosecution case is that on the dates mentioned above in the above sanction, the Magistrate court has held at Camp, out side Jaipur as it was a railway camp court and the accused who was Assistant Public Prosecutor to the court was supposed to go and attend the court but without attending the court he submitted the bills, for travelling allowances consisting of hire charges of rickshaw and tonga etc. Being attached to railway Magistrate he was not allowed railway fare but for those days he has also charged DA. In all these amounts even if they would have been paid, was Rs. 221.02 out of which Rs. 33.50/- was drawn and the balance remained undrawn. 6. After bearing the petitioner Shri Roshanlal in person and Mr. S.R. Surana. Mr. Hanuman Choudhari Advocate for him and Mr. S.B. Mathur, Public Prosecutor assisted by Mr. Purohit, I may first point out some salient features of the case which will have great bearing in this judgment, as they have emerged during the arguments. (i) All the amounts which have been either paid or claimed but not paid are very petty amounts and they have been verified and certified either by the agency of the prosecution, incharge of the office, in which the petitioner was functioning or Railway Magistrate in whose court he was attached; (ii) These verifications have been not explained so far as the Assistant Public Prosecutor incharge is concerned. He has not been examined. The Railway Magistrate in his statement recorded under Section 161 Cr.P.C. has mentioned that the verifications were done, on the basis of the tour programme and the diaries of the programme which he inspected and which were shown to him. The relevant para of Shri Bhagwati's statement regarding the verifications of the TA bills reads as under: X X X X X X X (iii) Mr. Mathur, learned Public Prosecutor has after reply to the question and quarries put by the court has submitted that apart from the evidence of the order sheets in which has APP has been shown absent and which have been proved by the Railway Magistrate, his Reader and Mr. Dube Har Prasad, there is no iota of evidence that Shri Roshan Lal either did not travel or that he was not in the town or city where the Camps were held or he did not hire tonga or rickshaw; (vi) That before this criminal complaint was lodged there has been feud between the reader of the court and the petitioner. That the petitioner was prosecuted on the basis of the FIR lodged by the Reader of the court and not the Director of Prosecution who was Head of his Department. 7. That the petitioner was prosecuted on the basis of the FIR lodged by the Reader of the court and not the Director of Prosecution who was Head of his Department. 7. Though during the arguments Shri Roshan Lal has devoted more time on his grievance against the State machinery and the Magistrate concerned alleging lack of bonafide. I am of the opinion that these allegations cannot be accepted. Unless a through enquiry is conducted in the presence of the persons against whom allegations are made, making of these allegation cannot be noticed by this court and can never be adjudicated upon. 8. If (he petitioner was keen, serious about these allegations of malafide he should have faced the trial, lead the evidence, cross examined Shri Verma and Magistrate Shri Mahesh Bhagwati and others and then argued the case but it is obvious that these allegations have been made half heartedly at this stage, without courage of conviction for getting them adjudicated in the trial. I would therefore, neither mention them nor adjudicate them. 9. All that can be said is that the allegations of malafide made by Shri Roshan Lal against the complainant and the witnesses including reader Shri Verma and Shri Mahesh Bhagwati, Magistrate concerned, and then Director of Prosecution Shri Mandhana etc. are not supported by any tangible evidence and they are too vague, sweeping and general to be considered much less accepted and are therefore, rejected. 10. I would now examine whether prayer for quashing these proceedings should be accepted as the prosecution in this case is wholly misconceived and in the net analysis it would result in persecution as argued by the petitioner. 11. The claim of daily allowances, the travelling allowances for use of rickshaw or some other vehicle and that too for petty amount of Rs. 33.50/-spread over in two years where in the total amount drawn must be in hundreds or thousands, whether prima facie contains a criminal intention or has got mens rea, is the main question. It has been rightly pointed out by the petitioner that a petty amount as mentioned above which have been withdrawn is one item out of several in a bill. The bill of January 1978 itself contains about 26 items and total amount is Rs. 118 50 out of which the objectionable item for which payment has been made is Rs. It has been rightly pointed out by the petitioner that a petty amount as mentioned above which have been withdrawn is one item out of several in a bill. The bill of January 1978 itself contains about 26 items and total amount is Rs. 118 50 out of which the objectionable item for which payment has been made is Rs. 8.50 and 5 00/-is for Camp Court at Bandi Kui. 12. Now obviously if in a mouth there are 13 trips having 26 entries and in the whole of the year there is one item which means out of about 250 item there is one item of which travelling allowances and daily allowance has been taken without exact preciseness about the attendance can it be said that there was criminal intention, even if it is assumed that the court was not attended on that particular date and may be that he might have gone or not gone to that place ? 13. In each year there may be about more than 100 items of such T.A. and D.A. and the amount may be in thousands. That being so it is impossible to conceive that the petitioner would deliberately with criminal intention about obtain a petty amount of Rs. 14.50 in 1978(9-1-1978) and 19 Rupees in 1979 (12-4-1979) and thus from 1978 till 1981 when the FIR was lodged criminal modus operandi of Assistant Public Prosecutor who was supposed to deal with criminal law would result in depriving the State of Rs. 33.50 in all. 14. To me it appears that as usual the travelling allowances bill and the daily allowances attached to it of Government Officers who are required to perform tour durries, mostly as in the present case two Camp Courts were not attended and for which amount has been drawn which are based of the tour programme of the officer himself and then in good faith those bills are prepared and verified and encashed normally, Remote chances of some lapse due to lack of exactitude and preciseness and carelessness or even recklessness or loss of memory which happens, then some programmes out of them are not attended on account of unforeseen circumstances, although they are in schedule, always remains. 15. The Railway Magistrate usually holds Camp out side the city as would be obvious from the bill of Jan. 15. The Railway Magistrate usually holds Camp out side the city as would be obvious from the bill of Jan. 1978 when atleast for more than 15 days Camps were held out side Jaipur, at Phulera, Bandikui Sikar, Alwar etc. In the month of January 1978, the stay at Jaipur was not more than 10 days in all. Similar is the case always because the Railway Magistrate mostly remains in the Railways for checking and then holds Camp Courts at other places which are Railway Junctions or otherwise important. Such being hazardous duty of the Railway Magistrate and several others who are mostly on wheels in the Railway, slight lapse of 1, 2 or 3 claims lacking exactitude cannot be treated as having criminality or mens rea to defraud the exchequer. 16. If I may analyse the four cases put up before the net result would be that out of the total amount of about 15 to 20 thousands which the petitioner must be receiving in a year by way of salary, allowances including TA and DA etc. and thus in 3 years out of about 50 thousands which he must have received under various heads of salary allowance, by his committing this offence he enriched himself of Rs. 33 50/- that too in two parts as mentioned above and he wanted further to enrich himself by other amounts which also taken together would not cross Rs. 300/- even. 17. The statistical data skeleton of which 1 have reproduced above, the facts and circumstances, nature of duties, assignment the over all sum of the entire four cases, clearly goes to show that a microscopic if not telescopic probe into the bills and their comparison with the order sheets revealed a lapse of Rs. 33.50 if at all it happened which the public exchequer had paid to the petitioner for DA and TA during the period of more than three years. 18. To term it as deliberated intentional voluntary act of cheating or corruption is impossible by any standard of common sense. Whatover little knowledge of law one may possess, even by stretch of imagination this cannot be treated as a charge of cheating or corruption. 18. To term it as deliberated intentional voluntary act of cheating or corruption is impossible by any standard of common sense. Whatover little knowledge of law one may possess, even by stretch of imagination this cannot be treated as a charge of cheating or corruption. I am convinced that inspite of the best intention which the complainant may have and for which 1 am not expressing any opinion because the present one is not a stage of trial and the complainant has been deprived to say in the matter, I feel that the dragging of this prosecuting would be prepetuating gross injustice on the petitioner, as it would be flogging a dead horse. I am convinced that the efforts of the prosecution to succeed in such frivolous cases cannot be better described as an attempt to build a bridge on a sand dune without there being a drop of water, muchless river or canal. 19. It was in such similar circumstances that the Hon'ble Supreme Court in A.K.Bose v. State of Bihar, AIR 1974 SC 1560 emphasised the importance of mens rea in offence of Section 420 and held as under: "It could not be said that the requisite mens rea had been established against the accused. At the highest it was a case of an error of judgment or breach of performance of duty which, per se, could not be equated with dishonest intention which was one of the essential ingredients of the offence of cheating under Section 420. 20. The Hon'ble Supreme Court was dealing with a case of Accountant and Bill Clerk in which conviction was affirmed by the High Court. The Accountant in that case paid fictitious pay bills without checking but the Apex Court found "Mens rea" missing and held it a case of "No offence." 21. In H.N.Dube v. State of Rajasthan, 1974 Cr. LR (Raj.) 475 , the agent of the State Bank of Bikaner and Jaipur along with others was prosecuted and this court observed as under: "If there was any breach of the departmental instructions or the rules in this behalf or if the petitioner committed an error of judgment in discounting the aforesaid usance bills, it cannot be presumed that he was actuated by any criminal intention for causing loss to the Bank, or extending undue pecuniary advantage to the other three co-accused. There is no evidence on record to show that only these three co-accused were given such facilities, and similar facilities, were not extended to other account-holders or the persons of the town." 22. In my considered opinion whatever I have said in Tej Singh v. State of Rajasthan, 1979 RLW 37 and Mahendra Singh v. State of Rajasthan, 1982 RLW 400 fully applies in the present case. 23. In the present case I am convinced that merely on the basis of the order sheets showing the absence of the A.P.P. in the cases, where he was supposed to be present on that date, for which he issued' a tour programme and for which some amount was drawn by him as T.A. and DA. it would be too much to launch a criminal case, that he did not perform journey at all, although in a given case such an inference may be strengthened if proved by other evidence. Even on the assumption that such an inference can be drawn, even in the absence of any other positive documentary, oral evidence then also, I am convinced that facts and circumstances read as a whole are speaking and patent to show the amount and the nature of the alleged enrichment is ridiculously negligible. To hold that in the bill of a year an amount of Rs. 6.00 would be drawn as a travelling allowance, with criminal intention and Rs. 8.50/- as D.A. with criminal intention, after getting thousands of rupees in all, as mentioned above every year and that too by Assistant Public Prosecutor who is well versed with the various criminal complications and facets and liability and otherwise of such a foolish act, is to assume wholly against common sense. 24. I am therefore, convinced that this is one of those cases where this court should in the interest of justice and to avoid avoidable litigation which is likely to cost very high both to the accused and the State in terms of money, time and also reputation, I must exercise my powers of revision and quash all the proceedings in all the four cases pending against the petitioner Roshan Lal. 25. Consequently all the four revision petitions are accepted and the proceedings in all the four cases are quashed. 26. Before parting with this judgment I must mention that it is unfortunate that the Investigating Agency has launched these four prosecutions. 25. Consequently all the four revision petitions are accepted and the proceedings in all the four cases are quashed. 26. Before parting with this judgment I must mention that it is unfortunate that the Investigating Agency has launched these four prosecutions. The prosecution agency and the police agency must realise that every error or commissions or omissions and even negligence, recklessness inefficiency of a citizen or a civil servant which may result in departmental proceedings and departmental action, cannot be treated as offence in criminal law. A clear line must be drawn between those commissions and omissions which are intentionally having mens rea, deliberate wilful voluntarily for committing some offence, as against those commissions and omissions which are based on either inexactitude or error of judgment, rashness in working or lack of care or procedural inefficiency and which patently lack criminal intention. 27. The present one may be a case of second category, where the department may take any departmental proceedings, if so advised for the alleged commission or omission but the prosecution agency should keep its hand off, from prosecution. 28. Since I have quashed all the proceedings, bail bonds taken from the accused for presence in the trial court, are discharged.Revision accepted. *******